TENTATIVE RULING

 

Calendar:    4

Date:          12/16/2022 

Case No: BC 648515 Trial Date: February 6, 2023 

Case Name: Ellensohn v. City of Burbank, et al.

DEMURRER

MOTION FOR ORDER REVISING OR MODIFYING PRIOR COURT ORDER RE IME

Moving Party:            Defendants City of Burbank and Burbank Water and Power (Demurrer)

Defendant HHS Construction, Inc. (Motion to Revise/Modify)      

Responding Party: Plaintiff Mark Ellensohn      

RELIEF REQUESTED:

Demurrer

Sustain demurrer to second cause of action of Fifth Amended Complaint 

Motion to Revise/Modify

Order revising prior court order regarding the IME of plaintiff Mark Ellensohn to allow the IME to proceed. 

CAUSES OF ACTION: from Fifth Amended Complaint  

1) Dangerous Condition of Public Property  

2) General Negligence and Gross Negligence  

3) Premises Liability 

4) Motor Vehicle 

SUMMARY OF FACTS:

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below. 

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, an explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road.  Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light.  On June 1, 2016, plaintiff underwent a surgical procedure on his left eye, and plaintiff’s ophthalmologist advised him that, in his opinion, the electrical explosion during the collision caused plaintiff’s ey damage.   Plaintiff was further advised that he had sustained permanent vision loss and permanent damage.  Plaintiff alleges that as a result of the intense bright explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish, diminished sense of direction, loss of earnings, loss of future earnings, and loss of earning capacity. 

The file shows that on January 28, 2021, plaintiff filed a Request for Dismissal without prejudice only as to defendant Verizon California, Inc., with the parties agreeing to waive costs and fees.  The dismissal was entered as requested the same date. 

On April 8, 2022, the court heard a Motion for Determination of Good Faith Settlement brought by defendant, cross-defendant and cross-complainant MCI Communications Services, LLC.  The motion was granted, and the court determined the settlement between defendant and plaintiff was entered into in good faith.   

On May 13, 2022, the court heard a motion brought by plaintiff for leave to file a Third Amended Complaint, which was granted in part and denied in part, and the TAC was filed on May 16, 2022.  

Moving defendants, the City of Burbank and Burbank Water and Power, filed a demurrer and motion to strike in response to the TAC, which was heard on July 29, 2022. 

The demurrer was sustained without leave to amend as to the third cause of action for premises liability, sustained with leave to amend as to the second cause of action for general negligence/gross negligence, and was otherwise overruled.  The motion to strike was granted with respect to the misidentification of the complaint as the “First” Amended Complaint and was also granted without leave to amend as to the prayer for punitive damages as to moving defendants only.  The motion to strike was otherwise denied.   Plaintiff was permitted ten days leave to amend the second cause of action only.  

The file shows that on August 15, 2022, plaintiff filed and served the Fourth Amended Complaint.  

On August 30, 2022, plaintiff filed a “Notice of Errata re Revised Fourth Amended Complaint,” and attached a (Revised) Fourth Amended Complaint, which plaintiff indicated, “should be deemed the operative Complaint.”    

On August 31, 2022, the City of Burbank defendants filed an “Objection to Plaintiff’s Notice of Errata,” indicating that the Notice of Errata exceeded the bounds of a proper Notice of Errata and was an attempt to amend the FAC without leave of court, to evade a demurrer and motion to strike.   The City of Burbank defendants urged the court to refuse plaintiff’s Notice of Errata. 

The demurrer and motion to strike was filed on September 12, 2022, and was directed at the Fourth Amended Complaint, not the Revised Fourth Amended Complaint.  

On October 7, 2022, the court heard the demurrer and motion to strike directed to the Fourth Amended Complaint.

At the hearing, the court on its own motion ordered stricken the Notice of Errata and the attached Revised Fourth Amended Complaint. The court considered the demurrer and motion to strike in connection with the Fourth Amended Complaint filed on August 15, 2022, and the demurrer was sustained with leave to amend.

The Burbank defendants now challenge the sufficiency of the second cause of action of the Fifth Amended Complaint. 

