This case was last updated from Los Angeles County Superior Courts on 07/21/2022 at 12:38:37 (UTC).

THE ESTATE OF KEVIN WALSH ET AL VS CA DEPT OF TRANSPORTATION

Case Summary

On 03/02/2017 THE ESTATE OF KEVIN WALSH filed a Personal Injury - Other Personal Injury lawsuit against CA DEPT OF TRANSPORTATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are UPINDER S. KALRA, JOHN J. KRALIK, WILLIAM D. STEWART, BENNY C. OSORIO and PATRICIA D. NIETO. The case status is Disposed - Judgment Entered.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2502

  • Filing Date:

    03/02/2017

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

UPINDER S. KALRA

JOHN J. KRALIK

WILLIAM D. STEWART

BENNY C. OSORIO

PATRICIA D. NIETO

 

Party Details

Petitioners and Plaintiffs

WALSH LAUREN ANNE MARIE

THE ESTATE OF KEVIN WALSH

WALSH ERYN

Defendants and Respondents

CALIFORNIA DEPARTMENT OF TRANSPORTATION

DOES 1 TO 100

STATE OF CALIFORNIA

CALIFORNIA DEPARTMENT OF TRANSPORATION

THE TRAVELERS INDEMNITY COMPANY

Not Classified By Court

LETTEAU ROBERT M. HON.

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

EAGAN AVENATTI LLP

SIMINOU BENJAMIN ISRAEL

ZIMMERMAN ALICIA MARIE

COLORADO CARLOS X

SHAPERO STEVEN J.

GAMMILL DAVID

MARCHINO FILIPPO

Defendant and Respondent Attorneys

PRIETO ALEXANDER

HANSON JOHN ROBERT

WEISEL ERIC D. DEPUTY ATTORNEY

WEISEL ERIC DAVID

SCHELE DESIRI LILLEAN

FOELLMER MACKENZIE CASS

 

Court Documents

Request for Dismissal

6/29/2022: Request for Dismissal

Judgment

3/18/2022: Judgment

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE PETITION FOR APPROVAL OF MINOR'S COMPROMISE) OF 02/24/2022

2/24/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE PETITION FOR APPROVAL OF MINOR'S COMPROMISE) OF 02/24/2022

Minute Order - MINUTE ORDER (COURT ORDER RE PETITION FOR APPROVAL OF MINOR'S COMPROMISE)

2/24/2022: Minute Order - MINUTE ORDER (COURT ORDER RE PETITION FOR APPROVAL OF MINOR'S COMPROMISE)

Minute Order - MINUTE ORDER (COURT ORDER RE PETITION FOR APPROVAL OF MINOR'S COMPROMISE)

2/24/2022: Minute Order - MINUTE ORDER (COURT ORDER RE PETITION FOR APPROVAL OF MINOR'S COMPROMISE)

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

3/2/2022: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Report of Receiver

3/3/2022: Report of Receiver

Order Approving Compromise of Disputed Claim or Pending Action or Disposition of Proceeds of Judgme - ORDER APPROVING COMPROMISE OF DISPUTED CLAIM OR PENDING ACTION OR DISPOSITION OF PROCEEDS OF JUDGM

3/4/2022: Order Approving Compromise of Disputed Claim or Pending Action or Disposition of Proceeds of Judgme - ORDER APPROVING COMPROMISE OF DISPUTED CLAIM OR PENDING ACTION OR DISPOSITION OF PROCEEDS OF JUDGM

Minute Order - MINUTE ORDER (HEARING ON PETITION TO CONFIRM MINOR'S COMPROMISE WITH SPECIA...)

3/4/2022: Minute Order - MINUTE ORDER (HEARING ON PETITION TO CONFIRM MINOR'S COMPROMISE WITH SPECIA...)

Petition - PETITION FOR APPROVAL OF COMPROMISE OF CLAIM OR ACTION OR DISPOSITION OF PROCEEDS OF JUDGMENT FOR MINOR OR PERSON WITH A DISABILITY

2/15/2022: Petition - PETITION FOR APPROVAL OF COMPROMISE OF CLAIM OR ACTION OR DISPOSITION OF PROCEEDS OF JUDGMENT FOR MINOR OR PERSON WITH A DISABILITY

Declaration - DECLARATION OF FILIPPO MARCHINO, ESQ. IN SUPPORT OF APPLICATION FOR MINOR'S COMPROMISE

2/15/2022: Declaration - DECLARATION OF FILIPPO MARCHINO, ESQ. IN SUPPORT OF APPLICATION FOR MINOR'S COMPROMISE

Notice of Lodging - NOTICE OF LODGING MINOR'S COMP

2/15/2022: Notice of Lodging - NOTICE OF LODGING MINOR'S COMP

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER RE MOTION TO TAX COSTS)

12/30/2021: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER RE MOTION TO TAX COSTS)

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER CORRECTING THE COURT'S DECEMBER 30, 2021 MINUTE ORDER RE DEFENDANT'S MOTION FOR TAX COSTS

1/19/2022: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER CORRECTING THE COURT'S DECEMBER 30, 2021 MINUTE ORDER RE DEFENDANT'S MOTION FOR TAX COSTS

Opposition - OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR AN ORDER CORRECTING THE COURTS DECEMBER 30, 2021 MINUTE ORDER RE DEFENDANTS MOTION TO TAX COSTS

1/19/2022: Opposition - OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR AN ORDER CORRECTING THE COURTS DECEMBER 30, 2021 MINUTE ORDER RE DEFENDANTS MOTION TO TAX COSTS

Declaration in Support of Ex Parte Application

1/19/2022: Declaration in Support of Ex Parte Application

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER CORRECTING THE C...)

1/20/2022: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER CORRECTING THE C...)

Order - EX PARTE PROPOSED ORDER

1/21/2022: Order - EX PARTE PROPOSED ORDER

431 More Documents Available

 

Docket Entries

  • 06/29/2022
  • DocketRequest for Dismissal; Filed by The Estate of Kevin Walsh, (Plaintiff)

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  • 03/18/2022
  • DocketJudgment; Filed by The Estate of Kevin Walsh (Plaintiff); Eryn Walsh (Plaintiff)

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  • 03/04/2022
  • Docketat 11:00 AM in Department A, Upinder S. Kalra, Presiding; Hearing on Petition to Confirm Minor's Compromise with Special Needs Trust (Filed by Pltff the Estate of Kevin Walsh et. al.) - Held - Motion Granted

    [+] Read More [-] Read Less
  • 03/04/2022
  • Docketat 2:30 PM in Department A; Hearing on Petition to Confirm Minor's Compromise with Special Needs Trust (Filed by Pltff the Estate of Kevin Walsh et. al.) - Not Held - Advanced and Continued - by Court

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  • 03/04/2022
  • DocketOrder Approving Compromise of Disputed Claim or Pending Action or Disposition of Proceeds of Judgment for Minor or Person With a Disability (Miscellaneous); Filed by The Estate of Kevin Walsh (Plaintiff)

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  • 03/04/2022
  • DocketMinute Order ( (Hearing on Petition to Confirm Minor's Compromise with Specia...)); Filed by Clerk

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  • 03/03/2022
  • DocketReport of Receiver; Filed by Eryn Walsh (Plaintiff)

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  • 03/02/2022
  • Docketat 3:28 PM in Department A, Upinder S. Kalra, Presiding; Nunc Pro Tunc Order

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  • 03/02/2022
  • DocketMinute Order ( (Nunc Pro Tunc Order)); Filed by Clerk

