RODNEY MYERS JR ET AL VS COUNTY OF LOS ANGELES ET AL

Tentative Rulings

Case Number: ****0294 Hearing Date: June 30, 2022 Dept: SEC

MYERS v. COUNTY OF LOS ANGELES

CASE NO.: ****0294

HEARING: 06/30/22

JUDGE: OLIVIA ROSALES

#9

TENTATIVE ORDER

Defendant ANYTIME DUMPING, INC.’s Motion for Summary Judgment is DENIED. The alternative Motion for Summary Adjudication is GRANTED in part.

Moving Party to give Notice.

Complaint

This action was initiated on October 19, 2017. The operative First Amended Complaint (“FAC”) alleges that Defendants illegally dumped several tons of dirt on Alameda Street, a public right of way without permission and without warning signs to the public. On April 9, 2017, Decedent Rodney Myers, Sr. rode his motorcycle straight into the dirt, causing his death. Based thereon, the FAC asserts causes of action for:

1. Negligence (v. Walsh Shea)

2. Negligence (v. HNTB)

3. Negligence (v. J.F. Shea Construction, Inc.

4. Negligence (v. Comstock Company (ARUP)

5. Premises Liability v. (City of Compton).

On September 17, 2020, Plaintiffs filed an amendment to the FAC naming ANYTIME DUMPING, INC. (“Anytime”) as DOE #9.

I. ANYTIME’s MSJ/MSA

Defendant Anytime moves for summary judgment, or in the alternative, summary adjudication pursuant to CCP 437c.

As an initial matter, Plaintiffs’ Opposition is procedurally defective because Plaintiffs failed to file a memorandum within the page limits in violation of CRC 3.1113(d) and failed to include a table of contents in violation of CRC 3.1113(f). However, this Court will exercise its discretion in considering the papers.

Objections and RJN

Anytime’s Request for Judicial Notice is granted.

Anytime’s Objections 1-3 are sustained.

Plaintiffs’ Request for Judicial Notice is granted as to the existence of the documents, but not as to any hearsay statements contained therein.

Standard

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

ISSUE 1

NEGLIGENCE:

Wrongful death plaintiffs alleging negligence related to a decedent’s death must establish the elements of duty, breach, causation, and damages. (CACI 400; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

Anytime submits the following relevant evidence:

A Clean Soil Sheet dated April 15, 2017 was found in the pile of dirt at the scene of the incident. (DSS No. 4.)

The investigating officer, Detective Wilson, confirmed in his deposition that they never determined who dumped the load of dirt. (DSS No. 5.)

Detective Wilson testified that they were unable to determine when the dirt was dumped. (DSS No. 6.)

Detective Wilson testified that they were unable to determine where the dirt came from and could not confirm it came from Walsh Shea Corridor Constructors’ (“WSCC”) jobsite. (DSS No. 7.)

During his investigation, Detective Wilson discovered that the Chiquita Canyon landfill was in a completely opposite direction of where WSCC was doing construction. (DSS No. 8.)

During his deposition, Detective Wilson testified that there would have been no reason for Mr. Plair’s drivers to be traversing through Compton with the subject dirt if it had come from the jobsite.

There was no evidence at the scene that the Decedent attempted to stop or otherwise avoid the dirt pile. (DSS No. 11.)

The Investigation into the Incident also revealed that the Decedent had a blood alcohol level of .08. (DSS No. 12.)

Detective Wilson ultimately concluded that the Decedent’s blood alcohol level, unsafe speed, and lack of a proper protective helmet caused his death. (DSS No. 16.)

Detective Wilson concluded that there was nothing “malicious” as to the Incident. (DSS No. 18.)

The dump trucks owned by Anytime at the time of the Incident and utilized by the sub-haulers hired by ANYTIME at the time of the Incident were Super 10 models. (DSS Nos. 20-21.)

A Super 10 dump truck is not able to unload an eight-feet pile of dirt in one dump. (DSS No. 23.)

As evidenced by the trucking schedules provided by WSCC, there were other subhaulers besides Anytime working on the project. (DSS No. 24.)

The Court finds that Anytime has failed to meet its initial burden. A Clean Soil Certificate with WSCC’s name was found buried and crinkled in the dirt at the scene of the Incident. (DSS No. 4.) Although Anytime’s Super 10 dump trucks were unable to unload an eight-feet pile of dirt in one dump, and the fact that there were other subhaulers working on the project, Anytime has failed to establish that Anytime did not dump the dirt. Whether Anytime, WSCC, another subcontractor, or some unknown third party was responsible for dumping the dirt is a triable issue.

