Related Contentin Los Angeles County
Case
HAEJIN WAECKER VS FONGDONE SAWADATIKOM, ET AL.
Oct 02, 2024 |Jon R. Takasugi |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |24STCV25577
Case
B. F., BY AND THROUGH GUARDIAN AD LITEM, ET AL. VS CALEB BARKLEY
Sep 30, 2024 |Melvin D. Sandvig |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |24CHCV03498
Case
JARED KAHN VS TINY ROOM STUDIOS, LLC
Oct 02, 2024 |Gary Y. Tanaka |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |24TRCV03293
Case
ABRAHAM VARGAS MANZANO, ET AL. VS ARCHITECTURAL SURFACES GROUP, LLC, ET AL.
Oct 01, 2024 |Barbara Ann Meiers |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |24STCV25443
Case
TERESA TRAN, ET AL. VS EMILEE DUONG
Sep 30, 2024 |Stephen P. Pfahler |Personal Injury/Property Damage/Wrongful Death - Uninsured Motorist (General Jurisdiction) |Personal Injury/Property Damage/Wrongful Death - Uninsured Motorist (General Jurisdiction) |24STCV25223
Case
SACHIN PATEL VS AMERICAN DENTAL ASSOCIATION JCNDE
Oct 01, 2024 |Thomas D. Long |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |Other Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |24STCV25306
Case
GAGIK MARTIROSYAN, ET AL. VS SERGO SARYAN, ET AL.
Oct 01, 2024 |Ralph C. Hofer |Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |24NNCV04717
Case
JESUS RIOS, JR., ET AL. VS RENE JOSE CHAVEZ, ET AL.
Oct 04, 2024 |Wendy L. Wilcox |Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |24CMCV01542
Case
VAHIK KESHISHYAN VS LEVON ARPADJIAN
Sep 30, 2024 |Barbara Marie Scheper |Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |24STCV25313
Ruling
PEDRO CORTEZ PALMA, ET AL. VS AVIS BUDGET GROUP, INC., A CORPORATION, ET AL.
Oct 04, 2024 |Renee C. Reyna |20STCV41357
Case Number: 20STCV41357 Hearing Date: October 4, 2024 Dept: 29 Palma v. Avis Budget Group 20STCV41357 Defendants Motion to Bifurcate Tentative The motion is DENIED without prejudice. Background On October 28, 2020, Pedro Cortez Palma and Tania Pacheco Cortez (collectively Plaintiffs) filed a complaint against Avid Budget Group, Inc. and Avis Budget Car Rental, LLC for (1) premises liability, (2) strict product liability, (3) negligent product liability, (4) breach of implied and express warranties, (5) negligence, and (6) loss of consortium for injuries Plaintiff Pedro sustained from the automatic gate striking him on November 1, 2018. On January 14, 2021, Avis Budget Group (Defendant) filed an answer and cross-complaint against Roes 1 through 10. On January 12, 2022, Plaintiffs amended the complaint naming Fernando Valencia dba Fernandos Iron Works as Doe 31. Fernando Valencia was dismissed on June 6, 2022. On July 11, 2022, Defendant amended the cross-complaint to name Luis F. Valencia as Roe 1. On September 9, 2024, Defendant filed this motion to bifurcate. On September 20, Plaintiff filed an opposition, and Defendant filed a reply on September 30. Trial is set for November 7, 2024. Legal Standard The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action & or of any separate issue or of any number of causes of action or issues& (Code Civ. Proc., § 1048, subd. (b).) The court has general discretion to order certain issues tried before others when the convenience of witnesses, the ends of justice or the economy and efficiency of handling the litigation would be promoted thereby. (Code Civ. Proc., § 598.) Discussion Defendant moves to bifurcate the issues of liability and damages at trial. (Rubin Decl., ¶ 5.) In cases assigned to the Personal Injury Hub, the case will be tried by a different judge than the one assigned to rule on this motion. The Court finds that because of the close relationship between bifurcation motions and trial management, it is appropriate in this matter for the trial judge to determine whether bifurcation is warranted. A motion to bifurcate is not a motion in limine. (Cal. Rules of Court, rule 3.57(c).) Nonetheless, as it relates to management of the trial proceedings, a motion to bifurcate has certain attributes that are similar to motions in limine. And, in cases assigned to the Personal Injury Hub, the trial judge (not the judge in the Personal Injury Hub) rules on all motions in limine. While this bifurcation request is not a motion in limine, the logic of having the trial judge determine it here is similar. The request for bifurcation here appears to be one for which the trial judge should make a discretionary determination based on its role in managing the trial proceedings. Accordingly, the Court rules that Defendant may submit a motion for bifurcation at the time that motions in limine are filed. Any other party may submit an opposition when oppositions to motions in limine are filed. The Court orders that the bifurcation briefing be included in the trial binders in Tab B along with any motions in limine filed in the case. If there is any issue with regard to Rule of Court 3.57, Defendant or any other party may direct the trial court to this order (which of course does not impose any obligation on the trial judge with regard to ruling on the motion). Conclusion The Court DENIES without prejudice the motion to bifurcate filed by Defendant Avis Budget Group. Moving party to give notice.
