This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:11:16 (UTC).

TRACEY CALLAHAN MOLNAR VS THE GUARDIAN LIFE INSURANCE CO OF

Case Summary

On 10/10/2017 TRACEY CALLAHAN MOLNAR filed a Personal Injury - Other Personal Injury lawsuit against THE GUARDIAN LIFE INSURANCE CO OF. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are WILLIAM D. STEWART and JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8848

  • Filing Date:

    10/10/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

WILLIAM D. STEWART

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

MOLNAR TRACEY CALLAHAN

Defendants and Respondents

FPI MANAGEMENT INC.

OTIS ELEVATOR COMPANY

AMTECH ELEVATOR SERVICES

PACIFIC COAST ELEVATOR CORPORATION

DOES 1 TO 100

GUARDIAN LIFE INSURANCE COMPANY OF AMERIC

PACIFIC COAST ELEVATOR CORPORATION DBA AMTECH ELEVATOR SERVICES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

NGUYEN MINH T. ESQ.

NGUYEN MINH TRI ESQ.

Defendant and Respondent Attorneys

LONG JAYME C. ESQ.

STANLEY JAMES G. ESQ.

LONG JAYME C ESQ.

STANLEY JAMES G ESQ.

VASQUEZ OLIVER JOHN ESQ.

 

Court Documents

Order

6/20/2019: Order

Legacy Document

9/21/2018: Legacy Document

Declaration

12/6/2018: Declaration

Motion for Summary Judgment

12/6/2018: Motion for Summary Judgment

Reply

2/20/2019: Reply

Minute Order

2/22/2019: Minute Order

Motion in Limine

2/27/2019: Motion in Limine

Declaration

2/27/2019: Declaration

Declaration

2/27/2019: Declaration

Notice of Lodging

2/28/2019: Notice of Lodging

Opposition

2/28/2019: Opposition

Opposition

2/28/2019: Opposition

Minute Order

3/18/2019: Minute Order

NOTICE OF FIRM NAME CHANGE

1/12/2018: NOTICE OF FIRM NAME CHANGE

DEFENDANT PACIFIC COAST ELEVATOR CORPORATION DBA AMTECH ELEVATOR SERVICES' ANSWER TO COMPLAINT FOR DAMAGES OF PLAINTIFF TRACEY CALLAHAN MOLNAR

12/12/2017: DEFENDANT PACIFIC COAST ELEVATOR CORPORATION DBA AMTECH ELEVATOR SERVICES' ANSWER TO COMPLAINT FOR DAMAGES OF PLAINTIFF TRACEY CALLAHAN MOLNAR

PROOF OF SERVICE SUMMONS & COMPLAINT

11/20/2017: PROOF OF SERVICE SUMMONS & COMPLAINT

PROOF OF SERVICE SUMMONS & COMPLAINT

10/23/2017: PROOF OF SERVICE SUMMONS & COMPLAINT

SUMMONS

10/10/2017: SUMMONS

91 More Documents Available

 

Docket Entries

  • 03/16/2020
  • Hearingat 08:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Non-Jury Trial

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  • 03/13/2020
  • Hearingat 10:30 AM in Department A at 300 East Olive, Burbank, CA 91502; Final Status Conference

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  • 08/13/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 07/30/2019
  • Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 07/16/2019
  • DocketOrder ([Proposed] Order Regarding Defendant Pacific Coast Elevator Corporation Dba Amtech Elevator Services Objections To Plaintiffs Evidence In Opposition To Defendant Pacific Coast Elevator Corporation Dba Amtech Elevator Services Motion For Summary Judgm); Filed by Pacific Coast Elevator Corporation (Defendant)

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  • 06/20/2019
  • DocketOrder (Regarding Defendant Pacific Coast Elevator Corporation Dba Amtech Elevator Services Objection To Evidence); Filed by Pacific Coast Elevator Corporation (Defendant)

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  • 06/20/2019
  • DocketOrder (Proposed Order Regarding Defendant Pacific Coast Elevator Corporation Dba Amtech Elevator Services Objections To Fpi Management, Inc.s Evidence In Opposition To Defendant Pacific Coast Elevator Corporation Dba Amtech Elevator Services Motion For Summ); Filed by Pacific Coast Elevator Corporation (Defendant); Amtech Elevator Services (Defendant)