There is another motion on calendar brought by defendant HHS Construction for an order modifying the court’s previous court order regarding the IME of plaintiff to allow the IME to proceed.  

The motion is based on a court order issued pursuant to a motion to permit a second IME of plaintiff, the language of which defendant HHS Construction argues was confirmed at an ex parte hearing on June 29, 2022.  The minute order from that hearing shows the court denied the ex parte application brought by plaintiff, indicating the court would not sign an order in which an IME was no longer an issue, and would not sign a generic order.   The court did not sign or file any order that date. 

Defendant HHS Construction argues that since June 29, 2022, defendant has been circulating an order discussed at the June 29, 2022 hearing among potential psychologists and neuropsychologists in an attempt to find a replacement for defendant’s examining physician, who would not agree to conduct the examination under circumstances where he was required to turn over to plaintiff’s counsel certain raw data concerning the examination and testing, because he maintained he was ethically obligated only to turn over such information to a licensed mental health professional. 

On July 28, 2022, HHS Construction brought an ex parte application to continue the trial date, arguing it had been unable to find a psychologist or neuropsychologist willing and able to comply with the court’s June 29, 2022 order, and required more time to find a replacement expert.  The application was granted, and the trial was continued from September 12, 2022 to February 6, 2023. 

HHS Construction now moves to have the court revise its previous order, or to further continue the trial date in this matter in order to permit time for the court of appeal to act on a petition for writ of mandate filed by HHS Construction.  

ANALYSIS:

Demurrer —by City of Burbank Defendants

The City of Burbank defendants argue that the second cause of action fails to plead sufficient facts to support statutory liability for a negligence or gross negligence cause of action against the moving defendants. 

The demurrer by the moving defendants was previously sustained to address the circumstance that instead of amending the second cause of action in the third amended complaint in accordance with the court’s previous order, plaintiff had combined the second cause of action as against the Burbank defendants with the first cause of action, stating separate theories.   The court was concerned that this amendment would have the practical effect of rendering any demurrer ineffective, as the theory in the first cause of action, dangerous condition of public property, had already been found sufficiently stated.   A demurrer accordingly then would not dispose of an entire cause of action.   

The previous demurrer to the Fourth Amended Complaint was addressed as follows:

“The Court, on its own motion, pursuant to CCP section 436, strikes the “Notice of Errata,” filed on August 30, 2022, and the attached Revised Fourth Amended Complaint.

The Court has considered the demurrer and motion to strike in connection with the Fourth Amended Complaint filed on August 15, 2022. The court has considered references by plaintiff to the Revised Fourth Amended Complaint only in connection with whether further leave to amend will be permitted.

Demurrer is SUSTAINED WITH LEAVE TO AMEND (FINAL). Plaintiff is permitted leave to amend to allege a negligence/gross negligence theory in a cause of action separate from the dangerous condition of public property theory as alleged against the moving defendants. Plaintiff on amendment must in connection with any negligence/gross negligence claim, clearly allege specific facts establishing statutory liability on the part of the moving defendants under Government Code section 815.2(a) and explain how such statutory liability is appropriately alleged in this matter.”

Plaintiff has now alleged separately the first cause of action for dangerous condition of public property pursuant to Government Code section 835, and the second cause of action for general negligence/gross negligence as against the Burbank defendants, and then as to HHS Construction.  

The cause of action as to the Burbank defendants alleges that liability is based on Government Code section 815.2.   [5AC, para. 33]. 

Government Code § 815 provides:

“Except as otherwise provided by statute:

(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”

Government Code section 815.2 provides a statutory exception, providing, in pertinent part:

“(a) A public entity is liable for injury caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”

The court previously found insufficient allegations in the TAC that, “Defendants were negligent in failing to inspect and maintain the power line,” and “Defendants re-hung the wires and the guy wires, and/or installed the poles, only to have the same failure occur within three months’ time.”  [TAC, para. 36].  The court noted that no employees had been identified, and it was not explained how the conduct of any City employee would be independently actionable.  