Ruling
Oct 08, 2024 |22AVCV00843
Case Number: 22AVCV00843 Hearing Date: October 8, 2024 Dept: A14 Background This appears to be a racketeering (RICO) action. Plaintiffs Frank Cockrell (Frank)[1], John Downy (Downy), Gary Loucks (Loucks), Lance Cooley (Cooley), Harry Davis (Davis), Tabetha Cockrell (Tabetha), and Willard Langham (Langham and collectively Plaintiffs) allege a multitude of allegations pertaining to the actions taken by Defendants Victor Martinez & Associates, LLC (Victor Martinez & Associates); Victor Martinez (Martinez), individually; Hoge Family Bypass Trust (Hoge Family Trust); Kerri Hoge Anderson (Anderson); Daniel Hoge (Daniel)[2]; Brandon Hoge (Brandon); Mario Rivera Esparza (Mario)[3]; Stephanie Rivera Esparza (Stephanie); and Michael Esparza (Michael) related to the maintenance of a senior mobile home community. On October 28, 2022, Plaintiffs filed their Complaint alleging five causes of action for: RICO; (2) Intentional Infliction of Emotional Distress (IIED); (3) Creating Rules that are Intended to Remove Older Mobile Homes so They Can Raise the Rents to Increase Values for Owners of the Californian Mobile Home Senior Park; (4) Grand Theft under Cal. Pen. Code §§ 186 and 486/Violation of Constitutional Rights to Life, Liberty and Pursuit of Happiness/Insider Unfair Trade Advantage; and (5) Violation of the Unruh Civil Rights Act and Federal Fair Housing Act by Moving Children into a Senior Housing Facility. On March 17, 2023, Victor Martinez & Associates, Inc.; Victor Martinez, individually; Mario Rivera; Stephanie Rivera Esparza; and Michael Esparza (Defendants) filed this Demurrer. The Demurrer was subsequently sustained with leave to amend due to uncertainty on April 25, 2023. The Court issued a ruling cautioning Frank against the unauthorized practice of law as Frank drafted the original complaint on behalf of all plaintiffs. The Court struck Downy, Loucks, Cooley, Davis, Tabetha, Langham, and Doe plaintiffs from the Complaint as part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court under the authority granted to it in Cal. Code Civ. Proc. 436(b). The Court emphasized that each named plaintiff may proceed in pro per by representing their individual interests. On November 27, 2023, Frank filed his First Amended Complaint (FAC) alleging five causes of action for: RICO; (2) Intentional Infliction of Emotional Distress (IIED); (3) Creating Rules that are Intended to Remove Older Mobile Homes so They Can Raise the Rents to Increase Values for Owners of the Californian Mobile Home Senior Park; (4) Violation of Constitutional Rights to Life, Liberty & Pursuit of Happiness & Unfair Trade Advantages; and (5) Violation of Age Restrictions in a Senior Park Only Facility both Federal & State Laws. On April 10, 2024, Frank filed a document titled Response to Defendants Demurrer. On April 26, 2024, Defendants filed their Demurrer to the FAC, subsequently sustained with leave to amend. On July 05, 2024, Frank filed his Second Amended Complaint (SAC) alleging the same five causes of action as the FAC. On August 05, 2024, Defendants filed their Demurrer to the SAC. On September 05, 2024, Frank filed his Motion to Compel Responses to Form Interrogatories & Request for Admissions and Sanctions Against Legal Counsel for Defendants. On September 13, Frank filed a document titled Response to Defendants Demurrer. On September 23, 2024, Defendants filed an Opposition to Franks discovery motion. ----- Demurrer Standard for Demurrer A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal.App.4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (Cal. Code Civ. Proc. § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal.App.3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Ibid.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿¿¿ ¿¿¿¿¿¿¿ A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiffs allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿¿¿ ¿¿¿¿¿¿¿¿ Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿¿¿ -----¿¿¿¿ ¿¿¿¿ Meet and Confer Requirement Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Cal. Code Civ. Proc. § 430.41.) Cal. Code Civ. Proc. § 430.41 provides that a declaration may be filed where he party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. (Id. at (a)(3)(B).) Defense counsel Sam M. Muriella (Muriella) has filed a declaration stating that he attempted to contact Frank; however, a response was not received. A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (Id. at (a)(4).) Accordingly, the Court addresses the Demurrer on its merits. ----- Application Defendants first present that the SAC is uncertain. That is, Defendants believe that the SAC reads as a stream of conscious letter, lacks coherence, does not state cognizable claims, and the causes of action does not specify which parties are plaintiffs or defendants to each. Pursuant to Cal. Code Civ. Proc. § 430.10(f), uncertainty is a proper demurrer ground where the pleading is ambiguous and unintelligible.