Judge Ralph C. Hofer, Case Number: 23GDCV01099, Date: 2024-11-22 Tentative Ruling

Judge: Ralph C. Hofer, Case: 23GDCV01099, Date: 2024-11-22 Tentative Ruling

Case Number: 23GDCV01099 Hearing Date: November 22, 2024 Dept: D

TENTATIVE RULING

Calendar: 3

Date: 11/22/2024

Case No: 23 GDCV01099 Trial Date: July 21, 2025

Case Name: Honarchian, et al. v. City of Glendale, et al.

MOTION FOR SUMMARY JUDGMENT

Moving Party: Defendants Ashken Pogosyan, an individual and as Trustee of the SSS Management Trust and the AP Family Security Irrevocable Trust

Responding Party: Plaintiffs Soseh Honarchian, Arpa Bostanian, through her GAL and Areg Bostonian, through his GAL

RELIEF REQUESTED:

Order granting summary judgment on the complaint in favor of defendants Ashken Pogosyan, an individual, and as Trustee of the SSS Management Trust and the AP Family Security Irrevocable Trust and against plaintiffs.

75 Day Lapse: Yes

Separate Statements: Yes

CAUSES OF ACTION: from First Amended Complaint

1) Negligence v. Pogosyan, Jewett Defendants

2) Liability for Dangerous Condition of Public Property v. City of Glendale, City of Los Angeles, County of Los Angeles

3) Wrongful Death v. All Defendants

4) Survival Action v. All Defendants

SUMMARY OF FACTS:

The complaint is brought by the surviving spouse of decedent Masis Tatius, plaintiff Soseh Honarchian, and decedent’s minor surviving children, plaintiffs Arpa Bostanian and Areg Bostanian. The operative complaint, the First Amended Complaint (FAC) alleges that on the evening of June 12, 2022 plaintiffs’ decedent was traveling westbound on an electric scooter along a sidewalk in Glendale, which sidewalk was owned, operated, leased, maintained or managed by defendants City of Glendale, City of Los Angeles and County of Los Angeles. Plaintiffs allege that prior to the incident, the subject sidewalk was dangerously, poorly, and negligently designed, constructed, operated, managed, inspected, maintained and/or controlled, and featured an inadequate and unreasonably narrow pathway with poor and inadequate lighting conditions.

The FAC also alleges that prior to the incident the planting beds located on the northern ends of properties owned by defendant Asken Pogosyan, individually and as trustee, and defendant Douglas F. Jewett, individually and as trustee, immediately adjacent to the southern edge of the subject sidewalk, were dangerously, poorly, and negligently designed, constructed, operated, managed, inspected, maintained and/or controlled, and remained unsecured with significantly deeper height differentials than that of the subject sidewalk’s concrete pathway in addition to inadequate lighting conditions.

Plaintiffs allege that as a result of the dangerous conditions posed by and existing on the subject sidewalk, defendant Pogosyan’s property and defendant Jewett’s property, decedent was thrown off the electric scooter and onto the concrete floor, leaving him with severe, incapacitating and traumatic injuries, which ultimately resulted in his untimely death.

ANALYSIS:

Procedural

Untimely Opposition

CCP section 437c(b)(2) provides:

“Any opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.”

Under CRC Rule 3.1300(d), “If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”

Here, the opposition was filed on November 12, 2024, for a November 22, 2024 hearing date. Fourteen days before the hearing fell on November 8, 2024. The opposition was accordingly filed four days late, only ten days prior to the hearing. This situation has been inconvenient for the court and the courtroom staff. The file includes a proof of service showing service of the opposition on the moving parties on November 9, 2024, one day late, so that plaintiffs have also been unfair to the moving parties who have been deprived of a day within which to file a timely reply. The court, in its discretion, could refuse to consider the untimely opposition. However, the court will consider the opposition, but plaintiffs are cautioned that in the future the court may refuse to consider papers not filed in conformity with the statutes, rules, and procedures governing this litigation.