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  • 02/24/2022
  • Docketat 2:06 PM in Department A, William D. Stewart, Presiding; Court Order

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622 More Docket Entries
  • 04/21/2017
  • DocketDefendant's Demurrer; Filed by California Department of Transportation (Defendant)

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  • 04/21/2017
  • DocketDefendant's Demurrer; Filed by Attorney for Deft/Respnt

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  • 03/14/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 03/14/2017
  • DocketProof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 03/14/2017
  • DocketProof-Service/Summons; Filed by The Estate of Kevin Walsh (Plaintiff)

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  • 03/02/2017
  • DocketDECLARATION OF ERYN WALSH PURSUANT TO CODE OF CIVIL. PROCEDURE SECTION 377.32

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  • 03/02/2017
  • DocketComplaint

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  • 03/02/2017
  • DocketCOMPLAINT FOR DAMAGES: 1. WRONGFUL DEATHNEGLIGENCE ;ETC

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  • 03/02/2017
  • DocketSUMMONS

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  • 03/02/2017
  • DocketComplaint; Filed by The Estate of Kevin Walsh (Plaintiff); The Estate of Kevin Walsh, (Plaintiff); Eryn Walsh (Plaintiff)

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****2502 Hearing Date: January 20, 2022 Dept: A

Ex Parte Application

Calendar:

03

Case No.:

****2502

Hearing Date:

January 20, 2022

Action Filed:

March 02, 2017

Trial Date:

Trial Disposed on August 20, 2021

MP:

Plaintiffs The Estate of Kevin Walsh, by and through Eryn Walsh as successor in interest; Eryn Walsh; Lauren Anne Marie Walsh

RP:

Defendant California Department of Transportation (no opposition)

ALLEGATIONS:

The instant action arises from the death of Decedent Kevin Walsh (“Decedent”) on or about March 06, 2016. Plaintiffs Eryn Walsh ("Eryn"), and Lauren Anne Marie Walsh ("Lauren") (and together, “Plaintiffs”) are the heirs and successors in interest to Decedent, and allege that Defendants State of California Department of Transportation (“Defendant”) and Travelers Indemnity Company ("Travelers") are responsible for Decedent’s and Plaintiffs’ injuries. Specifically, Plaintiffs allege that Caltrans permitted a dangerous condition to exist on the 134 freeway causing Decedent’s death. Plaintiffs allege that Decedent was traveling on the 134 freeway when his car drove over standing water, causing the vehicle to lose traction and impact a median area on the freeway and an energy attenuator. Additionally, Plaintiffs allege that Travelers improperly and without authorization disposed of Decedent’s vehicle.

Plaintiffs filed their initial Complaint on March 02, 2017, their First Amended Compliant on May 11, 2017, and the operative Second Amended Complaint (“SAC”) on October 25, 2018. The SAC alleges six causes of action sounding in (1) Wrongful Death – Vicarious Liability (against DOT), (2) Survival – Vicarious Liability (against DOT), (3) Wrongful Death – Dangerous Condition of Public Property (against DOT), (4) Survival – Dangerous Condition of Public Property (against DOT), (5) Promissory Estoppel (against Travelers), and (6) Negligent Undertaking (against Travelers).

PRESENTATION:

The Court received the Ex Parte Application filed by Plaintiffs on January 19, 2022. The Court has not received any opposition or reply.

RELIEF REQUESTED:

Plaintiffs move, ex parte, for an order correcting the Court's December 30, 2021 Minute Order to read $36,297.21 in taxable costs, rather than $56,366.83.

DISCUSSION:

Standard of Review – Ex Parte Application – California Rules of Court, Rule 3.1201 provides that a request for ex parte relief must be in writing and must include all of the following:

(1) An application containing the case caption and stating the relief requested;

(2) A declaration in support of the application making the factual showing required under rule 3.1202(c);

(3) A declaration based on personal knowledge of the notice given under rule 3.1204;

(4) A memorandum; and

(5) A proposed order.

Pursuant to California Rules of Court, Rule 3.1202(c), "[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."

Merits – Plaintiffs argue that the Court erred in its December 30, 2021 Minute Order in ruling that $56,366.83 would be taxed, resulting in $239,702.06 for Plaintiffs in costs. The Court made a mathematical error in its tentative ruling on November 09, 2021 in calculating a taxed amount of $76,366.83, comprising $36,397.21 plus $20,000 in reproduction costs. This amount should have been $56,397.21. Later, on December 30, 2021, the Court found that the reproduction costs were appropriate. This should have subtracted $20,000 from $56,397.21, resulting in a total taxed amount of $36,397.21. The Court's incorrect figure on December 30, 2021 appears to have resulted from an attempt at subtracting the reproduction costs of $20,000 from the incorrect figure of $76,366.83, rather than the correct figure of $56,397.21.

The Court willl thus grant the motion and issue a nunc pro tunc correction to the December 30, 2021 Minute Order, correcting the taxed amount from $56,366.83 to $36,397.21, and correcting Plaintiffs' total cost recovery from $239,702.06 to $259,671.68

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiffs The Estate of Kevin Walsh, by and through Eryn Walsh as successor in interest; Eryn Walsh; and Lauren Anne Marie Walsh's Ex Parte Application came on regularly for hearing on January 20, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE EX PARTE APPLICATION IS GRANTED.

DATE:

JUDGE



b'

Case Number: ****2502 Hearing Date: November 9, 2021 Dept: A

Motion to Tax Costs

Standard of Review – The costs incurred by the parties to a civil action consist of the expenses of litigation, usually excluding attorney fees. (Patricia Bakey – Hoey v. Lockheed (2003) 111 Cal.App.4th 592, 597.) Under the common law rule, parties to litigation must bear their own costs. (Ibid.; see also Davis v. KGO-TV, Inc. (1998) 17 Cal.4th 436, 446) (Although the purpose of much civil litigation is to make the injured party “whole,” the traditional common law rule is that the parties must bear their own costs.). The right to recover any costs is, thus, determined entirely by statute. (Patricia Bakey – Hoey, supra, 111 Cal.App.4th at 597.)

“[T]he verified memorandum of costs is prima facie evidence of their propriety, and the burden is on the party seeking to tax costs to show they were not reasonable or necessary.” (612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285.) Evidence is generally required in order to support an objection, and the mere submission of conclusions or bare allegations typically does not justify taxing costs. (See County of Kern v. Ginn (1983) 146 Cal.App.3d 1107) (bare allegation that depositions were neither necessary nor reasonable insufficient to overcome right to costs). Allegations are sufficient, however, if they depend upon undisputed facts where nothing more needed to be, or could have been, added by additional declarations or affidavits. (Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192, 1196.)

Merits – Caltrans argues that the following costs should be taxed: (1) 50% of Plaintiffs\' costs in pursuing the action against Travelers, which settled out of the case, representing $137,679.35; (2) all or part of Plaintiffs\' costs pursuant to their CCP ; 998 settlement offer to Caltrans, representing $144,345.84 from section 8 and $20,363.30 from section 11 of the memorandum of costs; (3) some of Plaintiffs\' expert and court reporter fees pursuant to CCP ; 998, as unreasonable or unnecessary, representing $28,677.83 for expert costs and $20,363.30 for court reporter fees; (4) Plaintiffs\' costs for "postage, couriers, meals during trial, private investigators, and jury consultants" pursuant to CCP ; 1033.5, representing $36,366.83; and (5) costs that Caltrans argues are too vague to understand, representing $50,073.22. Caltrans requests a total of $237,001.17 to be taxed from Plaintiffs\' award of costs.

