Reply Plaintiff Northerns Reply To Opposition To Motion For Summary Adjudication Against Defendant Tgh ViReplyCal. Super. - 2nd Dist.February 19, 2019Electronicgfly FILED by Superior Court of California, County of Los Angeles on 06/05/2020 11:34 AM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Wong,D 1 nN N o N o nN nN nN nN nN - = X p s - - - - -_ i = X : ~ DN G1 Nn w nN -_ oO [( e] [0 ] ~l aD a A w nN - o © 0 ~ oD [ 8 ] nH w No N [eo ] STEVEN D. CRIBB SBN206232 ANDRE J. LeLIEVRE SBN166974 700 Leisure Lane Sacramento, CA 95815 Tel: 916-929-0130 Fax 916-929-4890 ‘Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA - COUNTY OF LOS ANGELES NORTH CENTRAL DISTRICT, GLENDALE COURTHOUSE - UNLIMITED CIVIL Northern California Collection Service, Inc., ) Case No.: 19GDCV00219 ) Plaintiff, ) Plaintiff Northern's Reply to Opposition to Vv. ) ) Motion for Summary Adjudication against Temple Garden Homes, et al., ) Defendant TGH Vi ) Defendants. ) Hearing:-6/42/2620 8/7/2020 ) Time: 8:36am 1:30 p.m. and related cross-action. ) Dept.: D, Judge Hofer ) RESID 940331235516 1. Northern’s motion should be granted on the account stated because none of the UNIFs disputed by TGH VI are supported by admissible evidence. Of Northern's nine UMFs, TGH VI purports to deny only three of them: numbers 14 and 15 re the two bills sent, and number 16 re no payments made. The claim UMF 16 is disputed is specious as those facts were deemed admitted in TGH VI's binding responses to requests for admissions. (Northern's Sep. Statement, 3:8-12; 4:14-18; & 5:23-24.) These admissions “conclusively established” the truthfulness of the matters admitted and no other evidence is necessary to establish the point. (Code Civ. Proc., § 2033.410 (a); see Burch v. Gombos (2000) 82 Cal. App.4th 352, 359.) “After-the-fact attempts to reverse prior admissions are impermissible because a party cannot rely on contradictions in his own testimony to create a triable issue of fact." (Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1283.) Northern v. TGH VI : Page 1 of 8 Reply bputy Clerk | | oO © co ~~ [9 ] a SH w No - N O O N N N N D N D N D N , e s s a aA a s a a aa a 0 ~N oO Oo A WO W O N =~ O O ©O W 00 N O O O Oo BD O w O N As to UMFs 14 & 15, if TGH VI does not counter Northern's declarations, Northern's ~~ evidence is accepted as true. (See Melorich Builders v. Sup. Ct. (1984) 160 Cal. App.3d 931; 935.) TGH VI failed to counter Thornberry's declaration stating State Fund mailed the bills to vy ERT the insured. (Ex. 89, 5:18-26 & 6:26-7:8.) TGH VI's opposition must show a triable issue of material fact as to the account stated. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, | 850.) TGH VI offers:no evidence but merely argues “The sending of [the bills] makes Plaintiff's claim more at dispute and subject to controversy.” (A's Opp. Sep. Statement, 5:18-19 & 5:25- 26.) That is not evidence. (Cal. Rules of Court, rule 3.1350 (f)(2) [opposition sep. statement “must describe the evidence that supports the position that the fact is controverted”].) TGH VI does not meet its opposition burden simply by pointing out that more than one inference can be drawn from the undisputed facts. (Schoshinski v. City of Los Angeles (2017) 9 Cal.App.5th 780, 792.) The Court can Sin the law to the undisputed facts and grant Northern's motion on the account stated. 2: Northern’s motion should be granted on the book account cause of action because none of the disputed UMFs are supported by admissible evidence. Of Northern's twelve UMFs, TGH VI purports to deny all but two of them (#s 11 & 12.) But as above, UMFs 5 and 10 were deemed admitted in binding responses to Northern's requests for admissions, conclusively establishing the truthfulness of the matters admitted. (1's Sep. Statement, 3:8-12 & 4:14-18; Code Civ. Proc., § 2033.410 (a); see Burch, supra; Gabrielle A., supra.) As to UMF 1 the fact of coverage, it should initially be noted that although Northern's separate statement offers UMF 1 for the book account and UMF 13 for the account stated as identical facts supported by identical evidence, TGH VI claims UMF 1 was disputed but that UMF 13 was undisputed. (Cf. A's Opp. Sep. Statement, 1:4-18 w/5:1-14.) Nevertheless, regarding the mandatory workers compensation insurance coverage, there are four options: © TGH Vi was self-insured, for which it could have produced a "Certificate of . ., Consent to Self-Insure." (Lab. Code, § 3700 (b); Cal. Code Regs., tit. 8, § 15203.7 (a); Evid. Northemv. TGH VI + Page 2 of 8 : Reply © oO o N N Oo oo Hh Ww O N - N O O N N D N D N N N N N N 22 A a sa a a a a a e s 0 ~N OO o A O W N ==, O O Ww W o N o O O h W w N ~~ OO Code, § 412 [weak evidence].) Also, "Whether or not an employer is self-insured can be determined electronically at the website of the Office of Self-Insurance Plans at http://dir.ca.gov/osip/." (Cal. Code Regs, tit. 8, § 15203.7 (c).) There is no evidence TGH VI was self-insured. $ TGH VI was insured by another carrier, for which it could have produced a Notice of Workers' Compensation Carrier. (Lab. Code, § 3700 (a); Evid. Code, § 412 [weak evidence]; La Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co. (1994) 9 Cal.4th 27, . 