Preview
D: NA AU OUN PK Dv INDEX NO. 606206/2015NYSCEF Doc. NO. 137 RECEIVED NYSCEF: 02/12/2018 a. ee a oe ne Exhibit X pense rene isaernantes aT. RRL HESE jt reD: NA AU OUN PK Dv INDEX NO. 606206/2015NYSCEF DOC NO-~ 137 RECEIVED NYSCEF C27T. "7 WINTHROP University Hospital . hereby certify that the attached record is in the custody of and is a true and complete record of the condition, transaction, occurrence or event of this institution concerning: q FRANTINO, DESIREE ‘Name of Patient 80171598 (Records from 2010 thru 2014) Medical Record Number / Dates of Service I further certify that this record was made in the regular course of business of this institution, and that it is in the regular course of business of this institution to make such record, and that such record was made at the time of the condition, transaction, occurrence, event or a reasonable time thereafter, APRIL 12, 2016 Date BR a4 | Hoe t-F YY ht Brent Hoggatt Information Access Manager Health Information Management 200 Old Country Rd—Suite 580 Mineola, NY 11501D: NA AU OUN PK PIV INDEX NO. 606206/2015NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 02/12/2018 WINTHROP ADMISSION RECORD MRN 80171598 == I University Hospital FRANTINO, DESIREE Mineola, L. L, New York 11501 F 18 CTH WEINBLATT MARK PED TRN 04/16/2013 AD2066 ENG PATIENT NAME THLE ‘AKAIMAIDEN NAME ‘MED REC NO. ‘ADMITTING NO. FRANTINO, DESIREE 80171598 as ‘ADDRESS ADMIT TIME: “ADMIT DAY "ADMIT DATE: 41 ORCHARD ST 5:39 PM WED 04/16/2013 omy IP COUNTY [STATE] ROOM NSG STA CAPD ‘SERVICE [ETHNICITY | PREF LANG] RACE FARMINGDALE 11735] 280 NY|N55605 NPSA PED |N ENG | W TELEPHONE ‘SEX ] MS REL ‘BIRTH DATE AGE ‘ADMITTING DIAGNOSIS: (516) 420-1353| F| S| CTH ‘SOCIAL SECURITY NO. ‘OCCUPATION |: SEPTIC SHOCK/PNEUMONIA [ATTENDING MD 1D NO. STUDENT EINBLATT MARK 02856 EMPLOYER EMPLOYER TELEPHONE: REFERRING MD TONG, STUDENT EINBLATT MARK 02856 EMPLOYERS ADDRESS: PROCEDURE “TYPEOF ADMISSION, ‘SERVICE TYPE] "ADMIT SOURCE ISOLATION INDIGATOR EDNO. URGENT TRN TH NONE a ‘GUARANTOR NAME ‘GUARANTOR DOB RELATION TO PATIENT [GUARANTOR S00. SEC. NO. MODE OF ARRIVAL FRANTINO, DESIREE SELF AP ‘GUARANTOR EMPLOYER GUARANTOR EMPLOYER ADDRESS: STUDENT ‘GUARANTOR EMPLOYER TELEPHONE "ADVANCE DIRECTIVE: INFO. COPY ON FILE: BILL OF RIGHTS [PAT PRIOR HOSPITAL NAME XY N Y N WINTHROP UNIV. HOSF PRIMARY EMERGENCY CONTACT RELATION TO PATIENT TELEPHONE PRIOR HOSPITAL DATES FRANTINO PAUL FATHER 516 420-1353 041013 041613 MERGENGY CONTACT ADDRESS ‘BUSINESS TELEPHONE 41 ORCHARD ST FARMINGDALE NY 11735 718 463-7896 ‘SECONDARY EMERGENCY CONTACT RELATION TO PATIENT TELEPHONE BUSINESS TELEPHONE FRANTINO VIOLA MOTHER 516 420-1353 917 862-5617 ‘SITE OF ACCIDENT ‘ACCIDENT DATE/TIME, AL ‘DX COMMENTS: [COMMENTS PLAN CODE PLAN DESCRIPTION POLICY NO. ‘GROUP NO. PRIORITYVERIFY INDICATOR PATIENT RELA INSURANCE TELEPHONE ‘SUBSCRIBER NAME TO SUBSCRIBER PREFIX SUFFIX AUTH. NO. KO1 HIP MEDICAID 999999 1 YX FRANTINO DESTREE 1 866) 447-9717 24572893 G25 MEDICAID GME DR60601M 2 XY FRANTINO, DESEREE ‘COMMENTS COMMENTS CLERGY VISITS: Fo PT. STATUS DEL TYPE Ww IA "ANNOINTED BY [ORIGIN CODE ADMITTED BY ST_JOSEPH'S HOSPITALAD2066 KOi HIP MEDICAID EFFE 10/1/12, TRACE 4572 9 PER WEB ADI to: MA ELIG PER HDX=HIP ADIR 4 Pisrbution 625 Records Patient