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Filing # 109188104 E-Filed 06/22/2020 11:16:53 AMIN THE CIRCUIT COURT OF THENINTH JUDICIAL CIRCUIT IN ANDFOR OSCEOLA COUNTY, FLORIDAANN MARIE MEINERT,Plaintiff(s),v. CASE NO: 2015 CA 2991 ANWAWA, INC. D/B/A WAWA, KELLY,COLLINS & GENTRY, INC., STIERENASSOCIATES, INC., RUTH STIERENAND CHARLES F. STIEREN, JR. ANDMULLIGAN CONSTRUCTORS, INC.,Defendant(s),/DEFENDANT WAWA, INC., D/B/A WAWA’S RESPONSE TOP TIFF’S MOTION FOR RECONSIDERATION /MOTION TO VACATE AND/OR SET ASIDE JUDGMENTCOMES NOW, the Defendant, Wawa, Inc., d/b/a Wawa, by and through its undersignedcounsel, and for its response to Plaintiff's Motion for Reconsideration / Motion to Vacate and/orSet Aside Judgment states as follows:Plaintiff's Motion should be denied, pursuant to controlling law in Florida. It is not anabuse of a trial court's discretion to deny a second motion for clarification or rehearing regardinga party's motion for summary judgment, when the non-moving party files a motion for rehearingwith no legal grounds for rehearing or to vacate, other than disagreeing with the court’s order andruling:1. The Defendant WAWA has filed not one but three Answers in this civil action;Answer to Plaintiffs Complaint, filed January 18, 2016, Answer to Plaintiff's Amendedcomplaint, filed March 9, 2018, and Answer to Plaintiff's Second Amended Complaint, filed onFebruary 28, 2019, raising multiple affirmative defenses in each responsive pleading. See ExhibitA.2. The Answers to Plaintiff's various Complaints (Exhibit A), in addition to theextensive amount of pleadings and discovery that has taken place in the above-styled civil action,and, further specifically, the Answers to Interrogatories (See Defendant Wawa’s collectiveAnswers to Interrogatories, attached hereto as Exhibit B), each repeatedly reflect, on the record,that Defendant Wawa denies each and every allegation of Plaintiff's Complaints.Defendant Wawa’s affirmative defenses to those Complaints state:10.11.18.AFFIRMATIVE DEFENSESThe Complaint(s) [original, First Amended and Second]fail to state a cause of action as it does not specificallystate ultimate facts as to the alleged dangerous conditionor knowledge thereof on the part of the Defendant.The Defendant had insufficient notice regarding theproblems complained of by Plaintiff. Any and allconditions complained of by Plaintiff existed for such ashort period of time that there was no notice to theDefendant so that corrective action could be taken. TheDefendant further avails itself of all defenses/burdensrequired of Plaintiff pursuant to Section 768.0755,Florida Statutes (July 1, 2010);Defendant’s mode of operation/maintenance wasreasonable and adequate at its premises;At the time and place complained of, person or personsnot operating under the control and consent of theDefendant so carelessly and negligently conductedthemselves so as to cause the alleged incident, injuriesand damages, and such negligence was the sole andproximate cause of the incident, thus barring all claimsfor damages against the Defendant.The Defendant reserves the right to assert all otheraffirmative defenses that become known to it through thecourse of discovery in this case.3. The Court has considered all of the record evidence and sworn testimony in notone, but two, Motions and Evidentiary Hearings on Motions for Summary Judgment, withextensive argument presented and pleadings filed by all parties. (See Defendant Wawa, Inc., d/b/aWawa’s Motion for Final Summary Judgment, filed May 10, 2019, and attached hereto as ExhibitCc)4, The Court has considered all of the evidence in the record, including the manyfilings of detailed sworn deposition testimony, pleadings, and discovery exhibits, and has held, asa matter of law, that Final Summary Judgment is proper for Defendant, Wawa, as there are nogenuine issues of material fact.5. The Plaintiff raises new issues for the first time in Plaintiff's Motion forReconsideration / Motion to Vacate and/or Set Aside Judgment that are not legally appropriate,and issues which have already been considered. by this Court, and responded to by DefendantWawa, namely in the “Affirmative Defenses” paragraphs of Wawa’s multiple Answers, which arereflected in the court record and attached hereto as composite Exhibit A. Further, see allDefendant’s respective answers to Plaintiff's various Complaints, attached collectively hereto asExhibit D.6. The Plaintiff's Motion for Reconsideration / Motion to Vacate and/or Set AsideJudgment should be denied.STATEMENT OF UNDISPUTED FACTS1. This matter arises from a slip and fall that occurred on January 15, 2015, at theconvenience store owned by the Defendant, Wawa, Inc., d/b/a Wawa, ("Wawa").2. Specifically, Plaintiff, ANN MARIE MEINERT ("Plaintiff’), alleges "she trippedand/or slipped on a transitory foreign substance or surface of [Wawa]'s parking lot and fell." (SeePlaintiff's Second Amended Complaint, { 5(b), Filing No. 79528148, E-Filed October 18, 2018.)3. As this court has properly ruled and ordered, this case presents no legal issue ofgenuine dispute material facts. The rain water which caused Ms. Meinert to slip and fall was notan unreasonably dangerous condition which Defendants should have or could have removed orcleaned up. The rain water was an open and obvious condition, which was just as apparent to theplaintiff as it was to the Defendant. The rain water did not present an unreasonable hazard to theplaintiff or other invitees shopping at Defendant’s premises. Thus, Defendant is entitledto summary judgment.SUBJECT INCIDENT,4, It is undisputed that it was raining before Plaintiff pulled into the parking lot of thegas station, and that she could see water on the ground when she pulled into the parking lot. (SeePages 84:15 to 85:1 of Plaintiff's Deposition Transcript, March 29, 2016, attached to Notice ofFiling Deposition Transcript of Plaintiff Ann Meinert, Filing No. 107313281, E-Filed May 11,2020.)5. Plaintiff pulled into the parking lot around midnight. (See Pages 82:14 - 16 ofPlaintiff's Deposition Transcript, March 29, 2016, attached to Notice of Filing DepositionTranscript of Plaintiff Ann Meinert, Filing No. 107313281, E-Filed May 11, 2020.)6. Plaintiff visited this Wawa gas station at least twenty-five times, and potentiallymore than fifty times, before this date. /d. at pg. 81:13-24. It was raining during some of theseprior visits. /d., at pg. 82:11-13.7. After pulling into the parking lot, Plaintiff pumped gas and walked into Wawa'sstore to retrieve a receipt for her gasoline purchase. /d., pg. 83:20 to 84:10.8. It was not raining at the time she walked into the store. /d. at pg. 84:11-14.9. The ground of the parking lot was wet at the time she walked over it to enter thestore. /d. at pg. 85:17-25.10. Plaintiff had no issue walking over and across the parking lot at this time; she didnot slip walking in. /d. at pg. 87:20-21; pg. 88:19-24.11. After getting a receipt, Plaintiff "basically" walked back the same way to her car inthe parking lot as when she entered the store. /d. at pg. 93:6-13.12. The ground was still wet at this time. /d. at pg. 93:20-21.13. As she was walking out of the store, she slipped and fell "[On one of the parkingspots." /d. at pg. 95:17-19. Plaintiff is completely certain that she fell in a parking spot rather thanthe sidewalk area. /d. at pg. 97:6-13.14. Plaintiff is, however, unsure as to whether she fell in a handicapped parking spotor another parking spot. /d. at pg. 97:12-20.15. Plaintiff is not "positive" as to what caused her to fall. /d. at pg. 98:12-13. Plaintiffbelieves she stepped on a painting parking spot line prior to slipping. /d. at pg. 98:18 to 99:9.I. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARYJUDGMENTThe standard governing summary judgment is set forth in Fla. R. Civ. P. 1.510(c), whichstates:The judgment sought shall be rendered forthwith if the pleadings,depositions, answers to interrogatories, and admissions on file togetherwith the affidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to judgment as a matterof law.The purpose of a motion for summary judgment is to determine whether any genuine issuesof material fact exist for resolution by the trier of fact. CS¥ Transp., Inc. v. Pasco County, 660 So.2d 757, 758 (Fla. 2nd DCA 1995). Thus, summary judgment is appropriate where there areundisputed facts at issue thereby rendering the controversy to purely one of law. See Yost v. MiamiTransit Co., 66 So. 2d 214, 215 (Fla. 1953). The moving party "has the burden of proving theabsence of any genuine issue of material fact, and that the movant is entitled to a judgment as amatter of law." Hodge v. Cichon, 78 So. 3d 719, 722 (Fla. Sth DCA 2012) (citations omitted). Ifthe moving party meets this burden, the non-moving party "must come forward withcounterevidence sufficient to reveal a genuine issue... [and] [i]t is not enough for the opposingparty merely to assert that an issue does exist." Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979).Il. PLAINTIFF CANNOT PROVE NOTICE AND THUS NEGLIGENCEUNDER FS 768.0755 BY WAWA WITHOUT AN IMPERMISSIBLESTACKING OF INFERENCESIn the case at bar, notably, Section 768.0755, Florida Statutes places the burden of provingnotice of a dangerous condition on the Plaintiff. See Walker v. Winn-Dixie Stores, Inc., 160 So. 3d909, 912 (Fla. 1st DCA 2014). The determinative fact in a transitory foreign substance case is thelength of time the condition existed before the accident occurred. See Dominguez y. Publix SuperMarkets, Inc., 187 So. 3d 892, 894 (Fla. 3d DCA 2016) (holding that defendant was not negligentas a matter of law as there was an insufficient amount of time between spill and fall to holddefendant liable); see also, Miller v. Big C Trading, Inc., 641 So.2d 911, 912 (Fla. 3d DCA 1994)(finding no evidence regarding the amount of time a grape that plaintiff slipped on was on thefloor).In the instant case, Plaintiff has not established a sufficient case under Section 768.0755Florida Statute, since no evidence has been presented that WAWA had actual notice of theallegedly dangerous condition, much less constructive knowledge. In light of the facts of this case,Defendant is entitled to summary judgment in its favor because Plaintiff has not presentedsufficient evidence that the Defendant actually or constructively knew of any dangerous condition,and/or that the Defendant failed to protect against that dangerous condition. As the FloridaSupreme Court has said, “[t]here are many types of accidents which commonly occur without thefault of anyone. The fact that a tire blows out, or that a man falls down stairs is not, in the absenceof anything more, enough to permit the conclusion that there was negligence in inspecting the tire,or in the construction of the stairs, because it is common human experience that such events alltoo frequently occur without such negligence.” In Florida, this rule prohibiting "title improperstacking of inferences may be an appropriate basis for the entry of summary judgment." Estate o;Githens v. Bon Secours - Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2dDCA 2006); see Cohen v. Arvin, 878 So. 2d 403, 405 (Fla. 4th DCA 2004) (explaining the rule isapplicable in the summary judgment context).It is undeniable that in order to defeat a motion for summary judgment, Plaintiff must haveadduced evidence to show how the condition, if any, was created, who caused it, how long itexisted, or that the store was responsible. The case at bar is extremely similar to the facts andholding in Walker y. Winn-Dixie Stores, Inc., 160 So. 3d 909, 912 (Fla. 1st DCA 2014.) In Walker,a patron brought negligence action against grocery store following a slip and fall. The CircuitCourt, Clay County, Judge Don H. Lester granted summary judgment in favor of store and thepatron appealed. The District Court of Appeal, held that store did not have constructive notice ofwater on the store floor that allegedly caused patron's fall, precluding her recovery. Based on theevidence, Winn-Dixie filed a motion for final summary judgment, arguing that the recently-enacted § 768.0755, Florida Statutes, requires “proof of actual or constructive knowledge of thepresence of a transitory foreign substance,” which can be proven by “showing that the dangerouscondition existed for such a length of time that in the exercise of ordinary care, the businessestablishment should have known of the condition ....” Applying this statute to the evidence,Winn-Dixie argued that, viewing all facts in Appellant's favor, there was no evidence that Winn—Dixie had actual or constructive knowledge of water on the floor before Appellant's fall and that,although Appellant “presented conflicting testimony concerning the potential sources of the‘unnoticeable’ drops of water on the floor where she fell, [this] testimony is based on speculationand assumptions.” At the summary judgment hearing, Appellant conceded that she was proceedingunder a constructive, not actual, knowledge theory of negligence, and relied on her view ofWilliams’ testimony that Winn—Dixie had initiated, but did not finish, its rainy-day procedure.Appellant argued that Winn—Dixie should have either installed the warning cones or rainy-weathermats in the affected area. In granting Winn—Dixie's motion and entering final summary judgment,the court found:This brief time period was insufficient to satisfy the statute's requirementthat the alleged dangerous condition must exist “for such a length of timethat, in the exercise of ordinary care, the business establishment should haveknown of the condition” before constructive knowledge of the condition canbe imputed. Based on the foregoing, and viewing the evidence in the lightmost favorable to Appellant, we hold that Appellant failed to overcome thestatutory burden of proving that Winn-Dixie had constructive knowledgeof any alleged “transitory foreign substance” requiring remedial action, andaffirm the trial court's entry of final summary judgment.In 2010, the Florida legislature enacted § 768.0755, Florida Statutes, the clear intent ofwhich is to re-position the burden of proof in constructive knowledge negligence actions fully ontoa plaintiff. Clearly, the Walker court held that the burden to demonstrate constructive knowledgeof the alleged dangerous condition herein lies with the plaintiff. In the Walker case, the court heldthat there was competent, substantial, detailed testimony confirming that it began to rain or mistless than one minute before the plaintiff's fall. The plaintiff's only evidence to the contrary is thespeculative, vague testimony of the store director that it might have been raining before theplaintiff's fall, but it was equally possible that it had not yet rained. There is no other evidence inthe record to support a contention that Winn-Dixie had constructive knowledge of the “un-noticeable” drops of water on the floor. The court found that the store manager's testimony wasinsufficient to meet Appellant's burden under section 768.0755, and that it “believe[d] that if thatstatute is to have any meaning, and if the clear legislative intent is to be given any effect, the recordfacts in this case must defeat the plaintiff's claim.” The court denied Appellant's motion forrehearing. The Walker case held that: “This brief time period was insufficient to satisfy the statute'srequirement that the alleged dangerous condition must exist “for such a length of time that, in theexercise of ordinary care, the business establishment should have known of the condition” beforeconstructive knowledge of the condition can be imputed. Support for this conclusion is found inGaidymowicz vy. Winn-Dixie Stores, Inc., 371 So.2d 212, 214 (Fla. 3d DCA 1979), in which theevidence showed that the store manager had been down the aisle only five minutes before thecustomer's fall, finding nothing. The court held that this was not a sufficient time to correct thedangerous condition. Appellant's position is apparently that Winn—Dixie did not act fast enough tocomplete its rainy-day precautions before she fell. This ignores the statute's provision that, unlessa “condition occur[s] with regularity and was therefore foreseeable,” the duty to act is activated byactual or constructive notice of the presence of a transitory foreign substance, not simply thepossibility that it might become present. Here, not only did Appellant fail to present any evidencethat wet conditions occurred with regularity in the area where she fell, she also failed to presentany evidence that the alleged wet condition lasted for more than one to four minutes. Also,although “[e]vidence that no inspection had been made during a particular period of time prior toan accident may warrant an inference that the dangerous condition existed long enough so that theexercise of reasonable care would have resulted in discovery.” Here, the Appellant testified thatthe “misting” started only one minute before the incident; however, there was no evidence ofrecurring water in the area in question or of prior incidents in that area. At most, the alleged“unnoticeable” water was present for no more than four minutes. Nor was there any evidence ofactive negligence by Winn-Dixie employees. Walker v. Winn-Dixie Stores, Inc., 160 So. 3d 909,912 (Fla. Ist DCA 2014.)Additionally, in the case at bar, the Plaintiff speculates that she may have slipped on apainted parking lot line because she saw a painted line in the area where she fell. (See pg. 98:12-13; pg. 98:18 to 99:15 of Plaintiff's Deposition Transcript, March 29, 2016, attached to Notice ofFiling Deposition Transcript of Plaintiff Ann Meinert, Filing No. 107313281, E-Filed May 11,2020.) Although this inference may be reasonable, it cannot be made to the exclusion of all otherreasonable inferences. It is equally reasonable to infer that she did not slip on a painted line, butrather on the non-painted pavement in a parking space, and then fell into an area where there werepainted lines (i.e. between parking spots). (See Pages pg. 97:6 — 20 of Plaintiff's DepositionTranscript, March 29, 2016, attached to Notice of Filing Deposition Transcript of Plaintiff AnnMeinert, Filing No. 107313281, E-Filed May 11, 2020.) The distinction of a painted line cannotbe overlooked because it is an additional texture to the surface of the parking lot.Thus, for Plaintiff to infer she slipped on rainwater at or near the painted line because ofthe location of a painted line in the area of her fall, she would have to also infer the entity thatperformed the painting of the lines did so non-negligently.In short, Plaintiff's allegations set forth against WAWA are all based on an impermissiblestacking of inferences. Plaintiff is unaware of the route she took from inside the store to her car atthe time of her slip and fall, what caused her slip and fall, and what texture she traversed at thetime of the alleged slip and fall. For a jury to conclude WAWA is liable to the Plaintiff, it wouldrequire an impermissible stacking of inferences, which gives rise to a proper finding of SummaryJudgment under Florida law.Il. THE DUTIES DEFENDANTS OWED