Summary adjudication of the claim for negligence is DENIED. Consequently, summary judgment is DENIED.

ISSUE 2

PUNITIVE DAMAGES

On a motion for summary adjudication with respect to a punitive damages claim, the higher evidentiary standard applies. If a plaintiff is going to prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression, or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.)

Plaintiffs have not submitted any evidence that would create a triable issue as to malice, fraud, or oppression, or any evidence of corporate ratification. (CC 3294.)

Accordingly, summary adjudication of Issue 2 is GRANTED.

Case Number: ****0294 Hearing Date: May 17, 2022 Dept: SEC

MYERS, et al. v. COUNTY OF LOS ANGELES, et al.

CASE NO.: ****0294

HEARING: 5/17/22 @ 1:30 PM

#4

TENTATIVE RULING

I. Defendant Walsh Shea Corridor Constructors’ motion for summary adjudication is GRANTED as to Issue 2. The court will hear from Walsh Shea regarding Issue 1.

II. Defendant CleanStreet, Inc.’s motion for summary judgment is GRANTED.

Moving Parties to give NOTICE.

Complaint

This action was initiated on October 19, 2017. The operative First Amended Complaint (“FAC”) alleges that Defendants illegally dumped several tons of dirt on Alameda Street, a public right of way without permission and without warning signs to the public. On April 9, 2017, Decedent Rodney Myers, Sr. rode his motorcycle straight into the dirt, causing his death. Based thereon, the FAC asserts causes of action for:

1. Negligence (v. Walsh Shea)

2. Negligence (v. HNTB)

3. Negligence (v. J.F. Shea Construction Inc.)

4. Negligence (v. Comstock Company, ARUP)

5. Premises Liability (v. City of Compton)

I. WALSH SHEA’S MSJ/MSA

Defendant Walsh Shea Corridor Constructors (“Walsh Shea”) moves for summary judgment, or in the alternative, summary adjudication pursuant to CCP 437c.

Objections

Walsh Shea’s Objection Nos. 1-3 are sustained.

Standard

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

ISSUE 1

NEGLIGENCE:

Wrongful death plaintiffs alleging negligence related to a decedent's death must establish the elements of duty, breach, causation, and damages. (CACI 400; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

Walsh Shea submits the following relevant evidence:

Walsh Shea arranged for debris (including clean soil and dirt) to be transported from various Project sites to various landfills. (Defense Separate Statement (“DSS”) 7.)

Walsh Shea did not deposit clean soil or dirt on Alameda Street in Compton on April 9, 2017 or at any other time before the Incident. (DSS 6.)

Anytime Dumping was the subcontractor responsible for dirt deliveries to Chiquita Canyon from the La Brea Project site in the weeks preceding the Incident. (DSS 8)

In April 2017, Alexander Plair was a project manager for Walsh Shea at the La Brea Project site. (DSS 12.)

A Clean Soil Certification was found buried and crinkled in the dirt at the scene of the Incident. (DSS 17, 18, 21.)

The Clean Soil Certifications are given to project engineers, who give them to the foremen, who give them to the trucking manager, who gave them to truck drivers once the trucks were loaded and exiting the site. (DSS 19.)

Plair could not provide any information regarding the dirt, which was not located anywhere near La Brea or Chiquita Canyon. (DSS 22, 38.)

Plair mentioned to Det. Wilson that dirt is sometimes stolen from job sites. (DSS 23.)

Chiquita Canyon could not provide any information regarding the dirt at the location of the Incident either. (DSS 24.)

Det. Wilson never had any leads as to where the dirt came from before it was dumped at the scene of the Incident. (DSS 25.)

Det. Wilson was unable to determine who dumped the dirt involved in the Incident, unable to determine exactly when the dirt was dumped, unable to determine the source of the dirt, or that the dirt came from the La Brea Project site. (DSS 26, 27.)

Decedent’s blood alcohol content was above the legal limit for operating a motor vehicle, according to the toxicology analysis in the coroner's report. (DSS 34.)

Decedent was wearing a thin, flexible helmet that was not Department of Transportation approved, not appropriate for motorcycle riding, and didnot provide any protection upon impact. (DSS 35.)

Decedent was traveling at an unsafe speed immediately before the Incident. (DSS 36.)

The cause of Decedent's death was his blood alcohol content, unsafe speed, and lack of a protective helmet. (DSS 37.)

Det. Wilson determined that "there was no one directly associated with [Decedent's] death" and "there was nothing that was malicious... in regards to this fatal traffic collision." (DSS 39, 40.)

