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Ruling
Tony Areolla, et al. vs Julio Perezparra, et al.
Aug 22, 2024 |23CV-00248
23CV-00248 Tony Areolla, et al. v. Julio Perezparra, et al.Motion by Defendants Julio Cesar Perezparra. Lilia Perez, and Ramiro O. Luna to CompelPlaintiff Toney Areolla to Serve Responses to Requests for Production Set One, and forMoneary Sanctions of $1,060 pursuant to Code of Cvil Procedure § 2023.030.The unopposed Motion by Defendants Julio Cesar Perezparra. Lilia Perez, and Ramiro O.Luna to Compel Plaintiff Toney Areolla to Serve Responses to Requests for ProcutionSet One, and for Moneary Sanctions of $1,060 pursuant to Code of Cvil Procedure §2023.030 is GRANTED. Plaintiff Toney Areolla is ordered to serve, by September 26,2024, verified Code Compliant Responses to Requests for Production Set One, withoutobjections, all responsive documents, and sanctions in the amount of $1,060.Motion by Defendants Julio Cesar Perezparra. Lilia Perez, and Ramiro O. Luna to CompelPlaintiff Toney Areolla to Serve Responses to Form Interrogatories, Set One, SpecialInterrogatories, Set One, and for Moneary Sanctions of $1,060 pursuant to Code of CvilProcedure § 2023.030.The unopposed Motion by Defendants Julio Cesar Perezparra. Lilia Perez, and Ramiro O.Luna to Compel Plaintiff Toney Areolla to Serve Responses to Form Interrogatories, SetOne, Special Interrogatories, Set One, and for Moneary Sanctions of $1,060 pursuant toCode of Cvil Procedure § 2023.030 is GRANTED. Plaintiff Toney Areolla is ordered toserve, by September 26, 2024, verified Code Compliant Responses to FormInterrogatories, Set One and Special Interrogatories, Set One without objections, andsanctions in the amount of $1,060.
Ruling
BERNARD HAWKINS VS ALLIED UNIVERSAL SECURITY SERVICES UNIVERSAL PROTECTION SERVICE LPP, ET AL.
Aug 20, 2024 |24CMCV00821
Case Number: 24CMCV00821 Hearing Date: August 20, 2024 Dept: A 24CMCV00821 Bernard Hawkins v. Allied Universal Security Services, et. al Tuesday, August 20, 2024, at 8:30 a.m. [TENTATIVE] ORDER TAKING OFF CALENDAR HEARING ON DEMURRER TO THE COMPLAINT Defendant, Universal Protection Service, LP, filed its demurrer to Plaintiffs complaint for motor vehicle negligence on July 15, 2024. Plaintiff filed a first amended complaint on August 8, 2024. The amended pleading supersedes the original complaint rendering the demurrer moot. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1035 ["An amended pleading supplants (i.e., entirely replaces) the prior pleading and it, standing alone, contains all the plaintiff's allegations and requests for relief.].) Accordingly, the hearing on demurrer to the original complaint is taken off calendar.
Ruling
Lawrence Moody vs. Sutter Medical Center Sacramento
Aug 19, 2024 |Unlimited Civil (Medical Malpractice) |34-2019-00269477-CU-MM-GDS
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO34-2019-00269477-CU-MM-GDS: Lawrence Moody vs. Sutter Medical Center Sacramento 08/20/2024 Hearing on Motion to Compel Further Discovery Responses to Plaintiff's Request for Admission (Sutter Medical Foundation) in Department 53Tentative RulingNOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing Page 1 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO34-2019-00269477-CU-MM-GDS: Lawrence Moody vs. Sutter Medical Center Sacramento 08/20/2024 Hearing on Motion to Compel Further Discovery Responses to Plaintiff's Request for Admission (Sutter Medical Foundation) in Department 53or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided.TENTATIVE RULING:Plaintiff Anne Downs’ motion to compel Defendant Sutter Medical Foundation’s furtherresponses to requests for admission (set one) is granted as set forth below.In this medical malpractice action, Plaintiffs allege that negligent care and treatment wasprovided to Plaintiff Lawrence Moody.At issue on the instant motion are Defendant’s responses to Plaintiff’s requests for admissionnos. 1-4. Plaintiff claims that Defendant’s July 24, 2024, supplemental responses containinappropriate objections.“On receipt of a response to requests for admission, the party requesting admissions may movefor an order compelling a further response if that party deems that either or both of the followingapply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to aparticular request is without merit or too general.” (CCP § 2033.290(a).)No. 1The motion is granted. This request asked Defendant to admit that paralysis was a substantialfactor in reducing Lawrence Moody’s life expectancy. Defendant’s supplemental responseobjected to the request of the basis that the request calls for an expert opinion, that the requestwas overly broad, and that the request failed to mention what Plaintiff “believed was LawrenceMoody’s life expectancy.” Subject to the objections Defendant responded that it conducted areasonable inquiry and the information known or readily obtainable is insufficient to allow it toadmit or deny.First, the expert opinion objection is improper and must be removed. The Code specificallyallows for requests for admission that call for the admission of “opinion relating to fact, orapplication of law to fact.” (CCP § 2033.010 [emphasis added]) A party may properly requestthat another litigant admit the genuineness of specified documents, or the truth of specifiedmatters of fact, opinion relating to fact, or application of law to fact. A request for admissionmay relate to a matter that is in controversy between the parties. (Garcia v. Hyster Co. (1994) 28Cal.App.4th 724, 735.) Further, “the fact that the request is for the admission of a controversialmatter, or on involving complex facts, or calls for an opinion is of no moment.” (Cembrook v.Superior Court (1961) 56 Cal.2d 423, 430.) It must be noted that it was Defendant’s burden tojustify its objections. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255 [citingCoy v. Superior Court (1962) 58 Cal.2d 220-221].) Defendant has failed to do so. Instead, Page 2 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO34-2019-00269477-CU-MM-GDS: Lawrence Moody vs. Sutter Medical Center Sacramento 08/20/2024 Hearing on Motion to Compel Further Discovery Responses to Plaintiff's Request for Admission (Sutter Medical Foundation) in Department 53Defendant’s opposition simply argued that an expert will ultimately need to be able to testify asto causation and that expert witness disclosure has yet to occur, and apparently that it interposedobjections to avoid waiver. None of these points addresses the propriety of an expert opinionobjection which as noted, is not proper. Specifically, the Code permits requests relating toopinions and the fact that expert witness disclosure has yet to occur does not in any mannersupport an objection. The Court does note that Defendant’s response cited County of LosAngeles v. Superior Court (1990) 222 Cal.App.3d 647. Defendant did not discuss this case in itsopposition and in any event that case dealt with designating expert witnesses and had nothing todo with requests for admission. The expert opinion objection is overruled.In addition, the overly broad objection is also overruled and must be removed from theresponses. Defendant made no attempt to justify the objection. The same is true with theobjection based on the failure of the request to mention what Plaintiff “believed was LawrenceMoody’s life expectancy.” This is not a proper objection and Defendant does not address it inthe opposition.As a result, a further response must be provided which removes all objections.No. 2The motion is granted. This request asked Defendant to admit that Defendant’s negligence was asubstantial factor in reducing