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11 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, ss. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO.: 2081CV02296 TRUSTEES OF TUFTS COLLEGE/ (a/s/o WILBERT VILCHERT) and (WILBERT VILCHERT, Plaintiffs, 9/9/2021 Vv. FEDEX FREIGHT, INC. and JOHN DOE, RECEIVED Defendants. ANSWER TO SECOND AMENDED COMPLAINT AND JURY CLAIM OF DEFENDANT FEDEX FREIGHT, INC. The Defendant, FedEx Freight, Inc. (hereinafter, “FedEx” or “Defendant”), hereby answers the Plaintiffs’ Second Amended Complaint as follows: PARTIE: 1. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1 of the Plaintiffs’ Second Amended Complaint. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 2 of Plaintiffs’ Second Amended Complaint. The Defendant admits the allegations set forth in Paragraph 3 of Plaintiffs’ Second Amended Complaint. The Defendant denies the allegations set forth in Paragraph 4 of Plaintiffs’ Second Amended Complaint that Defendant John Doe’s actions caused and/or led to the injuries suffered by Wilbert Vilchert. The remaining allegations are admitted.AJJURISDICTION Paragraph 5 of Plaintiffs’ Second Amended Complaint contains Plaintiffs’ allegation concerning the jurisdiction for this case to which no response is required; to the extent a response is required, Defendant admits that his Court is a proper jurisdiction for the claims brought. FACTUAL ALLEGATIONS The Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 6 of the Plaintiffs’ Second Amended Complaint. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 7 of the Plaintiffs’ Second Amended Complaint. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 8 of the Plaintiffs’ Second Amended Complaint. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 9 of the Plaintiffs’ Second Amended Complaint.10. The Defendant denies the allegations in Paragraph 10 of the Plaintiffs’ Second Amended Complaint.11. The Defendant admits the allegations in Paragraph 11 of the Plaintiffs’ Second Amended Complaint.12. The Defendant denies the allegations in Paragraph 12 of the Plaintiffs’ Second Amended Complaint.13. The Defendant denies the allegations in Paragraph 13 of the Plaintiffs’ Second Amended Complaint.14. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 14 of the Plaintiffs’ Second Amended Complaint. COUNT I- NEGLIGENCE Tufts University (a/s/o Wilbert Vilchert) v. FedEx Freight, Inc.15. The Defendant restates and reaffirms its responses to Paragraphs 1-14 of the Complaint.16. Paragraph 16 of Plaintiffs’ Second Amended Complaint contains Plaintiffs’ allegation concerning the cause of action for this case to which no response is required.17. Paragraph 17 of Plaintiffs’ Second Amended Complaint calls for a legal conclusion and therefore no response is required. To the extent a response is required, and to the extent the Plaintiffs seek to impose any liability, either express or implicit, upon the Defendant, the allegations are denied.18. The Defendant objects to the use of the word “duty” in that it calls for a legal conclusion and therefore no response is required. To the extent a response is required, the Defendant admits only those duties imposed by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 18 of the Complaint.19. The Defendant objects to the use of the word “duty” in that it calls for a legal conclusion and therefore no response is required. To the extent a response is required, the Defendant admits only those duties imposed by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 19 of the Complaint.20. The Defendant objects to the use of the word “duty” in that it calls for a legal conclusion and therefore no response is required. To the extent a response is required, the Defendant admits only those duties imposed by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 20 of the Complaint.21. The Defendant denies the allegations set forth in Paragraph 21 of Plaintiffs’ Second Amended Complaint.22. The Defendant denies the allegations set forth in Paragraph 22 of Plaintiffs’ Second Amended Complaint.23. The Defendant denies the allegations set forth in Paragraph 23 of Plaintiffs’ Second Amended Complaint.24. The Defendant