Plaintiffs Dinh Van Nguyen, Cindy Nguyen, Qui Nguyen, Joseph Nguyen, Thong Nguyen, Lieu Nguyen, and Kelly Nguyen’s motion to withdraw deemed admissions is granted.

The motion of Defendants Gui Yun Zhang dba Van’s Mini Market, Min Ha, and Cao Wen for summary judgment on Plaintiff’s Third Amended Complaint (“TAC”) or summary adjudication is denied.

Motion for Relief from Deemed Admissions

After a “deemed admitted order” has been entered, the party in default may seek relief from waiver by filing a motion to withdraw or amend the “deemed admissions” under Code of Civil Procedure section 2033.300.  (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 978-983.)  For this motion, the moving party must show that the admission was the result of mistake, inadvertence, or excusable neglect, and that no substantial prejudice to the requesting party will result from the withdrawal.  (Code Civ. Proc., § 2033.300, subd. (b).)  This showing is similar to that required for relief pursuant to Code of Civil Procedure section 473.  (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419.)  This provision is designed to eliminate undeserved windfalls and to further the policy favoring resolution of lawsuits on the merits.  (Id. at p. 1420.)  Any doubts should be resolved in favor of the party seeking relief.  (Ibid.)

Consistent with the California Supreme Court’s discussion in New Albertsons, Inc. v. Superior Court, supra,  168 Cal.App.4th 1403, in Carli v. Superior Court (1984) 152 Cal.App.3d 1095, the court granted relief from deemed admissions when counsel failed to timely respond to request for admissions (“RFAs”) due to a dictation tape of the draft responses being misplaced during tumult at counsel’s office.  Such a circumstance was found to be excusable neglect.  (Carli v. Superior Court, supra, 152 Cal.App.3d at pp. 1097-1099.)

Here, the circumstances leading to the deemed admissions are not unlike those in Carli in that the tumult and confusion of the situation led to Plaintiffs being unware that that they were leaving their discovery obligations unmet.  Plaintiffs’ relationships with counsel was breaking down and, according to Cindy Nguyen, Plaintiffs did not know about the request for admissions, the failure to respond, or even the motion to deem admitted.  The court finds excusable neglect.

Defendants have asserted prejudice, but have not identified anything specific, such as any discovery they would have undertaken but did not, due to the deemed admissions.  Accordingly, the motion to withdraw deemed admissions of Plaintiffs, is granted.

Motion for Summary Judgment/Adjudication

Evidentiary Objections

As to Alex Balian’s declaration, Defendants’ objection nos. 3, 4, 5, 7, 9, 12, 13, 14, and 16 are overruled.  The remaining objections are sustained.

The single objection to a portion of the Dang Deposition is overruled.

The objections to portions of Cindy Nguyen’s Deposition (nos. 1-5) are sustained.

Any remaining objections are not ruled upon as immaterial to the court’s disposition. (Code Civ. Proc., § 437c, subd. (q).)

Applicable Law

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”  (Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4th 826, 850.)  “A prima facie showing is one that is sufficient to support the position of the party in question.”  (Id. at p. 851.)  A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action.  (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint.  (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law.  (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.)  Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)  Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)


The general no-duty-to-rescue rule is a well-established principle.  As a general rule, an individual or entity does not have a duty under the common law to come to the aid of another person whom the individual or entity has not injured.  (Verdugo v. Target Corporation (2014) 59 Cal.4th 312, 335.)  However, a different rule is applicable with regard to the common law duty that a business entity owes to its patrons on its business premises.  (Ibid.)  “Because of the so-called ‘special relationship’ between a business entity and its patrons, past California cases have recognized that a business may have a duty, under the common law, to take reasonable action to protect or aid patrons who sustain an injury or suffer an illness while on the business’s premises, including ‘undertak[ing] relatively simple measures such as providing “assistance [to] their customers who become ill or need medical attention . . . .” ’ [Citations.].”  (Ibid.) “[P]lacing a 911 call is a well-recognized and generally minimally burdensome method of seeking assistance. . . . [W]e find that as a general matter a proprietor’s special-relationship-based duty to its patrons or invitees includes an obligation to make such a call, or to take other similar minimal measures.”  (Morris v. De La Torre (2005) 36 Cal.4th 260, 277.)

In this case, at a minimum, Defendants were required to summon emergency medical assistance for Plaintiff’s decedent.  Defendants essentially contend that they met this duty when they called 911, but ended the call without asking for an ambulance because Plaintiffs’ decedent looked fine, and she said she was fine and did not want one.  But the evidence shows that there are triable issues of material fact about Plaintiffs’ decedent’s condition, and whether she could have, or should have been deferred to, if she told Defendants that she was alright and did not want an ambulance.  (Wen Depo. at pp. 11, 68, 79, 83-86, 97, 113, 116-117, 118, 128; Ha Depo. at pp. 29, 40, 41, 55-56, 58, 59, 60, 61, 62, 63, 72, 73, 74, 75, 95; Zhang Depo. at p. 39; Dang Decl., ¶ 6; Baird Decl., Exh. 9 [videotape]; Baird Decl., Exhs. 12 [911 call] and 15 [translation]; Baird Decl., Exhs. 13 and 14 [decedent only spoke Vietnamese].)

Ha and Wen argue that, nonetheless, they are immune from liability as Good Samaritans under Health and Safety Code section 1799.102, subdivision (b)(2).  It is unclear if the incident at issue constitutes an emergency for purposes of section 1799.102, subdivision (b)(2).  And, in any event, Wen is a co-owner of Van’s Mini Market with Zhang.  (Wen Depo. at 12, 20.)  His liability, therefore, is equal to hers as a retailer with a special relationship to Plaintiffs’ decedent.  (See Street v. Superior Court (1990) 224 Cal.App.3d 1397, 1402 [finding owner of facility was not a volunteer for purposes of Good Samaritan rule].)  Nothing in section 1799.102 changes existing duties.  (Health & Saf. Code, § 1799.102, subd. (c).)

Even assuming and emergency situation and that Ha, as an employee paid by Van’s Mini Market, can be treated as a volunteer for purposes of the Good Samaritan Rule, Health  and Safety Code section 1799.102 excludes from immunity any person who renders aid but acts, or omits to act, in a way constituting gross negligence or willful or wanton misconduct.  (Health & Saf. Code, § 1799.102, subd. (b)(2).)  It is for the jury to weigh the evidence to determine whether that standard was met.

To the extent Defendants seeks summary adjudication of various descriptions of a duty or for lack of substantial cause, they rely on the same assertions of fact discussed above and for which Plaintiffs’ evidence establishes a triable issue of fact.  The Motion is denied.

Plaintiffs shall give notice of the ruling.