SHAHIN S FATEMIAN ET AL VS GARFIELD PACIFIC DEVELOPMENT CO

Tentative Rulings

Case Number: ****0643    Hearing Date: December 03, 2020    Dept: A

# 8. Maria D. Moreno v. Nissan North America, Inc., et al.

Case No.: 19CMCV00243

Matter on calendar for: Motion to Compel Further Responses to Request for Production of Documents, Set One

Tentative ruling:

1. Background

Plaintiff Maria D. Morena purchased a 2019 Nissan Altima manufactured and/or distributed by Defendant Nissan North America, Inc. on March 9, 2019. Plaintiff alleges the vehicle contained or developed defects, including a defective transmission, defective ignition system, and defective engine. Plaintiff alleges Defendant and its representatives were unable to or failed to service and repair the vehicle in compliance with the express and implied warranties.

Plaintiff’s complaint alleges:

1. Violation of Subdivision (d) of Civil Code Section 1793.2;
2. Violation of Subdivision (b) of Civil Code Section 1793.2;
3. Violation of Subdivision (a)(3) of Civil Code Section 1793.2;
4. Breach of Express Written Warranty (Civil Code Section 1791.2, subdivision (a); Section 1794); and
5. Breach of the Implied Warranty of Merchantability (Civil Code Section 1791.1; Section 1794)

Plaintiff now moves to compel further responses to her request for production of documents, set one. The motion is unopposed.

For the reasons set forth below, the Court takes the motion off calendar.

1. Standard

A motion to compel further responses to a demand for inspection or production of documents may be brought based on: (1) incomplete statements of compliance; (2) inadequate, evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalized objections. (C.C.P., ; 2031.310(c).)

2. Analysis

On October 29, 2020, the Court held an informal discovery conference with counsel. At the end of the conference, the parties agreed to continue to meet and confer to try to resolve these issues. The Court takes this motion off calendar pending the parties’ continuing efforts, and a possible further informal conference with the Court if any issues remain.

3. Ruling

The motion to compel further responses to request for production of documents, set one is taken off calendar.

Case Number: ****0643    Hearing Date: August 27, 2020    Dept: A

# 10. Shahin Fatemian, et al. v. Garfield-Pacific Development Co., et al.

Case No.: ****0643

Matter on calendar for: Motion for leave to file Third Amended Complaint; trial setting conference; CMC; OSC Re: dismissal for failure to prosecute; OSC Re: Sanctions for plaintiff’s counsel and Farmers Insurance Exchange Counsel for failure to appear at August 3, 2020 hearing.

Tentative ruling:

1. Background

Plaintiffs Shahin Fatemian and Shadin Fatemian allege defendants Garfield-Pacific Development Co., The Bendetti Company, and Robert Bendetti negligently maintained an office space within an industrial warehouse. The ceilings of the interior offices were approximately 8–10 feet above the floor and 5–10 feet below the warehouse roof. The office roofs were made of acoustic tile and overlaid, in some areas, with plywood. In December 2016, Shahin Fatemian fell through the office roof. Garfield owned the premises and the Bendetti Company was the property manager. At the time of the incident, the premises were leased to Nationwide Uniform Group, Inc.

The Second Amended Complaint (“SAC”) alleges the following causes of action:

1. Negligence; and

2. Loss of consortium

   Plaintiffs now move for leave to file a Third Amended Complaint (“TAC”). Garfield and the Bendetti Company separately oppose.

   For the reasons set forth below, the Court denies the motion.

1. Standard

Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390).) 

1. Analysis

The TAC would add alter-ego allegations, negligence per se allegations, and a cause of action for willful misconduct. Defendants argue the TAC is a ploy to reinject a prayer for punitive damages after those damages were stricken by the Court without leave to amend.

California Civil Code ; 3294 allows for punitive damages against defendants if, by clear and convincing evidence, they have been guilty of oppression, fraud, or malice. (Civ. Code, ; 3294.) Malice means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, ; 3294(c)(1).) As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital found that “despicable conduct refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible’. [Citation.]” (Id. at 725.)

Plaintiffs allege no new substantive factual allegations in the TAC that were not included in the SAC. (Opp. Exh. E.) Instead, the TAC incorporates factual allegations similar to those alleged in the SAC’s negligence cause of action. (compare TAC, ¶¶ 69–73 with SAC, ¶¶ 39–41.) Repackaging the negligence cause of action as willful conduct is insufficient to support a claim for punitive damages; willful conduct, without despicable conduct, is insufficient. (College Hospital, supra, 8 Cal.4th at 713.) As noted in the Court’s previous rulings, the allegations in this case do not amount to despicable conduct. (Opp. Exh. E, pp. 6–7.)

Allowing amendment with a request for punitive damages would circumvent this Court’s previous ruling.

1. Ruling

   The motion for leave to amend is denied.

   Next dates:

   Notice:

Case Number: ****0643    Hearing Date: December 17, 2019    Dept: A

# 6. Shahin Fatemian, et al. v. Garfield-Pacific Development Co., et al.

Case No.: ****0643

Matter on calendar for: Motion for Leave to File Cross-Complaint

Tentative ruling:

1. Background

   This is a premises liability action. Plaintiffs Shahin Fatemian and Shadin Fatemian allege defendants Garfield-Pacific Development Co., The Bendetti Company, and Robert Bendetti negligently maintained office space within industrial warehouses. The ceilings of the interior offices were approximately 8–10 feet above the floor and 5–10 feet below the warehouse roof. The office roofs were made of acoustic tile and overlaid, in some areas, with plywood. In December 2016, Shahin Fatemian fell through the office roof. Garfield owned the premises and the Bendetti Company was the property manager. At the time of the incident, the premises were leased to Nationwide Uniform Group, Inc.

   The Second Amended Complaint (“SAC”) alleges the following causes of action:

1. Negligence; and

2. Loss of consortium

   Defendant Nationwide Uniform Group, Inc., now moves to file a cross-complaint against Defendants Garfield-Pacific Development Co. and The Bendetti Company. An opposition and reply have been filed and considered. Although the motion also sought to cross-complain against Defendant Robert Bendetti individually, Nationwide’s reply abandons that request.

   For the reasons set forth below, the Court grants the motion.

1. Standard

   When a complaint is asserted against a party and that party wishes to respond with a cross-complaint, it must do so at or before the time to answer. (C.C.P., ; 428.50(a).) Otherwise, the party must seek leave of the court. (C.C.P., ; 428.50(c).) A party may file any other cross-complaint at any time before the case is set for trial. (C.C.P., ; 428.50(b).) When a party fails to timely assert a cross-complaint, it must apply to the Court for leave to do so. (C.C.P., ; 426.50.) If the party acted in good faith, the court must grant leave. (Ibid.)

2. Analysis

Nationwide’s proposed Cross-Complaint is an indemnity claim. Nationwide wishes to assert that its co-defendants are responsible for creating the conditions leading to Plaintiff’s injuries. The proposed Cross-Defendants argue the cross-complaint will cause delay and that Nationwide’s delay in bringing the cross-complaint is inexcusable. However, trial in this action is scheduled for June 1, 2020, a date that is still six months away.

Cross-defendants have not shown Nationwide to have exercised bad faith in bringing this motion. The motion for leave is granted.

1. Ruling

   The motion for leave to file the Cross-Complaint is granted. Nationwide is to amend the Cross-Complaint to remove Robert Bendetti as a Cross-Defendant and file the Cross-Complaint within 10 days.

   Next dates:

   Notice: