MEMORANDUM OF LAW IN SUPPORT (Motion #019) - Memorandum of Law in Support of Motion to Reargue (Landa Respondents) July 10, 2023 (2024)

Case

Damaris Santos v. Extell West 57th Street Llc

Aug 02, 2024 |Torts - Other (Premises) |Torts - Other (Premises) |157047/2024

Case

George Falzon v. Lorenzo Andres Jordan

Jul 31, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |715721/2024

Case

Ahmaud Persaud v. Anissa D. Holness

Aug 01, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |613518/2024

Case

Rosa Duque v. Kallie Combs, D.O.

Jul 31, 2024 |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |715644/2024

Case

Joel F. Vargas v. Uniware Houseware Corp., John Doe , name fictitiously given to the driver of the motor vehicle

Aug 06, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |521138/2024

Case

Robina Faisal v. The Ford Foundation

Jul 31, 2024 |Torts - Other (Premises) |Torts - Other (Premises) |156979/2024

Case

Uzair Nasir v. Crystal G. Spencer

Aug 06, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |521089/2024

Case

Susan Jacobson v. Atria Senior Living Inc., Atria Park Of Great Neck d/b/a Atria Great Neck, Atria Management Company Llc, The Village Of Great Neck Plaza

Aug 01, 2024 |Torts - Other (Personal Injury) |Torts - Other (Personal Injury) |613564/2024

Case

Lincol Javier Varela Izaguirrez v. Jose Garcia Granados, Alexander G. Portillo

Jul 31, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |618934/2024

Ruling

TERESA CISNEROS VS ALEXANDER ARJOMAND

Aug 06, 2024 |20STCV26208

Case Number: 20STCV26208 Hearing Date: August 6, 2024 Dept: 96 Plaintiff moves to deem notice of appeal filed as of June 14, 2024. There is no opposition. The motion is granted. Defendant moves for costs based on post 998 costs. The court informed counsel that the court had insufficient foundation for post-998 costs and allowed Defendant to file by August 2, 2024 sufficient support for post 998 costs. No papers have been filed. Defendants motion for costs is denied without prejudice.

Ruling

RODOLFO ABUNDIZ BRAVO, AN INDIVIDUAL, ET AL. VS OSCAR BAUTISTA, ET AL.

Aug 07, 2024 |23NWCV00451

Case Number: 23NWCV00451 Hearing Date: August 7, 2024 Dept: C Bravo, et al. VS. bautista, et al. CASE NO.: 23NWCV00451 HEARING: 8/7/24 @ 9:30 A.M. #3 TENTATIVE ORDER Defendants motion to strike is DENIED. Moving Party to give NOTICE. This is about a tractor trailer and car accident that resulted in two deaths. Defendants Oscar Bautista and Bautistas Trucking Midwest, Inc. owned and operated a truck which was towing a 2016 utility trailer. (SAC, ¶¶ 15, 17.) On September 12, 2022, at approximately 4:55 a.m., the truck collided with a car occupied by Plaintiff Rodolfo Abundiz Bravo and decedents Edgar Rivelino Lopez Vasquez and Jorge Cisneros Aguila, slamming it into the rear end of the car. (SAC, ¶ 17.) Plaintiff Martha Leticia is the wife of decedent Jorge Cisneros Aguila. (SAC, ¶ 5.) Plaintiff Inksally Rodriguez Ramirez is the wife of decedent Edgar Rivelino Lopez Vasquez. (SAC, ¶ 6.) Plaintiffs Jorge Arturo Cisneros Renteria; Ana Patricia Cisneros Renteria; Genesis Cisneros Renteria, a minor by and through her Guardian Ad Litem, Martha Leticia Renteria Ramirez; and Evelyn Y. Cisneros Renteria are the surviving children of decedent Jorge Cisneros Aguila. (SAC, ¶ 7.) Plaintiffs Jesse Jack Lopez Rodriguez and Carlos Lopez, a minor by and through his Guardian Ad Litem, Inksally Rodriguez Ramirez, are the surviving children of decedent Edgar Rivelino Lopez Vasquez. (SAC, ¶ 8.) Plaintiffs further allege that Defendant Bautista was driving the vehicle past his mandated maximum hours-of-service under Federal Motor Carrier Safety Regulations and that he had falsified his hours-of-service logs. (SAC, ¶ 18.) Plaintiffs sue for the following: (1) wrongful death; (2) survival action; (3) negligence; (4) negligence per se; (5) loss of consortium; and (6) negligent entrustment. Defendants Oscar Bautisa and Bautistas Trucking Midwest, Inc. move to strike the punitive damages allegations. Specifically, they move to strike the following: 1. Paragraph 18 of the second amended complaint; 2. Paragraph 25 of the second amended complaint; 3. Paragraph 40 of the second amended complaint; 4. Prayer for Relief, paragraph 8, of the second amended complaint. Legal Standard Motions to strike are used to reach defects or objections to pleadings which are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (Code Civ. Proc., §§ 435, 436 & 437.) A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) Request for Judicial Notice Plaintiffs request judicial notice of the complaint filed in Price, et al. v. Bautista, et al., Case No. CIVWB2133866 in San Bernardino Superior Court. A court may take judicial notice that certain documents were filed in prior litigation, or that certain factual findings were made, but generally may not take judicial notice of the contents of those filings, or of the factual findings themselves. (See, e.g., Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal. App.4th 471, 483-484.) Thus, the Court grants the request. Meet-and-Confer Defendants satisfied the meet-and-confer requirements. (Decl. Banuelos, ¶¶ 7-8; Code Civ. Proc., § 435.5, subd. (a)(3).) Discussion Defendants move to strike the allegations referenced above on the grounds that Plaintiffs allegations are conclusory, and they do not demonstrate that Defendants conduct is anything but unintentional, inadvertent, and innocent. Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where the defendant has been guilty of oppression, fraud, or malice, express or implied . . .. Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. Finally, fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294.) Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required. Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences). Thus, it has been held that the malice required by § 3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. (Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 894.) Where the defendants wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action for punitive or exemplary damages. (Ibid.) Something more than the mere commission of a tort is always required for punitive damages. (Ibid.) There must be circ*mstances of aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. (Id., at 894-895.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) To justify an award of punitive damages based on conscious disregard, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that it willfully and deliberately failed to avoid those consequences. (Taylor v. Super. Ct., supra, 24 Cal.3d 890 at pgs. 895896.) Here, Plaintiffs allege that Defendant drove past his mandated maximum hours of service under Federal Motor Carrier Safety Regulations, which resulted in the death of the two decedents. (SAC, ¶ 18.) Plaintiffs allege that Defendant willfully, wantonly, and with conscious disregard for the safety of others decided to continue to operate his truck. (SAC, ¶ 25.) Plaintiffs further allege that Defendant falsified his hours-of-service logs to avoid motor carrier safety regulations that designed to prevent fatigued and inattentive driving. (SAC, ¶ 18.) Based on the above, as well as the time of the collision and the fact that Defendant rear ended the Plaintiff occupants, the Court finds that Plaintiff has sufficiently alleged that Defendant was aware of the probable dangerous consequences of driving past his mandated maximum hours of service, and that he willfully and deliberately did not avoid those consequences. Defendants also move to strike the reference in Paragraph 40 of the SAC to California Highway Patrol Officer B. Voegeles recommendation that Defendant Bautista be charged with Vehicular Manslaughter with Gross Negligence in violation of Penal Code § 192(c)(1). According to Defendants, Plaintiffs SAC relies entirely upon the conclusions contained in the officers report. Because the report itself is inadmissible (See, Evidence Code § 1271, Law Revision Commission Comments) any reference to the report in the SAC should be stricken. However, the grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (CCP § 437.) Defendants argument relies upon extrinsic evidence which may not be considered by the Court at this stage of the proceedings. Thus, the motion to strike is DENIED.