¿ Demurrers for uncertainty will only be sustained where the complaint is so vague that the defendant cannot reasonably respondi.e., determine what issues must be admitted or denied or what counts or claims are directed against him or her.¿ (Khoury v. Malys Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) A special demurrer should not be sustained when the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.¿(Lord v. Garland (1946) 27 Cal.2d 840, 853.)¿Such a demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 882.) ¿A demurrer which attacks an entire pleading should be overruled if one of the counts therein is not vulnerable to the objection.¿ (Lord, supra, 27 Cal.2d at 850.) ¿The sole issue on a demurrer for ambiguity is whether the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired.¿(Merlino v. West Coast Macaroni Mfg. Co. (1949) 90 Cal. App. 2d 106, 108.) Here, the SAC is unclear as the allegations mix Franks own interests with that of others. (See SAC at 2:25-3:4 [discussing Downey], 5:5-6 [discussing Davis], 4:22-28 [discussing Langham], among others.) As such, the Complaint lacks coherence as the individual rights of each previous plaintiff are blended in with allegations pertaining to Frank. Plaintiffs SAC also appears to contain a multitude of conclusory allegations as well. Conclusory allegations, without facts to support them, are ambiguous and uncertain. (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531.) Throughout the SAC, there are references criminal and civil law as well as federal, state, and city codes. The Complaint is unclear as to whether Cockrell has a private right of action to bring the alleged breaches of Cal. Pen. Code statutes (see SAC at Fourth Cause of Action.) Further, there appears to be references to undefined nouns. (See SAC [management/owners (4:18), manager (3:12), Management (4:21), Defendant Heirs (6:8), owners (6:22), among others].) As pled, the Court agrees with Moving Defendants that the Complaint is so uncertain that Moving Defendants cannot reasonably respond. As pled, the Complaint would require Defendants to determine which claims are being asserted against it and which alleged actions not only apply to Defendants, but also comprise each claim. Franks response does not address the deficiencies within the SAC. Rather, it contains reiterations of the allegations and Franks ability to prove them at trial. Accordingly, the Demurrer is SUSTAINED. Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California law leave to amend is liberally granted, leave to amend should not be granted where, in all probability, amendment would be futile. (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685).¿ A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim. (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.) This is Franks third pleading and there are no substantial changes from the FAC. (Compare FAC and SAC.) Accordingly, it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim. The Court does not allow leave to amend. ----- Motion to Compel Responses to Form Interrogatories & Request for Admissions and Sanctions Against Legal Counsel for Defendants As the Court has sustained the Demurrer to the SAC without leave to amend, the Motion to Compel Responses to Form Interrogatories & Request for Admissions and Sanctions Against Legal Counsel for Defendants is MOOT. ----- Conclusion Defendants Victor Martinez & Associates, Inc.; Victor Martinez; Mario Rivera; Stephanie Rivera Esparza; and Michael Esparzas Demurrer is SUSTAINED without leave to amend. Plaintiff Frank Cockrells Motion to Compel Responses to Form Interrogatories& Requests for Admissions and Sanctions Against Legal Counsel for Defendants is MOOT. [1] Plaintiffs Frank Cockrell and Tabetha Cockrell share the same surname. As such, the Court address each by their first name for the purpose of clarity. No disrespect is intended. [2] Defendants Daniel Hoge and Brandon Hoge share the same surname. As such, the Court address each by their first name for the purpose of clarity. No disrespect is intended. [3] Defendants Mario Rivera Esparza, Stephanie Rivera Esparza, and Michael Esparza share the same surname. As such, the Court address each by their first name for the purpose of clarity. No disrespect is meant.
