Jun 27, 2016

TENTATIVE RULINGS                                                      UPDATED

LAW & MOTION CALENDAR

Wednesday, June 22, 2016, 3:00 p.m.

Courtroom 17 – Hon. Gary Nadler

3035 Cleveland Avenue, Suite 200, Santa Rosa

 

CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.

 

The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Nadler’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, June 21, 2016.   Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

 

 

 

 

 

 

 

 

 

 

 

 

1.  MCV-235326, Cavalry SPV I, LLC v. Garcia

Appearance required.

 

 

2.  SCV-253530, Metcalf v. Associated Insulation of California

Defendant Bailey, Inc.’s motion to amend answer is denied.

 

Defendant Bailey’s Request for Judicial Notice as to Exhibit 1 is granted.

           

Trial in this action was initially set for October 31, 2014.  At the Court’s request, the trial date was continued to March 20, 2015.  The Court then trailed the trial date, eventually setting trial for July 10, 2015.  Based on the scheduling conflicts of Bailey’s counsel with the July 10, 2015 trial date, the parties stipulated to continue the trial and a new trial date was set for October 9, 2015.  Prior to the October trial date, counsel for Bailey filed an ex parte application again seeking to continue the trial based on Bailey’s counsel’s schedule conflicts.  Bailey’s request was granted and the trial was rescheduled to February 26, 2016.  Once again, counsel for Bailey requested a trial continuance and the court agreed to continue the trial to its currently scheduled date of August 5, 2016.     

 

On May 23, 2016, Bailey filed this motion for leave to amend its answer to assert the new affirmative defense of laches.  In its motion, Bailey claims that despite the fact that Plaintiffs had knowledge of Bailey’s existence during the underlying personal injury action that Mr. Metcalf initiated prior to his death, Plaintiffs never properly served Bailey with the First Amended Complaint in that underlying personal injury action.  Bailey claims that because it was not properly served with the complaint in that underlying action, it did not participate in that action and was not present when Mr. Metcalf was deposed in that action.  As a result, Bailey argues that it was unfairly deprived of the opportunity to depose the decedent and suffered irreparable harm through no fault of its own in this subsequent wrongful death action.  This argument is the basis for the laches defense that Bailey seeks now to add to its answer.  Bailey asserts that laches is a valid defense to Plaintiffs’ claims which could dispose of this action altogether.  Therefore, Bailey argues that allowing this amendment is necessary to further the interests of justice. 

           

In opposition, Plaintiffs argue that the motion for leave to amend should be denied because laches is not a valid defense in this action, which is not based in equity but is based in law and seeks only monetary damages.  Additionally, Plaintiffs argue that Bailey’s request for leave is excessively dilatory and that Plaintiffs will be prejudiced if the amendment is allowed.  With respect to prejudice, Plaintiffs argue that if the amendment is permitted, Plaintiffs will file a demurrer, and based on the August 5, 2016 trial date, Plaintiffs will need to seek ex parte relief to have the demurrer heard on shortened time, thereby incurring significant additional costs.  Furthermore, Plaintiffs argue that they will be prejudiced in that they will be denied a reasonable opportunity to conduct discovery and will be precluded from filing a motion for summary judgment as to the new affirmative defense without further delaying the trial date, which Plaintiffs appear unwilling to do.

           

In its reply, Bailey primarily argues that the court has discretion to allow the equitable defense of laches in an action at law.  However, this argument is secondary to the primary issue, which is whether Plaintiffs will be prejudiced by allowing the amendment.  With respect to that issue, Bailey argues only that if Plaintiffs choose to file a demurrer to the amendment, this alone cannot be “prejudice” because such a filing would be optional.  This argument is not persuasive because based on this logic, presumably discovery and perhaps even trial, could also be considered optional.  Thus, Bailey has failed to demonstrate that Plaintiffs will not be prejudiced by the proposed amendment.

 

Although courts are bound to apply a policy of great liberality in permitting amendments … this policy should be applied only where no prejudice is shown to the adverse party …. and a different result is indicated where inexcusable delay and probable prejudice to the opposing party is shown.  (See, Magpali v. Farmers Group., Inc., (1996) 47 Cal.App.4th 1024, 486-87; see also, Estate of Murphy (1978) 82 Cal.App.3d 304, 311.)

