Superior Court, State of California



DATE: February 10, 2022 TIME: 9:00 A.M.

PREVAILING PARTY SHALL PREPARE THE ORDER OR AS OTHERWISE STATED BELOW

(SEE RULE OF COURT 3.1312 - PROPOSED ORDER MUST BE E-FILED BY COUNSEL AND SUBMITTED PER 3.1312(C))

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TROUBLESHOOTING TENTATIVE RULINGS

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|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 | 21CV391264 |Baker Hill Productions, Inc vs Allyson Hall |Defendant-judgment debtor will receive oath from the clerk of court in|

| | | |Dept. 2 and examination will proceed. |

|LINE 2 | 17CV319705 |Group One Construction, Inc. vs La Encina |Click line 2 or scroll to line 2 for tentative ruling. |

| | |Development, LLC et al | |

|LINE 3 |17CV319705 |Group One Construction, Inc. vs La Encina |Tentative ruling is included in line 2. |

| | |Development, LLC et al | |

|LINE 4 |19CV346415 |Sruli Yellin vs Fisch Sigler LLP |Click line 4 or scroll to line 4 for tentative ruling. |

|LINE 5 | 19CV353173 |JEAN BELTRE vs TRUNG PHAN et al |No opposition on file; however, no amended notice of hearing with date|

| | | |and time of hearing or proof of service of notice with date/time of |

| | | |hearing on file. |

| | | | |

| | | |If notice of hearing with date/time of hearing was served with |

| | | |sufficient notice and is filed or presented to court prior to or at |

| | | |hearing, motion of attorney to be relieved as counsel for defendant |

| | | |Trung Phan will be GRANTED. If not, and moving counsel appears, |

| | | |hearing will be CONTINUED, and if no appearance, the matter will be |

| | | |taken OFF-CALENDAR. |

|LINE 6 | 19CV355509 |Tomme Byfield et al vs Westfield , LLC et al |Click or scroll to line 6 for tentative ruling. |

|LINE 7 | 19CV355509 |Tomme Byfield et al vs Westfield , LLC et al |Tentative ruling is included in line 6. |

|LINE 8 | 19CV355509 |Tomme Byfield et al vs Westfield , LLC et al |Tentative ruling is included in line 6. |

|LINE 9 | 18CV333834 |Charles Scrivner vs City of Palo Alto |Click line 9 or scroll to line 9 for tentative ruling. |

|LINE 10 | 18CV337094 |LUKE P. et al vs LIANG HUAN, MD et al |Motion of defendant CareFusion 2200, Inc. for determination of good |

| | | |faith settlement will be granted at hearing, provided that plaintiffs’|

| | | |petition for approval of minor’s compromise (line 12) is first |

| | | |approved. |

| | | |Notice of order setting hearing on file. |

| | | |No opposition filed. |

|LINE 11 | 18CV337094 |LUKE P. et al vs LIANG HUAN, MD et al |Motion of defendant CareFusion 2200, Inc. for order to seal is |

| | | |GRANTED. |

| | | |Notice of order setting hearing on file. |

| | | |No opposition filed. |

|LINE 12 | 18CV337094 |LUKE P. et al vs LIANG HUAN, MD et al |Plaintiffs’ petition for approval of compromise of claim of minor. |

| | | |Plaintiff-guardian ad litem Ly Thi Tran shall appear at hearing (by |

| | | |CourtCall or personally) for voir dire conducted by the court. |

|LINE 13 | 20CV375037 |Natasha Doubson vs Fyodor Konkov |Hearing is continued to March 22, 2022, 9:00A.M. in Dept. 2 for |

| | | |appointment of a guardian ad litem, pursuant to subdivision (c) of |

| | | |Code of Civil Procedure section 373. Plaintiff’s motion for leave to |

| | | |amend will then be set for hearing. The hearing set for February 24, |

| | | |2021 for ADA accommodations is continued to March 22, 2022, 9:00 A.M.,|

| | | |Dept. 2. |

| | | |Attorney in fact for plaintiff should file and serve an application |

| | | |for appointment of guardian ad litem 16 court days prior to hearing. |

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Case Name: Group One Construction, Inc. v. La Encina Development, LLC, et al.