TO THE INVITEE, ANNMEINERT.It is clear that Ms. Meinert was an invitee on the premises owned and possessed by WAWAon the day of the accident. “A landowner owes two duties to a business invitee: (1) he must usereasonable care to maintain the premises in a reasonably safe condition; and (2) he must give theinvitee warning of concealed perils which are known to him, and unknown to the invitee and couldnot be discovered by the invitee even if he exercised due care.” Williams v. Madden, 588 So. 2d41, 43 (Fla. Ist DCA 1991).Because the case involves an alleged transitory foreign substance, and the incident occurredsubsequent to the enactment of § 768.0755 Fla. Stat, (effective July 1, 2010), the subject statuteapplies to any civil action for negligence involving loss, injury, or damage to a business invitee asa result of a transitory foreign substance or object. The statute requires Plaintiff to prove thatDefendant WAWA had actual or constructive notice of the alleged transitory foreign substanceand should have taken action to remedy it.The mere occurrence of an accident does not give rise to the inference of negligence; theplaintiff must show that the condition complained of was an unreasonable hazard. Cassel v. Price,396 So. 2d 258, 264 (Fla. 1st DCA 1981). The law only requires a landowner to exercise ordinarycare and “[t]here is no duty on the part of a landowner to exercise such control over the businessinvitee or the premises so as to be an insurer of his safety.” See Emmons v Baptist Hospital, 478So. 2d 440, 442 (Fla. 1st DCA 1985) (citing Warner v. Florida Jai Alai, Inc., 221 So. 24 777 (Fla.4th DCA 1969); cert, dismissed, 235 So. 2d 294 (Fla. 1970). “The law provides that some injury-causing conditions are simply so open and obvious that they can be held as a matter of law not togive rise to liability as dangerous conditions.” Zavlor v. Universal City Property Management, 779So. 2d 621, 622 (Fla. 5th DCA 2001). See also, Gorin v. City of St Augustine, 595 So. 2d 1062(Fla. 5th DCA 1992); Aventura Mall Venture v. Olson, 561 So. 2d 319 (Fla. 3d DCA 1990); CircleK Convenience Stores. Inc. v. Ferguson, 556 So. 2d 1207 (Fla. 5th DCA 1990).It is also well-settled law that an invitee has the duty to use ordinary care for her own safetyand that a defendant is not liable when an individual has failed to exercise due care for her ownsafety. Hoeg v. Moeller, 82 So. 2d 138 (Fla. 1955). The duty to warn of a dangerous condition alsodoes not arise where the danger is open and obvious or the invitee has knowledge of the dangerwhich is equal to or superior to the landowner's knowledge. Pittman v. Volusia County, 380 So.2d 1192 (Fla. Sth DCA 1980).Here, Defendant’s duty to Ms. Meinert was to maintain its exterior common areawalkways, sidewalks, and stairs in a reasonably safe condition and to warn her of any latent orconcealed perils. Plaintiff claims that Defendant breached its duty by creating the condition eitherthrough the acts of its employees or in its negligent maintenance of the premises, and thatDefendant should have corrected the condition or warned Plaintiff of its existence.IV. DEFENDANT DID NOT BREACH ITS DUTIES TO MS. MEINERT.A. Defendant used reasonable care to maintain the parking lot atissue in a reasonably safe condition. The rain water on theground was a natural condition, which was not unreasonablydangerous. Defendant did not create and could not prevent orcorrect the condition.In order to prevail on her claim that Defendant breached its duty to maintain its premisesin a reasonably safe condition, Plaintiff must show that the rain water was a dangerous condition.The Florida Supreme Court has identified a “transitory foreign substance” as a liquid or solidsubstance, item, or object located where it does not belong. Owens v. Publix Supermarkets, Inc.802 So, 2d 315, 317 (Fla. 2001) (citing Black's Law Dictionary 660 (7th ed. 1999) (A foreignsubstance is “[a] substance found... where it is not supposed to be found”)) (emphasis added).Here, there was water on the ground due to rain, which Plaintiff testified she knew of andappreciated. The water was on an exterior concrete sidewalk and walkway which is open to theelements. Thus, the rain water was in a place where one can anticipate finding it in such weatherconditions.The right to recover in a slip and fail case requires more than showing simply that thesurface upon which the person fell was slick, smooth, or wet. Williams v. Holland, 205 So. 2d 682,683 (Fla. Ist DCA 1968) (citing Bucholtz v. City of Jacksonville, 72 So. 2d 52, 53 Fla 1954).Florida law recognizes that perfection of conduct is humanly impossible, and the law does notexpect an unreasonable amount of care from anyone. Emmons v. Baptist Hosp., 478 So. 2d 440,443 (Fla. 1st DCA 1985). Bucholtz and its progeny are alive and well in Florida.In Bucholtz, the Florida Supreme Court rejected the claim of a woman who slipped and fellon steps where it was alleged that the threads of the step were permitted to be “worn slick andsmooth.” Bucholtz, 72 So. 2d at 53. The Court held that owners of a property which contains areasthat become smooth are not obligated to “destroy the smoothness” of such areas, even though itmight be possible for them to cause areas not to be slick and smooth). /d. The Court described thecase as “a good illustration of the thought that every time someone is injured, someone else shouldpay for the injury,” /d. In Holland, the incident occurred at Jacksonville Beach, Florida, severaldays following the height of a hurricane. Williams v. Holland, 205 So. 2d 682, 683 (Fla. 1st DCA1968). At the time of the accident, it was “misty” and had been raining for the preceding day ortwo during the storm. /d. The scene of the fall was the vestibule-like entrance to a hardware storewhere the plaintiff had gone to make some purchases of supplies needed because of thehurricane. /d. The court held that the plaintiffs proffered enough evidence to reach a jury becausethere was both a presence of a foreign substance at the site of the fall and the accumulation of suchforeign substance. Id. The appellate court agreed with defendant's argument that the right torecover ina slip and fall case requires more than a showing simply that the surface upon which theinjured fell was slick, smooth or wet. /d. Before there can be recovery for a slip and fall injury, theallegations must show some negligence on the part of the defendant. Bucholtz, 72 So.2d at 53.Finally, in a persuasive opinion, our sister state, Georgia, has held that normalaccumulation of water at the entrance of a business during a rainy day is not an unreasonablehazard. Roberts _v. OQuthack Steakhouse of Florida, Inc., 283 Ga. App. 269, 269 (Ct. App.2007) (citing Gibson _v. Consolidated Credit Corp., 110 Ga. App. 170, 177-178 (1964)). Theplaintiff in Roberts pointed to no evidence showing that the water accumulation at the entrance ofthe restaurant was unusual. /d. at 270. The plaintiff rather merely testified that the floor near theentrance was wet, which the court explained is to be expected on a rainy day. /d. The court heldthat the trial court properly granted summary judgment on behalf of the defendant. Jd.The Roberts court further stated, “It is not the duty of persons in control of such buildings to keepa large force of moppers to mop up rain as fast as it falls or blows in, or is carried in by wet feet orclothing or umbrellas.” /d. at 270. See also Walker v. Sears Roebuck & Company, 278 Ga. App.677, 678-81 (2006) (affirming summary judgment for defendant where it had been raining earlierin the day and it was still damp outside when plaintiff entered the store and slipped and fell, butthe plaintiff did not know the amount of water on the floor and acknowledged her superiorknowledge that water can be on the floor on rainy days).Notwithstanding the fact that the rain water was not an unreasonably dangerous condition,Florida courts have routinely found that some conditions are so open and obvious that they do notgive rise to liability as dangerous conditions as a matter of law. Taylor v. Universal City Prop.Mgmt, 779 So.2d 621 (Sth DCA 2001); Circle K Convenience Stores, Inc. v. Ferguson, 556 So. 2d1207, 1208 (Fla. Sth DCA 1990) (“Some conditions are so open and obvious, so common and soordinarily innocuous, that they can be held as a matter of law to not constitute a hidden dangerouscondition.”); Arnoul v. Busch Entertainment Corp., 2008 WL 4525106 (M.D. Fla. 2008) (“If theobviousness of the condition would lead a reasonable person to believe that the danger will beavoided, the condition is not unreasonably dangerous, and the landowner is not liable.”). Whensuch an obvious condition is “open to observation by Plaintiff in the exercise of due care,” it doesnot constitute a hidden dangerous condition under the law. Potash v. Orange County Lake CountryClub, 2005 WL 1073926 (M.D.Fla. 2005). Consequently, summary judgment regarding the dutyto maintain the premises in a reasonably safe condition may be based on the open and obviousnature of the condition.The law allows Defendant WAWA to “presume that invitees will use their senses innavigating their environs” and the fact that Plaintiff was on the WAWA premises when she wasallegedly injured “does not automatically allow a person to shift the fault for accidents caused byhis own negligence.” Arnoul v. Busch Entertainment Corp., 2008 WL 4525106 at 3.Ms. Meinert was clearly aware that it was raining outside and that the ground was wet fromthe rain. Ms. Meinert had a greater opportunity to exercise a reasonable