O Neil & Matusek Llp Vs Edgar Oliva Et Al

Case Number: 24STCV04504 Hearing Date: July 9, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING REBEKA RODRIGUEZ , vs. FOUNTAIN9, INC. Case No.: 24STCV04504 Hearing Date: July 9, 2024 Defendant Fountain9, Inc.s demurrer to Plaintiff Rebeka Rodriguezs first amended complaint is sustained with 20 days leave to amend. Defendant Fountain9, Inc.s motion to strike portions of Plaintiffs first amended complaint is denied as moot. Defendant Fountain9, Inc. (Fountain9) (Defendant) demurs to each cause of action in Plaintiff Rebeka Rodriguezs (Rodriguez) (Plaintiff) first amended complaint (FAC) on the grounds Plaintiffs purported cause of action for violation of Penal Code §638.51 fails to state a cause of action under settled principles of California law and on grounds that Plaintiffs consent to the acts complained of appears on the face of the complaint, where lack of consent is either an element of Plaintiffs cause of action or alternatively where consent is an affirmative defense. (Notice of Demurrer, pgs. 1-2; C.C.P. §430.10(e).) Defendant also filed a motion to strike portions of Plaintiffs FAC. (Notice of MTS, pgs. 1-2.) Request for Judicial Notice Plaintiffs 6/25/24 request for judicial notice of (1) the Senate Committee on Public Safety Bill Analysis of Apr. 12, 2010, for Senate Bill No. 1428 (2009-2010 Regular Session) (P-RJN, Exh. 1); and (2) Assembly Committee on Public Safety Bill Analysis of June 21, 2010, for Senate Bill No. 1428 (2009-2010 Regular Session) (P-RJN, Exh. 2) is granted. Plaintiffs 6/25/24 request for judicial notice of (1) Minute Order filed on August 11, 2023, in Licea v. Jockey Intl, Inc. , No. 23STCV02906 (Cal. Super. Ct., Los Angeles County Aug. 11, 2023) (Richardson, J.); (2) Minute Order filed on April 3, 2024, in Levings v. Choice Hotels Intl, Inc. , No. 23STCV28359, 2024 WL 1481189 (Cal. Super. Ct. L.A. Cty. Apr. 3, 2024) (Nellon, J.); and (3) Minute Order filed on June 4, 2024, in Sanchez v. Weber-Stephen Products LLC , No. 24STCV00217 (Cal. Super. Ct. L.A. Cty. June 4, 2024) (Nellon, J.) is denied. Meet and Confer Before filing a demurrer, the demurring party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41(a), emphasis added.) The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. (C.C.P. §430.41(a)(3).) Defendants counsel failed to submit a meet and confer declaration in violation of under C.C.P. §430.41(a), despite noting in the notice of the demurrer that the declaration of Carver Farrow was attached. ( See Notice of Demurrer, pg. 2.) However, failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (C.C.P. §430.41(a)(4); Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 355; Olson v. Hornbrook Community Services District (2019) 33 Cal.App.5th 502, 515.) Therefore, the Court will consider Defendants demurrer. Background Plaintiff filed her initial complaint (Complaint) on February 22, 2024. Plaintiff filed her operative first amended complaint (FAC) on April 18, 2024, against Defendant alleging a single cause of action for violation of the California Invasion of Privacy Act (CIPA), Penal Code §638.51(a). Plaintiff alleges she is a consumer privacy advocate who works as a tester to ensure that companies abide by the privacy obligations imposed by California law. (FAC ¶4.) Plaintiff alleges Defendant is a provider of inventory software to clients throughout California and in this County. (FAC ¶5.) Plaintiff alleges Defendant owns and operates www.fountain9.com (Website). (FAC ¶46.) Plaintiff alleges Defendant has incorporated the code of the PR/TT beacon into the code of its Website. (FAC ¶50.) Plaintiff alleges that when she visited the Website, the Website caused the PR/TT beacon to be installed on her and other users browsers. (FAC ¶50.) Plaintiff alleges upon installing the PR/TT on its Website, Defendant uses the PR/TT to collect the IP address of visitors to the Website, which is used by the PR/TT beacons developer to provide services to Defendant and its other clients, including targeted advertisements and website analytics. (FAC ¶52.) Plaintiff alleges Defendant and its partners use the PR/TT beacon to digitally fingerprint each visitor. (FAC ¶52.) Plaintiff alleges that at no time prior to the installation and use of the PR/TT beacon on Plaintiffs and other users browsers, or prior to the use of the PR/TT beacon, did Defendant procure Plaintiffs or other users consent for such conduct . (FAC ¶53.) Plaintiff alleges Defendant did not obtain a court order to install or use the PR/TT beacon. (FAC ¶53.) Plaintiff alleges the specific PR/TT spyware beacons detected on Defendants Website are identified in Exhibit 1. (FAC ¶54, Exh. 1.) Plaintiff alleges she has visited the Website within the applicable statute of limitations period via an Internet-connected computer. (FAC ¶59.) Plaintiff alleges that when she visited the Website, the Websites codeas programmed by Defendantcaused the PR/TT beacon to be installed on Plaintiffs browser. (FAC ¶60.) Plaintiff alleges Defendant and the PR/TT beacons developer then used the PR/TT beacon to collect Plaintiffs IP address. (FAC ¶60.) Plaintiff alleges Defendant and the PR/TT beacons developer used the information collected by the PR/TT beacon to analyze Website data and marketing campaigns, conduct targeted advertising, and ultimately boost Defendants and/or advertisers revenue. (FAC ¶61.) Plaintiff alleges she did not provide her prior consent to Defendant to install or use the PR/TT beacon on her browser. (FAC ¶62.) Plaintiff alleges Defendant did not obtain a court order before installing or using the PR/TT beacon. (FAC ¶63.) Plaintiff alleges Defendant knowingly and intentionally deployed PR/TT spyware to (1) decode and record the routing, addressing, and signaling information transmitted by Plaintiffs electronic device communication; and (2) capture the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication as part of its identity resolution efforts. (FAC ¶65.) Plaintiff alleges this conduct constitutes illegal installation of PR/TT spyware in violation of California law. (FAC ¶65.) Defendant filed the instant demurrer and accompanying motion to strike on May 15, 2024. [1] Plaintiff filed her oppositions on June 25, 2024. [2] Defendant filed its replies on July 1, 2024. A. Demurrer Summary of Demurrer Defendant demurs to Plaintiffs FAC on the grounds that Plaintiff does not allege that Defendant has invaded her privacy by improperly acquiring what she claims is her personal, private information ( e.g. , her marital status) or caused her any concrete, injury-in-fact. (Demurrer, pg. 4.) Defendant argues the alleged beacon or cookie that Plaintiff claims was installed on her browser is not a pen register as defined by Penal Code § 638.51 . ( Id. ) Defendant argues Plaintiff also does not claim that the beacon or cookie was installed on her browser by Defendant, but rather, Plaintiff claims that it was installed by Defendants software developer/server. ( Id. ) Legal Standard [A] demurrer tests the legal sufficiency of the allegations in a complaint. ( Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ( See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. ( Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.) Failure to State a Claim CIPA, Penal Code §638.51(a) (1st COA) CIPA §638.51(a) provides: Except as provided in subdivision (b), a person may not install or use a pen register or a trap and trace device without first obtaining a court order pursuant to Section 638.52 or 638.53. (Pen. Code §638.51(a).) Plaintiff alleges she brings this cause of action individually against Defendant. (FAC ¶69.) Plaintiff alleges the PR/TT beacon is a pen register because it is a device or process that capture[d] the routing, addressing, or signaling informationthe IP addressfrom the electronic communications transmitted by Plaintiffs computer or smartphone. (FAC ¶72.) Plaintiff alleges at all relevant times, Defendant knowingly installed the PR/TT beaconwhich is a pen registeron Plaintiffs browser and used the PR/TT beacon to collect Plaintiffs IP address, and track Plaintiff. (FAC ¶73.) Plaintiff alleges the PR/TT beacon does not collect the content of Plaintiffs electronic communications with the Website. (FAC ¶74.) Plaintiff alleges she did not provide Plaintiffs prior consent to Defendants installation or use of the PR/TT beacon. (FAC ¶75.) Plaintiff alleges Defendant did not obtain a court order to install or use the PR/TT beacon. (FAC ¶76.) Plaintiff alleges pursuant to §637.2 of the California Penal Code, Plaintiff has been injured by Defendants violation of §638.51(a) of the California Penal Code and seeks statutory damages of $5,000 for Defendants violation of §638.51(a). (FAC ¶76.) Plaintiff fails to allege a concrete injury-in-fact. The only allegedly personal information that Plaintiff alleges that Defendant collected was her IP address. (FAC ¶¶41, 77.) Plaintiffs only allegation regarding injury is that Plaintiff has been injured by Defendants violation of section 638.51 (a) of the California Penal Code. (FAC ¶77.) The alleged injury is abstract and hypothetical because it is solely premised on statutory damages under CIPA. ( TransUnion LLC v. Ramirez (2021) 141 S.Ct. 2190, 2199 [ No concrete harm, no standing.]; id. at pgs. 2209-2210 [holding that plaintiffs who alleged a violation of the Fair Credit Reporting Act (FCRA) lacked standing because their inaccurate credit files were not disclosed to any potential creditor and therefore plaintiffs did not suffer an injury in fact]; see Limon v. Circle K Stores, Inc. (2022) 84 Cal.App.5th 671, 703 -707 [finding no standing on sole allegation of statutory damages under FCRA].) Further, Plaintiff does not allege that Defendant is tracing Plaintiffs activities or is creating a digital fingerprint of Plaintiff. Plaintiff alleges Defendants non-party software developer, not Defendant, packages and sells the information alleged in the FAC to third parties for advertising and marketing purposes. (FAC ¶¶52, 57-58.) Accordingly, Defendants demurrer to Plaintiffs 1st cause of action is sustained with 20 days leave to amend. B. Motion to Strike In light of the Courts ruling on Defendants demurrer, Defendants motion to strike is denied as moot. Conclusion Defendants demurrer to Plaintiffs FAC is sustained with 20 days leave to amend. Defendants motion to strike is denied as moot. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court [1] The Court notes a demurrer and a motion to strike must be filed as two separate documents and not combined as a single omnibus filing (however, the documents can be filed simultaneously for a hearing on the same day). Defendant filed its demurrer and motion to strike as a single omnibus filing, which is improper. [2] The Court notes Plaintiffs two filed oppositions are improperly noted on the instant docket as Memorandum of Points and Authorities. The filings are not labeled as oppositions to Defendants respective motions. Plaintiff is advised to look into this filing error and make appropriate changes before filing new documents with the Court.

Case Number: 23NWCV01004 Hearing Date: July 9, 2024 Dept: C Christopher Doliveira vs FCA US, LLC, et al. Case No.: 23NWCV01004 Hearing Date: July 9, 2024 @ 9:30 a.m. #3 Tentative Ruling Plaintiff Christopher Doliveiras Motions to Compel Responses to Special Interrogatories (set one), Form Interrogatories (set one), and Request for Production of Documents (set one) are MOOT. Monetary Sanctions are awarded in the sum of $1980.00, including costs, payable within 60 days. Plaintiff to give notice. Background This is a lemon law action. On April 3, 2023, Plaintiff Christopher Doliveira sued Defendants FCA US, LLC and Cerritos Dodge Chrysler Jeep alleging violations of the Song-Beverly Act and Negligent Repair. Plaintiff served the first set of discovery upon Defendant FCA US, LLC (FCA US) on November 3, 2023. On March 29, 2024, Plaintiff filed motions to compel responses to special interrogatories and request for production of documents. On April 2, 2024, Plaintiff filed a motion to compel responses to form interrogatories. FCA US served its responses on June 24, 2024. Legal Standard A party may make a demand for production of documents and propound interrogatories without leave of court at any time 10 days after the service of the summons on, or appearance by, the party to whom the demand is directed, whichever occurs first. (Code Civ. Proc., § 2031.020, subd. (b); Code Civ. Proc., § 2030.020, subd. (b).) The demand for production of documents is not limited by number, but the request must comply with the formatting requirements in Code of Civil Procedure section 2031.030 . A party may propound specially prepared interrogatories that are relevant to the subject matter of the pending action and any additional number of official form interrogatories that are relevant to the subject matter of the pending action. (Code Civ. Proc., § 2030.030, subd. (a)(1) - (a)(2).) The party whom the request is propounded upon is required to respond within 30 days after service of a demand, but the parties are allowed to informally agree to an extension and confirm any such agreement in writing. (Code Civ. Proc., § 2031.060, subd. (a); Code Civ. Proc., § 2030.060, subd. (a); Code Civ. Proc., § 2031.070, subd. (a) - (b); Code Civ. Proc., § 2030.070, subd. (a) - (b).) If a party fails to timely respond to a request for production or interrogatories, the party to whom the request is directed waives any right to exercise the option to produce writings under Code Civ. Proc., § 2030.230, and waives any objection, including one based on privilege or on the protection for work product. (Code Civ. Proc., § 2031.300, subd. (a); Code Civ. Proc., § 2030.290, subd. (a).) The party who propounded the discovery request may bring a motion to compel and the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for production of documents or interrogatories, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.300, subd. (c); Code Civ. Proc., § 2030.290, subd. (c).) Discussion On November 3, 2024, Plaintiff served the first set of discovery which included Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One. In opposition, FCA US states that on June 24, 2024, it served responses for each and every discovery response. Defense counsel also states that it did not previously serve responses due to mistake, inadvertence, or excusable neglect. Counsel declares that the failure to respond in a timely manner was caused by the exponential increase in Song-Beverly matters and a substantial increase in emails. In reply, Plaintiff states that while responses were served, the responses contained objections, and no documents have been produced. Plaintiff argues that FCA US should be ordered to provide responses without objections and to pay sanctions. Because FCA US served responses which were in substantial compliance, and Defense counsel claims that the failure to serve timely responses was the result of mistake, inadvertence, or excusable neglect, the Court finds the motions are MOOT. Sanctions Misuse of the discovery process constituting conduct subject to sanctions include failing to respond or to submit to an authorized method of discovery and failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery. (Code Civ. Proc., § 2023.010, subds. (d) and ( i ).) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (Code Civ. Proc., § 2023.030, subd. (a).) All discovery motions require a meet and confer declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc., § 2016.040.) Because responses were served four months after the motions were filed, sanctions are warranted. Plaintiff requests monetary sanctions in the amount of $2,760.00 (2 hours preparing the motion and 4 hours reviewing the opposition, drafting the reply, preparing for oral argument, and attending the hearing, at a rate of $450.00 per hour. Counsel also seeks reimbursement of the $60.00 filing fee) for each motion. Given the similarity of each motion, reply, and accompanying declarations, and the fact that each motion will be heard concurrently, sanctions are GRANTED in the reasonable sum of $1980.00, which includes $180.00 in filing fees, payable within 60 days.