Ruling
PETER LOPRIMO VS JOHN DOE, ET AL.
Oct 02, 2024 |22STCV11168
Case Number: 22STCV11168 Hearing Date: October 2, 2024 Dept: 28 Having considered the moving papers, the Court rules as follows. BACKGROUND On April 4, 2022, Plaintiff Peter Loprimo (Plaintiff) filed this action against Defendants John Doe, Inspire Brands, Inc., Arbys (Arbys), and Does 1-20 for negligence, battery, and assault. On August 25, 2023, the clerk entered Arbys default. The same day, Plaintiff filed a proof of service showing personal service on Arbys authorized agent of the summons, complaint, and statement of damages on June 1, 2023. On April 15, 2024, the Court dismissed Defendants John Doe, Inspire Brands, Inc., and Does 1- 20 without prejudice at Plaintiffs request. On July 1, 2024, Plaintiffs counsel Michael Yadegari filed a motion to be relieved as counsel. The motion was set for hearing on July 23, 2024. The Court continued the hearing to September 3, 2024. On September 3, 2024, the Court issued a tentative ruling and continued the hearing to October 2, 2024. The Court ordered Plaintiffs counsel to submit proof of service of the motion to be relieved as counsel and supporting papers by September 25, 2024. No trial date is currently scheduled. COUNSELS REQUEST Plaintiffs counsel, Michael Yadegari, asks to be relieved as counsel. LEGAL STANDARD Code of Civil Procedure section 284 provides: The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other. (Code Civ. Proc., § 284.) California Rules of Court, rule 3.1362, provides: (a) Notice A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051). (b) Memorandum Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel. (c) Declaration The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). (d) Service The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail. (1) If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. (2) If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address. As used in this rule, current means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies. (e) Order The proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362.) DISCUSSION On September 3, 2024, the Court continued the hearing on Plaintiffs counsels motion to be relieved as counsel to October 2, 2024 because the proof of service attached to the motion (MC-051) and supporting declaration (MC-052) described the documents being served as OBJECTION TO DEFENDANTS DECLARATION OF READINESS TO PROCEED. The Court ordered Plaintiffs counsel to file proof of service of the motion to be relieved as counsel, supporting declaration, and proposed order by September 25, 2024. Plaintiffs counsel has not filed proof of service of the motion to be relieved as counsel, declaration, or proposed order. The Court denies the motion. CONCLUSION The Court DENIES Michael Yadegaris motion to be relieved as counsel for Plaintiff Peter Loprimo. Counsel is ordered to give notice of this ruling. Counsel is ordered to file the proof of service of this ruling with the Court within five days.
Ruling
HALEY CHAPMAN, ET AL. VS MARRIOTT INTERNATIONAL, INC., ET AL.