Ruling

CHAD PERRIGO, ET AL. VS JORGE EDMONDO CASTANEDA RODRIGUEZ

Aug 08, 2024 |21STCV20196

Case Number: 21STCV20196 Hearing Date: August 8, 2024 Dept: F43 Dept. F43 Date: 8-8-24 Case #21STCV20196, Chad Perrigo, et al. vs. Jorge Edmondo Castaneda Rodriguez Trial Date: 3-24-25 MOTION FOR RECONSIDERATION MOVING PARTY: Defendant Thunder Ridge Transport Inc. RESPONDING PARTY: Plaintiffs Chad and Alexa Perrigo RELIEF REQUESTED Motion for Reconsideration of the Courts May 8, 2024, Minute Order granting in part Plaintiffs Motion for Summary Adjudication. RULING: Motion for reconsideration is denied. SUMMARY OF ACTION On April 28, 2021, Plaintiff Chad Perrigo (Chad) was involved in a collision with a semi-truck driven by Defendant Jorge Castaneda Rodriguez (Castaneda). As a result of the collision, Chad suffered injuries. At the time of the collision, Defendant Montecristo Trucking, LLC (Montecristo) owned the tractor and Defendant Fames Transport, Inc. (Fames) owned the attached trailer. Defendant Thunder Ridge Transport Inc. (Thunder Ridge) is an interstate US Mail carrier that contracted with the USPS to deliver packages. Thunder Ridge subcontracted the USPS Contract to Fames. Fames assumed delivery of packages under the USPS Contract. Fames subcontracted the USPS Contract to Montecristo and did so without receiving contractually-required permission from Thunder Ridge. Montecristo was acting as Fames independent contractor while performing under the USPS Contract. Casteneda is the sole owner of Montecristo. Plaintiffs Chad and Alexa Perrigo (Plaintiffs) filed their Third Amended Complaint on March 30, 2023, alleging causes of action related to the injuries they suffered because of the collision. Thunder Ridge filed its answer to Plaintiffs complaint on August 10, 2023. In its answer, Thunder Ridge asserted comparative fault as its First and Sixth Affirmative Defenses, and apportionment as its Second Affirmative Defense. Furthermore, in response to a special interrogatory asking whether anyone else, other than itself, was at fault, Thunder Ridge answered that Montecristo and Castenda were at fault. Castaneda admitted at deposition that he did not stop or check for oncoming traffic before turning left without signaling. Castaneda also admitted that he did not witness Plaintiff Chad Perrigo doing anything wrong at the time of the incident and that Perrigo had the right of way. Plaintiffs filed a motion for summary adjudication for the three above-mentioned Affirmative Defenses on January 24, 2024. The Court issued its minute order for that motion on May 8, 2024, granting the motion on the issue that, as a matter of California decisional law, Thunder Ridge owed a nondelegable to Plaintiffs as a common carrier. The court incorporates that ruling here by reference. On May 21, 2024, Thunder Ridge filed this motion for reconsideration based on a federal district court case in Texas which recently found that, under federal law regulating motor carriers, a trucking company was not the employer of a third trucking company that the first companys independent contractor hired and with which the initial trucking company had no contractual relationship. (Morales v. OK Trans, Inc. (S.D. Tex. 2024) 2024 WL 1349874 (Morales).) Thunder Ridge argues that this case shows that it did not have a nondelegable duty for Castenedas negligence after Fames subcontracted its scope of work to him. Plaintiffs argue in their opposition that Thunder Ridge was a suspended corporation when it filed its answer and is still a suspended corporation, so it cannot defend itself in civil suits. Next, Plaintiffs argue that Morales does not count as new law because the decision was issued on March 29, 2024, before this motion was heard and before the Court issues its decision. Plaintiffs also argue that the issue of nondelegable duty is a matter of state law. Finally, Plaintiffs argue that the Morales opinion does not apply because it was applying Texas law. Thunder Ridge argues in its reply that it is incorporated under the laws of Missouri and conducts interstate business, so it is not required to be registered in California. Thunder Ridge also argues that Morales is new law and is directly on point and consistent with existing law. ANALYSIS Motions for reconsideration are allowable pursuant to CCP § 1008(a), which states that When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circ*mstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circ*mstances, or law are claimed to be shown. CCP § 1008(a) requires that a motion for reconsideration be based upon new or different facts, circ*mstances, or law. Thunder Ridge is arguing that Morales is the new law in question and the basis for the motion for reconsideration. Plaintiffs contend it is not new law because it was decided more than a month before the courts ruling on the nondelegable duty issue. Setting aside whether Morales is in fact new law, the court rejects Thunder Ridges reliance on Morales for three reasons. First, unpublished federal court decisions have only persuasive, not precedential value. (Barriga v. 99 Cents Only Stores, LLC (2020) 51 Cal.App.5th 299, 316; Cal. Rules of Court, rule 8.115(a).) Second, Morales has been certified for interlocutory appeal because there are substantial grounds for a different result. (Morales v. OK Trans, Inc. (S.D. Texas, June 18, 2024) 2024 WL 3223676.) Third, at issue in Morales was the interpretation of federal statutory law governing the definition of employer under the Federal Motor Carriers Act. Nowhere in that decision can the words duty, nondelegable, or any possible permutation of delegate be found. The nondelegable duty doctrine is a judicially created rule of California law, and as discussed in the courts previous ruling on this issue, is heavily animated by notions of public policy. This court continues to conclude that the public policy concerns that underlie the nondelegable duty doctrine call for its application in this case. Although equity may place most if not all the blame on Fames as opposed to Thunder Ridge, that notion ignores the possibility of an intermediate subcontractor such as Fames being uninsured, underinsured, or insolvent. The court believes that the equities between Fames and Thunder Ridge are best resolved by way of an action for indemnity. Because Morales is not controlling, it would not qualify as new law for purposes of a motion for reconsideration under CCP § 1008. Thunder Ridges motion for reconsideration of the May 8, 2024, Minute Order is denied. As for Plaintiffs argument that Thunder Ridge cannot defend this action because it is suspended with the California Franchise Tax Board, it is a Missouri corporation registered in the state of Missouri and it is doing interstate business. That means that it is not required to obtain a certificate of qualification from the California Secretary of State, as only foreign corporation doing intrastate business are required to obtain one. (Cal. Corp. Code § 2105(a) [A foreign corporation shall not transact intrastate business without having first obtained from the Secretary of State a certificate of qualification.].) CONCLUSION Thunder Ridges motion for reconsideration is denied. Moving party to give