denies the allegations set forth in Paragraph 24 of Plaintiffs’ Second Amended Complaint.25. The Defendant denies the allegations set forth in Paragraph 25 of Plaintiffs’ Second Amended Complaint. COUNT II- NEGLIGENCE Tufts University (a/s/o Wilbert Vilchert) v. John Doe26. The Defendant restates and reaffirms their responses to Paragraphs 1-25 of the Plaintiffs’ Complaint.27. Paragraph 27 of Plaintiffs’ Second Amended Complaint contains Plaintiffs’ allegation concerning the cause of action for this case to which no response is required.28. The Defendant denies the allegations set forth in Paragraph 28 of Plaintiffs’ Second Amended Complaint.29. The Defendant objects to the use of the word “duty” in that it calls for a legal conclusion and therefore no response is required. To the extent a response is required, the Defendant admits only those duties imposed by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 29 of the Complaint.30. The Defendant objects to the use of the word “duty” in that it calls for a legal conclusionand therefore no response is required. To the extent a response is required, the Defendant admits only those duties imposed by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 30 of the Complaint.31. The Defendant denies the allegations set forth in Paragraph 31 of Plaintiffs’ Second Amended Complaint.32. The Defendant denies the allegations set forth in Paragraph 32 of Plaintiffs’ Second Amended Complaint.33. The Defendant denies the allegations set forth in Paragraph 33 of Plaintiffs’ Second Amended Complaint.34. The Defendant denies the allegations set forth in Paragraph 34 of Plaintiffs’ Second Amended Complaint.35. The Defendant denies the allegations set forth in Paragraph 35 of Plaintiffs’ Second ‘Amended Complaint.36. The Defendant denies the allegations set forth in Paragraph 36 of Plaintiffs’ Second Amended Complaint.37. The Defendant denies the allegations set forth in Paragraph 37 of Plaintiffs’ Second Amended Complaint. COUNT Ill — NEGLIGENCE Wilbert Vilchert v. FedEx Freight, Inc.38. The Defendant restates and reaffirms their responses to Paragraphs 1-37 of the Complaint.39. Paragraph 39 of Plaintiffs’ Second Amended Complaint calls for a legal conclusion and therefore no response is required. To the extent a response is required, and to the extent the Plaintiffs seek to impose any liability, either express or implicit, upon the Defendant, the allegations are denied.40. The Defendant objects to the use of the word “duty” in that it calls for a legal conclusion and therefore no response is required. To the extent a response is required, the Defendants admit only those duties imposed. by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 40 of the Complaint.41 The Defendant objects to the use of the word “duty” in that it calls for a legal conclusion and therefore no response is required. To the extent a response is required, the Defendant admits only those duties imposed by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 41 of the Complaint.42. The Defendant denies the allegations set forth in Paragraph 42 of Plaintiffs’ Second Amended Complaint.43 The Defendant denies the allegations set forth in Paragraph 43 of Plaintiffs’ Second Amended Complaint.44. The Defendant denies the allegations set forth in Paragraph 44 of Plaintiffs’ Second Amended Complaint.45. The Defendant denies the allegations set forth in Paragraph 45 of Plaintiffs’ Second Amended Complaint.46. The Defendant denies the allegations set forth in Paragraph 46 of Plaintiffs’ Second Amended Complaint. COUNT IV — NEGLIGENCE Wilbert Vilchert v. John Doe47. The Defendant restates and reaffirms their responses to Paragraphs 1-46 of the Complaint.48. The Defendant denies the allegations set forth in Paragraph 48 of Plaintiffs’ Second Amended Complaint.49. The Defendant objects to the use of the word “duty” in that it calls for a legal conclusionand therefore no response is required. To the extent a response is required, the Defendant , admits only those duties imposed by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 49 of the Complaint.50. The Defendant objects to the use of the word “duty” in that it calls for a legal