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  • 06/20/2019
  • DocketOrder ([Proposed] Order denying Defendant's Motion for Summary Judgment); Filed by Tracey Callahan Molnar (Plaintiff)

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  • 06/14/2019
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Status Conference - Held

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  • 06/14/2019
  • Docketat 08:30 AM in Department A, William D. Stewart, Presiding; Hearing on Motion for Summary Judgment - Held - Motion Denied

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125 More Docket Entries
  • 11/09/2017
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 10/23/2017
  • DocketProof-Service/Summons; Filed by Tracey Callahan Molnar (Plaintiff)

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  • 10/23/2017
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 10/23/2017
  • DocketPROOF OF SERVICE SUMMONS & COMPLAINT

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  • 10/23/2017
  • DocketProof-Service/Summons; Filed by Tracey Callahan Molnar (Plaintiff)

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  • 10/10/2017
  • DocketComplaint; Filed by Tracey Callahan Molnar (Plaintiff)

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  • 10/10/2017
  • DocketCIVIL DEPOSIT

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  • 10/10/2017
  • Docket1. NEGLIGENCE (COMMON CARRIER LIABILITY CIVIL CODE 2100, ET SEQ. ETC

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  • 10/10/2017
  • DocketPLAINTIFF'S DEMAND FOR JURY TRIAL AND NOTICE OF POSTING OF JURY FEES

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  • 10/10/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC678848    Hearing Date: August 14, 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.

Molnar v The Guardian Life Insurance Co.

Motion for Leave to Amend Complaint

Calendar:

04

Case No.:

BC678848

Hearing Date:

August 14, 2020

Action Filed:

October 10, 2017

Trial Date:

October 13, 2020

MP:

Plaintiff Tracey Callahan Molnar

RP:

Defendants The Guardian Life Insurance Company of America; FPI Management, Inc.

ALLEGATIONS:

The instant action arises from a trip and fall resulting in personal injuries sustained by Plaintiff Tracey Callahan Molnar (“Plaintiff”) on December 28, 2016, and allegedly caused by the failure of Defendants Pacific Coast Elevator Corporation d/b/a Amtech Elevator Services (“Amtech”); The Guardian Life Insurance Company of America (“Guardian”); FPI Management, Inc. (“FPI”); and TruAmerica Multifamily, LLC ("TruAmerica" and collectively the “Defendants”) to adequately maintain an elevator.

Plaintiff filed her Complaint on October 10, 2017, alleging three (3) causes of action sounding in (1) Negligence (Common Carrier Liability pursuant to Civ. Code §2100 et seq.), (2) Negligence (Premises Liability), and (3) Negligence (Maintenance & Repair). Guardian and FPI filed their Answer on November 15, 2017, and Amtech filed its Answer on December 12, 2017.

On November 15, 2017, Guardian and FPI filed a Cross-Complaint as against Amtech for three causes of action sounding in (1) Equitable Indemnity, (2) Contribution, and (3) Declaratory Relief. On December 19, 2019, Plaintiff amended its Complaint to add TruAmerica Multifamily, LLC ("TruAmerica") as a defendant, and TruAmerica filed its Answer on February 13, 2020.

Also on February 13, 2020, TruAmerica filed a Cross-Complaint as against Amtech for three causes of action sounding in (1) Equitable Indemnity, (2) Contribution, and (3) Declaratory Relief, and Amtech filed its Answer on March 13, 2020.

PRESENTATION:

On July 20, 2020, Plaintiff filed the instant motion, Defendants filed an opposition on August 3, 2020, and Plaintiff filed a reply on August 7, 2020.

RELIEF REQUESTED:

Plaintiff moves for leave to amend the complaint to (1) add allegations for punitive damages; (2) replace various portions of the complaint to reflect the removal of Schindler Elevator Corporation and Otis Elevator and add TruAmerica; and (3) add TruAmerica as a named defendant and remove Otis Elevator Company as a named defendant in the case caption.

DISCUSSION:

Standard of Review

Code of Civil Procedure § 473(a)(1) provides that the trial court may, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” In exercising this discretion, trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings. (Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530.) Courts may grant a motion to amend as late as the time of trial and even postpone the trial if necessary for the furtherance of justice. (Honig v. Financial Corp. of America (1992) 6 Cal. App. 4th 960, 965.) But despite the general policy of liberality in allowing amendments, it is proper and within the discretion of the trial court to deny leave to file a proposed amendment unless the proponent of the amendment can show the amendment will not be prejudicial to other parties in the action and the delay in bringing the amendment was excusable. (Melican v. Regents of University of California (2007) 151 Cal. App. 4th 168, 175.)