Request for Continuance

The opposition requests that the court deny the motion or, alternatively, continue the hearing on the motion because plaintiffs have been unable to obtain crucial discovery.

Plaintiffs rely on CCP section 437c(h) provides, in pertinent part:

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just….”

The affidavit submitted is by counsel for plaintiffs, is dated November 9, 2024, and states:

“On numerous occasions prior to the submission of this Opposition, I have requested from Defendants’ counsel dates available for Defendant’s deposition, as well as the depositions of Defendant City of Glendale’s Persons Most Qualified and the police officers who investigated the subject incident. Unfortunately, however, I have not received any substantive dates in response to my requests. Attached hereto as Exhibit A is a true and correct copy of my email correspondence regarding the foregoing with Steven Hunt, counsel for Defendant. These depositions, and particularly this Defendant’s, are likely to reveal additional facts and documents relevant to the determination of this Motion and aggravating facts and circumstances surrounding the subject incident and properties at issue. The police officers’ depositions were set by Defendant’s counsel and were supposed to move forward on multiple occasions prior to the filing of this Declaration, and most recently on November 14, 2024. My office was notified earlier today that those depositions will again not be moving forward on November 14, 2024. Furthermore, the deposition of Defendant Douglas F. Jewett was taken on November 7, 2024, only after extensive efforts were expended and multiple notices were issued to schedule the deposition. My office has yet to receive a copy of the deposition transcript as of the filing of this Declaration.”

[Bedrossian Decl., para. 12].

The attached exhibit is an email chain which began in May of 2024, with amended deposition notices of depositions of two police officers which defendants were planning to take, which have evidently been rescheduled and not yet conducted, which includes a request from plaintiffs’ counsel on October 15, 2024, which states, “Any chance you could circulate a few available dates between now and November 8th for your client’s deposition?” There was a follow up email on October 18, 2024, and a response that there was a call into the client. On November 8, 2024, the day opposition was due, as noted above, there was an inquiry by plaintiffs’ counsel, “Any update on this?” The response was “I have reached out to our client, I am waiting to hear back.” [Bedrossian Decl., Ex. A].

Since the amendment of the summary judgment timelines in 2003, the courts have imposed good faith/diligence requirement on parties seeking continuances. The Second District in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, set forth the required elements of an affidavit in support of a request for continuance, holding that

“A declaration in support of a request for a continuance under section 437c, subdivision (h) must show:

(1) the facts to be obtained are essential to opposing the motion;

(2) there is reason to believe such facts may exist; and

(3) the reasons why additional time is needed to obtain these facts.”

Cooksey, at 254, citations, internal quotations omitted.

It is recognized that where an appropriate declaration meeting these requirements is submitted, then denial of the motion or grant of the continuance is mandatory. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 149, 167. Where the declaration is not timely submitted, or fails to make the required showing, then whether to grant a continuance is a matter within the trail court’s discretion, and the trial court’s ruling will be reviewed for abuse of discretion. Cooksey, at 254.

In Cooksey, the Second District affirmed the trial court’s denial of a request for a continuance, as the declaration was not only untimely but inadequate, as it “provided no explanation how the outstanding discovery was relevant to the issues raised by respondent’s motion,” and failed to show diligence in obtaining the outstanding discovery, so failed to show a justifiable reason why the essential facts could not be presented.

In Cooksey, a medical malpractice case, the declaration requesting a continuance was not filed until the day of the hearing on the summary judgment motion, and there was no indication how outstanding discovery was necessary for the opposition. In addition, the declaration contained no explanation of why the discovery sought could not have been initiated sooner, and counsel acknowledged that he had intentionally delayed discovery for tactical reasons, to delay disclosure of the medical expert’s opinion as long as possible. See Cooksey, at 255-257.

Here, the declaration was not timely, but filed one day late, so the determination of whether a continuance will be granted is discretionary.

