Tentative Rulings for Department 403

Tentative Rulings for March 16, 2021 Department 403

There are no tentative rulings for the following cases. The hearing will go forward on these matters. If a person is under a court order to appear, he/she must do so. Otherwise, parties should appear unless they have notified the court that they will submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

The court has continued the following cases. The deadlines for opposition and reply papers will remain the same as for the original hearing date.

20CECG01845 Mendez v. K.W.P.H. Enterprises is continued to Thursday, March 18, 2021 at 3:30 p.m. in Dept. 403

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Tentative Rulings for Department 403

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(20) Tentative Ruling

Re: A&A Tarzana Plaza L.P. v. Walters Superior Court Case No. 14CECG01265

Hearing Date: March 16, 2021 (Dept. 403)

Motion: Motion for Assignment Order Against Defendant’s Spouse

Tentative Ruling:

To deny without prejudice.

Explanation:

Pursuant to Code of Civil Procedure section 706.109, “An earnings withholding order may not be issued against the earnings of the spouse of the judgment debtor except by court order upon noticed motion.” This provision “recognizes that despite the general rule that community property is liable for debts of a spouse (Fam. Code, § 910, subd. (a)), community property earnings are unique and may not be liable in some situations.” (Legis. Com. com., Code Civ. Proc., § 706.109, italics added.) To fall within the provisions of section 706.109, a defendant must establish the existence of a valid marriage at the time of incurrence of the debt and community property earnings. Plaintiff has not done so.

Plaintiff has not established that the Walters are or were ever validly married. There is no admissible evidence on this point at all – just counsel’s reference to “Defendant’s wife Cherie Walters …” in his declaration. Declarations are hearsay and are generally inadmissible at trial, subject to several statutory exceptions. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1345.) Code of Civil Procedure section 2009 creates an exception to the hearsay rule and authorizes the use of declarations and affidavits in motion proceedings. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 344; North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 778.) But evidentiary declarations submitted in support of motions must meet all the statutory requirements for admissibility of evidence at trial. This means the declaration must be from a competent witness having personal knowledge of the facts stated therein. (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1107.) Plaintiff has failed to submit any admissible evidence of marriage. Nor is there admissible evidence that the Walters’ (even if they were at one time married) are still married such that Ms. Walters’ income is community property.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling Issued By: KCK on 03/15/21 . 3

(Judge’s initials) (Date)

(03) Tentative Ruling

Re: Chairatnathrongporn v. State of California Superior Court Case No. 18CECG02675

Hearing Date: March 16, 2021 (Dept. 403)

Motion: Defendant California Department of Transportation’s Motion for Summary Judgment

Defendant California Department of Transportation’s Motion to Order Plaintiffs to Post an Undertaking

Tentative Ruling:

To deny defendant California Department of Transportation’s (Caltrans) motion for summary judgment, and its motion for an order requiring plaintiffs to post an undertaking to continue prosecuting the case. (Code Civ. Proc. §§ 437c; 1030.)

Explanation:

Motion for Summary Judgment: Defendant Caltrans moves for summary judgment as to the entire complaint, arguing that plaintiffs cannot prevail on their claim that the section of Highway 180 where their son died constitutes a dangerous condition of public property because the claim is barred by the design immunity defense.

“A public entity may be liable for negligently creating an injury-producing dangerous condition (§ 835, subd. (a)), or for failing to remedy such a condition despite having had notice and sufficient time. (§ 835, subd. (b).)” (Higgins v. State of California (1997) 54 Cal.App.4th 177, 184, abrogated on other grounds as stated in Cornette v. Dept. of Transportation (2001) 26 Cal.App.4th 63.) However, under Government Code section 830.6,

Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.

“In other words, a public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial 5 evidence supporting the reasonableness of the plan or design.” (Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 69, internal citation omitted.)

“The first element, a causal relationship between the plan and the accident, requires proof that the alleged design defect was responsible for the accident, as opposed to some other cause. The second element, discretionary approval prior to construction, ‘simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.’ A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval. Design immunity does not immunize decisions which were not made. Thus, the injury-producing feature must have been a part of the plan approved by the governmental entity. The immunity only applies to ‘a design-caused’ accident.” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940–941, internal citations omitted.)

“The third element of design immunity, substantial evidence of reasonableness of design, requires only substantial evidence.” (Id. at p. 941.) “[W]e read section 830.6 to mean that as long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity. The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances. By deciding on a ‘reasonableness’ standard, the Legislature intended that government officials be given extensive leeway in their decisions concerning public property.” (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 525.) Thus, if there is evidence that the design was approved by engineers and adopted by the public entity, and an expert witness for the public entity testifies that the design was reasonable and did not constitute a dangerous condition, then the public entity has met its burden of showing that design immunity applies. (Ibid.)