Lawrence Moody’s life expectancy. Defendant’s supplementalresponse objected to the request of the basis that the request calls for an expert opinion, that therequest was overly broad, and that the request failed to mention what Plaintiff “believed wasLawrence Moody’s life expectancy.” Subject to the objections Defendant denied the request.The objections are overruled for the same reasons discussed in connection with request no. 1.A further response must be provided which removes all objections.No. 3The motion is granted. This request asked Defendant to admit that paralysis was a substantialfactor in causing Lawrence Moody’s death. Defendant’s supplemental response objected to therequest of the basis that the request calls for an expert opinion. Subject to the objectionsDefendant responded that it conducted a reasonable inquiry and the information known orreadily obtainable is insufficient to allow it to admit or deny.The objections are overruled for the same reasons discussed in connection with request no. 1.No. 4 Page 3 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO34-2019-00269477-CU-MM-GDS: Lawrence Moody vs. Sutter Medical Center Sacramento 08/20/2024 Hearing on Motion to Compel Further Discovery Responses to Plaintiff's Request for Admission (Sutter Medical Foundation) in Department 53The motion is granted. This request asked Defendant to admit that Defendant’s negligence was asubstantial factor in causing Lawrence Moody’s death. Defendant’s supplemental responseobjected to the request of the basis that the request calls for an expert opinion. Subject to theobjections Defendant denied the request.The objections are overruled for the same reasons discussed in connection with request no. 1.A further response must be provided which removes all objections.In short, the motion is granted.No later than September 3, 2024, Defendant shall serve further, verified responses to Plaintiff’srequests for admissions nos. 1-4, without objections.Plaintiff’s request for sanctions is granted. The Court finds that Defendant’s opposition to theinstant motion lacked substantial justification. Defendant cited no authority to justify its expertopinion objection and indeed the relevant authority make clear it is not an appropriate objection.In addition, Defendant did not even discuss any of its other objections. Defendant argues thatsanctions would be unjust because Plaintiff’s motion to compel further responses is notnecessary because even with the objections, Plaintiff could still seek cost of proof sanctionsunder CCP § 2033.420. The case cited by Defendant simply shows that a party may not bedeemed to have waived the right to seek cost of proof sanctions under CCP § 2033.420 if theresponses to the requests for admission contained unequivocal denials despite also havingobjections. (American Federation of State, County & Municipal Employees v. MetropolitanWater District (2005) 126 Cal.App.247, 269.) However, CCP § 2033.290 expressly permitsPlaintiff to seek further responses where, as here, the responses contain objections deemed to bewithout merit. The cited case does not in any way show that simply because Plaintiff might beable to seek cost of proof sanctions without first moving to compel further responses to removemeritless objections, that the imposition of sanctions here in connection with a motion Plaintiff isstatutorily permitted bring, is unjust.However, the Court finds that Plaintiff’s counsel’s hourly rate of $800/hr is excessive andinstead finds that $550/hr is a reasonable hourly rate. Plaintiff is awarded monetary sanctionsfrom Defendant in the amount of $1,160 ($550/hr x 2 hr + $60 filing fee). Sanctions are to bepaid on or before September 20, 2024. If sanctions are not paid by that date, Plaintiff mayprepare a formal order granting sanctions for the Court’s signature, and the order may beenforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 orfurther notice is required. Page 4 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO34-2019-00269477-CU-MM-GDS: Lawrence Moody vs. Sutter Medical Center Sacramento 08/20/2024 Hearing on Motion to Compel Further Discovery Responses to Plaintiff's Request for Admission (Sutter Medical Foundation) in Department 53 Page 5 of 5
Ruling
PHUONG T. NGUYEN VS. LONDON BREED ET AL
Aug 21, 2024 |CGC21591803
Real Property/Housing Court Law and Motion Calendar for August 21, 2024 line 2. DEFENDANT RYAN PATTERSON NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO INTERROGATORIES AND FOR SANCTIONS is transferred to department 525 to be heard at 9:00 a.m. on September 5, 2024. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
JESSE MCCAFFREY vs. DARRELL WELLS
Aug 19, 2024 |C24-01311
C24-01311CASE NAME: JESSE MCCAFFREY VS. CITY OF RICHMOND *HEARING ON MOTION IN RE: PRELIMINARY INJUCTION FILED BY JESSE MCCAFFREYFILED BY:*TENTATIVE RULING:*Plaintiff’s motion for preliminary injunction is denied without prejudice for failure to file a proof ofservice.
