This case was last updated from Los Angeles County Superior Courts on 05/31/2019 at 00:13:06 (UTC).

SHIRLEY YOUNG ET AL VS MARK GABAY ET AL

Case Summary

On 05/15/2017 SHIRLEY YOUNG filed a Personal Injury - Other Personal Injury lawsuit against MARK GABAY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1305

  • Filing Date:

    05/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Petitioners and Plaintiffs

YOUNG FRANK

ESTATE OF ERIC YOUNG

YOUNG SHIRLEY

Respondents and Defendants

M GABAY CONSTRUCTION AND DEVELOPMENT CORP

GABAY ENTERPRISES INC

DOES 1 TO 100

GABAY ARMAN

GABAY MARK

CHARLES COMPANY

Attorney/Law Firm Details

Petitioner and Plaintiff Attorney

SHTOFMAN ROBERT SCOTT ESQ.

Defendant Attorney

WILLIAMS RICHARD MARTIN

Other Attorneys

SHTOFMAN ROBERT SCOTT

 

Court Documents

DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT

9/13/2018: DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT

Ex Parte Application

10/24/2018: Ex Parte Application

Minute Order

10/24/2018: Minute Order

Notice of Motion

2/15/2019: Notice of Motion

Minute Order

2/20/2019: Minute Order

Ex Parte Application

2/20/2019: Ex Parte Application

Notice of Ruling

2/21/2019: Notice of Ruling

Proof of Service by Mail

2/22/2019: Proof of Service by Mail

Proof of Service by Mail

4/9/2019: Proof of Service by Mail

Motion to Deem RFA"s Admitted

4/9/2019: Motion to Deem RFA"s Admitted

Motion re:

4/12/2019: Motion re:

Proof of Service by Mail

4/12/2019: Proof of Service by Mail

Opposition

4/16/2019: Opposition

Notice of Ruling

4/17/2019: Notice of Ruling

Ex Parte Application

4/17/2019: Ex Parte Application

Minute Order

4/17/2019: Minute Order

Notice

4/22/2019: Notice

Minute Order

5/1/2019: Minute Order

11 More Documents Available

 

Docket Entries

  • 05/21/2019
  • Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 05/08/2019
  • DocketNotice ( of Ruling); Filed by Mark Gabay (Defendant); Arman Gabay (Defendant); Charles Company (Defendant)

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  • 05/07/2019
  • Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 05/07/2019
  • Docketat 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held

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  • 05/07/2019
  • DocketMinute Order ( (Hearing on Motion to Compel Discovery (not "Further Discovery"))); Filed by Clerk

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  • 05/01/2019
  • Docketat 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Continued

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  • 05/01/2019
  • DocketMinute Order ( (Hearing on Motion of Defendants Mark Gabay, Arman Gabay and C...)); Filed by Clerk

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  • 04/22/2019
  • DocketNotice (Notice of Non Opposition to Motion to Compel Plaintiffs' response to Interrogatories & Request for Production of Documents; Request for Monetary Sanctions against Plaintiffs); Filed by Mark Gabay (Defendant); Arman Gabay (Defendant); Charles Company (Defendant)

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  • 04/19/2019
  • Docketat 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Advanced and Continued - by Court

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  • 04/18/2019
  • Docketat 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion for Summary Judgment

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18 More Docket Entries
  • 10/24/2018
  • Docketat 08:30 AM in Department 4; Ex-Parte Proceedings - Held - Motion Granted

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  • 10/24/2018
  • DocketEx Parte Application (to continue the final status conference, trial date and all related discovery); Filed by Robert Scott Shtofman (Attorney)

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  • 10/24/2018
  • DocketMinute Order ((Ex-Parte application to continue the Final Status Conference,...)); Filed by Clerk

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  • 09/13/2018
  • DocketAnswer; Filed by Mark Gabay (Defendant); Arman Gabay (Defendant); Charles Company (Defendant)

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  • 09/13/2018
  • DocketDEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT

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  • 07/09/2018
  • DocketFIRST AMENDED COMPLAINT FOR: 1. WRONGFUL DEATH; 2. SURVIVAL ACTION 3. LABOR CODE SECTION 3706; ETC

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  • 07/09/2018
  • DocketFirst Amended Complaint; Filed by Shirley Young (Plaintiff); Frank Young (Plaintiff); Estate of Eric Young (Plaintiff)

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  • 05/15/2017
  • DocketComplaint; Filed by Shirley Young (Plaintiff); Frank Young (Plaintiff); Estate of Eric Young (Plaintiff)

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  • 05/15/2017
  • DocketCOMPLAINT FOR: 1. NEGLIGENCE; ETC

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  • 05/15/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: ****1305    Hearing Date: June 8, 2021    Dept: O

Case Name: Young, et al. v. Gabay, et al.