Accounts 75489-A 5/99 Rev. 06/07, 10/07 Social WorkD: NA AU OUN PK PIV INDEX NO. 606206/2015NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 02/12/2018 WINTHROP ADMISSION RECORD MRN 80171598 ! University Hospital FRANTINO ,DESIREE Mineola, L. |., New York 11501 F 8 CTH WEINBLATT MARK PED 04/16/13 AD5773 ENG PATIENT NAME THLE ‘AKAIMAIDEN NAME MED REG NO. ‘ADMITTING NO. FRANTINO , DESIREE 80171598 as "ADDRESS: “ADMIT TIME “ADMIT DAY “ADMIT DATE 41 ORCHARD ST 05:39P TUE 04/16/13 cry ZIP COUNTY STATE) ROOM NSO STA CAPD ‘SERVICE [ETHNICITY [PREF LANG] RACE FARMINGDALE 11735]280 NY |N55605 |NP5A PED N ENG Ww TELEPHONE SEX] MS REL BIRTH DATE ‘AGE ‘ADMITTING DIAGNOSIS 516-420-1353 | F | S| CTH 18 SEPTIC SHOCK/PNEUMONIA ‘SOCIAL SECURITY NO. ‘OCCUPATION ATTENDING MD TO NO. STUDENT WEINBLATT MARK 02856 EMPLOYER EMPLOYER TELEPHONE JREFERRING MD 1D NO. STUDENT = - WEINBLATT MARK 02856 EMPLOYERS ADDRESS PROCEDURE ‘TYPE OF ADMISSION ‘SERVICE TYPE] "ADMIT SOURCE ISOLATION INDIGATOR ED NO. URGENT TRN TH es GUARANTOR NAME ‘GUARANTOR DOB | RELATIONTO PATIENT [GUARANTOR SOC. SEC. NO. ‘MODE OF ARRIVAL FRANTINO , DESIREE ‘GUARANTOR EMPLOYER | ‘GUARANTOR EMPLOYER ADDRESS SEL AP STUDENT ‘GUARANTOR EMPLOYER TELEPHONE ‘ADVANCE DIRECTIVE: INFO. COPY ON FILE, BILL OF RIGHTS [PAT PRIOR HOSPITAL NANE - - Y N Y N WINTHROP UNIV. HO PRIMARY EMERGENCY CONTACT RELATION TO PATIENT TELEPHONE PRIOR HOSPITAL DATES FRANTINO , PAUL FATHER 516-420-1353 04/10/13 04/16/13 EMERGENCY CONTACT ADDRESS ‘BUSINESS TELEPHONE 41 ORCHARD ST FARMINGDALE NY 11735 718-463-7896 ‘SECONDARY EMERGENCY CONTACT RELATION TO PATIENT TELEPHONE ‘BUSINESS TELEPHONE FRANTINO , VIOLA MOTHER 516-420-1353 917-862-5617 ‘SITE OF ACCIDENT ACCIDENT DATE/TIME ‘DX COMMENTS: ‘COMMENTS PLAN CODE PLAN DESCRIPTION POLIGY NO. “GROUP NO. PRIORITVIVERIFY INDICATOR SUBSCRIBER NAME PT REL PREFIX SUFFIX INSURANCE TELEPHONE. AUTH. NO. KO1 FRANTINO PR6O6O1M HIP MEDICAID , DESIREE am” 866-447-9717 999999 1 N - - ‘COMMENTS [COMMENTS ‘CLERGY VISITS: FC Pi. STATUS DEL TYPE Ww IA "ANNOINTED BY [ORIGIN CODE "ADMITTED BY ST JOSEPH'S HOSPITA AD5773 URGENT TRANSFER/NEEDS AUTH]T Disteibution to: Medical Records ationt Accounts. 75489-A 5/99 Rev. 06/07, 10/07D: NA AU OUN PK PIV INDEX NO. 606206/2015NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 02/12/2018 MRN 80171598 1007164 VWiibs in. RE FRANTINO, DESIREE F Univers: Hospital 18 CTH WEINBLATT MARK PED TRN 04/16/2013 NU0359 ENG PATIENT CONSENT TO THE RELEASE OF RECORDS FOR NYS EXTERNAL APPEAL The patient, the patient's designee, and the patient's provider have a right fa an external appeal of certain adverse determ ns made hy health plans. In the event an external appeal is filed, a consent to the release of medical records. signed and dated by the patient, is necessary. An extemal apgeal agent assigned by the New York State Insurance Department wit! use this consent to obtain medical information from the patient's health plan and health care providers. The name and address of the external appeal! agent will be provided with the request for medical information. V authorize my health plan and providers to release all relevant medical or treatment records related to the external appeal, including any HIV-related information, mentai health