This case was last updated from Los Angeles County Superior Courts on 08/21/2020 at 00:53:18 (UTC).

VIRGINIA SOLORIO CASTILLO VS SHUN FAT SUPERMARKET INC

Case Summary

On 03/20/2018 VIRGINIA SOLORIO CASTILLO filed a Personal Injury - Other Personal Injury lawsuit against SHUN FAT SUPERMARKET INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, KRISTIN S. ESCALANTE and MARK A. BORENSTEIN. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8466

  • Filing Date:

    03/20/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GEORGINA T. RIZK

KRISTIN S. ESCALANTE

MARK A. BORENSTEIN

 

Party Details

Plaintiff and Petitioner

CASTILLO VIRGINIA SOLORIO

Defendants and Respondents

SHUN FAT SUPERMARKET INC

DOES 1 TO 100

SHUN FAT SUPERMARKET INC. DBA WESTMINISTER SUPER STORE

SHUN FAT SUPERMARKET INC. DBA WESTMINSTER SUPER STORE DBA WESTMINSTER SUPER STORE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

GHERMEZIAN RAYMOND ESQ.

Defendant and Respondent Attorneys

WARRINER RHETT P. ESQ.

WARRINER RHETT PHILLIP ESQ.

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT)) OF 08/19/2020

8/19/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT)) OF 08/19/2020

Order - Dismissal

8/19/2020: Order - Dismissal

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S TO ATTEND DEFENDANT'S MEDICAL EXAM AND REQUEST FOR MONETARY SANCTIONS

2/18/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PLAINTIFF'S TO ATTEND DEFENDANT'S MEDICAL EXAM AND REQUEST FOR MONETARY SANCTIONS

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (TIMOTHY J. MCCOY (CSR #4745)

1/31/2020: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore - ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE (TIMOTHY J. MCCOY (CSR #4745)

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR HEARING ON MOTION TO COMPEL IME

1/28/2020: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR HEARING ON MOTION TO COMPEL IME

Declaration - DECLARATION OF RAYMOND GHERMEZIAN IN OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR LEAVE

1/16/2020: Declaration - DECLARATION OF RAYMOND GHERMEZIAN IN OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR LEAVE

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR LEAVE TO SUPPLEMENT OR AU...)

1/17/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR LEAVE TO SUPPLEMENT OR AU...)

Ex Parte Application - EX PARTE APPLICATION FOR LEAVE TO SUPPLEMENT OR AUGMENT DEFENDANT'S DESIGNATION OF EXPERT WITNESSES

1/17/2020: Ex Parte Application - EX PARTE APPLICATION FOR LEAVE TO SUPPLEMENT OR AUGMENT DEFENDANT'S DESIGNATION OF EXPERT WITNESSES

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT SHU...)

11/7/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT SHU...)

Opposition - OPPOSITION OPPOSITION TO DEFENDANT'S IMPROPER AND UNTIMELY OBJECTION TO THE DECLARATION OF BRAD P. AVRIT, P.E. FILED IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY

10/25/2019: Opposition - OPPOSITION OPPOSITION TO DEFENDANT'S IMPROPER AND UNTIMELY OBJECTION TO THE DECLARATION OF BRAD P. AVRIT, P.E. FILED IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY

Reply - REPLY REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

10/11/2019: Reply - REPLY REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Reply - REPLY REPLY TO PLAINTIFF'S SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

10/11/2019: Reply - REPLY REPLY TO PLAINTIFF'S SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

10/18/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Declaration - DECLARATION DECLARATION OF BRAD P. AVRIT

10/4/2019: Declaration - DECLARATION DECLARATION OF BRAD P. AVRIT

Separate Statement

5/31/2019: Separate Statement

Motion re: - MOTION RE: NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF GINGER S. MARCOS; DECLARATION OF BINH AI HOANG; DECLAR

5/31/2019: Motion re: - MOTION RE: NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; DECLARATION OF GINGER S. MARCOS; DECLARATION OF BINH AI HOANG; DECLAR

Substitution of Attorney

3/15/2019: Substitution of Attorney

PROOF OF SERVICE BY MAIL

4/4/2018: PROOF OF SERVICE BY MAIL

52 More Documents Available

 

Docket Entries

  • 08/19/2020
  • Docketat 08:30 AM in Department 29, Kristin S. Escalante, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Held