conclusion and therefore no response is required. To the extent a response is required, the Defendant admits only those duties imposed by law and deny that they breached any such duty to Plaintiff as alleged in Paragraph 50 of the Complaint.51. The Defendant denies the allegations set forth in Paragraph 51 of Plaintiffs’ Second Amended Complaint.52. The Defendant denies the allegations set forth in Paragraph 52 of Plaintiffs’ Second Amended Complaint.53. The Defendant denies the allegations set forth in Paragraph 53 of Plaintiffs’ Second Amended Complaint.54. The Defendant denies the allegations set forth in Paragraph 54 of Plaintiffs’ Second Amended Complaint.55. The Defendant denies the allegations set forth in Paragraph 55 of Plaintiffs’ Second Amended Complaint.56. The Defendant denies the allegations set forth in Paragraph 56 of Plaintiffs’ Second Amended Complaint.AFFIRMATIVE DEFENSESThe Plaintiffs’ damage or injury was caused by the Plaintiffs’ violation of law, statute orother regulation enacted to govern the conduct of the parties at the time and place of thealleged accident.The Plaintiff has failed to mitigate, minimize or avoid damages, if any, alleged in thePlaintiffs’ Second Amended Complaint, accordingly, any recovery must be reduced by theamount of damage resulting from such failure.The Second Amended Complaint fails to state a claim against the defendant upon whichrelief can be granted and therefore, the Complaint should be dismissed pursuant to Mass.R. Civ. P. 12(b)(6).The Second Amended Complaint should be dismissed for insufficiency of process.The Plaintiff was comparatively negligent in causing his injuries and the negligence of thePlaintiff was greater than that of the Defendant and the recovery of the Plaintiff is therebybarred.If Plaintiff is entitled to recover against the Defendant, any such recovery must be reducedin accordance with the comparative negligence statute, G.L. c. 231, § 85 since thenegligence of the Plaintiff was the proximate cause of the injuries allegedly sustained.The harm, if any, suffered by Plaintiff was caused by one for whose conduct Defendant isnot legally responsible, and Plaintiffs’ recovery is thereby barred.The Plaintiff has been fully and completely compensated and is not entitled to recover anydamages from the Defendant.Plaintiffs’ Second Amended Complaint should be dismissed for lack of personaljurisdiction.10. The Plaintiff failed to provide the Defendant with timely and/or sufficient notice and, accordingly, Plaintiffs’ recovery is therefore barred.11 Plaintiffs’ claims are barred by the statute of limitations.12. Any alleged act or omission of Defendant was not the proximate cause of Plaintiffs’ injuries, which instead were the result of intervening and/or superseding causes for which Defendant is not responsible.13. Plaintiffs’ claims are barred, in whole or in part, because his injuries were not reasonably foreseeable.14. The Defendant reserves the right to amend this list of defenses. JURY CLAIM The Defendant claims a trial by jury as to all issues and claims. PRAYER FOR RELIEF WHEREFORE, Defendant prays that this Honorable Court: Enter judgment in favor of Defendant with respect to each cause of action asserted in the Second Amended Complaint; Award Defendant its costs and expenses, including reasonable attorneys’ fees; and Grant Defendant such other and further relief as this Court deems just and proper.Respectfully submitted. Defendants. FEDEX FREIGHT, INC. AND JOHN DOE, By its attorney, ZI Andrew J. Fay y/(BBO# 550058 Fay Law Grod , LLC One Boston Place, 26th Floor Boston, MA 02108 Phone: (617) 826-6006 Fax: (617) 941-7100 afay@faylawgrp.comDated: July 15, 2021 Certificate of Service I, Andrew J. Fay, hereby certify that on this 15" day of July 2021, I served a copy of theforegoing document by sending a copy of it by electronic mail to: Donald R. Grady, Jr., BBO #544841 Peter R. Chandler, BBO #7033139 SHEFF LAW OFFICES, P.C Ten Tremont Street, 7" Floor Boston, MA 02108 (617)227-7000 dgrad shefflaw.com pchandler@shefflaw.com Andrew J, Fay 10
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Ruling
SHERLEEN HUDSON, AN INDIVIDUAL VS MONA ALCALA, AN INDIVIDUAL, ET AL.