In opposition, Plaintiffs first argue that the instant motion should be denied in its entirety for failure to adhere to CRC Rule 3.1700(b)(2). Plaintiffs then argue that (1) Nelson v. Anderson (1999) 72 Cal.App.4th 111 precludes the Court from applying an across-the-board reduction of costs based on party number, and further argues that Caltrans improperly requests taxed costs on work relating to Caltrans\' motions and work performed after Travelers filed a notice of settlement on July 01, 2021; (2) Plaintiffs\' CCP 998 settlement offer to Caltrans was made in good faith, and Caltrans was on notice of the negligent maintenance theory that ultimately prevailed in trial; and (3) all other costs referenced in the motion were reasonable and necessary.

CRC Rule 3.1700(b)(2) – "Unless objection is made to the entire cost memorandum, the motion to strike or tax costs must refer to each item objected to by the same number and appear in the same order as the corresponding cost item claimed on the memorandum of costs and must state why the item is objectionable." (Cal. Rules of Court, Rule 3.1700, subd. (b)(2).) While Caltrans argues that its motion is properly formatted due to the complexity of the motion and presence of multiple legal arguments, it does not explain or argue why it could not comply CRC Rule 3.1700(b)(2) and simultaneously raise such legal arguments. Plaintiffs, however, do not cite to authority supporting the contention that the Court must deny a motion to tax costs for failure to comply with this rule, and so the Court will move on to the merits of the motion.

Travelers Costs – Caltrans cites to Reed v. Wilson (1999) 73 Cal.App.4th 439, 444 and Plaintiffs cite to Nelson, supra, 72 Cal.App.4th 111.

Reed is a case involving a CCP ; 877 good faith settlement, where the Court of Appeals ruled that a non-settling and losing defendant could not offset the plaintiff\'s costs with the other defendant\'s settlement when those costs were not part of the settlement consideration. (See Reed, supra, 73 Cal.App.4th 439.) Although successful plaintiffs are not allowed "double recovery", they are not considered to have obtained double recovery "when obtaining costs from a remaining defendant, unless plaintiff\'s compromise agreement with the joint tortfeasor covers costs of pursuing the action against the remaining defendant." (Id. at p. 445.)

In Nelson, the prevailing plaintiff claimed costs against the remaining defendant after having settled with the other two defendants, the Court of Appeals reversed the trial court\'s reduction of the plaintiff\'s costs on the basis of such settlements, ruling that there exists no statutory authority to reduce costs in CCP ; 1033. (See Nelson, supra, 72 Cal.App.4th 111.) The court further ruled that an "across-the-board reduction based on the number of plaintiffs, without regard to the reason the costs were incurred" is not allowed absent specific statutory authority. (Id. at p. 130.)

Caltrans appears to argue that the instant action is distinguishable from Reed, but Reed was a case that looked at settling joint tortfeasors. Nelson appears to be a more appropriate case for comparison. Both cases, however, allow successful plaintiffs to obtain full costs from a remaining defendant when a settling defendant\'s settlement does not explicitly provide for the imposition of costs. Although Caltrans argues that the Court should prevent Plaintiffs from enjoying a windfall of costs for its continued prosecution of Travelers up until "July 16, 2021, days into trial", Caltrans also contends that Plaintiffs did so in order to guarantee its ability to continue its prosecution of Travelers if the settlement between the parties fell through. This implies, if anything, that Plaintiffs did not spend any considerable cost in prosecuting Travelers, as they held the party in the trial only as a contingency measure. Caltrans\' contentions that Plaintiffs spent a substantial portion of costs – much less 50% costs within the relevant time period – on prosecuting Travelers is not supported by any evidence and relies on only conclusory allegations. Caltrans, in its reply, argues that Nelson does not preclude a reduction of costs based on the distinct prosecution of Travelers, and urges the Court to review and determine the proper costs associated with Travelers. While this is true, on a motion to tax costs, the burden is on Caltrans, not the Court, to show that these reductions are statutorily authorized pursuant to Nelson. Instead, Caltrans requests the Court apply a 50% cost reduction without referencing any evidence showing the reasonability of, or a statute authorizing, the Court to do so. This appears to be the same kind of "across-the-board reduction" that the Nelson court explicitly disallowed. The Court will thus not tax any costs, or tax a smaller amount of costs, as to the issue of costs associated with the Travelers prosecution.

CCP ; 998 Settlement Offer – 998 offers must be made in good faith, and “[a] token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test.” (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1528.) However, “[w]hen a party obtains a judgment more favorable than its pretrial offer, [the offer] is presumed to have been reasonable and the opposing party bears the burden of showing otherwise.” (Ibid.) The pretrial offer of settlement required under section 998 must be realistically reasonable under the circumstances of the particular case. (See Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 63.) Whether a 998 offer is reasonable also depends on whether the adverse party knows, or reasonably should know, the information that makes the offer reasonable. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.)

Caltrans argues that, at the time of Plaintiffs\' 998 offer, both parties reasonably believed that the theories of liability presented were based on Caltrans\' choice of crash cushion, as well as water pooling on the highway. Caltrans argues that the theory Plaintiffs ultimately presented, and prevailed with on trial, was that Caltrans should have reasonably been on notice as to the compressed crash cushion given the time frame it was compressed; that this theory was raised for the first time in Plaintiffs\' summary judgment opposition, after the 998 offer; and that Plaintiffs did not provide evidence to support this new theory, including Vena Sagradian\'s testimony and rain evidence on February 18, 2016, until the trial itself. Caltrans thus argues that Plaintiffs\' 998 offer was not reasonable at the time because Plaintiffs changed their theory of liability after the offer was made, and Caltrans could not have known this at the time of the 998 offer.

In opposition, Plaintiffs argue that Caltrans fails to show that Plaintiffs did not present a good faith 998 offer, that the theory of negligent maintenance was always known to both parties throughout the action, and that Caltrans had the information it needed to determine that the crash cushion was collapsed.

This argument does not satisfy Caltrans\' burden to show that Plaintiffs\' 998 offer was unreasonable. Caltrans only argues that it did not have the information it needed to adequately evaluate the 998 offer at the time, but does not contend that Plaintiffs knew this information at the time of the offer. Caltrans in fact implicitly concedes that Plaintiffs were unaware of their ultimate theory of liability at the time, as it argues "Plaintiffs could not come up with the ultimate theory of liability until a year after the section 998 offer . . . ." (Mot., 9:6-7.) A 998 offer need not be objectively reasonable in hindsight, nor reasonable only in regard to what Caltrans knew or should have known at the time. Licudine, cited by both parties, instructs that the validity of a 998 offer is premised on two considerations to be evaluated "at the time of the offer" and "not by virtue of hindsight. (Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924.) The Licudine court instructs a court must consider whether the 998 offer was within the range of reasonably possible results at trial, considering the information the "offeror knew or reasonably should have known", and then whether the offeror knew or should have known that the offeree had sufficient information to have a "fair opportunity to intelligently evaluate the offer". (Id. at pp. 925-26.) Even if the Court were to assume, in arguendo, that Caltrans was not on notice as to the theory of liability that prevailed at trial, Caltrans\' argument concludes that both parties were ignorant that this theory would be presented at trial at the time the 998 offer was made. Licudine explains that CCP ; 998 is a statute that encourages the settlement of lawsuits prior to trial by punishing parties that fail to accept reasonable offers from the other party. (Id. at p. 924.) This policy would not appear to make an offer "unreasonable" only because both parties labored under a mistaken belief as to what the ultimate theory of liability would be at trial; and Caltrans does not make the argument that Plaintiffs reasonably should have known that they themselves would present the compression time frame theory of liability at the time of the offer. The Court will thus not tax costs relating to the 998 offer.