Oct 02, 2024 |23STCV03486
Case Number: 23STCV03486 Hearing Date: October 2, 2024 Dept: 32 HALEY CHAPMAN, Plaintiff, v. MARRIOT INTERNATIONAL, INC., et al., Defendants. Case No.: 23STCV03486 Hearing Date: October 2, 2024 [TENTATIVE] order RE: plaintiffs motion to strike supplemental expert designation BACKGROUND On February 16, 2023, Plaintiff Haley Chapman, individually and as successor-in-interest to Noelle Glotfelty (Decedent), filed this action against various Defendants for (1) wrongful death, (2) survival cause of action, and (3) negligence. The complaint stems from the death of Decedent, who committed suicide inside a Marriott hotel room. Plaintiff is Decedents daughter. On July 29, 2024, Defendants Marriott International, Inc.; Agoura Hills HHG Hotel Development, LP; and Huntington Pacific Hotels, LLC served their expert designations. Defendants made the following pertinent designations: (1) Dr. Marvin Pietruszka will testify as to issues concerning cause of death, time of death; (2) Dr. Lawrence Mayer will testify to the manner of decedents death and all medical and chemical issues relating thereto; and (3) Dr. Michael Fishbein will testify as to issues concerning the time of death and pathology as they relate to plaintiffs claim in this action. (Maxwell Decl., Ex. B.) At the same time, Plaintiff served her expert disclosure, designating the following pertinent witnesses on the issue of causation: (1) Dr. Mace Beckson; (2) Dr. Francisco Diaz; and (3) Dr. Othon Mena. (Heffernan Decl., Ex. A.) On August 20, 2024, Defendants served a second expert designation designating Dr. James High. Dr. Highs role was stated as follows: James High, M.D., is a board certified psychiatrist. He has agreed to testify at trial and will be sufficiently familiar with the facts of this case to submit to a meaningful deposition regarding his opinions, which will include causation. (Maxwell Decl., Ex. C.) Defendants designated Dr. High in response to Plaintiffs designation of Dr. Beckson. Plaintiff contends that the designation of Dr. High is improper because Defendants have already designated three experts on the issue of causation. On September 5, 2024, Plaintiff filed the instant motion to strike Defendants supplemental expert designation. Defendants filed a late opposition on September 23, 2024. LEGAL STANDARD Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject. (Code Civ. Proc., § 2034.280(a).) A party may submit a supplemental expert witness list within 20 days after the exchange, but only if the party supplementing the expert witness list has not previously retained an expert to testify on that subject. (Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723.) DISCUSSION Plaintiff argues that the designation of Dr. High as an expert on causation is improper because a supplemental expert designation is only permitted if Defendants ha[d] not previously retained an expert to testify on that subject. (See Code Civ. Proc., § 2034.280(a).) Plaintiff contends that Defendants had already designated Drs. Pietruszka, Mayer, and Fishbein on the issue of causation. However, Defendants did not initially designate an expert on psychiatry. Drs. Pietruszka, Mayer, and Fishbein were designated as experts on time of death, manner of death, and pathology. (Maxwell Decl., Ex. B.) Thus, Defendants were entitled to designate Dr. High in response to Plaintiffs designation of psychiatrist Dr. Beckson. The Code expressly allows this, permitting the supplemental designation of an expert on a subject to be covered by an expert designated by an adverse party to the exchange. (Code Civ. Proc., § 2034.280(a).) [T]he Legislature contemplated that when a party designates an expert, it is possible the other side might want to designate a rebuttal expert on the same topic. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 498.) Plaintiff cites to Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1021, where the court held that [w]hen it comes to issues that both sides anticipate will be disputed at trial, a party cannot merely reserve its right to designate experts in the initial exchange, wait to see what experts are designated by the opposition, and then name its experts only as purported rebuttal witnesses. However, the court in Du-All distinguished Fairfax because in Fairfax, the defendant designated no witnesses during the initial exchange with the express intent of serving a rebuttal witness list only after receiving the plaintiffs designations. (Du-All, supra, 34 Cal.App.5th at p. 500.) This wait and see approach constituted improper gamesmanship which defeated the purpose of a simultaneous exchange and prejudiced the plaintiff. (Id. at p. 501.) There is no indication of such gamesmanship in this case. Defendants properly designated their experts in the initial exchange. They simply did not anticipate the need for an expert on psychiatry and thus served a supplemental designation. The Code specifically permits this. (See Code Civ. Proc., § 2034.280(a); Du-All, supra, 34 Cal.App.5th at p. 498.) The law does not require a party to initially designate every expert witness it anticipates using to rebut the experts the other side might designate as an expert. (Ibid.) Plaintiff articulates no prejudice as a result of the supplemental designation. Lastly, Plaintiff argues that Dr. Highs testimony should be excluded as cumulative under Evidence Code section 723 because Defendants already have experts on the subject matter of causation. First, this is a motion to strike an expert designation, not a motion in limine. The admissibility of Dr. Highs testimony is not currently at issue. Second, Dr. Highs testimony will not be cumulative because Defendants have not designated any prior experts on the subject matter of psychiatry. If each party were allowed only one expert on the overall subject of causation, then Plaintiff herself would have designated cumulative witnesses. (See Heffernan Decl., Ex. A [designating three experts on causation].) In sum, Defendants properly submitted a supplemental witness list designating Dr. High on the issue of psychiatry, a topic not previously covered in their initial exchange. The Court finds no gamesmanship or prejudice in Defendants designating a rebuttal witness, which is expressly permitted by the Code. CONCLUSION Plaintiffs motion to strike is DENIED.