The showing in the declaration is somewhat incomplete, as it is not clearly stated what facts are to be obtained, how they are essential to opposing the motion, and why it is believed the facts exist.

It is also not explained why, if moving defendants’ deposition is so essential, plaintiffs’ counsel did not request dates until October 15, 2024, when this motion was filed and served in April of 2024, and has already been continued once by stipulation. The request was made only three weeks before the opposition was due. It is also not clear why, if the police officer depositions are so critical, there was no attempt by plaintiffs to notice them and follow through. Instead, plaintiffs took no action when the depositions were scheduled for November 14, 2024, a date almost a week after opposition to the motion was due. This showing does not appear to demonstrate reasonable diligence to obtain necessary evidence.

Nevertheless, the declaration does state that the outstanding depositions are likely to reveal additional facts and documents relevant to the determination of this motion and aggravating facts and circumstances surrounding the subject incident and properties at issue. While this statement is somewhat vague, a review of the motion and opposition confirms that a central issue in the defenses urged in the moving papers is the condition of the moving parties’ property on the date in question, about which the responding police officers and property owners would have personal knowledge, and may in fact provide at deposition the only admissible evidence by a witness with contemporaneous knowledge.

Under these circumstances, it would therefore, be in the interests of all concerned, judicial economy, and the fair resolution of this matter between plaintiffs and the moving defendants, to continue these motions to permit further necessary discovery to be conducted. Summary judgment remains a drastic remedy, the court accordingly exercise it’s discretion to grant a continuance.

The declaration in support of the continuance indicates that the outstanding depositions which plaintiffs need to have taken are of the two police officers, identified in the email as Police Officer Patrick Takla and Police Officer Aaron Eggiman, and of moving parties, defendants Ashken Pogosyan, an individual, and as Trustee of the SSS Management Trust and the AP Family Security Irrevocable Trust. [Bedrossian Decl., para. 12, Ex. A].

The court at the hearing will establish a firm deadline by which this discovery must be completed, sufficiently far in advance of the new hearing date to permit supplemental briefing to be prepared.

RULING:

Defendant Pogosyan’s Motion for Summary Judgment:

The Court notes that plaintiffs’ opposition to the motion was filed only ten days prior to the hearing, so four days late, in violation of CCP §437c (b)(2). The opposition papers were served on November 9, 2024, which is still one day late. The Court in its discretion has nevertheless considered the untimely opposition. However, plaintiffs are cautioned that in the future plaintiffs must comply with all service and filing deadlines, and that the Court may refuse to consider papers not filed in compliance with the applicable rules, statutes, and deadlines.

Defendant Pogosyan’s Motion for Summary Judgment is CONTINUED to March 28, 2025 at 9:00 a.m.

The Court finds pursuant to CCP § 437c (h) and the discretionary authority of the Court, that, based on the albeit untimely Declaration of Alec G. Bedrossian submitted in opposition to the motion, the matter should be continued to permit limited further discovery of facts essential to justify the opposition.

The Court will permit the parties to conduct the depositions of Police Officer Patrick Takla and Police Officer Aaron Eggiman, and to conduct the deposition(s) of moving parties, defendants Ashken Pogosyan, an individual, and as Trustee of the SSS Management Trust and the AP Family Security Irrevocable Trust. All depositions must be completed no later than February 13, 2025. (45 days before hearing). The Court will expect the parties to be prepared to schedule the subject discovery at the hearing, and to add those dates to this order.

Deposition of Police Officer Patrick Takla_________.

Deposition of Police Officer Aaron Eggiman__________.

Deposition of defendants Ashken Pogosyan, an individual, and as Trustee of the SSS Management Trust and the AP Family Security Irrevocable Trust _______________.

Plaintiffs shall file and serve any supplemental opposition no later than fourteen (14) calendar days prior to the newly scheduled hearing. Any reply thereto shall be filed and served no later than five court days prior to the hearing.

DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE

AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED.

If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.