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  • 08/19/2020
  • DocketCertificate of Mailing for ((Order to Show Cause Re: Dismissal (Settlement)) of 08/19/2020); Filed by Clerk

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  • 08/19/2020
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by Clerk

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  • 08/19/2020
  • DocketOrder - Dismissal; Filed by Clerk

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  • 06/01/2020
  • Docketat 08:30 AM in Department 29, Kristin S. Escalante, Presiding; Non-Jury Trial - Not Held - Advanced and Vacated

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  • 05/13/2020
  • Docketat 10:00 AM in Department 29, Kristin S. Escalante, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 04/02/2020
  • Docketat 08:30 AM in Department 29, Kristin S. Escalante, Presiding; Court Order

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  • 04/02/2020
  • DocketMinute Order ( (Court Order Re: Notice of Settlement of Entire Case;)); Filed by Clerk

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  • 04/02/2020
  • DocketNotice of Settlement; Filed by Virginia Solorio Castillo (Plaintiff)

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  • 04/02/2020
  • DocketCertificate of Mailing for ((Court Order Re: Notice of Settlement of Entire Case;) of 04/02/2020); Filed by Clerk

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79 More Docket Entries
  • 03/15/2019
  • DocketSubstitution of Attorney; Filed by Shun Fat Supermarket Inc., dba Westminster Super Store (Defendant)

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  • 04/25/2018
  • DocketAnswer; Filed by Shun Fat Supermarket Inc., dba Westminster Super Store (Defendant)

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  • 04/25/2018
  • DocketANSWER-PERSONAL INJURY PROPERTY DAMAGE, WRONGFUL DEATH

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  • 04/04/2018
  • DocketPROOF OF SERVICE BY MAIL

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  • 04/04/2018
  • DocketProof-Service/Summons; Filed by Virginia Solorio Castillo (Plaintiff)

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  • 04/04/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Virginia Solorio Castillo (Plaintiff)

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  • 04/04/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 03/20/2018
  • DocketSUMMONS

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  • 03/20/2018
  • DocketComplaint; Filed by Virginia Solorio Castillo (Plaintiff)

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  • 03/20/2018
  • DocketCOMPLAINT FOR DAMAGES AND PERSONAL INJURIES BASED ON 1. NEGLIGENCE 2. PREMISES LIABILITY

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Tentative Rulings

Case Number: BC698466    Hearing Date: March 13, 2020    Dept: 29

Castillo   v.  Shun Fat Supermarket, Inc.

COURT ORDER

On the Court's own motion, the Hearing on Motion to Compel Plaintiff's Attendance At IME and for Monetary Sanctions Against Plaintiff and His Counsel; Filed by Defendant Shun Fat Supermarket, Inc., dba Westminster Super Store scheduled for 03/13/2020 is CONTINUED to 03/16/2020 at 01:30 PM in Department 29 at Spring Street Courthouse.

Case Number: BC698466    Hearing Date: January 31, 2020    Dept: 29

Castillo v. Shun Fat Supermarket, Inc.

Defendant’s Motion for Leave to Supplement or Augment Defendant’s Designation of Expert Witnesses is GRANTED. The Court concludes that the Supplemental Designation was served in a timely manner as it was served within 20 days of the service of Plaintiff’s corrected designation. Alternatively, the Court allows the untimely submission under Code of Civil Procedure section 2034.720. Finally, and alternatively, the Court exercises its discretion under section 2034.610 to allow Defendant to augment the original designation. Defendant is ordered to make the newly designated experts available for deposition prior to the expert discovery cut off date.

In this action, Plaintiff alleges she was injured when she slipped and fell at Defendant’s supermarket. Defendant seeks to supplement or augment its designation of expert witnesses.

PROCEDURAL HISTORY

Defendant served a demand for exchange of expert information on 9/5/2019. The date for the exchange was 10/3/2019, based on the then-existing trial date of 11/22/2019. The trial was subsequently continued to 2/25/2020. Defendant timely served its designation. Plaintiff contends that her counsel timely served Plaintiff’s designation, but Defendant’s counsel contends that he did not receive it.