In considering whether the facts in the proposed complaint are sufficient to state a claim for punitive damages: “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted).)

Merits

On review of the proposed amendment to the complaint, the Court finds Plaintiff fails to show facts sufficient to support an inference of conscious disregard of probable consequences on the part of Guardian's failure to modernize the elevators.

Plaintiff argues Guardian had actual knowledge, as well as imputed knowledge through its agent, FPI, of the elevators' alleged unsafe condition prior to Plaintiff's accident. Plaintiff argues FPI was on notice that Elevator No. 1 was experiencing misalignment problems prior to Plaintiff's injury (Decl. Gonong, Exh. 4, Reyes Depo., 37:15-38:12), and that another occupant did trip due to this misalignment and spoke with FPI about the issue. (Decl. Gonong, Exh. 3, Nevarez Depo., 58:5-59:15; 42:16-44:12.) Plaintiff contends that Guardian received notice from Amtech, its elevator maintenance contractor, through FPI, (Decl. Gonong, Exh. 1, Rose Depo., 41:6-42:13), on the elevators' age-related modernization needs in 2011 (Decl. Gonong, Exh. 5, Park Depo., 34:15-24, 37:17-24) and failed to modernize the elevators in response (Decl. Gonong, Exh. 2, Marino-Eiler Depo., 14:11-15:1). Plaintiff further contends that on August 22, 2014, Amtech advised Guardian through FPI to install an additional "low oil safety circuit" to avoid "serious passenger injury" (Decl. Gonong, Exh. 5, Park Depo. 39:12-44:6), but Guardian failed to move forward with this installation (Decl. Gonong, Exh. 5, Park Depo., 45:18-25). Finally, Plaintiff contends Guardian received another modernization proposal from Amtech, dated September 16, 2014 (Decl. Gonong, Exh. 5, Park Depo., 46:17-52:8) through FPI, with Guardian acknowledging receipt of such proposal from TruAmerica (Decl. Gonong, Exh. 1, Rose Depo. 54:2-55:1, 58:19-24). Plaintiff argues Guardian placed profit above safety by maintaining the elevators at a cost of $10,000 (Decl. Gonong, Exh. 2, Marino-Eiler Depo., 38:6-40:21) and approving a $30,000 "elevator life jacket" in lieu of a $100,000 modernization (Decl. Gonong, Exh. 6, Martinez Depo., 41:11-42:22).

FPI and Guardian ("Guardian Defendants") first contend that Plaintiff's motion should be denied because it is a tardy motion for reconsideration pursuant to CCP § 1008(a), because it presents identical amendments and no new facts compared to its prior motion for leave to amend that was denied by the Court on February 14, 2020. (Oppo., 7:24:28.) Guardian Defendants then argue that Guardian was not aware or informed of any probable dangerous consequences and could not have willfully and deliberately failed to avoid those consequences. (Oppo., 10:7-9, 11:19-22.) Guardian Defendants dispute that the 2011 proposal from Amtech put Guardian on notice of safety concerns regarding the elevators, arguing the proposal was rather a "budget letter" or "capital planner" and lacked any safety concerns. (Exh. 1, Park Depo., 119:10-121:8; Exh. 2) Guardian Defendants also argue that FPI's Kristen Rose never made recommendation to Guardian for modernization and testified that the elevators did not need upgrades or renovation. (Exh. 3, Rose Depo., 50:21-51:6.) Guardian Defendants further argue the occupant Plaintiff described as having tripped in the elevator did not report his misalignment observations or tripping. (Decl. Gogong, Exh. 3, 59:16-23.) Guardian Defendants further argue Plaintiff fails to show the failure to modernize the elevators caused misalignment, and that Guardian was not informed by Amtech or anyone else that the elevator was having frequent breakdowns or security risks. (Exh. 4; Exh. 5, Amaya Depo., 39:12-40:21; 40:22-25.) Finally, Guardian Defendants argue Plaintiff fails to show a causal connection between the "low oil safety circuit" and Plaintiff's injury.

"When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." (Code Civ. Proc., § 1008, subd. (a).)