The cause of action continues to allege that the Burbank defendants were negligent and grossly negligent in failing to inspect and maintain the combined lines upon the subject poles, supported by the same guy wires, and that a previous incident had occurred in March of 2015 and at the same location as the subject incident, and that the wires were rehung only to have the subject incident occur three months later.  [5AC, paras. 35-38].  It is now alleged in some detail that Burbank employees were negligent in failing to ascertain the span of the wires, the weight combined, and rehung the wires without any engineering plans, and that defendants simply rehung the wires without the necessary information in “an apparent effort to save money by not installing the wires underground” following the first incident.  [5AC, paras.  35, 38-40].  The cause of action identifies Burbank employee Calvin Clark, who testified in deposition that the Burbank defendants obtained no quantifiable numbers to address Burbank’s duty to make sure their electrical lines were supported correctly.  [Paras. 41-43].  The pleading also identifies Michael Gibson as an employee of Burbank, and explains how he engaged in negligence in this matter:

“45. Michael Gibson is an employee of Burbank. Acting within the scope of his employment as a line mechanic supervisor who oversees a line crew in maintaining and making repairs to overhead electrical distribution lines, Mr. Gibson was grossly negligent when he failed to ascertain the total weight of the span, the weight of all wires situated upon the poles and guy wires, did not have any engineering plans for the installation of the wires, and did not know all other factors that should be considered when hanging wires over a major interstate freeway, for a second time. 

46. Mr. Gibson, testified when asked whether he knew the combined total weight of the power lines and the communication cable, he responded, “I do not.”

[5AC, paras. 45, 46].

It is then alleged that Gibson provided unsubstantiated information to the CHP concerning the line being in good working order and above the required minimum clearance height, which information Gibson did not have, and admitted to the CHP that the previous incident had occurred.  [5AC, paras. 47-48]. 

The pleading alleges:

“49. Burbank hung wires after the first incident knowing and admitting that they should have had and needed engineering plans, should have known the weight and the technical specs of the span. Defendant admitted that they hung their respective wires without having knowledge of all of the wires, individually and/or combined, which they have admitted that they typically require that knowledge so that they can ensure that the structure is adequately supported.”

[5AC, paras. 45, 46].

These allegations are made directly against the Burbank defendants, not against all defendants generically, and now appear sufficiently specific to satisfy the court’s previous concerns. 

 The Burbank defendants primarily argue that the allegations are not true, as plaintiff alleges that the Burbank defendants did not adequately measure a line which was hung by defendant HHS Construction, not the Burbank defendants, and that the only involvement the Burbank defendants had with regard to the rehanging of the line after the March incident was being on site.   Defendants rely on previous allegations in the 5AC, which allege that “a representative from Defendant City of Burbank was on site at the re-hanging of the electrical wires when it came down the first time.”  [5AC, para. 29].  This allegation does not appear to contradict the direct allegations quoted above that allege that “Burbank” hung the wires with insufficient information, and the deposition testimony alleged which appeared to recognize a duty on the part of Burbank to see that the wires for which they were responsible were rehung correctly.   The allegations directed to Burbank now sufficiently allege facts connecting the second incident to notice of the first incident.   

These allegations must be accepted as true for purposes of demurrer.  See Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb Corp. v.  Structural Materials Co. (1981, 2nd Dist.) 123 Cal.App.3d 593, 604 (“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.”)  

Accepting these allegations as true, they are now sufficient to overcome demurrer.   The amendment to state the second cause of action separately from the first cause of action also ensures that this action is now in a posture where the general negligence/gross negligence theory against the Burbank defendants can be separately addressed on a motion for a factual adjudication of this theory and cause of action against the Burbank defendants.

Defendants also argue that the cause of action is duplicative of the first cause of action for dangerous condition of public property.  The cause of action does not appear to be strictly duplicative, as creation of a dangerous condition would appear to be distinct from negligence on the part of an employee.  The demurrer in fact argues that there is a significant distinction with respect to the liability for acts of an employee between Government Code section 835 and 812.5, so that the causes of action could be characterized as alternate inconsistent theories.  In any case, as argued in the opposition, under the liberal rules of pleading, parties are permitted to plead duplicative, alternative, or even inconsistent causes of action.   See Jackson v. County of Los Angeles (1997, 2nd Dist.) 60 Cal.App.4th 171, 177, 180.  