The issue regarding the designation of experts first came to the Court’s intention in connection with Defendant’s summary judgment motion. In opposition to the motion, Plaintiff filed a declaration of an expert. On the date of the hearing, Defendant filed a written objection to the declaration on the ground that the time for expert designations had passed and Plaintiff had not designated any experts. At the hearing, Plaintiff objected that the objection to the expert’s declaration was untimely. At that hearing, Plaintiff did not argue that Plaintiff had, in fact, served an expert designation. The Court continued the hearing on the summary judgment motion and encouraged Plaintiff to bring a motion for leave to provide a late designation.

In advance of the continued hearing, Plaintiff filed a response to the objection to the expert’s declaration, stating for the first time that Plaintiff’s counsel had actually timely served Plaintiff’s designation of experts. In response, Defendant’s counsel again reiterated that he had never received the designation and also noted that the designation was defective because it did not comply with the requirements of Code of Civil Procedure section 2034.260(c)(4).

The continued summary judgment hearing was held on 11/7/2019. Plaintiff’s counsel made no attempt to correct the clearly deficient designation prior to the hearing. To provide Plaintiff every opportunity to designate the witness on which Plaintiff’s opposition relied, the Court took a break in the summary judgment hearing and gave the Plaintiff time to serve an amended, code compliant designation. Plaintiff’s counsel served the corrected designation, and the Court resumed the hearing.

Defendant served a supplemental designation 18 days later, on 11/25/2019, identifying experts to testify on subjects that were not included in Defendant’s initial designation and for which Plaintiff had designated experts. On 12/16/2019, Plaintiff objected to the supplemental designation on the ground that it was untimely. Defendant now seeks an order deeming the supplemental designation timely filed, or alternatively for leave to serve an untimely supplemental designation or to augment its original designation to include the experts on its supplemental designation.

DISCUSSION

The Court grants the motion on three alternative grounds. First, the Court concludes that the supplemental designation was timely because it was served within 20 days of the service of Plaintiff’s code-compliant designation. Code Civ. Proc. § 2034.280(a). The Court also concludes that the experts were properly the subject of a supplemental designation in that Defendant did not anticipate needing an expert on the subjects at issue until it received Plaintiff’s designations.

Second, even if the supplemental designation had been untimely, the Court would grant leave to augment the party’s expert witness list pursuant to section 2034.610. Under that section, “on motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to . . . [a]ugment that party's expert witness list” to add subsequently retained experts, so long as the motion is made at a sufficient time in advance of the time limit for completion of discovery to permit the deposition of any expert to whom the motion relates to be taken within that time limit.” In order to prevail on the motion, the party must show either that the party could not have been expected in the exercise of reasonable diligence to call that expert or offer additional testimony at the time of the original exchange; or failed to include the expert or the additional testimony through “mistake, inadvertence, surprise or excusable neglect.”

Here, each of these elements is met. Defendant engaged in a timely exchange of expert witness information on the date of the original exchange. This motion is brought sufficiently in advance of the expert discovery cut off to allow for the depositions of the newly designated experts. Defendant has shown that it could not have expected in the exercise of reasonable diligence to call the subsequently designated experts at the time of the original exchange because Defendant only seeks to call the witnesses to counter the testimony of Plaintiff’s experts. To the extent that Defendant should have anticipated the need for experts on these subjects at the time of the original designation, the Court finds that the failure to designate such experts at that time was the result of mistake, inadvertence or excusable neglect of counsel.

Third, and alternatively, even if the supplemental designation were untimely, and if Defendant were required to meet the standards in section 2034.720 regarding timely submissions, the Court would permit the tardy submission of the supplemental designation under that section.

That section provides, in full:

“The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied:

“(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

“(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.

“(c) The court has determined that the moving party did all of the following:

“(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

“(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

“(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

“(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.”

The Court has taken into account the extent to which the opposing party has relied on the alleged absence of the supplemental list and has determined that Plaintiff will not be prejudiced on the merits. The Court further finds that the Defendant failed to submit the supplemental information 20 days after Plaintiff allegedly served the original, defective designation due to surprise, inadvertence and excusable neglect. The Court expressly finds that Defendant’s counsel did not receive the original designation until Plaintiff submitted it in response to Defendant’s objection to the declaration of Brad Avritt, which opposition was filed on 10/25/2019. The Court finds that upon learning of the designation, Defendant promptly thereafter served a copy of the proposed expert witness information on Plaintiff and promptly sought leave in this motion to submit the information. The Court also finds that defense counsel has not engaged in gamesmanship or deliberate conduct to delay designation.