The Court finds that the instant motion for leave to amend is properly brought and is not a motion for reconsideration pursuant to CCP § 1008(a) as it alleges sufficient new evidence; further, the Court noted in its February 14, 2020 minute order denying the prior motion for leave to amend that the denial was without prejudice to a future motion, particularly given the pending deposition of Kristen Rose and PMK's.

The Court finds that Plaintiff has failed to sufficiently show evidence supporting punitive damage allegations against Guardian. Plaintiff only shows that both FPI and Guardian were on notice that alignment issues existed regarding the elevators but fails to show notice of safety concerns rising to the level of punitive damage claims. As the evidence shows, the single occupant that tripped on the elevator never notified anyone of the incident (Decl. Gonong, Exh. 3, Nevarez Depo., 67:16-23.), and the evidence cited for the "low oil safety circuit" argument does not support the contention that Deponent Park warned installation of such circuit was to avoid "serious passenger injury" or that Guardian received notice of potential injury in any other manner. And so, Plaintiff's argument for Guardian's awareness of probable dangerous consequences rests entirely on its evidence that the elevator's typical dependable life of 20-25 years compared to the elevator's actual age of 40 years (Decl. Gonong, Park Depo., 50:2-15.); because the evidence also shows Amtech, Guardian's maintenance contractor, expressed no safety concerns and in fact presented a 3-10 year plan for the elevator (Decl. Gonong, Exh. 5, Park Depo., 34:15-24), this evidence is not enough to support punitive claims.

The Court finds that Plaintiff's proposed amendments regarding the deletion of certain dismissed defendants, Schindler Elevator Coporation and Otis Elevator, and the addition of another new defendant, TruAmerica, other than the punitive damage claims, are proper.

Accordingly, the Court will deny the proposed amendment seeking to delete Paragraphs 2-11 and replace them with the new punitive allegations, consisting of proposed paragraphs 2-28, as well as the proposed amendment seeking to add "Punitive Damages" to the Prayer for Damages section. The Court should grant the proposed amendments: (1) seeking to delete Paragraphs 12-17 to reflect the addition of TruAmerica regarding the proposed paragraphs 29-38; (2) seeking to delete the references to "Schindler Elevator Corporation" from page 6, line 7 and replace it with the proposed "PACIFIC COAST ELEVATOR CORPORATION DBA AMTECH ELEVATOR SERVICES and DOES 76 through 100."; (3) seeking to delete Paragraphs 22-25 and adding proposed paragraphs 39-42 to reflect the dismissal of Otis Elevator from the third cause of action; and (4) adding TruAmerica as a defendant and removing Otis Elevator as a defendant in the caption.

However, the document proposed by plaintiff is tortuous and confusing. A proposed amended complaint setting forth the claims must be submitted before the court can authorize the same. The matter will be continued, except for the ruling concerning adding punitive damages, which will stand.

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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

Plaintiff Tracey Callahan Molnar's Motion for Leave to Amend came on regularly for hearing on August 14, 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 FOR LEAVE TO AMEND TO ADD PUNITIVE CLAIMS IS DENIED; LEAVE TO AMEND THE COMPLAINT IS CONTINUED.

DATE: _______________ _______________________________

JUDGE

Case Number: BC678848    Hearing Date: July 07, 2020    Dept: A

The Superior Court is re-opening under “Here for You | Safe for You” Conditions and Orders

Counsel are urged to use remote appearance technology such as Court Call or LACourtConnect )(when it becomes available on August 3 for Branch Civil)

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.

Molnar v Guardian Life Ins.

Motion to Enforce Compliance with Court Order

Calendar:

04

Case No.:

BC678848

Hearing Date:

July 7, 2020

Action Filed:

October 10, 2017

Trial Date:

October 13, 2020

MP:

Defendant Pacific Coast Elevator Corporation d/b/a Amtech Elevator Services

RP:

Plaintiff Tracey Callahan Molnar

ALLEGATIONS:

The instant action arises from a trip and fall resulting in personal injuries sustained by Plaintiff Tracey Callahan Molnar (“Plaintiff”) on December 28, 2016, and allegedly caused by the failure of Defendants Pacific Coast Elevator Corporation d/b/a Amtech Elevator Services (“Amtech”); The Guardian Life Insurance Company of America (“Guardian”); and FPI Management, Inc. (“FPI” and collectively the “Defendants”) to adequately maintain an elevator.