 

Plaintiffs’ original complaint in this action was filed in 2012 and the operative First Amended Complaint was filed in 2013.  Thus, it has been four years since this action was filed and nearly four years since Bailey appeared as a Defendant.  Bailey does not claim that it was somehow unaware of the original personal injury action, and Bailey does not claim that there are any new or different facts that have been discovered which would justify the long delay in seeking this relief.  To the contrary, it appears that Bailey knew of the facts underlying this motion, i.e., the alleged failure of service of the First Amended Complaint in the underlying action and its purported inability to depose the (now) decedent, from the very day Plaintiffs filed and served their complaint.  In addition, while this delay alone is not necessarily sufficient to warrant denying the motion, Plaintiffs have demonstrated that they would be unduly prejudiced if the requested amendment is permitted.  As described in their opposition, Plaintiffs would file a demurrer to the proposed amendment.  While Plaintiffs’ decision to file a demurrer, by itself, would not amount to prejudice, the fact that the impending August 5, 2016 trial date would require Plaintiffs’ to seek ex parte relief for its demurrer to be heard on shortened time, thereby incurring additional fees and costs, is prejudice caused solely by the delay.  Additionally, Plaintiffs correctly contend that if the amendment is permitted, they will be entitled to conduct discovery regarding Bailey’s new affirmative defense of laches and based on the August 5, 2016 trial date, they will not have a reasonable opportunity to conduct this discovery without further delaying the trial date. Because Bailey’s proposed amended answer asserts the laches defense as a legal conclusion, without any supporting facts, the answer is potentially defective but at a minimum, Plaintiffs should be entitled to conduct discovery.  In general, any issue on which defendant bears the burden of proof is an “affirmative defense” and must be specifically pleaded in the answer.  (Weil & Brown, Civ. Proc. Before Trial (Rutter 2015) §6:431, 6-128, citing to Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.)  An answer must aver facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.”  (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.

 

Finally, Plaintiffs correctly argue that if the amendment is permitted, they will be precluded from bringing a motion for summary adjudication as to Bailey’s new laches defense because the deadline for filing such a motion has already run. 

 

Here, Bailey has offered no excuse whatsoever for delaying nearly four years to seek leave to assert a laches defense.  On the face of its motion, Bailey knew or should have known that the basis for this defense existed at the time the complaint was filed.  Instead, Bailey has delayed nearly four years and less than six weeks before trial, to file this motion.  Thus, the court finds that the delay in seeking amendment as here sought is an unreasonable and inexcusable delay.  Moreover, the court finds that Plaintiffs have sufficiently demonstrated that they would be prejudiced if the proposed amendment were allowed, including by the additional time and expenses that would be incurred in pleadings and discovery to address this new defense and the likelihood that a further trial continuance would be necessary.

 

Plaintiffs’ counsel is directed to prepare a final order consistent with this tentative and in compliance with California Rules of Court, Rule 3.1312.

 

 

3.  SCV-253987, Doe v. Doe

Defendants Lynda S. and Carl S., and by joinder Kathryn S., move for judgment on the pleadings.  The motion is aimed at the complaint and as to each cause of action. Although unopposed, the court denies the motion.

 

The applicable statute of limitations for the causes of action at issue is Code of Civil Procedure section 340.1.  Plaintiff’s claims are facially timely under that statute as she was only 19 when she filed the complaint.  This applies to any “action for recovery of damages suffered as a result of childhood sexual abuse,” not just causes of action for the childhood sexual abuse itself.  Subdivision (e) defines what acts constitute “childhood sexual abuse” and adds that “[n]othing in this subdivision limits the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged perpetrator of the abuse.”  Thus, for example, causes of action for “negligence” or “intentional tort” may fall within the statute of limitations period of Code of Civil Procedure section 340.1 even if not themselves expressly “childhood sexual abuse,” as long as they are for conduct that was a legal cause of damages that arose from childhood sexual abuse.  See Joseph v. Johnson (2009) 178 Cal.App.4th 1404.  The certificate of merit does not apply because Plaintiff filed the action less than 3 years after attaining the age of maturity and in any case it does not apply to the claims against Carl, who was the actual alleged perpetrator of the abuse.  Nothing supports the application of laches to these causes of action and the allegations of sexual abuse and conspiracy to trial all support punitive damages.  Finally, a motion for judgment on the pleadings may technically only attack a cause of action, not a request for damages.  Code of Civil Procedure section 438.

 

 

4.  SCV-255586, Ferguson v. Levine

Defendant’s motion to set aside default judgment is granted.

 

Defendant Max Levine (“Levine”) moves to set aside entry of default and default judgment pursuant to Code of Civil Procedure sections 473 and 473.5.  Default judgment was entered on September 23, 2015 against Levine in the amount of $500,000,000.