notice. Dept. F43 Date: 8-8-24 Case #21STCV20196, Chad Perrigo, et al. vs. Jorge Edmondo Castaneda Rodriguez Trial Date: 3-24-25 MOTION FOR SUMMARY JUDGMENT MOVING PARTY: Defendant Thunder Ridge Transport Inc. RESPONDING PARTY: Plaintiffs Chad and Alexa Perrigo RELIEF REQUESTED Motion for Summary Judgment RULING: Motion for summary judgment is granted in part and denied in part. SUMMARY OF ACTION On April 28, 2021, Plaintiff Chad Perrigo (Chad) was involved in a collision with a semi-truck driven by Defendant Jorge Castaneda Rodriguez (Castaneda). As a result of the collision, Chad suffered injuries. At the time of the collision, Defendant Montecristo Trucking, LLC (Montecristo) owned the tractor and Defendant Fames Transport, Inc. (Fames) owned the attached trailer. Defendant Thunder Ridge Transport Inc. (Thunder Ridge) is an interstate US Mail carrier that contracted with the USPS to deliver packages. Thunder Ridge subcontracted the USPS Contract to Fames. Fames assumed delivery of packages under the USPS Contract. Fames subcontracted the USPS Contract to Montecristo. Montecristo was acting as Fames independent contractor while performing under the USPS Contract. Casteneda is the sole owner of Montecristo. Plaintiffs Chad and Alexa Perrigo (Plaintiffs) filed their Third Amended Complaint on March 30, 2023, alleging causes of action related to the injuries they suffered because of the collision. Thunder Ridge filed its answer to Plaintiffs complaint on August 10, 2023. In its answer, Thunder Ridge asserted comparative fault as its First and Sixth Affirmative Defenses, and apportionment as its Second Affirmative Defense. Plaintiffs filed a motion for summary adjudication for the three above-mentioned Affirmative Defenses on January 24, 2024. The Court issued its minute order for that motion on May 8, 2024, granting the motion on the issue that Thunder Ridge owed a nondelegable to Plaintiffs as a common carrier. On February 14, 2024, Thunder Ridge filed a motion for summary judgment on the issue that it does not owe a duty to Plaintiffs. Plaintiffs oppose Thunder Ridges motion for summary judgment on the basis that it does owe them a nondelegable duty and because the Court already found that Thunder Ridge owes Plaintiffs a nondelegable duty in ruling on Plaintiffs motion for summary judgment. Thunder Ridge argues in its reply that the Court did not decide whether it could be vicariously liable for Montecristo and/or Castaneda, only for Fames. However, in finding that Thunder Ridge owed a nondelegable duty to Plaintiffs through Fames, that, by its very nature, extends to Montecristo and Castaneda. Thunder Ridges Request for Judicial Notice: Thunder Ridge requests that the Court take judicial notice of documents filed in this case, including Plaintiffs Third Amended Complaint and Plaintiffs Separate Statements. The Court takes judicial notice of these documents. Plaintiffs Request for Judicial Notice: Plaintiffs have requested that the Court take judicial notice of two company snapshots from the SAFER website and judicial notice of the Courts minute order. The Court takes judicial notice of the minute, but declines to take judicial notice of the snapshots from the SAFER website. Plaintiffs Evidentiary Objections: Sustained: 7, 8, 9, 10, 11, 12 Overruled: 5, 6, 13 Defendant Thunder Ridges Evidentiary Objections: Sustained: 1, 2, 3, 4, 5, 6 Overruled: None ANALYSIS The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The pleadings frame the issues for motions, since it is those allegations to which the motion must respond. (Citation.) (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork. (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).) Issue 1 On the issue of whether Thunder Ridge owed a duty to Plaintiffs for purposes of the First Cause of Action for Negligence, this Court previously found that Thunder Ridge does, in fact, owe a nondelegable duty to Plaintiffs. In the Courts May 8, 2024, Minute Order, the Court wrote: Finding that Thunder Ridge had a nondelegable duty as a matter of law best serves the public policy objectives that underly the doctrine: further encouraging common carrier trucking companies to ensure that their subcontractors are complying with state and federal safety regulations, while protecting the public from financially irresponsible subcontractors. The court recognizes the abstract possibility of cases where the initial subcontractor has set in motion an extended chain of multiple unauthorized subcontractors, but that is not this case. Furthermore, the court stresses that its ruling is limited to the issue of whether a nondelegable duty exists. It does not consider whether Fames or any of the other Trucking Defendants were in fact negligent. (May 8, 2024, Minute Order.) For Thunder Ridges issues concerning duty, the Court reaffirms its previous ruling that Thunder Ridge owes Plaintiffs a nondelegable duty. Thunder Ridges motion is denied on this issue. Issue 2 Next, Thunder Ridge challenges Plaintiffs Second Cause of Action for Negligent Entrustment and argues that a party cannot negligently entrust a vehicle that it does not own. (See Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1063; see also Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 709.) Thunder Ridge did not own the semitruck driven by Castaneda. Therefore, Thunder Ridge could not have negligently entrusted the vehicle to Castaneda. Plaintiffs do not appear to address this argument in their opposition. Thunder Ridges motion is granted for this issue. Issue 3 Thunder Ridge also challenges Plaintiffs Third Cause of Action for Negligent Hiring, Supervision, and Retention. To be liable for this cause of action, a defendant must have hired the employee at issue. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) The evidence shows that Thunder Ridge did not hire Castaneda itself. Therefore, Thunder Ridge cannot be liable for negligent hiring, supervision, and retention. Plaintiffs also did not address this argument in their opposition. Thunder Ridges motion is granted for this issue. Issue 4 Thunder Ridge also moves for summary judgment on Plaintiffs Fifth Cause of Action for loss of consortium cause of action on the basis that it is derivative of Plaintiffs negligence claim. However, because the Court denied Thunder Ridges motion for the negligence cause of action, the Court also denies the motion for the loss of consortium cause of action. Issue 5 Finally, Thunder Ridge has moved to strike Plaintiffs request for punitive damages. A motion for summary judgment is not the appropriate pleading to move to strike a claim for punitive damages. Its motion explicitly states that the request for punitive damages should be stricken and uses the standard for a motion to strike. Thunder Ridge should have done this through a motion to strike or a motion for summary adjudication. (See CCP § 435(b); CCP § 437c(f).) Thunder Ridges motion is denied for this issue. CONCLUSION Thunder Ridges motion for summary judgment is granted for Plaintiffs Second and Third Causes of Action. Thunder Ridges motion is denied for Plaintiffs First Cause of Action, Fifth Cause of Action, and Plaintiffs request for punitive damages. Moving party to give notice.