Case No.: 17CV319705

According to the allegations of the second amended cross-complaint (“SAXC”) of Richard Foust (“Foust”), on February 9, 2016, Group One Construction, Inc. (“Group One”) entered into a written contract with cross-defendant La Encina Development, LLC (“La Encina”) for the improvements located on the La Encina Residential Tract 10323 in San Jose. (See SAXC, ¶ 17.) La Encina agreed to timely and fully pay Group One $3.9 million plus Change Orders in exchange for Group One’s performance of the contract. (Id.) The contract was signed by cross-defendants Jen Hao Richard Chen (“Chen”), Sheena Chang (“Chang”) and Chung Yeh (“Yeh”) as owners of La Encina. (See SAXC, ¶ 18.)

Prior to entering the contract, Foust questioned Chen, Chang and Yeh about La Encina’s ability to pay for Group One’s services under the contract, and Chen, Chang and Yeh assured Foust that: La Encina had sufficient capital to cover the cost of the contract; it owned the land “free and clear”; it would not take a construction loan or otherwise dilute the equity; and, had money from multiple private Chinese investors. (See SAXC, ¶ 19.) Chen, Chang and Yeh made these representations with an intent to induce reliance on Foust’s part and Foust did rely on these representations in entering into the Contract on behalf of Group One and when he later personally lent Group One money. (See SAXC, ¶ 20.) After the contract was executed, contrary to Chen, Chang and Yeh’s representations, La Encina leveraged all the equity in the La Encina property through a loan and cross-defendants Chien Huanchu (“Huanchu”), Yehs II Family Limited Partnership (“Yehs II”), Chinche Huang (“Huang”) and Chuan, LLC (“Chuan”) each siphoned about $1,253,000 from the construction loan during the early stages of the La Encina Project, leaving La Encina and the project cash-deficient with no ability to timely and fully pay Group One pursuant to the contract and Chen, Chang and Yeh’s promises. (See SAXC, ¶ 21.)

Chen and La Encina’s project manager, Steve Saray (“Saray”), hired an architect that was later discovered to be unlicensed and to have utilized another architect’s license information without her knowledge or consent. (See SAXC, ¶ 23.) The unlicensed architect provided insufficient plans and specifications relating to the framing and roofing of the homes, thereby causing numerous delays and stop orders on the project. (Id.)

Group One performed the work and labor for, and furnished all necessary services, materials, and equipment to be used for its performance, advancing significant sums of money toward the payment of subcontractors, labor, materials, equipment and other services in connection with the project. (See SAXC, ¶¶ 24-25.) Immediately after the project commenced, La Encina failed to pay Group One’s invoices in a timely fashion, and outright refused to pay other invoices. (See SAXC, ¶ 26.) During the course of the project while Group One was the prime contractor, La Encina rarely paid an invoice on time and in full. (Id.) Although there was a construction loan for the project, the loan funding was delayed and woefully insufficient to pay Group One’s monthly invoices on time or at all. (Id.) Because Group One had advanced significant sums of money to the project and was not receiving timely payment, Group One experienced a cash shortage. (See SAXC, ¶ 27.) As a result of the cash shortage, Foust personally lent $300,000 to Group One to cover operating expenses and related costs. (Id.) On August 15, 2017, due to no fault of Group One, La Encina terminated Group One’s services, materially breaching the contract, owing Group One $985,141.00. (See SAXC, ¶ 28.) Due to La Encina’s failure to pay those substantial sums owed to Group One, Group one was forced to file bankruptcy and Foust’s loans to Group One in connection with the project were never repaid due to insufficient assets of the estate. (See SAXC, ¶ 29.)

Moreover, during and after Group One’s performance of the contract, Chen and Saray made numerous statements about Foust to subcontractors and other providers at the project that Foust misappropriated money from the project, failed to effectively manage the project, and performed defective workmanship at the project. (See SAXC, ¶¶ 30-34.) Cross-defendants Chen Chang, Yeh, Yehs II, Huang and Chuan are alleged to be the alter egos of La Encina, using La Encina as a mere shell, instrumentality or conduit for themselves, disregarding its legal formalities and failing to maintain an arm’s length relationship , inadequately capitalizing it, commingling its assets and failing to segregate its corporate records. (See SAXC, ¶¶ 12-13, 21, 41, 51, 63.)