 

Levine’s unopposed request for judicial notice is granted.  Levine’s evidentiary objections to Plaintiff’s declaration and the exhibits attached thereto are sustained.

 

“Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default or default judgment. [CCP § 473.5] … If the summons was not properly served, relief from default or default judgment should be sought under CCP § 473(d) (relief from void judgments; see ¶5:485).”  (Weil and Brown, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-G, §5:420.)

 

Levine states in his declaration that he has lived in Berkeley, California, since January 1, 2014.  (Levine Dec., ¶3.)  He sold his business in Alabama on April 17, 2014.  (Levine Dec., ¶11.)  Plaintiff filed this action two months later on June 10, 2014.

 

According to the proof of service of the summons and complaint, Levine was served at his former business in Alabama by substitute service on October 31, 2014.  (Levine’s Request for Judicial Notice, Ex. D.)  However, the proof of service contains no declaration of diligence evidencing attempts to first personally serve Levine.  Levine further states he has “never received documents that were claimed to have been given or mailed to the Alabama address.”  (Levine Dec., ¶9.) 

 

Plaintiff has not demonstrated Levine was properly served by substitute service pursuant to Code of Civil Procedure section 415.20(b).  The proof of service does not include a declaration of reasonable diligence showing Plaintiff attempted to first personally serve Levine as required.  Therefore, the default and default judgment are void and subject to being set aside pursuant to Code of Civil Procedure section 473(d).

 

Even if the default judgment were not void, Plaintiff has failed to provide admissible evidence rebutting Levine’s declaration stating he did not have actual notice of this action.  Levine’s declaration does not reveal that he avoided service or otherwise acted with inexcusable neglect.  (Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077-78.)  Plaintiff has also failed to establish that he would suffer prejudice if this motion were granted.  Therefore, Levine is alternatively entitled to relief under Code of Civil Procedure section 473.5.

 

Defendant shall file a responsive pleading within 20 days. 

 

A Case Management Conference is scheduled for Thursday, August 4, 2016, at 3:00 p.m. in Courtroom 17.  Case Management Statements are due 15 days prior to the Case Management Conference.

 

Defendant shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter.  The opposing party shall inform the preparing counsel of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order.  The preparing party shall submit the proposed order and any objections to the court pursuant to California Rules of Court, Rule 3.1312.

 

 

5.  SCV-257030, Reinhardt v. Bo Dean Co., Inc.

The court here addresses three motions for summary judgment.

 

            A.        Defendant State of California’s motion for summary judgment:

 

A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”  Government Code sections 830(a) and 830.2. 

 

The question of whether a condition of property creates a “substantial risk” is related to the likelihood that an injury will occur, not to the extent of any such injury.  Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 130, fn.5.  A number of factors may be considered in determining whether a given risk is substantial, including the physical description of the condition, the time and place of the accident, and the existence of evidence that others were similarly injured.  Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.  However, the dangerous condition of public property need not constitute the sole reason for the accident and a public entity cannot establish an entitlement to summary judgment merely by showing that a third party’s conduct was a cause of plaintiff’s injuries; rather, it must establish that plaintiff would be unable to present evidence that any condition of the public property where the accident occurred was also a substantial causative factor in bringing about his or her injuries.  Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 769.

 

Here, Plaintiff’s complaint alleges that “[t]he Roadway is poorly constructed so that it is neither flat nor level.  There is a bump in the Roadway surface that is sufficient to cause a vehicle that is moving at the speed limit to bounce sufficiently to lose traction on the Roadway surface.”  (Complaint at ¶21, p. 6:6-9.)  Additionally, Plaintiff alleges that “[a]s plaintiff drove along the Roadway, his vehicle drove over the bump in the Roadway.  This caused the back end of Plaintiff’s vehicle to lose traction as it rounded the curve.”  (Complaint at ¶22, p. 6:13-14.)  Plaintiff alleges that “[a]s a result, Plaintiff’s vehicle began to slide toward the edge of the Roadway and the ditch that lay beyond the right shoulder.”  (Complaint at ¶22, p. 6:14-16.)  Plaintiff alleges that he “attempted to regain control of his vehicle, but was unable to do so as a result of the slippery surface of the Roadway.”  (Complaint at ¶22, p. 6:16-17.)  As a result, “Plaintiff’s vehicle struck an abutment and turned on its roof.  (Complaint at ¶22, p. 6:17-18.)