Ruling
DERMOT DAMIAN GIVENS VS FORMOSA GARDENS HOA, A CALIFORNIA UNINCORPORATED ASSOCIATION, ET AL.
Oct 03, 2024 |21STCV41132
Case Number: 21STCV41132 Hearing Date: October 3, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: October 3, 2024 TRIAL DATE: January 21, 2025 CASE: Dermot Damian Givens v. Formosa Gardens HOA et al.. CASE NO.: 21STCV41132 MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION (x2) MOVING PARTY: (1) Defendants Formosa Gardens HOA, Alexsei Durack, & Kevin Khuat; (2) Plaintiff Dermot Damian Givens. RESPONDING PARTY(S): (1) Plaintiff Dermot Damian Givens. (2) Defendants Formosa Gardens HOA, Alexsei Durack, & Kevin Khuat. CASE HISTORY: 11/08/21: Complaint filed. 05/03/22: First Amended Complaint filed. 06/13/22: Cross-Complaint filed. 08/12/22: First Amended Cross-Complaint filed. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is an action for fraud and enforcement of governing documents for a homeowners association under the Davis-Stirling Act. Plaintiff sued Formosa Gardens HOA (Defendant HOA) and Alexsei Durack and Kevin Ngoc Khuat (Individual Defendants) alleging breach of governing documents, multiple violations of the Davis-Stirling Act (Civ. Code § 5200 et seq.), fraud, theft in violation of Penal Code section 496, conversion, intentional interference with contractual relations, and declaratory relief. The parties filed cross-motions for summary judgment or summary adjudication. TENTATIVE RULING: The parties in this action filed cross-motions for summary judgment or summary adjudication. Defendants motion, filed on May 30, 2024, states in its proof of service that it was served via electronic service on Plaintiff, who is a self-represented litigant. (Defendants POS.) Electronic service may only be made on a self-represented litigant who manifests affirmative consent to receive electronic service pursuant to Code of Civil Procedure section 1010.6 subdivision (c). No such manifestation is on file. While Defendants have submitted a reply to a putative opposition to the motion, Plaintiffs opposition has not been filed with the Court. Moreover, Plaintiffs putative opposition does not remove this defect, as any deficiency in notice of a motion for summary judgment or summary adjudication may only be cured by re-noticing the motion with 75 days notice from the new notice date, or by express consent of the parties. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.) Plaintiffs motion faces similar issues. Plaintiffs moving papers, according to the proof of service, were served by mail on Defendants on June 18, 2024, the date those papers were filed. (See Plaintiffs POS.) Defendants counsel, Christopher G. Kerr, states under penalty of perjury that his office was never served with the moving papers and did not discover the motion was filed until August 2024. (Declaration of Christopher G. Kerr ISO Opp. ¶ 3.) Plaintiffs reply papers do not address this contention. It therefore appears that Plaintiffs motion was also not properly served on Defendants. As trial in this matter is currently set for January 21, 2025, it is not possible, in light of the Courts calendar, to continue the hearing in such a manner as to satisfy both the 75-day notice period and the requirement that the hearing be at least 30 days before trial. (Code Civ. Proc. § 437c subd. (a).) Therefore, absent a stipulation by the parties to have the motions heard on an earlier date, both motions must be denied for improper notice. Accordingly, Defendants Motion for Summary Judgment or Summary Adjudication is DENIED. Plaintiffs Motion for Summary Judgment or Summary Adjudication is DENIED. Moving Parties to give notice. IT IS SO ORDERED. Dated: October 3, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
LILIA JIMENEZ CERVANTES VS ANDY APELIAN ANTERANIK
Oct 02, 2024 |23STCV02924
Case Number: 23STCV02924 Hearing Date: October 2, 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: October 2, 2024 CASE NUMBER: 23STCV02924 MOTIONS: (1) Motion for Order Deeming Admitted Truth of Facts (2) Motion Compelling Responses to Form Interrogatories (3) Motion Compelling Responses to Special Interrogatories (4) Motion Compelling Responses to Request for Production MOVING PARTY: Plaintiff Lilia Jimenez Cervantes OPPOSING PARTY: Defendant Andy Apelian Anteranik BACKGROUND Plaintiff Lilia Jimenez Cervantes (Plaintiff) now moves for an order to deem admitted Requests for Admission, Set One and to compel verified responses to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production, Set One propounded on Defendant Andy Apelian Anteranik (Defendant). Plaintiff seeks monetary sanctions. Defendant opposes. No reply has been filed. LEGAL STANDARD Requests for Admission Where there has been no timely response to a request for admission under Code of Civil Procedure section 2033.010, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.¿ (Code of Civ. Proc., § 2033.280, subd. (b).)