Judge Theresa M. Traber, Case 20STCV40080 2023-02-07 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV40080, Date: 2023-02-07 Tentative Ruling

Case Number: 20STCV40080 Hearing Date: February 7, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 7, 2023 TRIAL DATE: May 30, 2023

CASE: Dr. Melina Abdullah, et al. v. Jacquelyn Lacey, et al.

CASE NO.: 20STCV40080

(1) MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

(2) MOTION FOR SUMMARY ADJUDICATION

(3) MOTION TO QUASH THIRD PARTY DEPOSITION SUBPOENA FOR DOCUMENTS

MOVING PARTY: (1) Defendant Jacquelyn Lacey; (2) Defendant Estate of David Lacey; (3) Plaintiff Melina Abdullah

RESPONDING PARTY(S): (1)(2) Plaintiffs Melina Abdullah, Dahlia Ferlito, and Justin Marks; (3) Defendant Estate of David Lacey

CASE HISTORY:

· 10/19/20: Complaint filed.

· 11/05/20: First Amended Complaint filed.

· 02/05/21: Second Amended Complaint filed.

· 04/12/21: Third Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiffs allege that they were peacefully protesting outside of Defendants’ home when Defendants conspired to compel them to leave by having Defendant David Lacey threaten Plaintiffs with a handgun when they rang Defendants’ doorbell. Plaintiffs also allege that Defendants then made false and misleading statements about the incident when it was under investigation.

Defendant Jacquelyn Lacey moves for summary judgment or, alternatively, for summary adjudication on all remaining causes of action against her. Defendant David Lacey moves for summary adjudication on the fourth cause of action for false imprisonment and for Plaintiffs’ plea for punitive damages. Plaintiff Abdullah moves to quash Defendant Estate of David Lacey’s third-party deposition subpoena for records.

TENTATIVE RULING:

Defendant Jacquelyn Lacey’s Motion for Summary Judgment is DENIED.

Defendant Jacquelyn Lacey’s Motion in the Alternative for Summary Adjudication is GRANTED as to the fourth cause of action and otherwise DENIED.

Defendant David Lacey’s Motion for Summary Adjudication is GRANTED as to the fourth cause of action and otherwise DENIED AS MOOT.

Plaintiff Melina Abdullah’s Motion to Quash is DENIED.

Moving parties to give notice.

DISCUSSION:

Motion for Summary Judgment (Jacquelyn Lacey)

Defendant Jacquelyn Lacey moves for summary judgment on the two remaining causes of action asserted against her. As Defendant is not entitled to summary adjudication of all causes of action, Defendant’s Motion for Summary Judgment is DENIED.

Motion for Summary Adjudication (Jacquelyn Lacey)

Defendant Jacquelyn Lacey moves for summary adjudication on the two remaining causes of action asserted against her.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and, if not, to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The lack of opposition by a plaintiff is not grounds to grant a motion for summary judgment if a defendant cannot meet their initial burden of proof. (See Thatcher v. Lucy Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

First Cause of Action (Negligence)

Defendant Jacquelyn Lacey moves for summary adjudication on the first cause of action for negligence.

To prevail on a claim of negligence, a plaintiff must prove (1) a duty of the defendant to use due care, (2) a breach of that duty, and (3) that the breach was the cause of the resulting injury. (See, e.g., Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-18.) Defendant argues that she owed no duty to Plaintiffs, that, even if she did owe a duty to Plaintiffs, it should be excused, and, finally, that her conduct was not the cause of Plaintiffs’ injury. The Court addresses each of these arguments in turn.

1. Duty

Defendant first argues that she owed no duty of care to Plaintiffs, and thus that the first cause of action against her is without merit.

Generally, “[e]veryone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code § 1714(a).) The duty to act with reasonable care does not require a bystander to help another person when the bystander has not created or contributed to a risk of harm. (See, e.g., Brown v. USA Taekwondo, (2021) 11 Cal.5th 204, 214.) Nevertheless, a party may have an affirmative duty to protect another from another’s harm if that party is in a “special relationship” with either the victim or the person who created the harm. (Brown, supra, 11 Cal.5th at 214.) A special relationship with a plaintiff or victim arises where “the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.” (Regents of Univ. of Cal. v. Superior Court, (2018) 4 Cal.5th 607, 720-21.) A special relationship with a third party who causes harm arises when the defendant has the ability to control the person “such that ‘if exercised, [it] would meaningfully reduce the risk of harm that actually occurred.’” (Megeff v. Doland (1981) 123 Cal.App.3d 251, 258 [alterations in original; internal citations omitted].)