treatment information, or alcohol / substance abuse treatment informaiion, to the external apyeal ageni. | understana ihe external appeal agent will use this information solely to make a decision on the appeal and the information will be kept confidential and not released to anyone else. This release is valid for one year. | may revoke my consent at any time, except lo the extent that action has been taken in reliance on it, by contacting the New York State {nsurarice Department in writing. | understand that my health plan cannot condition trectment, enrol! tenet, eligibility. er payment on whether | sign this for. | ackncwledge that the decision of the external appeal agent is binding. } agree not to commence a laga! proceeding against the external appeala to review the agent's decici iy: proviced. howover, this shail rt limit my right to bring an action against ‘he eyterr: appeal agent for damages for bad fait or grass negligence, or to bring an action against my health plan. 1) a Qe A atils Signature of Patient ‘Date) {Or the pationt’s representative wee 1 consent to the release of the patient's medical recerds. If a parent signs for a ininor child, indicate the age of the chi Ifa guardian or executor signs, include precf af the appointment.) Print Nove: Patient's Health Plan ID#: Tebrcerd AR Goto! hol SATISD: NA AU OUN PK PIV INDEX NO. 606206/2015NYSCEF DOC. NO. 137 RECEIVED NYSCEF 02/12/2018 SY MRN 80171598 100716419 WINTHROP University Hospital FRANTINO, DESIREE 18 Fe CTH WEINBLATT MARK PED TRN Mineola, L.l., New York 11501 ENG 04/46/2013 AD1841 Acknowledgement | acknowledge receipt of the booklet, Your Rights as a Hospita! Pat.ent in New York State, prepared by the New York State Department of Health. r Patient's Bill of Rights An Important Message Regarding Your Rights as a Hospital Inpatient Admission Notice to Medicare Beneficiaries Important Message from Medicare Planning in Advance for Your Medical Treatment (an explanation of Advance Directives) Deciding about CPR: Do-Not-Resuscitate (DNR) Orders - A Guide for Patients and Families Appointing Your Health Care Agent - New York Siate’s Proxy Law Health Care Proxy form Letter from the New York State Department of Health (explains the Sparcs data collection System) Organ Donor information Smoking Cessation / Educational Material lf you have any questions regarding these documents, please speak to your physician, nurse or call Patient Relations at x2058. -- a Patient's Signature nee GVA Date — U Signature of Patient's De —— ynated Representative Indi seiko te relationship to patient HIS IS'‘TO BECOME A PART OF THE PATIENTS PERMANENT MEDICAL RECORD 70027 (19/00) Rev 7/01, 8/05D: NA AU OUN PK PIV INDEX NO. 606206/2015NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 02/12/2018 WINTHROPUniversity Hospital Mineola, L. L, New York 11501 ADMISSION RECORD MRN 80171598 FRANTINO ,DESIREE 1 18 FE CTH WEINBLATT MARK PED 046/13. AD5773 ENG: PATIENT NAME TITLE ‘AKAMMAIDEN NAME ‘MED REG NO. ‘ADMITTING NO. FRANTINO , DESTREE 80171598 a ‘ADDRESS: “ADMIT TIME “ADMIT DAY ‘ADMIT DATE 41 ORCHARD ST 05:39P TUE 04/16/13 cry ZF COUNTY /STATE| ROOM ‘NSG STA CAPD ‘SERVICE [ETHNICITY [PREF LANG] RACE FARMINGDALE 117351280 NY|N55605 |NP5A PED N ENG Ww TELEPHONE Sex] Ms REL ‘BIRTH DATE AGE [ADMITTING DIAGNOSIS: 516-420-1353 F[S|CTH 18 SEPTIC SHOCK/PNEUMONIA ‘SOCIAL SECURITY NO. OCCUPATION [ATTENDING MD_ 1D NO. STUDENT WEINBLATT MARK 02856 EMPLOYER EMPLOYER TELEPHONE EFERRING MD TO NO. STUDENT - - WEINBLATT MARK 02856 EMPLOYERS ADDRESS, PROCEDURE ‘TYPE OF ADMISSION. SERVICE TYPE] “ADMIT SOURCE ISOLATION INDIGATOR ED NO. URGENT TRN TH a GUARANTOR NAME ‘GUARANTOR DOB RELATION TO PATIENT ‘GUARANTOR SOC. SEC. NO. ODE OF ARRIVAL FRANTINO ,DESIREE ‘GUARANTOR EMPLOYER | ‘GUARANTOR EMPLOYER ADDRESS SF AP STUDENT ‘GUARANTOR EMPLOYER TELEPHONE "ADVANCE DIRECTIVE: INFO. COPY ON FILE BRL OF RIGHTS [PAT PRIOR HOSPITAL NAME: - - Yy N Y N WINTHROP UNIV. HO PRIMARY EMERGENCY CONTACT RELATION TO PATIENT TELEPHONE PRIOR HOSPITAL DATES FRANTINO , PAUL FATHER 516-420-1353 04/10/13 04/16/13) EMERGENCY CONTACT ADDRESS [BUSINESS TELEPHONE 41 ORCHARD ST FARMINGDALE NY 11735 718-463-7896 "SECONDARY EMERGENCY CONTACT RELATION TO PATIENT, TELEPHONE BUSINESS TELEPHONE FRANTINO , VIOLA MOTHER 516-420-1353 917-862-5617 ‘SITE OF ACCIDENT ‘ACCIDENT DATETIME DX COMMENTS ‘COMMENTS PLAN CODE PLAN DESCRIPTION POLICY NO. ‘GROUP NO. PRIORITYNERIFY INDIGATOR ‘SUBSCRIBER NAME PT REL, PREFIX SUFFIX INSURANCE TELEPHONE AUTH. NO. KOL HIP MEDICAID 999999 1 sN FRANTINO , DESIREE 1 66-447-9717 DR60601M E COMMENTS. [COMMENTS H O Jauxervars Fe PT. STATUS: DEL TYPE Ww IA s ANOINTED BY ‘ORIGIN CODE ‘ADMITTED BY ST JOSEPH'S HOSPITA ADS773 URGENT TRANSFER/NEEDS AUTHJT Distribution to: jedical Records 75489-A 5/99 Rev. 06/07, 10/07 senD: NA AU OUN PK Dv INDEX NO. 606206/2015NYSCEF DOC. NO. 137 RECEIVED NYSCEF 02/12/2018 WwUniversity Hospreal P “**PREADMIT/ASU WORKSHEET** Mineola, L. 1, New York 11801 PATIENT NUMBER: 100716419 PATIENT NAME: FRANTINO ,DESIREE ISOLATION: - MRN: 80171598 HOSP SVC: PED PATIENT INFO: ADDRESS: 41 ORCHARD ST PT #: CITY: FARMINGDALE STATE: NY ZIP: 11735 PHONE NUMBER: 516-420-1353 BIRTHDATE: a MARITAL STATUS: Ss SEX: F RELIGION: CTH RACE: Ww ALT PHONE NUMBER: ETHNICITY: N PREFERRED LANGUAGE: ENG EMPLOYER INFO: OCCUPATION: STUDENT EMPLOYER: STUDENT EMPLOYER ADDRESS: CITY: STATE: ZIP: EMPLOYER PHONE: -- GUARANTOR INFO: GUARANTOR NAME: FRANTINO ,DESIREE RELATIONSHIP TO PATIENT: ADDRESS: 41 ORCHARD ST APT: CITY: FARMINGDALE STATE: Ny ZIP: 11735 PHONE NUMBER: 516-420-1353 INSURANCE INFO: PLAN CODE; KO1 PLAN DESCRIPTION: HIP MEDICAID POLICY NUMBER: ADR60601M01 SUBSCRIBER: FRANTINO ,DESIREE PREFIX: SUBSCRIBER REL TO PT: 1 PRIORITY: 1 HOME PHONE: 516-420-1353 INSURANCE CO PHONE: 866-447-9717 AUTHORIZATION NUMBER: PLAN CODE; PLAN DESCRIPTION: POLICY NUMBER: DR60601M SUBSCRIBER: PREFIX; SUBSCRIBER REL TO PT: PRIORITY: HOME PHONE: 7 INSURANCE CO PHONE: -s AUTHORIZATION NUMBER: PLAN CODE: PLAN DESCRIPTION: POLICY NUMBER: SUBSCRIBER: PREFIX: SUBSCRIBER REL TO PT: PRIORITY: HOME PHONE: oe INSURANCE CO PHONE: s AUTHORIZATION NUMBER: PLAN CODE: PLAN DESCRIPTION: POLICY NUMBER: SUBSCRIBER: PREFIX: SUBSCRIBER REL TO PT: PRIORITY: HOME PHONE: ae INSURANCE CO PHONE: + AUTHORIZATION NUMBER; ATTENDING DOCTOR: WEINBLATT MARK ATTN DRNO: 02856 ATTN DR PH#: 516-663-9400 REFERRING DOCTOR: WEINBLATT MARK REF DR NO: 02856 PRIMARY CARE DR: PCP DR NO: CALMA MARIA F 02226 ADMIT DATE: 04/1613 SURGERY DATE: TN, DIAGNOSIS: DIFFICULTY BREATHING