Related Content
in Kern County
Ruling
ELIA ROSA MERCADO LEIVA VS MICKEY VASQUEZ, ET AL.
Jul 09, 2024 |
21STCV35189
Case Number:
21STCV35189
Hearing Date:
July 9, 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
:
July 9, 2024
CASE NUMBER
:
21STCV35189
MOTIONS
:
Motion for Order Authorizing and Requiring Release of Cell Phone Records
MOVING PARTY:
Defendants Mickey Vasquez, Red Bull North America, Inc.,
and
Red Bull Distribution Company, Inc.
OPPOSING PARTY:
None
BACKGROUND
Defendants Mickey Vasquez, Red Bull North America, Inc.,
and
Red Bull Distribution Company, Inc.
(Defendants) move to compel compliance with a deposition subpoena for Defendant Mickey Vasquezs cell phone records served on non-party T-Mobile USA, Inc. Plaintiff Elia Rosa Mercado Leiva (Plaintiff) has filed a notice of non-opposition. No other opposition has been filed.
LEGAL STANDARD
A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command either: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿
A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿A motion to compel compliance with a deposition subpoena must be made within 60 days after completion of the deposition record, the date objections are served, or the date specified for production, and be accompanied by a meet and confer declaration. (Code Civ. Proc., §2025.480, subd., (b);
Board of Registered Nursing v. Sup.Ct.
(Johnson & Johnson) (2021) 59 CA5th 1011, 1032-1033.)
California Code of Civil Procedure section 1987.1, subdivision (a) states, [i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the courts own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.
California Code of Civil Procedure section 1987.2, subdivision (a) states, in relevant part, . . . in making an order pursuant to motion made . . . under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorneys fees, if the court finds the motion was made or opposed in bad faith or without substantial justification
. . . .
MEET AND CONFER
The Declaration of Anneke J. Shepard
,
Defendants counsel, does not describe a meet and confer effort.
DISCUSSION
On June 5, 2024, Defendants personally served a subpoena on T-Mobile USA, Inc. (T-Mobile) requesting cell phone records for
Mickey Vasquez (Vasquez). Plaintiff alleges Vasquez was using his cell phone when the subject motor vehicle accident took place. Defendants dispute this theory. Therefore, both parties appear to seek the cell phone records to support their various positions. However, Defendants filed this motion before T-Mobile objected to the subpoena or failed to comply. Defendants appear to bring this motion because Plaintiff previously subpoenaed the records in August 2023. (Shepard Decl. ¶ 2, Exh. A.) However, at the time, T-Mobile objected that it would not produce the records absent a Court order. It does not appear that Plaintiff attempted to move to compel the subpoena at that time.
The instant motion was filed on June 5, 2024. However, the production date specified on their subpoena is June 25, 2024. (Shepard Decl. Exh. F.) Defendants bring this motion anticipating that T-Mobile will also request a Court order before producing the documents. No opposition and no reply has been filed for this motion. Therefore, Defendants produce no evidence that T-Mobile objected or failed to comply with the subpoena. Defendants however attach declarations from Mickey Vasquez and Tania Vasquez, owners of the subject cell phone number, giving authorization for releasing their cell phone records. (
Id.
¶¶ 56, Exh. D, E.)
A nonparty must comply (or not) with the subpoena on the date specified for production. If a party is not satisfied with the nonparty's compliance, the party has 60 days in which to meet and confer with the nonparty. These meet and confer efforts do not affect the mandatory 60-day deadline. The meet and confer process is part of the 60-day period in which to file a motion; it does not extend it. If the party is still unsatisfied with the nonparty's compliance with any portion of the subpoena at the end of this period (because, for example, the nonparty still has not produced the requested documents), the party may file a motion to compel. (
Board of Registered Nursing v. Superior Court of Orange County
(2021) 59 Cal.App.5th 1011, 103435.)
Therefore, since there is no evidence that T-Mobile objected to the subpoena or failed to comply, the motion to compel compliance is conditionally denied, subject to Defendant providing updated information at the hearing. The Court further notes that counsels failure to meet and confer further provides the Court with no information regarding T-Mobiles position as to this current motion.
Ruling
AUGUSTINIE ROTIBI VS STARBUCKS INC.
Jul 09, 2024 |
11/28/2022 |
22SMCV00902
Case Number:
22SMCV00902
Hearing Date:
July 9, 2024
Dept:
N TENTATIVE RULING
Defendant Starbucks Corporations Demurrer to Plaintiffs Second Amended Complaint is SUSTAINED without leave to amend.