Plaintiffs’ opposition is procedurally defective because Plaintiffs failed to file a memorandum within the page limits in violation of CRC 3.1113(d), and failed to include a table of contents in violation of CRC 3.1113(f). However, this court will exercise its discretion to consider the papers.

Walsh Shea cites Kinney v. CSB Const., Inc. (2001) 87 Cal.App.4th 28 and Tverberg v. Fillner Constr. (2012) 202 Cal.App.4th 1439, for the proposition that a hiring contractor does not owe a duty to a third party "to prevent or correct unsafe procedures or practices [of a subcontractor] to which the [hiring] contractor did not contribute by direction, induced reliance, or other affirmative conduct." (Kinney v. CSB Const., Inc. (2001) 87 Cal.App.4th 28, 39.) However, Kinney and Tverberg involved Plaintiffs who were independent contractors or employees of the subcontractor. The court there, drew a distinction between plaintiffs who were employees of the subcontractor and plaintiffs who were complete “stranger[s] to the relationship.” (Kinney, supra, 87 Cal.App.4^th 38.) The Privette and Toland line of cases apply to plaintiffs who are employees of the subcontractor, while Plaintiffs who were complete strangers, have “no other certain remedy, the immediate employer is not immune from civil liability, and the hirer, if held liable, is presumptively entitled to equitable indemnity from the immediate employer.” (Id.)

The court requests from Walsh Shea, further case authorities that would support its proposition.

ISSUE 2

PUNITIVE DAMAGES:

On a motion for summary adjudication with respect to a punitive damages claim, the higher evidentiary standard applies. If a plaintiff is going to prevail on a punitive damage claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.)

Plaintiffs have not submitted any evidence that would create a triable issue as to malice, fraud, or oppression, or any evidence of corporate ratification. (CC 3294.)

Accordingly, summary adjudication of Issue 2 is GRANTED.

II. CLEANSTREET’S MSJ

Defendant CleanStreet, Inc. moves for summary judgment pursuant to CCP 437c.

Standard

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

NEGLIGENCE and PREMISES LIABILITY:

Plaintiffs allege two causes of action against CleanStreet: general negligence and premises liability.

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

“[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814.) The California Supreme Court has set forth the factors for determining whether duty exists in a given case: (1) the foreseeability of harm to the plaintiff; (2) the degree of certainty that the plaintiff suffered injury; (3) the closeness of the connection between the defendant’s conduct and the injury suffered; (4) the moral blame attached to the defendant’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) the availability, cost, and prevalence of insurance for the risk involved. (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113.)

Simple maintenance of property owned by another does not constitute an exercise of control over that property. (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 198 - property owners who regularly trimmed tree, swept leaves off brick pathway, and did some gardening in city-owned planting strip in front of their property did not thereby exercise sufficient control over planting strip to owe a duty to warn or prevent harm to pedestrian who fell on pathway.)

CleanStreet submits the following relevant evidence:

In April 2017, CleanStreet performed curbside sweeps in the Subject Area on Thursdays between 5:00 am and 7:00 am, unless it received a request from the City of Compton to perform an additional sweep at a specific location, pursuant to a contract with the City of Compton (Defense Separate Statement (DSS) 2-3.)

Pursuant to the contract, Cleanstreet was only responsible for performing curbside sweeps with its sweeper vehicles and not responsible for transporting, hauling, or dumping piles of dirt in the street. (DSS 4.)

The last time CleanStreet performed a curbside sweep in the Subject Area, prior to the subject accident, was between 5:00 am and 7:00 am on Thursday, April 6, 2017. (DSS 5.)

CleanStreet was never notified, never observed, and never became aware of the subject dirt pile, prior to the subject accident occurring. (DSS 9, 10, 11.)

CleanStreet has never owned, leased, occupied, controlled, or possessed the Subject Area. (DSS 12.)

In April 2017, CleanStreet did not dump any dirt, rocks, or sand in the Subject Area, nor was it responsible for the transportation, hauling, or dumping of any dirt, rocks, or sand in the Subject Area. (DSS 7, 8.)

On April 7, 2017, at 8:13 p.m., the Los Angeles County Sherriff’s Department received a phone call from an informant complaining of a pile of dirt or rocks in the Subject Area. (DSS 15.) On that same day, at 9:26 p.m., the Los Angeles County Sherriff’s Department received a secondphone call from another informant complaining of a large pile of rocks and sand in the Subject Area. (DSS 16-17.)