amount of caution whilewalking in the rainthan Defendant had to stop the rain or dry up the rain water. Becausethe rain water was open, obvious, and innocuous, the Court must grant summary judgment in favorof Defendant, WAWA.B. The rain water was not a concealed peril that was known toDefendants. Therefore, it does not create a duty to warn.The Complaint alleges that Defendant failed to correct or warn Ms. Meinert of thecondition which caused her to fall. Ms. Meinert fell as a result of rain water, which had been fallingfor a better part of the day; and that rain water was present on the ground of the Wawa premises,which was exposed to the elements.Ms. Meinert was aware that it was raining and was aware that the ground was wet. “Anowner of land ... is entitled to assume an invitee will perceive [a] glaringly open and obviousobstacle.” City of Melbourne v. Dunn, 841 So.2d 504, 505 (Fla. Sth DCA 2003). Consequently,there is no duty to warn an invitee of an open and obvious obstacle. Maston v. Tip Top GroceryCo., Inc., 9 So. 2d 366, 368 (Fla. 1942); see also, Circle K Convenience Stores, Inc. v. Ferguson,556 So. 2d 1207 (Fla. Sth DCA 1990).As previously noted, the right to recover in a slip and fall case requires more than showingsimply that the surface upon which the person fell was slick, smooth, or wet. Holland, supraciting Bucholtz, supra. Florida law recognizes that perfection of conduct is humanly impossible,and the amount of care which Plaintiff suggests is required of Defendant is beyond the reasonablecare standard imposed by law, and would make Defendant an insurer of Plaintiff's safety.See Emmons, supra and Warner, supra. As such, the Court must grant summary judgment in favorof Defendant on the Plaintiff's claim that Defendant failed to warn Plaintiff of a hazardous ordangerous condition.C. Plaintiff has failed to establish that Defendants breached any dutythat was a legal or proximate cause of the subject accident.In addition to failing to establish elements one and two of her negligence claim againstDefendant, Plaintiff has failed to prove the third element in order to prove a negligence cause ofaction against Defendant: causation. The starting point for all negligence cases is there is nopresumption or inference of negligence from the existence of an accident or an injuryalone. See, e.g., Abrams _v. Nolan Brown Cadillac Co., 228 So.2d 131, 132 (Fla. 3d DCA1969)(“[T]he mere proving an accident occurred will not establish a prima facie case ofnegligence”); Copper Hotel Servs., Inc., v. MacFarland, 662 So.2d 710, 712 (Fla, 2d DCA1995)(noting that negligence “may not be inferred from the mere happening of an accident alone”).To establish proximate cause in Florida, the court must find both a cause in fact (that the injurywould not have occurred “but for” the negligent act) and that the injury was a reasonablyforeseeable result of the act. See Clay Electric, 876 So.2d at 1185. As explained by the FloridaSupreme Court:On the issue of fact of causation, as on other issues essential to his cause ofaction for negligence, the plaintiff, in general, has the burden of proof. Hemust introduce evidence which affords a reasonable basis for the conclusionthat it is more likely than not the conduct of the defendant was a substantialfactor in bringing about the result. A mere possibility of such causation isnot enough; and when the matter remains one of pure speculation orconjecture, or the probabilities are at best evenly balanced, it becomes theduty of the court to direct a verdict for the defendant. Gooding v. Univ.Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla. 1984)(quoting Prosser, Lawof Torts § 41 (4th ed. 1971)).It is clear based on the undisputed evidence that Plaintiff has failed to establish Defendantbreached any duty owed to her. The allegation that Plaintiff may have fallen in the parking lotbecause it “appeared slick” may not serve as circ*mstantial evidence supporting the existence ofa dangerous or hazardous condition, known to the Defendant (either actually or constructively).That is an impermissible stacking of inferences, which, if allowed, would mean that every fall inevery stairwell would necessarily be the result of somebody else's negligence. This stacking ofinferences is impermissible because it does not exclude the reasonable possibilities that [1]Plaintiff slipped on her own, and, [2] that Plaintiff simply lost her footing and fell because suchthings can and do happen. Summary judgment is appropriate in a case if there is “no evidence fromwhich the jury could reasonably infer constructive knowledge of the dangerous condition on thepremises.” Houk v. Monsanto Co., 609 So.2d 757 (Fla. lst DCA 1992), quoting Haynes v. Lloyd,533 So, 2d 944, 947 (Fla. Sth DCA 1988).VI. BROOM FINISH TESTIMONY WAS UNREFUTEDWhile the Plaintiff asserts that this Honorable Court’s ruling “appears to be improper,contrary to prevailing case law, without legal basis or foundation and so fundamentally flawed asto create an inference of bias, prejudice, or impropriety,” the Order Granting Defendant Wawa,Inc., d/b/a Wawa’s Motion for Final Summary Judgment and Order Granting Defendant MulliganConstructors, Inc.’s Motion for Summary Judgment was entered following pleadings filed onbehalf of all parties and following a hearing wherein evidence and testimony was presented by allparties, including Plaintiff's counsel. Each party was given ample opportunity to submit evidenceon their behalf and was given the opportunity to present their respective arguments before thisHonorable Court. In the instant case, this Court has considered all of the evidence and weighedall of the evidence and correctly concluded that the there was no evidence presented that any failureof compliance with the site plan for the Wawa construction project caused or contributed toPlaintiffs accident.Plaintiff presented no evidence that either method of “brushing the parking lot” that wasdiscussed was insufficient, and would have created a dangerous condition which was not incompliance with industry standards. Plaintiff presented no evidence whatsoever that the conditionof the parking lot caused or contributed to Plaintiff's fall. Plaintiff's expert speculates that theparking lot was not properly constructed but has presented no evidence of what type of finish,other than the industry standard “broom finish,” should have been applied, scientific testing, data,or other types of test results which supports this speculative theory. Simply stated, Plaintiff cannotprove that the parking lot was not properly constructed.However, counsel for the Defendants have presented evidence that the parking lot wasconstructed according to the site plans. In fact, once the construction was completed, theconstruction site was inspected by not by the Wawa project superintendent and the generalcontractor for the site, but also by the Osceola County Department of Community Development.A Certificate of Completion was issued by Osceola County Department of CommunityDevelopment. Further, correspondence was sent to the owner of the construction site, OBT andDonegan, LLC (not Wawa, as contended by Plaintiff), by the South Florida Water ManagementDistrict, with the subject line titled “Acceptance of Construction Completion Certification &Conversion to Operation Phase.” These documents are factual evidence that the parking lot wasconstructed properly and that no hazardous conditions to invitees existed. Further, depositiontestimony was presented as evidence which confirmed the inspection of the parking lot, andconstruction generally.Q. ...-Have you at any time went on property to see and look whether theproject work was satisfactory?Yes.And in your opinion it was?Yes.Did you check out the paint?I check out everything.POPOPSee Page 38-39 of Jason Mulligan’s Deposition Transcript, February 27, 2020, attached toNotice of Filing Deposition Transcript of Jason Mulligan, Filing No. 107312700, E-Filed May 11,2020.As far as a broom finish, it's your testimony that that was industry standardfor this type of concrete; correct?. Yes, sir.Q. And why is that?QA.Broom finish gives you probably the best coefficient of friction.: And to behonest with you, it's for situations just like this, people slipping and falling.-So I don't recall any other finish I've put on exterior concrete that was not abroom finish.And to the best of your knowledge, no one told you about any type ofconstruction defects in or around the parking spaces to the best of yourknowledge?Correct.Pat Scarantino’s deposition testimony was the same as to the industry standard of a “broomfinish” (See Page 69 of Pat Scarantino’s Deposition Transcript, May 4, 2020, attached to Notice ofFiling Deposition Transcript of Pasquale Scarantino, Filing No. 107312700, E-Filed May 11,2020.)A.OPOr OFAnd industry standards -- and you've had 40 years of experience --require and are accepted for a broom finish; correct?Correct.You're not familiar with anything that caused for -- calls for a burlapfinish?No, sir.Have you ever heard of a burlap finish?No, sir.And again, this wasn't a Florida Department of Transportationproject; was it?No, sir.Moreover, the Court correctly determined that rain on the ground in an open outsidelocation is not a transitory foreign substance under current Florida law. The Court furtherelaborated its ruling in that if there was a transitory foreign substance (and not rainwater) on theground of the Wawa parking lot at the time of Plaintiffs fall, then Defendant had no suchknowledge of the existence of the foreign substance, as no other accidents similar to that ofPlaintiff's have occurred in this specific area of the parking lot. Plaintiff has offered no evidenceor testimony that the parking lot presented a “dangerous condition” for any business invitees andpresented no evidence that Defendant Wawa was aware of a potentially dangerous condition that20could cause an injury to its invitees. However, Plaintiff testified in her own deposition that she, infact, had notice of the wet condition of the parking lot:Q. Now, you knew the ground was wet as you were walking in, correct?A. Yes, sir.