36; Cal. Code Regs., tit. 8, § 15565 "Failure to post such notice is a misdemeanor.") There is no evidence TGH VI was insured by another carrier. ® TGH VI was illegally uninsured, for which there are stop orders and criminal penalties.(Lab. Code, §§ 3700.5, 3710.1; Cal. Code Regs., tit. 8, § 15710 (a).) There is no evidence TGH VI was illegally uninsured, and it is presumed “The law has been obeyed” and TGH VI secured the payment of compensation. (Civ. Code., §§ 3548, 3700.) $ TGH VI was covered by State Fund, as the uncontradicted evidence proves. TGH VI fails to rebut Thornberry’s declaration that SCIF provided the workers' compensation insurance to TGH VI during the period 5/18/2016 through 6/26/2017. (Ex. 89, 2:26-28.) As to UMF 2 the deposit, instead of offering admissible counter-evidence, TGH VI's separate statement asks “If only TGH #6 make the initial deposit premium, is NCCS admitting that the four covered companies were not making initial deposit premium?” (A's Opp. Sep. Statement, 2:7-9.) That does not create a dispute of material fact. (Cal. Rules of Court, rule 3.1350 (f)(2).) "An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work." (Brown v. Ransweiler (2009) 171 Cal. App.4th 516, 526.) TGH VI fails to offer admissible evidence to rebut Thornberry's declaration explaining the deposit. (Ex. 89, 5:4-10.) As to UMF 3 the payments in the first period, TGH VI fails to offer admissible evidence to rebut Thornberry's declaration that "During the 5/1 8/2016 - 5/18/2017 coverage period, Temple Garden Homes for the Developmentally Disabled, Inc., VI 's total payments and credits equal $196,883.00.” (Ex. 89, 5:11-12.) Instead of offering admissible evidence, TGH V's Northern v. TGH Vi : Page 3 of 8 Reply © 00 N N oO Oo hh Ww N N - N O N ND N N N NN NN DN A Aa a Aa dam da a d e d e d e d e a oo N O o O o h W O N , OO © o N oO o h o w N N ~~ Oo separate statement conjectures “If NCCS is relying on this fact and the separate statements herein, these facts would evidence that more controversies as to which, what and where the payments were made or applied.” (A's Opp. Sep. Statement, 2:10-12.) That does not create a dispute of material fact. (Cal. Rules of Court, rule 3.1350 (f)(2).) "An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work." (Brown, supra.) As to UMF 4 the sending of the first bill, as above, TGH VI failed to offer admissible evidence to counter Thornberry's declaration stating State Fund mailed the bill. (Ex. 89, 5:18- 26.) TGH VI's opposition must show a triable issue of material fact as to the book account. (Aguilar, supra.) TGH VI offers no evidence but asks in its separate statement “Why would the entire bill for four be sent to one company . . .?" (A’s Opp. Sep. Statement, 2:25-27.) That is not evidence and does not create a dispute. (Cal. Rules of Court, rule 3.1350 (f)(2).) The opposing party does not meet its burden simply by pointing out that more than one inference can be drawn from the undisputed facts. (Schoshinski, supra.) As to UMF 6, TGH VI fails to rebut Thornberry's declaration and Exhibits 93 and 97 explaining the renewal of coverage. The UMF is not whether there was any “mirror-image acceptance” but whether TGH VI's coverage undisputedly renewed. (A’s Opp. Sep. Statement, 3:10.) UMF 7 concerns whether the coverage was undisputedly cancelled on a date certain, which affects Northern's damages, not the reason for the cancellation. TGH VI fails to offer counter-evidence and its opposition separate statement merely argues “no contract could be renewed." (A’s Opp. Sep. Statement, 3:20-21.) For UMF 8 the credits in the second period, TGH VI fails to counter Thornberry's declaration explaining the UMF 8 credit “for the $1,280.00 rolled-over initial deposit; [and] the $39.79 due for the mandatory surcharges.” (Ex. 89, 7:2-6.) Instead of offering admissible evidence, TGH VI's separate statement argues “Without any contract, no credit could be given to this defendant.” (A’s Opp. Sep. Statement, 4:3-4.) That does not create a dispute of material fact. (Cal. Rules of Court, rule 3.1350 (f)(2).) Speculation is not evidence. (Aguilar, supra.) Northen v. TGH Vi Page 4 of 8 Reply oO © 0 ~N oOo o h