Plaintiff filed her Complaint on October 10, 2017, alleging three (3) causes of action sounding in (1) Negligence (Common Carrier Liability pursuant to Civ. Code §2100 et seq.), (2) Negligence (Premises Liability), and (3) Negligence (Maintenance & Repair). Guardian and FPI filed their Answer on November 15, 2017, and Amtech filed its Answer on December 12, 2017. On November 15, 2017, Guardian and FPI filed a Cross-Complaint as against Amtech for three causes of action sounding in (1) Equitable Indemnity, (2) Contribution, and (3) Declaratory Relief. On December 19, 2019, Plaintiff amended its Complaint to add TruAmerica Multifamily, LLC ("TruAmerica") as a defendant, and TruAmerica filed its Answer on February 13, 2020. Also on February 13, 2020, TruAmerica filed a Cross-Complaint as against Amtech for three causes of action sounding in (1) Equitable Indemnity, (2) Contribution, and (3) Declaratory Relief, and Amtech filed its Answer on March 13, 2020.

PRESENTATION:

On February 7, 2020, the Court granted Amtech's motion to compel Plaintiff's attendance of an independent medical examination.

Amtech filed the instant motion to enforce compliance on February 28, 2020. Plaintiff filed an opposition on March 16, 2020, and Amtech filed a reply on March 19, 2020. The original hearing date for the motion was on March 27, 2020.

On March 20, 2020, in response to the COVID-19 pandemic and pursuant to the March 17, 2020, Administrative Order of the Presiding Judge, the Court continued the instant motion to May 1, 2020. Counsel for Cross-Defendant Amtech was informed telephonically and directed to give notice.

On April 2, 2020, and in response to the continuing pandemic conditions, the Court continued the matter again, setting the motion for hearing on June 1, 2020. Counsel for Moving party was informed and directed to give notice, and a copy of the minute order was mailed to counsel.

On May 5, 2020, with the continuing pandemic conditions, the Court continued the matter again, setting the motion for hearing on July 7, 2020. Counsel for Moving Party was informed and directed to give notice, and a copy of the minute order was mailed to counsel.

RELIEF REQUESTED:

At the filing of this instant motion, Amtech moved for an order compelling Plaintiff to submit an independent medical examination at the offices of Doctor Rose on May 7, 2020, at 3:30 p.m., in compliance with the Court's February 7, 2020 Order.

On June 26, 2020, Attorney Giraldo, counsel for Amtech, submitted a declaration requesting an updated medical examination appointment at the offices of Doctor Rose on July 16, 2020, at 8:30 a.m..

DISCUSSION:

Merits

On February 7, 2020, the Court granted Amtech's motion to compel Plaintiff's attendance of an independent medical examination.

Neither party denies that Plaintiff and her counsel, Attorney Nguyen, were present at Dr. Rose's office at the specified appointment time of 10:30 a.m. for the Independent Medical Examination. (Mot., 4:21-23; Oppo., 5:18-19.) Both parties also agree that around 10:40 a.m., one of Dr. Rose's staff members informed Plaintiff that she would begin a medical history inquiry, which Nguyen declined. (Mot, 4:24-28; Oppo., 5:21-25.) Further, neither party denies that at around 3-4 minutes before 11:00 a.m., Nguyen emailed Amtech, stating that Plaintiff would only wait until 11:00 a.m., or she would leave; by 11:00 a.m., 30 minutes after the appointment time of 10:30 a.m., Dr. Rose had not seen to Plaintiff, and around that time, Plaintiff left the office. (Mot., 5:10-18; Oppo., 5:26-28, 6:1-3.)

Defendant argues that Plaintiff's counsel violated the court order by refusing to allow Dr. Rose's staff member to begin the evaluation process to ascertain Plaintiff's medical history. Defendant contends that Plaintiff's counsel violated CCP § 2032.510(b) by disrupting the IME, which is only allowed if the examiner undertakes unauthorized diagnostic tests and procedures pursuant to CCP § 2032.510(d). Plaintiff argues that its objections and response state that (1) Plaintiff would wait only 30 minutes to be examined, and (2) "That Plaintiff will be allowed, although not required, to give an oral history of the incident and her injures. She will not relate medical history not related to the areas of injuries claimed in this lawsuit." (Oppo., 5:14-17; 6:15-19.) Plaintiff argues that the staff member who attempted to take Plaintiff's medical history was a legal assistant without medical training and experience, and her attempted "interview" did not count as an "examination". (Oppo., 6:5-6.) Plaintiff further argues that Defendant failed to inform Dr. Rose and his staff that Plaintiff was not required to provide a medical history, as Plaintiff's objections and response stated: "That Plaintiff will be allowed, although not required, to give an oral history of the incident and her injuries. She will not relate medical history not related to the areas of injuries claimed in this lawsuit." (Oppo., 15-18.) Plaintiff additionally seeks sanctions in the amount of $3,000 for Attorney Nguyen for his time, and $60.84 for Plaintiff Molnar for her mileage in driving to the medical center. (8:3-6.)