Expert and Court Reporter Fees – Caltrans argues that if the Court were to deem costs under CCP ; 998 reasonable, it objects to fees associated with Ed Ruzak and Associates, Falkenhagen, Momentum Engineering Corp., Tatum Group, and Hank Greenberg as unreasonable or unnecessary. Caltrans also argues that the parties agreed to split court reporter costs, but did not agree to cover Plaintiffs\' court reporter costs if the judgment exceeds Plaintiffs\' 998 offer, and so the Court will tax the claimed court reporter costs.

In opposition, Plaintiffs present specific arguments regarding the reasonability of each expert witness. (Decl. Marchino, ¶¶ 14-28.) Plaintiffs also argue that the parties did not enter into an agreement to split court reporter costs.

As to the expert costs, on review of the Marchino Declaration, the Court finds that the expert witness costs raised by Caltrans were reasonable and necessary pursuant to CCP ; 998, and will not tax these costs. As to the court reporter costs, as Caltrans does not respond to Plaintiffs\' contention that the parties never made an agreement as to sharing costs to begin with, the Court assumes that this point is conceded. As court reporter costs may be claimed by Plaintiffs pursuant to CCP ; 1033.5(11), the Court will not tax these costs.

Various CCP ; 1033.5 Costs – Caltrans argues that (1) Item 16 of Plaintiff\'s Memorandum of Costs describes disallowed costs for "postage, couriers, meals during trial, private investigators, and jury consultants" pursuant to CCP ; 1033.5(b), representing a cost of $36,366.83; (2) Item 1b of the Filing and Motion fees is improperly vague, representing a cost of $14.70; and (3) Item 11, which is labeled "Reproduction Costs for trial binders and costs of obtaining documents" (hereafter referred to as "Reproduction Costs") is improperly vague, representing a cost of $50,073.22.

In opposition, Plaintiffs argue that (1) postage costs were reasonably necessary, and reasonable in amount; couriers are allowable costs under CCP ; 1033.5(c)(4); meals during trial may be allowed under CCP ; 1033.5(c)(4); private investigators were hired only for the purpose of serving trial subpoenas on witnesses, which is allowed under CCP ; 1033.5(c)(4); the jury consultant fees concern Plaintiffs\' use of mock jurors and on selecting jurors during voir dire, which are allowable under CCP ; 1033.5(b)(4); (2) the Filing and Motion fees represent USPS shipping charges to ship documents to Caltrans; and (3) Reproduction Costs are allowed under either CCP ; 1033.5(13) or CCP ; 1033.5(c)(4)/

Postage costs and investigation expenses are specifically barred by CCP ;; 1033.5(b)(2) and (b)(3). The Court has the discretion to assess whether the remaining costs may be taxed pursuant to CCP ; 1033.5(c)(4). The Court will thus tax costs relating to jury consultant fees, a portion of the costs associated with trial binders and document obtainment, and meals during trial, as these costs do not appear to be "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." (Code Civ. Proc., ; 1033.5, subd. (c)(2).) The Court will not tax costs relating to couriers or Filing and Motion fees regarding shipping documents to Caltrans.

With regard to the Reproduction Costs, Plaintiffs likely have legitimate costs within the category of exhibits models pursuant to CCP ; 1033.5(13), but the amount of $50,073.22 is unreasonable, and so the Court will tax the amount by $20,000. The Court will thus tax: (1) the amount of $36,297.21, representing $36,366.83 minus $69.62 for allowable courier costs, plus (3) Reproduction Costs in the amount of $20,000, for a total of $76,366.83.

Accordingly, the Court will grant the instant motion in part, as specified above..

'


Case Number: ****2502    Hearing Date: June 4, 2021    Dept: A

Motion to Bifurcate

Calendar:

01

Case No.:

****2502

Hearing Date:

June 04, 2021

Action Filed:

March 02, 2017

Trial Date:

July 06, 2021

MP:

Defendant California Department of Transportation, a Public Entity

RP:

Plaintiffs The Estate of Kevin Walsh, by and through Eryn Walsh as successor in interest; Eryn Walsh

ALLEGATIONS:

The instant action arises from the death of Decedent Kevin Walsh (“Decedent”) on or about March 06, 2016. Plaintiffs Eryn Walsh ("Eryn"), and Lauren Anne Marie Walsh ("Lauren") (and together, “Plaintiffs”) are the heirs and successors in interest to Decedent, and allege that Defendants State of California Department of Transportation (“Caltrans”) and Travelers Indemnity Company (“Travelers” and together the “Defendants”) are responsible for Decedent’s and Plaintiffs’ injuries. Specifically, Plaintiffs allege that Caltrans permitted a dangerous condition to exist on the 134 freeway causing Decedent’s death. Plaintiffs allege that Decedent was traveling on the 134 freeway when his car drove over standing water, causing the vehicle to lose traction and impact a median area on the freeway and a metal energy attenuator. Additionally, Plaintiffs allege that Travelers improperly and without authorization disposed of Decedent’s vehicle.

Plaintiffs filed their initial Complaint on March 02, 2017, their First Amended Compliant on May 11, 2017, and the operative Second Amended Complaint (“SAC”) on October 25, 2018. The SAC alleges six causes of action sounding in (1) Wrongful Death – Vicarious Liability (against DOT), (2) Survival – Vicarious Liability (against DOT), (3) Wrongful Death – Dangerous Condition of Public Property (against DOT), (4) Survival – Dangerous Condition of Public Property (against DOT), (5) Promissory Estoppel (against Travelers), and (6) Negligent Undertaking (against Travelers).

PRESENTATION:

The Court received the instant motion filed by Caltrans on May 07, 2021; the opposition filed by Plaintiffs on May 21, 2021; and the reply filed by Caltrans on May 27, 2021.

RELIEF REQUESTED:

Caltrans moves for an order bifurcating the issue of liability from the issue of damages at trial.

DISCUSSION:

Standard of Review – Bifurcate – CCP ; 598 provides:

The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case . . . .

Merits – Caltrans contends that bifurcation of liability and damages will curtail costs and avoid unnecessary litigation. Caltrans argues that the instant action is well-suited to bifurcation, as neither party questions that the subject collision was the cause of Decedent’s injuries. Caltrans further argues that liability testimony would generally come through separate sources from damage testimony.

In opposition, Plaintiffs argue that bifurcation is inappropriate, as liability will be fact-intensive, factors essential to proving liability are also essential to proving damages, and Plaintiffs intend to produce two witnesses, Eryn Walsh and Justin Alabart, as both causation and damages witnesses.

Both parties cite to Cohn; Caltrans cites to the case to support the contention that a vehicle accident case is well-suited for bifurcation when evidence regarding liability and damages are separate (Mot., 4:12-13), while Plaintiffs cite to the case to support the contention that bifurcation is inappropriate when proof of damages is an element of liability (Oppo., 6:6-7). (Cohn v. Bugas (1974) 42 Cal.App.3d 381.)

In Cohn, the appellate court held that bifurcation of a trial is inappropriate where “because of the nature of the case it is necessary to prove the plaintiff's damages in order to establish that liability.” (Id. at p. 385.) The instant action is distinguishable from Cohn as it is not necessary to prove damages as a condition of proving Caltrans' liability.

The Court finds that bifurcation is appropriate for the instant action. The testimony and evidence to be presented regarding the damages portion of the case is likely to be lengthy and complex, and there is little overlap between witness testimony for liability and for damages. Thus, on the basis of judicial economy, the Court will grant the instant motion.