In the present case, defendant Caltrans has presented sufficient evidence to meet its initial burden of showing that the design immunity defense applies to plaintiffs’ claims. Plaintiffs have alleged that the road where the accident occurred constituted a dangerous condition because of certain features of its design, including a sharp curve in Highway 180, lack of proper guard rails, a high speed limit, and lack of warning signs. (Defendant’s UMF No. 1.) Plaintiffs’ son was killed when his car failed to negotiate the curve in the road and drove off the cliff into the Kings River. (Defendant’s UMF No. 2.) Thus, plaintiffs have alleged that there is a causal link between the design of the road and their injuries. However, its expert, Nazir Lalani, has testified that the section of Highway 180 where the accident occurred was constructed pursuant to design plans that were drafted and approved in 1931 by civil engineers and the Director of Public Works. (Defendant’s UMF No. 4, see also Lalani decl., ¶ 23 a.) There were several construction projects on the subject section of road over the ensuing decades, but none that made major changes to the road. (Lalani decl., ¶¶ 23 b-i.) Lalani also states that, in his opinion, the design of the road was reasonable and that the road did not constitute a dangerous condition. (Defendant’s UMF No. 5, Lalani decl., ¶¶ 37-41.) Therefore, defendant has met its burden of showing that the design immunity defense applies.

However, the California Supreme Court has held that, even if the public entity establishes all of the elements of the design immunity defense, if the property contained a feature that was not part of the approved design plans and that caused or contributed 6 to the plaintiff’s injuries, then the public entity is not entitled to design immunity. (Cameron v. State of California (1972) 7 Cal.3d 318, 326.) In Cameron, the State of California showed that the road where the accident occurred had been designed by the County Surveyor, that the design plans were approved by the County Board of Supervisors, and that a civil engineer had opined that the road design was reasonable. (Id. at p. 325.) Thus, the California Supreme Court found that the State had met its initial burden of establishing the elements of the design immunity defense. (Ibid.)

Nevertheless, the Court held that, because the design plans contained no specification for the “superelevation” that allegedly caused the driver to lose control of the vehicle, there had been no decision to approve the superelevation in the road and the design immunity defense did not apply. “Here the state has presented no evidence that the superelevation which was actually constructed on the curve in question in this matter was the result of or conformed to a design approved by the public entity vested with discretionary authority. Thus, there would be no reexamination of a discretionary decision in contravention of the design immunity policy because there has been no such decision proved. The state merely showed that the Santa Cruz Board of Supervisors approved a design showing the course of the right of way and the elevation above sea level of the white center stripe for the road. The design plan contained no mention of the superelevation intended or recommended. Therefore such superelevation as was constructed did not result from the design or plan introduced into evidence and there was no basis for concluding that any liability for injuries caused by this uneven superelevation was immunized by section 830.6. The judgment of nonsuit must be reversed.” (Id. at p. 326.)

Likewise, here plaintiffs have presented evidence indicating that the subject section of road contained features that were not present in the original design plans that were approved. The plaintiffs’ expert states that the curve in the road that was actually constructed is much sharper and more dangerous than the curve depicted in the design plans. Plaintiffs’ expert, Dale Dunlap, alleges that the road as constructed does not match the design plans. (Dunlap decl., ¶¶ 10-11, and Exhibit D thereto.) Plaintiffs’ expert also claims that the guardrail at the site of the accident was changed sometime between 2013 and the date of the accident, and that the type of guardrail that was installed had a “gating terminal” that was insufficient to prevent the decedent’s vehicle from going through the guardrail and into the gorge below. (Id. at ¶¶ 34-36, 47, 49 G, I.)1

Thus, although there was an approved design for the road, there is evidence that the road as constructed did not match the design plans. The plaintiffs’ evidence indicates that the road as constructed is more dangerous than the plans intended, as it curves more sharply and includes inadequate guardrails to prevent a vehicle from going off the road and into the gorge. As a result, the court intends to find that the defendant has failed to establish that it is entitled to design immunity, as the road was apparently not constructed in conformity with the design plans that were approved, and the road was constructed in such a way as to allegedly create the dangerous condition that caused decedent’s death. (Cameron v. State of California, supra, 7 Cal.3d at p. 326.)

1 Defendant has filed numerous objections to the declaration of Dunlap, as well as the plaintiffs’ other evidence in opposition to the motion. However, the court intends to overrule the objections. 7

Therefore, the court will not grant the motion for summary judgment based on the design immunity defense.