Aug 07, 2024 |Renee C. Reyna |19STCV38804
Case Number: 19STCV38804 Hearing Date: August 7, 2024 Dept: 29 Hudson v. Alcala 19STCV38804 Defendants Motion to Compel Plaintiff to Execute Authorization, or alternatively, Authorizing Release of Plaintiffs Medical Records Tentative The motion is denied. Background On October 30, 2019, Sherleen Hudson (Plaintiff) filed a complaint against Mona Alcala, Carlos Alcala (collectively Defendants), and Does 1 through 50 for negligence arising out of an automobile accident occurring on October 30, 2017. On May 26, 2021, and February 14, 2022, Defendants filed answers. On July 3, 2024, Defendants filed this motion seeking an order (1) directing Plaintiff to sign a HIPPA Authorization for Release of Records or in the alternative, (2) authorizing the Department of Veterans Affairs to release Plaintiffs medical records. No opposition has been filed. Legal Standard The process by which a party may obtain discovery from a person who is not a party to the action is through a deposition subpoena. (Code Civ. Proc., § 2020.010, subd. (b).) Personal service of the deposition subpoena on the non-party is required. (Code Civ. Proc., § 2020.220, subd. (b).) A deposition subpoena may command any of the following: (a) Only the attendance and testimony of the deponent &. (b) Only the production of business records for copying &. (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) Except as specifically modified by the Civil Discovery Act, the provisions of Code of Civil Procedure sections 1985 through 1997 apply to deposition subpoenas. (Code Civ. Proc., § 2020.030.)¿ Code of Civil Procedure section 1987.1, subdivision (a), states: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. Discussion Motion to Compel Authorization Defendants cite no statutory authority for an order compelling a party to sign an authorization for the release of their medical records, and the Court is aware of none. Generally, courts lack the power to order civil discovery by a method that is not authorized in the Code of Civil Procedure. (Haniff v. Super. Ct. (2017) 9 Cal.App.5th 191, 200.) The Court is aware of two cases that are potentially on point. In both cases, the superior court had issued an order compelling a party to provide an authorization for disclosure of medical records, but in neither case did the Court of Appeal directly address whether the superior court had acted properly in doing so (or had the authority to do so). Rather, in Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913, the Court of Appeal affirmed a sanction against a party who had violated the court order to provide the authorization, without ruling on whether the underlying order was properly issued. And in Coats v. K-Mart Corp. (1989) 215 Cal.App.3d 961, the issue on appeal related to the statute of limitations, although the superior court had issued an order for a compelled authorization for the records of a decedent. (The Court is also aware of a third case, Little v. Superior Court (1968) 260 Cal.App.2d 311, in which the Court of Appeal reversed (on other grounds) a judgment of contempt for failing to comply with an order for a compelled authorization.) Of course, cases do not provide authority or guidance on issues that the appellate court did not address or decide. There is a statutorily authorized procedure for obtaining records from a non-party: issuing and enforcing a subpoena, whether under Code of Civil Procedure section 1987.1 or section 2020.020. Indeed, in the Miranda case, the Court of Appeal was puzzled regarding why this standard procedure had not been followed. (Miranda, supra, 117 Cal.App.4th at 918 fn. 2.) This alternative is discussed below. Given the absence of statutory authority to compel an authorization and the presence of an express statutory alternative, the Court DENIES Defendants motion for an order compelling Plaintiff to provide an authorization for the release of her medical records to Defendants. Motion to Authorize the Department of Veterans Affairs to Release Records Alternatively, Defendants request an order authorizing the Department of Veterans Affairs to release Plaintiffs medical records. Such an order is not authorized by the Civil Discovery Act. If Defendants seek records from a third party, they must issue a subpoena; if the third party does not comply, Defendants can then bring a motion to obtain an order compelling compliance with the subpoena. Those are the procedures set forth in the Code of Civil Procedure; Defendants cannot skip over the step of issuing a subpoena and simply seek a Court order to authorize or permit or compel a third party to take an action. Absent a validly issued and served subpoena, the Court has no jurisdiction to authorize or compel a third party to do anything. Accordingly, the Court DENIES the motion for an order authorizing the Department of Veterans Affairs to release Plaintiffs medical records. Conclusion The Court DENIES Defendants motion. Moving party to provide notice.