Case No.: ****1305

Complaint Filed: 5-15-17

Hearing Date: 6-8-21

Discovery C/O: 5-28-21

Calendar No.: 6

Discover Motion C/O: 6-14-21

POS: OK

Trial Date: 7-26-21

SUBJECT: (1) MOTION TO COMPEL THE DEPOSITION OF DEFENDANT MARK GABAY, THE PRODUCTION OF DOCUMENTS AND THINGS AT DEPOSITION AND FOR SANCTIONS

(2) MOTION TO COMPEL THE DEPOSITION OF DEFENDANT ARMAN GABAY, THE PRODUCTION OF DOCUMENTS AND THINGS AT DEPOSITION AND FOR SANCTIONS

(3) MOTION TO COMPEL THE DEPOSITION OF EXCEL PROPERTY MANAGEMENT SERVICES, INC.’S PMQ, THE PRODUCTION OF DOCUMENTS AND THINGS AT DEPOSITION AND FOR SANCTIONS

MOVING PARTY: Plaintiffs Shirley Young, Frank Young and Estate of Eric Young

RESP. PARTY: (1) Defendant Mark Gabay

(2) Defendant Arman Gabay

(3) Defendant Excel Property Management Services, Inc.

TENTATIVE RULING

Plaintiffs Shirley Young, Frank Young and Estate of Eric Yong’s Motion to Compel Deposition of Excel Property Management, Inc.’s PMQ, the Production of Documents and Things at Deposition and For Sanctions is GRANTED. The Court orders Excell Property Management to produce a properly prepared person most knowledgeable to appear for a deposition to be commenced within 10 days. Defendant Excel Property Management, Inc. and counsel are ordered to pay sanctions in the amount of $6,892.26 (9 hours @$700/hr plus costs of 592.26 ($500 Court Reporter Fees, $60 in filing fees, $7.26 in efiling fees and $25 in remote appearance fees.))

Plaintiffs Shirley Young, Frank Young and Estate of Eric Yong’s Motion to Compel Deposition of Arman Gabay, the Production of Documents and Things at Deposition and For Sanctions is GRANTED. The Court orders Arman Gabay to appear for a deposition to be commenced within 10 days. Defendant Arman Gabay and counsel are ordered to pay sanctions in the amount of $6,192.26 (8 hours @ $700/hr, plus costs of 592.26 ($500 in court reporter fees, $60 in filing fees, $7.26 in efiling fees and $25 in remote appearance fees.)

 

Plaintiffs Shirley Young, Frank Young and Estate of Eric Yong’s Motion to Compel Deposition of Mark Gabay, the Production of Documents and Things at Deposition and For Sanctions is GRANTED. The Court orders Mark Gabay to appear for a deposition to be commenced within 10 days. Defendant Mark Gabay and counsel are ordered to pay sanctions in the amount of $4,792.26 (6 hours @ $700/hr, plus costs of 592.26 ($500 in Court reporter fees, $60 in filing fees, $7.26 in efiling fees and $25 in remote appearance fees.)

The Court orders the payment of the sanctions is stayed until the Final Status Conference is held (currently set for July 19, 2021) subject to further order of the Court.

REASONING

Plaintiffs’ Motions to Compel Depositions of: (1) Mark Gabay; (2) Arman Gabay; (3) Excel Property Management (filed on (1) 4-14-21; (2) 4-13-21; (3) 4-12-21):

 

Excel Property Management Services, Inc. Plaintiffs move to compel the deposition of Excel Property Management Services, Inc.’s PMQ and production of things at deposition. Plaintiffs argue deposition of Excel Property Management Services, Inc.’s PMQ was set for 4-9-21. Plaintiffs request sanctions in the amount of $6,892.26 based on $700/hr, $500 Court Reporter Fees, $60 in filing fees, $7.26 in efiling fees and $25 in eappearance fees.

Arman Gabay. Plaintiffs move to compel Arman Gabay’s attendance at deposition and production of things at deposition. Plaintiffs argue Arman failed to appear for deposition on 4-13-21. Plaintiffs argue they cannot reschedule the deposition given the pending defense MSJs. Plaintiffs request sanctions in the amount of $6,192.26 based on an hourly rate of $700/hr, $500 in court reporter fees, $60 in filing fees, $7.26 in efiling fees and $25 in eappearance fees.

 

Mark Gabay. Plaintiffs move to compel Mark Gabay’s attendance at deposition and production of things at deposition. Plaintiffs argue Mark failed to appear for deposition on 4-14-21 and 4-20-21. Plaintiffs continued the original deposition date on 4-14-21 to 4-20-21 based on Mark’s representation that he would be available on the 20th and was unavailable on the 14th. Plaintiffs seek sanctions in the amount of $4,792.26 based on an hourly rate of $700/hr, $500 in Court reporter fees, $60 in filing fees, $7.26 in efiling fees and $25 in eappearance fees.

Defendants Mark Gabay, Arman Gabay and Excel Property Management, Inc. failed to attend their properly noticed depositions on 4-14-21, 4-13-21 and 4-9-21 respectively. See Declarations of R. Shtofman, Exs. 8 filed on (1) 4-14-21; (2) 4-13-21; (3) 4-12-21. Defendants Mark, Arman and Excel offer the same justification for failing to attend—the federal criminal charges pending against Arman Gabay.