---

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant California Department of Transportation's Motion to Bifurcate came on regularly for hearing on June 04, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION TO BIFURCATE IS GRANTED; TRIAL ON LIABILITY WILL BE TRIED FIRST; IF LIABILITY IS FOUND, DAMAGES WILL BE TRIED BY THE SAME JURY IMMEDIATELY THEREAFTER AND COUNSEL MUST BE READY TO PROCEED.

DATE: _______________ _______________________________

JUDGE



Case Number: ****2502    Hearing Date: April 15, 2021    Dept: A

Motion for Summary Judgment

Calendar:

11

Case No.:

****2502

Hearing Date:

April 15, 2021

Action Filed:

March 02, 2017

Trial Date:

July 06, 2021

MP:

Defendant California Department of Transportation, a Public Entity

RP:

Plaintiffs The Estate of Kevin Walsh, by and through Eryn Walsh as successor in interest; Eryn Walsh

ALLEGATIONS:

The instant action arises from the death of Decedent Kevin Walsh (“Decedent”) on or about March 06, 2016. Plaintiffs Eryn Walsh ("Eryn"), and Lauren Anne Marie Walsh ("Lauren") (and together, “Plaintiffs”) are the heirs and successors in interest to Decedent, and allege that Defendants State of California Department of Transportation (“Caltrans”) and Travelers Indemnity Company (“Travelers” and together the “Defendants”) are responsible for Decedent’s and Plaintiffs’ injuries. Specifically, Plaintiffs allege that Caltrans permitted a dangerous condition to exist on the 134 freeway causing Decedent’s death. Plaintiffs allege that Decedent was traveling on the 134 freeway when his car drove over standing water, causing the vehicle to lose traction and impact a median area on the freeway and a metal energy attenuator. Additionally, Plaintiffs allege that Travelers improperly and without authorization disposed of Decedent’s vehicle.

Plaintiffs filed their initial Complaint on March 02, 2017, their First Amended Compliant on May 11, 2017, and the operative Second Amended Complaint (“SAC”) on October 25, 2018. The SAC alleges six causes of action sounding in (1) Wrongful Death – Vicarious Liability (against DOT), (2) Survival – Vicarious Liability (against DOT), (3) Wrongful Death – Dangerous Condition of Public Property (against DOT), (4) Survival – Dangerous Condition of Public Property (against DOT), (5) Promissory Estoppel (against Travelers), and (6) Negligent Undertaking (against Travelers).

PRESENTATION:

The Court received the summary judgment motion filed by Caltrans on November 22, 2019; the opposition filed by Plaintiffs on March 26, 2021; and the reply filed by Caltrans on April 02, 2021.

RELIEF REQUESTED:

Caltrans moves for summary judgment as to the SAC.

DISCUSSION:

Standard of Review – Summary Judgment – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., ;437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., ;437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., ; 437c, subd. (p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Ibid.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Ibid.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code Civ. Proc., ; 437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

Merits – Caltrans argues raises two defenses on summary judgment: the complete defense of design immunity pursuant to Government Code ; 830.6. and the complete defense of weather immunity pursuant to Government Code ; 831.

Design Immunity – To prevail on the defense of design immunity, the following three elements must be established: "(1) a causal relationship between the plan or design and the accident, (2) discretionary approval of the plan or design prior to construction, and (3) substantial evidence supporting the reasonableness of the plan or design.” (Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 66; see Gov. Code, ; 830.6.)

Of the three elements, "[t]he first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed." (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.) As to the third element, Wyckoff v. State (2001) 90 Cal.App.4th 45, 50–51 provides:

The normal rules governing a motion for summary judgment, and requiring its denial if any triable issue of fact appears, are not fully applicable [to cases involving design immunity under Government Code section 830.6.]  For example, the defendant is not required to prove to the court that the design or plan was in fact a reasonable one. Instead, the defendant is merely required to adduce any ‘substantial evidence’ that a reasonable public employee or legislative body could have approved the plan or design used under [Government Code section] 830.6. Thus, when the defendant files a motion for summary judgment, the existence of a possible conflict of evidence, as shown by the proof submitted on the motion, will not create a triable issue on this aspect of the defense that can defeat a summary judgment . . . ." "We are not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted. [Citations.]" [Citations omitted.]

First Element (Causal Relationship) – Caltrans argues that Plaintiffs' SAC provides allegations that a causal connection existed between the installation of the metal energy attenuator ("Smart Cushion") and the subject accident, and that Caltrans may rely on these allegations to satisfy the first element of the design immunity test. In opposition, Plaintiffs argue that allegations made in the pleading are not admissions and Caltrans cannot rely on the SAC to satisfy this element.

Caltrans may rely on the SAC to establish causation in the context of a design immunity defense. (Fuller v. Dep't of Transp. (2001) 89 Cal.App.4th 1109, 1114.) The Court finds that the SAC sufficiently alleges a causal relationship between the design of the Smart Cushion and the subject accident for these purposes, that this fact is undisputed, and so Caltrans satisfies the first element. (SAC, ¶¶ 18-20, 22.)

Second Element (Discretionary Approval) – To establish the second element of discretionary approval, Caltrans must show “approval in advance of construction by the legislative body or officer exercising authority.” (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 734; Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 526.)

Caltrans cites to its expert witness, Nevin Sams, a California licensed professional civil engineer and traffic engineer and certified professional traffic operations engineer, to show approval in advance of construction of 15 crash cushions by Edgar Herrera, who had the discretionary authority to sign and stamp such plans (Decl. Sams, ¶ 15, Ex. E); and approval in advance of construction of "special provisions" to the above design palns by engineers Edgar Herrara, Dennis Katayama, and Gary Toor, who each had discretionary authority to do so (Decl. Sams, ¶ 19, Ex. F).

In opposition, Plaintiffs argue that the Sams Declaration contains numerous hearsay and authentication issues and so the declaration is wholly inadmissible.

As the Court overrules Plaintiffs' objections to the Sams Declaration as to paragraphs 15 and 19, and Exhibits E and F, Caltrans establishes that the second element of discretionary approval is met and is undisputed.

Third Element (Substantial Evidence of Reasonableness of Plan or Design) – Caltrans cites to paragraph 7 of the Newman Declaration, as well as Exhibit L, arguing that this evidence shows substantial evidence of reasonableness of the Smart Cushion design.

In opposition, Plaintiffs argue that Caltrans' expert witness testimony is premised on the assumption that the crash cushion was fully extended and proffer the LeBlanc Declaration as expert witness testimony showing that the crash cushion may not have been fully extended. (Decl. LeBlank, ¶ 6.) Plaintiffs further argue that the presence of water at the accident location is not part of the approved design of the smart cushion, and so also preclude design immunity.

 

Unlike an ordinary summary judgment motion, where the non-movant may defeat the motion by showing the existence of a triable issue of material fact, the moving defendant on summary judgment motion for design immunity is only required to show substantial evidence of reasonableness to succeed, even if such evidence is contradicted. (Grenier v. City of Irwindale

Gov. Code ; 830.6 – This, however, does not end the Court's analysis. While Caltrans demonstrates that it may be entitled to the design immunity defense, there exist two parts to the design immunity statute, Government Code ; 830.6. The first part states:

Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.

The second part of Section 830.6 further states:

Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning.

On summary judgment, Caltrans is required to show that it has a complete defense to Plaintiffs' causes of action. To accomplish this showing with the design immunity defense, Caltrans must not only show that it is entitled to design immunity, but also that no triable issue of fact exists showing that it lost its immunity.