Ruling

WORKU ASSEFA VS KRYSTELLE ANGIE ESPINOZA, ET AL.

Aug 08, 2024 |23TRCV03260

Case Number: 23TRCV03260 Hearing Date: August 8, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Thursday, August 8, 2024 Department M Calendar No. 7 PROCEEDINGS Worku Assefa v. Krystelle Angie Espinoza, et al. 23TRCV03260 1. Krystelle Espinozas Motion to Compel Responses to Form Interrogatories, Special Interrogatories, and Demand for Production of Documents, Set One, and Request for Sanctions TENTATIVE RULING Krystelle Espinozas Motion to Compel Responses to Form Interrogatories, Special Interrogatories, and Demand for Production of Documents, Set One, and Request for Sanctions is granted. Background Plaintiffs Complaint was filed on October 4, 2023. Plaintiff alleges the following facts. Plaintiff and Defendant were involved in a motor vehicle accident. Motions to Compel CCP § 2030.290 states: If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply&The party propounding the interrogatories may move for an order compelling response to the interrogatories. (CCP § 2030.290(b).) CCP § 2031.300 states: If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: The party making the demand may move for an order compelling response to the demand. (CCP § 2031.300(b).) Defendant served upon Plaintiff Form Interrogatories, Set One, Special Interrogatories, Set One, and Demand for Production of Documents, Set One, on December 27, 2023. (Decl., Terrence L. Cranert, ¶¶ 2-7.) Defendant contends that no responses were served to the discovery requests. (Id.) Plaintiff failed to file any written opposition to the motion. Therefore, the motion to compel responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Demand for Production of Documents, Set One, is granted. Plaintiff is ordered to serve responses without objections within 10 days of this date. Sanctions Defendants request for monetary sanctions is granted. Plaintiff is sanctioned the total amount of $667.00 which is the amount requested by Defendant less the amount for preparing the Reply since a Reply was not required. Sanctions are payable within 30 days of this date. Defendant is ordered to give notice of this ruling.