¿ The party who failed to respond waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the partys failure to respond was the result of mistake, inadvertence, or excusable neglect.¿ (Code of Civ. Proc., § 2033.280, subds. (a)(1)-(2).)¿ The court shall grant a motion to deem admitted requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.¿ (Code of Civ. Proc., § 2033.280, subd. (c).)¿ Where a party fails to provide a timely response to requests for admission, [i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).) Interrogatories If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290 (b).) Failure to timely respond waives all objections, including privilege and work product, unless [t]he party has subsequently served a response that is in substantial compliance and [t]he partys failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290 (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) If a motion to compel responses is filed, the Court shall impose a monetary sanction against the losing party unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2030.290 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a). Requests for Production Under Code of Civil Procedure Section 2031.300, if a party fails to serve a timely response to a demand for inspection, the party making the demand may move for an order compelling response to the demand. (Code Civ. Pro § 2031.300 (b).) The party who fails to serve a timely response to a demand for inspection waives any objection to the demand unless the court finds that the party has subsequently served a response that is in substantial compliance or partys failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2031.300 (a)(1)- (2).) Courts shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection unless the party acted with substantial justification or other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.300 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) DISCUSSION Here, Plaintiff asserts that she served Requests for Admission, Set One, Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production, Set One on Defendant on June 19, 2024. (Yadegari Decl. ¶ 2, Exh. 1.) Responses were due July 22, 2024. (Id. ¶ 3.) Since then, no responses have been filed. In opposition, Defendant argues he will serve verified responses to the written discovery before the hearing, and as a result, the motions are moot. Additionally, Defendants counsel states that Plaintiff granted extensions until August 27, 2024. (LaFranchi Decl. ¶ 6.) On August 19, 2024, Defendants counsel started trial on a different matter. By mistake, she did not calendar the August 27, 2024 deadline, and also believed she could obtain another extension. However, Defendants counsel states that due to her busy trial schedule she did not ask Plaintiff for an extension. On September 2, 2024, Plaintiff filed the instant motion. Defendants counsel argues the extensions were due to scheduling issues with Defendant and difficulty communicating; counsel requires an interpreter to speak to Defendant. As a result, Defendants counsel argues she did not act in bad faith in failing to serve timely responses. The Court notes Defendant has not filed copies of the discovery responses. It appears that as of the filing of the opposition, responses have not been served. Therefore, the Court conditionally grants the motion to deem admitted and motions to compel, unless Defendant shows at the hearing on this matter that responses were served. Additionally, responses to Request for Admissions must be presented to the Court for it to determine they are substantially compliant. Plaintiff requests $1,875 in monetary sanctions for each of the four motions, against Defendant and his counsel of record, representing an hourly rate of $375. Defendant has not shown substantial justification or that the imposition of sanctions would be unjust. Therefore, the Court finds sanctions are warranted because Defendant has failed to timely respond. However, the amount requested is excessive due to the type of motions at issue, the lack of reply, and the fact counsel can appear at the hearing remotely. Therefore, the Court awards sanctions in the amount of $1,500 (1 hour of attorney time to file and appear at the hearing, for each of the four motions). CONCLUSION AND ORDER Accordingly, Plaintiffs Motion to deem admitted Request for Admissions, Set One is conditionally GRANTED. Plaintiffs Motions to Compel Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production, Set One are conditionally GRANTED. Defendant Andy Apelian Anteranik shall serve verified responses without objections within 7 days. The Court further GRANTS Plaintiffs request for monetary sanctions against Defendant and his attorney of record, jointly and severally, in the reduced amount of $1,500.00. Said monetary sanctions are to be paid to counsel for Plaintiff within 30 days of the date of this order. Plaintiff shall provide notice of the Courts order and file a proof of service of such.