Defendant asserts that the first cause of action is without merit because she did not owe any duty of care to Plaintiffs as a bystander to the conduct of her husband. Defendant contends that there was no special relationship between her and Plaintiffs, or, more relevant here, between her and her husband, that would give rise to a duty of care. Defendant offers considerable evidence that she was not directly involved in her husband’s interactions with Plaintiffs, and therefore did not exercise any control over Plaintiffs. (See, e.g., Defendant’s Separate Statement of Undisputed Material Fact Nos. 22-24.) Defendant’s evidence in support of the contention that she exercised no control over her husband is lacking, however. The only evidence provided is a set of conclusory assertions in a declaration provided by Defendant that purports to refute Plaintiffs’ allegations. (SSUMF Nos. 26-28.) These conclusory statements are insufficient to meet Defendant’s burden of proof on summary judgment. (See, e.g., Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 173.) Further, the fact that Defendant did not know what transpired on the porch until after the fact does not, of itself, speak to her ability to control her husband—only that, if it existed, it was not exercised. Defendant has therefore failed to negate duty by showing the absence of a special relationship with her husband, as is her burden on a motion for summary judgment. The burden of proof therefore does not shift to Plaintiff to demonstrate a triable issue of fact.

2. Whether Duty Should be Excused

Defendant argues that, even if the Court concludes that she did have a duty to Plaintiffs, that duty should be excused as a matter of public policy.

When a special relationship gives rise to an affirmative duty to protect, a court must consider whether policy considerations warrant a departure from that duty. (Brown, supra, 11 Cal.5th at 211.) Our Supreme Court identified seven policy factors which should be considered in making this determination: (1) the foreseeability of harm to the injured party; (2) the degree of certainty that the party has suffered injury; (3) the closeness of the connection between the condition of the property and the injury; (4) the moral blame attached to the landowner’s conduct; (5) the policy of preventing future harm; (6) the extent of the burden the duty would impose compared to the benefit to the community from imposing the burden; and (7) the practical availability of insurance for the risk involved. (Rowland v. Christian (1968) 69 Cal.2d 108, 112-13.) These factors are considered “at a relatively broad level of factual generality” to determine “not whether they support an exception to the general duty of reasonable care on the facts of the particular case . . . but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.” (Brown, supra, 11 Cal.5th at 221.)

Defendant makes no effort to identify a category of cases demonstrating that the facts here support an exemption from a duty of reasonable care. Instead, contrary to the plain language of the precedent on which she relies, Defendant argues that her case—and only her case—should be excluded from the duty of reasonable care under the Rowland factors. Indeed, Brown v. USA Taekwondo II expressly distinguishes the special relationship test, which is concerned only with the facts of the instant case, with the Rowland factors, which concern an entire category of cases. (Id.) As Defendant has failed to address the Rowland factors within their proper scope, the Court finds that Defendant has not demonstrated that Plaintiffs cannot prevail on this cause of action based on a showing that any duty of care should be excused. The burden of proof therefore does not shift to Plaintiffs to demonstrate a triable issue of fact on this basis.

3. Causation

Defendant’s final argument is that this cause of action is without merit because Plaintiffs cannot establish that any conduct by Defendant was the cause of their injuries.

To establish the element of causation, a plaintiff must show that the defendant’s act or omission was both an actual cause in fact of the injury and the proximate, or legal, cause of the injury. (Union Pac. R. R. Co. v. Ameron Pole Prods. LLC (2019) 43 Cal.App.5th 974, 980.) A defendant’s conduct is a cause in fact of the injury if the injury would not have occurred but for the defendant’s conduct. (Id. at 981.) A defendant’s conduct is a proximate cause if it is a necessary antecedent to causing the harm, and public policy consideration do not limit the defendant’s responsibility for their actions. (State Dept’ of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352-53.)

Defendant contends that Plaintiffs cannot establish a causal relationship between her conduct and their injury because she was not present on the porch and did not directly interact with Plaintiffs. Defendant’s characterization of the events at issue --that “Plaintiff’s alleged injuries were caused solely by their encounter with Mr. Lacey on the porch” -- is overly restrictive. Evidence that Plaintiffs’ harms stem from the encounter on the porch is not sufficient to establish a lack of causation when Plaintiffs’ central allegation is that, but for Defendant’s conduct, the encounter on the porch would not have occurred. (See SSUMF No. 29, 4AC ¶ 25.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82.) Further, Defendant’s declaration offering conclusory denials of the allegations in the pleadings (see SSUMF Nos. 26-28) is insufficient to sustain Defendant’s burden of proof on summary judgment as to the issue of causation in fact. Additionally, as to the issue of proximate causation, Defendant’s reliance on the broad policy presumption against liability for nonfeasance, (see Brown, supra, 11 Cal.5th at 215), is insufficient when Defendant has not established the absence of a triable issue of fact regarding whether Defendant engaged in affirmative misfeasance. Defendant has therefore failed to carry her burden to demonstrate that Plaintiffs cannot prevail on the issue of causation. The burden of proof therefore does not shift to Plaintiffs to demonstrate a triable issue of fact in this respect.

