Superior Court, State of California



DATE: November 4, 2021 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))

EFFECTIVE JULY 24, 2017, THE COURT NO LONGER PROVIDES OFFICIAL COURT REPORTERS FOR CIVIL LAW AND MOTION HEARINGS. SEE COURT WEBSITE FOR POLICY AND FORMS.

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TROUBLESHOOTING TENTATIVE RULINGS

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

|LINE 1 | 2014-1-CV-266788 |RevereIT, LLC vs Neelinfo, Inc., et al |Oath shall be given to defendant-judgment debtor by clerk of court in |

| | | |Department 2, and examination shall proceed. |

|LINE 2 | 20CV374038 |Lonny Oswalt et al vs Arthur Gallun et al |Click line 2 (or scroll to line 2) for tentative ruling. |

|LINE 3 |21CV381773 |Huy Nguyen et al vs General Motors, LLC |Click line 3 (or scroll to line 3) for tentative ruling. |

|LINE 4 |21CV381773 |Huy Nguyen et al vs General Motors, LLC |Tentative ruling is included in line 3. |

|LINE 5 | 17CV317411 |Kathy Hughes vs Target Corporation |Click line 5 (or scroll to line 5) for tentative ruling. |

|LINE 6 | 20CV363768 |Setco International Forwarding Co. vs Julia |Request for dismissal and entry of dismissal filed October 27, 2021 |

| | |Hashemieh et al |dismissing plaintiff and cross-defendant Setco International’s |

| | | |(“Setco”) complaint against defendants and cross-complainants Payroll |

| | | |Express and Julia Hashemieh (“defendants”) and dismissing defendants |

| | | |cross-complaint against Setco. |

| | | |Setco’s motion to compel further response to discovery from defendants|

| | | |is therefore MOOT and ordered off-calendar. |

|LINE 7 | 16CV295090 |Sterling Harwood vs Jane Edwards |Notice of stay – notice of bankruptcy case filing by plaintiff |

| | | |Sterling Harwood. |

| | | |Defendant Jane Edwards’ motion to dismiss action is continued for |

| | | |setting to status conference on June 30, 2022, 10:00 a.m. in Dept. 2 |

|LINE 8 | 18CV333609 |Doyle, et al. v. Imerys Talc America, Inc., |Click line 8 (or scroll to line 8) for tentative ruling. |

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Case Name: Oswalt v. Gallun, et al.

Case No.: 20CV374038

According to the allegations of the first amended complaint (“FAC”), in the spring of 2008, plaintiffs Lonny Oswalt, individually and as trustee of the Lonny Lee Oswalt Living Trust, and Patricia Oswalt (collectively, “Plaintiffs”) were in discussions to purchase a home and were told of an agreement that permitted the owners of the neighboring property at 19555 Redberry Drive in Los Gatos (“Gallun property”), defendants Arthur and Elaine Gallun, individually and as trustee of the Gallun 2002 Revocable Trust (collectively, “Defendants”), to drive across the corner of the property to be purchased at 19605 Redberry Drive in Los Gatos (“Oswalt property”), in exchange for the owners of the Oswalt property were allowed to trim trees on the Gallun property so that no trees blocked the city view from the first story of the existing ranch-style home on the Oswalt property. (See FAC, ¶ 17.) Plaintiffs sought assurance from Defendants that they would recognize and abide by the agreement if they were to move in and Defendants assured Plaintiffs that they could preserve the views. (See FAC, ¶¶ 18-22.) Plaintiffs explained how important it was to have the view and asked to have the agreement in writing, to which Defendants agreed—once Plaintiffs owned the property. (See FAC, ¶¶ 23-26.) Based on Defendants’ representations, Plaintiffs purchased the Oswalt property for $2.2 million on August 28, 2008, and began an extensive improvement on the property, building a high-end luxury estate home, pool and entertaining area which construction has cost over $15 million. (See FAC, ¶ 27.) Over the next 12 years, the parties performed the agreement without problems with Plaintiffs trimming the trees along the driveway at the Galluns’ driveway at Plaintiffs’ sole expense, expending $17,185 to trim the trees. (See FAC, ¶¶ 28-31.) The trees have been topped repeatedly at the same height such that there are aged knots at the height where the trees have been cut; however, there was a dispute as to the accuracy of the means of determining the proper height to cut the trees. (See FAC, ¶¶ 32-35.)

Defendants also took issue with various aspects of Plaintiffs’ construction on the property, making complaints with the County, despite being approved and permitted by the County. (See FAC, ¶¶ 38-42.) Defendants also were upset about Plaintiffs’ construction of a wall on their property such that Elaine Gallun eventually entered Plaintiffs’ property uninvited in August 2019, and physically assaulted Lonny, grabbing her by the throat, and told Lonny that she was cancelling the tree trimming agreement. (See FAC, ¶¶ 43-53.) Despite that the Defendants had previously agreed to record both parties’ rights as relates to the other’s land, Defendants now claim that there is no existing easement agreement and that the agreement should have different or additional terms and the trees on the Gallun property are above the previously agreed upon height and obstructing Plaintiffs’ view. (See FAC, ¶¶ 58-65.)

On June 1, 2021, the Court [Hon. Lucas]: overruled the demurrer to the first through third causes of action of the initial complaint for declaratory relief, breach of contract and specific performance on the ground that they were uncertain; overruled the demurrer to the first through third causes of action on the ground that they were barred by the statute of limitations; sustained the demurrer to the first through third causes of action on the ground that they failed to state facts sufficient to constitute a cause of action because the agreement lacked definiteness; and, sustained the demurrer to the fourth cause of action for fraud on the ground that it failed to allege a showing of diligence for the 12 years after the alleged misrepresentation such that it fails to allege facts demonstrating that it was timely brought.

On June 11, 2021, Plaintiffs filed the FAC, asserting causes of action for:

1) Declaratory relief;

2) Breach of contract;

3) Specific performance;

4) Fraud;

5) Trespass; and,

6) Battery.

Defendants again demur to the first through fourth causes of action on the grounds that they are uncertain and fail to state facts sufficient to constitute a cause of action.

