Judge: Lee S. Arian, Case: 20STCV29914, Date: 2024-02-01 Tentative Ruling

Case Number: 20STCV29914    Hearing Date: February 1, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY:        Defendant Burlington Coat Factory of Texas, Inc.

RESPONDING PARTY: None

I.         BACKGROUND

On August 7, 2020, Plaintiff Hilda Avartanian (“Plaintiff”) filed this action against Defendant Burlington Coat Factory of Texas, Inc. (erroneously sued as Defendants Burlington Coat Factory Direct Corporation and Burlington Coat Factory of California, LLC) (“Burlington”) and Does 1 to 50, inclusive, asserting causes of action for general negligence and premises liability.

The Complaint does not specify how the defendants injured Plaintiff. The Attachments to the Complaint only allege the following, among other things. The defendants knew of or caused an unsafe condition at 245 E. Magnolia Boulevard, Burbank, CA 91502. On August 10, 2018, Plaintiff was injured on those premises as a result of the unsafe condition. The defendants breached their duty of care to Plaintiff when they failed to properly maintain, manage, and control the premises and warn Plaintiff of the unsafe condition.

On June 22, 2023, Burlington filed the instant motion to compel Plaintiff’s responses to the defendant’s request for a statement of damages.

On June 22, 2024, Burlington filed a Notice of Non-Opposition, arguing (among other things) that the Court should grant the motion because Plaintiff had not filed or served any opposition to the motion.

On June 26, 2024, Plaintiff filed her own Notice of Non-Opposition, arguing that the motion is moot because she served her responses to Burlington’s request for statement of damages on October 11, 2023. In support of Plaintiff’s request that the Court deny Burlington’s request for sanctions, Plaintiff’s counsel testifies that the delay in serving the responsive statement of damages was due to counsel’s illness, which caused delays in his practice. (Motion, declaration of Ron A. Rosen Janfaza, ¶¶ 3-11 [attaching sworn declarations from his physicians].)

II.        LEGAL STANDARD

“When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought.” (Code Civ. Proc., § 425.11, subd. (b).)

 “The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days.” (Code Civ. Proc., § 425.11, subd. (b).)

“In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.” (Code Civ. Proc., § 425.11, subd. (b).)

III.      DISCUSSION

          Burlington served Plaintiff with a Request for Statement of Damages on May 18, 2022. (Motion, declaration of Nelson X. Liu, ¶ 5, Exhibit B, Request for Statement of Damages, Proof of Service page.)

          In her Notice of Non-Opposition, Plaintiff states (and Burlington has not disputed) that she has already served a responsive statement of damages.

          Accordingly, the Court finds the request for an order compelling Plaintiff to respond to Burlington’s Request for Statement of Damages is moot.

          The only remaining issue is Burlington’s request for sanctions of $1,310 against Plaintiff and her counsel of record.

          As Burlington argues, the California Court of Appeal has stated a party can recover the costs incurred for bringing the instant motion to compel. (Argame v. Werasophon (1997) 57 Cal.App.4th 616, 618, fn. 3 [“Considering counsel’s disregard for the requirements of section 425.11 displayed here, the court would have been justified in requiring Argame (or more appropriately her counsel) to reimburse defendants for costs incurred in making such a motion”].)

          However, here, the Court does not find that Plaintiff and counsel are guilty of disregarding the requirements of Code of Civil Procedure section 425.11. Plaintiff’s counsel has testified under oath that his health issues caused the delay, and his client did not have anything to do with the delay.          Therefore, the Court denies the request for sanctions.

IV.      CONCLUSION

          Burlington Coat Factory of Texas, Inc.’s Motion to Compel Plaintiff’s Response to Request for Statement of Damages and for Sanctions of $1,310 is DENIED.

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

      Dated this 1st day of February 2024