Case Number: 23PSCV01807 Hearing Date: July 11, 2024 Dept: 26 Yang v. Interinsurance Exchange, et al. MOTION TO COMPEL RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUEST FOR SANCTIONS (CCP §§ 2031.300, 2023.010) TENTATIVE RULING: Defendant Interinsurance Exchange of the Automobile Clubs Motion to Compel Responses to Request for Production of Documents, Set One, and Request for Sanctions, is GRANTED. PLAINTIFF BIN YANG IS TO SERVE VERIFIED RESPONSES TO THE DISCOVERY REQUESTS, WITHOUT OBJECTIONS, WITHIN 20 DAYS SERVICE OF THIS ORDER. PLAINTIFF BIN YANG IS ALSO ORDERED TO PAY SANCTIONS OF $285.00 TO DEFENSE COUNSEL WITHIN 20 DAYS SERVICE OF THIS ORDER. ANALYSIS: On January 9, 2024, Defendant Interinsurance Exchange of the Automobile Club (Defendant) served Request for Production of Documents, Set One, on Plaintiff Bin Yang (Plaintiff). ( Motion, Vallone Decl., Exh. 1.) Despite a meet and confer effort extending the deadline to serve verified responses without objections, Plaintiff has not served responses to the discovery. ( Id . at ¶¶5-7 and Exh. 2.) Defendant filed the instant Motion to Compel Responses to Request for Production of Documents, Set One, and Request for Sanctions, on June 7, 2024. No opposition has been filed to date. Discussion Based on Plaintiffs failure to serve initial responses to the discovery, the Motion to Compel Responses to Request for Production of Documents and Request for Monetary Sanctions, is granted. (Code Civ. Proc., § 2031.300.) There is no requirement for a prior meet and confer effort before a motion to compel initial responses can be filed. (Code Civ. Proc., § 2031.300.) Furthermore, the motion can be brought at any time after the responding party fails to provide the responses. (Code Civ. Proc., § 2031.300.) Therefore, Defendant is entitled to an order compelling Plaintiff to serve verified responses to the Request for Production of Documents, Set One, without objections. Plaintiffs failure to timely respond constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d).) Sanctions are appropriate under Code of Civil Procedure sections 2023.010 and 2023.030 and have been properly noticed. However, the amount sought is excessive for simple and unopposed motions. Pursuant to a lodestar calculation, sanctions are awarded against Plaintiff in the amount of $285.00 based on one hour of attorney time billed at $225.00 per hour and costs of $60.00. (Motion, Vallone Decl., ¶10.) Conclusion Defendant Interinsurance Exchange of the Automobile Clubs Motion to Compel Responses to Request for Production of Documents, Set One, and Request for Sanctions, is GRANTED. PLAINTIFF BIN YANG IS TO SERVE VERIFIED RESPONSES TO THE DISCOVERY REQUESTS, WITHOUT OBJECTIONS, WITHIN 20 DAYS SERVICE OF THIS ORDER. PLAINTIFF BIN YANG IS ALSO ORDERED TO PAY SANCTIONS OF $285.00 TO DEFENSE COUNSEL WITHIN 20 DAYS SERVICE OF THIS ORDER. Moving party to give notice.

Case Number: 23STLC02584 Hearing Date: July 11, 2024 Dept: 26 Eminence Metrology, LLC v. Alatus Aerosystems, Inc., et al. DEFAULT JUDGMENT PROVE UP (CCP §§ 585, et seq.) TENTATIVE RULING: Plaintiff Eminence Metrology, LLCs Application to Prove-Up Default Damages is DENIED WITHOUT PREJUDICE. ANALYSIS: On April 19, 2023, Plaintiff Eminence Metrology, LLC (Plaintiff) filed the instant action for breach of contract against Defendant Alatus Aerosystems, Inc. (Defendant). Following Defendants failure to file a responsive pleading, default was entered on January 9, 2024. Plaintiff filed the instant Application to Prove-Up Default Damages on April 19, 2024. A request for default judgment, however, must be submitted on Judicial Council Form CIV-100 and may be made by ex parte application. (CRC Rule 3.1800.) Therefore, Plaintiff Eminence Metrology, LLCs Application to Prove-Up Default Damages is DENIED WITHOUT PREJUDICE. Court clerk to give notice.

Case Number: 23CHCV02647 Hearing Date: July 9, 2024 Dept: F43 Dept. F43 Date: 7-9-24 Case # 23CHCV02647, Avo Topjian, et al. vs. Florence Seckler, et al. Trial Date: N/A MOTION TO STRIKE MOVING PARTY: Defendants Florence Seckler and Charles Orellana RESPONDING PARTY: Plaintiffs Avo Topjian and Lilia Iranoosian RELIEF REQUESTED Motion to Strike · Claims for Punitive Damages and related allegations [FAC, portions of ¶¶ 8, 9, 10, 11, 12, 13, 14, 15, 17, 22, 23, and 24; and Paragraph 4 of the prayer] RULING : The motion to strike is granted in part and denied in part. Leave to amend is given. SUMMARY OF ACTION Plaintiffs Avo Topjian and Lilia Iranoosian (Plaintiffs) filed this case on September 1, 2023. Plaintiffs First Amended Complaint (FAC) alleges that Topjian was driving and Iranoosian was a passenger when their vehicle was rear-ended by Defendant Charles Orellana, who was driving a vehicle which Plaintiffs believe to be insured in the name of Defendant Florence Seckler. After Orellana rear-ended Plaintiffs, he sped away from the scene of the collision without stopping to check on Plaintiffs or exchange information. Plaintiffs followed Orellanas vehicle into the nearby parking garage in an attempt to get Orellana to stop and exchange information. Instead, Orellana ran a stop sign and drove around other vehicles to get away from Plaintiffs. Orellana eventually abandoned the vehicle on the second floor of the parking garage. When the Sheriffs Department arrived to investigate, there was an open bottle of vodka in the rear seat. Plaintiffs allege that they suffered bodily injuries and emotional distress because of the collision. Plaintiffs FAC alleges one cause of action for negligence. Plaintiffs have also requested punitive damages as part of their complaint based on Orellanas conduct after the collision. Defendants filed their motion to strike on October 26, 2023. Defendants want the Court to strike Plaintiffs request for punitive damages and the related allegations, as well as allegations related to Seckler and insurance. Plaintiffs oppose Defendants motion. On March 12, 2024, a hearing was held on this motion to strike. The Court ordered the parties to provide further briefing because it was difficult to tell what the parties arguments were based on their briefs. On May 8, 2024, Defendants filed their supplemental points and authorities. On May 30, Plaintiffs filed their supplemental brief. ANALYSIS This Court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, [a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. Under CCP § 436(a), [t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading. Defendants have moved to strike Plaintiffs claim for punitive damages and associated allegations. First, Defendants have requested that allegations related to Defendant Seckler being the insured (Paragraph 8 on page 2) be stricken because of Evidence Code § 1155. However, nothing about the insurance is being offered as evidence or to prove negligence or other liability. Additionally, the statement that says nor insurance information from Paragraph 9 on page 3 is not being offered as evidence and is simply related to the allegations that Defendant Orellana did not stop to give insurance information. Defendants supplemental briefing on this issue does not make their reasoning any clearer. Instead, Defendants argue, without citing any authority, that the inclusion of insurance details, even indirectly, can unduly sway a jurys perception by suggesting financial responsibility beyond the factual matter of the collision& (Defendants Supp. Brief, p. 2.) Plaintiffs argue in their supplemental briefing that the mention of insurance information in their complaint is only related to the fact that Defendants did not stop to give insurance information. However, Orellana is alleged to be the owner of the car, not Seckler, and she therefore has no liability simply because she was the named insured. There are no allegations concerning whether Orellana was insured or not, and even if there were, those allegations would not be relevant. The reference to Seckler being the insured is ordered stricken, but the Court will grant Plaintiffs leave to amend to give them the opportunity to allege some liability on the part of Seckler. Next, Defendants have requested that allegations from Paragraph 9 on page 3 related to what happened after the collision be stricken. Defendants argue in their supplemental brief that these allegations should be stricken because they are not sufficient to show malice for purposes of punitive damages. (See Civ. Code § 3294.) Malice is despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294(c)(1).) Nothing in the above indicated paragraph implicates punitive damages, nor is there any suggestion of malice. This paragraph will not be stricken. Defendants have also requested that allegations related to Orellanas alleged violation of Vehicle Code Sections 20001 and 20003 be stricken from paragraph 10 on page 3. Defendants argue that these allegations should be stricken because they do not exhibit malice beyond ordinary negligence. However, there is nothing in this paragraph related to punitive damages or malice. The Court will not strike these allegations, as Defendants