"[An attorney for the examinee] may monitor the examination, but shall not participate in or disrupt it." (Code Civ. Proc., § 2032.510, subd. (b).) "If in the judgment of the [attorney for the examinee] the examiner becomes abusive to the examinee or undertakes to engage in unauthorized diagnostic tests and procedures, the [attorney] may suspend it to enable the party being examined or producing the examinee to make a motion for a protective order." (Code Civ. Proc., § 2032.510, subd. (b).)

The Court finds that Plaintiff failed to obey the Court's order given on February 7, 2020, granting Defendant's motion to compel Plaintiff's attendance for an IME, disrupting the examination without cause pursuant to CCP § 2032.510(d). Plaintiff shows no evidence that Dr. Rose's staff was a legal assistant who lacked medical training and experience, nor that such lack of qualification would justify Plaintiff's counsel's refusal. Plaintiff's argument that Plaintiff was not required to give an oral history is similarly unavailing, as it is undisputed between the parties that Plaintiff's counsel refused to allow Plaintiff to answer Dr. Rose's staff member, and Plaintiff's objection and response states "[t]hat Plaintiff will be allowed, although not required, to give an oral history. . . ." In this case, Plaintiff's counsel is the party who did not allow Plaintiff to respond.

No sanctions have been sought for the instant motion, and sanctions will be denied as to Plaintiff's opposition request.

Accordingly, the Court will grant the motion to enforce compliance regarding a medical examination appointment at the offices of Doctor Rose on July 16, 2020, at 8:30 a.m. The court considers the appointment timely if commenced within one hour of the scheduled time.

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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

Defendant Amtech's Motion to Enforce Compliance came on regularly for hearing on July 7, 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 TO ENFORCE COMPLIANCE IS GRANTED.

DATE: _______________ _______________________________

JUDGE

Case Number: BC678848    Hearing Date: February 14, 2020    Dept: A

Molnar v Guardian Life Ins. Co.

Motion for leave to amend complaint

Calendar:

07

Case No.:

BC678848

Hearing Date:

February 14, 2020

Action Filed:

October 10, 2017

Trial Date:

March 16, 2020

Motion to Compel Depositions – Taken off calendar by moving party.

MP:

Plaintiff Tracey Callahan Molnar

RP:

N/A

Motion for Leave to Amend

MP:

Plaintiff Tracey Callahan Molnar

RP:

Defendants The Guardian Life Insurance Company of America; and FPI Management, Inc.

ALLEGATIONS:

The instant action arises from a trip and fall resulting in personal injuries sustained by Plaintiff Tracey Callahan Molnar (“Plaintiff”) on December 28, 2016, and allegedly caused by the failure of Defendants Pacific Coast Elevator Corporation d/b/a Amtech Elevator Services (“Amtech”); The Guardian Life Insurance Company of America (“Guardian”); and FPI Management, Inc. (“FPI” and collectively the “Defendants”) to adequately maintain an elevator.

Plaintiff filed her Complaint on October 10, 2017, alleging three (3) causes of action sounding in (1) Negligence (Common Carrier Liability pursuant to Civ. Code §2100 et seq.), (2) Negligence (Premises Liability), and (3) Negligence (Maintenance & Repair). Guardian and FPI filed their Answer on November 15, 2017, and Amtech filed its Answer on December 12, 2017. On November 15, 2017, Guardian and FPI filed a Cross-Complaint as against Amtech for causes of action sounding in (1) Equitable Indemnity, (2) Contribution, and (3) Declaratory Relief.

PRESENTATION:

Plaintiff filed the instant motion to compel depositions and motion for leave to file an amended complaint on November 18, 2019, and January 21, 2020, respectively. Guardian and FPI opposed the motion for leave to amend on February 03, 2020, and Plaintiff filed a reply brief on February 05, 2020.