DEMURRER TO THE FAC

In opposition to the demurrer, Plaintiffs request judicial notice of the Court’s June 1, 2021 order regarding the demurrer and motion to strike. The request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d).)

First through third causes of action

Defendants demur to the first through third causes of action on the ground of uncertainty. However, as with their demurrer to the initial complaint, Defendants again provide no argument as to why these causes of action are uncertain. “Generally, the failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (See Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, disapproved on other grounds in Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30; see also Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 (stating that “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures”).) The demurrer to the first through third causes of action on the ground that they are uncertain is OVERULED.

Defendants also demur to the first through third causes of action on the ground that they fail to state facts sufficient to constitute a cause of action, again asserting that the terms of the contract are not sufficiently definite to enable the court to know what it is to enforce. As with the initial complaint, the FAC alleges that:

In the spring of 2008, the Oswalts discussed the issue with the then-owner (seller) of the Oswalt Property, Jeffrey Hutchins. Mr. Hutchins told the Oswalts that there was an exchange agreement that preserved the view. Specifically, Mr. Hutchins explained, the exchange agreement permitted the owners of the Gallun Property to drive across the corner of the Oswalt Property (where the Galluns’ driveway was), and in exchange, the owners of the Oswalt Property were, as relevant here, allowed to trim trees on the Gallun Property so that no trees blocked the city view from the first story of the existing ranch-style home on the Oswalt Property. Notably, the latter half of the exchange agreement was to preserve the view, and not to trim individually identified trees.

(FAC, ¶ 17.)

Plaintiffs contend that this recitation of some agreement by non-party Hutchins must mean that they are entitled to trim any tree that blocks their view. However, as stated in the prior order, the FAC also alleges that “the easement permits the owners of the Oswalt Property (the dominant parcel) to trim any trees on the flagpole portion of the Gallun Property (the servient parcel) to the extent they exceed the height of the aged knots on the existing trees.” (FAC, ¶¶ 32-33, 69.) As stated in the prior order, since the “city lights view” may change may change with the vantage point, the allegations are potentially inconsistent. Moreover, as previously stated in the prior order, while Plaintiffs contend that they are also entitled to top trees at or about 697.01 feet above sea level—a “fixed numerical reference [that] can be used in perpetuity to guide the tree trimming if the trees with aged knots are removed,” as the prior order stated, “it is clear that the term regarding an exact height at which trees should be cut was not defined at the time of the agreement.” (June 1, 2021 order re: demurrer, pp.5:27-28, 6:1-4 (noting that “[t]he complaint alleges that the trees could be cut at: the place of aged knots on the trees, a pole with a metal indicator marking the approximate agreed upon height, the average height of the aged knots on the Galluns’ trees in reference to the Oswalts’ pool deck, and approximately 697.01 feet above sea level as determined by a certified licensed surveyor”).) The prior order also noted that “the height at which the trees should be cut was specifically in reference to ‘the city view of the existing ranch-style home’ at the time of the agreement… [c]ertainly, absent an agreement, Plaintiffs’ view easement does not expand or change with the expansion of their home.” (Id. at p.6:4-12.) Further, the FAC also admits “the possibility of the ground shifting over time” (FAC, ¶ 35), making the enforcement of the purported agreement as problematic. The demurrer to the first through third causes of action on the ground that the agreement lacks definiteness is SUSTAINED with 10 days leave to amend.

The fourth cause of action for fraud

Defendants again argue that the fourth cause of action fails to allege facts showing diligence for the 12 years after the alleged misrepresentation thereby failing to allege facts demonstrating that it was timely brought. As stated in the Court’s prior order:

… under the delayed discovery rule, the accrual of a cause of action is postponed until the plaintiff discovers, or has reason to discover, the cause of action. (See Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807 (stating that “[a]n important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action”).) “The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have ‘information of circumstances to put [them] on inquiry’ or if they have ‘the opportunity to obtain knowledge from sources open to [their] investigation.’” (Id. at pp.807-808.) “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’” (Id. at p.808.) “In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’” (Id.)

(June 1, 2021 order re: demurrer, pp.6:24-28, 7:1- 11.)

As with the initial complaint, the FAC fails to allege any showing of diligence for the 12 years after the alleged misrepresentation. The fourth cause of action alleges that “[b]efore Plaintiffs purchased the Oswalt Property, Defendants represented to Plaintiffs that they would sign a document to confirm the rights to maintain the view from the Oswalt Property in exchange for their right of egress/ingress across the Oswalt property.” (FAC, ¶ 95.) The lone allegations referencing the signing of a document to confirm the rights to maintain the view are in paragraphs 58-65. However, there are no dates with regards to these allegations and no specifics with regards to Plaintiffs’ reasonable diligence. In opposition, Plaintiffs assert that “[t]he facts alleged in the Verified Amended Complaint, particularly in the light most favorable to the pleader on a demurrer, confirm that the cause of action is timely because it was brought less than three years after the Oswalts discovered (suspected) that the Galluns might not have intended to put the parties’ oral agreement in writing, as promised.” (Opposition, p.11:18-21.) However, the discovery of the alleged fraud is a separate requirement from the reasonable diligence requirement so as to allege a delayed discovery. (See Fox, supra, 35 Cal.4th at pp. 807-808; see also Agee v. Virden Packing Co. (1936) 15 Cal.App.2d 691, 693 (stating that “the right of a plaintiff to invoke the aid of a court of equity for relief against fraud after the expiration of three years from the time the fraud was committed is an exception to the general statute on that subject and cannot be asserted unless the plaintiff brings himself within the terms of the exception by pleading facts showing the times and the circumstances under which the facts constituting the fraud were brought to his knowledge so that the court may determine whether the discovery of these facts was within the three-year period next preceding the commencement of the action… [a]nd if no such facts are pleaded it will be presumed that the complainant knew whatever with reasonable diligence he might have ascertained concerning the fraud of which he complains”); see also Lazar v. Super. Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th 631, 645 (stating that “[i]n California, fraud must be pled specifically; general and conclusory allegations do not suffice”).) The demurrer to the fourth cause of action for fraud is again SUSTAINED with 10 days leave to amend on this basis.