conduct in fleeing the scene could show consciousness of guilt. Further allegations that Defendants have requested be stricken from the complaint are allegations related to Plaintiffs alleged emotional distress caused by Defendants actions (Paragraphs 11, 12, 13, 14, and 15). Defendants did not include any supplemental briefing for these paragraphs. The Court will not strike them from Plaintiffs complaint. Additionally, Defendants have requested that several allegations related to Orellanas conduct after fleeing the scene be stricken (Paragraphs 17, 22, 23, and 24.) Defendants also request that Plaintiffs claim for punitive damages be stricken from the complaint. Plaintiffs argue that because People v. Carbajal (1995) 10 Cal.4th 1114 held that the perpetrator of a hit and run may be required to pay restitution, then that means that they can recover punitive damages for Defendants actions after the accident. However, nothing in Carbajal explicitly states that the restitution may take the form of punitive damages. Furthermore, restitution, as contemplated by Carbajal , appears to be payment for the specific loss suffered by the injured party, and not punitive damages, as suggested by Plaintiffs. ( Id. at 1126-1127.) Plaintiffs cannot recover punitive damages for simple negligence (see Paragraph 17 of the FAC), which is the only cause of action that they have alleged, as discussed in more detail below. To the extent that Paragraphs 17, 22, and 23 allege that Defendant Orellana acted maliciously or with conscious disregard for the rights of others, those parts of the paragraphs should be stricken, as they implicate punitive damages. Plaintiffs requests for punitive damages in Paragraph 24 of the FAC and Paragraph 4 of Plaintiffs prayer for relief should also be stricken. Plaintiffs also argue in their supplemental brief that fleeing the scene of accident may constitute an independent tort. (See Karl vs. C.A. Reed Lumber Company (1969) 275 Cal.App.2d 358, 361.) While that may be the case, Plaintiffs complaint is not structured so that Defendants fleeing the scene is a separate tort. Instead, it appears to be folded into Plaintiffs negligence cause of action. If Plaintiffs wish for it to be a separate cause of action, they should structure their complaint to reflect this. Plaintiffs complaint as it is written now only shows simple negligence because Plaintiffs have alleged that Defendant failed to exercise due care (Paragraph 17). There is currently no basis for a separate cause of action for leaving the scene. CONCLUSION Defendants motion to strike is granted in part and denied in part. It is granted for Plaintiffs request for punitive damages and related allegations (Paragraphs 17, 22, 23, 24 and Paragraph 4 of the prayer for relief) and Plaintiffs allegations concerning Secklers insurance (Paragraph 8). It is denied for the other allegations (Paragraphs 10, 11, 12, 13, 14, and 15). Plaintiffs are given 30 days leave to amend their complaint. Moving parties to give notice to all parties.

Case Number: 23STCV20520 Hearing Date: July 9, 2024 Dept: 40 Superior Court of California County of Los Angeles Department 40 Jonathan Neil & Associates, Inc., Plaintiff, v. Healing Hands Care, Inc., a California Corporation; Ara Tovmassian aka Ara Mesrop Tovmassian and DOES 1 through 50, inclusive, Defendants. Case No.: 23STCV20520 Hearing Date: 7/9/24 Trial Date: 12/6/24 [TENTATIVE] RULING RE: Plaintiff Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191]. I. Background On January 2, 2024, Plaintiff purportedly served Requests for Admission (RFAs), Set One, on Defendant Tovmassian. Responses to RFAs, Set One, were purportedly due on February 6, 2024, 35 days after purported service by mail on January 2, 2024. Defendant Tovmassian allegedly failed to serve responses to RFAs, Set One, by February 6, 2024. On March 20, 2024, based on Defendant Tovmassians alleged non-response to RFAs, Set One, Plaintiff filed a motion to deem the truth of RFAs, Set One, admitted as against Defendant Tovmassian. Plaintiffs motion also requests monetary sanctions in the amount of $850 against Defendant Tovmassian. Plaintiff served the motion on Defendant Tovmassian by mail that same day. Defendant Tovmassian has failed to oppose Plaintiffs motion despite service. Plaintiffs motion is now before the Court. II. Motion to Deem Truth of RFAs Admitted and Request for Sanctions A. Motion to Deem Truth of RFAs Admitted : GRANTED. 1. Legal Standard The discovering party can make a motion to deem as admitted any unanswered requests for admission or any requests answered in a late or unverified response. (See Code Civ. Proc., § 2033.280, subd. (b); Code Civ. Proc., § 2033.240, subd. (a) [RFA responses must be signed by responding party under oath]; see Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636 [unsworn response to RFAs is treated like no response].) These requests are not automatically deemed admitted; the discovery party must make the motion. (See Code Civ. Proc., § 2033.280, subd. (b).) To establish this ground, a movant must show: (1) Proper service (see Code Civ. Proc., § 2033.070); (2) Expiration of the deadline for the initial response 30 days after service or on date agreed to by parties (see Code Civ. Proc., § 2033.250, subds. (a), (b)); and (3) That (a) the responding party served no response (Code Civ. Proc., § 2033.280, subd. (b)), (b) the propounding party served a late response (Code Civ. Proc., § 2033.280, subd. (b)); or (3) the responding party served an unsworn response (see Appleton v. Superior Court , supra , 206 Cal.App.3d at p. 636 [unsworn response to RFAs is treated like no response]). A court must deny a motion to compel initial discovery where the discovery sought is outside the scope of discovery. (See CBS, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19; see also Code. Civ. Proc., § 2017.010 [scope of discovery].) 2. Courts Determination The Court finds in favor of Plaintiff. The moving papers points and authorities contend that RFAs, Set One, was served on Defendant Tovmassian on January 2, 2024. (Mot., pp. 3 [service], 5 [signature, not sworn].) However, the points and authorities are unsworn and not entitled to evidentiary credence. ( In re Zeth S. (2003) 31 Cal.4th 396, 413 [the unsworn statements of counsel are not evidence]; South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 668, fn. 14 [unsworn arguments of counsel in a legal memorandum are not evidence].) The original Natalia A. Minassian counsel declaration filed on March 20, 2024 did not support service on January 2, 2024, as to RFAs, Set One. However, at the initial hearing on July 2, 2024, the Court pointed out what appeared to be an inadvertent failure to include substance in that declaration. The Court continued the hearing to July 9, 2024 to allow Plaintiffs counsel to address the error. On July 3, 2024, Plaintiffs counsel filed a notice of errata and a revised Declaration of Natalia Minassian. It included both averments by counsel as well as attaching the Requests for Admission, along with the Proof of Service, showing service by mail on the Defendant on January 2, 2024. For this reason, the Court finds that service has been shown. Moreover, the evidence supports the fact that the discovery was served on the date alleged in the motion, and thus the Court finds no prejudice from the initial failure to attach the proof of service to the motion. Second, Defendant has failed to oppose this motion, and did not appear at the initial hearing on July 2, 2024. The evidence in the moving papers sets forth that the Defendant did not respond, and this evidence is thus unrebutted. Third, the court finds that the 17 RFAs are relevant to the facts involved in this case and are otherwise appropriate, clear and unambiguous. Given these findings, the Court GRANTS Plaintiffs motion. B. Request for Sanctions : GRANTED. 1. Legal Standard The Court must award sanctions when a partys response is untimely, and the discovering party makes a motion to deem the requests admitted. (Code Civ. Proc., § 2033.280, subd. (c); see Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31-32; see e.g., Appleton v. Superior Court , supra , 206 Cal.App.3d at pp. 635-636 [sanctions are mandatory].) The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348, subd. (a).) 2. Courts Determination The motion to deem admitted has been denied without prejudice, and Defendant has failed to respond or oppose this motion in any way. The requested sanctions of $850 for legal fees of $790 at an hourly rate of $395 and the $60 filing fee for the motion are eminently reasonable. Accordingly, the Court grants sanctions in the amount of $850. III. Conclusion Plaintiff Jonathan Neil & Associates, Inc.s Motion to Deem Admissions Admitted and for Monetary Sanctions (Attorney Fees and Costs) Against Defendant Ara Tovmassian in the Amount of $850.00 [Res ID # 0191] is GRANTED. Sanctions in the amount of $850 are ordered to be paid to Hatkoff & Minassian within 30 days of this Order. Failure to do so could result in further sanctions as ordered by the Court.