The privilege against self-incrimination applies if the person is confronted by substantial and real, as opposed to merely trifling or imaginary, hazards of incrimination. (Kassey S. v. City of Turlock (2013) 212 Cal. App. 4th 1276, 1280–1281.)) Generally, a witness may not claim the privilege until after he or she is sworn as a witness, takes the stand, and refuses to answer a potentially incriminating question. (People v. Apodaca (1993) 16 Cal. App. 4th 1706, 1714.)) When a witness invokes the privilege, he or she must make specific reference to the particular question asked—a blanket refusal to answer questions is unacceptable. (Blackburn v. Superior Court (1993) 21 Cal. App. 4th 414, 431; Fuller v. Superior Court (2001) 87 Cal. App. 4th 299, 305.)) A witness does not waive the privilege by answering nonincriminating questions. (People v. Apodaca, 16 Cal. App. 4th supra at 1716)).

A party or witness is not entitled to decide whether the privilege against self-incrimination applies. Only the judge can make this determination after conducting a particularized inquiry about each specific area the questioning party seeks to explore. (People v. Trujeque (2015) 61 Cal. 4th 227, 267; Fuller v. Superior Court, 87 Cal. App. 4th supra at 305; Oiye v. Fox (2012) 211 Cal. App. 4th 1036, 1053.)) The party claiming the privilege has the burden of showing it applies. (Evid Code ; 404; People v. Berry (1991) 230 Cal. App. 3d 1449, 1453.)) The privilege protects only against real dangers, not remote or speculative possibilities, and thus a witness must persuade the judge the fear of incrimination is reasonable, and the claim of privilege justified. (Warford v. Medeiros, (1984) 160 Cal. App. 3d 1035, 1043–1044.))

The pending criminal matter against Arman Gabay does not justify the complete refusal of all three defendants to appear for deposition. Moreover, there is no evidence that this civil litigation and the criminal matter overlap to such a degree that a stay is required. See People v. Coleman (1975) 13 Cal.3d 867, 885; Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690. Defendants provide no evidence regarding the nature of the criminal matter. Defendants indicate in their oppositions that Arman Gabay is being charged with bribery. Defendants fail to establish any overlap or link between the subject matter of this litigation and the criminal matter. The Court expects that questions directed to these witnesses regarding the facts underlying the criminal proceedings pending against Arman Gabay are not likely to be relevant to any issues in this case. Regardless, if a deposition question truly implicates a deponent’s 5th Amendment privilege, that deponent can assert the privilege as to those specific questions during the deposition. See Fuller v. Superior Court supra 87 Cal.App.4th 299, 309-310.

Plaintiffs do not seek to compel the deposition of Natalie Gabay as the PMQ of Excel. Plaintiffs’ deposition notice was for the PMQ of Excel, and Plaintiffs seek to compel the deposition of Excel’s PMQ.

Defendants fail to offer substantial justification for failing to appear for their depositions or opposing these motions. Plaintiffs’ request for sanctions as to each Defendant and Defense counsel is GRANTED.



Case Number: ****1305    Hearing Date: June 1, 2021    Dept: 49

Superior Court of California

County of Los Angeles

Kevin Moda,

Plaintiff,

Case No.

****1305

v.

[Tentative] Ruling

Uber Technologies Inc., et al.,

Defendants.

Hearing Date: June 1, 2021

Department 49, Judge Stuart M. Rice

Motion for Leave to Amend First Amended Complaint

Moving Party: Plaintiff Kevin Moda

Responding Party: Defendants Uber Technologies, Inc., and Bryan Loveall

Ruling: Plaintiff’s Motion for Leave to Amend to add a cause of action for strict products liability and a claim for punitive damages is DENIED.

Plaintiff Motion for Leave to Amend is GRANTED only as to the scrivener’s errors. Plaintiff will be allowed to file a Second Amended Complaint, by using a Judicial Council Form Complaint, only for the purpose of checking off the boxes for wage loss, property damage, and loss of earning capacity.

a. Request for Judicial Notice

Uber’s Request for Judicial Notice as to Exh. 1 is GRANTED.

b. Products Liability Cause of Action

“[A] plaintiff may seek recovery in a ‘products liability case’ either ‘on the theory of strict liability in tort or on the theory of negligence.’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478.) 

Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn. (Anderson v. Owens–Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995.)  “The elements of a strict products liability cause of action are a [1] defect in the manufacture or design of the product or a failure to warn, [2] causation, and [3] injury.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)  

“The doctrine of strict liability in tort applies to producing and marketing enterprises responsible for placing products in the stream of commerce.” (Pierson v. Sharp (1989) 216 Cal.App.3d 340, 344.) A plaintiff must establish that “that the object or instrumentality claimed to be defective was in fact a ‘product’.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1626.) “A product is a physical article which results from a manufacturing process and is ultimately delivered to a consumer.” (Pierson v. Sharp, supra, 216 Cal.App.3d at 345.) “As a condition precedent to maintaining a strict products liability claim, a plaintiff must show the transaction in which she obtained the product was one in which the transaction’s primary objective was to acquire ownership or use of a product, and not one where the primary objective was to obtain a service.” (Hennigan v. White (2011) 199 Cal.App.4th 395, 403.)

Plaintiff contends that the Court should grant leave to amend to the FAC to include a cause of action for strict liability. In support, Plaintiff points the Court to Loomis v. Amazon.com LLC, [2nd Cir. Case No. B297995 (April 26, 2021)], where the court considered whether Amazon was strictly liable for a hoverboard that caught fire. In addition, Plaintiff pointed the Court to Bolger v. Amazon.com, LLC 53 Cal.App.5th 431, where the court considered whether strict products liability applied where a plaintiff purchased a laptop on Amazon which subsequently exploded. Plaintiff further argues that the Uber App transforms a cellular phone into a commercial device.