Ruling
LGT LGT VS ARTHUR GOLDBERG
Aug 05, 2024 |19STCV44100
Case Number: 19STCV44100 Hearing Date: August 5, 2024 Dept: 31 Status Report Re: Pending Motions Judge Kerry Bensinger, Department 31 HEARING DATE: August 5, 2024 TRIAL DATE: November 4, 2024 CASE: LGT, et al. v. Arthur Goldberg, et al. CASE NO.: 19STCV44100 The court prepared the following report to assist counsel in determining the status and readiness of each of the eight pending motions. DEFENDANTS MOTIONS Defendants have three motions pending. All three motions are fully briefed and ready to be argued. Those motions are: 1. Biers Motion for Protective Order Motion: Initially filed 3/20/24; withdrawn 4/16/24; re-filed 4/19/24 Initial Hearing Date: 4/17/24 Hearing Date after re-filing: 5/17/24 Opposition: Filed 5/6/24 and 5/10/24 (two oppositions filed) Reply: filed 5/10/24 2. Skipper-Dottas Motion for Protective Order Motion: Initially filed 3/22/24; re-filed 4/18/24 Initial Hearing Date: 4/30/24 Hearing Date after re-filing: 5/17/24 Opposition: 5/6/24 and 5/10/24 (two oppositions filed) Reply: No reply filed. Skipper-Dotta has not requested a continuance to file a reply. 3. Specially Set Hearing For Selection Of A Discovery Referee List of nominees: Filed 5/3/24 (by both parties) Initial Hearing Date: 5/17/24 PLAINTIFFS MOTIONS Plaintiff has five motions pending. Two are ready; two are not ready; and one lacks a proof of service for the initial filing. PLAINTIFFS MOTIONS THAT ARE READY TO BE HEARD: 1. Plaintiffs Motion To Cont. & Set On 5/15/24 To Revisit & Change 4/15/24 Orders & All Orders Commencing With 12/14/23 Denial Of Compelling Order Motion: filed 4/17/24 Initial Hearing Date: 5/15/24 Opposition: filed 5/2/24 (Goldberg filed an opposition; Skipper-Dotta and Bier filed a joint opposition) Reply: filed 5/8/24 2. Plaintiffs Motion To Compel Missed Deposition Of Defendant Arthur L. Goldberg To The January 9, 2024, Deposition Subpoena And Notice Of Taking Per That Subpoena Setting Deposition On January 22, 2024 And For $2,700.00 In Monetary Sanctions And Also Compliance With Subpoena & Civil Contempt For Noncompliance Motion: filed 2/1/24 Initial Hearing Date: 5/8/24 Opposition: filed 4/5/24 Reply: filed 4/11/24 PLAINTIFFS MOTIONS THAT ARE NOT READY TO BE HEARD BECAUSE REPLIES HAVE NOT BEEN FILED: Plaintiff contends that either because of the complications with electronic filings due to the ransomware attack on the court which affected electronic filings from roughly July 19 through July 24, and/or Plaintiffs counsels injury sustained on July 12, 2024, (as described in Plaintiffs counsels ex parte application filed 7/29/24), Plaintiff was unable to timely file her reply briefs on the following motions: 3. Plaintiffs Motion To Revisit & Change 4/15/24 Orders & All Orders Commencing With 12/14/23 Denial Of Compelling Order Motion: Filed 4/19/24 Initial Hearing Date: 6/4/24 Opposition: Filed 6/3/24 (Goldberg only) Reply: No reply filed[1] 4. Plaintiffs Motion To Tax Costs Motion: filed 5/13/24 Initial Hearing date: 5/30/24 Opposition: filed 5/16/24 (by Goldberg and WPLC) Reply: No reply filed Plaintiffs Motion That Lacks a Proof of Service: 5. Plaintiffs Motion For Reconsideration Motion: filed 5/7/24 Opposition: none Reply: none The motion lacks a proof of service. Dates of continuances: - On 5/17/24, the court granted Plaintiffs ex parte application to continue the hearings because of Plaintiffs counsels medical issues. Several motions were continued to 6/14/24 and others to 6/28/24. - On 6/7/24, the court (Escalante, J.) granted Plaintiffs ex parte application to continue the hearings because of Plaintiffs counsels medical issues. The matters were continued to 6/28/24. - On 6/24/24, the court granted Plaintiffs ex parte application to continue the hearings because of an internet outage that affected Plaintiffs counsels computer and counsels medical issues. Defendants motions were continued to 7/16/24. Plaintiffs motions were continued to 7/19/24. - On 7/3/24, the court, on its own motion, continued the hearings on Plaintiffs motions to 7/29/24 (clerical error initially continued the hearing to 7/26) and continued the hearings on Defendants motions to 7/25/24. - On 7/25/24, Plaintiffs counsel requested to continue the hearing because of illness and lack of a court reporter. The court continued the hearings on all motions (both Plaintiffs and Defendants motions) to 7/31/24. - On 7/31/24, the court continued the hearing on all matters to 8/5/24 because, on 7/30/24, Plaintiffs counsel filed his 7th motion to disqualify the judicial officer. On 7/29/24, Plaintiffs counsel filed a request for Accommodation by Persons with Disabilities. Based upon the foregoing, the court intends to grant Plaintiffs request for a continuance of the two motions that lack replies and to allow Plaintiffs counsel to serve the motion for reconsideration, which lacks a proof of service, on opposing counsel. The court will set a new hearing date on these three motions. Argument on the remaining matters that are fully briefed and scheduled to be heard today will depend upon the outcome of the Vesco hearing. [1] The court notes that while the hearing dates were continued, there was no discussion whether the filing dates for the reply briefs were also continued to the new hearing dates. Given this lack of specificity, the court will allow Plaintiff to file her reply briefs five court days prior to the newly scheduled hearing dates.