Case Number: 22NWCV00987 Hearing Date: July 9, 2024 Dept: C WOOLSEY v. SECURITY PAVING COMPANY, INC. CASE NO.: 22NWCV00987 HEARING: 07/09/24 #6 I. Defendant RECYCLED BASE MATERIALS, INC.s Motion for Summary Judgment is GRANTED . The alternative Motion for Summary Adjudication is MOOT . II. Defendant SECURITY PAVING COMPANY, INC.s Motion for Summary Judgment is GRANTED . The alternative Motion for Summary Adjudication is MOOT . III. Defendant SULLY-MILLER CONTRACTING COMPANYS Unopposed Motion for Summary Judgment is GRANTED . The alternative Motion for Summary Adjudication is MOOT . Prevailing Parties to give notice. This personal injury action was filed on October 12, 2022 by Plaintiffs DAVID WOOLSEY, individually and as Successor in Interest to the Estate of MATTHEW WOOLSEY; and SUZANNE WOOLSEY, individually and as Successor in Interest to the Estate of MATTHEW WOOLSEY (collectively Plaintiffs). The operative First Amended Complaint (FAC) was filed on September 6, 2023. The FAC alleges the following relevant facts: On or about April 13, 2022, Decedent, who was 23 years old at the time, was working for defendant RECYCLED BASE MATERIALS, INC. utilizing the SUBJECT PRODUCT that was owned and operated by defendant SECURITY PAVING COMPANY, INC. at a worksite owned and operated by defendant BLUE DIAMOND MATERIALS, BLUE DIAMOND INGLEWOOD ASPHALT CORPORATION, and/or SULLY-MILLER CONTRACTING COMPANY located at 5625 Southern Ave., South Gate, CA 90280. (FAC ¶15.) While at the worksite, Decedent was working with the SUBJECT PRODUCT and his right arm was caught and pulled into the machine. Decedent attempted to pull his arm out of SUBJECT PRODUCT but was unsuccessful. His arm was finally able to be removed when the SUBJECT PRODUCT was turned off. (FAC ¶16.) On or about April 19, 2022, Decedent passed away as a result of injuries he sustained that were caused by the SUBJECT PRODUCT. (FAC ¶17.) The FAC asserts the following causes of action: (1) Negligence; (2) Negligence Premises Liability; (3) Strict Products Liability; (4) Negligent Products Liability; (5) Breach of Warranty; (6) Negligence; (7) Negligence; (8) Wrongful Death; and (9) Survival Action Defendants RECYCLED BASE MATERIALS, INC (RBM) and SECURITY PAVING COMPANY, INC. (Security) (collectively Defendants) separately (but identically) move for summary judgment or, alternatively, summary adjudication of the first, sixth, eighth, and ninth causes of action. Defendant SULLY-MILLER CONTRACTING COMPANY (Sully-Miller) moves for summary judgment or, alternatively summary adjudication as to the second; eighth; and ninth causes of action. Defendants RBM and SECURITYs Motion for Summary Judgment/Adjudication [A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing no triable material fact exists. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party meets this burden, the burden shifts to the opposing party to make a converse prima facie showing that a triable issue of material fact exists. ( Ibid. ) Defendants argue that the Decedent was dually employed by Security and RBM and Plaintiffs claims are barred by the Workers Compensation Exclusivity Act. In Opposition, Plaintiffs argue that there are factual issues regarding dual employment which preclude summary judgment/adjudication. Generally, under the workers compensation doctrine, when an injured employee is entitled to recover workers compensation benefits, those benefits constitute the employees exclusive remedy against the employer and his or her employees. (Cal. Lab. Code §§3600, 3601, 3602.) The workers compensation exclusivity provisions generally preclude a civil action against an employer for physical or emotional injury resulting from wrongful conduct in the workplace. ( Livitsanos v. Sup. Ct . (1992) 2 Cal.4th 744, 754.) Typically, injuries caused by employer negligence or without employer fault are subject to the WCA. ( Fermino v. Fedco, Inc . (1994) 7 Cal.4th 701, 714.) Workers compensation law recognizes that there may be cases of special/dual employment. Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employershis original or general employer and a second, the special employer. [Citation.] ( Montague v. AMN Healthcare, Inc . (2014) 223 Cal.App.4th 1515, 1520.) The possibility of dual employment is well recognized. ( Kowalski v. Shell Oil Co . (1979) 23 Cal.3d 168, 174.) If general and special employment exists, the injured workman can look to both employers for [workers] compensation benefits&. Thus where there is dual employment the workman is barred from maintaining an action for damages against either employer. ( Id . at 175.) The primary consideration in determining whether a special employment relationship exists is whether the special employer has the right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not&. ( Kowalski , supra , 23 Cal.3d at 175.) Other factors to consider when determining whether a special employment relationship exists include: (1) whether the borrowing employers control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employers work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee; and (9) whether the borrowing employer had the obligation to pay the employee. ( Riley v. Southwest Marine, Inc . (1988) 203 Cal.App.3d 1242, 1250.) Generally, the question of whether an employment relationship exists is reserved for the trier of fact. ( Marsh v. Tilley Street Co . (1980) 26 Cal.3d 486, 493.) Security and RBM proffer the following evidence: · Security and RBM both have Workers Compensation Insurance Coverage as required by law and are covered under the same policy and share the same business address. (SS No. 8.) · RBM and Security are affiliated entities. (SS No. 9.) · On April 21, 2021, Decedent completed and signed new hire paperwork, including, but not limited to: the cell phone safety policy; direct deposit authorization for Security; employee safety orientation, safety compliance, and procedures; meal and rest break policies, equal opportunity notice; authorization for his DMV record; voluntary self-identification documents; and emergency contact sheet. (SS No. 13.) · On the direct deposit authorization form, which was on Security letterhead, it expressly states: I (employee) Matthew Woolsey hereby authorize my employer Security Paving, inc. to make deposits and debits. (SS No. 14.) · Every single document contained in the new hire paperwork was on Security letterhead. (SS No. 15.) · In April 2022, the Decedent was sent to the jobsite where Plant 6 was going to begin a rock crushing job. (SS No. 18.) · The mobile plant was owned by Security Paving, Inc., along with the shovels and tools. (SS No. 20.) · The crew that was operating and working on the mobile plant included Nate Mesco, Timothy Reitz, Paul Bouman and Matthew Woolsey. (SS No. 22.) · Nathan Mesco was the foreman and supervisor of the four-person crew. (SS No. 23.) · As foreman, Nathan Mesco directed and authorized Matthew's job tasks. (SS No. 24.) · Nathan Mesco, Paul Bouman and Timothy Reitz were employed by Security Paving. (SS No. 27.) · Decedent was generally employed by Recycled Base Materials. His paystubs had RBM on them. (SS No. 28.) Based thereon, RBM and Security have made a prima facie showing that they dually employed Decedent and that Plaintiffs claims are barred by the Workers Compensation Exclusivity Act. The burden now shifts to Plaintiffs to raise a triable issue of material fact. In Opposition, Plaintiffs rely on the following admissible evidence: · Security did not pay Decedent. (PSS Nos. 30-37.) · Security could not terminate Decedents employment with RBM. (PSS No. 38.) · Matthew was a skilled worker. (PSS Nos. 33, 39, 42.) · Security neither supervised