A review of the proposed SAC reveals that Plaintiff alleges that Uber provided Bryan with the Uber app to find and accept rides on behalf of Uber, and that the Uber App is required by Uber’s ride-share employees, as it is the sole mechanism for dispatch and communications with its drivers. (SAC, ¶ 13.) Here, unlike the products in Loomis and Bolger, which were physical objects being delivered to a customer, the Uber App is downloaded by the driver in order to provide a service of ride-sharing. (SAC, ¶ 13) There is no final product that is provided to the driver or the passenger, other than a service. Here, there is no ownership that is being obtained by the driver or the passenger as to any “product.” Plaintiff’s argument would be better placed against the cellphones, which allegedly allow applications to be used while operating a motor vehicle. Plaintiff also fails to point the Court to any authority that stands for the proposition that a phone application is a product.

Plaintiff has failed to show that he can plead a cognizable cause of action under California law, and allowing this cause of action to go forward would result in prejudice to Defendants as they prepare for trial.

Thus, Plaintiff’s Motion for Leave to Amend to add a cause of action for strict products liability is DENIED.

c. Punitive Damages

To obtain punitive damages, a plaintiff must plead sufficient facts in support of punitive damages. (See Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.) In addition, punitive damages are allowed only where “it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, ; 3294, subd. (a).) “Mere negligence, even gross negligence, is not sufficient to justify an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Civil Code Section 3294, subdivision (c), defines malice as follows: “(1) 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. Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. at ; 3294(c)(2).) “Fraud means an intentional misrepresentation, deceit or concealment of a material known fact to the defendant with the intention of depriving a person of legal rights otherwise causing injury.” (Id. at ; 3294(c)(3).) Allegations devoid of any factual assertions are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

As a preliminary matter, on December 6, 2018, Judge Yolanda Orozco issued an order granting Uber’s Motion to Strike Plaintiff’s punitive damages, without leave to amend. (See Uber RJN, Exh. 1.) As such, Plaintiff’s attempt to seek to amend the FAC to seek punitive damages is improper, as it is really a motion for reconsideration. (See Code Civ. Proc ; 1008(b) [“[a] party who originally made an application for an order which was refused in whole or part . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”] (emphasis added.))

Notwithstanding, Plaintiff contends that the Court should allow the amendment because Uber allegedly circumvented government safety efforts by impeding government regulators’ investigations. Plaintiff’s newly learned information is insufficient to give rise to punitive damages in this case. Here, the alleged conduct does not relate to this case, and relates to alleged government investigations into Uber. Plaintiff has failed to articulate how Uber’s alleged wrongful conduct contributed to his injury. In addition, Plaintiff fails to provide any support for Uber’s alleged wrongful conduct, other than his attorney’s declaration. Furthermore, Plaintiff contends that punitive damages are warranted because of the various lawsuits brought against Uber in Los Angeles County. This is insufficient to give rise to punitive damages. Plaintiff is essentially asking the Court to reach a conclusion that the filing of a lawsuit against Uber is the equivalent of Uber being liable for that case.

For all the reasons stated above, the request to allow Plaintiff to seek punitive damages on the facts presented is not a reasonable position and may constitute bad faith exposing Plaintiff and his counsel to sanctions. Thus, Plaintiff’s Motion for leave to amend the Complaint to plead punitive damages is DENIED.

d. Scrivener’s Error

Plaintiff contends that it should be allowed to amend the FAC to include claims for wage loss, property damage, and loss of earning capacity, due to scrivener’s errors, because Plaintiff’s previous counsel did not check those boxes in the form complaint. (Velissaropoulos Decl., ¶ 35-37.) Plaintiff wants to keep the record clear and dispense of any potential future issues.

Uber contends that Plaintiff should not get two bites at the apple, as he made the mistake twice in the original Complaint and in the FAC. Uber further contends that Plaintiff knew of these errors in January 2020 and delayed correcting those errors.

Given the liberal policy to allow amendments, Plaintiff will be allowed to make amendments to the FAC to check off the boxes in the form complaint to represent his damages relating to wage loss, property damage, and loss of earnings capacity.

Thus, Plaintiff’s Motion for Leave to Amend is GRANTED only as to the scrivener’s errors. Plaintiff will be allowed to file a Second Amended Complaint, by using a Judicial Council Form Complaint, only for the purpose of checking off the boxes for wage loss, property damage, and loss of earnings capacity.

Date: June 1, 2021

Honorable Stuart M. Rice

Judge of the Superior Court

Superior Court of California

County of Los Angeles

Kevin Moda,

Plaintiff,

Case No.

BC699605

v.

[Tentative] Ruling

Uber Technologies Inc., et al.,

Defendants.

Hearing Date: June 1, 2021

Department 49, Judge Stuart M. Rice

Motion on Court’s Jurisdiction Re: Discovery Motions

Moving Party: Defendant Uber Technologies, Inc.

Responding Party:      Plaintiff Kevin Moda

Ruling: The Court will hear Uber’s Motion to Compel Plaintiff’s Responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One), Motion to Deem Requests for Admissions (Set One) Admitted, and Uber’s Motions to Compel Plaintiff’s Further Responses to Special Interrogatories (Set Two) and Request for Production of Documents (Set Two).