The Court will prepare the Order.

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Case Name: Huy Nguyen, et al. v. General Motors, LLC

Case No.: 21-CV-381773

Demurrer and Motion to Strike to the Complaint by Defendant General Motors, LLC

Factual and Procedural Background

This is a lemon law action brought by plaintiffs Huy Nguyen and Monique Nguyen (collectively, “Plaintiffs”) against defendant General Motors, LLC (“GM”).

On January 19, 2016, Plaintiffs purchased a new 2015 GMC Yukon, vehicle identification number 1GKS2CKJ8FR683942 (“Vehicle”) which was manufactured and/or distributed by defendant GM. (Complaint at ¶ 8.)

In connection with the purchase, Plaintiffs received various warranties including, but not limited to, a 3-year/36,000-mile express bumper to bumper warranty, a 5-year/100,000 mile express powertrain warranty which covers the engine and transmission. (Complaint at ¶ 9.) The warranty provided, in relevant part, that in the event a defect developed with the subject Vehicle during the warranty period, Plaintiffs could deliver the Vehicle for repair services to defendant GM’s representative and the Vehicle would be repaired. (Ibid.)

During the warranty period, the Vehicle contained or developed defects, including, defects causing increasing brake pedal effort; defects requiring performance of Recall N192268490 and/or N16-204817; defects causing the serpentine belt and/or A/C belt to become worn; defects related to the transmission; defects requiring the replacement of the automatic transmission wiring harness; defects related to the engine; defects causing the illumination of the check engine light (CEL); defects requiring the flush and/or drain fluids for transmission; defects causing transmission shaking; defects causing transmission shuttering; defects requiring the replacement of the shock absorber, shock absorber component, and/or spring; defects requiring the replacement of the rear body structure stop lamp; defects requiring the replacement of the fuel feed pipe; defects requiring the replacement of the sunroof window; defects requiring the replacement of the high frequency antenna; defects causing illumination of the engine malfunction indicator lamp (MIL); defects requiring the replacement of the lower control arm; defects requiring the reprogramming of the inflatable restraint sensing and/or diagnostic module calibrations; defects requiring the replacement of the high frequency antenna; defects causing the installation of the new fuse block label; defects causing the storage of Diagnostic Trouble Code (DTC) 18289; defects requiring programming the power steering control module with SPS; defects requiring the replacement of the radiator; defects requiring the replacement of the rear body structure stop lamp; and/or any other defects enumerated in the Vehicle’s repair history. (Complaint at ¶ 10.) Said defects substantially impair the use, value, or safety of the Vehicle. (Ibid.)

Defendant GM and its representatives have been unable to service or repair the Vehicle to conform to applicable express warranties after a reasonable number of attempts. (Complaint at ¶ 11.) Defendant GM failed to promptly replace the Vehicle or make restitution to Plaintiffs. (Ibid.) Although Plaintiffs presented the Vehicle to defendant GM’s representative, GM and its representative failed to commence the service or repairs within a reasonable amount of time and failed to service or repair the Vehicle so as to conform to the applicable warranties within 30 days. (Id. at ¶ 18.) Defendant GM failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. (Id. at ¶ 23.) Plaintiffs have suffered damages by defendant GM’s failure to comply with its obligations. (Id. at ¶¶ 12-13.)

Defendant GM committed fraud by allowing to be sold to Plaintiffs the Vehicle without disclosing that the subject Vehicle and its transmission were defective and susceptible to sudden and premature failure. (Complaint at ¶ 33.) Prior to Plaintiffs acquiring the subject Vehicle, defendant GM was well aware and knew that the transmission installed in the subject Vehicle was defective but failed to disclose this fact to Plaintiffs at the time of sale and thereafter. (Id. at ¶¶ 34, 40.)

Specifically, defendant GM knew (or should have known) that the transmission had one or more defects that can result in various problems, including, but not limited to, lag in power, hesitation, transmission slipping, transmission failure to engage, stalling, failure of the torque converter (“Transmission Defect”). (Complaint at ¶ 35.) These conditions present a safety hazard and are unreasonably dangerous to consumers because they can suddenly and unexpectedly affect the driver’s ability to control the vehicle’s speed, acceleration, deceleration and/or overall responsiveness of the vehicle in various driving conditions. (Ibid.)

Defendant GM acquired its knowledge of the Transmission Defect prior to Plaintiffs acquiring the subject Vehicle, through sources not available to consumers such as Plaintiffs, including but not limited to, pre-production and post-production testing data, early consumer complaints about the transmission defect made directly to defendant GM and its network of dealers, aggregate warranty data compiled from GM’s network of dealers, testing conducted by GM in response to these complaints, as well as warranty repair and part replacements data received by GM from its network of dealers, amongst other sources of internal information. (Complaint at ¶ 36.)

Plaintiffs could not reasonably have been expected to learn or discover the Vehicle’s Transmission Defect and its potential consequences until well after they purchased/leased the Vehicle. (Complaint at ¶ 39(c).) Had Plaintiffs known that the subject Vehicle and its transmission were defective at the time of sale, they would not have purchased/leased the Vehicle. (Id. at ¶¶ 37, 41.)

On April 7, 2021, Plaintiffs filed the operative complaint against defendant GM alleging causes of action for: (1) Violation of Subdivision (D) of Civil Code Section 1793.2; (2) Violation of Subdivision (B) of Civil Code Section 1793.2; (3) Violation of Subdivision (A)(3) of Civil Code Section 1793.2; (4) Breach of Express Written Warranty; (5) Breach of Implied Warranty of Merchantability; and (6) Fraud by Omission.

On July 30, 2021, defendant GM filed the motions presently before the court, a demurrer and motion to strike to the complaint. Plaintiffs filed written opposition.

A further case management conference is set for January 25, 2022.

Demurrer to the Complaint

Defendant GM argues the sixth cause of action is subject to demurrer for failure to state a valid claim. (Code Civ. Proc., § 430.10, subd. (e).)