In opposition, Plaintiffs attempt to dispute DSS 4, by arguing that the contract is not limited to “curbside” sweeps only. However, this does not create a triable issue of material fact. The contract expressly provides that CleanStreet was to perform “street sweeping services.” (Services Agreement Services Agreement between the City of Compton And CleanStreet Sweeping Service, 1.) Whether characterized as “curbside” instead of “street” sweeping is immaterial to the issues in this motion.

Plaintiffs also attempt to dispute DSS 9-11, but offer no evidence aside from pure speculation that CleanStreet was notified of the pile of dirt.

Finally, (without submitting any objection to Zamora’s declaration and therefore any such objection is waived), Plaintiffs argue in its motion that Zamora lacks personal knowledge to make the declaration. However, Zamora declares that he is “experienced in CleanStreet’s policies and procedures” and “familiar with the street sweeping services provided by CleanStreet in April 2017 in the area where the subject accident occurred.” (Zamora Decl., 6.) The court finds Zamora is qualified to submit a declaration on behalf of CleanStreet.

The court further finds CleanStreet had no duty to clear the dirt pile, which appeared after its sweep on the morning of April 6, 2017 (DSS 2-5). Further, there are no triable issues that CleanStreet was notified, observed, or became aware of the subject dirt pile, prior to the accident. (DSS 9-11.)

Further, Plaintiffs failed to present any evidence that defendant owned, leased, occupied, or controlled the subject property. (DSS 12; CACI 1000.)

Accordingly, summary judgment is GRANTED.

Case Number: ****0294 Hearing Date: March 29, 2022 Dept: SEC

MYERS, et al. v. COUNTY OF LOS ANGELES, et al.

CASE NO.: ****0294

HEARING: 3/29/22 @ 1:30 PM

#7

TENTATIVE ORDER

Cross-Complainant Walter Shea Corridor Constructors’ motion for summary adjudication is DENIED.

Opposing Party to give NOTICE.

Cross-Complainant Walter Shea Corridor Constructors (“Walter Shea”) moves for summary adjudication of its claims against Anytime Dumping, Inc. (“Anytime”) pursuant to CCP 437c.

Objections

Anytime’s Objection No. 1 to Preston Decl. is overruled.

Walter Shea’s Objection Nos. 1-7 are overruled.

Standard

A Cross-Complainant has met its burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (CCP 437c(p)(1).)

Pleadings and Procedural History

This action was initiated on October 19, 2017. The operative First Amended Complaint (“FAC”) alleges that Defendant illegally dumped several tons of dirt on Alameda Street, a public right of way without permission and without warning signs to the public. On April 9, 2017, Decedent Rodney Myers, Sr. rode his motorcycle straight into the dirt, causing his death. Based thereon, the FAC asserts causes of action for:

1. Negligence (v. Walter Shea)

2. Negligence (v. HNTB)

3. Negligence (v. J.F. Shea Construction Inc.)

4. Negligence (v. Comstock Company, ARUP)

5. Premises Liability (v. City of Compton)

Walter Shea filed a Cross-Complaint on December 1, 2020, asserting causes of action for:

1. Express Indemnity (v. Anytime Dumping, Inc.)

2. Breach of Contract (v. Anytime Dumping, Inc.)

3. Equitable Indemnity (v. Roes)

4. Declaratory Relief (v. Anytime Dumping, Inc.)

5. Apportionment of Fault (v. all Cross-Defendants)

On August 30, 2021, Anytime's automobile insurance carrier, Century National Insurance Co. ("Century"), filed a Declaratory Relief action (Case No. 21TRCV00639) against Anytime's commercial general liability insurance provider, Colony Insurance Co. ("Colony"), Anytime, Walter Shea, and Plaintiffs, seeking a declaration that Century National does not owe a duty to indemnify or defend Anytime or Walter Shea for claims arising from the underlying Complaint.

Walter Shea demurred to Century's declaratory relief action on several grounds, including that this Court has exclusive concurrent jurisdiction over whether Anytime owes indemnity and defense to Walter Shea. Walter Shea’s demurrer to Century's declaratory relief action will be heard on April 26, 2022. (RJN, Ex. 6.)

ISSUE 1

Walter Shea contends it is entitled to summary adjudication of its 1^st cause of action for Express Indemnity because the Subcontractor Agreement requires Anytime to indemnify and defend Walter Shea for any claims arising from Anytime’s performance of work.