(See Pages 88:25 to 89:2 of Plaintiffs Deposition Transcript, March 29, 2016, attached to Noticeof Filing Deposition Transcript of Plaintiff Ann Meinert, Filing No. 107313281, E-Filed May 11,2020.)The Court further correctly interpreted Panzera v. O’Neal, 198 So.3d 663, 665 (DCA2015), as cited in its Order Granting Defendant Wawa, Inc., d/b/a Wawa’s Motion for FinalSummary Judgment and Order Granting Defendant Mulligan Constructors, Inc.’s Motion forSummary Judgment, wherein it was determined that in order for a litigant to prevail, admissibleevidence that creates a genuine issue of material fact must be presented. A non-moving party "maynot merely assert that an issue does exist, but... must go forward with evidence sufficient togenerate an issue on a material fact." See Byrd v. Leach, 226 So.2d 866, 868 (Fla. 4th DCA 1969).Plaintiff has failed to present any sufficient evidence which creates or supports an issue on thematerial facts of this case and leads to the causation of her alleged fall, and instead, only offeredspeculative theory of a “defectively constructed parking lot” that is contradicted by thedocumentary evidence presented by the Defendants.Finally, in further support of Plaintiff's Motion for Reconsideration / Motion to Vacateand/or Set Aside Judgment, as set forth herein, Defendant states that it is not the intent of theundersigned to reiterate each and every fact that lends support and evidence to the arguments thatsummary judgment should be granted to the Defendants; as such, Defendant Wawa hereby assertsthat this Court's Orders entered on May 22, 2020, and on June 9, 2020, are correct and shouldstand.21MEMORANDUM OF LAWI. LEGAL AUTHORITYIt is not an abuse of discretion for this Honorable Court to deny Plaintiff’s Motion forReconsideration / Motion to Vacate and/or Set Aside Judgment. As the Florida Supreme Court hasmade clear that the purpose of a petition for rehearing is merely to bring to the attention of the trialcourt... some point which it overlooked or failed to consider when it rendered its order in the firstinstance. It is not intended as a procedure for rearguing the whole case merely because thelosing party disagrees with the judgment or the order. Diamond Cab Co. of Miami v. King,146 So. 2d 889, 891 (Fla. 1962). Further, abuse of discretion occurs "when the judicial action isarbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused onlywhere no reasonable man would take the view adopted by the trial court." Canakaris v. Canakaris,382 So. 2d 1197, 1203 (Fla. 1980). ("Discretionary rulings of trial judges may not be disturbed onappeal unless the appellant shows that no reasonable judge would have decided the issues as thetrial judge did." James A. Cummings Inc. v. Larson, 588 So. 2d 1066 (Fla. 4th DCA 1991)) (findingno abuse of discretion in lower court's refusal to accept an expert's opinion presented for the firsttime in a motion for rehearing where party had more than six weeks to prepare for summaryjudgment hearing)."A trial court's decision on a motion for rehearing is reviewed for abuse of discretion, as isa trial court's refusal to consider late affidavits filed with a motion for rehearing." Muth v. Al Ulns.Co., 982 So. 2d 749, 752 (Fla. 4th DCA 2008); see also Les Chateaux at International GardensCondominium Ass'n., Inc., 219 So, 3d 106 (Fla. 3d DCA 2017) (finding no abuse of discretion indenial of motion for rehearing accompanied by a new affidavit); Wolentarski v. Anchor Property& Casualty Ins. Co., 252 So. 3d 277 (Fla. 3d DCA 2018) (summary judgment was proper where22plaintiff failed to timely submit any evidence in opposition to summary judgment so that there wasno evidence of a material issue of disputed fact when summary judgment was granted); Deshaziorv. Sch, Bd., 217 So. 3d 151 (Fla. 3d DCA 2017) (holding that trial court's decision not to consideran untimely affidavit in opposition to a motion for summary judgment was not an abuse ofdiscretion). Diamond Cab Co. of Miami v. King, 146 So. 2d 889, 891 (Fla. 1962). Further, abuseof discretion occurs "when the judicial action is arbitrary, fanciful, or unreasonable, which isanother way of saying that discretion is abused only where no reasonable man would take the viewadopted by the trial court." Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).("Discretionary rulings of trial judges may not be disturbed on appeal unless the appellant showsthat no reasonable judge would have decided the issues as the trial judge did." James A. CummingsInc. v. Larson, 588 So. 2d 1066 (Fla. 4th DCA 1991)) (finding no abuse of discretion in lowercourt's refusal to accept an expert's opinion presented for the first time in a motion for rehearingwhere party had more than six weeks to prepare for summary judgment hearing)."A trial court's decision on a motion for rehearing is reviewed for abuse of discretion, as isa trial court's refusal to consider late affidavits filed with a motion for rehearing." Muth v. Al Ulns.Co., 982 So. 2d 749, 752 (Fla. 4th DCA 2008); see also Les Chateaux at International GardensCondominium Ass‘n., Inc., 219 So, 3d 106 (Fla. 3d DCA 2017) (finding no abuse of discretion indenial of motion for rehearing accompanied by a new affidavit); Wolentarski v. Anchor Property& Casualty Ins. Co., 252 So. 3d 277 (Fla. 3d DCA 2018) (summary judgment was proper whereplaintiff failed to timely submit any evidence in opposition to summary judgment so that there wasno evidence of a material issue of disputed fact when summary judgment was granted); Deshaziorv. Sch, Bd., 217 So. 3d 151 (Fla. 3d DCA 2017) (holding that trial court's decision not to consider23an untimely affidavit in opposition to a motion for summary judgment was not an abuse ofdiscretion).CONCLUSIONAs set forth more fully below, this Honorable Court can properly deny Plaintiff's Motionfor Reconsideration / Motion to Vacate and/or Set Aside Judgment without abusing its discretion,as: (1) Plaintiff has not provided any evidence that defeats Defendant Wawa, Inc., d/b/a Wawa’sMotion for Final Summary Judgment or creates disputed issues of material fact, in light of therecord evidence, as already ruled upon by this Court.WHEREFORE, Defendant, Wawa, Inc., d/b/a Wawa, respectfully requests that this CourtDENY Plaintiff's Motion for Reconsideration / Motion to Vacate and/or Set Aside Judgment.Defendant Wawa, Inc., d/b/a Wawa, requests any such further relief this Court deems necessaryand just.CERTIFICATE OF SERVICEI HEREBY CERTIFY that a copy of the foregoing has been furnished to Bruce W. Batts,Esquire, Batts Daniels Law, PLLC, 4700 Millenia Blvd., Suite 175, Orlando, FL 32739(bbatts@battsdanielslaw.com, gsweeney@battsdanielslaw.com; mdaniels@battsdanielslaw.com;Melissa D. Crowley, Esquire, Cole, Scott & Kissane, P.A., Tower Place, 1900 Summit TowerBlvd., Suite 400, Orlando, FL 32810 melissa.crowley@esklegal.com;nicholas.spetsas@csklegal.com; marquita.grant@csklegal.com; Vicki Lambert, Esquire, Luks,Santaniello, Petrillo & Jones, 255 S. Orange Avenue, Suite 750, Orlando, FL 32801; luksorl-Pleadings@LS-Law.com; vlambert@insurancedefense.net; tgonzalez@insurancedefense.net byElectronic Mail, this 22"! day of June, 2020.24VERNIS & BOWLING OFCENTRAL FLORIDA, P.A./s/ William G. Hyland, Jr.WILLIAM G. HYLAND, JR., ESQUIREBar Number: 402265whyland@florida-law.com1450 S. Woodland Blvd., 4°" FloorDeLand, Florida 32720Telephone: (386) 734-2505Facsimile: (386) 734-3441Attorney for Defendant Wawa, Inc., d/b/a Wawa25EXHIBIT AFiling # 36682804 E-Filed 01/18/2016 05:04:13 PMIN THE CIRCUIT COURT OF THENINTH JUDICIAL CIRCUIT IN ANDFOR OSCEOLA COUNTY, FLORIDACASE NO, 2015 CA 2991 ANANN MARIE MEINERT,Plaintiff,vs.WAWA, INC. d/b/a WAWA,Defendant./DEFENDANT, WAWA, INC. D/B/A WAWA’S, ANSWER TOPLAINTIFF’S ORIGINAL COMPLAINTCOMES NOW the Defendant, WAWA, INC. d/b/a WAWA, by and through itsundersigned attorneys, and hereby files its answer to Plaintiffs Original Complaint, and wouldstate as follows:1. The Defendant admits that at all times material to the Plaintiffs Complaint, it wasauthorized to do business in the State of Florida.2. The Defendant denies each and every remaining allegation of the PlaintiffsComplaint and demands strict proof thereof.AFFIRMATIVE DEFENSES1. The Complaint fails to state a cause of action as it does not specifically stateultimate facts as to the alleged dangerous condition or knowledge thereof on the part of theDefendant.2. The Plaintiff was guilty of negligence, which negligence was the sole and legalcause of the incident described in the Complaint, thereby barring all claims, or in the alternative,Defendant’s Answer to Plaintiff's ComplaintPage 1 of 5such negligence contributed to the incident and alleged damages, thus requiring anapportionment of Plaintiff's damages according to Plaintiff's degree of fault.3. Plaintiff has received or is entitled to receive payment from collateral sources asidentified by section 768.76, Florida Statutes. To the extent that subrogation rights do not existor have been waived, the Defendant is entitled to a set-off for any collateral sources paid to onbehalf of the Plaintiff and/or as allowed by Section 768.041, Florida Statutes.4, The incident in question and damages alleged were proximately caused by thenegligence of other persons and/or entities not subject to the Defendant’s control. In accordancewith Section 768.81, Florida Statutes, the Defendant is entitled to an apportionment of fault andan apportionment of damages under the modification of the Doctrine of Joint and SeveralLiability.5. Plaintiff failed to mitigate or minimize her damages, if any.6. The Defendant is entitled to a set-off of all sums or money, settlement, judgmentor otherwise received by the Plaintiff from any other party or non-party to this action.7. The cause of any damages to Plaintiff was open and obvious and Plaintiffexpressly assumed the ordinary risk incident to this. The incident and damages complained of bythe Plaintiff in this Complaint was due to the ordinary risk expressly assumed by the Plaintiff.8. Plaintiff, failed to take ordinary and reasonable care in conducting