Timeliness

As a preliminary matter, the court notes the demurrer and motion to strike appear to be untimely filed. A party may file a demurrer or motion to strike within 30 days of service of the complaint. (Code Civ. Proc., §§ 430.40, subd. (a), 435 subd. (b)(1).) Plaintiffs personally served defendant GM with the summons and complaint on May 12, 2021. The instant demurrer and motion to strike were not filed until July 30, 2021, well beyond the statutory deadline and are therefore untimely.

Even so, the court has discretion to consider an untimely demurrer. (See Code Civ. Proc., 473, subd. (a)(1); see also Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [appellate court determined that trial court properly exercised its discretion in considering untimely demurrer]; McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 282 [appellate court held that trial court’s decision to entertain second demurrer did not affect plaintiff’s substantial rights].) The court has similar latitude regarding an untimely motion to strike as the court may strike a pleading or portion thereof “at any time in its discretion.” (Code Civ. Proc., § 436.)

Here, the court finds that consideration of the demurrer and motion to strike will not affect Plaintiffs’ substantial rights. In fact, Plaintiffs do not raise any objection to the untimely filing and do not appear to be prejudiced having submitted substantive opposition addressing both motions. This court also adheres to the policy that cases be tried on the merits whenever possible. (See Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202 [policy of the law is to have every litigated case tried upon its merits].) The court thus exercises its discretion to consider the demurrer and motion to strike.

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (Committee on Children’s Television, Inc.) (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Sixth Cause of Action – Fraud by Omission

Defendant GM raises the following arguments in support of its demurrer to the fraud cause of action: (1) the claim is barred by the economic loss rule; (2) the claim is barred by the three-year statute of limitations; (3) the claim has not been pled with specificity; (4) Defendant GM did not have a duty to disclose to support a claim for concealment; and (5) concealment cannot be based on non-actionable puffery.

Economic Loss Rule

The economic loss rule provides that “where a purchaser’s expectations in a sale are frustrated because the product he brought is not working properly, his remedy is said to be in contract alone, for he has suffered only economic losses.” (Robinson Helicopter Company v. Dana Corporation (2004) 34 Cal.4th 979, 988 (Robinson).) This doctrine hinges on a “distinction drawn between transactions involving the sales of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts.” (Ibid.) The rule requires a purchaser to recover solely in contract for purely economic loss due to disappointed expectations, unless the purchaser can demonstrate harm above and beyond a broken contractual promise. (Ibid.)

In Robinson, the California Supreme Court carved out an exception to this rule, holding that it does not bar claims for fraud and intentional misrepresentations, which are independent of the contract that is alleged to have been breached. (Robinson, supra, 34 Cal.4th at p. 991.) The court reasoned that a breach of contract remedy assumes the parties to a contract can negotiate the risk occasioned by a breach; given this negotiation, it is “appropriate to enforce only such obligations as each party voluntarily assumed, and to give him only such benefits as he expected to receive …” (Ibid., citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 517.) However, because a party to a contract could not “rationally calculate the possibility that the other party will deliberately misrepresent terms critical to that contract,” the court explained that public policy demanded that the party who is deceived be permitted to recover damages not limited to the contract. (Ibid.) Thus, where one party commits fraud during the contract formation or performance, the injured party may recover in contract and tort. (Ibid.; see Harris v. Atlantic Richfield Co. (1993) 14 Cal.App.4th 70, 78.) Defendant GM notes that the Robinson court’s ruling “is narrow in scope and limited to a defendant’s affirmative misrepresentations on which a plaintiff relies and which expose a plaintiff to liability for personal damages independent of the plaintiff’s economic loss.” (Robinson, supra, 34 Cal.4th at p. 993.)

As an initial matter, defendant GM cites a number of federal trial court decisions for the proposition that this “exception” created by the Court in Robinson is limited to affirmative misrepresentations and thus does not apply to claims based on fraudulent omissions. First, it should be noted that “a written trial court ruling has no precedential value.” (Bolanos v. Super. Ct. (2008) 169 Cal.App.4th 744, 761; see also Board of Pilot Commissioners v. Super. Ct. (2013) 218 Cal.App.4th 577, 590 [“a federal trial court decision has no precedential value”].) More significantly, this court has consistently ruled that the economic loss rule does not apply to fraudulent concealment claims.

Here, Plaintiffs have sufficiently alleged defendant GM’s fraudulent concealment upon which they relied and that such concealment exposed them to liability for personal damages independent of economic loss. (See Complaint at ¶¶17, 18, 20 - 40.) In addition, Plaintiffs allege that defendant GM’s deceit by nondisclosure induced them to purchase the subject Vehicle and long-standing case law provides that claims for fraudulent inducement are not barred by the economic loss rule. (Id. at ¶¶ 37-41; see also Erlich v. Menezes (1999) 21 Cal. 4th 543, 551-552 [“Tort damages have been permitted in contract cases ... where the contract was fraudulently induced.”]; United Guar. Mortg. Indem. Co. v. Countrywide Fin. Corp. (C.D. Cal. 2009) 660 F.Supp.2d 1163, 1188 [“The economic loss rule poses no barrier to a properly pled fraudulent inducement claim[.]”.)

Accordingly, the sixth cause of action is not barred by the economic loss rule.

Statute of Limitations

Defendant GM argues the sixth cause of action is subject to demurrer on the ground it is barred by the applicable statute of limitations.

A statute of limitations prescribes the period “beyond which a plaintiff may not bring a cause of action. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) It “strikes a balance among conflicting interests. If it is unfair to bar a plaintiff from recovering on a meritorious claim, it is also unfair to require a defendant to defend against possibly false allegations concerning long-forgotten events, when important evidence may no longer be available.” (Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797.)

“A plaintiff must bring a claim within the limitations period after accrual of the cause of action. In other words, statutes of limitation do not begin to run until a cause of action accrues. Generally speaking, a cause of action accrues at the time when the cause of action is complete with all its elements.” (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509-510, internal citations and quotation marks omitted.)

A court may sustain a demurrer on the ground of failure to state sufficient facts if “the complaint shows on its face the statute [of limitations] bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315 (E-Fab, Inc.).) A demurrer is not sustainable if there is only a possibility the cause of action is time-barred; the statute of limitations defense must be clearly and affirmatively apparent from the allegations in the pleading. (Id. at pp. 1315-1316.)