Pursuant to CCP section 128, every court shall have the power to: [t]o provide for the orderly conduct of proceedings before it, or its officers . . . [and] amend and control its process and orders so as to make them conform to law and justice.”

a. Motions to Compel

If a party to whom interrogatories, requests for production of documents, and/or requests for admission have been propounded to fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction.  (Code Civ. Proc. ; 2030.290, 2031.300, 2033.280.)

b. Motion to Compel Further Responses

c. Moda’s Motions

d. Conclusion

The parties are ordered to meet and confer and attempt to narrow the issues which still require a ruling by the court bearing in mind the decision made this date.  The parties should file a joint statement 10 days before the motion date expressly setting forth the remaining issues to be ruled upon, if any.  The parties may also file simultaneous briefs of up to 10 pages to supplement their original motion filings should they deem it necessary to provide further information to the court.

Date: June 1, 2021

Honorable Stuart M. Rice

Judge of the Superior Court



Case Number: ****1305    Hearing Date: May 18, 2021    Dept: O

Case Name: Young, et al. v. Gabay, et al.

Case No.: ****1305

Complaint Filed: 5-15-17

Hearing Date: 5-18-21

Discovery C/O: 5-28-21

Calendar No.: 8

Discover Motion C/O: 6-14-21

POS: OK

Trial Date: 6-28-21

SUBJECT: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

MOVING PARTY: Defendants Mark and Arman Gabay

RESP. PARTY: Plaintiffs Shirley Young, Frank Young and Estate of Eric Young

TENTATIVE RULING

Defendants Mark and Arman Gabay’s Motion for Summary Judgment, or in the alternative, for Summary Adjudication is DENIED. The Court’s ruling does not consider Plaintiffs’ opposition papers.

· The Gabays’ Motion for Summary Judgment, or in the alternative, for Summary Adjudication is identical to that of Charles Company and System LLC’s and Excel’s. Arman and Mark Gabay are officers of Excel and owners of System LLC. See Dec. of A. Gabay filed on 2-8-21, ¶2; Dec. of M. Gabay filed on 2-8-21. The Gabays’ motion is denied on the same grounds.

· The Gabays’ motion is denied for failure to satisfy its burden as moving party. The Gabays move for summary judgment of the entire complaint and summary adjudication of each cause of action based on the element of duty. The Court already discussed the issue of duty in its 9-30-19 ruling on the Gabays’ and Charles Company’s prior joint MSJ. Even if Defendants did not owe a duty to protect decedent from unforeseeable third-party criminal acts, Defendants’ evidence does not negate the existence of its general duty of care as landowner to maintain its premises in a reasonably safe condition and to act reasonably toward the tenant and unknown third persons. See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133 (“private landowners have a duty to maintain their premises in a reasonably safe condition, and that in the case of a landlord, the general duty of maintenance includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures”); Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779 (commercial landowner could not totally abrogate its landowner responsibilities merely by signing a lease; commercial landowner out of possession must still exercise due care and act reasonably toward the tenant as well as to unknown third persons). As previously stated, decedent’s potential status as a trespasser does not absolve Defendants of a duty of due care. Id. at 778-779. The Court cannot find as an issue of law that Charles Company did not owe decedent any duty of care that would support Plaintiffs’ claims.

· Plaintiffs’ discovery responses do not satisfy the Gabays’ burden as moving party seeking summary judgment or adjudication of the individual causes of action or punitive damages claim. See CCP ;437c(f)(1) and (2); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761. A defendant may rely upon a plaintiff’s factually devoid responses to establish that plaintiff does not possess and cannot reasonably obtain necessary evidence. See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89 (defendant bank did not meet its burden on summary judgment of wrongful foreclosure by merely arguing that plaintiff lacked evidence to support her claim and only documentary evidence submitted were the loan documents); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 890 (defendant did not establish plaintiff’s lack of evidence or inability to reasonably obtain evidence of plaintiff’s ability and willingness to perform by pointing to plaintiff’s refusal to answer certain questions during deposition on grounds of a meritless privacy objection; such a refusal, regardless of its merit, was neither an admission nor a factually devoid discovery response). Plaintiffs’ responses are not factually devoid, nor do they establish that Plaintiffs cannot reasonably obtain the necessary evidence, particularly given the outstanding discovery.

· The Gabays cannot relitigate the 3rd and 7th causes of action. The Court previously granted the Charles Company, Mark Gabay and Arman Gaby’s request for summary adjudication of these causes of action in its 9-30-19 ruling. The Court has already indicated the same in its prior rulings on the MSA of Charles Company and Systems LLC and the MSA of Excel Property Management. The 3rd and 7th causes of action have already been litigated and the requests for adjudication of these causes of action by each of these Defendants have been and are granted.



Case Number: ****1305    Hearing Date: May 4, 2021    Dept: O

Case Name: Young, et al. v. Gabay, et al.