Caltrans cites to Mirzada and argues that Plaintiffs bear the initial burden of establishing each of the three loss of immunity elements, and that Caltrans has no duty to address the issue until Plaintiffs satisfy their burden. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806.) But Mirzada does not stand for Caltrans' stated contention and establishes that a plaintiff would only have the initial burden at trial: "At trial, after a defendant has shown the applicability of the design immunity to the plaintiff’s claims, the plaintiff bears the burden of establishing each of the three elements of the loss of the immunity. [Emphasis added.]" (Ibid.) On summary judgment, the movant defendant has the initial burden to show that there is a complete defense to the action, followed by the non-movant plaintiff's corresponding burden to show a triable issue of material fact as to the defense. (Code Civ. Proc., ; 437c, subd. (p)(2).) Caltrans' burden is to show that there exists no triable issue of fact showing that it lost its immunity. The three elements required to demonstrate loss of immunity are:

(1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806.)

Caltrans argues that there have been no significant changes in physical conditions at or near the location of the subject accident that have put the design in a statutorily dangerous condition, and cites to paragraphs 17, 23, and 24 of the Sams Declaration, as well as Exhibits E, H, and I in support of this contention. Of this evidence, the Court sustained Plaintiffs' objection only as to Exhibit I.

The remaining evidence does not satisfy Caltrans' initial burden. The only evidence that addresses this issue is paragraph 24 of the Sams Declaration, which states "[b]ased on these Google street view photos of the crash cushion before and after the subject collision, there are no visible discrepancies between the crash cushion as it appears prior to the collision and after it had been repaired." This testimony does not address whether significant changes in physical conditions exist at or near the subject incident location that put the smart cushion design in a statutorily dangerous condition, and so Caltrans fails to meet this burden.

On this basis, the Court will deny summary judgment on design immunity grounds.

Weather Immunity – Government Code ; 831 provides:

Neither a public entity nor a public employee is liable for an injury caused by the effect on the use of streets and highways of weather conditions as such. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such effect if it would not be reasonably apparent to, and would not be anticipated by, a person exercising due care. For the purpose of this section, the effect on the use of streets and highways of weather conditions includes the effect of fog, wind, rain, flood, ice or snow but does not include physical damage to or deterioration of streets and highways resulting from weather conditions.

On summary judgment, as with its design immunity defense, Caltrans is required to show that weather immunity is a complete defense to Plaintiffs' action. Caltrans argues that weather immunity presents a complete defense to Plaintiffs' claims that standing water on the roadway caused Decedent to collide with the smart cushion. Caltrans cites to paragraphs 14, 15, and 16 of the Austin Declaration and argues that moderate to heavy rainfall began falling more than one hour before the accident near the accident location, which would be reasonably apparent to a motorist exercising due care. The Court finds, however, that Plaintiffs raise an independent triable issue of material fact as to whether the smart cushion was partially or fully compacted prior to the subject accident through the LeBlanc Declaration. (Decl. LeBlanc, ¶¶ 6, 13.) The issue of whether the smart cushion was compacted prior to the subject accident provides a basis for Plaintiffs' action unrelated to weather conditions, and so weather immunity does not provide a complete defense to Plaintiffs' action.

On this basis, the Court will deny summary judgment on weather immunity grounds and further deny summary judgment in its entirety.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendant California Department of Transportation's Motion for Summary Judgment came on regularly for hearing on April 15, 2021, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY JUDGMENT IS DENIED.

DATE: _______________ _______________________________

JUDGE



Case Number: ****2502    Hearing Date: August 20, 2020    Dept: A

The Superior Court is open under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use LACourtConnect, the court’s remote appearance technology (audio or video)

If it is indispensable for counsel to be present in court, face masks are mandated (unless a court orders otherwise) and social distancing rules are in force.

Dept. A Burbank protocol for LACourtConnect Appearances.

Video Appearances: Since these are the functional equivalent of a personal appearance in court, no special protocols are in place at this time.

Audio Only Appearances.

  1. Argument is limited to three minutes, unless the court grants a request for additional time.

  2. The reading of argument is feckless and nugatory.

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  5. Do not interrupt or attempt to speak over another speaker.

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  7. Take a deep breath frequently so that the court may interrupt your presentation, if necessary. (The system does not default to the court unless you are placed on mute by the court or go silent or mute on you own.)

Estate of Walsh v Cal-Trans

PENDING DISCOVERY MATTERS

Calendar:

Add-On 1

Case No.:

****2502

Hearing Date:

August 20, 2020

Action Filed:

March 02, 2017

Trial Date:

July 06, 2021

MP:

Plaintiffs The Estate of Kevin Walsh, by and through Eryn Walsh as successor in interest; Eryn Walsh

RP:

Defendant California Department of Transportation, a public entity

ALLEGATIONS:

The instant action arises from the death of Decedent Kevin Walsh (“Decedent”) on or about March 06, 2016. Plaintiffs Eryn Walsh ("Eryn"), and Lauren Anne Marie Walsh ("Lauren") (and together, “Plaintiffs”) are the heirs and successors in interest to Decedent, and allege that Defendants State of California Department of Transportation (“Caltrans”) and Travelers Indemnity Company (“Travelers” and together the “Defendants”) are responsible for Decedent’s and Plaintiffs’ injuries. Specifically, Plaintiffs allege that Caltrans permitted a dangerous condition to exist on the 134 freeway causing Decedent’s death. Plaintiffs allege that Decedent was traveling on the 134 freeway when his car drove over standing water, causing the vehicle to lose traction and impact a median area on the freeway and an energy attenuator. Additionally, Plaintiffs allege that Travelers improperly and without authorization disposed of Decedent’s vehicle.

Plaintiffs filed their initial Complaint on March 02, 2017, their First Amended Compliant on May 11, 2017, and the operative Second Amended Complaint (“SAC”) on October 25, 2018. The SAC alleges six causes of action sounding in (1) Wrongful Death – Vicarious Liability (against DOT), (2) Survival – Vicarious Liability (against DOT), (3) Wrongful Death – Dangerous Condition of Public Property (against DOT), (4) Survival – Dangerous Condition of Public Property (against DOT), (5) Promissory Estoppel (against Travelers), and (6) Negligent Undertaking (against Travelers).

PRESENTATION:

Plaintiffs filed the instant ex parte application on August 12, 2020, and Caltrans filed an opposition on August 12, 2020. A reply brief has been received by the Court.

RELIEF REQUESTED:

Plaintiffs move for an order compelling the depositions of Nevin Q. Sams and Elizabeth Austin, or, in the alternative, for an expedited hearing and briefing schedule regarding Caltrans' motion for protective order.

DISCUSSION:

Standard of Review

"A request for ex parte relief must be in writing and must include all of the following:

(1)  An application containing the case caption and stating the relief requested;

(2)  A declaration in support of the application making the factual showing required under rule 3.1202(c);

(3)  A declaration based on personal knowledge of the notice given under rule 3.1204;

(4)  A memorandum; and

(5)  A proposed order." (Cal. Rules of Court, Rule 3.1201.)

Pursuant to California Rules of Court, Rule 3.1202(c), "An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte."

Merits

Ex Parte – Plaintiffs contend that the testimony of two of Caltrans' expert witnesses, Nevin Q. Sams and Elizabeth Austin, provide the basis for Caltrans' motion for summary judgment. Plaintiffs argue they will suffer irreparable harm without ex parte relief because they seek to take the depositions of two expert witnesses but Caltrans has refused to produce the experts, and has filed a motion for protective order regarding this matter. Plaintiffs argue ex parte relief is necessary because Caltrans' summary judgment motion is set for hearing on December 10, 2020, with Plaintiffs' opposition due by November 30, 2020, but no date has been set for the protective order motion. Plaintiffs further argue Judge Letteau, the discovery referee, advised the parties of an availability date of September 28, 29, and 30, 2020 for the protective order motion, and that it will take at least another 30 days after Judge Letteau's recommendation to make its way to the Court.