Defendant is ordered to make the witnesses available for deposition immediately, before the cut off date for expert depositions. Plaintiff has not sought leave to designate any additional expert witnesses and has not sought to elicit additional opinions from those previously designated. The trial has already been continued in part because of the issues raised in this motion. The Court finds that an award of costs and litigation expenses to Plaintiff would not be just here.

Finally, the Court admonishes Plaintiff’s counsel that the ongoing issues with his firm’s service of documents needs to be addressed immediately. The proof of service attached to the opposition papers states that the document was “deposited with the Fedex Next Day Air Mail service on that same day [January 22, 2020] on that same day with proper postage thereon” but the evidence submitted with the reply shows that only the printing label was printed on that date, and that it was not delivered to the Fed Ex service on that date.

Moving party is ordered to give notice.

Case Number: BC698466    Hearing Date: January 28, 2020    Dept: 29

………………… HEARING CONTINUED ON THE COURT'S OWN MOTION TO 01/31/2019 AT 1:30 P.M. ………….

Castillo v. Shun Fat Supermarket, Inc.

Defendant’s Motion for Leave to Supplement or Augment Defendant’s Designation of Expert Witnesses is GRANTED. The Court concludes that the Supplemental Designation was served in a timely manner as it was served within 20 days of the service of Plaintiff’s corrected designation. Alternatively, the Court allows the untimely submission under Code of Civil Procedure section 2034.720. Finally, and alternatively, the Court exercises its discretion under section 2034.610 to allow Defendant to augment the original designation. Defendant is ordered to make the newly designated experts available for deposition prior to the expert discovery cut off date.

In this action, Plaintiff alleges she was injured when she slipped and fell at Defendant’s supermarket. Defendant seeks to supplement or augment its designation of expert witnesses.

PROCEDURAL HISTORY

Defendant served a demand for exchange of expert information on 9/5/2019. The date for the exchange was 10/3/2019, based on the then-existing trial date of 11/22/2019. The trial was subsequently continued to 2/25/2020. Defendant timely served its designation. Plaintiff contends that her counsel timely served Plaintiff’s designation, but Defendant’s counsel contends that he did not receive it.

The issue regarding the designation of experts first came to the Court’s intention in connection with Defendant’s summary judgment motion. In opposition to the motion, Plaintiff filed a declaration of an expert. On the date of the hearing, Defendant filed a written objection to the declaration on the ground that the time for expert designations had passed and Plaintiff had not designated any experts. At the hearing, Plaintiff objected that the objection to the expert’s declaration was untimely. At that hearing, Plaintiff did not argue that Plaintiff had, in fact, served an expert designation. The Court continued the hearing on the summary judgment motion and encouraged Plaintiff to bring a motion for leave to provide a late designation.

In advance of the continued hearing, Plaintiff filed a response to the objection to the expert’s declaration, stating for the first time that Plaintiff’s counsel had actually timely served Plaintiff’s designation of experts. In response, Defendant’s counsel again reiterated that he had never received the designation and also noted that the designation was defective because it did not comply with the requirements of Code of Civil Procedure section 2034.260(c)(4).

The continued summary judgment hearing was held on 11/7/2019. Plaintiff’s counsel made no attempt to correct the clearly deficient designation prior to the hearing. To provide Plaintiff every opportunity to designate the witness on which Plaintiff’s opposition relied, the Court took a break in the summary judgment hearing and gave the Plaintiff time to serve an amended, code compliant designation. Plaintiff’s counsel served the corrected designation, and the Court resumed the hearing.

Defendant served a supplemental designation 18 days later, on 11/25/2019, identifying experts to testify on subjects that were not included in Defendant’s initial designation and for which Plaintiff had designated experts. On 12/16/2019, Plaintiff objected to the supplemental designation on the ground that it was untimely. Defendant now seeks an order deeming the supplemental designation timely filed, or alternatively for leave to serve an untimely supplemental designation or to augment its original designation to include the experts on its supplemental designation.

DISCUSSION

The Court grants the motion on three alternative grounds. First, the Court concludes that the supplemental designation was timely because it was served within 20 days of the service of Plaintiff’s code-compliant designation. Code Civ. Proc. § 2034.280(a). The Court also concludes that the experts were properly the subject of a supplemental designation in that Defendant did not anticipate needing an expert on the subjects at issue until it received Plaintiff’s designations.