 

In its motion, the State argues that Plaintiff’s claim has no merit and summary judgment is warranted because Plaintiff will not be able to establish that the “bump in the Roadway” constituted a “dangerous condition” as defined by the code; that the accident was “proximately caused” by the “bump in the Roadway;” or that Plaintiff was acting with “due care.”  The State bases its argument on Plaintiff’s deposition testimony and its Undisputed Material Facts (“UMF”).  Primarily, the State relies on UMF 4 – that the bumps or “dips” in the roadway were “approximately 30 yards before the curve in the roadway;” UMF 6 – “Plaintiff maintained control of the truck going through the curve;” and UMF 7 – “[a]s Plaintiff came around the curve, he accelerated in a downhill section of the road.”  Plaintiff does not dispute any of these facts. 

 

In its opposition, Plaintiff clarifies his theory of the accident and contends that the rear tire of his truck slid on an accumulation of “loose cinders” that the State had placed on the roadway to increase traction in icy conditions and that it was only when Plaintiff tried to recover did his truck fishtail and then lose control.  (Opp. at 2:9-16.)  In support of this argument, Plaintiff cites to testimony from Thomas Kwok and James Kracke, witnesses designated by the State as the persons most knowledgeable.  These witnesses testified in part that “[a]s part of its ‘Ice Patrol’ CalTrans spreads red volcanic gravel called ‘cinders’ on the roadway when ice is present, to provide traction on the ice;” that these cinders were last applied in the area of the accident on February 3, 2014, just nine days before the accident; the last time the cinders were swept from the roadway was December 17, 2013; and an accumulation of cinders is a safety hazard as tires can slip on the cinders.  (Kracke Depos., 34:13-16; 41:10-47:6; 59:4-60:12.)  Additionally, Plaintiff submits the declarations of three expert witnesses, including Armen Tajirian, David Eisenbeisz and Dale Dunlop.  These declarations state facts that support Plaintiff’s argument that the “loose cinders” likely caused, or contributed to the accident.  (See, Dunlop Dec. at ¶¶8, 10, 11, and Eisenbeisz Dec. at ¶¶8, 22-24.) 

 

The State, in its reply, relies on Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, which provides that the “pleadings delimit the issues to be considered on a motion for summary judgment.  Thus, a defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.  To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings.  If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion.  [T]he pleadings delimit the scope of the issues’ to be determined and ‘[t]he complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff's cause of action.  [Plaintiff's] separate statement of material facts is not a substitute for an amendment of the complaint.”  Laabs, supra, 163 Cal.App.4th at 1253.  However, the court in Laabs also recognized that “new factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them.  In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.”  (Id., at 1257.)  Here, although Plaintiff’s complaint identifies the “bump in the roadway” as creating a dangerous condition, it also includes broad allegations that the roadway was slippery and that the State contributed to the dangerous condition by negligently maintaining the road and failing to regularly clean it.  Based on these broad allegations, the new facts alleged in Plaintiff’s opposition arguably arise from the same general set of facts alleged in the complaint.  As such, the argument made by Plaintiff is properly considered.  Accordingly, the court finds there are triable issues of material fact regarding the presence of the cinders on the roadway; whether the cinders were a proximate cause of Plaintiff’s accident; and whether the State was sufficiently on notice that the cinders, if present, created a dangerous condition.  Accordingly, the State of California’s motion for summary judgment is denied.     

 

Plaintiff’s counsel is directed to prepare a final order consistent with this tentative and in compliance with California Rules of Court, Rule 3.1312.

 

            B.        Defendant Canyon Rock Co., Inc.’s motion for summary judgment:

 

Defendant Canyon Rock Co., Inc.’s Request for Judicial Notice as to its Exhibit A is granted pursuant to Evidence Code section 452(h).  Defendant’s Objections to Evidence 1-7 are granted.  Defendant’s Objections to Evidence 8-11 are denied.

 

In his complaint, Plaintiff asserts a single cause of action against Defendant for premises liability, based in negligence.  In its motion, Defendant argues that “the evidence demonstrates that no dust, rock, or other material were present on the roadway when the alleged accident occurred, [] there is no evidence that [Defendant] caused any such material to be on the roadway [and] there is no evidence that plaintiff’s accident was caused by the existence of any materials on the roadway.”  (Motion at p. 5:19-24.) 