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JOHN DOE VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT ET AL
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The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing Page 1 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00331695-CU-CR-GDS: Civil Rights Department vs. Carlos Torres 08/20/2024 Hearing on Motion - Other to Compel Defendants' Further Responses to Requests for Production in Department 53or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided.TENTATIVE RULING:Plaintiff Civil Rights Department’s (“CRD”) motion to compel Defendants Carlos Torres andLinda Torres’s (“Defendants”) further responses to requests for production is DENIED asuntimely.CRD served Defendants with identical requests for production of documents. (Declaration ofJenny Chhea (“Chhea Decl.”) ¶5, Exhs. 1-2.) After a brief extension, Defendants served theirresponses to the requests for production. (Chhea Decl. ¶¶6-10, Exhs. 3-7.) Several meet-and-confer attempts followed, including multiple supplemental responses, extensions, andagreements to extend the deadline for the instant motion to compel. (Chhea Decl. ¶11-34, Exhs.8-31.) Ultimately, the Parties agreed to extend the deadline for CRD’s motion to compel to July8, 2024. (Chhea Decl. ¶30, Exh. 26.)CRD now moves to compel Defendants’ further responses to its requests for production.Defendants oppose. This matter was continued from August 1, 2024 by request of the movingparty.Code of Civil Procedure section 2031.310, subdivision (c) provides that “[u]nless notice of thismotion is given within 45 days of the service of the verified response, any supplemental verifiedresponse, or on or before any specific later date to which the demanding party and theresponding party have agreed in writing, the demanding party waives any right to compel afurther response to the demand.” (Emphasis added.) The Parties agreed to an extension deadlineof July 8, 2024. The motion was filed on July 8, 2024. However, it appears that notice of motionwas not given to Defendants until July 9, 2024. (See Amend POS 7/9/24.)More specifically, CRD filed an initial proof of service with its motion to compel indicating thatDefendants were served via electronic mail on July 8, 2024. The service list identifies StephanBrown, Erika LaMarch, and Tanikqua Clayton as the recipients for service. On July 9, 2024,however, Plaintiff filed an amended proof of service indicating that only LaMarch was served,and including an additional email address not previously identified. Importantly, this subsequentservice is declared to have occurred on July 9, 2024, and not on July 8, 2024. The Courtconstrues the amended proof of service as superseding and correcting as erroneous the initialproof of service, which included the assertion that LaMarch (and the others identified therein)was served on July 8, 2024. Indeed, if this amended proof of service was rather intended tomerely augment the extent of service described in the initial proof of service (as opposed tosuperseded it entirely), it would have declared the nature of service that had (still) occurred on Page 2 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00331695-CU-CR-GDS: Civil Rights Department vs. Carlos Torres 08/20/2024 Hearing on Motion - Other to Compel Defendants' Further Responses to Requests for Production in Department 53July 8, 2024, with the additional information of what service tasks occurred on July 9, 2024.Instead, it states service occurred only on July 9, 2024. The Court further notes the email addressfor LaMarch on file with the Court does not match any of the email addresses listed on eitherproofs of service. To the extent that LaMarch’s email with the Court is no longer valid, LaMarchis directed to update the email address. Based on the above, CRD’s motion is untimely.In general, defective service of a motion may be waived by a party’s failure to object on thatbasis. “It is well settled that the appearance of a party at the hearing of a motion and his or heropposition to the motion on its merits is a waiver of any defects or irregularities in the notice ofthe motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930; see also Reedy v. Bussell(2007) 148 Cal.App.4th 1272 [“if the party appears at the appropriate hearing and opposes themotion on the merits – but without making any request for a continuance or demonstratingprejudice from the defective notice, the issue is waived”])However, waiver of untimely service is not applicable to motions to compel discovery.The deadline for bringing a motion to compel is “mandatory and jurisdictional.” (Sexton v.Superior Court (1997) 58 Cal.App.4th 1403, 1410; see also Vidal Sassoon, Inc. v. SuperiorCourt (1983) 147 Cal.App.3d 681, 685.) In Sexton, the respondent served a request forproduction of documents on the petitioner after answering the petition. (Sexton, supra, at 1404.)The parties met and conferred regarding petitioner’s responses but were unable to resolve theirdiscovery dispute. (Ibid.) Respondent subsequently filed a motion to compel. (Ibid.) Petitioner’sopposition addressed the merits of the motion but did not raise the issue of timeliness eventhough it was filed beyond the deadline to file the motion. (Ibid.) Petitioner raised the timelinessissue at oral arguments, at which time, the trial court noted that this issue was not raised in thewritten opposition and refused to deny or dismiss the motion on the basis of untimeliness. (Ibid.)On writ of mandate, the Second District Court of Appeal reviewed the legislative and casehistories regarding motions to compel under the Civil Discovery Act (Sexton, supra, 58Cal.App.4th 1403, 1406-1410) and concluded that the time limitation contained in the CivilDiscovery Act is “‘jurisdictional’ in the sense that it renders the court without authority to ruleon motions to compel other than to deny them.” (Id. at 1410 [emphasis added].) Thus, “the trialcourt was required to deny the motion.” (Id. at 1404.) This is despite the fact that the Petitionerfailed to raise the matter in its written opposition.The Court recognizes that Defendants failed to raise any timeliness objections in its writtenopposition. Nevertheless, pursuant to Sexton, the Court is without authority to rule on this motionother than to deny it.As indicated earlier, the demanding party waives any right to compel further responses “[u]nlessnotice of this motion is given ... on or before any specific later date to which the demanding Page 3 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00331695-CU-CR-GDS: Civil Rights Department vs. Carlos Torres 08/20/2024 Hearing on Motion - Other to Compel Defendants' Further Responses to Requests for Production in Department 53party and the responding party have agreed in writing.” (Code Civ. Proc. §2031.310, subd. (c)[emphasis added].) Courts have confirmed that the deadline under the Civil Discovery Act is thedate of service, not the date of filing. In Karz v. Karl (1982) 137 Cal.App.3d 637, a motion tocompel was served but not filed within the statutory period. The court found the motion to betimely because “[t]he language of section 2030 could not be more explicit. The requirement isthat the motion ‘must be upon notice given within 30 days from date of the service of theanswers....’” (Id. at 646.) Karz distinguished O’Brien v. Superior Court (1965) 233 Cal.App.2d388, which found motions to compel untimely because they were served after the statutoryperiod. (Karz, supra, at 647; see O’Brien, supra, at 390-391.)Here, the only agreed upon “specific later date” is July 8, 2024. CRD gave notice of the motionon July 9, 2024. The motion is therefore untimely under Code of Civil Procedure section2031.310, subdivision (c). The Court is without authority to rule on the instant motion except todeny it.Accordingly, CRD’s motion to compel further responses to request for production is DENIED,in its entirety. This is without prejudice to CRD’s ability to conduct other discovery as permittedby law. (See Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997-998 [“Nothing in eithersection 2025 or section 2031 suggest that seeking documents under one statutory procedure barsa litigant from seeking the same documents under the other”].)This minute order is effective immediately. No formal order or other notice is required. (CodeCiv. Proc. §1019.5; CRC, Rule 3.1312.) Page 4 of 4
Ruling
Padilla, et al. vs. Rawlins, et al.