Case No.: ****1305

Complaint Filed: 5-15-17

Hearing Date: 5-4-21

Discovery C/O: 9-3-19

Calendar No.: 10

Discover Motion C/O: 8-19-19

POS: OK

Trial Date: None

SUBJECT: MOTION TO QUASH SERVICE OF SUMMONS AND COMPLAINT   

MOVING PARTY:  Specially Appearing Defendant Natalie Gabay

RESP. PARTY: Plaintiffs Shirley Young, Frank Young and Estate of Eric Young  

TENTATIVE RULING

Defendant Natalie Gabay’s Motion to Quash Service of Summons and Complaint is GRANTED per CCP ;418.10 and default is set aside per CCP ;473(d).    

 

The service address was not Natalie’s usual business address in July 2020.  On 7-24-20, Plaintiff filed a POS of the FAC on Natalie Gabay.  The 7-24-20 POS attests to substitute service on Natalie pursuant to CCP ;415.20(b), which governs substitute service on a natural person.  CCP ;415.20(b) only allows for substitute service “[i]f a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served,” and an affidavit attesting to reasonably diligent attempts at personal service is required to establish proper sub-service.  See Evartt v. Sup. Ct. (1979) 89 Cal.App.3d 795, 801 (burden on plaintiff to show reasonable diligence to effect personal service and plaintiff’s failure to submit even “scintilla of evidence” demonstrating such reasonable diligence rendered sub-service ineffective and void). 

According to the Declaration of Diligence executed by Shakeyla Small, she attempted personal service at Natalie Gabay’s usual place of business.  See POS filed on 7-20-24, p. 1, Item 5(b), Dec. of Diligence.  According to Small, she attempted personal service at 9034 W. Sunset Blvd., West Hollywood, CA 90069 five times.  Id.  Small testifies that during her first attempt on 7-14-20, the receptionist indicated Natalie Gabay “was not in at this time.”  Id.  When Small attempted to personally serve Natalie a second time at the same address on 7-16-20, the receptionist indicated that Natalie was away on maternity leave.”  Id.  When Small attempted personal service at the same address a third time on 7-17-20, the receptionist indicated that Natalie “has been out for a few months on maternity leave and probably won’t return until a few months from now.”  Id.  Despite this information, Small attempted personal service one more time at the same address on 7-21-20.  On that same day, Small indicates she successfully sub-served Natalie Gabay at the same address by leaving the documents with the receptionist.

“Ordinarily, two or three attempts at personal service at a proper place should fully satisfy the requirement of reasonable diligence and allow substituted service to be made.”  Ellard v. Conway (2001) 94 Cal.App.4th 540, 545 (emphasis in the original).  A “proper place” includes a defendant’s usual place of business.  See Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750 (substitute service at defendant’s usual place of business proper after three attempts to personally serve defendant at that address; defendant failed to rebut presumption of proper service by demonstrating the address was not his usual place of business). 

A “proper place” also includes a defendant’s former residence.  In Ellard, attempts to serve a defendant at his former residence counted towards the exercise of reasonable diligence under CCP ;415.20(b), where the process server did not discover that defendant no longer lived there until he attempted personal service at the address.  See Ellard, supra, 94 Cal.App.4th at 545.  While at the address, the process server noticed the mail was addressed to a different family, and the guard informed him the defendant had moved from the address.  Id.  Thereafter, the process server obtained defendant’s forwarding address from the US Post Office, which was a mailbox, and sub-served defendant at that address.  Id.  The Court found there were reasonable attempts at personal service and sub-service at the forwarding address was proper, because defendant had designated it his forwarding address and therefore his “usual mailing address.”  Id. 

As in Ellard, Small’s first two or three attempts to personally serve at 9034 W. Sunset were reasonable attempts to personally serve Natalie Gabay at a “proper place” under CCP ;415.20(b).  Natalie Gabay admits that the service address was her usual place of business until March 2020, and it ceased being her usual place of business from March 2020 through August 2020 due to COVID and maternity leave.  See Dec. of N. Gabay, ¶¶3-5.  The attempts to personally serve her at this address were therefore valid and reasonable, even though the address was not her usual place of business in July 2020.  See Ellard, supra, 94 Cal.App.4th at 545.

However, after the third attempt at personal service on 7-17-20, Small knew that 9034 W. Sunset Blvd. was not Natalie Gabay’s “usual place of business.”  Small admits that the receptionist informed her by the third attempt that Natalie Gabay was on maternity leave and would not be returning to the office for several months.  See 7-20-20 POS, Dec. of Diligence. Natalie Gabay confirms that due to COVID19 and maternity leave, she was not at the office from March 2020 through August 2020.  See Dec. of N. Gabay, ¶¶3-5.  Natalie only began returning to the office on a limited, part time basis in September 2020.  Id. 

Based on the undisputed evidence, 9034 W. Sunset Blvd. was not Natalie Gabay’s usual place of business as of July 2020 and sub-service could not be rendered at that address.  Unlike the plaintiff in Ellard, Plaintiffs did not attempt to obtain a valid business address after learning that 9034 W. Sunset Blvd. was not Natalie’s “usual place of business,” nor did they attempt sub-service at any other proper place under CCP ;415.20(b), e.g. dwelling house, usual place of abode, or usual mailing address other than a United States Postal Service post office box. 