Caltrans also argues in the alternative that the plaintiffs cannot prevail on their dangerous condition cause of action because no dangerous condition existed on the subject section of roadway. “‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).)

“A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.)

“Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion. [Citations.]” (Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30.)

“‘If [ ] it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not “dangerous” within the meaning of section 830, subdivision (a).’” (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196.)

Here, Caltrans points to the lack of other similar accidents on the same section of road as evidence that there was no dangerous condition. It contends that there have been no other similar accidents on the subject curve in nearly ten years prior to the subject accident, despite about 1.5 million cars passing over that portion of road.

The lack of other similar accidents on the same section of road can be used to establish that the road did not constitute a dangerous condition. (Callaghan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, 379-380.) “As a general rule, ‘[w]here the circumstances are similar, and the happenings are not too remote in time, other accidents may be proved to show a defective or dangerous condition, knowledge or notice thereof, or to establish the cause of an accident.’ ‘The evidence must relate to accidents which are similar and which occur under substantially the same circumstances.’” (Genrich v. State of California (1988) 202 Cal.App.3d 221, 227–228, internal citations omitted, italics in original.)

In the present case, however, Caltrans’ expert concedes that there have been several other accidents on the same section of road within the nine-and-a-half years prior to the subject accident. He simply contends that those other accidents are not substantially similar to the subject accident. (Lalani decl., ¶¶ 29, 39a.) He points out that two of the seven accidents involved motorcyclists, two occurred at night, one involved a driver hitting a rock in the road, one involved a driver travelling the opposite direction 8 from the direction that decedent was travelling at the time of the accident, and one involved a driver who was speeding. (Id. at ¶ 39a.) Thus, he concludes that there were no other substantially similar accidents at the same location where decedent’s accident occurred, and thus defendant is entitled to summary judgment.

However, at least some of the accidents cited by defendant’s expert appear to share several similarities with the subject accident. For example, two accidents that took place in 2008 and 2009 involved motorcyclists who were speeding and failed to make the curve. (Lalani decl., ¶ 29c, d.) The fact that the vehicles involved were motorcycles rather than cars does not change the fact that the drivers encountered the same danger that plaintiffs’ decedent encountered, namely going into the curve at too high a speed and failing to negotiate the turn. Both motorcycle drivers ended up sliding into the guardrail, although they were fortunate enough not to go through or over the guardrail and into the gorge below. This is exactly the same scenario that occurred in the subject accident, except that plaintiffs’ decedent’s car went through the guardrail and into the gorge, killing him.

Likewise, the accident that occurred on June 4, 2017 involved a driver who drove too fast for the curve and went off the road and into the guardrail. (Lalani decl., ¶ 29e.) The driver was not injured. However, the incident was otherwise similar to the incident where plaintiffs’ decedent was killed. The main difference between the incidents is that the driver in the first incident was lucky enough not to go through the guardrail and off the cliff. This incident also happened only about one month before plaintiffs’ decedent was killed.

Another driver was driving at night and missed the curve entirely. (Id. at ¶ 29f.) That incident occurred in August of 2017, about a month after the subject incident. (Ibid.) That accident also resulted in the car going into the gorge. (Ibid.) Although the accident occurred at night, it otherwise appears to be very similar to the present case, as both incidents involved a car missing the turn and going off the road and into the river gorge.

Some of the other incidents cited by Lalani do not appear to be substantially similar to the subject accident. For example, one accident occurred at night, and was apparently caused when the driver was blinded by oncoming headlights, so the accident is not similar to the present case. (Lalani decl., ¶ 29b.) Another accident occurred when a driver tried to avoid a rock in the road, and ended up driving off the curve. (Id. at ¶ 29a.) There was also another incident that occurred in June of 2018, almost a year after the subject incident, but that incident involved a driver going the opposite direction that plaintiffs’ decedent was travelling and hitting the mountainside on the inside of the curve. (Id. at ¶ 29g.) Thus, these accidents are not similar enough to the subject accident to show that a dangerous condition existed.