Moreover, the duplicative standard referred to by defendant is not currently listed as a ground to sustain a demurrer under CCP § 430.10.  See Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890 (“This is not a ground on which a demurrer may be sustained.”)

 

Plaintiff argues in the opposition that he should be permitted to maintain these distinct causes of action in the event discovery discloses further evidence which would affect either of the causes of action.  This assertion has merit, and the demurrer now is overruled. 

  

Motion for Order Revising or Modifying Prior Court Order

HHS Construction brings this motion for an order revising or modifying the court’s previous court order regarding the IME of plaintiff to allow the IME to proceed.  

The motion is based on a court order issued pursuant to a motion to permit a second IME of plaintiff, the language of which defendant HHS Construction argues was confirmed at an ex parte hearing on June 29, 2022.  As noted above, the minute order from the hearing states that the court denied the ex parte application brought by plaintiff, indicating the court would not sign an order in which an IME was no longer an issue, and would not sign a generic order.  The court evidently also did not sign the proposed order presented by defendant and attached to the moving papers as Exhibit 2.     

In any case, the language at issue is language that permits the examining medical professional at the IME to submit raw data with respect to the examination directly to counsel for plaintiff subject to a protective order limiting use to this case, rather than submitting the raw data directly to a licensed psychiatrist, psychologist, or therapist, presumably plaintiff’s expert witness.  Defendant has taken the position that the submission of raw data to a non-licensed mental health professional such as counsel for plaintiff would compromise the ethical obligations of the examining mental health professional and pose a risk of the raw data being improperly interpreted or the testing protocols disseminated, jeopardizing their value.   

Defendant HHS Construction argues that since June 29, 2022, defendant has been circulating the order including this procedure among potential psychologists and neuropsychologists in an attempt to find a replacement for its examining psychologist/neuropsychologist, who would not agree to conduct the examination under circumstances where he was required to turn over to plaintiff’s counsel raw data concerning the examination and testing, because he was ethically obligated to turn over such information only to a licensed mental health professional. 

On July 28, 2022, HHS Construction brought an ex parte application to continue the trial date, arguing it had been unable to find a psychologist or neuropsychologist willing and able to comply with the June 29, 2022 proposed order, and required more time to find a replacement expert.  The application was granted, and the trial was continued from September 12, 2022 to February 6, 2023. 

 

HHS Construction indicates in this motion that HHS Construction has now contacted, over the last five months, approximately 48 available psychologists/neuropsychologists who do forensic work, none of whom have indicated a willingness or ability to perform the IME pursuant to the language in the June 29, 2022 order.  [Hayes Decl., para. 7].  Of the 48 candidates, 22 completed declarations stating the reasons for declining the request to perform the IME. [Hayes Decl., para. 7].  Those declarations are attached as Exhibit 5. 

The declarations include some version of the following statements:

“I have reviewed the court’s Order and note that in paragraph 2, it provides that the examiner “will provide the orally administered psychological testing directly to plaintiff’s counsel within 30 days after completion of the examination.” I also note in paragraph 5, the court’s Order allows Plaintiff’s attorney to make a request directly to the IME examiner for the recording and any raw data from the administered testing. After reviewing this language in paragraphs 2 and 5, I informed HHS counsel that I cannot undertake performing the IME, as the language in the court’s Order [allows an audio recording and raw data to be obtained by persons other than those qualified to interpret the data, which] clearly violates the directive of the 2022 California Board of Psychology Laws and Regulations, §1396.3, as well as the ethical principles I am bound to uphold as a licensed psychologist in California.” 

[Ex. 5, paras. 4]. 

HHS Construction argues that it will be prejudiced severely if it is prevented from having a mental health expert at trial, and that consequently a way must be found to allow HHS Construction to have a neuropsychologist perform a mental examination of plaintiff under conditions which do not require that neuropsychologist to violate his or her ethical and legal obligations. 

The motion then reargues the arguments made in connection with the previous hearings concerning the IME order, without citing to legal authority under which this would be proper.  

The motion also indicates that defendant has filed with the court of appeal a writ, and that requests that the hearing be continued until after the court of appeal’s decision is received, with the trial date also further continued, for a period not less than four months. 

Counsel’s declaration indicates that the writ was filed on August 28, 2022, on the issue of the recording restriction and test data, and that as of the date of the motion, the writ is still awaiting a response from the appellate court.  [Hayes Decl., para. 6].  Counsel indicates that he recently contacted the court clerk for the Appellate Court, and “was informed that a decision from the Appellate Court is anticipated in early December, after the deadline for the filing of this motion.”  [Hayes Decl., para. 6].  The court of appeal docket shows that a petition for a writ of mandate was filed on August 26, 2022, that Exhibits in support of the petition were filed on August 26, 2022 and September 2, 2022, with changes of address filed for LASC personnel on October 26, 2022. 

It would accordingly appear that any request for this court to revise or modify its order should be delayed until the petition for writ of mandate is determined, to avoid rendering moot the work being done by the court of appeal with respect to whether the petition will be accepted.  Plaintiff in opposition argues that HHS Construction made a choice to pursue the issue through the petition for writ and has given up the decision concerning the propriety of the order as it now exists to the court of appeal, and HHS Construction must wait for that determination.  Plaintiff points out that should this court now revise or modify its order, then plaintiff would have to appeal the same issue, so that it seems most prudent to allow time so that the appellate court can make a decision.  

Plaintiff indicates that plaintiff can agree to a trial extension for a short period of time, but that this case cannot be continued indefinitely.   Specifically, plaintiff is concerned that if the court of appeal rules against HHS Construction, and that the testing and recording is to be given to plaintiff’s counsel, then HHS Construction will then have to find a doctor willing to comply with such a ruling but cannot take an indefinite amount of time to do so.  Plaintiff appears willing to stipulate to a continuance of the trial date for up to four months, but not longer.    

Continuing the hearing on this matter until the court of appeal has acted on the petition for writ appears to be the most appropriate way to deal with this matter.  It should be noted the Court of Appeal apparently has not issued a Palma notice or an alternative writ which would call for a written opposition.  Nor has the petitioner HHS asked the Court of Appeal to stay this case.  The Court of Appeal could be waiting for a decision by another appellate district which has the same issue presented in a writ filed by other parties in another case.  The court’s view is that the proper remedy is for the legislature to amend the statute to address this issue.  In the court’s view, if the Court of Appeal were to rule in HHS’ favor, it would be de facto amending the statute.

Defendant also indicates that it has been in contact with other defense counsel with similar issues with mental examinations, where plaintiff and their counsel are demanding that the attorney have a copy of an audio recording of the mental examination and/or direct access to data, and that one writ with such issues has been taken up by the court of appeal, fifth appellate district, with the court of appeal on October 6, 2022 issuing an order to show cause why the relief sought by defendants should not be granted.  [See Exhibit 8].  It is not clear if defendant is urging the court to await the outcome of that writ proceeding.   In any case, the motion and status of that proceeding can be revisited once the court of appeal in this matter has determined what it will do in connection with the petition for writ here. 

The motion hearing accordingly is continued, and the court will discuss at the hearing what trial continuance will be necessary, and to which new trial date the parties are willing to stipulate.  

RULING:

Defendant City of Burbank and Burbank Water and Power’s Demurrer to Fifth Amended Complaint is OVERRULED. 

Ten days to answer. 

Defendant HHS Construction, Inc.’s Motion for Order Revising or Modifying Prior Court Order re IME:

What is the current status of the Petition for Writ of Mandate filed by moving defendant HHS Construction, Inc. which the Court of Appeal docket reflects was filed on August 26, 2022?

Motion is CONTINUED, at the request of both sides, until a date following a determination by the Court of Appeal with respect to the pending Petition for Writ of Mandate filed with the Court of Appeal on August 26, 2022.  

Matter is set for a status conference re: status of appeal, resetting of motion on January 13, 2023 at 9:00 a.m.

The Court will discuss whether the parties will stipulate to a trial continuance at the hearing, or whether the issue will be reserved for the future status conference regarding the status of appeal. 

GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.