nor controlled Decedents work o Per the MLA, when the Union dispatches a member to work for a company, the employee works under that company's direction and that company is responsible for supervising the employee's work. (PSS No. 26.) o At the Jobsite, Decedent had specific tasks and duties which he performed independently and without direct oversight. (PSS No. 71.) o Security's Jobsite foreman did not directly oversee every task and duty that Matthew performed. (PSS No. 72.) o During a given day, the four crew members switch roles. (PSS No. 73.) o When Security contracts out Plant 6, it does not fully control the details of the crew's work activities. (PSS No. 74.) o Security just specifies the daily production results. Each crew member controls how they perform their job to achieve the most production each day. (PSS No. 75.) o At one point during the morning, Mr. Mesco went to the screen because he had not seen Matthew for a while. (PSS No. 85.) o It took at least 20 minutes for the crew to discover that Matthew was pinned by the tail pulley. (PSS No. 95.) · Rock crushing is not Securitys primary business. (PSS Nos. 14-18, 50.) · Decedent could not consent to dual employment. (PSS Nos. 27, 37) · RBM and Security did not (and could not) agree to prohibited brokering. (PSS Nos. 22-28, 134-38.) Plaintiffs concede that Decedent was an employee of RBM at the time of the subject incident. (Opp., p. 7.) Therefore, the Court determines that the Workmans Compensation Exclusivity Act applies to RBM. RBMs Motion for Summary Judgment is GRANTED. Its Motion for Summary Adjudication is MOOT. As to Security, the focus is on whether there are disputed facts regarding Securitys control over Decedent since that is the primary consideration in determining whether a special employment relationship exists. ( Kowalski , supra , 23 Cal.3d at 175.) Per the MLA, when the Union dispatches a member to work for a company, the employee works under that company's direction and that company is responsible for supervising the employee's work. (PSS No. 26.) However, as Kowalski makes clear, a contract cannot affect the true relationship of the parties to it. Nor can it place an employee in a different position from that which he actually held." ( Kowalski , supra , 23 Cal.3d at 176.) Thus, the terms of the MLA do not raise a triable issue of material fact regarding Securitys control over Decedent at the work site. Plaintiffs offer nothing to rebut Security and RBMs evidence that Nathan Mesco was the foreman and supervisor of the four-person crew (SS No. 23); that Nathan Mesco directed and authorized Decedent's job tasks (SS No. 24); and that Nathan Mesco, Paul Bouman and Timothy Reitz were employed by Security Paving (SS No. 27). Nathan Mescos role as Decedents supervisor is not contradicted by evidence that Decedent performed specific tasks independently (PSS No. 72) or that he was not supervised at all times (PSS No. 72). Plaintiffs do not argue that Decedent worked without supervision of any kind. Surely, he was supervised at the work site by someone. Of critical importance here, Plaintiffs offer no evidence that Decedent was actually supervised by an employee of RBM. Plaintiffs argue that RBM was Decedents only employer, and that he was not employed by Security. (Response to SS Nos. 13-18.) However, the evidence submitted by Plaintiffs merely shows Decedent was employed by RBM, not that he was only employed by RBM. Thus, the evidence submitted by Plaintiffs is not inconsistent with Decedents dual employment by RBM and Security. Plaintiffs have not met their burden of raising a triable issue of material fact regarding Decedents dual employment by RBM and Security. Accordingly, Securitys Motion for Summary Judgment is GRANTED. The Motion for Summary Adjudication is MOOT. RBM and Securitys Identical Evidentiary Objections : 1. Overruled 2. Overruled 3. Overruled 4. Overruled 5. Sustained 6. Overruled 7. Overruled 8. Overruled 9. Overruled 10. Overruled 11. Overruled 12. Overruled 13. Overruled 14. Overruled 15. Overruled 16. Overruled 17. Overruled 18. Overruled 19. Overruled 20. Overruled 21. Overruled 22. Overruled Defendant SULLY-MILLER CONTRACTING COMPANY Unopposed Motion for Summary Judgment/Adjudication Plaintiffs allege that on April 13, 2022, the Decedent was working for RBM, while utilizing a mobile concrete/asphalt crushing plant that was owned and operated by Security, which was located on a piece of property owned by Sully-Miller. (FAC ¶15.) Plaintiffs allege that the Decedent was fatally injured after his arm was caught and pulled into a machine. FAC ¶¶16 and 17.) Defendant Sully-Miller argues that Plaintiffs are precluded from suing Sully-Miller for the Subject Incident under the Privette Doctrine. Specifically, Sully-Miller contends that RBM was an independent contractor, and its employees were not employees or agents of Sully-Miller. As of July 3, 2024, no Opposition(s) have been filed/lodged with this Court. A hirer of a contractor owes no duty of care to the contractors injured employee because the employee has an alternative remedy through the workers compensation system. ( Privette v. Superior Court (1993) 5 Cal.4th 689, 696-702.) [W]hen the person injured by negligently performed contracted work is one of the contractors own employees, the injury is already compensable under the workers compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor. ( Madden v. Summit View, Inc . (2008) 165 Cal.App.4th 1267.) It is unfair to subject the hirer to civil liability while the actor primarily responsible for the injury was subject only to the limited liability imposed by workers compensation law. ( Browne v. Turner Construction Co . (2005) 127 Cal.App.4th 1334, 1342.) Generally, an injured employee of an independent contractor cannot sue the landowner who hired the contractor. ( Seabright Ins. Co. v. U.S. Airways, Inc . (2011) 52 Cal.4th 590, 594.) The remedy for injuries to the contractors employees is workers compensation. ( Id . at 598.) A hirer of a contractor owes no duty of care to the contractors injured employee because the employee has an alternative remedy through the workers compensation system. ( Privette v. Superior Court (1993) 5 Cal.4th 689, 696-702.) [W]hen the person injured by negligently performed contracted work is one of the contractors own employees, the injury is already compensable under the workers compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor. ( Madden v. Summit View, Inc . (2008) 165 Cal.App.4th 1267.) It is unfair to subject the hirer to civil liability while the actor primarily responsible for the injury was subject only to the limited liability imposed by workers compensation law. ( Browne v. Turner Construction Co . (2005) 127 Cal.App.4th 1334, 1342.) Generally, an injured employee of an independent contractor cannot sue the landowner who hired the contractor. ( Seabright Ins. Co. v. U.S. Airways, Inc . (2011) 52 Cal.4th 590, 594.) The remedy for injuries to the contractors employees is workers compensation. ( Id . at 598.) An employer may be liable for injuries suffered by an independent contractors employees because of unsafe conditions at the worksite which the employer controlled. (See McKown v. Wal-Mart Stores, Inc . (2002) 27 Cal.4th 219, 225-226 [claim that employer of independent contractor requested use of unsafe equipment held sufficient to show employer contributed to injuries suffered by contractors employees].); (but see Hooker v. Dept. of Transp . (2002) 27 Cal.4th 198, 214-215 [claim that employer of independent contractor permitted construction vehicles to pass by crane operator creating unsafe condition was not sufficient to show employer