On September 13, 2021, Foust filed his SAXC against La Encina, Chen, Chang, Yeh, Huanchu, Yehs II, Huang, and Chuan (collectively, “cross-defendants”), asserting causes of action for:

1) Intentional misrepresentation (against all cross-defendants);

2) Negligent misrepresentation (against all cross-defendants);

3) Slander per se (against Chen); and,

4) Concealment (against all cross-defendants).

Cross-defendants demur to the first, second and fourth causes of action. Cross-defendants also move to strike reference to Chang and Yeh in paragraphs 19-22, 26, 27, 36-40, 42-44, 46-49, and 52-53, reference to all cross-defendants in paragraph 50 and the fourth cause of action in its entirety.

I. DEMURRER TO FOUST’S SAXC

Cross-defendants argue that: Foust did not obtain leave of court to add the fourth cause of action for concealment, so it must be stricken; Foust did not obtain leave of court to add Yeh and Chang as cross-defendants on the misrepresentation causes of action; the statute of limitations has run as to Yeh and Chang; the alter ego allegations are insufficiently pled; Foust lacks standing to sue for Group One’s reliance on the alleged misrepresentations; and, Foust does not adequately allege that Yeh and Chang intended to induce his loan to Group One, that his alleged reliance was reasonable, or resulting damage.

Cross-defendants’ request for judicial notice

In support of their demurrer, demurring cross-defendants request judicial notice of the following documents:

1) Group One’s complaint, filed on November 18, 2017 (attached as Exhibit 1) alleging that Group One is a corporation and La Encina terminated the construction contract with Group One on August 15, 2017;

2) La Encina’s cross-complaint, filed on February 5, 2018 (attached as Exhibit 2);

3) The fact that on September 21, 2017, Group One filed for bankruptcy protection (Group One’s bankruptcy petition attached as Exhibit 3);

4) The fact that Group One’s bankruptcy was converted to a Chapter 7 bankruptcy and a trustee was appointed pursuant to the August 14, 2018 order (attached as Exhibit 4);

5) a March 27, 2019 order approving a compromise agreement between the Trustee and La Encina releasing La Encina and its agents from any claims (attached as Exhibit 5);

6) the fact that the Chapter 7 Trustee opposed La Encina’s motion to reduce the amount of the mechanic’s lien (opposition attached as Exhibit 6); and,

7) the Court sustained the demurrer of Huanchu, Yehs II, Huang and Chuan on the basis that Foust had inadequately pled alter ego liability on these cross-defendants (attached as Exhibit 7).

The request for judicial notice is also GRANTED as to Group One’s complaint, La Encina’s cross-complaint, the fact that on September 21, 2017, Group One filed for bankruptcy protection, the fact that Group One’s bankruptcy was converted to a Chapter 7 bankruptcy and a trustee was appointed pursuant to the order, the March 27, 2019 order approving a compromise agreement between the Trustee and La Encina releasing La Encina and its agents from any claims and the Court’s order sustaining the demurrer of Huanchu, Yehs II, Huang and Chuan on the basis that Foust had inadequately pled alter ego liability on these cross-defendants. (Evid. Code § 452, subds. (d), (h).)

The request for judicial notice is GRANTED as to the existence of the opposition to La Encina’s motion to reduce the amount of the mechanic’s lien; however, it is DENIED as to any statements contained within the opposition. (Evid. Code § 452, subd. (d); see Day, supra, 50 Cal.App.3d at p.914 (stating that “[a] court may take judicial notice of the existence of each document in a court file”).)

Fourth cause of action for concealment

Cross-defendants argue that Foust did not obtain leave of court to add the fourth cause of action for concealment, so it must be stricken. However, as they note, this is not a basis for demurrer, but for a motion to strike. The demurrer to the fourth cause of action on the ground that Foust did not obtain leave of court is OVERRULED.

Cross-defendants Chang and Yeh

Cross-defendants argue that Foust did not obtain leave of court to add Yeh and Chang as cross-defendants on the misrepresentation causes of action. They also argue that the statute of limitations has run as to Yeh and Chang; however, as Foust notes in opposition, they were previously added as Roe cross-defendants. Chang and Yeh apparently concede the issue as they do not address this argument in reply. Chang and Yeh’s demurrer to the SAXC is OVERRULED.

Alter ego allegations are insufficient

Huanchu, Yehs II, Huang and Chuan argue that the alter ego allegations are insufficiently pled against them because “[t]he amended pleading fails to allege any facts to find alter ego liability… [and] merely repeats legal conclusions.” (Cross-defs.’ memorandum of points and authorities in support of demurrer, p.6:24-28.)