A plaintiff may summarily adjudicate the existence or nonexistence of a contractual duty, including a duty to defend. (Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App. 4th 226, 244.) Whether a subcontractor owes a developer a duty to defend under an indemnity agreement is a contractual question appropriate for summary adjudication. (Centex Homes v. R-Help Const. Co. (2019) 32 Cal.App.5th 1230, 1233; Regan Roofing Co. v. Superior Court (1994) 24 Cal.App.4th 425, 435.)

The FAC alleges that on April 9, 2017, Decedent Rodney Myers, Sr. rode his motorcycle straight into several tons of dirt that was illegally dumped on Alameda Street, a public right of way without permission and without warning signs to the public.

The indemnification clause in the Agreement states: “[Anytime] shall indemnify, defend and hold harmless the Contractor, Owner and any other entity as provided in the Contract against claims and expenses arising out of or resulting from performance of [Anytime's] Work." (Cross-Complainant’s Separate Statement (XCSS) XCSS 8.)

Walter Shea submits the following relevant evidence:

Walter Shea contracted with the Los Angeles County Metropolitan Transportation Authority to build the Crenshaw/LAX Transit Corridor, an 8.5-mile light rail line. (Cross-Complainant’s Separate Statement (XCSS) 4.)

Walter Shea arranged for debris (including clean soil and dirt) to be transported from various Project sites to various landfills. (XCSS 5.)

Anytime was the only Walter Shea subcontractor responsible for dirt deliveries from the La Brea Project site to Chiquita Canyon in early April 2017. (XCSS 12, 13.)

Det. Wilson testified that his investigation indicated the dirt was dumped on Alameda at some point after 4:00 pm on the day before the Incident (April 8, 2017). (XCSS 28.)

Det. Wilson testified that a Clean Soil Certification was found buried and crinkled in the dirt at the scene of the Incident and was later entered into evidence. (XCSS 24.)

The Chiquita Canyon Landfill Clean Soil Certification "certifies that this load of soil is being delivered to [Chiquita Canyon], natural and contaminated soil which will be reused or cover material at the landfill." (XCSS 21.)

Walter Shea employee, Alexander Plair, testified Clean Soil Certification forms are given to project engineers, who give them to the foremen, who give them to the trucking manager, who gave them to truck drivers once the trucks were loaded and exiting the site. (XCSS 22.)

In opposition, Anytime submits the following relevant evidence:

The Clean Soil Certification is dated April 15, 2017, which is six days after the subject incident. (Pendergrass Decl., Ex. F, Plaintiff’s Response to RPD, Ex. A)

Detective Wilson confirmed in his deposition that they never determined who dumped the load of dirt; was unable to determine when the dirt was dumped; was unable to determine where the dirt came from; and could not confirm it came from WSCC’s jobsite. (Van Wagner Decl., 6, Wilson Deposition, 20:25-21:3, 21:4-6, 21:7-9; 102:24-103:4.)

According to records obtained from the Fire Department pursuant to subpoena, the dirt pile in question was 8’ tall. (Van Wagner Decl., 5, Ex. C, Compton Fire Department/Paramedics Records, p. 10.)

The dump trucks owned by Anytime at the time of the incident were all Super 10 models. Similarly, the dump trucks utilized by the sub-haulers hired by Anytime were also Super 10 models. (Evans Decl., 7.)

A Super 10 dump truck is not able to unload an eight-feet pile of dirt in one dump. (Evans Decl., 8.)

While Anytime contends other subhaulers also delivered dirt, trash and debris to Chiquita Canyon as well as other dump sites (see Response to XCSS 13), Anytime’s separate statement does not identify where this information is located. Therefore, Anytime failed to raise a triable issue based on this contention.

The court does find, however, that triable issues exist regarding whether a duty to defend arose “out of or resulting from performance of [Anytime's] Work." (XCSS 8.) Anytime has produced evidence that the dirt pile was eight feet tall, and Anytime’s trucks are unable to unload an eight-feet pile of dirt in one dump. (Evans Decl., 8.) Further, the Clean Soil Certification was dated April 15, 2017, which is six days after the subject incident. Finally, Detective Wilson testified that it was never determined who dumped the load of dirt; was unable to determine when the dirt was dumped; and was unable to determine where the dirt came from and could not confirm it came from WSCC’s jobsite. (Van Wagner Decl., 6, Wilson Deposition, 20:25-21:3, 21:4-6, 21:7-9; 102:24-103:4.) These are all triable issues regarding whether Anytime’s duty to defend was triggered.

Accordingly, summary adjudication of Issue 1 is DENIED.

ISSUE 2

Walter Shea contends it is entitled to summary adjudication of its 2^nd cause of action for Breach of Contract because Anytime failed to obtain Additional lnsured Coverage for Walter Shea.