Second, even if the supplemental designation had been untimely, the Court would grant leave to augment the party’s expert witness list pursuant to section 2034.610. Under that section, “on motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to . . . [a]ugment that party's expert witness list” to add subsequently retained experts, so long as the motion is made at a sufficient time in advance of the time limit for completion of discovery to permit the deposition of any expert to whom the motion relates to be taken within that time limit.” In order to prevail on the motion, the party must show either that the party could not have been expected in the exercise of reasonable diligence to call that expert or offer additional testimony at the time of the original exchange; or failed to include the expert or the additional testimony through “mistake, inadvertence, surprise or excusable neglect.”

Here, each of these elements is met. Defendant engaged in a timely exchange of expert witness information on the date of the original exchange. This motion is brought sufficiently in advance of the expert discovery cut off to allow for the depositions of the newly designated experts. Defendant has shown that it could not have expected in the exercise of reasonable diligence to call the subsequently designated experts at the time of the original exchange because Defendant only seeks to call the witnesses to counter the testimony of Plaintiff’s experts. To the extent that Defendant should have anticipated the need for experts on these subjects at the time of the original designation, the Court finds that the failure to designate such experts at that time was the result of mistake, inadvertence or excusable neglect of counsel.

Third, and alternatively, even if the supplemental designation were untimely, and if Defendant were required to meet the standards in section 2034.720 regarding timely submissions, the Court would permit the tardy submission of the supplemental designation under that section.

That section provides, in full:

“The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied:

“(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

“(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.

“(c) The court has determined that the moving party did all of the following:

“(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

“(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

“(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

“(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.”

The Court has taken into account the extent to which the opposing party has relied on the alleged absence of the supplemental list and has determined that Plaintiff will not be prejudiced on the merits. The Court further finds that the Defendant failed to submit the supplemental information 20 days after Plaintiff allegedly served the original, defective designation due to surprise, inadvertence and excusable neglect, given that Defendant’s counsel did not receive the document. The Court finds that upon learning of the designation, Defendant promptly thereafter served a copy of the proposed expert witness information on Plaintiff and promptly sought leave in this motion to submit the information. The Court also finds that defense counsel has not engaged in gamesmanship or deliberate conduct to delay designation.

Defendant is ordered to make the witnesses available for deposition immediately, before the cut off date for expert depositions. Plaintiff has not sought leave to designate any additional expert witnesses and has not sought to elicit additional opinions from those previously designated. The Court does not see the need for a continuance of the trial and finds that an award of costs and litigation expenses to Plaintiff would not be just here.

Moving party is ordered to give notice.

Case Number: BC698466    Hearing Date: November 07, 2019    Dept: 2

Castillo v. Shun Fat Supermarket, Inc.

THIS TENTATIVE RULING DEPENDS ON THE ADMISSIBILITY OF THE DECLARATION OF MR. AVRIT. THE COURT HAS NOT REACHED A TENTATIVE DECISION ON WHETHER HIS DECLARATION IS ADMISSIBLE. THE PARTIES ARE ORDERED TO BE PREPARED TO ADDRESS WHETHER MR. AVRIT WAS PROPERLY DESIGNATED. See Perry v. Bakewell Hawthorne LLC (2017) 2 Cal. 5th 536, 542 (“When the time for exchanging expert witness information has expired before a summary judgment is made, and a party objects to a declaration from an undisclosed expert, the admissibility of the expert’s opinion can and must be determined before the summary judgment motion is resolved.”) THE COURT HAS NOT REACHED A TENTATIVE DECISION AS TO THE RESULT IN THE EVENT THE OBJECTION TO THE AVRIT DECLARATION IS SUSTAINED.

I. EVIDENCE

This action arises from a slip and fall that occurred at Defendant’s supermarket. An unknown customer was checking out in register number 2 with her cart located in the checkout aisle at 12:55:33. Liquid dripped from this customer cart onto the floor. The liquid is visible in a surveillance video at 12:56:21. Plaintiff slipped and fell from this liquid at 12:58:41.