 

Defendant points to Plaintiff’s deposition testimony to support that there was no material on the road at the time of the accident.  Although unclear, Plaintiff testified that “[t]here’s a lot of dust there from Canyon Rock … the whole valley is filled with dust … [s]o there’s always some dust in the cracks along there.”  (Jacobson Dec. at Ex. A, 169:24-170:5.)  Plaintiff then testified that “[t]he dust was mostly in the air.”  (Id., at 170:6-14.)  However, in response to a question if he had taken any medication on the morning of the accident, Plaintiff responded “No.  And I would like to strike that dust in the air thing.  I didn’t see any dust but it’s always dusty there.  But it was early in the morning so they hadn’t started working.”  (Id., at 170:18-22.)  On the second day of his testimony, Plaintiff stated that immediately after the accident, he was looking around and “there’s a lot of dirt there. You can’t see the road.  You can’t even see this side of the road right there.”  (Jacobson Dec. at Ex. B, 326:2-9.)  Finally, in response to the question of whether he believed that “that the dust on the road that morning of your accident contributed to the slippery surface,” Plaintiff responded “I do.”  (Id., at 328:24-329:3.)  Based on the entirety of the evidence and construing that evidence in a light most favorable to Plaintiff, the court finds that Defendant has failed to make a prima facie showing that there were no materials on the road at the time of the accident: dust, dirt, sand or gravel. 

 

With respect to causation, Defendant argues that “there is no evidence that plaintiff’s accident was caused by the existence of any materials on the roadway.”  (Motion at 5:23-23.)  Defendant is correct that neither Plaintiff’s deposition testimony nor his responses to written discovery presented any evidence, other than speculation, that the accident was caused by materials in the road.  Although it is clear that factually devoid discovery responses may be used in a summary judgment motion to show that a plaintiff does not possess and cannot reasonably obtain the needed evidence and in response, a plaintiff must produce admissible evidence raising a triable issue of fact.  However, here, Plaintiff has submitted admissible evidence, in the form of expert declarations, that raise a triable issue of fact regarding whether materials in the roadway had a “substantial link or nexus” to his accident.  Specifically, the admissible evidence from the declarations of Plaintiff’s expert witnesses, including Armen Tajirian, demonstrates that when materials from Defendant’s quarry is deposited on the roadway, “the surface of the roadway [is] too slippery to meet the safety standards for friction, either wet or dry.”  (Tajirian Dec., at ¶2-6.)  Thus, although Defendant makes a prima facie case that there initially was insufficient evidence in the record to demonstrate proximate cause, Plaintiff subsequently presented sufficient admissible evidence to demonstrate a triable issue of material fact regarding proximate cause.

 

Accordingly, Canyon Rock Co.’s motion for summary judgment is denied.

 

Plaintiff’s counsel is directed to prepare a final order consistent with this tentative and in compliance with California Rules of Court, Rule 3.1312.   

 

            C.        Defendant Bo Dean Co., Inc.’s motion for summary judgment:

 

In his complaint, Plaintiff asserts a single cause of action against Defendant Bo Dean Co., Inc. for premises liability, based in negligence.  Plaintiff’s complaint alleges that in the course of conducting its business, Defendant “used the Roadway to transport uncovered truckloads of sand, gravel, dirt and similar substances.  As a result of this use of the Roadway, the Roadway became coated with a fine powdery substance that was discharged by the trucks as they drove over the Roadway with their uncovered loads.  When the fine powdery substance combined with dew or a small amount of precipitation, the fine powdery substance became a slimy, slippery substance on the roadway.”  (Complaint at ¶18, p. 5:13-19.)  Plaintiff alleges that “[a]s plaintiff drove along the Roadway, his vehicle drove over the bump in the Roadway.  This caused the back end of Plaintiff’s vehicle to lose traction as it rounded the curve.”  (Complaint at ¶22, p. 6:13-14.)  Plaintiff alleges that “[a]s a result, plaintiff’s vehicle began to slide toward the edge of the Roadway and the ditch that lay beyond the right shoulder.”  (Complaint at ¶22, p. 6:14-16.)  Plaintiff alleges that he “attempted to regain control of his vehicle, but was unable to do so as a result of the slippery surface of the Roadway.”  (Complaint at ¶22, p. 6:16-17.)  As a result, “Plaintiff’s vehicle struck an abutment and turned on its roof.  (Complaint at ¶22, p. 6:17-18.)