Ruling
Zenith Insurance Company vs Ladislao Bautista Pablo et al.
Aug 21, 2024 |20CV-02579
20CV-02579 Zenith Insurance Company, et al. v. Ladislao Bautista Pablo, et al.Plaintiff’s Motion to Compel Responses to Demand for Supplemental Responses toInterrogatories from Defendant LA Specialty Produce pursuant to CCP § 2030.290 and requestfor Monetary Sanctions of $1,060 against Defendant LA Specialty Produce and its Counsel ofRecord Murchinson & Cummings LLP.Plaintiff’s unopposed Motion to Compel Responses to Demand for SupplementalResponses to Interrogatories from Defendant LA Specialty Produce pursuant to CCP §2030.290 and request for Monetary Sanctions of $1,060 against Defendant LA SpecialtyProduce and its Counsel of Record Murchinson & Cummings LLP. Is GRANTED. TheSupplemental Response and payment of sanctions shall be served September 18, 2024.Plaintiff’s Motion to Compel Responses to Demand for Supplemental Responses to Request forProduction of Documents from Defendant LA Specialty Produce pursuant to CCP § 2031.300and request for Monetary Sanctions of $1,060 against Defendant LA Specialty Produce and itsCounsel of Record Murchinson & Cummings LLP.Plaintiff’s unopposed Motion to Compel Responses to Demand for SupplementalResponses to Request for Production of Documents from Defendant LA SpecialtyProduce pursuant to CCP § 2031.300 and request for Monetary Sanctions of $1,060against Defendant LA Specialty Produce and its Counsel of Record Murchinson &Cummings LLP. Is GRANTED. The Supplemental Response, responsive documents, andpayment of sanctions shall be served September 18, 2024.Plaintiff’s Motion to Compel Responses to Demand for Supplemental Responses toInterrogatories from Defendant Ladislao Bautista Pablo pursuant to CCP § 2030.290 andrequest for Monetary Sanctions of $1,060 against Defendant LA Specialty Produce and itsCounsel of Record Murchinson & Cummings LLP.Plaintiff’s unopposed Motion to Compel Responses to Demand for SupplementalResponses to Interrogatories from Defendant Ladislao Bautista Pablo pursuant to CCP §2030.290 and request for Monetary Sanctions of $1,060 against Defendant LA SpecialtyProduce and its Counsel of Record Murchinson & Cummings LLP. Is GRANTED. TheSupplemental Response and payment of sanctions shall be served September 18, 2024.Plaintiff’s Motion to Compel Responses to Demand for Supplemental Responses to Request forProduction of Documents from Defendant Ladislao Bautista Pablo pursuant to CCP § 2031.300and request for Monetary Sanctions of $1,060 against Defendant LA Specialty Produce and itsCounsel of Record Murchinson & Cummings LLP.Plaintiff’s unopposed Motion to Compel Responses to Demand for SupplementalResponses to Request for Production of Documents from Ladislao Bautista Pablopursuant to CCP § 2031.300 and request for Monetary Sanctions of $1,060 againstDefendant LA Specialty Produce and its Counsel of Record Murchinson & CummingsLLP. Is GRANTED. The Supplemental Response, responsive documents, and payment ofsanctions shall be served September 18, 2024.