As mentioned in the prior order regarding the demurrer to the FAXC, “[u]nder the alter ego doctrine, then, when the corporate form is used to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, the courts will ignore the corporate entity and deem the corporation’s acts to be those of the persons or organizations actually controlling the corporation, in most instances the equitable owners.” (Sonora Diamond Corp. v. Super. Ct. (Sonora Union High School Dist.) (2000) 83 Cal.App.4th 523, 538.) “In California, two conditions must be met before the alter ego doctrine will be invoked… [f]irst, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist.” (Id.) “Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” (Id.)

Here, unlike the FAXC which solely involved allegations of alter ego liability as to cross-defendant Chen, the SAXC contains specific allegations regarding cross-defendants Huanchu, Yehs II, Huang and Chuan: they are alleged to have siphoned money from La Encina thereby undercapitalized La Encina such that it could never timely nor fully pay Group One pursuant to the contract. (See SAXC, ¶ 21.) They are also alleged to disregard corporate formalities of La Encina, commingle its assets and using La Encina as a shell, instrumentality or conduit for themselves. (See SAXC, ¶ 12.) Huanchu, Yehs II, Huang and Chuan’s demurrer to the SAXC on the ground that the alter ego allegations are insufficiently pled against them is OVERRULED.

First and second causes of action

Chang, Yeh, Huanchu, Yehs II, Huang and Chuan assert that the first and second causes of action for misrepresentation fail because Foust lacks standing to sue for Group One’s reliance on the alleged misrepresentations, Yeh and Chang did not intend to induce Foust to make a loan, Foust’s alleged reliance was not actual or reasonable, and do not otherwise demonstrate resulting damages. In opposition, Foust argues that he is not seeking any of his $985,000 damages owed to Group One which were, through the Chapter 7 bankruptcy trustee, settled in the amount of $75,000. Instead, he is strictly seeking damages from the fraudulent conduct of cross-defendants that induced Foust to loan money to Group One to cover La Encina’s project expenses.

Indeed, the SAXC alleges that Chen, Chang and Yeh made certain misrepresentations that it would fully fund the project, it would not leverage or borrow against the land owned free and clear and would timely and fully pay Group One’s monthly invoices, that Foust justifiably relied on these misrepresentations to loan to Group One, and was ultimately damaged by the misrepresentations after Chen, Chang, Yeh, Huanchu, Yehs II, Huang and Chuan siphoned money from La Encina with the intent of undercapitalizing La Encina such that it could not pay Group One and, in turn, Foust. (See SAXC, ¶¶ 12-13, 16-27, 36-37, 39-44, 46-53.) As to cross-defendants’ argument that “the facts alleged demonstrated that La Encina’s representations that it had sufficient funds for the project were not made with the intent to cause Foust to make a loan to Group One.” (Cross-defs.’ memorandum of points and authorities in support of demurrer, pp.10:24-28, 11:1-17.) Here, the Court [Hon. Folan] has previously addressed this issue:

Chen and La Encina also argue that the first two causes of action fail to state facts sufficient to constitute a cause of action because the FAXC alleges that Chen and La Encina did not intend to induce Foust to make a loan. (See cross-defs.’ memo, pp.8:13-28, 9:1-28,) Chen and La Encina argue that “[t]he alleged representations were made to induce Group one to enter into the contract, not to induce Foust to lend money to Group One.” (Id. at p. 10:1-4.) It appears that Chen and La Encina argue that Foust must allege that they intended a particular resulting damage; however, this is not the law. (See Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 92 (reversing grant of motion for judgment on the pleadings, stating that “[t]he court’s ruling implies that, in order to state a cause of action for fraud it is necessary that the defendant intend to cause the plaintiff to suffer a particular type of damage… [t]hat is not the law”; also stating that “the only intent by a defendant necessary to prove a case of fraud is the intent to induce reliance… liability is affixed not only where the plaintiff’s reliance is intended by the defendant but also where it is reasonably expected to occur” (emphasis original); also stating that “[f]ew defrauding defendants give any serious thought to the nature or quality of the harm which could befall the victims who rely on their deceptive acts… [i]t would be unconscionable and nonsensical for such perpetrators to escape liability because of their indifference to the consequences of their opprobrious behavior”).) “The elements of fraud… are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th 631, 638.) This argument, too, is not a basis for sustaining the demurrer to the first and second causes of action.