Ruling

Manford Williams vs. GHC OF WALNUT CREEK, LLC

Aug 05, 2024 |C24-00986

C24-00986CASE NAME: MANFORD WILLIAMS VS. GHC OF WALNUT CREEK, LLCHEARING ON DEMURRER TO: COMPLAINT FROM: GHC OF WALNUT CREEK, LLC AND LIFEGENERATIONS HEALTHCARE, LLCFILED BY: GHC OF WALNUT CREEK, LLC*TENTATIVE RULING:* Before the Court is a demurrer to the second, third, and fourth causes of action in plaintiffs’complaint, as well as motion to strike portions of plaintiffs’ complaint, filed by defendants GHC ofWalnut Creek, LLC dba Walnut Creek Skilled Nursing & Rehabilitation Center (hereinafter “GHC”) andLife Generations Healthcare, LLC. As discussed below, the demurrer is overruled. The motion to strike is denied. Defendantsshall file their answer on or before August 15, 2024. I. Factual Background Plaintiffs, Kia Campbell and Nicole Williams, are the daughters of Manford Williams, who diedon July 22, 2023 after having been in the care of defendants’ skilled nursing facility. Mr. Williams hadbeen a resident at defendants’ facility since 2013. He had entered the facility with numerous medicalconditions and “was wholly dependent on staff for eating, bed mobility, transfers, dressing, toileting,and personal hygiene.” (Complaint, ¶5.) The cause of Mr. Williams’ death was listed as “SacralDecubitus Ulcer (weeks).” (Complaint, ¶38.) Plaintiffs allege that staff were not providing proper pressure ulcer prevention protocol to Mr.Williams. Such protocol would have included, at a minimum, consistent and documented turning andrepositioning every two hours and as needed, timely application of pressure relieving devices such asa low air mattress, boots, and pillows to offload unrelieved pressure, as well as developing care plansthat detailed specific steps necessary to meet those goals and the guidelines for reassessment toevaluate the effectiveness of the care provided and to prompt changes in treatment as needed.(Complaint, ¶28.) Once the pressure ulcers developed, staff failed to provide proper woundtreatment such as an antibiotic treatment regimen, specialized bandages, a wound vacuum,debridement of his wound, pressure relieving devices, and failed to develop and follow a care planwith specific steps to evaluate the effectiveness of treatment. (Complaint, ¶29.) Plaintiffs also allegethat the facility was systematically and intentionally understaffed to put corporate profits overpatient care. (Complaint ¶¶10-11.) Plaintiffs filed this suit on April 11, 2024 alleging four causes of action or “counts”: (1)Negligence, (2) Elder Abuse and Dependent Adult Civil Protection Act ("EADACPA"), (3) Violations ofResident Rights Pursuant to Health and Safety Code § 1430(b), and (4) Wrongful Death. Following efforts to meet and confer, defendant demurs to the second, third, and fourthcauses of action on the basis that plaintiffs fail to state sufficient facts, and on uncertainty. Defendantalso moves to strike claims for attorney’s fees and punitive damages. Plaintiff opposes both motions, but requests leave to amend in the event the motions aregranted. Defendants have not filed a reply to either opposition. II. Demurrer A. Standard The limited role of a demurrer is to test the legal sufficiency of a complaint. It raises issues oflaw, not fact, regarding the form or content of the opposing party's pleading. (Donabedian v. MercuryIns. Co. (2004) 116 Cal.App.4th 968, 994.) A complaint will be upheld if it provides the defendant with“notice of the issues sufficient to enable preparation of a defense.” (Doe v. City of Los Angeles (2007)42 Cal.4th 531, 549-550.) For purposes of a demurrer, all properly pleaded facts are admitted as true. (Aubry v. Tri-CityHospital Dist. (1992) 2 Cal.4th 962, 967.) Only the face of the pleading attacked and matters subjectto judicial notice are considered in ruling on a demurrer. (Code Civ. Proc. § 430.30(a).) The Court givesthe complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blankv. Kirwan (1985) 39 Cal.3d 311, 318.) B. Discussion 1. Elder Abuse (2nd C/A) Defendants demur to the second cause of action for elder abuse. The basis for the demurreris plaintiffs' failure to allege facts sufficient to state an elder abuse claim, as well as uncertainty. i. Failure to Allege Sufficient Facts The elements of a cause of action under the EADACPA are statutory. (Intrieri v. Superior Court(2004) 117 Cal.App.4th 72, 82.) Welfare and Institutions Code section 15600 et seq. (“Elder Abuse Act”) govern elder abuseclaims. (Worsham v. O’Connor Hospital (2014) 226 Cal.App.4th 331, 336.) “‘The Elder Abuse Actmakes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘personresiding in this state, 65 years of age or older.’” (Ibid., quoting Welf. & Inst. Code, § 15610.27.) Abuseis defined, in part, as “[p]hysical abuse, neglect, abandonment, isolation, abduction, or othertreatment with resulting physical harm or pain or mental suffering.” (Welf. & Inst. Code, §15610.07(a)(1).) Plaintiff must also establish that the defendant committed the abuse withrecklessness, oppression, fraud, or malice. (Welf. & Inst. Code, § 15657; Winn v. Pioneer MedicalGroup, Inc. (2016) 63 Cal.4th 148, 156.) “Neglect within the meaning of Welfare and Institutions Code section 15610.57 covers anarea of misconduct distinct from professional negligence.” (Covenant Care, Inc. v. Superior Court(2004) 32 