Ruling
A. P. VS DOWNEY UNIFIED SCHOOL DISTRICT
Aug 20, 2024 |22STCV29287
Case Number: 22STCV29287 Hearing Date: August 20, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: August 20, 2024 CASE NUMBER: 22STCV29287 MOTIONS: Motion to Compel a Mental Examination of Plaintiff MOVING PARTY: Defendant Downey Unified School District OPPOSING PARTY: Plaintiff A.P. MOTION On September 8, 2022, plaintiff A.P., a minor, by and through her Guardian Ad Litem Maria Roman, (Plaintiff) filed this action against defendant Downey Unified School District (Defendant) for damages arising from bullying at school, wherein Plaintiff was allegedly assaulted and battered by a fellow student. Defendant now moves to compel a mental examination of Plaintiff, with Veronica Thomas, Ph.D. at her office on August 29, 2024 at 10:00 a.m. Plaintiff opposes and Defendant replies. LEGAL STANDARD If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Civ. Proc., § 2032.310, subds. (a)-(b).) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary].) A showing of good cause generally requires that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) And [a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy. (Id. at p. 839.) The examination will be limited to whatever condition is in controversy in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿¿ MEET AND CONFER The Declaration of George D. Tourkow, Defendants counsel, shows that he has communicated with Plaintiffs counsel multiple times in scheduling this examination. Nevertheless, Plaintiff will not agree to submit for the mental exam. (Tourkow Decl. ¶ 5.) Therefore, the meet and confer requirement is met. DISCUSSION Plaintiff claims psychological injuries, emotional trauma, depression, anxiety, and embarrassment. (Tourkow Decl. ¶ 3, Exh. A [FROG #6.3]; Exh. B [Pl. Depo. 177:12-25, 178:9-179:2.) As a result, it appears Plaintiff has put her mental and emotional condition at issue. Furthermore, Plaintiffs discovery responses and deposition testimony show an on-going mental and emotional injury. In opposition, Plaintiff does not dispute that her mental and emotional health is at issue but argues the examination is unnecessary because Defendant has access to Plaintiffs mental health records. However, Plaintiff provides no support that Defendant must rely on pre-existing records and is not entitled to pursue its own investigation of Plaintiffs claims. Plaintiff also notes she is still a minor, and states that the examination would be invasive and harmful. If the Court is inclined to grant the motion, Plaintiff requests that her guardian or attorney be present at the exam to ensure her privacy and safety are protected. (Opp., 1.) However, the Supreme Court of California has recognized that a psychiatric examination of a party in a Civil case should ordinarily be conducted without counsel if the examination is to remain an effective and meaningful device for ascertaining the truth. (Edwards v. Superior Court (1976) 16 Cal.3d 905, 910.) Plaintiff speculates that the examination would be harmful since Dr. Thomas is a stranger and is not there to treat her. The Court finds this unpersuasive. (See Edwards, supra, 16 Cal.3d at 913 [[A] party's unsupported objections to a particular doctor conducting the examination should be given little weight.].) Here, the incident took place while Plaintiff was in middle school, and Plaintiff concedes she is a teenager. Based on the above, there is good cause to conduct the mental examination. Defendant has also properly provided the time, place, manner, conditions, scope, and nature of the examination. Therefore, the motion to compel the mental examination is granted. CONCLUSION AND ORDER Accordingly, Defendants Motion to Compel a Mental Examination of Plaintiff is GRANTED. Plaintiff shall appear for a mental examination with Veronica Thomas, Ph.D. at her office on August 29, 2024 at 10:00 a.m. Defendant shall provide notice of the Courts order and file a proof of service of such.