Ww W DN N O N ND O N N D ND DN N N N D AQ ma Aa ‘A Q w a w a =m a a - 0 ~ N O O o A W N A O w w 00 N o o h h o W w W w N - As to UMF 9 the sending of the second bill, TGH VI failed to counter Thornberry's declaration stating State Fund mailed the audited premium bills to the insured. (Ex. 89, 6:26-7:8.) TGH VI's opposition must show a triable issue of material fact as to Northern's cause of action. (Aguilar, supra.) TGH VI offers no evidence but asks in its separate statement "Why would the entire bill for four be sent to one company . . .?" (A's Opp. Sep. Statement, 2:25-27.) That is not admissible evidence and that is not a dispute of material fact. (Cal. Rules of Court, rule 3.1350 (f)(2).) TGH VI cannot meet its opposition burden simply by pointing out that more than one inference can be drawn fro the undisputed facts. (Schoshinski supra.) 3. TGH VI cannot defeat a summary adjudication by creating a procedural mess. a. TGH IV's Opposition Memorandum is procedurally deficient. TGH VI cites no evidence to support its statement of facts, probably for a reason. None of “lettered” exhibits are attached to the opposition. Neither of TGH VI's two declarations or two requests for judicial notice are cited in the memorandum. More egregiously, TGH VI tries to persuade the Court with arguments about entities which do not exist: “Temple Garden Homes for the Developmentally Disabled, Inc. I” (A's Opp. Mem, 4:25); “Temple Garden Homes for the Developmentally Disabled, Inc. II” (id., 4:27-28); “Temple Garden Homes for the Develop- mentally Disabled, Inc. lll” (id., 5:2-3); and “Temple Garden Homes for the Developmentally Disabled, Inc. IV” (id., 3:10-11). (Evid. Code §§ 451 (f), 452 (c), (9) & (h), 453 (a) & (b); and Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1215 [granted re "business entity detail from the California Secretary of State's Web site"]; California Secretary of State's website [https://businessearch.sos.ca.gov/ CBS/ SearchResults ?filing=&SearchType= CORP&Search Criteria=Temple+Garden+Homes].) b. TGH VI’'s opposition separate statement is procedurally deficient. TGH VI failed to comply with CRC Rule 3.1350 (f)(3) requiring each fact to “be followed by the evidence that establishes the fact" with reference to “page, and line numbers.” The Court is not “required to wade through a ‘full box of Xerox paper or roughly 5000 sheets’ in an attempt to discern whether any material facts remained undisputed.” (Collins v. Hertz Corp. Northern v. TGH VI Page 5 of 8 Reply -_- N O N ND ND ND ND N N ND A a e s e a ma a aa a a e e 0 ~ N oO Oo bh W O N ~~ O O Ww Oo N N O O O h h Ww N N ~~ Oo © © ~N oOo oa hh ww N (20086) 144 Cal.App.4th 64, 75.) “[B]y referring the court generally to the voluminous body of opposing evidence [TGH VI essentially left] those facts undisputed.” (Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 319.) TGH VI's failure to file an adequate separate statement is a sufficient ground to grant the motion. (Code Civ. Proc., § 437c (b)(3); Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175, 179.) TGH V/s failure to comply with the law causes an unnecessary consumption of finite judicial resources. Cc. TGH VI's objections are an eyesore. TGH VI's objections are not in the mandatory format. (Cal Rule of Court, rule 3.1354 (b).) The proposed order is not in the mandatory format. (/d., (c).) The order is not separate from the objections. (/d., (b).) TGH VI fails to reference the objection number in its separate statement. (/bid.) The objections are not "numbered consecutively"; there are at least ten objections numbered as "1" making it meaningless for the Court to sustain or overrule objection number 1. (Ibid.) The objections fail to state the exhibit, page and line number. (/d., (b)(2).) For the objections to the Thornberry and LelLievre declarations TGH VI fails to "Quote or set forth the objectionable statement" (id., (b)(3)), and several "quotes" from the Hopp declaration are missing words (ibid). TGH VI's objection arguments also violate the law against speaking objections; for example "Mr. Hopp's quoted declaration is not an issue in the case" or "Questions remain" or the declaration of Northern's counsel "is not probative of . . .whether . . TGH #6 [was] insured." (/d., (b)(4); People v. Pearson (2013) 56 Cal.4th 393, 430-431.) TGH VI's "Lacks Foundation" objections to documents deemed genuine (#s 90 - 101 & 103) is response to requests for admissions is specious.