(August 11, 2020 order re: demurrer to FAXC, pp.6:23-28, 7:1-15.)

Cross-defendants also argue that the causes of action are derivative and belong to the bankruptcy trustee. However, as also addressed in the August 11, 2020 order, the injury is not to Group One but to Foust personally. (See August 11, 2020 order re: demurrer to FAXC, p.6:12-21, citing Jones v. H. F. Ahmanson & Co. (1969) 1 Cal.3d 93, 106 (stating that “the action is derivative, i.e., in the corporate right, if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock or property without any severance or distribution among individual holders, or if it seeks to recover assets for the corporation or to prevent the dissipation of its assets”).)

Cross-defendants also argue that the SAXC fails to allege justifiable reliance because, in essence, Foust should have realized that they were untrustworthy and “must have at least suspected that La Encina would not pay the money owed to Group One, which would then jeopardize the collectability of his loans.” (Cross-defs.’ memorandum of points and authorities in support of demurrer, pp.11:19-28, 12:1-19.) Again, this is similar to an argument made, addressed by the August 11, 2020 order regarding the demurrer to the FAXC. Here, again, the reliance was allegedly made prior to the discovery of cross-defendants’ siphoning of funds from La Encina such that it lacked adequate capitalization to pay Group One, and in turn, Foust. This likewise is not a basis to sustain the demurrer.

Lastly, without citation to any authority, cross-defendants assert that the alleged damages do not result from the alleged misrepresentations. However, the SAXC clearly alleges that the resulting damages would not have occurred but for the alleged misrepresentations. The demurrer to the first and second causes of action is OVERRULED in its entirety.

II. MOTION TO STRIKE PORTIONS OF FOUST’S SAXC

Cross-defendants move to strike reference to Chang and Yeh in paragraphs 19-22, 26, 27, 36-40, 42-44, 46-49, and 52-53, reference to all cross-defendants in paragraph 50 and the fourth cause of action in its entirety.

Foust’s request for judicial notice

In opposition to the motion to strike, Foust requests judicial notice of the following documents:

1) Declaration of Foust in support of opposition to motion to expunge lis pendens and mechanics’ lien and for attorney’s fees, filed on March 16, 2018 (attached as Exhibit 1);

2) Declaration of Chen in support of proposed compromise of controversy in the bankruptcy action (attached as Exhibit 2);

3) Foust’s cross-complaint, filed on August 15, 2019 (attached as Exhibit 3);

4) Foust’s FAXC, filed on February 20, 2020 (attached as Exhibit 4);

5) First amendment to Foust’s FAXC, filed on April 24, 2020 (attached as Exhibit 5);

6) La Encina’s and Chen’s answer to Foust’s FAXC (attached as Exhibit 6);

7) Chung Yeh’s and Sheena Chang’s answer to Foust’s FAXC (attached as Exhibit 7);

8) The second amendment to Foust’s FAXC (attached as Exhibit 8);

9) The August 27, 2021 order re: Huang, Chuam, Huanchu and Yehs II’s demurrer to the FAXC (attached as Exhibit 9).

The request for judicial notice is GRANTED as to the cross-complaint, the FAXC, the amendments to the FAXC, La Encina’s and Chen’s answer to Foust’s FAXC, Chung Yeh’s and Sheena Chang’s answer to Foust’s FAXC, and the August 27, 2021 order re: Huang, Chuam, Huanchu and Yehs II’s demurrer to the FAXC. (See Evid. Code § 452, subds. (d), (h).)

The request for judicial notice is GRANTED as to the existence of the declarations of Foust in support of opposition to motion to expunge lis pendens and mechanics’ lien and for attorney’s fees and the declaration of Chen in support of proposed compromise of controversy in the bankruptcy action. (Evid. Code § 452, subd. (d); see Day, supra, 50 Cal.App.3d at p.914 (stating that “[a] court may take judicial notice of the existence of each document in a court file”).)

References to Chung and Yeh, “Cross-Defendants” and the fourth cause of action

Cross-defendants move to strike references to Chung and Yeh, references to “Cross-Defendants” in paragraph 50 and the fourth cause of action because Foust did not obtain permission to add these cross-defendants and the fourth cause of action after the demurrer to the FAXC. As to cross-defendants Chung and Yeh, they were added as Roe defendants within 3 years of the alleged accrual of the cause of action. Here, there may be questions of fact that may yet determine the timeliness of the causes of action against them. However, accepting the allegations of the SAXC as true, the Court cannot strike the references to Chung and Yeh or the references to “Cross-Defendants” in paragraph 50.