When evaluating whether a claim is time-barred, a court must determine (1) which statute of limitations applies and (2) when the claim accrued. (E-Fab, Inc., supra, 153 Cal.App.4th at p. 1316.)

The limitations period for a claim predicated on fraud is three years from the date of “the discovery, by the aggrieved party, of the facts constituting the fraud.” (Code Civ. Proc., § 338, subd. (d); Britton v. Girardi (2015) 235 Cal.App.4th 721, 734.) Defendant GM argues the fraud claim is time-barred on its face as Plaintiffs allege they purchased the subject Vehicle on January 19, 2016, but did not file suit until April 7, 2021, over three years after.

Defendant GM however presumes that the limitations period for this claim began to run on the date of purchase. But, as stated above, the limitations period is triggered from the date of discovery. Plaintiffs allege here they did not make discovery of defendant GM’s wrongful conduct until shortly before filing the complaint when they requested a buyback and/or restitution of the subject Vehicle from GM. (See Complaint at ¶ 7.) Such allegations are accepted as true for purposes of demurrer. As Plaintiffs do not allege a specific date for discovery, the defense of statute of limitations is not clearly and affirmatively apparent from allegations in the pleading.

Finally, to the extent that any statute of limitations are applicable, Plaintiffs allege their claims are timely under various tolling doctrines. (Complaint at ¶ 6.) While defendant GM does consider the delayed discovery rule, it fails to address other tolling doctrines alleged in the complaint including equitable tolling and fraudulent concealment which may protect a fraud claim against a defense based on the statute of limitations. (See Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 746 [the equitable tolling doctrine will suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness]; see also Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 899 [the fraudulent concealment by the defendant of a cause of action tolls the relevant statute of limitations].)

Therefore, the sixth cause of action is not barred by the statute of limitations.

Lack of Specificity

Defendant GM also argues the fraud claim is subject to demurrer as it has not been pled with the required specificity to state a cause of action. In opposition, Plaintiffs contend the specific pleading requirement ought to be relaxed.

“Fraud must be pleaded with specificity rather than with general and conclusory allegations. The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 (West), citation and quotation marks omitted.)

Courts enforce the specificity requirement in consideration of its two purposes. (West, supra, 214 Cal.App.4th at p. 793.) The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Ibid.) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.)

Courts have recognized certain exceptions which mitigate the rigor of the rule requiring specific pleading of fraud. (Committee on Children's Television, Inc., supra, 35 Cal.3d at p. 217.) For example, less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy. (Ibid.) Thus, even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party. (Ibid.)

Relaxation of the specificity requirement is appropriate in a claim of nondisclosure/ concealment which is precisely what Plaintiffs allege in the complaint. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384 [plaintiffs have apparently abandoned their earlier claims of intentional and negligent misrepresentations. As plaintiffs accurately respond, it is harder to apply this rule to a case of simple nondisclosure. “How does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?”].) Plaintiffs cannot be expected to plead the identity of a person who withheld a material fact.

The elements of fraudulent concealment are: (1) concealment or suppression of material fact, (2) duty to disclose the fact, (3) intent to conceal or suppress with intent to defraud, (4) plaintiff must have been unaware of the fact and would not have acted in such a manner had the plaintiff known of the concealment or suppression, and (5) resulting damage. (Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187, 1198; Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.)

Here, defendant GM argues the complaint does not allege enough facts. For example, GM contends the complaint lacks any allegation of “whether Plaintiffs communicated with GM before they bought the Subject Vehicle.” (See Memo of P’s & A’s at p. 14:11.) Presumably, defendant GM wants to know this information to determine if Plaintiffs were truly “unaware” of the concealed information or whether they reasonably relied. But, no such specificity is required.

Defendant GM also claims Plaintiffs do not allege facts in support of the element of intent to defraud. Such an allegation however is sufficiently set forth in paragraph 40 which provides in relevant part, “Defendant has knowingly and intentionally concealed material facts…” (See Hall v. Mitchell (1922) 59 Cal.App. 743, 748-749 [simple and direct averment that representation was made with intent is sufficient].)

Accordingly, the sixth cause of action has been pled with the proper specificity for a claim based on fraudulent concealment.

Duty to Disclose

As a separate basis for demurrer, defendant GM places emphasis on Daughety v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 835 (Daugherty), where the court wrote, “to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of fact the defendant was obliged to disclose.” The Daugherty court however made this statement addressing a claim for violation of the Consumer Legal Remedies Act which makes it unlawful to make representations “that goods have characteristics which they do not have” or “that goods are of a particular standard, quality, or grade, if they are another.” Since the fraudulent omission was not tied to such a representation, the Daugherty court held no claim based upon a fraudulent omission could be made. The court here does not find Daugherty to be persuasive as the present claim is not one based upon a violation of the Consumer Legal Remedies Act.

Defendant GM further contends it did not owe a duty to disclose to Plaintiffs.

“To maintain a cause of action for fraud through nondisclosure or concealment of facts, there must be allegations demonstrating that the defendant was under a legal duty to disclose those facts.” (Los Angeles Memorial Coliseum Commission, et al. v. Insomniac, Inc., et al. (2015) 233 Cal.App.4th 803, 831.)

Without a fiduciary relationship, the duty to disclose generally presupposes a relationship grounded in some sort of transaction between the parties. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337 (LiMandri).) “Thus, a duty to disclose may arise from the relationship between seller and buyer … or parties entering into any kind of contractual agreement.” (Id. at p. 337.) In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: “(1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; [or] (3) the defendant actively conceals discovery from the plaintiff.” (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294 (Warner Constr. Corp.).)

In Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311-312 (Bigler), the Fourth Appellate District wrote:

Our Supreme Court has described the necessary relationship giving rise to a duty to disclose as a “transaction” between the plaintiff and the defendant: “In transactions which do not involve fiduciary or confidential relations, a cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Warner Constr. Corp., supra, 2 Cal.3d at p. 294, italics added, fns. omitted.) Other cases have described the requisite relationship with the same term. (See, e.g., Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4t 1178, 1187; LiMandri, supra, 52 Cal.App.4th at p. 337 [“As a matter of common sense, such a relationship can only come into being as a result of some sort of transaction between the parties.”].) Such a transaction must necessarily arise from direct dealings between the plaintiff and the defendant; it cannot arise between the defendant and the public at large.