Defendant Starbucks Corporations Motion to Strike Portions of Plaintiffs Second Amended Complaint is DENIED as MOOT.
Defendant Starbucks Corporation shall prepare, serve, and submit a proposed judgment per statute.
Defendant Starbucks Corporation to give notice.
REASONING
Defendant Starbucks Corporation (Defendant) demurs to Plaintiff Augustine Rotibi (Plaintiff)s single cause of action for violation of the Unruh Civil Rights Act in Plaintiffs Second Amended Complaint (SAC) and moves to strike Plaintiffs claim and prayer for punitive damages.
[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 Ins. 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 (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).
Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
First Cause of Action: Unruh Civil Rights Violation The elements of a claim for violation of the Unruh Civil Rights Act are (1) defendant is a business establishment, (2) defendant intentionally denied plaintiff accommodations, advantages, privileges, facilities, or services, (3) defendant was motivated to do so based on its perception that plaintiff belonged to a statutorily defined group, (4) plaintiff was harmed, and (5) defendants conduct was a substantial factor in causing plaintiffs harm. (See Civ. Code, § 51; In re Cox (1970) 3 Cal.3d 205, 216.) The objective of the Act is to prohibit businesses from engaging in unreasonable, arbitrary or invidious discrimination. Therefore, the Act applies not merely in situations where businesses exclude individuals altogether, but also where treatment is unequal. (Pizarro v. Lambs Players Theatre (2006) 135 Cal.App.4th 1171, 1174, citations omitted.)
In its prior rulings on Defendants demurrer to the initial pleading and Defendants demurrer to the First Amended Complaint, the Court ruled that Plaintiff had not alleged sufficient facts to support his claim for violation of the Unruh Civil Rights Act, and Plaintiff has again made no amendments to his claim here. Plaintiff again alleges that he ordered a tea with a spike of lemonade, and when he asked for a refill, he was charged the full amount of the drink based on the color of his skin. (SAC ¶¶ 12, 14, 19-21, 26.) Plaintiff alleges that his client, a Caucasian female, was only charged 50 cents for a refill of the same drink, and he observed other patrons, all Caucasian, requesting and getting a refill for their drinks without any questions or refusal, and discounted rates were only offered to patrons that were Caucasian. (SAC ¶¶ 15, 19, 20.) The Court previously ruled that Plaintiff had not alleged that any discrimination against him was intentional, and Plaintiff had also failed to allege how the corporation may be liable for the cashiers actions.
Plaintiff has added no substantive allegations here, continuing to rely on the same facts. Thus, there remain insufficient facts to support a claim for violation of the Unruh Civil Rights Act, as Plaintiff has provided only conclusions to support his claim without alleging intentional discrimination or facts which may support liability against Defendant for the cashiers actions. Given that the Court has allowed Plaintiff two opportunities to amend his pleading to state sufficient facts, and he instead relies only on the same facts in each new iteration of the pleading, the Court lacks a basis to conclude that amendment will cure the deficiencies in the pleading, and Plaintiffs opposition does not compel a different conclusion, as he provides no information about possible amendments, instead focusing solely on the veracity of the current facts.
Accordingly, Defendant Starbucks Corporations Demurrer to Plaintiffs Second Amended Complaint is SUSTAINED without leave to amend. Defendant Starbucks Corporations Motion to Strike Portions of Plaintiffs Second Amended Complaint is DENIED as MOOT. Defendant Starbucks Corporation shall prepare, serve, and submit a proposed judgment per statute.
Ruling
DIEGO RODRIGUEZ BARRERA, ET AL. VS JOSE FUENTES VEGA, ET AL.
Jul 11, 2024 |
23TRCV00434
Case Number:
23TRCV00434
Hearing Date:
July 11, 2024
Dept:
B
Superior Court of
California
County
of Los Angeles
Southwest District
Torrance Dept. B
DIEGO RODRIGUEZ BARRERA, et al.,
Plaintiffs,
Case No.:
23TRCV00434
vs.
[Tentative] RULING
JOSE FUENTES VEGA, et al.,
Defendants.
Hearing Date:
July 11, 2024
Moving Parties:
Proposed intervenor National Continental Insurance Company
Responding Party:
None
Motion to Intervene
The Court considered the moving papers.
No opposition was filed.
RULING
The motion is GRANTED.
