Judge: Michael E. Whitaker, Case: 21STCV02794, Date: 2022-08-01 Tentative Ruling

Case Number: 21STCV02794    Hearing Date: August 1, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

NOTE:  3 TENTATIVE RULINGS BELOW

TENTATIVE RULING - NO. 1

MOTION

              Plaintiffs Fausto Reyes Blanco (“Fausto”) and Rosa Maria Blanco (collectively, “Plaintiffs”) sued defendants Isabel M. Grande Arizaga (“Arizaga”) and Carlos Grande (“Grande”) (collectively, “Defendants”) based on injuries Plaintiffs allege they sustained when Fausto fell from scaffolding while performing plastering and painting services on property owned and controlled by Defendants. 

Arizaga moves to stay this action pending the resolution of a prior and parallel proceeding filed by Fausto against Arizaga before the Workers’ Compensation Appeal Board (“WCAB”) relating to the same incident and injuries in this case.   Plaintiffs oppose the motion.

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

Here, the Court grants Defendant’s requests for judicial notice Nos. 1, 6, and 7 per Evidence Code section 452, subdivision (c); Nos. 2-4 per Evidence Code section 452, subdivision (d); and No. 5 per Evidence Code section 452, subdivision (h).

The Court notes, however, that while the existence of any document in a court file or “official acts” of a governmental entity may be judicially noticed, the truth of the matters asserted in such documents is not necessarily subject to judicial notice. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569; Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (disapproved on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276).)  “A court cannot take judicial notice of the truth of hearsay statements just because they are part of a court record or file.” (Bach v. McNelis (1989) 207 Cal.App.3d 852, 864-865 [emphasis original].)

ANALYSIS

The Court has the power to “amend and control its process and orders so as to make them conform to law and justice . . . ,” which includes the power to stay proceedings.  (Code Civ. Proc., § 128, subd. (a)(8); see also Bailey v. Fosca Oil Co. (1963) 216 Cal.App.2d 813, 817-818.)

Here, Arizaga argues that the Court must stay the action because Fausto initiated the WCAB proceedings against Arizaga for the same injuries and underlying incident before filing this action.  Arizaga relies on the rule established in Scott v. Industrial Accident Commission (1956) 46 Cal.2d 73, that whichever tribunal exercised jurisdiction first should make the necessary findings to determine which tribunal has exclusive jurisdiction over the remainder of the matter.

In opposition, Plaintiffs rely on Magliulo v. Superior Court (1975) 47 Cal.App.3d 760 in support of their contention that Arizaga has waived her right to stay this action because Defendants have filed responsive pleadings and participated in discovery without requesting an immediate stay.  The Court finds the facts of Magliulo to be distinct from this case such that Magliulo is not applicable.  In Magliulo, the Court of Appeal found the Scott rule did not apply because plaintiff’s claims against her employer included those for intentional torts.  The Magliulo court therefore found the plaintiff’s remedies before both tribunals to be cumulative per Labor Code section 3601; not mutually exclusive.  (Magliulo, supra, 47 Cal.App.3d at p. 767.)  Consequently, Magliulo is inapposite.

According to counsel for Arizaga, Mark B. Solomon (“Solomon”) Fausto filed his workers’ compensation claim against Grande on March 6, 2019.  (Declaration of Mark B. Solomon, ¶ 3.)  Solomon avers that Grande’s insurer petitioned to join Arizaga to be joined in the proceeds as a defendant employer on November 22, 2019, and on October 5, 2020, Fausto filed an amended claim adding Arizaga as a co-employer.  (Declaration of Mark B. Solomon, ¶¶ 4-5.)  The Court notes that Plaintiffs filed the complaint in this case on January 22, 2021.  The Court therefore finds that because Plaintiffs’ initiated their workers’ compensation claims prior to the filing of this action, the WCAB board should make the necessary findings to determine which tribunal has exclusive jurisdiction over the remainder of the matter. 

The Court considers a stay of this case pending resolution of the WCAB proceedings appropriate to avoid the waste of judicial resources that would occur should this Court lose jurisdiction. 

Accordingly, the Court grants Arizaga’s motion for order staying the civil action and orders the proceedings in this action stayed pending further order of this Court.  Further, the Court vacates the final status conference and trial, and sets a Status Conference regarding the WCAB proceedings, or in the alternative, Trial Setting Conference, for February 6, 2023 at 8:30 A.M. in Department 32.  At the February 6, 2023 hearing, the Court will determine whether the stay of the proceedings in this action should be vacated, and whether a trial and final status conference should be set.

Arizaga shall give notice of the Court’s ruling and file a proof of service of such.

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING - NO. 2

MOTION

            Plaintiffs Fausto Reyes Blanco (“Fausto”) and Rosa Maria Blanco (collectively, “Plaintiffs”) sued defendants Isabel M. Grande Arizaga (“Arizaga”) and Carlos Grande (“Grande”) (collectively, “Defendants”) based on injuries Plaintiffs allege they sustained when Fausto fell from scaffolding while performing plastering and painting services on property owned and controlled by Defendants. 

Arizaga moves for a protective order extending the time for her to respond to the form interrogatories, requests for production of documents, and requests for admission propounded by Plaintiffs until a date after the Workers’ Compensation Appeals Board (“WCAB”) determines jurisdiction over the matter.  Plaintiffs oppose the motion.