Still, the fact that there were at least four similar accidents on the same section of road within less than ten years of the subject accident shows that there is at least a triable issue of material fact as to whether the road was in a dangerous condition, and that drivers were having difficulty negotiating the sharp curve in the road at that location. While many of the accidents involved excessive speed for the curve, the plaintiffs’ theory of the case is that the design of the road encouraged drivers to drive too fast into the tight curve, and that there were no warning signs to tell them to slow down. 9

Plaintiffs have submitted evidence showing that the road leading up to the curve was straight and the speed limit was 55 miles per hour, whereas the safe speed for the curve was 20 miles per hour, which meant that drivers might enter the curve too fast and fail to make the turn. (Dunlap decl., ¶ 49D, E.) There were also no warning signs or other traffic control devices before the turn to warn drivers that they were approaching a sharp curve and needed to reduce their speed. (Id. at ¶ 49F.) The guardrail on the curve had also been replaced and included a “gating terminal” that was inappropriate for the location, since it was designed to allow cars to pass through it rather than stopping them. (Id. at ¶ 49G, I.) Plaintiffs’ expert also opines that the guardrail should have been one continuous rail, rather than being in two separate sections with a gap between them. (Id. at ¶ 49H.) The expert concludes that, if warning signs and proper guardrails had been installed at the time of the accident, they likely would have prevented the accident, or at least mitigated its severity. (Id. at ¶ 49M.)

Thus, plaintiffs have raised triable issues of material fact with regard to the issue of whether the road constituted a dangerous condition at the time of the accident, and the court intends to deny summary judgment of the plaintiffs’ complaint.

Motion to Post an Undertaking: Defendant also moves for an order for plaintiffs to post an undertaking under Code of Civil Procedure section 1030. Section 1030, subdivision (a), states,

When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney's fees which may be awarded in the action or special proceeding. For the purposes of this section, “attorney's fees” means reasonable attorney's fees a party may be authorized to recover by a statute apart from this section or by contract.

Also, subdivision (b) of section 1030 states, in part, “The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.”

“Section 1030(b)'s ‘reasonable possibility’ standard ‘is relatively low.’ But it ‘is not so low as to be non-existent.’ District courts should not ‘read section 1030 so broadly as to require every out-of-state litigant who brings a non-frivolous suit in California to post a bond simply because there is a reasonable chance the defendant may prevail.’” (Johnson v. Altamirano (S.D. Cal. 2019) 418 F.Supp.3d 530, 564, internal citations omitted.)

Here, defendant has presented evidence that both plaintiffs reside in Thailand. Plaintiffs do not deny that they are foreign nationals, so the first element of section 1030 has been satisfied.

Caltrans also argues that it has a reasonable possibility of prevailing against plaintiffs, since it is entitled to design immunity under Government Code section 830.6, and there is no evidence that the property was in a dangerous condition at the time of 10 the accident. However, as discussed above with regard to the summary judgment motion, Caltrans has failed to show that design immunity applies here, as there is evidence that the road was not constructed consistently with the design plans that were approved. Consequently, Caltrans has not shown that it has a reasonably possibility of prevailing based on the design immunity defense.

Also, to the extent that Caltrans has contended that the road was not in a dangerous condition because there were no other similar accidents on the same portion of road in the nine-and-a-half-years before the subject accident, the evidence does not support its contention. Indeed, Caltrans’ own evidence indicates that there were several other, substantially similar accidents on the same curve within ten years of the subject accident. Plaintiffs have also provided evidence that indicates other dangerous conditions existed at the curve, including the fact that the road curved sharply, the speed prior to the curve was too high for the curve itself, there were no warning signs to tell drivers to slow down as they entered the curve, and the guardrail on the curve was inadequate to prevent cars from passing through it and into the gorge below. As a result, defendant has not shown that it has a reasonable possibility of obtaining a judgment in its favor.

Furthermore, Caltrans has not presented sufficient evidence to support the amount of costs and fees it seeks. It claims that it will incur at least $375,000 in attorney’s fees and costs to defend itself, but it fails to cite to any statutory or contractual basis for recovering attorney’s fees here. Indeed, in its reply, Caltrans appears to concede that it is not entitled to recover attorney’s fees even if it prevails, but then claims that it is likely to incur hundreds of thousands of dollars in expert witness fees if the case goes to trial. Yet Caltrans has not given a breakdown of its anticipated costs or explained how it calculated the $375,000 amount that it seeks. Therefore, the court intends to deny the motion to require plaintiffs to post a bond in order to proceed with the action.

Tentative Ruling Issued By: KCK on 03/15/21 . (Judge’s initials) (Date)

(30) Tentative Ruling

Re: Laura Robitschek v. Viola Martin Superior Court Case No. 19CECG03926

Hearing Date: March 16, 2021 (Dept. 403)

Motion: Motion to Dismiss, by Defendant Steven Escovedo

Tentative Ruling:

To grant without prejudice, with respect to defendant David Steven Escovedo only.