Defendant contends that the liquid had been hidden from view by the customer’s shopping cart until 12:58:27, when the customer took the cart away. Defendant contends that the cashier exited her area at 12:58:18, before the cart was taken away, and claims that the cashier did not see the liquid that caused the slip and fall prior to the accident. Defendant presents evidence that a sweep had been performed in the area 14 minutes prior to Plaintiff’s fall.

Plaintiff presented deposition testimony of the cashier, Ms. Hoang. She testified that in June 2017 she had a duty and responsibility to mop up any water that she saw on the floor. “Wherever I may be, if I see any types of water on the floor, then I have to go get a mop to mop it up.” She was told to do that by her supervisor. She was not told by her supervisors that she should barricade or otherwise block up the spill before she could clean it up.

On the day in question, she noticed that there was water on the floor in the “back” of the checkout stand after she collected the money from the customer in question. She saw water within her aisle number 2. She was still standing behind the counter checking customers out on her cash register when she saw the spill. After she saw the spill, she left the register to get a mop. She knew that the water had come from boxes that were in the cart from the customer in question. She was aware that water would drip from boxes containing green onions because there was ice in the box. She knew this as she was checking the customer out.

She did not call anyone for assistance to clean up the spill. She did not ask the customer to leave the box with her to prevent further leaks. Before she left her station to get a mop, she did not look around her station to see if there were other spots with spilled water.

She didn’t barricade the station before she went to get the mop because there were no customers there. She forgot to close her check stand. There was no sign put up to indicate that the floor was wet. As she came back from getting the mop, she saw Plaintiff on the floor. She understood that the woman had fallen because there was water on the ground that had come from the boxes of produce.

Plaintiff also presented a declaration of Brad P. Avrit, a safety engineering expert. According to Mr. Avrit, industry standards required that when a person in Ms. Hoang’s position learns that an item is leaking onto the floor, measures must to be taken immediately to address the leakage to ensure that no further leakage occurs and an inspection of the area of the leaking item is to be undertaken immediately to determine whether any additional leakage has occurred. He opined that Ms. Hoang’s failure to take any measures to avoid further leakage and/or to inspect the area for additional leakage was a substantial factor in causing Ms. Castillo’s injury.

Mr. Avrit also opined that, in order to meet industry standards, Ms. Hoang should have guarded her checkout aisle and called for assistance in addressing the known foreign substance on the floor and to inspect the area for additional spills from the boxes that she knew to be leaking.

Mr. Avrit further opined that Defendant’s staff knew of the unsafe condition and failed to warn or guard the subject area. According to Avrit, Defendant’s staff fell below the standard of care. Avrit also opined that the lack of proper policies, procedures and training in this area fell below the standard of care. Avrit also opined that Defendant contributed to the unsafe condition by installing a floor that is extremely dangerous and slippery when wet.

II. RULINGS ON OBJECTIONS

A. Plaintiff’s Objections to Evidence Submitted by Defendant in Support of its Motion for Summary Judgment

1. Sustained as to the word “relevant.” Otherwise overruled.

2. Sustained.

3. Overruled.

5. Not material to the Court’s ruling and therefore the Court declined to rule on the objection.

B. Defendant’s Objections to Declaration of Brad Avrit

On the initial date set for the summary judgment hearing, Defendant filed objection to the Declaration of Brad P. Avrit on the ground that the time for the designation of expert witnesses had passed and Defendant’s counsel had not received any designation from Plaintiff. The Court continued the hearing to allow Plaintiff time to respond to the objection, and if necessary, to seek leave to file an amended expert disclosure or to seek any other relief that is necessary. Plaintiff subsequently filed a response to the objection, claiming (1) a timely designation of Mr. Avrit had been made; and (2) the objection should be overruled as untimely. In response, Defendant filed a reply to the response, arguing that the designation of Brad Avrit is improper on its face and renewing the objection.

1. Timeliness of the Objection

Under Cal Rules of Court 3.1354, written objections to evidence “must be served and filed at the same time as the objecting party’s opposition or reply papers are served and filed.” However, this does not preclude a party from making evidentiary objections at the hearing. Cal Code Civil Procedure § 437c(b)(5). Objections may be made at the summary judgment hearing. Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531–532. Moreover, the Court has the inherent authority to consider late filed papers. Here, the Court obviated any possible prejudice to Plaintiff from the late-filed objection by continuing the summary judgment hearing to give Plaintiff a chance to respond. The Court thus considers the objections to Avrit’s declaration. No further argument will be heard on the timeliness of the objection.