COMMENTS: RESP PARTY: AD3283D: NA AU OUN PK Dv INDEX NO. 606206/2015NYSCEF DOC "NOT 37 RECEIVED NYSUEF U2742/2018 Winthrop University Hospital Acct#: 100716419 PtName: FRANTINO DESIREE MR#: 80171598 Gender : Female 8 Die josition lome, Self Care (1) Admit Date : 04/16/2017 Disch Date : 04/20/2013 AP DRGs (NY) DRG Information 584 SEPTICEMIA W MAJOR CC S.l.wt 4.1633 MeanLOS 12 LowTrim 3 High Trim 38 APR (all versions) DRG and MDC Information 720 SEPTICEMIA & DISSEM INFECT APRwt 1.3272 LowTrim 2 HighTrim 20 ALOS 6,62 GLOS 5.77 Status: LOS Iniier 018 INFECTIOUS & PARASITIC DISEASES. 3 Major Severity of Iliness 3 Major Risk of Mortality Principal Diagnosis *0389 Unspecified septicemia Affects secondary DRG *SOl=P Principal diagnosis used for SO! calculation *ROME=P Principal diagnosis used for ROM calculation Present On Admission: Y Secondary Diagnoses **78552 Septic shock (manifestation) *SOl=3 Major % *ROM=4 Extreme Present On Admission: Y #28419 Pancytopenia *SOI=3 Major ROM=2 Moderate Present On Admission: ¥ #486 Pneumonia, organism unspecified SOl=2 Moderate ROM=2 Moderate Present On Admission: Y 99592 Severe sepsis SOl=X Excluded ROM=X Excluded Present On Admission: Y 68601 Pyoderma gangrenosum SOl=1 Minor ROM=1 Minor Present On Admission: Y V1251 Personal history of venous thrombosis and embolism SOl=1 Minor ROM=1 Minor Present On Admission: E Principal Procedure page 1NA AU OUN Dv INDEX NO. 606206/2015NYSCEF DOC. NO. 137 RECEIVED NYSCEF: 02/1P/2018t1 Winthrop University Hospital Acct#: 100716419 PtName: FRANTINO DESIREE MR#: 80171598 3893 Venous catheterization 04/16/2013 02856 Other Procedures 3891 Arterial catheterization 04/16/2013 02856 9804 Transfusion of packed cells 04/18/2013 02856 | certify that the narrative descriptions of the principal and secondary diagnoses and the major procedures performed (oe are accurate and complete to the best of my knowledge. S fielie % —_——_ Physician's Signature Date e page 2D: NA AU OUN PK Dv INDEX NO. 606206/2015 = YSNYSCEF DOC. NU. 137 /2018 ae wi NIGROP University Hospital MRN Mineoia, LI, New York 11504 Yorrsre: ' goo? K . SUMMARY SHEET RARTINO — YesIPee Asks AD! SERVICE (CE DAYS [ADMISSION PHYSICIAN OL wae feZ| [> DISCHARGE PATE DISCHARGE SERVICE | SERVICE DAYS: DISCHARGE PHYSICIAN a [OTHER SERV. TRANS. Fc SERVICE DAYS TRANSFER PHYSICIAN ‘ORG [OTHER SERV. TRANS, TRANSFER SERVICE SERVICE DAYS TRANSFER PHYSICIAN - = {CONSULTANT Ss: uel 2220 WS PROVISIONAL DX: working Dx, complete within 2¢ ts, of admission. BBLS nt ICD-9-CM CODE 6384 PRINCIPAL OX tho one conditiin established after the study to bo chiefly responsitle Ter cccadioring this admission. O3%4 SECONDARY Dx: yiasi Q2Bi4 4 459d 73SSa 4ak Ev6ol PRINCIPAL PROCEDURE: procedure performed for definitive treatment, and most related to the principal a 384 @ . oo «
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NATHAN JACKSON VS PAUL BURKE, ET AL.
Jul 16, 2024 |21STCV08691