Cal.4th 771, 783, citations omitted.) “As used in the Act, neglect refers not to thesubstandard performance of medical services but, rather, to the failure of those responsible forattending to the basic needs and comforts of elderly or dependent adults, regardless of theirprofessional standing, to carry out their custodial obligations.” (Ibid.) In order to distinguish dependent elder abuse from professional negligence, there must be ashowing of recklessness, fraud, malice, or oppression. (See Covenant Care, Inc., supra, 32 Cal.4th at783.) “Oppression, fraud, and malice involve intentional, willful, or conscious wrongdoing of adespicable or injurious nature.” (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198Cal.App.4th 396, 405 (internal quotation marks omitted).) Recklessness requires deliberate disregardof a high degree of probability an injury will occur. (Id.) The enhanced remedies for Elder Abuse areonly available for “acts of egregious abuse against elder and dependent adults.” (Ibid.) There must bean allegation of authorization or ratification on the part of a managing agent in order to recoverdamages for dependent adult abuse against corporate defendants. (Civ. Code, § 3294; Cal. Welf. &Inst. Code, § 15657(c).) To plead elder abuse, the plaintiff must allege facts establishing that the defendant: (1) hadresponsibility for meeting the basic needs of the elder or dependent adult, such as nutrition,hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adultunable to provide for his or her own basic needs; and (3) denied or withheld goods or servicesnecessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury wassubstantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud ormalice) or with conscious disregard of the high probability of such injury (if the plaintiff allegesrecklessness). (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-07,citations omitted.) Applying these standards, plaintiffs sufficiently allege a claim for elder abuse based onneglect. Plaintiffs allege the defendants had responsibility for meeting Mr. Williams’ basic needs, suchas eating, bed mobility, transfers, dressing, toileting, and personal hygiene. (See, e.g., Complaint, ¶5.)Plaintiffs allege that defendants knew of conditions that made Mr. Williams unable to provide for hisown basic needs. (Id., ¶6.) Plaintiffs allege that defendants failed to care for these needs pursuant toWelfare & Institutions Code section 15610.57, causing Mr. Williams’ injuries. (Complaint, ¶¶72-75.) Plaintiffs also sufficiently allege that the neglect was reckless and the direct result ofconscious decisions regarding Mr. Williams’ care. That is, defendants failed to provide staff withadequate training and failed to maintain staffing levels sufficient for the needs of the facility for thepurpose of minimizing labor costs and maximizing profit. (See Complaint ¶¶10-11.) Plaintiffs allegedefendants engaged in this conduct knowing that it would injure residents such as the decedent.(Ibid.) Plaintiffs also allege that defendants ratified and authorized each act or omission alleged in thecomplaint. (Id., ¶¶8-11, 17, 19, 21.) On demurrer, the Court is bound to accept the plaintiffs’ allegations as true and construethem “liberally in favor of the pleader.” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337,1341.) The complaint (which at times refers to Mr. Williams as a “he” and other times as a “she”) isadmittedly somewhat boilerplate, as is the plaintiffs’ opposition brief. Still, the Court finds that theclaims related to elder abuse are adequately pleaded. ii. Uncertainty Defendant’s demurrer for uncertainty is essentially unsupported by any argument. The Courtconstrues this as an admission on defendant’s part that uncertainty is not a ground for the Court tosustain its demurrer. (See Rule of Court 3.1113.) In any event, uncertainty is a disfavored ground for sustaining a demurrer, and a demurrer foruncertainty will be sustained only when the pleading is such that the responding party cannot evendiscern to what it must respond. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135,139.) The pleading here meets that low bar. The Court expects that any lingering issues can beilluminated through discovery. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616[“demurrer for uncertainty is strictly construed, even where a complaint is in some respectsuncertain, because ambiguities can be clarified under modern discovery procedures”].) On this ground, the demurrer is overruled. 2. Violation of Residents' Bill of Rights (3rd C/A) Defendants demur to the third cause of action for violations of the resident’s bill of rights.The basis for the demurrer is plaintiffs' failure to allege sufficient facts to state a cause of action, aswell as uncertainty. i. Failure to Allege Sufficient Facts "Health and Safety Code section 1430, subdivision (b) allows a resident or patient of a skillednursing facility to bring a civil action against the licensee of a facility who violates any rights of theresident or patient as set forth in the Patients' Bill of Rights in Section 72527 of Title 22 of theCalifornia Code of Regulations, or any other right provided for by federal or state law or regulation."(Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 123.) Many of the provisions in the Patients' Bill of Rights are cited by plaintiffs here, but for theCourt's present inquiry, only one need be alleged. For example, the plaintiffs allege that thedefendants violated Mr. Williams’ right to receive care in such a manner and in such an environmentby facility staff to be free from mental and physical abuse and neglect (Cal. Code Regs., tit. 22, §72527(a)(10).) They further allege that the defendants violated Mr. Williams’ right to have anadequate number of qualified personnel to carry out all functions of the facility and to meetresidents’ needs as well as adequate training and competent supervision (Cal. Code of Regs., tit.22, §§72329 and 72329.1; Health & Saf. Code, § 1599.1(a)). (See Complaint, ¶80.) How these violations occurred is articulated in the complaint: For example, plaintiffs allegethe facility was understaffed, received citations for such understaffing, and that what nursing staffwas there repeatedly failed to turn and reposition Mr. Williams in accordance with applicablestandards. (See Complaint, ¶¶10-11, 39.) Plaintiffs further allege Mr. Williams was left unattended forextended periods of time and there were inadequate staff members to provide hygiene and skin careto him, resulting in pressure ulcers. (See Complaint, ¶40.) These are sufficiently factual and specific toallow defendants to assess the allegations against them. The demurrer is overruled on the groundsthat plaintiffs do not allege sufficient facts to support the cause of action. ii. Uncertainty The discussion above with respect to the second cause of action applies equally to the thirdcause of action. The demurrer based on uncertainty is overruled. 3. Wrongful Death (4th C/A) Defendants demur to the fourth cause of action for wrongful death. The basis for thedemurrer is plaintiffs' failure to allege sufficient facts to state a cause of action, as well as uncertainty. i. Failure to Allege Sufficient Facts “The elements of the cause of action for wrongful death are the tort (negligence or otherwrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by theheirs.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968, original italics.) Plaintiffs have alleged tortious conduct, as discussed, and as conceded by defendants’election not to demur to the first cause of action for negligence. Plaintiffs further allege they haveincurred funeral and burial expenses, and related medical expenses, as the result of the defendants’wrongful acts. (See Complaint, ¶¶104-107.) This is sufficient. The demurrer on this ground isoverruled. ii. Uncertainty The discussion above with respect to the second cause of action applies equally to the fourthcause of action. The demurrer based on uncertainty is overruled. III. Motion to Strike Among other damages, plaintiffs seek attorneys’ fees, statutory damages pursuant to Health& Safety Code, § 1430 (b), and punitive damages, which defendants challenge in their motion tostrike. Specifically, defendants seek to strike the following from the complaint: 1. Page 22, Lines 25-26 – Page 23, Lines 1-2: “Plaintiffs are thus entitled to punitive damages in an amount to be determined according to proof, as well as attorney’s fees and cost pursuant to Welfare and Institutions Code section 15657.5.” 2. Page 23, Lines 11-12: “and attorney’s fees,” 3. Page 25, Lines 4-5: “Plaintiffs are entitled to attorney’s fees and costs in addition to other remedies set forth in Health and Safety Code section 1430(b).” 4. Page 32, Lines 5-6: “Punitive damages according to proof, including treble punitive damages per Civil Code section 3345;” and 5. Page 32, Line 11: “Attorney’s fees per Welfare and Institutions Code section 15657 Because page 32 contains only a request for jury trial and a signature block, the Courtconstrues the defendants’ reference to this page to mean “page 31.” Plaintiffs oppose the motion. The Court may, in its discretion and upon a motion to strike by defendant: (a) strike out anyirrelevant, false, or improper matter inserted in any pleading, or (b) strike out all or any part of anypleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of thecourt. (Code Civ. Proc., §§ 435-436.) The matter must appear on the face of the complaint, or besubject to judicial notice. (Code Civ. Proc., § 437.) The Elder Abuse Act makes certain enhanced remedies available to a plaintiff who provesabuse of an elder, i.e., a person residing in this state, 65 years of age or older. (Welf. & Inst. Code §§15610.27; 15657.) In particular, a plaintiff who proves by clear and convincing evidence both that adefendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in theAct) and that the defendant is guilty of 'recklessness, oppression, fraud, or malice' in the commissionof such abuse may recover attorney fees and costs. (Welf. & Inst. Code, § 15657, subd. (a).) As notedabove with respect to defendants’ demurrer, the complaint states facts sufficient to constitute acause of action for elder abuse. Further, sufficient facts are alleged in support of malice for purposes of punitive damages.(See Civ. Code, § 3294, subds. (a), (c)(1) [malice]; see also Lackner v. North (2006) 135 Cal.App.4th1188, 1211.) While defendants argue no facts are pleaded related to any managing agent, this is notaccurate. There are such allegations. (See Complaint, ¶¶8-10.) The motion to strike is denied.