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
MANUEL VALDEZ, ET AL. VS CHEDRAUI USA, INC., ET AL.
Aug 08, 2024 |23PSCV03140
Case Number: 23PSCV03140 Hearing Date: August 8, 2024 Dept: 6 CASE NAME: Manuel Valdez, et al. v. Chedraui USA, Inc., dba El Super, et al. Defendant/Cross-Complainant Covina Marketplace, LLCs Motion for an Order Seeking Leave to Amend Cross-Complaint TENTATIVE RULING The Court GRANTS Covina Marketplaces motion for leave to amend its cross-complaint. Covina Marketplace must file and serve the First Amended Cross-Complaint within 20 days of the Courts order. Covina Marketplace is ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a wrongful death case. On October 10, 2023, plaintiffs Manuel Valdez, Chelsea Valdez-Gutierrez, Manuel Alexander Valdez, Daisy Valdez, Yvette Gutierrez Valdez, Maria Gutierrez, Estate of Rosalva Valdez, by and through its administrator, Manuel Valdez (collectively, Plaintiffs) filed this action against defendants Chedraui USA, Inc., dba El Super, HB Property Management, Inc., Oscar Gonzalez, George Gonzalez, and Does 1 through 50, alleging causes of action for wrongful death (negligence) and survival. On January 11, 2024, Plaintiffs filed a doe amendment naming Covina Marketplace, LLC as a defendant. On May 21, 2024, Plaintiffs filed a doe amendment naming Priority Property Group, Inc. as a defendant. On March 1, 2024, Defendant Chedraui USA, Inc., dba El Super (El Super) filed a cross-complaint against HB Property Management, Inc., Oscar Gonzalez, George Gonzalez, Covina Marketplace, LLC, and Roes 1 through 20, alleging causes of action for express indemnity, equitable indemnity, comparative indemnity, contribution, and declaratory relief. On May 16, 2024, El Super filed roe amendments to its cross-complaint, naming The Salomon Wainberg and Olga Wainberg Family Trust and Olga Wainberg as cross-defendants. On May 24, 2024, El Super filed a roe amendment naming Priority Property Group, Inc. (Priority Property) as a cross-defendant. On July 25, 2024, El Super dismissed The Salomon Wainberg and Olga Wainberg Family Trust and Olga Wainberg from its cross-complaint. On May 29, 2024, Defendant Covina Marketplace, LLC (Covina Marketplace) filed a cross-complaint against El Super and Roes 1 through 20, alleging causes of action for express written indemnity, full or partial equitable indemnification, declaratory relief, and indemnity. On July 9, 2024, Covina Market place filed a roe amendment, naming Oscar Gonzalez and George Gonzalez as cross-defendants. On July 3, 2024, Covina Marketplace moved for leave to amend its cross-complaint. The motion is unopposed. LEGAL STANDARD Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a)(1).) This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Under Rule 3.1324, subdivision (a) of the California Rules of Court, a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324, subd. (a).) Under Rule 3.1324, subdivision (b) of the California Rules of Court, a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324, subd. (b).) DISCUSSION Covina Marketplace seeks leave to amend its cross-complaint to add Defendants Oscar Gonzalez (Oscar) and George Gonzalez (George) as cross-defendants, dismiss the Fourth Cause of Action for indemnity, and add a cause of action for apportionment. Covina Marketplace indicate that its prior counsel mistakenly failed to add Defendants Oscar and George as cross-defendants, even though the death of decedent Rosalva Valdez was directly due to their negligence. Covina Marketplace indicates that due to the way its cross-complaint is currently worded, Oscar and George cannot be added via roe amendment without the cross-complaint being subject to demurrer. Covina Marketplace further indicates that the Fourth Cause of Action for indemnity appears to be duplicative of the Second Cause of Action for equitable indemnity, and seeks to replace the Fourth Cause of Action with one for apportionment. The Court finds Covina Marketplace has substantially complied with the requirements of the California Rules of Court for obtaining leave to file an amended cross-complaint. Covina Marketplace provided a copy of the proposed First Amended Cross-Complaint. (See Motooka Declaration, Ex. A.)