In addition, a duty to disclose facts arises only when the parties are in a relationship that gives rise to the duty, such as seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual arrangement. (Bigler, supra, 7 Cal.App.5th at p. 311, citation and quotation marks omitted.) Here, Plaintiffs allege the existence of a contractual agreement (express written warranty) with defendant GM and thus, a basis upon which a duty to disclose arises. (See Complaint at ¶ 9.)

Non-Actionable Puffery

Finally, defendant GM argues that whatever statements were made about the subject vehicle constituted mere puffery. (See Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361, fn. 3 [statements that are akin to “mere puffing” cannot support liability in tort].) But, this argument is unavailing because no specific statements are alleged. Rather, the instant fraud claim is about the failure to speak, not about any false representations. This contention therefore is not sustainable on demurrer.

Accordingly, the demurrer to the sixth cause of action on the ground that it fails to state a claim is OVERRULED.

Motion to Strike Punitive Damages

Defendant GM separately moves to strike the prayer for punitive damages in the complaint. As stated above, the court has overruled the demurrer with respect to the fraud claim. As a consequence, the complaint properly supports Plaintiff’s prayer for punitive damages. (See Stevens v. Super. Ct. (1986) 180 Cal.App.3d 605, 610 [pleading of fraud is sufficient for punitive damages].)

Therefore, the motion to strike the prayer for punitive damages is DENIED.

Disposition

The demurrer to the sixth cause of action on the ground that it fails to state a claim is OVERRULED.

The motion to strike the prayer for punitive damages is DENIED.

The court will prepare the Order.

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Case name: Kathy Hughes v. Target Corporation

Case No.: 17CV317411

Background

This is an action for negligence regarding an incident on October 14, 2015 inside a store of defendant Target Corporation (“defendant”), involving plaintiff-invitee Kathy Hughes (“plaintiff”) and two employees of defendant. On November 1, 2018, plaintiff filed the current, operative third amended complaint (“TAC”).

On April 13, 2020, defendant served non-party Sprint Spectrum, L.P. (“Sprint”) with subpoena for business records. The subpoena seeks production of cell phone records for a phone used by plaintiff over a period of hours on the day of the incident which is the subject of the lawsuit. Sprint has refused to produce the records, unless it receives customer authorization or is ordered by the court pursuant to provisions of the Public Utilities Code.

The customer of Sprint for the cell phone number is a non-party, and the papers in support, opposition and reply, infer that the customer’s identity is unknown to defendant, and neither Sprint nor plaintiff have contacted the customer concerning possible authorization. Hence, there is no customer authorization.

Summary of contentions

Defendant asserts, and plaintiff does not dispute, that plaintiff testified during her deposition that she had a cell phone with her at the time of the incident, and that during the incident, she used the phone to call the City of Santa Clara Police Department to report the incident. Plaintiff in her deposition testimony did not recall placing any other calls or sending text messages through the cell phone during the incident.

Defendant asserts that the records of calls or text messages during the incident are relevant to the incident, and therefore, relevant to the claims asserted in the operative complaint. Defendant asserts the records are also relevant for possible impeachment (or corroboration) of plaintiff’s testimony.

On May 19, 2021, defendant filed motion to compel compliance of Sprint with deposition subpoena for production of the cell phone records. On August 30, 2021, plaintiff filed opposition, and on September 7, 2021, defendant filed reply. Sprint has not appeared or filed a responsive pleading to the motion.

In opposition, plaintiff asserts that the information is not relevant, the subpoena is overly broad, and is not enforceable under Code of Civil Procedure section 1985.3. Plaintiff further asserts that the subpoena seeks records that are protected from disclosure pursuant to plaintiff’s right to privacy and the right of privacy of the third party customer.

Analysis

During plaintiff’s deposition, plaintiff testified that she used her cell phone to call the City of Santa Clara Police department to report being falsely accused and wanting someone to be a witness. The call was made during the incident inside defendant’s store. Plaintiff further testified that she did not recall making any other calls or sending any text messages. Plaintiff’s opposition does not dispute the proffered testimony or assert any facts to support that records of the call are not relevant to the claims in the lawsuit or for possible impeachment of testimony.

The court finds that records of a call or text placed by plaintiff to the police department to report the incident at the time of the incident is directly relevant to plaintiff’s claims in the action and potentially relevant for impeachment or corroboration of relevant testimony.

Notwithstanding relevancy, plaintiff asserts that because authorization of the customer is absent, the plain language of Code of Civil Procedure section 1985.3 is clear that the subpoena is not enforceable.

Validity of subpoena

Code of Civil Procedure section 1985.3 states “A subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.”

Section 2891 of the Public Utilities Code in pertinent part provides that

“(a) No telephone or telegraph corporation shall make available … without first obtaining the residential subscriber’s consent, in writing, any of the following information:

(1) The subscriber’s personal calling patterns, including any listing of the telephone or other access numbers called by the subscriber, but excluding the identification to the person called of the person calling and the telephone number from which the call was placed, subject to the restrictions in Section 2893, and also excluding billing information concerning the person calling …

(2) The residential subscriber’s credit or other personal financial information, …

(3) The services which the residential subscriber purchases from the corporation …

(4) Demographic information about individual residential subscribers, or aggregate information from which individual identities and characteristics have not been removed.”

Here, the evidence supports the assertion that the subpoena of records of calls and texts from the cell phone is not information of the consumer specified in section (a) of Public Utilities Code section 2891 such that the subpoena requires the consumer consent to release specified in Code of Civil Procedure section 1987.3.

Accordingly, the written authorization of the customer is not required for the subpoena of records in this instance, and subpoena is valid and effective.

Privacy rights of plaintiff or third parties

A party may obtain discovery of any matter, not privileged, that is relevant to the subject matter in the lawsuit. For purposes of discovery, information is relevant if it “might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement…” Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.