As to the fourth cause of action, the Court likewise declines to strike the fourth cause of action.

The motion to strike is DENIED in its entirety.

The Court will prepare the Order.

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Case Name: Yellin v. Fisch Sigler LLP

Case No.: 19CV346415

This is an appeal of an order of the Labor Commissioner. Respondent Fisch Sigler LLP (“Respondent”) moves for judgment on the pleadings. On December 13, 2021, the Court continued the trial date to February 14, 2022, after Respondent’s motion was heard. On January 28, 2022, appellant Sruli Yellin (“Appellant”) filed an opposition to the motion. On February 3, 2022, Respondent filed a reply. On February 7, 2022, Appellant filed an objection to arguments made in Respondent’s reply, asserting that they were made for the first time in the reply brief, and he lacked an opportunity to address the arguments. Appellant did not otherwise address the purportedly new arguments.

Out of an abundance of caution, the Court will continue both the hearing on the motion and the trial date so as to allow Appellant the opportunity to file a brief “sur-reply” that solely addresses the purportedly new arguments made for the first time in reply.

Hearing of the motion is continued to March 24, 2022, 9:00 A.M. in Dept. 2 Sur-reply shall be filed and served on or before five court days prior to hearing.

Trial set for February 14, 2022 is continued to April 11, 2022, 8:45A.M., Dept. 2.

Parties are to appear so as to confirm the above dates for the hearing and trial. Counsel should be prepared with dates of availability if not available on the above dates.

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Case Name: Tomme Byfield et al. v. Westfield, LLC, et al.

Case no.: 19CV355509

Background of current motions

On July 2, 2021, defendant Valley Fair Mall (“defendant”) served form interrogatories, set no. one, special interrogatories, set no. one, requests for production of documents, set no. one, and request for admissions, set no. one, on plaintiff Tomme Byfield (“plaintiff”). Pursuant to extensions granted by defendant, plaintiff’s responses to the discovery were due on September 10, 2021. Plaintiff failed to serve responses.

On October 13, 2021, defendant filed the instant motions: motion to compel answers to form and special interrogatories (line 7), motion to compel responses to demands for production of documents (line 8) and motion to deem requests for admissions admitted (line 9) (collectively “discovery motions”). Each motion also requests that monetary sanctions be imposed against plaintiff and plaintiff’s attorney, Timothy Pupach (“plaintiff’s attorney”).

On December 3, 2021, defendant filed notices of court set hearing date for the discovery motions.

No opposition to the discovery motions has been filed.

Disposition

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Defendant’s motion to compel plaintiff to serve answer to form interrogatories, set no. one, and special interrogatories, set no. one, is GRANTED. Sanctions of attorneys’ fees in the amount of $200 are assessed against plaintiff and plaintiff’s attorney, and ordered paid to defendant. On or before 20 days after service of this order, plaintiff shall serve answers to the form and special interrogatories, without objections, and plaintiff and plaintiff’s attorney shall pay the sanctions to defendant.

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Defendant’s motion to compel plaintiff to serve responses to demands for production of documents, set no.one, and special interrogatories, set no. one, is GRANTED. Additional sanctions of attorneys’ fees in the amount of $200 are assessed against plaintiff and plaintiff’s attorney, and ordered paid to defendant. On or before 20 days after service of this order, plaintiff shall serve responses, without objections, and produce documents pursuant to the demands for production of documents, and plaintiff and plaintiff’s attorney shall pay the sanctions to defendant.

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Defendant’s motion to deem requests for admissions, set no. one, as admitted is GRANTED. Additional sanctions of attorneys’ fees in the amount of $200 are assessed against plaintiff and plaintiff’s attorney, and ordered paid to defendant. Plaintiff and plaintiff’s attorney shall pay the sanctions to defendant on or before 20 days after service of this order.

Defendant shall prepare the order.

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Case Name: Charles Danel Scrivner et al. v. City of Palo Alto, et al.