Caltrans argues that Plaintiffs (1) are improperly attempting to circumvent the discovery referee by making its motion to compel declarations by ex parte application; (2) lack good cause because they delayed in filing the motion, as the summary judgment motion was served on November 22, 2019, eight months before the instant ex parte application; and (3) have sufficient time before the summary judgment motion hearing to file a regularly-noticed motion, as Plaintiffs had 119 days from August 13, 2020 to December 10, 2020 to conduct discovery; further, the trial date is set for July of 2021, so Plaintiffs may move to continue the summary judgment motion hearing date if necessary.

On review of the moving papers, the Court finds that Plaintiffs show good cause for relief on an ex parte basis. Discovery motions in the instant case are currently subject to review by discovery referee Judge Letteau, who has given availability regarding the protective order motion for September 28, 29, and 30, 2020. (Decl. Marchino, ¶ 6; Exh. B.) Assuming a hearing date of September 30, 2020, if Plaintiffs are successful in arguing for a denial of the protective order motion, they are left with 57 days to both propound discovery and write an opposition brief for the MSJ. Given that the trial date is set for July 06, 2021, the Court does not find that good cause exists at this time to analyze the motion to compel itself, but that Plaintiffs make a sufficient showing for an expedited protective order hearing.

Additionally, the court appointed a discovery referee in order to reduce the burden on the court of dealing with a juggernaut of a plethora of discovery motions in what should be a relatively simple and straightforward case, based upon the known claims and defenses. Nevertheless, the parties continue to bring disputes, whether valid or invalid, whether done for a legitimate purpose or no inherently necessary purpose, before this court, which again is burdened with these prolix and seemingly unending disputes. Accordingly, no further matters need be referred to the discovery referee, as it simply costs the parties who seem to be determined to dispute the simplest matters. The motion filed 4-30-2020 entitled Notice Of Motion And Motion To Compel Plaintiff Eryn Walsh’s Responses To Defendant Caltrans Request For Production Of Documents (Set Two) will be set at the same time as the matter referred to above. The court notes therein the same deficiency common to 85% of all such motions filed in this court. Specifically, CCP section 2031.310(b)(1) requires the motion to set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice.  In law and motion practice, factual evidence is supplied to the court by way of declarations.  Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence).  In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production. Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. The same issue identified in Calcor exists here.  The declaration of the moving party’s attorney does not include any specific facts showing good cause for the inspection of the documents sought in each of the requests for production at issue.  Counsel does not offer any sufficient specific facts regarding the documents sought, the requests for production, or the  disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact.  This does not facially appear to comply with the requirements of CCP section 2031.310(b)(1) as set forth in Calcor and Digital Music.

Accordingly, the Court will grant an expedited briefing and hearing schedule for the upcoming protective order hearing and the Motion To Compel Plaintiff Eryn Walsh’s Responses To Defendant Caltrans Request For Production Of Documents (Set Two) If Plaintiffs require more time beyond this relief, they may request a continuance regarding the summary judgment hearing.

---

RULING: below.

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiffs The Estate of Kevin Walsh, by and through Eryn Walsh as successor in interest and Eryn Walsh's Ex Parte Application to Compel Depositions came on regularly for hearing on August 20, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE EX PARTE APPLICATION IS GRANTED AS TO THE REQUEST FOR AN EXPEDITED BRIEFING AND HEARING SCHEDULE REGARDING THE PROTECTIVE ORDER MOTION AND THE OTHER MOTIONS MENTIONED HEREIN.

DATE: _______________ _______________________________

JUDGE

ADDITIONALLY, THE COURT APPENDS HERETO ITS INDICATED RULINGS ON THE RECOMMENDATIONS OF THE DISCOVERY REFEREE AND OBJECTIONS THERETO. UPON REQUEST, THESE MATTERS WILL ALSO BE SET FOR HEARING AT THE SAME TIME AS SELECTED FOR THE ABOVE MATTERS. (The court’s attention was brought to the pendency of the objections at a hearing on the morning of July 10. That same afternoon, the court and its staff learned of their exposure to Covid-19, and were in isolation for the following weeks.)

Discovery Referee Recommendations and report

Timely filings of objections/ responses, etc.

Court’s rulings

1/14/2020 Report and recommendations re: motion for order to Extend Time limit of deposition of Eryn Walsh, motion filed by The Travelers Indemnity Company (Defendant). Recommendations: Deny without prejudice. Fee: $1,300.00

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation as is, i.e., no re-allocation. Deny on merits without prejudice.

01/14/2020 Report and Recommendation of Discovery Referee re: Motion to Compel Eryn Walsh's Answers to Deposition Questions filed by Cal-Trans. Recommendations: Grant, Fee: $1,625.00

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation on merits. No re-allocation because referee’s lengthy analysis suggests the points were arguable.

01/14/20 Report and Recommendation of Discovery Referee re: Mtn for Order Compelling Further Responses to Form Interrogatories; Sanctions. Recommendations: Deny (a) and (b); grant (c) and (d), award sanctions against plaintiff and counsel.

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation on merits. No re-allocation because referee’s decision was split and sanctions were awarded.

01/14/20 Report and Recommendation of Discovery Referee re: Mtn for Order Compelling Further Responses to Special Interrogatories. Recommendations: Largely granted, including the obvious issue of verification, award sanctions against plaintiff and counsel.

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation on merits. Re-allocate ½ of $1,625.00 referee fee to plaintiff.

1/16/20 Report and Recommendation of Discovery Referee re: Travelers Indemnity Company's Motion for Order Compelling to Request for Production of Documents (set one); Sanctions Recommendation: Granted in part- no sanctions awarded and none requested in opposition.

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Decline adoption of Referee’s report as this court does not analyze the matter to reach the merits. Deny motion entirely, no sanctions, no reallocation. CCP section 2031.310(b)(1) requires the Plaintiff’s motion to set forth specific facts showing good cause justifying the production for inspection of any document described in the request for production or deposition notice.  In law and motion practice, factual evidence is supplied to the court by way of declarations.  Calcor Space Facility v. Superior Court (1997) 53 Cal. App. 4th 216, 224 (rejecting facts supporting the production of documents that were in a separate statement because the document was not verified and did not constitute evidence).  In Calcor, the Court of Appeal issued a writ of mandate issue directing the trial court to vacate its order compelling the defendant to produce records because the plaintiff had failed to provide specific facts showing good cause for their production.

Subsequently, in Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court identified the manner for establishing good cause under Calcor: “To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.

The same issue identified in Calcor exists here.  The declaration of the moving party’s attorney does not include any specific facts showing good cause for the inspection of the documents sought in each of the requests for production at issue.  Counsel does not offer any sufficient specific facts regarding the documents sought, the requests for production, or the  disputed facts that are of consequence in the action to explain how the discovery sought will tend to prove or disprove the disputed fact or lead to other evidence that will tend to prove or disprove the fact.  This does not comply with the requirements of CCP section 2031.310(b)(1) as set forth in Calcor and Digital Music.

01/14/2020 Report and recommendations of discovery referee re:SDT of MFT records filed by plaintiff. Granted in part – no sanctions

Objection to Recommendation by Discovery Referee Filed by The Travelers Indemnity Company (Defendant). Objection only to recommendation of no re-allocation of fee.