[1] The effect of the proposed amendment would be to add Oscar and George as cross-defendants, both of whom Covina Marketplace contend negligently caused or contributed to the death of decedent Rosalva Valdez. (Motooka Decl., ¶ 4; Motion, 4:14-17.) Covina Marketplace has also shown that its prior counsel inadvertently omitted George and Oscar from the cross-complaint, but that Covina Marketplace acted quickly by filing this motion a month after the departure of its prior counsel. (Motooka Decl., ¶¶ 3-4.) The Court also notes no opposition to this motion, which the Court construes as a tacit admission that Covina Marketplaces arguments are meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motionand Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]]) CONCLUSION The Court GRANTS Covina Marketplaces motion for leave to amend its cross-complaint. Covina Marketplace must file and serve a signed First Amended Cross-Complaint within 20 days of the Courts order. Covina Marketplace is ordered to give notice of the Courts ruling within five calendar days of this order. [1] The Court does note, however, that Covina Marketplace did not specify by page, paragraph, and line number where the allegations were to be added or deleted, as is required under Rule 3.1324, subdivisions (a)(2) and (a)(3), of the California Rules of Court. (Cal. Rules of Court, rule 3.1324, subds. (a)(2), (a)(3).) The Court admonishes Covina Marketplace to fully comply with the requirements of the California Rules of Court going forward.
Ruling
LEE vs BUTT
Aug 07, 2024 |CVPS2301099
Motion to Compel Attendance at DepositionCVPS2301099 LEE vs BUTTby ASIM BUTTTentative Ruling: Grant. Plaintiff’s opposition to the motion is not well taken. Plaintiff provides noexcuse for failure to appear at a properly noticed deposition. Unless the deposition was conductedprior to the time of the hearing, Plaintiff Lee is ordered to appear and provide deposition testimonyand documents responsive to the Demand for Production accompanying the Deposition Notice within10 days from the date notice of this order is given. In any case, responding party is ordered to payattorney’s fees and costs to moving party, in the amount of $1910.00, within 30 days of service ofnotice. The Court finds the hourly rates are reasonable and within the acceptable range of ratescharged by attorneys in this community for similar work of similar quality. The Court finds that thehours expended are also reasonable.
Ruling
FCS056706 - ESPINOSA, JOHN; ET AL v THE CITY OF VACAVILLE(DMS)
Aug 05, 2024 |FCS056706
FCS056706Motion for Summary JudgmentTENTATIVE RULINGDefendant City of Vacaville’s motion for summary judgment is granted.Defendant has established that it is entitled to design immunity. (Gov. Code § 830.6.)“[A] public entity claiming design immunity must establish three elements: (1) a causalrelationship between the plan or design and the accident; (2) discretionary approval ofthe plan or design prior to construction; and (3) substantial evidence supporting thereasonableness of the plan or design.” (Cornette v. Dep’t of Transp. (2001) 26 Cal.4th63, 69.) Because “the deferential ‘substantial evidence’ standard” applies to determinewhether a reasonable person would have approved the design, the normal rulesgoverning a motion for summary judgment are not fully applicable to cases involvingdesign immunity. (Wyckoff v. State of Cal. (2001) 90 Cal.App.4th 45, 50-51; Grenier v.City of Irwindale (1997) 57 Cal.App.4th 931, 940.) The public entity is entitled toimmunity when there is substantial evidence of reasonableness, even if contradicted,and a civil engineer’s opinion regarding reasonableness is substantial evidence.(Grenier, 57 Cal.App.4th at 940-941.)Plaintiffs allege that the intersection “was dangerous and defectively panned, designed,drafted, engineered, constructed and positioned” and that Decedent’s fatal injuries“were a legal result of … the dangerous conditions”. (FAC, ¶¶ 18(a), 26.) It isundisputed that the plans for the intersection were designed by professional engineeringfirms and approved by a city engineer exercising his discretionary authority. (Plaintiffs’Separate Statement in Opposition, nos. 28-30, 34-36, 40-42.) It is undisputed that theplans “included, among other things, the design and layout of roads that make up thesubdivision, a street lighting plan, a planting plan, a stop sign to control traffic turningfrom Tipperary Drive onto BVR and a stop line marked on the pavement on TipperaryDrive at BVR”. (Id. at no. 37.) Defendant presents evidence that the plans employedengineering standards for sight lines and that the design of the intersection was andremains reasonable. (Decl. of Owens, ¶¶ 13, 23.)Consequently, the burden shifted to Plaintiffs to “establish all three elements of the lossof the design immunity”. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1268;Mirzada v. Dep’t of Transp. (2003) 111 Cal.App.4th 802, 506-807.) These elementsare: “(1) the plan or design has become dangerous because of a change in physicalconditions; (2) the public entity had actual or constructive notice of the dangerouscondition thus created; and (3) the public entity had a reasonable time to obtain thefunds and carry out the necessary remedial work to bring the property back intoconformity with a reasonable design or plan, or the public entity, unable to remedy thecondition due to practical impossibility or lack of funds, had not reasonably attempted toprovide adequate warnings.” (Cornette v. Dep’t of Transp. (2001) 26 Cal.4th 63, 66;Laabs, 163 Cal.App.4th at 1268; Mirzada, 111 Cal.App.4th at 806.) Design immunity isnot lost simply because of a change in physical conditions and “[t]here must beevidence that the design, under changed physical conditions, has produced adangerous condition of which the [public entity] is aware.” (Alvarez v. State of Cal.(1999) 79 Cal.App.4th 720, 737.)Plaintiffs have not met their burden. Although Plaintiffs present additional material factsestablishing a physical change in conditions in the form of trees and vegetation thatallegedly grew into sight obstructions for drivers (Plaintiff’s Separate Statement inOpposition, Additional Undisputed Facts 1-4), they have asserted no facts contended tobe undisputed, and have provided no evidence, establishing that Defendant had actualor constructive notice of the change in physical conditions, that Defendant had actual orconstructive notice that the change in physical condition was dangerous, or thatDefendant had reasonable time to obtain funds and carry out necessary remedial work.
Ruling
BORGES, JOVITA SANCHEZ vs CITY OF MODESTO
Aug 08, 2024 |CV-22-002762
CV-22-002762 – BORGES, JOVITA SANCHEZ vs CITY OF MODESTO – Defendants, Jose A. Toro Soto and Esther Pulido’s Motion for Summary Judgment and/or in the alternative, Motion for Summary Adjudication – GRANTED, and unopposed.Defendants, as the moving parties, have met the initial burden of establishing prima facie entitlement to judgment based on the submitted evidence. The burden then shifts to Plaintiff to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc. §437c(p)(2).) As Plaintiff has failed to submit any controverting evidence, the Court finds that she has failed to meet her burden in this regard.Therefore, Defendants are entitled to judgment in their favor, as they have demonstrated that Plaintiff is unable to establish at least one element of her causes of action for premises liability and negligence in this action, i.e., that Defendants owed her a duty based on the existence of a dangerous condition. (See, e.g., Cadam v. Somerset Gardens Townhouse HOA(2011) 200 Cal.App.4th 383.) Specifically, Defendants’ evidence demonstrates that the uneven sidewalk elevation at issue is trivial as a matter of law under the circ*mstances herein. (See, e.g. Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092.)
Ruling
ANNA OSTROVSKY VS. LEGALMATCH.COM, ET AL
Aug 07, 2024 |CGC23606626
Matter on the Law & Motion calendar for Wednesday, August 7, 2024, Line 10. DEFENDANT DMITRY SHUBOV AN INDIVIDUAL AND VLADIMIR SHUBOV's MOTION TO STRIKE 1ST Amended COMPLAINT. Off calendar. The Grele declaration indicates parties have not met and conferred by phone, in person, or by video conference, as required by CCP 430.41. Responsive pleadings are now due by September 9, 2024. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
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Cheung, Kin N. vs. 43 North Dental Care, LLC dba Gentle Dental Natick et al
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