The elements for a breach of contract cause of action are: (1) the contract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and (4) resulting damages. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)

Article 9.1 of the Agreement requires Anytime to name Walter Shea as an additional insured under Anytime's automobile liability insurance and commercial general liability insurance. (XCSS 11.)

While it is undisputed that Anytime failed to name Walter Shea as an additional insured on the Century National policy (XCSS 34), triable issues exist regarding whether that breach caused “resulting damages.” Century National’s rejection of Walter Shea’s tender was not based solely on the fact that Walter Shea was not an additional insured. Century National also stated that it rejected Walter Shea’s claim on the grounds that the Incident did not sufficiently result from the ownership, maintenance, or use of the vehicle” but, rather from “someone’s decision or lack of decisions to place the required cones, barriers and/or warning signs around the dirt.” (XCSS 39.) Similarly, while Walter Shea was an additional insured under Colony’s CGL policy, Colony rejected Walter Shea’s tender of defense on the grounds the Incident resulted from use of a motor vehicle and, as such, fell under the Absolute Auto Exclusion. (XCSS 42.) Therefore, triable issues exist regarding whether Anytime’s failure to add Walter Shea as an additional insured, would have resulted in Century National’s acceptance of Walter Shea’s tender of defense.

Accordingly, summary adjudication of Issue 2 is DENIED.

ISSUE 3

Walter Shea contends it is entitled to summary adjudication of its 4^th cause of action for Declaratory Relief based on Anytime’s contractual duty to defend.

However, as indicated in Issues 2-3, triable issues exist regarding whether Anytime’s duty to defend and indemnify was triggered.

Accordingly, summary adjudication of Issue 3 is DENIED.

b'

Case Number: ****0294 Hearing Date: September 28, 2021 Dept: C

MYERS, et al. v. COUNTY OF LOS ANGELES, et al.

CASE NO.: ****0294

HEARING: 9/28/21 @ 9:30 AM

#1

TENTATIVE ORDER

Cross-Complainant Walter Shea Contractors Corridor Constructors’ motion to deem requests for admissions admitted is MOOT. No sanctions.

Moving Party to give NOTICE.

Cross-Complainant Walter Shea Contractors Corridor Constructors moves to deem matters admitted pursuant to CCP ; 2033.280.

CCP ; 2033.280(b) and (c) allow the propounding party to file a motion requesting that the truth of any matters specified in the request for admissions be deemed admitted unless the party to whom the requests have been directed has served before the hearing a proposed response that is in substantial compliance.

On 3/31/21, Plaintiff Amari Myers was served with request for admissions. Myers served unverified responses, and failed to respond to Plaintiff’s meet and confer efforts.

On 7/23/21, Myers served verified responses in substantial compliance, and therefore, the motion is MOOT.

Sanctions: CCP ;; 2023.010(d) and 2033.280 makes the imposition of sanctions mandatory if a party fails to serve a timely response to requests for admission.

The court declines to award sanctions to either party.

b'

Case Number: ****0294 Hearing Date: September 23, 2021 Dept: C

MYERS v. COUNTY OF LOS ANGELES

CASE NO.: ****0294

HEARING: 09/23/21

#2

TENTATIVE ORDER

Defendant WALSH SHEA CORRIDOR CONSTRUCTORS Motion to Deem RFA (set two) as to Plaintiff R. MYERS. is DENIED as MOOT.

Moving Party to give Notice.

“If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission are directed waives any objection to the requests…. The Court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230. (2) the party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect…. (c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7…on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (CCP ;2033.280.) Unverified responses “are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) No prior attempt to resolve the matter informally is required.

Here, RFAs were propounded on or about March 31, 2021 via email. Unverified responses were served on May 8, 2021. Verifications were eventually served August 28, 2021. (Ibisi Decl., Ex. 4.) As such, the Motion to Deem Requests for Admissions Admitted is MOOT

In Opposition, Plaintiff argues that sanctions in favor of the Moving Party should be denied because the RFAs at issue were impermissibly electronically served. It is undisputed that the RFAs were electronically served after the sunset of Emergency Rule 12. However, CCP ;1010.6(e)(1) states: “A party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party shall confirm by telephone or email the appropriate electronic address for counsel being served.” (Id.) Clearly, counsel for the Moving Party confirmed Plaintiff’s Counsel’s email address prior to serving the RFAs at issue—Plaintiff’s Counsel acknowledged that he ultimately received the RFAs and eventually served untimely responses in substantial compliance with the Code.