Sign recommendation on merits. No re-allocation as both sides achieved some of their objectives.

02/24/20 Report and recommendations

02/26/2020 Objection by Plaintiffs' re: Recommendations by Discovery Referee Filed

Overrule plaintiff’s objections entirely. In this court’s view, Judge Letteau’s recommendation was an exercise of the broadest judicial discretion under the circumstances. Court will sign order as extant.

03/04/2020 Recommendations by Discovery Referee re records of Fitzpatrick and Twist Granted in part, with conditions.

No objections found filed

Sign order as extant



Case Number: ****2502    Hearing Date: February 07, 2020    Dept: A

Estate of Walsh v CalTrans

Motion to Quash Subpoena

Calendar:

06

Case No.:

****2502

Hearing Date:

February 07, 2020

Action Filed:

March 02, 2017

Trial Date:

Not Set

MP:

Plaintiffs Eryn Walsh and Lauren Anne Marie Walsh

RP:

Defendant California Department of Transportation

ALLEGATIONS:

The instant action arises from the death of Decedent Kevin Walsh (“Decedent”) on or about March 06, 2016. Plaintiffs Eryn Walsh, and Lauren Anne Marie Walsh (“Plaintiffs”) are the heirs and successors in interest to Decedent, and allege that Defendants California Department of Transportation (“DOT”) and Travelers Indemnity Company (“Travelers” and together the “Defendants”) are responsible for Decedent’s and Plaintiffs’ injuries. Specifically, Plaintiffs allege that DOT permitted a dangerous condition to exist on the 134 freeway causing Decedent’s death. Plaintiffs allege that Decedent was traveling on the 134 freeway when his car drove over standing water, causing the vehicle to lose traction and impact a median area on the freeway and an energy attenuator. Additionally, Plaintiffs allege that Travelers improperly and without authorization disposed of Decedent’s vehicle.

Plaintiffs filed their initial Complaint on March 02, 2017, their First Amended Compliant on May 11, 2017, and the operative Second Amended Complaint (“SAC”) on October 25, 2018. The SAC alleges six causes of action sounding in (1) Wrongful Death – Vicarious Liability (against DOT), (2) Survival – Vicarious Liability (against DOT), (3) Wrongful Death – Dangerous Condition of Public Property (against DOT), (4) Survival – Dangerous Condition of Public Property (against DOT), (5) Promissory Estoppel (against Travelers), and (6) Negligent Undertaking (against Travelers).

PRESENTATION:

The instant motion was filed by Plaintiffs on November 22, 2019, with opposition filed by DOT on January 27, 2020. No reply has been received.

RELIEF REQUESTED:

Plaintiffs move to quash DOT’s subpoenas for business records from Rosaleen Fitzpatrick, MFT; and Nancy Twist, MFT.

DISCUSSION:

Standard of Review – Quash Subpoena – Code Civ. Proc. ;1987.1 grants the trial court authority to quash a subpoena when necessary. Code Civ. Proc. ;1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

Plaintiff moves to quash the subpoena on two bases: First, on the grounds that the requests violate Plaintiff’s right to privacy under the California Constitution; and Second, that the requests violate the patient-psychotherapist privilege under Evid. Code ;1010 et seq.

Right to Privacy – When privacy is at issue, the information sought by the moving party must have direct relevance to the litigation. This follows from the fact that privacy is accorded, in California, the status of an inalienable right, on a par with defending life and possessing property. California Constitution, Article I, Section I; Vinson v. Superior Court (1987) 43 Cal. 3d 833, 841. Accordingly, it is burden of the party seeking the constitutionally protected information to establish its direct relevance to the litigation, and mere speculation as to the possibility that some portion of the records might be relevant to some substantive issue does not suffice. Davis v. Superior Court of Kern County (1992) 7 Cal. App. 4th 1008, 1017. Direct relevance, moreover, will not automatically open the door to the information sought; there still remains a careful balancing of the compelling public need for discovery against the fundamental right of privacy. Mendez v. Superior Court (1988) 206 Cal. App. 3d 557, 567. As a result, the courts must balance the rights of civil litigants to discover relevant facts against the privacy interest of the person(s) subject to discovery. Vinson v. Superior Court (1987) 43 Cal. 3d 833, 842. Even where the balance weighs in favor of disclosure of private information, the scope of disclosure will be narrowly circumscribed; such an invasion of the right of privacy “must be drawn with narrow specificity” and is permitted only to the extent necessary for a fair resolution of the lawsuit. Britt v. Superior Court (1978) 125 Cal. App. 3d 844, 856, 859.

DOT contends that the direct relevance of the psychological records arises from Plaintiff’s damages in the loss of consortium claim, and the discovery conducted thus far indicating that Plaintiff and Decedent had engaged in marriage counseling prior to the incident, and that Plaintiff received grief counseling in connection with the incident. By placing Plaintiff’s relationship with Descendent in controversy by seeking loss of consortium damages, DOT argues that any and all information obtained from Plaintiff’s therapists is directly relevant to the ultimate calculation of Plaintiff’s damages. In making its argument, DOT seeks to distinguish Davis v. Superior Court (1992) 7 Cal. App. 4th 1008, and argues that the instant action is factually distinguishable on the grounds that the Davis plaintiff had not alleged a claim for emotional injuries, where here Plaintiff is alleging emotional damages and damages sounding in loss of consortium.

The Court considers that while DOT may have provided a colorable argument as to the direct relevance of the psychological records to the damages alleged by Plaintiff, the other facts of (1) the patient-psychotherapist privilege, (2) the potential availability of other sources of discovery that are not privileged, and (3) the limited nature of the non-economic damages sought by Plaintiff militate against the allowance of the discovery sought under the circumstances. As to the first consideration, the Court notes that Plaintiff, the holder of the privilege under Evid. Code ;1014 refuses to permit the disclosure of the communications by and between Plaintiff and their therapists. As to the second consideration, DOT has not indicated what other steps have been taken to discover the information sought about Plaintiff’s prior relationship with Decedent and grief over the loss of Decedent other than seek discovery from Plaintiff and seek the records from Plaintiff’s therapists. Specifically, the Court notes that there is nothing before the Court to indicate that other non-privileged and non-private sourced of information have not been sought to inform DOT about the relationship and grief of Plaintiff prior to resorting to the instant information sought (i.e., other people with knowledge of their relationship, social media accounts, electronic correspondence between Plaintiff and Decedent, et cetera). As to the third consideration, the Court notes that this is not the typical case where psychological records are discovered, as Plaintiff is not claiming any extraordinary non-economic injuries associated with the injury, nor claiming any psychological condition such as PTSD, clinical depression, or similar maladies, but only generalized emotional distress and loss.

Finally, the Court is also persuaded that the broad scope of the discovery sought by DOT indicates that there are no specific injuries that DOT is seeking to test by means of limited discovery into confidential and private information. Rather, the subpoenas appear to be more akin to a random exploration of the most private portions of Plaintiff’s life. Under these conditions, the Court finds that even if DOT has demonstrated the direct relevance of the information sought to the matters being litigated, the balance the rights between DOT’s right to discover relevant facts and Plaintiff’s privacy interest weight much more strongly in favor of Plaintiff’s right to privacy.

Accordingly, the Court will grant the motion to quash.

---

RULING: GRANT

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiffs Eryn Walsh and Lauren Anne Marie Walsh’s Motion to Quash came on regularly for hearing on February 07, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION IS GRANTED.

DATE: _______________ _______________________________

JUDGE



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