 

In its motion, Defendant argues that Plaintiff’s claim has no merit because Plaintiff cannot prove that Defendant breached that duty or that any such breach was the proximate cause of Plaintiff’s accident.  Defendant argues that “Plaintiff cannot meet [his] burden because the only evidence adduced through discovery clearly demonstrates … that there was no debris, dust, or other particulates on Highway 116 when the accident occurred.”  (Motion at p. 5:19-22.)  Defendant cites to Plaintiff’s deposition testimony to argue that there was no material on the road at the time of the accident.

 

Although unclear, Plaintiff testified that “[t]here’s a lot of dust there from Canyon Rock … the whole valley is filled with dust … [s]o there’s always some dust in the cracks along there.”  (Jacobson Dec. at Ex. A, p.169:24-170:5.)  Plaintiff then testified that “[t]he dust was mostly in the air.”  (Id., at p.170:6-14.)  However, in response to a question if he had taken any medication on the morning of the accident, Plaintiff responded “No.  And I would like to strike that dust in the air thing.  I didn’t see any dust but it’s always dusty there.  But it was early in the morning so they hadn’t started working.”  (Id., at 170:18-22.)  On the second day of his testimony, Plaintiff stated that immediately after the accident, he looking around and “there’s a lot of dirt there.  You can’t see the road.  You can’t even see this side of the road right there.”  (Jacobson Dec. at Ex. B, p. 326:2:9.)  Finally, in response to the question of whether he believed that “that the dust on the road that morning of your accident contributed to the slippery surface,” Plaintiff responded “I do.”  (Id., at 328:24-329:3.)  Based on the entirety of the evidence and construing that evidence in a light most favorable to Plaintiff, the court finds that Defendant has failed to make a prima facie showing that there were no materials on the road at the time of the accident: dust, dirt, sand or gravel. 

 

With respect to causation, a “plaintiff must show that the defendant’s act or omission was a ‘substantial factor’ in bringing about the injury.”  (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.)  “In other words, plaintiff must show some substantial link or nexus between omission and injury.”  (Ibid).  Here, Plaintiff provides admissible evidence, in the form of expert declarations, that raise a triable issue of fact regarding whether materials in the roadway had a “substantial link or nexus” to his accident.  Specifically, the admissible evidence from the declarations of Plaintiff’s expert witnesses, including Armen Tajirian, demonstrates that when materials from Defendant’s quarry is deposited on the roadway, “the surface of the roadway [is] too slippery to meet the safety standards for friction, either wet or dry.”  (Tajirian Dec. at ¶2-6.)  Thus, although Defendant makes a prima facie case that there initially was insufficient evidence in the record to demonstrate proximate cause, Plaintiff has subsequently presented sufficient admissible evidence to demonstrate a triable issue of material fact regarding proximate cause.

 

Based on the foregoing, Defendant Bo Dean Co., Inc.’s motion for summary judgment is denied.

 

Plaintiff’s counsel is directed to prepare a final order consistent with this tentative and in compliance with California Rules of Court, Rule 3.1312.

 

 

6.  SCV-257879, Solarcraft Services, Inc. v. Barlow Sebastopol, LLC

DROPPED FROM CALENDAR; DISMISSAL FILED 6/17/16; COURTROOM 17 WAS NOT TIMELY NOTIFIED Defendant’s unopposed motion for relief of waiver of jury trial, and to allow Defendant to demand a jury trial, is granted.

 

A court “may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.”  (Code Civ. Proc. §631(g).)  “The court abuses its discretion in denying relief where there has been no prejudice to the other party or to the court from an inadvertent waiver.”  Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704.  “The prejudice which must be shown from granting relief from the waiver is prejudice from the granting of relief and not prejudice from the jury trial.”  (Ibid.)   “In exercising its discretion, the trial court may consider delay in rescheduling jury trial, lack of funds, timeliness of the request and prejudice to the litigants.”  (Ibid.)  “A court does not abuse its discretion where any reasonable factors supporting denial of relief can be found even if a reviewing court, as a question of first impression, might take a different view.” (Ibid.)

 

Here, although Defendant acknowledged that it waived its right to a jury trial by failing to timely pay the required jury fees, Defendant seeks relief on the grounds of mistake of counsel, and that the failure to pay the jury fees was made without consultation with the client. Plaintiff has failed to demonstrate that the requested relief would result in any prejudice. 

 

Defendant shall file a demand for jury trial, including the required fees, within ten (10) days of the court’s final ruling on this matter. 

 

Defendant’s counsel shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. The opposing party shall inform the preparing counsel of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court pursuant to California Rules of Court, Rule 3.1312.

 

 

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