Because the address was not a proper address for sub-service, leaving the documents with Ian, the receptionist, was improper under CCP ;415.20(b).  Small left the documents with Ian Robinson, the receptionist at 9034 W. Sunset Blvd.  See 7-20-20 POS, Dec. of Diligence. Robinson testifies that he was not authorized to accept service on Natalie’s behalf.  See Dec. of I. Robinson, ¶4.  The fact that Robinson was not authorized to accept service on Natalie’s behalf and the fact that he was the receptionist, not the person in charge of the office, do not affect the validity of service.  Under CCP ;415.20(b), Robinson need only have been “apparently in charge” of the office.  Thus, leaving the documents with the manager of a private/commercial post office box facility who knew the defendant is proper under CCP ;415.20(b).  See Ellard, supra, 94 Cal.App.4th at 546; National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614, 619 (service on person apparently in charge was sufficient; no showing of agency required); King v. Wilson (1950) 101 Cal.App.2d 242, 244 (service on switchboard operator/receptionist for suite of attorney offices was sufficient, despite attorney's affidavit stating he had not authorized the employee to accept service for him and that she was not his secretary).

However, ultimately, “service must be made upon a person whose ‘relationship with the person to be served makes it more likely than not that they will deliver process to the named party.”  Ellard, supra, 94 Cal.App.4th at 546.  Ian’s only apparent relationship to Natalie was as receptionist at her former usual place of business.  Ian informed Small that Natalie was on maternity leave, and Natalie would not be back in the office for several months.  Based on the undisputed evidence that 9034 W. Sunset Blvd. was not Natalie’s “usual business address,” Ian’s relationship to Natalie did not make it more likely than not that he would deliver the process to Natalie.  Thus, for the alternative reason that Ian was not a proper person to receive substituted service

Timeliness and authority to set aside under CCP ;473(d).  Defendant Natalie’s request to set aside the default pursuant to CCP ;473(d) based on invalid service is also procedurally proper.  “A default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void.  Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service.”  Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200 (citing Ellard). 

A motion to set aside default under CCP ;473(d) based on improper service is subject to a two-year deadline.  See Rogers v. Silverman (1989) 216 Cal.App.3d 1114, 1121-1122 (motion for relief from judgment based on improper service subject to analogous 2-year deadline under CCP ;473.5; process server served wrong person); Trackman v. Kenney (2010) 187 Cal.App,.4th 175, 181 (judgment or order invalid on the face of record may be subject to set aside on motion with no time limit).  Natalie’s motion is timely.

Case Name: Young, et al. v. Gabay, et al.

Case No.: ****1305

Complaint Filed: 5-15-17

Hearing Date: 5-4-21

Discovery C/O: 5-28-21

Calendar No.: 10

Discover Motion C/O: 6-14-21

POS: OK

Trial Date: 6-28-21

SUBJECT: MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:  Defendant Charles Company and System, LLC

RESP. PARTY: Plaintiffs Shirley Young, Frank Young and Estate of Eric Young  

TENTATIVE RULING

Defendant Charles Company and System, LLC’s (“Charles Company”) Motion for Summary Judgment, or in the alternative Summary Adjudication, is DENIED.  The Court’s ruling does not consider Plaintiffs’ opposition papers. 

Charles Company failed to file a POS establishing that it served Plaintiffs with all papers in support of this MSJ at least 75 days before today’s date by personal service or electronic service, or 80 days before today’s date by mail.  Plaintiffs claim they were not served with any of the papers on 2-8-21, and the first time Plaintiffs’ counsel discovered that the Charles Company’s MSJ was on calendar was on 4-15-21, when he was preparing Plaintiffs’ Opposition to the other MSJs by Excel Company, Arman Gabay and Mark Gabay.  See Plaintiffs’ Objection to Defendants Charles Company and System LLC’s Second Motion for Summary Judgment filed on 4-20-21, Dec. of R. Shtofman, ¶2.  Charles Company submitted a “proof of service” from the online filing company.  See Dec. of R. Williams, ¶3, Ex. A.  The “proof of service” is not a proper proof of electronic service under CCP ;1013b, which requires an affidavit.  A confirmation receipt from the online service company is insufficient.  Moreover, the confirmation receipt does not list among the documents served the compendium of exhibits.  See Dec. of R. Williams, ¶3, Ex. A. 

Charles Company’s motion is also denied for failure to satisfy its burden as moving party.  Charles Company moves for summary judgment of the entire complaint and summary adjudication of each cause of action based on the element of duty.  The Court already discussed the issue of duty in its 9-30-19 ruling on Charles Company’s prior MSJ.  Even if Charles Company did not owe a duty to protect decedent from unforeseeable third-party criminal acts, Charles Company’s evidence does not negate the existence of its general duty of care as landowner to maintain its premises in a reasonably safe condition and to act reasonably toward the tenant and unknown third persons.  See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133 (“private landowners have a duty to maintain their premises in a reasonably safe condition, and that in the case of a landlord, the general duty of maintenance includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures”); Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 779 (commercial landowner could not totally abrogate its landowner responsibilities merely by signing a lease; commercial landowner out of possession must still exercise due care and act reasonably toward the tenant as well as to unknown third persons).  As previously stated, decedent’s potential status as a trespasser does not absolve Charles Company of a duty of due care.  Id. at 778-779.  The Court cannot find as an issue of law that Charles Company did not owe decedent any duty of care that would support Plaintiffs’ claims. 