National Continental Insurance Company is ordered to file its complaint-in-intervention within five days.
BACKGROUND
On February 15, 2023, Diego Rodriguez Barrera and Yaneth Alexandra Rizzo Verel filed a complaint against Jose Fuentes Vega and Alcocer, Inc. for motor vehicle negligence based on an incident that occurred on December 28, 2021, at LAX.
On December 12, 2023, the court granted plaintiffs motion to serve the secretary of state as to Alcocer.
DISCUSSION
National Continental Insurance Company (National) requests leave to file a complaint-in-intervention on behalf of defendants Jose Fuentes Vega and Alcocer, Inc. pursuant to CCP §387.
CCP §387(d) states:
(1)
The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied:
(A)
A provision of law confers an unconditional right to intervene.
(B)
The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that persons ability to protect that interest, unless that persons interest is adequately represented by one or more of the existing parties.
(2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both.
To establish a direct and immediate interest in the litigation for purposes of permissive intervention, a non-party seeking intervention must show that he or she stands to gain or lose by direct operation of the judgment, even if no specific interest in the property or transaction at issue exists.
Simpson Redwood Co. v. State of California
(1987) 196 Cal. App. 3d 1192, 1201.
Whether the interveners interest is sufficiently direct must be decided on the facts of each case . . . . And section 387 should be liberally construed in favor of intervention.
Id.
at 1200.
In order that a party may be permitted to intervene it is not necessary that his interest in the action be such that he will inevitably be affected by the judgment.
It is enough that there be a substantial probability that his interests will also be so affected.
'The purposes of intervention are to protect the interests of those who may be affected by the judgment . . . .'"
Timberidge Enterprises, Inc. v. City of Santa Rosa
(1978) 86 Cal. App. 3d 873, 881-82 (citations and italics omitted).
Under California law, an insurance carrier who is not a party to an action can intervene on behalf of its insured when the insurance carrier could be subject to a subsequent action under Ins. Code §11580.
See
Reliance Ins. Co. v. Superior Court
(2000) 84 Cal. App. 4th 383, 386, where the court states:
An insurers right to intervene in an action against the insured, for personal injury or property damages, arises as a result of Ins. Code section 11580.
Section 11580 provides that a judgment creditor may proceed directly against any liability insurance covering the defendant, and obtain satisfaction of the judgment up to the amount of the policy limits.
Thus, where the insurer may be subject to a direct action under Insurance Code section 11580 by a judgment creditor who has or will obtain a default judgment in a third party action against the insured, intervention is appropriate.
Id.
See also
Jade K. v. Viguri
(1989) 210 Cal. App. 3d 1459, 1468 (permitting an insurer to intervene in lawsuit to litigate liability and damage issues).
National contends that it is the liability insurer for defendants Vega and Alcocer, Inc.
National retained Olson Law Group, APC (OLG) to represent defendants.
Despite diligent efforts, OLG has not established contact with Alcocer and has been unable to maintain contact with Vega.
See Heather Lunn decl.
If defendants cannot defend themselves, and no defense is provided by National on defendants behalf, a default judgment will be obtained and enforced against defendants.
National, as defendants insurer, could be required to satisfy that judgment up to the policy limits.
Thus, National has a real, immediate, and concrete interest in the matter that is the subject of this litigation.
Intervention will not enlarge the issues in this case.
The Court finds that National has met its burden under CCP §387(d).
National is so situated, as the insurer, that the disposition of the action against defendants may, as a practical matter, impair or impede Nationals ability to protect that interest.
Nationals interest is not adequately represented by its insured.
The motion for leave to intervene is therefore GRANTED.
ORDER
The motion is GRANTED.
National is ordered to file its complaint-in-intervention within five days.
National is ordered to give notice of the ruling.
Ruling
EDUARDO MARTINEZ VS SATVIR SINGH, ET AL.
Jul 09, 2024 |
22LBCV00979
Case Number:
22LBCV00979
Hearing Date:
July 9, 2024
Dept:
S27
1.
Background Facts
Plaintiff, Eduardo Martinez filed this action against Defendants, Satvir Singh and Gobind Trucking, Inc. for damages arising out of an automobile accident.
2.
Motion to Compel Further Responses
a.
Analysis
On 12/15/23, Defendants filed this motion to compel further responses to SROGs, set one, setting it for hearing on 7/09/24.
Any opposition to the motion was due on or before 6/25/24.
Plaintiff has not filed timely opposition to the motion.