RELIEF REQUESTED:

Plaintiff moves to compel the depositions of Kristen Rose and the PMKs for FPI and Guardian; together with $1,560.00 in sanctions.

Plaintiff moves for leave to amend the complaint in order to add allegations for punitive damages.

DISCUSSION:

Omitted as to deposition motion, because it was taken off calendar by the moving party.

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Standard of ReviewLeave to AmendCode of Civil Procedure §473(a)(1) provides that the trial court may, “in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading . . . .” In exercising this discretion, trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings. Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530. Courts may grant a motion to amend as late as the time of trial and even postpone the trial if necessary to the furtherance of justice. Honig v. Financial Corp. of America (1992) 6 Cal. App. 4th 960, 965. But despite the general policy of liberality in allowing amendments, it is proper and within the discretion of the trial court to deny leave to file a proposed amendment unless the proponent of the amendment can show the amendment will not be prejudicial to other parties in the action and the delay in bringing the amendment was excusable. Melican v. Regents of University of California (2007) 151 Cal. App. 4th 168, 175.

On review of the moving papers, the Court considers that the standard of review, as applied to the facts of the instant case, effectively requires the Court to consider whether the facts as alleged in the proposed complaint, would be sufficient to state a claim for punitive damages. “Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” Pfeifer v. John Crane, Inc. (2013) 220 Cal. App. 4th 1270, 1299 (internal quotations omitted). Stated more plainly, the question before the Court is whether Guardian’s failure to replace its elevators with modern elevators constitutes sufficient factual allegations to support an inference that Guardian knew that a resident tripping on a mis-aligned elevator was the probable result of their failure to replace the elevators.

On review of the proposed amendment to the complaint, the Court does not find that the proposed amendment states facts sufficient to support an inference of conscious disregard of a probable consequence of Guardian’s failure to replace the elevators. Specifically, the Court cannot identify any facts alleged in the pleadings that would indicate that the issue of misalignment was known to Guardian prior to the incident, and that the replacement of the elevators would not be subject to misalignment.

The Court notes, however, that Plaintiff has not yet deposed the individuals described above on matters that may ultimately justify an amendment of the complaint, and so while the Court will deny the instant motion for leave to amend, the denial will be without prejudice to a subsequent motion.

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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

Plaintiff Tracey Callahan Molnar’s Motion to Compel Depositions and Motion for Leave to File an Amended Complaint came on regularly for hearing on February 14, 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 FOR LEAVE TO FILE AN AMENDED COMPLAINT IS DENIED WITHOUT PREJUDICE.

DATE: _______________ _______________________________

JUDGE

Case Number: BC678848    Hearing Date: January 10, 2020    Dept: A

Molnar v The Guardian Life Ins. Co.

Discovery Motions

Calendar:

12

Case No.:

BC678848

Hearing Date:

January 10, 2020

Action Filed:

October 10, 2017

Trial Date:

March 16, 2020

Compel Depositions

MP:

Plaintiff Tracey Callahan Molnar

RP:

N/A

Compel Further RFP

MP:

Plaintiff Tracey Callahan Molnar

RP:

Defendant Pacific Coast Elevator Corporation d/b/a Amtech Elevator Services

ALLEGATIONS:

The instant action arises from a trip and fall resulting in personal injuries sustained by Plaintiff Tracey Callahan Molnar (“Plaintiff”) on December 28, 2016, and allegedly caused by the failure of Defendants Pacific Coast Elevator Corporation d/b/a Amtech Elevator Services (“Amtech”); The Guardian Life Insurance Company of America (“Guardian”); and FPI Management, Inc. (“FPI” and collectively the “Defendants”) to adequately maintain an elevator.

Plaintiff filed her Complaint on October 10, 2017, alleging three (3) causes of action sounding in (1) Negligence (Common Carrier Liability pursuant to Civ. Code §2100 et seq.), (2) Negligence (Premises Liability), and (3) Negligence (Maintenance & Repair). Guardian and FPI filed their Answer on November 15, 2017, and Amtech filed its Answer on December 12, 2017. On November 15, 2017, Guardian and FPI filed a Cross-Complaint as against Amtech for causes of action sounding in (1) Equitable Indemnity, (2) Contribution, and (3) Declaratory Relief.

PRESENTATION:

Plaintiff filed the motion to compel Amtech’s person most qualified on November 18, 2019, no opposition was filed, and the Court’s December 13, 2019, Minute Order reflects that the motion was withdrawn. As such, the inclusion on the Court’s January 10, 2020, calendar appears to have been in error.