2. Merits of the Objection

“When the time for exchanging expert witness information has expired before a summary judgment is made, and a party objects to a declaration from an undisclosed expert, the admissibility of the expert’s opinion can and must be determined before the summary judgment motion is resolved.” Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal. 5th 536, 543 (emphasis added). “Under section 2034.610, the Court may permit amendment of an expert witness disclosure, if section 2034.620’s conditions stated are met. Similarly an untimely disclosure may be allowed under section 2034.710 if the statutory conditions are satisfied. (§ 2034.720). But these remedies are available to a party before summary judgment, and should be invoked as soon as the party discovers the need to submit a declaration by a previously undisclosed expert.” Id. at 541-42. “Unless the Court grants relief, the declaration contains inadmissible evidence, excludable upon objection if the failure to disclose was unreasonable.” Id.

Here, in response to the Objection, Plaintiff provided proof that on October 3, 2019, Plaintiff’s counsel’s office served, by regular mail, a document entitled “Plaintiff’s Designation of Expert Witnesses.” Among the witnesses listed on the document are “Brad Avrit, P.E. and/or Zack Moore, P.E.” The document includes a brief narrative statement of the general substance of the testimony of “Brad Avrit, P.E. and/or Zack Moore, P.E.” Later in the declaration, Plaintiff states that “Zach Moore, P.E. . . . will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the testimony described above, including their expert opinion and the bases for those opinion.” No similar statement is made regarding Brad Avrit.

Defendant argues that the designation is defective under Civil Code section 2034.260, subd. (c)(4). Under that section, the declaration signed by counsel must contain a “representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and its basis, that the expert is expected to give at trial.” As noted, the declaration does not contain such a representation as to Avrit.

It is unclear to the Court whether the failure to include Avrit in that representation was merely a correctable clerical error, or whether Avrit is not actually being designated as a testifying expert. The Court invites Plaintiff’s counsel to address these issues at the hearing.  Counsel are ordered to be prepared to discuss the applicability of  Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal. 5th 536, 543  

III. COURT’S TENTATIVE ANALYSIS IN THE EVENT THAT THE OBECTION TO THE AVRIT DECLARATION IS OVERRULED.

Premises liability is a form of negligence which involves the duty of a premises owner to exercise ordinary care in the management of the premises to avoid exposing others to an unreasonable risk of harm. Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619. To impose liability, the Plaintiff must show that the landowner had actual or constructive notice of the dangerous condition, “or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it." Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal. App. 2d 733, 743; Perez v. Ow (1962) 200 Cal. App. 2d 559, 561. Establishing the owners’ actual or constructive notice of the dangerous condition is “key,” as the owners are not insurers of the Plaintiff’s personal safety. Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1206.

Here, Plaintiff’s evidence is sufficient to raise a triable issue of fact as to whether Defendant’s staff member, Ms. Hoang, knew or should have known of the dangerous condition and whether she acted with due care in responding to the incident. The evidence establishes that she knew there was water leaking from the boxes and that she left her station to get a mop without inspecting to determine the extent of the spill, without barricading the area and without erecting any warning signs. Avrit’s declaration is sufficient to raise a triable issue as to whether this was a breach of the duty of due care. Avrit’s declaration is also sufficient to raise a triable issue as to whether Defendant was negligent in failing to establish adequate policies, procedures and training for how to deal with leaking items and other spills.

Defendant presents a declaration from Ms. Hoang in which she states that she did not see the spill that caused plaintiff’s fall until after plaintiff had fallen. But in her deposition, she admits that she knew that there was water on the floor that came from the leaking boxes of the customer she had been checking out before she left her station to go get a mop. There is at least a triable issue of fact as to whether her knowledge was sufficient to put Defendant on notice of the dangerous condition before the fall.

Defendant’s motion is based on factual arguments that turn on its own interpretation of the evidence. Plaintiff has raised a genuine issue as to these facts. Summary judgment must be DENIED.  AGAIN, NOTE THAT THIS TENTATIVE ASSUMES THAT THE OBJECTION WILL BE OVERRULED.  THE COURT HAS NOT REACHED A TENTATIVE DECISION ON THAT THRESHHOLD ISSUE.

Moving party is ordered to give notice.