Aug 20, 2024 |23CV-0202171
PADILLA, ET AL. VS. RAWLINS, ET AL.Case Number: 23CV-0202171Tentative Ruling on Motion for Leave to File First Amended Complaint: This matter is oncalendar for further proceedings on Plaintiffs’ Motion for Leave to File First Amended Complaint.The amendment is the addition of Franchisor British Petroleum West Coast Products, LLC as aDoe Defendant. The matter has been properly noticed, with proof of service on file. The Motionis unopposed.Merits of Motion: CCP § 473(a)(1) permits any pleading to be amended in furtherance of justiceand on any terms as may be proper, after notice to the adverse party. The Court’s discretion in thisregard will usually be exercised liberally to permit amendment. Nestle v. Santa Monica (1972) 6Cal. 3d 920, 939. Leave to amend should be liberally granted so long as there is no statute oflimitations issue or prejudice to the opposing party. Harris v. City of Santa Monica (2013) 56Cal.4th 203, 240.Here, no party opposes the motion, no trial date is set, and discovery is ongoing. Defendants havenot alleged any prejudice based on the amendment, and it does not appear any will result. TheMotion is GRANTED. A proposed order has been lodged and will be executed. Plaintiff isgranted ten days leave to file the First Amended Complaint; it will not be deemed filed.****************************************************************************** 9:00 a.m. Review Hearings******************************************************************************
Ruling
JULIAN LAWRENCE COLBERG VS DALLAS B. TANNER
Aug 20, 2024 |24CHCV00646
Case Number: 24CHCV00646 Hearing Date: August 20, 2024 Dept: F43 Dept. F43 Date: 8-20-24 Case #24CHCV00646, Julian Lawrence Colberg vs. Dallas B. Tanner Trial Date: N/A MOTION TO QUASH SERVICE OF SUMMONS MOVING PARTY: Defendant Dallas B. Tanner RESPONDING PARTY: Plaintiff Julian Lawrence Colberg RELIEF REQUESTED Cross-Defendant has requested that the Court quash the service of summons. RULING: Motion is granted. SUMMARY OF ACTION Defendant Dallas B. Tanner (Defendant) filed this motion to quash service of summons on July 25, 2024, pursuant to CCP §§ 418.10(a)(1), on the basis that this Court lacks personal jurisdiction over Defendant. Defendant is an individual residing in Texas. Defendant argues that this Court has no general jurisdiction over him because he is an individual domiciled in Texas and does not have sufficient minimum contacts with California. He also argues that this Court does not have specific jurisdiction over him because he has not purposefully availed himself of the privilege of conducting activities in California. Defendant is the CEO of Invitation Homes, Inc. It appears that Plaintiff Julian Lawrence Colbergs (Plaintiff) claims are related to action taken by Invitation Homes. However, Plaintiff has sued Defendant personally as an individual rather than suing Invitation Homes. Plaintiff appears to argue in his opposition that Defendant has contacts with California because Invitation Homes has contacts with California. He also seems to argue that Defendant is the principal agent of Invitation Homes. The end of Plaintiffs opposition is confusing because it states In light of the Motion(proposed order) to quash summons, the plaintiff consents and pleads the court to remove this case, alternatively to dismissing the summons. The plaintiff requests as an alternative to quashing the summons for jurisdictional defects, that this case be removed. Plaintiff appears to be consenting to the dismissal of this case, though it is unclear. The Court will address the substance of Defendants motion. ANALYSIS CCP § 418.10(a)(1) allows a defendant to serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court. Where a nonresident defendant challenges jurisdiction by a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence the factual bases justifying the exercise of jurisdiction. (Viaview, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 216.) To satisfy this burden, a plaintiff must present competent evidence showing that the defendants conduct related to the pleaded causes of action is such as to constitute minimum contacts with the forum to justify jurisdiction. (Id. at 217.) General Jurisdiction A nonresident defendant is subject to the forums general jurisdiction where the defendants contacts are substantial, continuous, and systematic. (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090.) For an individual, the paradigm forum for the exercise of general jurisdiction is the individuals domicile[.] (Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) 564 U.S. 915, 924.) An individuals domicile is established by a showing of physical presence and an intention to remain there indefinitely. (In re Marriage of Tucker (1991) 226 Cal.App.3d 1249, 12581259.) By contrast, those who live or operate primarily outside a State have a due process right not to be subjected to judgment in its courts as a general matter. (J. McIntyre Machinery, Ltd. v. Nicastro (2011) 564 U.S. 873, 881.) In this case, Defendant is an individual domiciled in Texas. He works in the Invitation Homes corporate headquarters in Texas. Defendant has a Texas drivers license, owns property in Texas, and is registered to vote in Texas. He has no connections to California. Plaintiff has presented no evidence that Defendant, in his capacity as individual, primarily lives or operates outside of Texas. Defendant has no physical presence in California. Accordingly, this Court does not have general jurisdiction over Defendant. Specific Jurisdiction If a nonresidents contacts are not substantial and systematic, a court may exercise specific jurisdiction over a nonresident defendant only if (i) the defendant has purposefully availed himself of forum benefits by purposefully and voluntarily directing his activities toward the forum, (ii) the controversy is related to or arises out of the defendants contacts with the forum, and (iii) the forums assertion of personal jurisdiction over the defendant would comport with fair play and substantial justice. (Jensen v. Jensen (2019) 31 Cal.App.5th 682, 686-687.) First, there are no facts or evidence that Defendant has purposefully availed himself of forum benefits by purposefully and voluntarily directing his activities toward the forum. He is an individual who lives and works in Texas. There is no evidence that he has purposefully availed himself of Californias benefits. Regardless of what Invitation Homes has done, Defendant has not availed himself of any forum benefits in his personal capacity. Second, Defendant has no contact with the forum jurisdiction in his personal capacity, so the controversy cannot be related to or arise out of his contacts with the forum jurisdiction. Third and finally, Defendant argues that the exercise of specific jurisdiction would offend traditional notions of fair play and substantial justice. When considering whether the assertion of personal jurisdiction would comport with fair play and substantial justice, the Court must consider (1) the burden on Defendant, (2) the interests of the forum state, (3) Plaintiffs interests in obtaining relief, (4) the interstate and international judicial systems interest in obtaining the most efficient resolution of controversies, and (5) shared interest of the various jurisdictions in furthering fundamental substantive social policies. (Snowney v. Harrahs Entertainment (2005) 35 Cal.4th 1054, 1062.) In this case, it would be burdensome on Defendant, a Texas resident, to defend this case in California. Next, California is not the only jurisdiction that would have interest in this case, as it appears that Plaintiff is alleging wrongdoing related to properties in Las Vegas, Nevada, as well. Based on the foregoing, forcing Defendant to defend this case in California would offend the traditional notions of fair play and substantial justice. This Court does not have specific jurisdiction over Defendant. CONCLUSION Based on the foregoing, Defendants motion to quash service of summons is granted. Defendant is dismissed from this action. Moving party to give notice.
Ruling
RODOLFO GAVILANES, ET AL. VS ADRIANNA ALYSSA VIDANA, ET AL.
Aug 19, 2024 |22STCV28807
Case Number: 22STCV28807 Hearing Date: August 19, 2024 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 partys intention to submit. The email shall include the case number, date and time of the hearing, counsels 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. 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 DEPARTMENT 32 HEARING DATE August 19, 2024 CASE NUMBER 22STCV28807 MOTIONS Consolidate Related Cases MOVING PARTY Defendant Adrianna Alyssa Vidana OPPOSING PARTY None BACKGROUND Defendant Adrianna Alyssa Vidana (Defendant) moves the Court to consolidate this case (Gavilanes) with Ibarra et al. v. Vidana (Case No. 23STLC01246) (Ibarra) for all purposes. There is no opposition to the Motion. LEGAL STANDARD California Code of Civil Procedure section 1048 states: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Under California Rules of Court, rule 3.350, subdivision (a)(1), a notice of motion to consolidate must: (A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and (C) Be filed in each case sought to be consolidated. (2) The motion to consolidate: (A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case; (B) Must be served on all attorneys of record and all non-represented parties in all of the cases sought to be consolidated; and (C) Must have a proof of service filed as part of the motion. ¿Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different department, have been¿related¿into a single department, or if the cases were already assigned to that department. (LASC Local Court Rules, Rule 3.3(g)(1).) The purpose of consolidation is to avoid unnecessary costs or delay, avoid duplication of procedure, particularly in the proof of issues common to both action, and avoid inconsistent results by hearing and deciding common issues together. (See Estate of Baker (1982) 131 Cal.App.3d 471, 485.) The granting or denial of a motion to consolidate rests in the trial court's sound discretion, and will not be reversed except upon a clear showing of abuse of discretion. (Feliner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.) Each case presents its own facts and circ*mstances, but the court generally considers the following: (1) timeliness of the motion: i.e., whether granting consolidation would delay the trial of any of the cases involved; (2) complexity: i.e., whether joining the actions involved would make the trial too confusing or complex for a jury; and (3) prejudice: i.e, whether consolidation would adversely affect the rights of any party. (See State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 430431.) DISCUSSION As an initial matter, the two cases have been deemed related and are pending in Department 32; 22STCV28807 was designated the lead case. (Min. Order, 6/27/24.) However, there has been no reclassification. (See LASC Rule 3.3(g)(3) [Before consolidation of a limited case with an unlimited case, the limited case must be reclassified as an unlimited case and the reclassification fee paid.].) CONCLUSION AND ORDER Accordingly, Defendants Motion to Consolidate is DENIED. Defendant shall provide notice of this order and file a proof of service of such.
Ruling
DAMARIZ RUTH JUAREZ, ET AL. VS MAR VISTA FUND, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Aug 20, 2024 |21STCV13193
Case Number: 21STCV13193 Hearing Date: August 20, 2024 Dept: 53 Superior Court of California County of Los Angeles Central District Department 53 damariz ruth juarez, et al ; Plaintiffs, vs. mar vista fund, llc , et al.; Defendants. Case No.: 21STCV13193 Hearing Date: August 20, 2024 Time: 10:00 a.m. [tentative] Order RE: petition for approval of compromise of claim for minor claimant yareth de la o MOVING PARTY: Petitioner Ana De La O RESPONDING PARTY: Unopposed Petition for Approval of Compromise of Claim for Minor Claimant Yareth De La O The court considered the moving papers filed in connection with this petition. No opposition papers were filed. DISCUSSION Petitioner Ana De La O (Petitioner) seeks court approval of the settlement made on behalf of minor claimant Yareth De La O (Minor Claimant) in this action. The compromise of a minors disputed claim for damages is valid only after it has been approved, upon the filing of a petition, by the court.¿ (Prob. Code, § 3500.)¿ The petition must be verified by the petitioner, must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, and must be prepared on Judicial Council form MC-350.¿ (Cal. Rules of Court, rule 7.950.)¿¿¿¿ Defendants Mar Vista Fund, LLC, Mar Vista Entitlement Fund, LLC, Manuel Cara Edralin, Jr., individually and as trustee of the Edralin Manuel C 2005 Trust, J&S Properties Enterprises, Inc., and Beach City Capital Management, LLC have agreed to pay a total of $2,000,000 to settle this action, of which $50,670.61 is allocated to Minor Claimant. (MC-350, ¶¶ 10-11.) Of the $50,671.61 allocated to Minor Claimant, $12,667.65 will be paid to counsel for attorneys fees, and $974.34 will be paid to counsel for litigation costs. (MC-350, ¶¶ 13, 16.) The remaining $37,028.62 will be invested in a single-premium deferred annuity, subject to withdrawal only on authorization of the court. (MC-350, ¶¶ 16, 18, subd. (b)(3).) The court has reviewed the petition and finds the settlement to be fair, reasonable, and in the best interest of Minor Claimant. The court also finds that the declaration of David Campbell Smith is sufficient to support the request for $12,667.65 in attorneys fees, which represents 25 percent of the settlement. (Smith Decl., ¶¶ 1, 3, 8-9.) The court therefore grants Petitioners petition. ORDER The court grants petitioner Ana De La Os petition for approval of compromise of claim on behalf of minor claimant Yareth De La O. The court sets an Order to Show Cause re: proof of purchase of annuity (as to minor claimant Yareth De La O) for hearing on October 24, 2024, at 8:30 a.m., in Department 53.¿ The court orders petitioner Ana De La O to give notice of this ruling. IT IS SO ORDERED. DATED: August 20, 2024 _____________________________ Robert B. Broadbelt III Judge of the Superior Court
Ruling
AMANDA PHAM VS LVMH MOET HENNESSY LOUIS VUITTON INC., ET AL.