However, on 12/11/23, four days before Defendants filed the motion on calendar today, Plaintiff filed a motion for relief from discovery objections.
Plaintiff set the motion for hearing on 8/27/24.
The motion seeks relief from waiver of objections in connection with, in pertinent part, the same SROGs, set one, that form the basis of Defendants motion to compel further responses.
Further complicating the matter, on 4/17/24, Plaintiff filed two motions to compel further responses one directed at Defendants responses to FROGs and the other directed at Defendants responses to SROGs, and set those motions for hearing on 9/17/24.
The Court is hopeful the fact that the motion on calendar today is unopposed means the parties have been meeting and conferring in an attempt to resolve their issues.
In the event that is incorrect, the Court finds todays motion to compel further responses and the 8/27/24 motion for relief from waiver of objections should be heard together.
The hearing on todays motion to compel further responses is therefore continued to 8/27/24.
If the parties have resolved their issues, they must take the motions off calendar using the online reservation management system.
If the parties have not resolved their issues, they must both file timely opposition and reply papers.
In the interest of efficiency, the Court is also advancing the 9/17/24 hearing date and continuing it to 8/27/24.
Again, if the parties resolve their issues, they must take the motions off calendar.
If they do not resolve their issues, they must file timely opposition and reply papers.
If, between now and 8/27/24, additional discovery motions are filed, the Court will consider appointment of a discovery referee in lieu of ruling on the parties voluminous discovery disputes.
If the parties wish to avoid appointment of a discovery referee, they must meet and confer in good faith in an attempt to resolve all outstanding disputes without the need for the 8/27/24 hearing.
b.
Final Note
On 7/01/24, Plaintiff filed a grossly untimely opposition to the motion.
The Court had already prepared the tentative ruling, above, before Plaintiff submitted the opposition.
The Court wishes to note a number of incorrect statements in the opposition.
The opposition incorrectly asserts that an IDC is mandatory, quoting the rules that apply in the personal injury hub courts.
This case is assigned to an IC department in Long Beach, not the personal injury hub courts.
Plaintiff also incorrectly states that the law does not permit imposition of sanctions when a motion becomes moot prior to resolution.
CRC 3.1348(a) specifically permits the Court to impose sanctions even if there is no opposition, opposition is withdrawn, or the requested discovery is provided after the motion is filed.
The Court is not inclined to change its tentative ruling in light of the untimely opposition papers.
Defendants are ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.
Ruling
FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)
Jul 11, 2024 |
FCS057573
FCS057573
Motions for Contempt
TENTATIVE RULING:
Petitioner’s “motions” for contempt are denied.
No affidavit of the facts constituting any contempt has been presented to the
court. The filing of a sufficient affidavit is a jurisdictional prerequisite to a
contempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court
(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court
(1951) 103 Cal.App.2d 512, 541.)
Page 1 of 1
Ruling
BURT vs HEMET UNIFIED SCHOOL DISTRICT
Jul 11, 2024 |
CVSW2401982
BURT VS HEMET UNIFIED DEMURRER TO COMPLAINT BY
CVSW2401982
SCHOOL DISTRICT HEMET UNIFIED SCHOOL DISTRICT
Tentative Ruling:
The Demurrer is unopposed. The Demurrer is SUSTAINED. The 1COA fails to provide
statutory authority for the negligence action pursuant to Gov. Code Section 815. If Plaintiff has
such a statute in mind, Plaintiff should request a hearing for leave to amend. Otherwise, leave
to amend will be denied.
Ruling
SETOGUCHI vs SALLER
Jul 10, 2024 |
CVRI2401065
Motion to be Relieved as Counsel for
CVRI2401065 SETOGUCHI vs SALLER
MAMICHI SETOGUCHI
Tentative Ruling: Grant Motion to be Relieved as Counsel.
Ruling
DOE vs PALM SPRINGS UNIFIED SCHOOL DISTRICT
Jul 11, 2024 |
CVPS2204948
Motion to Compel Plaintiff’s Guardian Ad
Litem to Appear for Deposition by
Defendant DAVID SILVA
DOE vs PALM SPRINGS -And Joinder
CVPS2204948
UNIFIED SCHOOL DISTRICT Defendant Palm Springs Unified School
District's Joinder to Motions to Compel
Appearances at Depositions by Defendant
David Silva
Tentative Ruling: On the Court’s own motion, this matter is continued to July 12, 2024 at 8:30 a.m.
No further briefing may be filed.