Ruling

SETAREH FLORES, ET AL. VS RIO COMPANY, A BUSINESS ENTITY, FORM UNKNOWN

Aug 09, 2024 |21STCV08734

Case Number: 21STCV08734 Hearing Date: August 9, 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 9, 2024 CASE NUMBER: 21STCV08734 MOTIONS: Petition for Minors Compromise MOVING PARTY: Petitioner Lucia Flores OPPOSING PARTY: Unopposed The Court has reviewed the petition filed on July 17, 2024 by Petitioner Lucia Flores (Petitioner) on behalf of Claimant Setareh Flores, age 7. The Court GRANTS the petition. Petitioner has cured all defects identified in the previous petition. (See Min. Order, 7/3/24.) Petitioner shall give notice and file a proof of service of such.

Ruling

JASMINE vs HAWLEY

Aug 07, 2024 |CVRI2306400

MOTION TO COMPEL FURTHERRESPONSES TO DEMAND FORINSPECTION AND NOTICE TOPRODUCE DOCUMENTS, SET ONECVRI2306400 JASMINE VS HAWLEYAND FOR MONETARY SANCTIONS INTHE AMOUNT OF $644.56;MEMORANDUM; DECLARATION BYJACKI S. HAWLEY, TERR L. ROMANOTentative Ruling: Grant the unopposed motion and award sanctions as prayed.

Ruling

ANDRES SIJIFREDO BARAJAS,, BY AND THROUGH HIS GUARDIAN AD LITEM ANDRES SIJIFREDO BARAJAS, ET AL. VS BARRY ADELMAN, ET AL.

Aug 05, 2024 |22STCV17484

Case Number: 22STCV17484 Hearing Date: August 5, 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 5, 2024 CASE NUMBER: 22STCV17484 MOTIONS: Petition for Minors Compromise MOVING PARTY: Petitioner Andres Sijifredo Barajas OPPOSING PARTY: Unopposed The Court has reviewed the petition filed on July 16, 2024 by Petitioner Andres Sijifredo Barajas (Petitioner) on behalf of Claimant Andres Julian Barajas, age 10. The Court conditionally grants the petition. However, Petitioner must file a completed proposed order. The proposed order must be filed and served within 5 days. Petitioner shall give notice and file a proof of service of such.

Document

Ferose P. Haniff v. Angel A. Rivera, Verizon Services Corp, Verizon New York Inc.

Jul 18, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |811394/2024E

Document

Adan Flores Cortes, Patricia Hernandez Guerrero v. Yared D Belay, Oumar Bance, Estina B Acosta

Jul 18, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |811400/2024E

Document

Dylon Signor v. The City Of New York, Eugene Emmanuel Clarke, Pride Transportation Services, Inc.

Jul 18, 2024 |Torts - Other Negligence (205-e) |Torts - Other Negligence (205-e) |811405/2024E

Document

Michael Dipierro v. The City Of New York

Jul 18, 2024 |Torts - Other Negligence (205-e) |Torts - Other Negligence (205-e) |811398/2024E

Document

Hector Cruz as father and natural guardian of J. C., a minor under the age of 14 years, Hector Cruz individually v. The City Of New York, New York City Board Of Education, New York City Department Of Education

Jul 18, 2024 |Torts - Other Negligence (Municipal) |Torts - Other Negligence (Municipal) |811408/2024E

Document

Larissa Owens v. The City Of New York, John Doe the name being fictitious, the person intended being the operator of the ambulance involved in an accident on October 4, 2023, Mta Bus Company, New York City Transit Authority, Jane Doe the name being fictitious, the person intended being the operator of the bus involved in an accident on October 4, 2023, New York City Fire Department

Jul 18, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |811365/2024E

Document

Yohanna Ortega, Charinex Plasencia v. Adelso Duran, Avinash Wajib, Federal Express Corporation

Mar 11, 2024 |John A. Howard |Torts - Motor Vehicle |Torts - Motor Vehicle |804077/2024E

Document

Dylon Signor v. The City Of New York, Eugene Emmanuel Clarke, Pride Transportation Services, Inc.

Jul 18, 2024 |Torts - Other Negligence (205-e) |Torts - Other Negligence (205-e) |811405/2024E