Case no.: 18CV333834

Background

On August 27, 2018, plaintiffs Charles Daniel Scrivner and Amy Scrivner (“plaintiffs”) filed complaint against defendant City of Palo Alto alleging a single cause of action for dangerous condition of public property relating to a bicycle accident on a pathway. It is alleged that a chain and bollards installed at the pathway caused plaintiff to be ejected from his bicycle, resulting in injury.

On August 6, 2020, plaintiffs filed the operative first amended complaint (“FAC”) adding URS Corporation (“URS”) and Anderson Pacific Engineering Construction, Inc. as defendants. On September 14, 2020, URS filed answer to the FAC.

Cross-complaints have been filed by the City of Palo Alto and URS.

On November 5, 2021, URS filed the instant motion for leave to file first amended answer to complaint (“FAA”).

On January 28, 2022, plaintiffs filed opposition, and on February 3, 2022, URS filed reply.

Summary of Contentions

URS asserts that discovery conducted in the litigation has produced information that entitles URS to allege additional affirmative defenses that bar the FAC – the applicable statutes of limitation and the provisions of subdivision (b) of Business and Professions Code section 6735. URS asserts that it attempted to meet and confer with plaintiffs for a stipulation to permit the FAA, but plaintiffs failed to respond. Filing of the instant motion followed.

URS asserts that a grant of leave to amend will not result in prejudice to plaintiff as trial has not been set and discovery is ongoing.

In opposition, plaintiffs assert that URS now contends that it was involved in the installation of the subject chain and bollards, a contention contrary to its responses in discovery. Granting leave to URS to assert defenses based on this inconsistent position is not in furtherance of justice. Plaintiffs also assert that URS’s proposed affirmative defense of the statute of limitations is flawed and contrary to law, considering when the claims accrued for purposes of the statute.

In reply, URS contends that facts provided in its responses in discovery and in support for a grant of leave to amend are consistent. The perceived inconsistency is because of plaintiffs’ mistake in equating the “accident scene” and “subject alleged dangerous condition” to plaintiffs’ definition of “subject roadway”. URS also asserts that plaintiffs’ position on the statute of limitations is incorrect and overlooks application of a statute of repose.

Analysis

In the furtherance of justice, a court may allow a party to amend any pleading at any time, even after commencement of trial. Code of Civil Procedure sections 474 and 576. See Hong Sang Market, Inc. v. Peng (2018) 20 Cal.5th 473. Courts are generally liberal in permitting amendments, as long as the statute of limitations has not expired (where leave to amend is to file an amended complaint), and the opposing party will not be prejudiced by the amendment, such as a delay in the trial of the case, loss of critical evidence, or added costs of trial preparation. Harris v. City of Santa Monica (2013) 56 Cal.4th 203.

Here, the motion for leave is to file an amended answer. There is no assertion that a grant of leave will delay the trial of the case or that critical evidence will be lost. While plaintiffs argue that there will be added costs of re deposing witnesses, no evidence or facts are provided to support or substantiate a need for supplemental depositions, or specifics, for example, identification of the deponents and subject matter, and time required.

Instead, plaintiffs argue that facts relied on by defendant for grant of leave are inconsistent with defendant’s earlier responses to discovery and that permitting URS to reformulate its defenses based on inconsistent facts does not further the interests of justice. Plaintiffs assert that they will be prejudiced in having to re depose numerous witnesses; however, plaintiffs fail to substantiate the assertion by declaration. Plaintiff also contests the merits of defendant’s statute of limitations defense.

Neither trial nor trial setting conference have not been set. Plaintiff has a motion for leave to file first amended complaint for hearing on April 7, 2022. While the action commenced on August 27, 2018, the motions indicate that the case is still not at issue, and continues in the discovery and pleading stages.

Lastly, the facts infer that URS was reasonably diligent in filing the instant motion following discovery of pertinent facts and in attempting to obtain a stipulation to avoid a motion.

Disposition

The court finds that a grant of leave to file FAA is in the furtherance of justice under the circumstances, and the general, liberal policy of permitting amendment is appropriate where, as here, there is no statute of limitations issue in connection with a new claim, or prejudice to plaintiffs in delay in trial of the case, loss of critical evidence, or substantiated, added costs of trial.

Whether defendant’s affirmative defenses are legally or factually sufficient are more appropriately addressed by dispositive motion or trial rather than in opposition to leave to amend.

URS’s motion for leave to file FAA is GRANTED.

URS shall prepare the order.

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