Explanation:

Where a demurrer has been sustained with leave to amend, but no amendment has been made within the time allowed by the court, the court may dismiss on motion of either party. (Code Civ. Proc., § 581, subd. (f)(2); Parsons v. Umansky (1994) 28 Cal.App.4th 867, 869-70.)

The decision to dismiss an action under Section 581 rests in the sound discretion of the trial court, and a reviewing court will not disturb the ruling unless the trial court has abused its discretion. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1054.) However, dismissal may be denied where plaintiff furnishes a sufficient excuse for delay in amending. (Contreras v. Blue Cross of Calif. (1988) 199 Cal.App.3d 945, 948.)

Here, plaintiff was ordered to file an amended complaint on or before October 5, 2020. (See Ten., adopted 9/15/20.) To date, plaintiff has failed to do so. Plaintiff has also failed to oppose the instant motion or to offer any excuse for delay.

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling Issued By: KCK on 03/15/21 . (Judge’s initials) (Date)

(19) Tentative Ruling

Re: Gomez v. CSAA Insurance Exchange Superior Court Case No. 19CECG03506

Hearing Date: March 16, 2021 (Dept. 403)

Motion: by plaintiff to compel production of documents responsive to request for production, set no. two. Tentative Ruling:

To grant and overrule all objections but for those made on the basis of the attorney/client privilege and the work product doctrine. To order that the letter attached as Exhibit H to plaintiff’s counsel’s declaration be sent on or before March 31, 2021, and that any claim file for which consent is received be produced by May 17, 2021. A further response, under oath, need also be served on May 17, 2021 which states that production was allowed in full, with the exception of documents identified in that further response as falling within the attorney/client privilege or work product doctrine. Such identification shall list the document’s “author, date of preparation, all recipients, and the specific privilege claimed.” Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291, fnt. 6.

Explanation:

In Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, the California Supreme Court held that an insured suing his own insurer for tortious breach of the insurance contract was permitted to discover the claim files of other insureds who claims were handled by the same adjuster. However, such discovery was limited to claims for which the other insureds had given written consent, after being sent a letter disclosing the request. The Court held that such files might lead to discoverable evidence on the issues of bad faith and punitive damages. In Williams v. Superior Court (2017) 3 Cal.5th 531, 551, the Supreme Court cited its prior decision in Colonial Life as setting forth the correct standard for discovery.

Colonial Life’s findings on the potential admissibility of similar instances of wrongful conduct to establish punitive damages liability is also well-supported, in insurance law and in other areas. (TXO Production Corp. v. Alliance Resources (1993) 509 U.S. 443, 113. S. Ct. 2711 125 L. Ed. 2d 366 (“TXO”), Pacific Mutual Life Ins. Co. v. Haslip (1991) 499 U.S. 1, and Campbell v. State Farm Mut. Auto. Ins. Co. (2004) 2004 UT 34, 98 P.3d 409, P. 28-35 (cert. denied) (the final decision after remand in State Farm Mutual Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408).)

Defendant contends that Moradi-Shalal v. Fireman’s Fund Ins. Co. (1988) 46 Cal.3d 287 rendered Colonial Life invalid. That is incorrect. It decreed that the duty of good faith was contractual, and could not be used by non-parties to an insurance contract to seek tort damages. The viability of such actions remains today. There was an appellate decision involving a bad faith case issued on March 10, in Pinto v. Farmers Insurance Exchange (2010) 2021 DJDAR 2193, discussing a decision to refuse a settlement offer. Plaintiffs in this case plead alleged breach of their own homeowners’ policy. 13

Insurance Code section 791.13(a) specifically provides for release of information pertaining to insurance transactions where the individual involved agrees. As held in Colonial Life, the privacy right belongs to the insured, and if the insured consents to release of the claims file for their own claim, production is appropriate.

“An objection based on burden must be sustained by evidence showing the quantum of work required.” West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407, 417. Where there is no such evidence, the objection must be overruled. Williams v. Superior Court, supra, 3 Cal.5th 531, 552. There is no proof of burden here, and the burden objection is overruled.

The vagueness objection is also without merit. The objection does not specify what is vague, which tends to indicate a nuisance objection. Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 901. "Whether the description of records is sufficient to inform [responding party] of that which is desired, presents a question merely of whether under the circumstances and situation and be able to distinguish the particular thing that is required." (Pacific Automobile Ins. Co. v. Superior Court (1969) 273 Cal. App. 2d 61, 68.) A claim file is defined by regulations governing defendant. (Title 10, California Code of Regulations, section 2695.3)(a) and 2895.8(l).) No vagueness appears.

Tentative Ruling

Issued By: KCK on 03/15/21 . (Judge’s initials) (Date)