Plaintiffs’ discovery responses do not satisfy Charles Company’s burden as moving party seeking summary judgment or adjudication of the individual causes of action or punitive damages claim.  See CCP ;437c(f)(1) and (2); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4th 757, 761.  A defendant may rely upon a plaintiff’s factually devoid responses to establish that plaintiff does not possess and cannot reasonably obtain necessary evidence.  See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89 (defendant bank did not meet its burden on summary judgment of wrongful foreclosure by merely arguing that plaintiff lacked evidence to support her claim and only documentary evidence submitted were the loan documents); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 890 (defendant did not establish plaintiff’s lack of evidence or inability to reasonably obtain evidence of plaintiff’s ability and willingness to perform by pointing to plaintiff’s refusal to answer certain questions during deposition on grounds of a meritless privacy objection; such a refusal, regardless of its merit, was neither an admission nor a factually devoid discovery response). Plaintiffs’ responses are not factually devoid, nor do they establish that Plaintiffs cannot reasonably obtain the necessary evidence, particularly given the outstanding discovery. 

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Case Number: ****1305    Hearing Date: July 30, 2020    Dept: O

Case Name: Young, et al. v. Gabay, et al.
Case No.: ****1305 Complaint Filed: 5-15-17
Hearing Date: 7-30-20 (cont’d from 4- 23-20) Discovery C/O: 9-3-19
Calendar No.: 3 Discover Motion C/O: 8-19-19
POS: OK Trial Date: None
SUBJECT: MOTION FOR TERMINATING SANCTIONS    
MOVING PARTY: Defendants Mark Gabay, Arman Gabay, Charles Company and Excel Property Management Services, Inc. 
RESP. PARTY: Plaintiffs Shirley Young, Frank Young and Estate of Eric Young 
TENTATIVE RULING
Defendants Mark Gabay, Arman Gabay, Charles Company and Excel Property Management Services, Inc.’s Motion for Terminating Sanctions is DENIED.
Terminating sanctions should not be imposed lightly and a graduated imposition of
sanctions should be used if possible. See Mileikowsky v. Tenet Healthsystem (2005) 128
Cal.App.4th 262, 279-280 (decision to impose terminating sanctions should not be made lightly
but such sanctions are justified in cases of repeated discovery abuse and evidence that lesser
sanctions will be ineffectual); Thomas v. Luong (1986) 187 Cal.App.3d 76, 81–82; see also
Morgan v. Ransom (1979) 95 Cal.App.3d 664, 669 (incarcerated, indigent, pro per plaintiff's
delay in serving responses insufficient to justify imposition of terminating sanctions where no
prejudice demonstrated). Moreover, discovery sanctions are not intended to punish but to
accomplish discovery. See Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 613.
“The discovery statutes…evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”  Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.  
In addition, terminating sanctions are never an appropriate remedy for failure to pay monetary sanctions.  “A monetary sanction is immediately enforceable as a judgment, unless the court rules that it is not. In an appropriate case failure to pay an ordered sanction is punishable as a contempt. And failure to provide the underlying discovery, in violation of a court order that it be provided, is punishable by sanctions affecting the conduct of the litigation, up to and including a terminating sanction. Because of that, an order terminating a plaintiff's lawsuit or striking a defendant's answer and entering its default (in effect, terminating sanctions) solely because of failure to pay the monetary sanction is excessive.”  Newland v. Supr. Ct. (1995) 40 Cal.App.4th 608, 610.  
Defendants seek terminating sanctions against Plaintiffs Shirley Gabay, Frank Young and the Estate of Eric Young based on their failure to comply with the Court’s 5-7-19 compelling response to Defendants’ RFPs and the portion of the Court’s 11-12-19 order requiring payment of monetary sanctions.  Defendants assert Plaintiffs have not served responses to the RFPs, nor have they paid the required sanctions.  
Plaintiffs have not completely abandoned this case.  Plaintiffs successfully defeated Defendants’ MSJ on 9-30-19.  Plaintiffs’ counsel also appeared at the last CMC on 3-5-20, the hearing on Natalie Gabay’s Motion to Quash heard on 12-6-19, the CMC on 11-21-19.  
In addition, Defendants do not claim Plaintiffs failed to serve responses to the Form Interrogatories, as ordered by the Court on 11-12-19.  Defendants only assert Plaintiffs failed to pay the sanctions imposed under the 11-12-19 order.
Finally, Plaintiffs opposed this motion, providing numerous factors excusing their delay in providing responses.  Plaintiffs have also provided the responses in question, and they reaffirmed in their opposition that they are actively litigating this case.  
Under these circumstances, imposition of terminating sanctions would be improper.  Under Newland, supra, terminating sanctions cannot be imposed based on Plaintiffs’ failure to pay the monetary sanctions required under the 11-12-19 Order.  Doing so would be excessive and an abuse of discretion.   
For these reasons, Defendants’ Motion for Terminating Sanction is DENIED. 
Defendant’s request in their Reply for an alternative award of monetary sanctions is denied without prejudice because those sanctions were not requested in the notice of motion. Likewise, Defendants are not precluded from seeking lesser sanctions, e.g. evidentiary or issue sanctions, if appropriate.  
And finally, Counsel for Plaintiff is again admonished by the Court to timely complete all responses due for all discovery and to promptly respond to meet and confer efforts of Defendants’ counsel.


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