(Code Civ. Proc., § 2033.410 (a).) It also got the exhibit numbers wrong (#s 2-15). As rule 3.1354 has been law since 1984, Northern assumes the disarray is intentional especially when the opposition was filed late and served improperly. "[W]hen evidentiary objections are in a proper form, a trial court must rule on the objections." (Vineyard Springs Estate v. Sup. Ct. (2004) 120 Cal.App.4th 633, 642.) It follows where, as here, evidentiary objections are not in a proper form, a trial court need not rule on the objections. If the Court does not expressly rule on TGH VI's 174 objections, it will be presumed they have been overruled. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.) Northern v. TGH VI Page 6 of 8 Reply © 0 ~N O O Oo Hh Ww N N - N N O N D ND ND ND N N ND NN A a a 2 = =a a a a a 0 ~N oO Oo A W O N ~~, O O ©W 0 0 N N oO O o h Ww N O d. TGH VI's separate statement of additional material facts in dispute is legally deficient. Northern cannot agree or disagree additional facts are undisputed because TGH VI's “Separate Statement of Controverted Facts” states no facts, just a series of questions labeled “Dispute” 1 through 5. (Cal. Rules of Court, rule 3.1350 (f)(3).) “Second, only material factual disputes bear any relevance: ‘no amount of factual conflict upon other aspects of the case will preclude summary judgment.” (Christina C. v. County of Orange (2013) 220 Cal. App.4th 1371, 1379.) No amount of conflict “Whether Plaintiff's claim against TGH, Inc. should include assessments on the Audit Report of four companies, three whereof are uninsured (TGH #4; TGH #5 and TGH #6); whether just merger of claims constituting double compensation and unjust enrichment” [sic] (A's Sep. Statement of Controverted Facts, p. 3, top |) has any tendency in reason to prove or disprove a material fact of consequence to Northern's motion for summary adjudication. (Evid. Code, § 350.) CONCLUSION TGH VI's “Application” arguments are not determinative. “An application for insurance is a proposal.” (Linnastruth v. Mutual Ben. Health & Acci. Asso. (1943) 22 Cal.2d 216, 219.) An application is not part of the policy: "This policy includes the Declarations and all endorsements and schedules issued by us to be part of this policy and constitutes the entire contract of insurance." (Ex. 90, p. 1, A.) "This policy covers all of your California workplaces listed in the Declarations; and it covers all of your other California workplaces unless you have other insurance or are self-insured for such California workplaces." (/d., J] D.) TGH VI cites no authority for its claim implied or oral insurance contracts “do not exist and have never been enforced.” (A's Mem., (2d) p. 1, ll. 18-19.) Insurance policies are not within the Statute of Frauds. (Civ. Code, § 1624.) TGH VI's arguments regarding joint and several liability, judicial estoppel, and expressio unius est exclusio alterius are equally unpersuasive. Joint and several liability is presumed. (Civ. Code, § 1659; Olson v. Foster (1941) 42 Cal. App.2d 493, 498-499.) With regards to judicial estoppel, TGH VI fails to identify Northern v. TGH Vi Page 7 of 8 Reply © oe ~ RD or ob w nN -- N O O N O N O N O N N N N D N A ea eas e a a a a a a a 0 ~N oO Oo BA W N =m, O O © Oo N O O D D Ww N a o Northern's two positions that are totally inconsistent with each other where Northern's first position was not taken as a result of ignorance, fraud, or mistake. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) And TGH VI makes no claim some triable issue involves the expressio unius est exclusio alterius interpretation of a statutory scheme; the argument does not rise from the undisputed facts. (Evid. Code, § 350.) Northern is not suing on contract. Northern is suing on the common counts. “As Witkin states in his text, ‘A common count is proper whenever the plaintiff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished. It makes no difference in such a case that the proof shows the original transaction to be an express contract, a contract implied in fact, or a quasi-contract." (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958 [3 Witkin, CAL. PROCEDURE (2d ed. 1971) Pleading, § 423, p. 2085].) Northern need not “prove an express agreement by defendant that the account should be treated as an open account.” (Mercantile Trust Co. v. Doe (1914) 26 Cal.App. 246, 254.) “A book account is created by the agreement or conduct of the parties in a commercial transaction.” (H. Russell Taylor's Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 728.) The burden shifted to TGH VI to produce admissible evidence showing a triable issue as to the book account and the account stated to keep the multi-day jury trial on calendar. TGH VI failed to meet that burden. Plaintiff Northern California Collection Service, Inc.’s motions should be granted. Dated: _(o~% ~2v2s Andre J. Lelfevre, Attorney for Pramtit Northern Northern v. TGH Vi Page 8 of 8 Reply