Aug 21, 2024 |23STCV01213
Case Number: 23STCV01213 Hearing Date: August 21, 2024 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 partys intention to submit. The email shall include the case number, date and time of the hearing, counsels 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. 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 DEPT: 32 HEARING DATE: August 21, 2024 CASE NUMBER: 23STCV01213 MOTIONS: Motion to Deem Requests for Admissions, Set One, to Plaintiff, Admitted MOVING PARTY: Defendant Louis Vuitton USA Inc. OPPOSING PARTY: Unopposed BACKGROUND Defendant Louis Vuitton USA Inc. (Defendant) moves to deem admitted Request for Admissions, Set One, served on Plaintiff Amanda Pham (Plaintiff). Defendant also requests terminating and monetary sanctions.[1] No opposition has been filed. LEGAL STANDARD Deem Admitted Where there has been no timely response to a request for admission under Code of Civil Procedure section 2033.010, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.¿ (Code of Civ. Proc., § 2033.280, subd. (b).)¿ The party who failed to respond waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the partys failure to respond was the result of mistake, inadvertence, or excusable neglect.¿ (Code of Civ. Proc., § 2033.280, subds. (a)(1)-(2).)¿ The court shall grant a motion to deem admitted requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.¿ (Code of Civ. Proc., § 2033.280, subd. (c).)¿ The Discovery Act does not define substantial compliance in the context of service of a proposed response that complies with Code Civ. Proc., section 2033.220. The courts have ruled that substantial compliance means actual compliance with all matters of substance and that technical deviations are not to be given the stature of noncompliance. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779.) For example, unverified responses are not in substantial compliance. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Additionally, RFA responses must be examined in their entirety. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 780.)¿¿¿ Where a party fails to provide a timely response to requests for admission, [i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).) Terminating Sanctions To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).) Failing to respond or to submit to an authorized method of discovery, or disobeying a court order to provide discovery, constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).) The trial court may order a terminating sanction for discovery abuse after considering the totality of the circ*mstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.) Generally, [a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Los Defensores, supra, 223 Cal. App. 4th at p. 390 [citation omitted].) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].) DISCUSSION On October 16, 2023, Defendant served Request for Admissions, Set One on Plaintiff. (Galvan Decl. ¶ 3, Exh. A.) After granting extensions, Plaintiff served unverified responses on December 15, 2023. (Id. ¶ 4, Exh. B.) On May 8, 2024, the Court granted Plaintiffs counsels motion to be relieved, effective upon filing proof of service of the order on Plaintiff. The proof of service was filed on May 9, 2024. Plaintiff is currently self-represented. On May 16, 2024, Defendants counsel attempted to call Plaintiff via telephone. (Galvan Decl. ¶ 9.) Plaintiff never responded to counsels voicemail message. Plaintiff has not made a general appearance in this case since being self-represented. On May 30, 2024, Defendant sent Plaintiff a meet and confer letter regarding the unverified responses, but Plaintiff did not reply. Id. ¶ 13-16, Exh. C.) Reviewing Plaintiffs responses to the Request for Admissions, the Court notes they contain substantive responses and thus, require a verification. Because [u]nverified discovery responses are tantamount to no response at all, (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636), they are not in substantial compliance. Here, notice of the instant motion was served on Plaintiff via overnight delivery to the address indicated on the order to relieve counsel. No opposition has been filed for this motion. Accordingly, because the responses are not verified, the motion to deem admitted is granted as to the requests that do not contain only objections. Defendant seeks $1,650 in monetary sanctions against Plaintiff based on a $265 hourly rate and the $60 filing fee. Monetary sanctions are mandatory, but the amount requested is excessive given the type of motion and the lack of opposition. Therefore, the Court awards $457.50 in monetary sanctions against Plaintiff (1.5 hours of attorney time plus the filing fee). Defendant also requests that the Court impose terminating sanctions. However, there is insufficient evidence of discovery abuse to warrant terminating sanctions at this time. Additionally, Defendant has failed to show that less severe sanctions would not induce compliance. As a result, the request for terminating sanctions is denied. CONCLUSION AND ORDER Accordingly, Defendant Louis Vuitton USA Inc.s motion to deem admitted Request for Admissions, Set One served on Plaintiff Amanda Pham, is GRANTED. The Court further imposes monetary sanctions against Plaintiff in the reduced amount of $457.50. Said monetary sanctions are to be paid to counsel for Defendant within 30 days of the date of this order. Defendant shall provide notice of the Courts order and file a proof of service of such. TENTATIVE RULING DEPT: 32 HEARING DATE: August 21, 2024 CASE NUMBER: 23STCV01213 MOTIONS: Compel Responses to Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One MOVING PARTY: Defendants Louis Vuitton USA Inc. and Goya Studios, Inc. OPPOSING PARTY: None BACKGROUND Defendants Louis Vuitton USA Inc. and Goya Studios, Inc. (Defendants) move to compel Plaintiff Amanda Phams (Plaintiff) verified responses to Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Defendants seek monetary sanctions. No opposition has been filed. LEGAL STANDARD Interrogatories If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290 (b).) Failure to timely respond waives all objections, including privilege and work product, unless [t]he party has subsequently served a response that is in substantial compliance and [t]he partys failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290 (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) If a motion to compel responses is filed, the Court shall impose a monetary sanction against the losing party unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2030.290 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) Requests for Production Under Code of Civil Procedure Section 2031.300, if a party fails to serve a timely response to a demand for inspection, the party making the demand may move for an order compelling response to the demand. (Code Civ. Pro § 2031.300 (b).) The party who fails to serve a timely response to a demand for inspection waives any objection to the demand unless the court finds that the party has subsequently served a response that is in substantial compliance or partys failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2031.300 (a)(1)- (2).) Courts shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection unless the party acted with substantial justification or other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.300 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) DISCUSSION Here, on February 23, 2023, Goya Studios, Inc. served Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One on Plaintiff. (Galvan Decl. ¶ 3, Exh. A.) After receiving multiple extensions, Plaintiff served unverified responses which contain substantive responses on May 8, 2023. (Id. ¶ 5, Exh. B.) On October 16, 2023, Louis Vuitton USA Inc. served Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One on Plaintiff. (Galvan Decl. ¶ 7, Exh. C.) After receiving multiple extensions, Plaintiff served unverified responses which contain substantive responses on December 15, 2023. (Id. ¶ 9, Exh. D.) Therefore, because the responses do not solely contain objections, they need to be verified. (Code Civ. Proc. §§ 2030.250(a), 2031.250(a).) Since unverified responses are tantamount to no responses at all, the motion to compel is granted.[2] Defendant seeks $2,445 in monetary sanctions representing an hourly rate of $265 and the $60 filing fee. (Galvan Decl. ¶ 27.) The Court finds sanctions are warranted because Plaintiff has failed to respond. However, the amount requested is excessive given the type of motion, the lack of opposition, and the fact counsel can appear at the hearing remotely. Therefore, the Court awards sanctions in the amount of $457.50 (1.5 hour of attorney time and the filing fee). CONCLUSION AND ORDER Accordingly, Defendants Motion to Compel Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One is GRANTED. Plaintiff Amanda Pham shall provide verified responses within 20 days. The Court further GRANTS Defendants request for monetary sanctions against Plaintiff in the reduced amount of $457.50. Said monetary sanctions are to be paid to counsel for Defendants within 30 days of the date of this order. Defendants shall provide notice of the Courts order and file a proof of service of such. [1] It appears Defendant has filed two identical motions seeking the same relief under two different reservation numbers ending in 7977 and 4248. [2] The Court admonishes Defendants that each motion to compel must be separately filed. Failure to comply in the future may result in the Court striking an omnibus motion or otherwise declining to hear it.
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