ANALYSIS

“The court, for good cause shown, may make any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”  (Code Civ. Proc., §§ 2030.090, subd. (b); 2033.080, subd. (b); 2031.060, subd. (b).)   The protective order may include direction that the subject discovery request need not be answered or that the time to respond be extended.  (Code Civ. Proc., §§ 2030.090, subds. (b)(1), (3); 2033.080, subds. (b)(1), (3); 2031.060, subds. (b)(1), (3).)   A party seeking a protective order must show good cause for issuance of the order by a preponderance of the evidence.  (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) 

Here, Arizaga argues a protective order is warranted because she anticipates the Court will grant her motion concurrent motion to stay proceedings in this case pending the outcome of the WCAB’s decision in the prior and parallel proceedings related to the incident underlying the litigation.  According to counsel for Arizaga, Plaintiffs have rejected his request for an open extension of time to respond to the discovery due to the WCAB proceedings and motion to stay pending at the time of filing of the motion.  (Declaration of Joseph P. Tabrisky, ¶¶ 5-7.)

In opposition, Plaintiffs argue Arizaga has waived her right to stay the action because she and Grande have filed responsive pleadings and engaged in discovery.  As noted in the Court’s August 1, 2022 Minute Order concerning Arizaga’s motion to stay, Plaintiffs’ reliance on Magliulo v. Superior Court (1975) 47 Cal.App.3d 760 in support of their waiver argument is misplaced.  The facts and reasoning of Magliulo are distinct such that Magliulo has no bearing on this case.  Plaintiffs also argue that the discovery in this case neither duplicates nor contradicts the issues pending in the WCAB.  Even if that may be true, the Court finds it prudent to prevent the parties’ further expenditure of time and resources in this case until the WCAB decides the issue of jurisdiction.

CONCLUSION AND ORDER

Therefore, the Court grants Arizaga’s motion for protective order, and extends the time for Arizaga to respond to the form interrogatories, requests for production of documents, and requests for admission propounded by Plaintiffs until 45 days after the stay of the proceedings in this action is vacated.   

Arizaga shall provide notice of the Court’s ruling and file a proof of service of such

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING - NO. 3

BACKGROUND

Plaintiff Fausto Reyes Blanco (“Fausto”) sued Defendant Carlos Grande based on injuries Fausto claims he sustained when he fell from scaffolding while performing plastering and painting services on property owned and controlled by Defendant.  Fausto moves for an award of reasonable attorney’s fees for the time spent dismissing Defendant’s Cross-Complaint.  Defendant opposes the motion.

ANALYSIS

            Per Code of Civil Procedure section 128.5, “[a] trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  (Code Civ. Proc., § 128.5, subd. (a).)  “‘Actions or tactics’ include making or opposing motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.” (Code Civ. Proc., § 128.5, subd. (b)(1).)  “‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.”  (Code Civ. Proc., § 128.5, subd. (b)(2).)  The Court must consider whether the parting seeking sanctions has exercised due diligence.  (Code Civ. Proc., § 128.5, subd. (f)(1)(c).)  Sanctions “shall be limited to what is sufficient to deter repetition of the action or tactic or comparably action or tactic by other similarly situated.  (Code Civ. Proc., § 128.5, subd. (f)(2).) 

            Here, Fausto argues that Defendant filed a frivolous cross-complaint against him.  Specifically, Fausto asserts that Defendant’s cause of action for fraud against Fausto was entirely without merit and the Defendant was aware that his allegations had no reasonable basis or factual support.

            Defendant’s cause of action for fraud in the cross-complaint was premised upon an alleged conduct and representation by Fausto to Defendant that allegedly led Defendant to falsely believe that Fausto was a licensed contractor.  In support of his argument that Defendant filed his claim for fraud in bad faith to harass him, Fausto relies on Defendant’s deposition testimony from the workers’ compensation proceeding related to this incident.  There, Fausto represents that Defendant stated that he does not know whether Fausto has a contractor’s license and that he never checked. 

            In opposition, Defendant argues that Fausto’s reliance on Defendant’s statement at deposition fails to show that Defendant’s allegations in the cross-complaint were false.  Rather, Defendant contends that his deposition testimony corroborates the allegations because Defendant believed that Fausto was a licensed contractor based on his conduct and representations.  The Court agrees.  Defendant also argues that the motion is procedurally improper for Fausto’s failure to comply with the safe harbor provision of Code of Civil Procedure section 128.5(f)(1)(B).  On that point, the Court disagrees.

Under Code of Civil Procedure section 128.5(f)(1)(B), a motion for sanctions based on an alleged action or tactic in the making or opposing of the filing and service of a complaint, cross-complaint, answer, or other responsive pleading “that can be withdrawn or appropriately corrected” cannot be filed with or presented to the Court “unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”  (Code Civ. Proc., § 128.5, subd. (f)(1)(B).)

In this case, the Court dismissed Defendant’s cross-complaint against Fausto on January 20, 2022.  (See January 18, 2022 Request for Dismissal.)  The Court therefore finds that Defendant’s cross-complaint against Fausto could not have been withdrawn or appropriately corrected” to trigger the safe harbor provision of Code of Civil Procedure section 128.5, subdivision (f)(1)(B).

The Court therefore finds that Fausto has failed to establish that Defendant’s cross-complaint against Fausto was either frivolous or in bad faith.  As Defendant proposes, the evidence on which Fausto relies only suggests that Defendant did not know whether Fausto was a licensed contractor nor did he check.  Fausto proffers nothing to show that Defendant did not reasonably believe that Fausto was as licensed contractor and, for that reason, did not confirm with Fausto whether he was licensed. 

Accordingly, the Court denies Plaintiff’s motion for attorneys’ fees.  Fausto shall provide notice of the Court’s ruling and file a proof of service of such.