Accordingly, as Defendant has failed to demonstrate that Plaintiffs do not prevail on this cause of action for the reasons stated above, Defendant is not entitled to summary adjudication of the first cause of action for negligence. Defendant’s motion for summary adjudication of the first cause of action is therefore DENIED.

Fourth Cause of Action (False Imprisonment)

Defendant moves for summary adjudication of the fourth cause of action for false imprisonment.

To prevail on a claim of false imprisonment, a plaintiff must establish the (1) nonconsensual (2) intentional confinement of a person (3) without lawful privilege (4) for an appreciable length of time, however short. (Scofield v. Critical Air Med., Inc. (1996) 45 Cal.App.4th 990, 1001.)

Defendant contends that, even assuming that liability for her husband’s conduct can be imputed to her as either a fellow property owner or a co-conspirator, Plaintiffs cannot prevail on this claim because Defendants did not act to confine Plaintiffs. As Defendant states, it is undisputed that Mr. Lacey explicitly and repeatedly demanded that Plaintiffs leave Defendants’ porch at gunpoint. (SSUMF No. 49.) Defendant argues that, as shown by Mr. Lacey’s statement, Defendants neither intended to nor did confine or restrain Plaintiffs, but rather sought to induce them to leave—or, put differently, to exclude them from Defendants’ property. This evidence is more than sufficient to meet Defendant’s burden to demonstrate that Plaintiffs cannot prevail on this cause of action. The burden therefore shifts to Plaintiffs to establish a triable issue of fact on the issue of intent.

In opposition, Plaintiffs contend that they were nonetheless confined by Mr. Lacey’s conduct. Plaintiffs argue that, despite Mr. Lacey telling them to leave the property or else he would shoot them, Plaintiffs subjectively felt confined because they feared for their safety and were concerned that, if they moved, they would be shot anyway. (See, e.g., Statement of Additional Facts Nos. 16, 17, 19.) Although Plaintiffs may have subjectively believed that to be so, their testimony to that effect does not go to the issue of whether Mr. Lacey intended to restrain them, such that liability could be imputed to Mrs. Lacey as a fellow property owner or co-conspirator. As this is the only evidence offered by Plaintiffs in response, the Court finds that Plaintiffs have not carried their burden to demonstrate a triable issue of fact on this cause of action.

As Plaintiffs have failed to demonstrate a triable issue of fact on this cause of action, Defendant is entitled to summary adjudication on this cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication is GRANTED as to the fourth cause of action.

Conclusion

Accordingly, for the reasons stated above, Defendant’s Motion for Summary Adjudication is DENIED as to the first cause of action for negligence and GRANTED as to the fourth cause of action for false imprisonment.

Motion for Summary Adjudication (David Lacey)

Defendant David Lacey moves for summary adjudication on the fourth cause of action for false imprisonment and on the issue of punitive damages.

Fourth Cause of Action: False Imprisonment

Defendant and Plaintiffs proffer essentially the same arguments in connection with this cause of action as raised against Jacquelyn Lacey addressed above. Accordingly, for the reasons stated above in connection with Jacquelyn Lacey’s Motion for Summary Adjudication, David Lacey is likewise entitled to summary adjudication on this cause of action.

Accordingly, Defendant’s Motion for Summary Adjudication on the fourth cause of action is GRANTED.

Punitive Damages

Defendant moves for summary adjudication on the issue of punitive damages.

Plaintiffs amended the Complaint on January 17, 2023 to substitute in the Estate of David Lacey and to excise the request for exemplary damages following Mr. Lacey’s death. (See 4AC.) This issue is therefore moot.

Conclusion

Accordingly, Defendant’s Motion for Summary Adjudication is GRANTED as to the fourth cause of action.

Motion to Quash Third-Party Deposition Subpoena for Records

Plaintiff Melina Abdullah moves to quash Defendant Estate of David Lacey’s subpoena for third-party documents propounded to California State University, Los Angeles.

Legal Standard

Code of Civil Procedure section 1987.1 governs subpoenas as follows:

If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

(Code Civ. Proc. § 1987.1(a).)

There is no meet and confer requirement set forth in Code of Civil Procedure section 1987.1. However, there is a separate statement requirement:

(a) Separate statement required

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

. . .

(5) To compel or to quash the production of documents or tangible things at a deposition . . . .

(Cal. Rule of Court 3.1345(a)(5) (bold emphasis added.) This separate statement must set forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled and meet the other requirements of Rule of Court 3.1345(c) and (d).

Code of Civil Procedure section 2025.420, which governs requests for protective orders, provides, in relevant part:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

* * *

(10) That the scope of the examination be limited to certain matters.

(Code Civ. Proc. § 2025.420(a); (b)(10).) There is a meet and confer requirement for a motion for a protective order.

Meet and Confer

Before filing a motion for a protective order, Defendant is required to file a declaration stating its efforts to meet and confer with the opposing party to resolve this dispute, showing a “reasonable and good faith attempt” to resolve informally the issues presented by the motion before filing the motion. (Code Civ. Proc. § 2016.040.)

Plaintiff filed a declaration stating that Plaintiff reached out to Defendants’ counsel by email to meet and confer concerning the subpoena, but received no response. (Declaration of Carl. E. Douglas ISO Mot. ¶ 4, Exh. B.) Plaintiff has therefore complied with the statutory meet and confer requirement.

Procedural Defects

Defendants object to the motion as procedurally defective on two separate grounds.

First, Defendants challenge the motion as untimely. A motion to quash a subpoena duces tecum must be filed and served a minimum of five days before the date of production of documents. (See Code Civ. Proc. §§ 1985.3(g); 1985.6(f)(2).) However, the Court has discretion whether or not to consider a motion to quash a subpoena duces tecum, even if the motion is late. (See In re. R.R. (2010) 187 Cal.App.4th 1264, 1276-77 [finding that trial court did not abuse its discretion by refusing to consider untimely motion to quash].) Here, the subpoena demanded production of the requested documents by November 14, 2022. (Plaintiff’s Exh. A.) This motion was therefore due on November 9, 2022. This motion was not filed until November 14, 2022. The motion is therefore untimely. However, Defendant shows no prejudice resulting from the late filing of this motion.

Second, Defendants object to the motion as not compliant with the Rules of Court in that it does not include a separate statement. Plaintiffs offer no justification for this defect. However, as the subpoena contains only a single requested set of documents, the Court finds this defect to be harmless error, as the body of the motion provides the explanation for why production should not be compelled.

Thus, although the motion to quash is procedurally defective in several respects, the Court concludes that these defects are not prejudicial to Defendant. The Court will therefore address the motion on its merits.

Analysis

Plaintiff Abdullah moves to quash a deposition subpoena for documents served on California State University, Los Angeles.

The subpoena demands, in its entirety:

All records, written and electronic, relating to Professor Melina Abdullah’s teaching curriculum for any Pan-African Studies courses taught at California State University Los Angeles from January 1, 2015 to Present, including but not limited to syllabi, teaching materials, presentations, written publications, and course instructions. The records requested are specific to topics relating to protesting and provoking change through various actions and behaviors.

(Plaintiff’s Exh. A. Attachment 3.) Plaintiff contends that this subpoena is an invasion of Plaintiff’s privacy under Article 1 section 1 of the California Constitution.

In ruling on a privacy objection in the context of discovery, the party asserting a privacy right must establish a legally protected privacy interest. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) The party asserting a privacy right must also establish an objectively reasonable expectation of privacy in the given circumstances. (Id.) Further, the party asserting a privacy right must establish a threatened intrusion that is serious. (Id.) The Court need not proceed to the fourth step of balancing competing interests if all three of the above are not satisfied. (Id. at 555.)

If the Court reaches the fourth step, the Court must balance these competing considerations: The party seeking information may raise whatever legitimate and important countervailing interests disclosure may serve. (Id. at 552.) The party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. (Id.) Courts may not require the party seeking discovery to demonstrate a “compelling need” simply because discovery of any facially private information is sought. (Id. at 556-557.) When a privacy interest is asserted, the party seeking production must show that the information sought is directly relevant to a cause of action or a defense. (Harris v. Superior Court (Smets) (1992) 3 Cal.App.4th 661, 665, citing Britt v. Superior Court (1978) 20 Cal.3d 844, 859-62.)

Although Plaintiff contends that the records sought are constitutionally protected private records, Plaintiff cites no authority showing that the teaching materials which are named in the subpoena are the kind of documents in which Plaintiff might have a legally protected privacy interest, or a reasonable expectation of privacy beyond a citation to Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516 at 526, standing generally for the proposition that there is a right to privacy concerning employee records. Even if the Court takes this to be sufficient, Plaintiff offers no basis to conclude that the threatened intrusion is serious. Thus, Plaintiff has not carried her burden to justify her privacy objection.

Conclusion

Accordingly, Plaintiff’s Motion to Quash Deposition Subpoena is DENIED.

CONCLUSION:

Accordingly, Defendant Jacquelyn Lacey’s Motion for Summary Judgment is DENIED.

Defendant Jacquelyn Lacey’s Motion in the Alternative for Summary Adjudication is GRANTED as to the fourth cause of action and otherwise DENIED.

Defendant David Lacey’s Motion for Summary Adjudication is GRANTED as to the fourth cause of action and otherwise DENIED AS MOOT.

Plaintiff Melina Abdullah’s Motion to Quash is DENIED.

Moving parties to give notice.

IT IS SO ORDERED.

Dated: February 7, 2023. ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.