Ruling
MAURICE LEE VS DR. BRIAN C. PAYNE, ET AL.
Oct 03, 2024 |21STCV15339
Case Number: 21STCV15339 Hearing Date: October 3, 2024 Dept: C Lee vs. Payne, et al., Case No. 21STCV15339 This is a medical malpractice action. Defendant Brian C. Payne, M.D. moves ex parte to shorten time on the hearing on Defendants motion for summary judgment, currently scheduled for March 13, 2025. Trial is scheduled for February 6, 2025. Defendant requests a date between December 11, 2024 and January 7, 2025 or in the alternative, within 30 days of trial. A party may seek ex parte relief upon an affirmative factual showing "irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." (Cal. Rules of Court, rule 3.1202(c).) Based on the above, the motion is GRANTED. The Court ADVANCES the hearing from Thursday, March 13, 2025 to TODAY and CONTINUES it to Thursday, February 13, 2025 in Dept. SE-C at 10:30 A.M. The parties can move to continue trial with Department F of this court. Moving party to give notice.
Ruling
ELIA COVARRUBIAS, ET AL. VS CHRISTINA PYO, M.D., ET AL.
Oct 02, 2024 |23STCV01696
Case Number: 23STCV01696 Hearing Date: October 2, 2024 Dept: 73 10/02/2024 Dept. 73 Hon. Rolf Treu, Judge presiding COVARRUBIAS v. CHRISTINA PYO, M.D., et al. (23STCV01696) Counsel for Plaintiff/moving party: Elise Sanguinetti (Arias Sanguinettie Wang & Team LLP) Counsel for Defendants: Michael Trotter (Kelly, Trotter & Franzen); James Kjar (Kjar, McKenna & Stockalper LLP) MOTION TO REINSTATE PRO HAC VICE APPLICATION OF JAMES L. MITCHELL (filed 09/05/2024) TENTATIVE RULING Motion to Reinstate Pro Hac Vice Application of James L. Mitchell is GRANTED. I. BACKGROUND On January 26, 2023, Plaintiff Ayden Rafael Covarrubias, individually, a minor by and through his guardian ad liem, Elia Covarrubias, filed this action against Defendants Christina Pyo, M.D.; First Choice Physician Partners; White Memorial Medical Center; Adventist Health System/West and Does 1-75. Plaintiff alleges a cause of action for negligence. The Complaint alleges that Elia Covarrubias sought care and treatment from Defendants for her labor and delivery of her son Ayden Rafael Covarrubias. The Complaint further alleges that due to Defendants negligence during Elia Covarrubias labor and delivery from February 1, 2015 to February 2, 2015, Ayden Rafael Covarrubias suffered hypoxicischemic encephalopathy and meconium aspiration, among other injuries which caused brain damage and other catastrophic and permanent conditions including dyskinetic cerebral palsy, dysphagia, neonatal seizures and global developmental delay, among others. On September 5, 2024, Plaintiff filed the instant application for James L. Mitchell to appear as counsel pro hac vice on behalf of Plaintiff. No opposition was filed. II. DISCUSSION CRC Rule 9.40(d) provides that an application to be admitted pro hac vice must state the following: (1) applicant attorneys residence and office addresses; (2) the courts to which the applicant attorney has been admitted and dates of admission; (3) a representation that the attorney applicant is a member in good standing in the courts of admission and is not currently suspended or disbarred in any court; (4) the title of each court and action in which the applicant attorney has appeared pro hac vice in this State in the preceding two years, if any; and (5) the name, address, and telephone number of the active California State Bar member who is counsel of record in the local action. (CRC Rule 9.40(d).) Plaintiffs application on behalf of James L. Mitchell provides the information required by C.R.C., Rule 9.40(d). Plaintiffs application indicates that Plaintiff is moving to reinstate Mr. Mitchells pro hac vice admission because Mr. Mitchells pro hac vice admission had been terminated by way of minute order on August 5, 2024, due to inadvertent non-payment of the renewal fees. Plaintiff filed a notice of payment of Mr. Mitchells renewal fee. Accordingly, Plaintiffs unopposed motion for an order reinstating James L. Mitchell to appear pro hac vice is GRANTED. III. DISPOSITION Motion to Reinstate Pro Hac Vice Application of James L. Mitchell is GRANTED.
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