Ruling
Janet Mlynar vs California Earthquake Authority, et al
Aug 22, 2024 |19CV03844
19CV03844MLYNAR v. CALIFORNIA EARTHQUAKE AUTHORITY et al PLAINTIFF’S MOTION FOR PROTECTIVE ORDER Plaintiff’s motion for a protective order is denied. “Where a party must resort to thecourts, ‘the burden is on the party seeking the protective order to show good cause for whateverorder is sought.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2016) 223Cal.App.4th 261, 318.) Plaintiff has not demonstrated good cause for a protective order to haltthe deposition of David Bonowitz. I. BACKGROUND AND MOTION This case stems from the 2014 Napa earthquake. Plaintiff Janet Mlynar’s (“Mlynar”)home was insured for earthquake damage by CEA and CSAA. CEA issued a homeowner’spolicy to Mlynar thought its participating insurer, CSAA. After the earthquake, Mlynarsubmitted an earthquake claim under the CEA policy. Defendant Ronald Cook is an attorneyretained by CSAA to assist regarding the earthquake claim. The claim, for a variety of contestedreasons, was not resolved right away but instead there were numerous inspections regarding thescope and extent of the alleged damage to the home. Checks were issued to Mlynar but nevernegotiated by her, and again, the reasons why are in dispute. The claim also went through anappraisal process. In March 2023, defendant CEA subpoenaed certain documents of Mr. Bonowitz, astructural engineer who was previously hired by Mlynar in 2016; a copy of the subpoena wasserved on plaintiff’s counsel. Mr. Bonowitz produced the documents requested. Mlynar did notobject. (Dec. of Amato ¶ 3.) CEA then noticed his deposition, serving the notice on April 24,2024. Mlynar did not object. (Dec. of Amato at ¶ 5, Ex. 4.) The deposition began on May 10,2024, and lasted about an hour before Mr. Dobrin, Mlynar’s counsel, halted the deposition,stating Mlynar’s former counsel, Mr. Greenburg, may have intended Mr. Bonowitz to beconsidered a retained expert and that his [Mr. Bonowitz’s] prior work on the case was part ofconfidential settlement negotiations. He indicated his intention to move for a protective order.Mlynar filed this motion on July 18, 2024. Mlynar moves for a protective order pursuant to Code of Civil Procedure section2025.420, subd. (a)-(b), seeking an order that the deposition of Mr. Bonowitz, not take placeunless Mlynar discloses him as an expert witness for trial. Mlynar asserts a protective order is Page 1 of 6necessary to protect her from “unwarranted annoyance”, “oppression”, or “undue burden”. Shecontends Mr. Bonowitz was her expert consultant for the sole purpose of confidential settlementcommunications with CEA and CSAA. According to Mlynar, during the claim’s adjustmentprocess, the parties’ experts attempted to agree upon a “repair protocol” so that she could receiveCEA funds to start repairs on her home. The parties could not reach an agreement and proceededthrough the JAMS appraisal process. Mr. Dobrin attaches the following in support of Mlynar’s motion, along with requests forjudicial notice: • Exhibit A is an 11/22/16 email from Mr. Greenburg to defendant Cook which states “Confidential Settlement Communication” and enclosed Mr. Bonowitz’s schematic for removal of plaster walls at the property. • Exhibit B is a recent email chain concerning the deposition of Mr. Bonowitz. • Exhibit C is an email dated 9/26/17, with the subject line “Confidential Settlement Communication.” • Exhibit D are two emails dated 10/4/17 between defendant Cook and Greenburg with the subject line “Confidential Settlement Communication.” • Exhibit E is an email dated 8/8/18 from Mr. Greenburg to CSAA adjustor Vicki Miller with the subject line “Confidential Settlement Communication”, attaching Mlynar’s contractor/architect’s [Avelar] repair estimate and scope of work. • Exhibit F is a partial copy of the subpoena served on Mr. Bonowitz in 2023 by CEA. • Exhibit G is a letter dated 8/7/18 from Mr. Greenburg to CSAA. II. OPPOSITION BY CEA The opposition sets out four arguments: (1) Mr. Bonowitz was Mlynar’s engineeringconsultant during the presentation of the earthquake claim – not during the lawsuit and he wasnot retained in anticipation of the appraisal proceeding; (2) Mr. Bonowitz’s testimony is notrelated to a settlement offer or demand. He is expected to confirm his 2018 writing in which headvised Mlynar there was no structural damage to her property due to the earthquake; (3) theresults of Mr. Bonowitz’s destructive testing of the framing beneath the plaster walls at Mlynar’sproperty was intended to be shared with CSAA, which was adjusting the claim; and (4) to theextent there was an