contributed to the contractors employees injuries.].) The principal employer is liable only insofar as its exercise of retained control affirmatively contributed to the independent contractor's employee's injuries: Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. ( Hooker v. Department of Transp ., supra, 27 Cal.4th at 215.) [internal quotes omitted]; ( Millard v. Biosources, Inc . (2007) 156 Cal.App.4th 1338, 1348 [no evidence to show general contractor controlled means and methods of subcontractor's employee's work.].) When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee's injury. [¶] By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. Thus, the failure to exercise retained control does not constitute an affirmative contribution to an injury. Such affirmative contribution must be based on a negligent exercise of control. In order for a worker to recover on a retained control theory, the hirer must engage in some active participation. ( Tverberg v. Fillner Constr., Inc . (2012) 202 Cal.App.4th 1439, 1446.) [internal citations omitted.] The following facts are undisputed: · On April 20, 2022, Sully-Miller entered into an agreement with RBM for the work performed at 5625 South Gate, California 90280. (SS No. 1.) · The 2022 Agreement was for RBM to crush concrete and asphalt into base material at Sully-Millers place of business. (SS No. 3.) · Pursuant to the 2022 Agreement, RBM was an independent contractor of Sully-Miller. (SS No. 4.) · Pursuant to the 2022 Agreement, Sully-Miller did not exercise or have any control or supervision over RBM, its operations, or its employees. (SS No. 5.) · Pursuant to the 2022 Agreement, all personnel hired by RBM are considered employees, agents, or subcontractors of RBM and RBM is solely responsible for all persons it employed. (SS No. 6.) · At the time of the Subject Incident, Decedent was employed by RBM. (SS No. 10.) · None of Sully-Millers employees were involved with the Subject Incident, and Sully-Miller received no citations from OSHA. (SS No. 11.) · Sully-Miller does not perform any quality control or safety testing with respect to the mobile crushing plant that was involved in the Incident. (SS No. 24.) · The safety personnel employed by Sully Miller do not have any safety oversight on the mobile crushing plant utilized by RBM and Security. (SS No. 25.) · Sully-Miller was responsible for its employees and did not retain control of the safety of employees of Security or RBM. (SS No. 26.) · Sully-Miller does not monitor the work performed by RBM or its subcontractors or employees. (SS No. 28.) · Sully-Miller did not supervise, direct or instruct any employees of Security or RBM as to how they were to perform their work or how they were to use and/or operate the mobile crushing plant on the date of the Subject Incident. (SS No. 29.) · Sully-Miller does not determine whether RBM or Securitys employees are given certain training. (SS No. 30.) · Sully-Miller did not provide employees of RBM or Security with any equipment to perform the crushing work. Any equipment needed to perform the work was provided by RBM or Security. (SS No. 34.) Sully-Miller has carried its burden to demonstrate that it cannot be held liable for negligence under the Privette Doctrine. As such, the burden shifts to Plaintiffs to raise triable issues as to Sully-Millers liability. As indicated above, Plaintiffs do not oppose this Motion. Therefore, Plaintiffs have failed to raise any triable issues of fact as to Sully-Millers liability. Accordingly, Sully-Millers Motion for Summary Judgment is GRANTED.

Case Number: 23AHCV01642 Hearing Date: July 10, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: July 10, 2024 TRIAL DATE: September 10, 2024 CASE: MARTHA GONZALEZ CHAIDEZ AKA MARTHA GONZALEZ v. FCA US LLC; CHAMPION DODGE, LLC dba CHAMPION CHRYSLER JEEP DODGE RAM FIAT; and DOES 1 through 20, inclusive. CASE NO.: 23AHCV01642 (1) MOTION TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORIES FROM DEFENDANT FCA US LLC, AND REQUEST FOR SANCTIONS (2) MOTION TO COMPEL FURTHER RESPONSE TO SPECIAL INTERROGATORIES FROM DEFENDANT FCA US LLC, AND REQUEST FOR SANCTIONS MOVING PARTY : Plaintiff Martha Gonzalez Chaidez RESPONDING PARTY : FCA US LLC SERVICE: Filed April 9, 2024 RELIEF REQUESTED Compel Defendant FCA US LLC to provide code-compliant responses to Plaintiff Martha Gonzalez Chaidezs First Set of Requests for Production, Nos. 45-46, and First Set of Special Interrogatories, Nos. 45-48. In addition, impose total sanctions of $5,240 ($2,620 per motion) against the defendant and its counsel of record, Ongaro P.C. BACKGROUND This is a lemon law action. Plaintiff Martha Gonzalez Chaidez aka Martha Gonzalez (Plaintiff) alleges that she entered into a warranty contract with Defendant FCA US LLC (FCA) for a vehicle (a 2020 RAM 1500). After defects and nonconformities manifested in the vehicle during the warranty period, Plaintiff delivered the vehicle to an authorized FCA repair facility for repair. However, FCA was unable to conform the vehicle to the applicable warranties. FCA breached its obligations under the Song-Beverly Act by failing to remedy the defects and nonconformities or give restitution. On April 9, 2024, Plaintiff filed the instant motions to compel FCAs further responses to Plaintiffs First Set of Requests for Production (RPD) and Special Interrogatories (SROG). On June 25, 2024, FCA filed its opposition to the RPD motion. On June 26, 2024, FCA filed its opposition to the SROG motion. On July 2, 2024, Plaintiff filed her reply to both oppositions. A jury trial is set for September 10, 2024. TENTATIVE RULING Plaintiffs motions to compel further responses are GRANTED. Defendant FCA US LLC is ordered to serve verified, further responses to Plaintiff Martha Gonzalez Chaidezs First Set of Requests for Production, Nos. 45-46, and First Set of Special Interrogatories, Nos. 45-48, within 30 days of this ruling. The defendant is further ordered to pay the plaintiff total sanctions of $2,840. LEGAL STANDARD On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: ¶ (1) An answer to a particular interrogatory is evasive or incomplete. ¶ (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. ¶ (3) An objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Similarly, [o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: ¶ (1) A statement of compliance with the demand is incomplete. ¶ (2) A representation of inability to comply is inadequate, incomplete, or evasive. ¶ (3) An objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) Except as provided in subdivision (j) [which concerns electronically stored information] the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) DISCUSSION A. Timeliness Motions to compel further response to interrogatories and requests for production must be brought within 45 days of service of the verified response, supplemental verified response, or on a date to which the propounding and responding parties have agreed to in writing; otherwise, the propounding party waives the right to compel further responses. (Code Civ. Proc., §§ 2030.300, subd. (c); 2031.310, subd. (c); but see Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 134-136 [suggesting that the 45-day deadline does not apply to objections-only responses].) [T]he time within which to make a motion to compel production of documents is mandatory and jurisdictional just as it is for motions to compel further answers to interrogatories. ( Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) The 45-day deadline is jurisdictional in the sense that it renders the court without authority to rule on motions to compel other than to deny them. ( Ibid. ) The Court finds the instant motions timely. According to Plaintiffs counsel declaration, FCA served its verifications to its responses on February 22, 2024. (Declarations of Armando Lopez, filed April 9, 2024 (Lopez Decl.), ¶ 4; Exhibits B copies of the responses, Proof of Service pages [showing FCA served the responses electronically].) 