Plaintiff filed the motion to compel further responses to RFPs on September 20, 2019. Amtech opposed the motion on November 01, 2019, and Plaintiff filed a reply brief on November 07, 2019. The Court heard arguments on December 06, 2019, and continued the matter to December 06, 2019, and requested additional briefings on an issue decided on appeal and later at the Supreme Court by the Chief Justice. Amtech submitted the supplemental briefing on November 25, 2019, and Plaintiff submitted further briefing on November 26, 2019. The parties then stipulated to a continuance to December 13, 2019. At the December 13, 2019, hearing, the Court noted that it had inadvertently placed the matter off-calendar and continued the motion to January 10, 2020.

RELIEF REQUESTED:

Plaintiff moves to compel further responses to Requests for Production, Set Four, consisting of Requests for Production Nos. 34-42.

DISCUSSION:

Standard of Review – Code of Civil Procedure §2031.310 provides that a party may bring a motion to compel further to Requests for Production where the responding party provides inadequate, incomplete, or evasive responses, or the objections are too general or without merit. The propounding party must submit a declaration under Code of Civ. Proc. §2016.040 stating facts demonstrating a good faith and reasonable effort to informally resolve all issues raised by the motion. Code of Civ. Proc. §2031.310(b)(2). A motion to compel further responses to Requests for Production must further specifically identify facts showing good cause for the discovery. Code of Civ. Proc. §2031.310(b)(1). The motion must be brought within 45 days of service of the responses or supplemental responses. Code of Civ. Proc. §2031.310(c). Sanctions are mandatory against the party or attorney who unsuccessfully makes or opposes a motion to compel further unless the party acted with substantial justification or the circumstances make imposition of sanctions unjust. Code of Civ. Proc. §2031.310(h).

In the Court’s initial analysis of the instant motion, the Court determined that the items requested were overbroad, but at oral arguments the parties represented that they understood the matter to be limited to certain sub rosa videos taken during an investigation conducted by Amtech from the time of Plaintiff’s injury to the present. The Court requested further briefing on the issue of sub rosa evidence in the context of a case that the Court recalled was decided by the Chief Justice while sitting as an appellate judge, and then ruled on again while sitting on the California Supreme Court. Neither party’s supplemental brief identifies the case recalled by the Court. Amtech, however, represents to the Court that the most recent relevant case is Suezaki v. Superior Court (1962) 58 Ca1. 2d 166. Amtech briefly refers to Coito v. Superior Court (2012) 54 Cal. 4th 480, but Plaintiff relies more substantively on Coito to argue that this is a case where Amtech is not entitled to an absolute privilege, but only a qualified privilege, which Plaintiff contends she has established a right to discover the information under the instant circumstances. However, the parties generally concur that the discovery at issue is subject to qualified attorney work product privilege under Suezaki and Coito.

Plaintiff’s supplemental brief represents to the Court that Amtech produced five (5) sub rosa photographs at a deposition on November 25, 2019. Further, Amtech filed a second supplemental brief on December 12, 2019, representing to the Court that it has served Plaintiff with the sub rosa video on December 12, 2019. As such, the only remaining discovery at issue are any outstanding photographs, reports, invoices, notes, and correspondence requested by Plaintiff, and not produced by Amtech. Such documents, if they exist, may or may not be discoverable, based on the circumstances involved in their creation, intended use, and potential for prejudicing Plaintiff’s ability to prepare for trial. However, the Court cannot make blanket determinations in a vacuum of information about the documents. Therefore, the Court will order the creation of a privilege log for the documents Plaintiff has requested. A preferable solution is for the parties to engage a discovery referee.

Sanctions – As the motion and opposition have both been made with substantial justification, the Court will not issue sanctions for or against either party.

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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

Plaintiff Tracey Callahan Molnar’s Motion to Compel Further Responses to Requests for Production came on regularly for hearing on January 10, 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 IN PART, WITH AMTECH ORDERED TO PRODUCE A PRIVILEGE LOG WITHIN 20 DAYS.

PLAINTIFF IS GRANTED LEAVE TO REFILE THE INSTANT MOTION FOLLOWING AMTECH’S PRODUCTION OF A PRIVILEGE LOG.

SANCTIONS ARE DENIED.

DATE: _______________ _______________________________

JUDGE