When discovery invokes constitutionally protected interests, such as privacy, the information sought must be directly relevant, and the need for discovery is balanced against the fundamental right of privacy. Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.

There must be a legally protected privacy interest; an objectively reasonable privacy expectation; and a serious invasion in both nature and scope. Pioneer Electronics (USA) Inc. v. Sup.Ct. (2007) 40 Cal.4th 360, 370-71. Examples include records of memberships, finances, medical, employment personnel, and sexual relations.

The party seeking to invade privacy must show the information is directly relevant, essential to a fair resolution, and cannot be obtained through less intrusive means. Vinson v. Sup.Ct. (1987) 43 Cal.3d 833, 843-44.

Here, the information sought are records of calls and text messages made by plaintiff on her cell phone that appear in an account which a third party is the Sprint customer. The nature of the information – records of calls made and texts (and not the content) - is not, by nature of the information, a serious invasion. Further, the information is contained in an account of a third party customer. This diminishes the objective, reasonable expectation of privacy of plaintiff.

As to the third party customer, the records sought neither include information of the customer set forth in Public Utilities Code section 2891 nor personal call or text information of the third party customer. There is little to no objective, reasonable expectation of the third party customer to privacy of call information of plaintiff.

While the court finds the information in the records is directly relevant, it is not necessarily essential to a fair resolution. That said, it may prove important to credibility of plaintiff, a material witness, and the information cannot be obtained through less intrusive means.

The court finds that the weighing of interests favors disclosure of the information.

The motion to compel compliance with deposition subpoena is GRANTED IN PART, and is MODIFIED IN PART. The name and personal identifying information of the customer, including address, and any credit or financial information of the customer, shall be redacted from the records produced. Further, the period of time for the production of records shall be limited to one hour before the incident through one hour after the incident. Counsel shall meet and confer before the hearing to determine the time to specify as parameters for the production of the records (e.g 10:00 AM through 5:00 PM), and if counsel is unable to agree, submit brief oral argument to the court for ruling at the hearing.

The court declines to impose sanctions for or against plaintiff or defendant in that there was substantial justification in bringing and defending the motion.

Defendant shall prepare the order.

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Case name: Kristie Lynn Doyle et al. v. Imerys Talc America, Inc. et al.

Case No.: 18CV33609

Background

On August 27, 2018, plaintiffs Daniel Doyle and Kristie Doyle (“plaintiffs”) filed complaint in this action against defendants Imerys Talc America, Inc., Johnson & Johnson (“JJ”), Johnson & Johnson Consumer Inc. (JJCI”), Cyprus Mines Corporation and Imerys Talc Vermont, Inc. The complaint alleges three causes of action for strict products liability, negligence and fraud in connection with manufacturing, distributing and sale of products containing asbestos, including talc products which plaintiff Daniel Doyle was exposed to since birth. It is alleged that exposure to the talc product resulted in plaintiff Daniel Doyle’s diagnosis of an incurable form of cancer which caused his death four months after filing the complaint.

On March 11, 2019, the operative first amended complaint was filed for personal injuries (survivorship) and wrongful death.

After Mr. Doyle’s death, tissue samples were preserved and pathology materials were developed for testing. Pursuant to stipulation, on February 24, 2020, the pathology materials were delivered to defendants and on May 15, 2020, returned to plaintiff.

Plaintiff’s expert pathologist, Dr. Jerrold Abraham prepared a report and supplemental report which were served on defendants on March 30, 2020. The analysis performed by Dr. Abraham included preparation of SEM stubs and electron microscope inspection of the SEM stubs. Defendants JJ and JJCI assert that the SEM stubs and information from inspection are relied upon by plaintiffs’ experts Dr. Abraham and Dr. William Longo as the basis for Dr. Abraham’s opinion that there was asbestos in Mr. Doyle’s tissue and Dr. Longo’ opinion that the asbestos is attributable to Mr. Doyle’s use/exposure of defendants’ talc product.

Trial was first set to commence on May 11, 2020. The COVID-19 pandemic and emergency orders of the court resulted in the trial being rescheduled to September 7, 2021.

The parties then agreed to a discovery deadline of July 22, 2021. The parties thereafter agreed to extend expert discovery cutoff to August 23, 2021.

However, the conduct of the parties that followed indicates agreement to extend discovery cutoff beyond August 23, 2021. This includes scheduling of depositions to occur after August 23, 2021; an August 24, 2021 written reservation of right of plaintiffs in connection with the September 7, 2021 trial which states in pertinent part “Expert discovery remains open. Plaintiff therefore reserves the right to bring additional motions in limine, including those related to experts, after all discovery closes … and after all discovery-related motions have been resolved”; and further, of importance to the instant motion, an agreement for inspection of the SEM stubs.

Ex parte application for order permitting inspection of expert materials – SEM stubs.

On September 10, 2021, defendants JJ and JJCI (hereafter “defendants”) filed the instant ex parte application for order permitting inspection of expert materials. Defendants seek an order permitting defendants’ expert to receive the SEM stubs and perform inspection at defendants’ expert’s lab. The application is in substance a motion for grant of leave to complete discovery proceedings pursuant to subdivision (a) of Code of Civil Procedure section 2024.050.

The court declined to enter an order ex parte, and instead set hearing on November 4, 2021.

On October 22, 2021, plaintiffs filed opposition, and on October 28, 2021, defendants filed reply.

Defendants assert in support of the application a substantive need to examine the SEM stubs, diligence in efforts to seek production of the SEM stubs, that discovery remains open, and that permitting examination of the SEM stubs will not delay trial or result in any prejudice to plaintiffs.

In opposition, plaintiffs assert that defendants have failed to serve formal written demand to compel production of the SEM stubs before the close of fact discovery, that there is no authority relative to expert discovery that permits a motion to compel production, that SEM stubs are not discoverable documents or writings, and that defendants were not diligent in requesting inspection.

Analysis

On August 9, 2021, defendants served notice of deposition of plaintiffs’ expert Dr. Abraham and request for production of documents which included the SEM stubs.