45 days from February 22, 2024, was Sunday, April 7, 2024. However, Code of Civil Procedure section 1010.6, subdivision (a)(3)(B) extends by two court days any right or duty to do any act or make any response within any period or on a date certain after the service of the document & by electronic means &. Here, since service was made electronically, the deadline was extended by two court days to Tuesday, April 9, 2024. Plaintiff filed the motions on that date. Therefore, they are timely. B. Meet and Confer The instant motions to compel further responses must be accompanied by a meet and confer declaration. (Code Civ. Proc., §§ 2030.300, subd. (b)(1); 2031.310, subd. (b)(2).) The Court finds that Plaintiff has satisfied the meet and confer requirement for each motion. (Lopez Decl., ¶¶ 5-9.) FCA appears to argue in its oppositions that the meet and confer process was insufficient. However, that is not grounds for denying the motions. Accordingly, the Court will rule on the motions on their merits. C. Separate Statement The motions must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(2), (3).) A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. (Cal. Rules of Court, rule 3.1345(c).) Here, Plaintiff has satisfied the separate statement requirement of each motion. D. RPDs at Issue Plaintiff moves to compel FCAs further responses to RPDs No. 45-46. Those RPDs asked FCA to produce the following, respectively. · All DOCUMENTS evidencing complaints by owners of the 2020 RAM 1500 vehicle regarding any of the complaints that the SUBJECT VEHICLE was presented to YOUR or YOUR authorized repair facilities for repair during the warranty period. · All DOCUMENTS evidencing warranty repairs to 2020 RAM 1500 vehicles regarding any of the components that YOU or YOUR authorized repair facilities performed repairs on under warranty. The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: ¶ (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. ¶ (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. ¶ (3) An objection to the particular demand for inspection, copying, testing, or sampling. (Code Civ. Proc., § 2031.210, subd. (a).) Here, FCA objected to the RPDs, arguing that the requests were vague, ambiguous, overly broad, sought irrelevant information, and sought information protected by the attorney client privilege and work product doctrine. (Separate Statement, pp. 1:6-18, 5:15-28.) In its opposition to the RPD motion, FCA argues that the RPD motion is moot because, on June 25, 2024, it served further supplemental responses to the RPDs, with verifications to follow. (Opposition to RPD Motion, p. 1:14-18.) However, the request to compel FCAs further responses to RPD Nos. 45-46 is not moot because FCA failed to serve verifications. As Plaintiff argues in her reply, [u]nsworn responses are tantamount to no responses at all. ( Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Given that FCA is not opposed to supplementing its initial response to RPD Nos. 45-46, the request to compel further responses to RPD Nos. 45-46 is GRANTED. E. SROGs at Issue Plaintiff also moves to compel FCAs further responses to Plaintiffs SROG Nos. 45-48, which asked FCA the following, respectively. · At the time of release for the 2020 RAM 1500 vehicles, state your anticipated range for repairs per thousand vehicles sold (R/1000). · State the repairs per thousand vehicles sold (R/1000) for 2020 RAM 1500 vehicles. · Identify in order the five symptoms with the highest repairs per thousand (R/1000) for 2020 RAM 1500 vehicles, and the corresponding repairs per thousand. · Identify in order the five components with the highest repairs per thousand (R/1000) for 2020 RAM 1500 vehicles, and the corresponding repairs per thousand. If an objection is made to an interrogatory or to a part of an interrogatory, the specific ground for the objection shall be set forth clearly in the response. (Code Civ. Proc., § 2030.240, subd. (b).) Here, FCA objected to each of the SROGs above, arguing that they seek irrelevant information, are overly broad, and are not limited to any claim, defect, or nonconformity in this case. In opposition to the SROG motion, FCA argues that the request to compel further responses to SROG Nos. 45-48 is moot because it served supplemental responses and is working to obtain verifications for those responses. However, responses without verifications amount to no responses, as stated above. Accordingly, Plaintiffs request to compel FCAs further responses to SROG Nos. 45-48 is GRANTED. F. Request for Sanctions Plaintiff seeks total sanctions of $5,240 ($2,620 per motion) against the defendant and its counsel of record, Ongaro P.C. The requested amount of $2,620 consists of 2.4 hours Plaintiffs counsel spent on the moving papers, 2 hours counsel anticipated spending reviewing the opposition and drafting a reply, 2 hours counsel anticipates spending preparing for and attending the hearing, a total of 6.4 hours at counsels billing rate of $400 per hour ($,2,560), plus a $60 filing fee. (Lopez Decl., ¶¶ 9-10.) Under the relevant statutes, a court shall impose monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand or interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2031.310, subd. (h); 2030.300, subd. (d).) Here, FCA argues that sanctions are not warranted because Plaintiff prematurely abandoned the meet and confer efforts, did not have legitimate grounds for bringing the motion, the defendant substantially complied with the discovery requests, and even though the defendants objections were valid, it willingly supplemented its responses. However, FCA did not serve verifications. In addition, Plaintiff did not prematurely abandon the meet and confer process if she only had 45 days under the relevant statute to bring the motion or lose that right. Although FCA states it would have extended the motion to compel deadline, Plaintiff was not required to agree to an extension. Finally, FCAs responses to the RPDs were not code-compliant. According to the relevant statute, If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. (Code Civ. Proc., § 2031.240, subd. (b).) Here, FCA did not comply with subdivision (a) of that statute. Therefore, the Court finds the imposition of sanctions proper. However, the Court finds the requested sanctions of $2,620 per motion excessive because some papers were nearly identical to each other (specifically, the declarations filed in support of the moving papers, opposition papers, and reply papers), making it unlikely that Plaintiffs counsel spent the same amount of time on each motion. It is also unlikely that Plaintiffs counsel will spend 4 hours at the hearing (i.e., 2 hours per motion). Accordingly, the Court will only impose sanctions of $1,420 (i.e., 3.4 hours at counsels billing rate of $400 per hour, plus a $60 filing fee) against FCA per motion (total of $2,840). CONCLUSION Plaintiffs motions to compel further responses are GRANTED. Defendant FCA US LLC is ordered to serve verified, further responses to Plaintiff Martha Gonzalez Chaidezs First Set of Requests for Production, Nos. 45-46, and First Set of Special Interrogatories, Nos. 45-48, within 30 days of this ruling. The defendant is further ordered to pay the plaintiff total sanctions of $2,840 within 30 days. Moving party to give notice. Dated: July 10, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org