17-CIV-04683 PILAR PODESTA VS. FOREVER YOUNG ASSISTED LIVING INC., ET AL

PILAR PODESTA FOREVER YOUNG ASSISTED LIVING, INC.
JAY WITHEE KATHLEEN M. HURLY

MOTION TO ADD PUNITIVE DAMAGES TENTATIVE RULING:

The Motion of Defendant Forever Young Assisted Living, Inc. (“Defendant”) for Summary Judgment or, in the alternative, Summary Adjudication, is ruled on as follows:

(1) The Court previously denied Defendant’s Motion for Summary Judgment, and Motion for Summary Adjudication to the First, Second and Third Causes of Action. (See Court’s September 24, 2018 Minute Order.) The Court continued the Motion for Summary Adjudication as to the claim for punitive damages though, because Plaintiff Pilar Podesta (“Plaintiff”) indicated that she propounded discovery that pertains to the issue of Colondres’ and Rodriguez’s discretionary authority and thus whether they were managing agents of Defendant. (Id.) Defendant’s responses to this discovery were due on September 13, 2018, which was after Plaintiff’s original opposition was due. (See Withee Decl.) The Court gave Plaintiff until September 28, 2018 to file a supplemental opposition, and give Defendant until October 2, 2018 to file a supplemental reply.

(2) After reviewing Plaintiff’s supplemental opposition, Defendant’s Motion for Summary Adjudication to the claim for punitive damages is DENIED. “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc., § 437c(h) (emphasis added.) The Court previously continued this motion because Plaintiff established that facts essential to justify opposition may exist, but could not be presented with her opposition.

After continuing the hearing for Plaintiff to present such facts, Plaintiff now demonstrates that “facts essential to justify opposition may exist, but cannot, for reasons stated, be presented….” (See Withee Decl.) Specifically, Plaintiff propounded Special Interrogatories seeking information regarding Colondres’ and Rodriguez’s job titles and duties. (See Withee Supp. Decl., Exh. 1, Special Interrogatories nos. 11, 12.) In response to these interrogatories, on September 13, 2018, Defendant provided only objections and further stated that “Defendant will not divulge information that is protected by…constitutional right to privacy.” (See Withee Supp. Decl., Exh. 1, Defendant’s Responses to Special Interrogatories nos. 11, 12.) Thus, based on Defendant’s failure to provide Plaintiff with full and complete interrogatory responses, the Court finds that denial of the motion is warranted.

The Court is aware that Defendant, after apparently abandoning the asserted privacy right objection as to Colondres’ and Rodriguez’s job titles and duties, subsequently provided amended responses on September 26, 2018, but notes that these responses were unverified. (See Withee Supp. Decl. ¶¶ 5-7.) Unsworn responses are tantamount to no responses at all. (Appleton v. Sup. Ct. (1988) 206 Cal.App.3d 632, 635.) Thus, Plaintiff could not rely on these unverified responses in opposing Defendant’s motion. While Defendant indicates that it then served verified amended responses on October 1, 2018, these responses were served after Plaintiff’s supplemental opposition was due on September 28, 2018. Thus, the Court has not considered this new evidence that was offered for the first time in reply because Plaintiff has not had an opportunity to respond to it and therefore considering such evidence would violate Plaintiff’s due process rights. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [court’s consideration of evidence that was not filed until after opposing party had responded to issues raised in summary judgment motion violated opposing party’s due process rights because opposing party was not fully advised of issues to be addressed and notice of what facts must be rebutted in order to prevail].)

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.