attorney-work product protection of Mr. Bonowitz’s testimony, Mlynarwaived such protections when her attorneys did not object to the production of his entire file inresponse to a subpoena. III. DISCUSSION Page 2 of 6 Code of Civil Procedure section 2025.420, subdivision (a) states, “[b]efore, during, orafter a deposition, any party, any deponent, or any other affected natural person or organizationmay promptly move for a protective order. The motion shall be accompanied by a meet andconfer declaration under Section 2016.040.” Subdivision (b) states, in part, “[t]he court, for goodcause shown, may make any order that justice requires to protect any party, deponent, or othernatural person or organization from unwarranted annoyance, embarrassment, or oppression, orundue burden and expense.” California Evidence Code section 1152, Admissibility of Evidence subdivision (a) states,in part, that “[e]vidence that a person has, in compromise or from humanitarian motives,furnished or offered or promised to furnish money or any other thing, act, or service to anotherwho has sustained or will sustain or claims that he or she has sustained or will sustain loss ordamage, as well as any conduct or statements made in negotiation thereof, is inadmissible toprove his or her liability for the loss or damage or any part of it.” First, the emails referenced by Mlynar, though titled “Confidential SettlementCommunications” do not appear to include any specific offers to settle her claim. Second, CEApoints out that this section of the Evidence Code pertains to the admissibility of evidence, anddoes not reference limiting the scope of a deposition. Mlynar has not provided a basis for herassertion that Evidence Code section 1152 insulates the deposition testimony of a third-partywitness. Further, even assuming any protections existed for Mr. Bonowitz’s work and testimony,there have been multiple instances of waiver. “[T]he attorney work product privilege is subject tothe same waiver principles applied to the attorney-client privilege. ‘Waiver of work productprotection, though not expressly defined by statute, is generally found under the same set ofcirc*mstances as waiver of the attorney-client privilege—by failing to assert the protection, bytendering certain issues, and by conduct inconsistent with claiming the protection. Waiveralso occurs by an attorney's voluntary disclosure or consent to disclosure of the writing to aperson other than the client who has no interest in maintaining the confidentiality of the contentsof the writing.’[Citations.] Thus disclosure to a third party will waive the work product privilegeunless the disclosure was coerced.” (Regents of University of California v. Superior Court (2008)165 Cal. App. 4th 672, 678-679.) (Emphasis added.) In March 2023, CEA subpoenaed Mr. Bonowitz’s files related to his work at Mlynar’sproperty and a copy of the subpoena was served on her counsel. Mr. Bonowitz produced thedocuments requested. Mlynar did not object. (Dec. of Amato ¶ 3.) His deposition was noticed forApril 24, 2024, with all counsel, including Mlynar’s attorney, copied and again, Mlynar did notobject. (Dec. of Amato at ¶ 5, Ex. 4.) Finally, Mr. Bonowitz’s site visit notes were already Page 3 of 6disseminated as exhibits to a deposition of plaintiff’s contractor and as an exhibit to CEA’smotion for summary judgment. The motion is denied. The court declines to award sanctions. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE FILED 7/18/24 1. Order on Motion for Summary Judgment in this case. Denied. The court need not take judicial notice of records in its own case file. 2. Declaration of Janet Mlynar in support of her Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 3. Declaration of Jon-Marc Dobrin in Support of Plaintiff’s Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 4. Plaintiff Janet Mlynar’s Response to Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. PLAINTIFF JANET MLYNAR’S ADDENDUM TO REQUEST FOR JUDICIAL NOTICE FILED 7/30/24 Ex. UU Redacted emails and report of defendants’ appraiser, Thad Eaton. Denied. PLAINTIFF JANET MLYNAR’S SECOND ADDENDUM REQUEST FOR JUDICIAL NOTICE FILED 8/9/24 Ex. A copies of CSAA’s claim file produced in this action regarding CSAA’s redacted communications with its contractors Shaun Piazza and its engineer Peter Shandlin and the “Confidential Settlement Communication” from Mlynar’s attorney Greenburg with CSAA adjustor Vikki Miller. Denied.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if the Page 4 of 6prevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
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