Counsel for plaintiff and defendant then exchanged emails that evidence agreement for inspection of the SEM stubs by defendants’ expert, but also indicate disagreement of the lab and location for the inspection.[1] (Dec. Malik, Exs. W and X)

Plaintiff indicated that the inspection take place at the lab of plaintiff’s expert in Georgia. Defendants’ counsel objected because the electron microscope in that lab was incapable of performing the inspection deemed necessary by defendants’ expert. Defendants’ attorney also asserted travel and expense issues; and both parties further expressed concerns about COVID-19.

With the September 7, 2021 trial approaching, on September 3, 2021, an Informal Discovery Conference (“IDC”) was conducted to address the impasse. The primary issues were whether the electron microscope at the lab of plaintiffs’ expert had the capability of performing the examination that was needed by defendants’ expert, and plaintiffs’ concern of damage to the SEM stubs from transport to defendants’ expert or while in defendants’ expert’s possession.

Defendant’s expert had informed defendants’ counsel that the electron microscope in the lab of plaintiff’s expert did not have the necessary capability to perform the inspection. Defendants’ counsel understood that the expert’s observation was based on personal knowledge from a prior visit to the lab. While plaintiffs’ counsel asserted that the laboratory had state of the art equipment, given the specialized nature of the microscope, counsel but could not confirm whether the laboratory’s electron microscope had the specific capability. Counsel for the parties were also unable to confirm whether an unreasonable risk was posed in transporting the SEM stubs. Defendants counsel offered to provide a chain of custody declaration to address damage or contamination issues.

At the conclusion of the IDC, counsel was instructed to obtain information whether the microscope had the necessary capability and whether there was an unreasonable risk of damage in transporting the SEM stubs, and then meet and confer prior to trial. Any further deposition setting issues could be raised with the trial judge. A motion to reopen discovery was also discussed.[2] In the interim, the September 7, 2021 trial was vacated, and a trial setting conference was set on November 2, 2021, largely ameliorating the urgency.

By written stipulation, parties may modify the procedures the Discovery Act provides for any method of discovery the Act permits. Code of Civil Procedure section 2016.030. This includes agreement to extend time for completion of discovery or for hearing discovery motions, or to reopen discovery after a new date for trial of the action has been set. Code of Civil Procedure section 2024.060.

Here, the emails between the attorneys evidence an agreement of the parties for examination of the SEM stubs by defendants’ expert arising from the notice of deposition of plaintiffs’ expert and request for production of documents. This is consistent with the positions of counsel at the IDC where the inspection was not the issue, and instead, the issues concerned the laboratory for the inspection and delivery/possession of the SEM stubs. The agreement to permit examination was reached at a time when trial was eminent on September 7, 2021.

The court finds that the parties, through counsel, agreed to extend the time for completion of discovery specific to plaintiffs’ production of the SEM stubs for inspection by defendants’ expert. This arose in connection with the deposition of plaintiffs’ expert and production of documents which included the SEM stubs. This is consistent with the conduct of the attorneys in scheduling depositions, and at IDC, and the written statement of counsel in connection with the September 7, 2021 trial that expert discovery and discovery-related motions remain open. There is good cause to permit completion of this discovery proceeding.

After consideration of the authority, facts and argument of counsel in the papers filed in support, opposition and reply, the court grants defendants’ motion for leave to complete the discovery proceeding of examining the SEM stubs. The court finds that permitting defendants to complete the examination is necessary to defendants’ defense in this action in that plaintiffs’ experts’ opinions rely on findings derived from their examination of the particular SEM stubs, and that permitting the examination is in furtherance of the interests of justice. The court further finds that discovery at issue and litigation of this case has been affected by the COVID-19 pandemic and emergency orders of the court, and therefore, under the circumstances, defendants acted with reasonable diligence in seeking the discovery. Further, granting of the motion permitting completion of the examination will not prevent the case from going to trial on April 11, 2022, the date recently set for trial. The motion was timely filed after the September 7, 2021 date was vacated, and before the case was re set for trial.

Remaining in the instant application is determination of the lab for the SEM stub inspection and whether delivery of the SEM stubs to defendants’ expert is required. The evidence relevant to these determinations is contained in the declaration of Dr. Matthew Sanchez. Dr. Sanchez summarizes his expertise in characterization of asbestos, and that he has been retained by defendants as an expert. Dr. Sanchez states that the SEM stubs are capable of being transported without damage if packaged carefully. Dr. Sanchez describes the analysis he needs to perform and hardware for attachment to an electron microscope. Dr. Sanchez states that he has visited the lab of plaintiffs’ expert and used the electron microscopes in the lab. He states that the microscopes are not equipped with the hardware that permit the required analysis.

Plaintiffs do not provide comparable evidence to refute or draw this testimony into question.

The court therefore finds that the evidence supports an order that the SEM stubs be promptly delivered by plaintiffs to defendants’ expert, Dr. Sanchez, by method determined by plaintiffs for safe transportation. After the examination is completed, the SEM stubs shall be promptly returned by defendants’ expert to plaintiffs’ expert, undamaged, by delivery in the same manner. Defendants shall provide a chain of custody declaration for the period defendants’ expert has possession of the SEM stubs. Until the SEM stubs are returned to plaintiffs, they shall not be removed from the lab where the inspection is performed by Defendants’ expert.

Counsel for the parties shall meet and confer forthwith to coordinate dates, and method of delivery and return. The court’s expectation is that the inspection will occur within 30 days of November 4, 2021. The parties did not identify the length of time needed for the inspection/examination. Unless otherwise agreed, the SEM stubs shall be returned by defendants’ expert within 15 days from receipt from plaintiffs.

Defendants shall prepare the order.

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[1] While the papers filed in this matter refer to plaintiffs’ “offer” for inspection as now withdrawn by plaintiffs, the court finds that an agreement to inspect had been reached, but that the specifics of which lab or whether the SEM stubs were to be delivered to defendants’ expert were not resolved. This is evidenced by the emails between counsel and parole evidence of conduct, to the extent there is ambiguity in the emails.

[2] The emails of counsel regarding the SEM stubs inspection were not reviewed or considered at the IDC.

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