It is mandatory that the court impose a monetary sanction under Chapter 7…on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (CCP ;2033.280.) In order to provide adequate notice that a monetary sanction is being sought, “[a] request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (CCP ;2023.040.)

Here, the Notice of Motion adequately indicates that Defendant seeks monetary sanctions against Plaintiffs’ Counsel (Eric O. Ibisi) in the sum of reasonable attorneys’ fees to be proven, is supported by a memorandum of points and authorities, and is accompanied by the declaration of Briana M. Pendergrass in compliance with the Code.

Therefore, sanctions are mandatory pursuant to the terms of CCP ;2033.280(c). Plaintiff’s Counsel, ERIC O. IBISI is ORDERED to pay Defendant WALSH SHEA CORRIDOR CONSTRUCTORS and its counsel of record reasonable sanctions in the total amount of $640.00 ($320/hr. x 2 hrs.) (Defendant does not seek to recover costs) by no later than 90 days from the Court’s issuance of this Order.

Case Number: ****0294    Hearing Date: May 18, 2021    Dept: C

MYERS, et al. v. COUNTY OF LOS ANGELES, et al.

CASE NO.:  ****0294

HEARING:  5/18/21

#10

TENTATIVE ORDER

Specially Appearing Defendant Los Angeles County Metropolitan Transportation Authority’s motion to quash service of summons is GRANTED.

Moving Party to give NOTICE.

Specially Appearing Defendant Los Angeles County Metropolitan Transportation Authority (“LACMTA”) moves to quash service of summons for lack of jurisdiction pursuant to CCP ;; 418.10 and 415.10.

Procedural Background

On 10/19/17, Plaintiffs filed their original Complaint against Defendant County of Los Angeles and Defendant City of Compton. Plaintiffs alleged that Plaintiffs' decedent died on 4/9/17 when he drove his motorcycle into a pile of dirt. Plaintiffs did not name Defendant LACMTA in the original complaint.

On 4/14/20, Plaintiffs filed a Doe amendment to substitute LACMTA as Doe 6 to the original Complaint pursuant to CCP ; 474.

On 8/3/20, Plaintiffs filed an Amended Complaint which did not name LACMTA as a Defendant.

On 8/20/20, Plaintiffs personally delivered the original summons and original Complaint on LACMTA.

Merits

"(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: "(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her." (CCP ; 418.10(a)(1).)

The court finds that the motion was properly filed and does not violate CRC ; 3.1112 and 3.1113(a), and CCP ;; 1005 and 418.10(b).

Defendant LACMTA contends that the court lacks jurisdiction over Defendant because the First Amended Complaint does not name LACMTA.

On 8/20/20, the date of the purported service, LACMTA was no longer a party to the action. “It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them.” (Fireman's Fund Ins. Co. v. Sparks Construction (2004) 114 Cal.App.4th 1135, 1142.) The FAC does not name LACMTA, and therefore, the purported service of LACMTA on 8/20/20 was defective because LACMTA was no longer a party to the action on the date of the purported service.

Plaintiffs contend that LACMTA made a general appearance on 11/19/20. However, that appearance was specifically corrected nunc pro tunc on 12/21/20 by Judge Crowley to reflect that Thomas H. Citron by Brianne Cassidy, was “specially appearing” on behalf of LACMTA. Thus, LACMTA has not made any general appearance in this action.

Accordingly, the motion is GRANTED.

Case Number: ****0294    Hearing Date: March 12, 2021    Dept: 28

No further proceedings in this case will be held in Department 28 after 12-8-20, regardless of whether or not the matters remain on the Dept. 28 docket.  Future dates remain on the Dept. 28 docket for use by the newly assigned dept.AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:Department 28 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.AT THE DIRECTION OF DEPARTMENT 1: This case is hereby transferred and reassigned to the following Independent Calendar Court in THE SOUTH CENTRAL DISTRICT, JUDGE MAURICE A. LEITER, presiding in DEPT. A of the COMPTON COURTHOUSE, for all purposes except trial.Department 1 hereby delegates to the Independent Calendar Court the authority to assign the case for trial to that Independent Calendar Court.Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Case Number: ****0294    Hearing Date: March 03, 2021    Dept: 28

No further proceedings in this case will be held in Department 28 after 12-8-20, regardless of whether or not the matters remain on the Dept. 28 docket.  Future dates remain on the Dept. 28 docket for use by the newly assigned dept.AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:Department 28 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.AT THE DIRECTION OF DEPARTMENT 1: This case is hereby transferred and reassigned to the following Independent Calendar Court in THE SOUTH CENTRAL DISTRICT, JUDGE MAURICE A. LEITER, presiding in DEPT. A of the COMPTON COURTHOUSE, for all purposes except trial.Department 1 hereby delegates to the Independent Calendar Court the authority to assign the case for trial to that Independent Calendar Court.Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Case Number: ****0294    Hearing Date: February 25, 2021    Dept: 28

No further proceedings in this case will be held in Department 28 after 12-8-20, regardless of whether or not the matters remain on the Dept. 28 docket.  Future dates remain on the Dept. 28 docket for use by the newly assigned dept.AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:Department 28 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.AT THE DIRECTION OF DEPARTMENT 1: This case is hereby transferred and reassigned to the following Independent Calendar Court in THE SOUTH CENTRAL DISTRICT, JUDGE MAURICE A. LEITER, presiding in DEPT. A of the COMPTON COURTHOUSE, for all purposes except trial.Department 1 hereby delegates to the Independent Calendar Court the authority to assign the case for trial to that Independent Calendar Court.Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Case Number: ****0294    Hearing Date: January 26, 2021    Dept: 28

No further proceedings in this case will be held in Department 28 after 12-8-20, regardless of whether or not the matters remain on the Dept. 28 docket.  Future dates remain on the Dept. 28 docket for use by the newly assigned dept.AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:Department 28 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.AT THE DIRECTION OF DEPARTMENT 1: This case is hereby transferred and reassigned to the following Independent Calendar Court in THE SOUTH CENTRAL DISTRICT, JUDGE MAURICE A. LEITER, presiding in DEPT. A of the COMPTON COURTHOUSE, for all purposes except trial.Department 1 hereby delegates to the Independent Calendar Court the authority to assign the case for trial to that Independent Calendar Court.Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Case Number: ****0294    Hearing Date: November 19, 2020    Dept: 28

Walsh's Demurrer with a Motion to Strike

Case Number: ****0294    Hearing Date: November 18, 2020    Dept: 28

alsh's Demurrer with a Motion to Strike

Case Number: ****0294    Hearing Date: August 14, 2020    Dept: 28

Meyers v. County of Los Angeles

****0294

Walsh Shea Corridor Constructors’ Motion for Protective Order

August 13, 2020

Background

This is a personal injury action arising out of Plaintiff’s claim that on April 9, 2017, their decedent was riding a motorcycle on Alameda Street when he hit a pile of dirt related to construction in the area, causing him to crash and die. The following dates are procedurally relevant:

Discussion

Walsh Shea Corridor Constructors moves pursuant to CCP ;; 2017.020, 2031.060, 2033.080, and 2030.90 for a protective order seeking relief from having to respond to Plaintiffs’ Form Interrogatories, Special Interrogatories, Requests for Production of Documents, and Requests for Admission. Code of Civil Procedure 2017.020 (a) provides, “The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” Code of Civil Procedure sections 2031.060 (Requests for Production), 2033.080 (Requests for Admission), and 2030.90 (Interrogatories) each provide, “The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” Walsh Shea moves for a protective order on the basis that responding to Plaintiff’s discovery here would be an unwarranted annoyance and undue burden because, essentially, it is certain to succeed in this matter on the basis of a statute of limitations defense. The court is not so sure.

Walsh Shea cites no authority that the court should delay discovery pending a demurrer. As an aside, Walsh Shea argues in its moving papers that because it has filed a demurrer, its appearance on this motion is a “special appearance.” Walsh Shea cites to CCP ; 1014. Yet, CCP ; 1014 specifically states that filing a demurrer is an appearance and Walsh Shea acknowledges in its moving papers that filing a demurrer is a submission to the court’s jurisdiction. (Moving Papers, 1:8-15) The court finds this argument lacks candor.

In order to grant Walsh Shea’s motion, the court would have to determine that Plaintiff should be precluded from conducting discovery against Walsh Shea because Walsh Shea has an absolute defense to the case. The court cannot so find at this juncture. Walsh Shea filed this motion on the basis that its demurrer to Plaintiff’s complaint would surely be sustained without leave to amend. Plaintiff has since filed an amended complaint, rendering Walsh Shea’s demurrer moot. The court notes that Walsh Shea has since filed a demurrer and motion to strike to the amended complaint. Walsh Shea is, essentially, requesting the court to rule on these in ruling on this motion. The court declines to do so. Walsh Shea must respond to Plaintiff’s discovery.

Conclusion

Walsh Shea’s motion for a protective order is DENIED. Moving Party is to give notice.