Case Number: 21STCV08691 Hearing Date: July 16, 2024 Dept: B NATHAN JACKSON V. PAUL BURKE, ET AL. PETITION TO CONFIRM MINORS COMPROMISE Date of Hearing: July 16, 2024 Trial Date: N/A Department: B Case No.: 21STCV08691 Moving Party: Petitioner Dwain Jackson Responding Party: Unopposed BACKGROUND This action arises from Plaintiff Nathan Jackson, a minor (Plaintiff) sustaining injuries arising from crashing a dirt bike into a walkway railing. On March 5, 2021, Plaintiff filed a Complaint against Defendants Paul Burke (Burke), Yordanose Tesfasilase (Tesfasilase), and Does 1-10, alleging a cause of action for General Negligence. On July 16, 2021, in Nathan Jackson v. Forum Entertainment, LLC, LASC Case No. 21STCV26337 (the 2d Action), Plaintiff filed a Complaint against Defendant Forum Entertainment, LLC (FEL) alleging a single cause of action for General Negligence. On March 18, 2021, in the 2d Action, Dwain Jackson was appointed as guardian ad litem for Plaintiff. On October 26, 2021, the instant action and the 2d Action were deemed related. (10/26/21 Minute Order.) On September 26, 2022, pursuant to stipulation, the Court entered an order consolidating the instant action and the 2d Action. (09/26/22 Order.) The Courts order provided that both cases will be consolidated into case number 21STCV08691. (09/26/22 Order.) On October 19, 2023, Burke and Tesfasilase filed a Cross-Complainant against FEL for: (1) Complete Indemnity; (2) Partial Indemnity; and (3) Declaratory Relief. On February 6, 2024, Plaintiff filed a Notice of Settlement of Entire Case. On June 5, 2024, Parent and Guardian Ad Litem Dwain Jackson (Petitioner) filed the instant Petition to Approve Compromise of Pending Action (the Petition) on behalf of Claimant Nathan Jackson (Claimant). Initially, the Court notes that there is no proof of service pertaining to the Petition. Thus, the Court assumes that no defendant was served with the Petition or its associated papers. [Tentative] Ruling The Petition to Approve Compromise of Pending Action (the Petition) filed on behalf of Claimant Nathan Jackson is DENIED WITHOUT PREJUDICE. DISCUSSION When a minor, a person who lacks legal capacity to make decisions, or a person for whom a conservator has been appointed is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. (Code Civ. Proc., § 372, subd. (a)(1).) The purpose of section 372 is to protect the minor involved in litigation by adding an extra layer of scrutiny to the settlement of the minors claims. (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1339.) Substance of the Petition Claimant, a minor, by and through his Guardian Ad Litem, Petitioner, has agreed to settle his claims against Defendants Burke, Tesfasilase, and FEL for $225,000.00. (Petition, ¶ 10(b)-(c).) The gross amount of settlement is $225,000.00 and attorneys fees in the sum of $56,250.00 are requested to be paid from the gross amount of the settlement. (Petition, ¶¶ 16(a) and 16(e).) Claimants medical expenses to be paid from the proceeds of the settlement amount to $3,320.08. (Petition, ¶ 16(b).) Cost expenses to be paid from the settlement amounts to $2,122.33. (Petition, ¶ 16(d).) The Court finds that the requested attorneys fees, 25% of the total settlement, is fair and reasonable. The declaration of Anthony Willoughby, Esq. complies with Cal. Rules of Court, rule 7.955. However, the Court notes that there is a discrepancy on the Petition as to the net balance of proceeds for Claimant. (See Petition, ¶¶ 15 and 16(f).) Paragraph 15 of the Petition states that Claimant will receive a net balance of $163,234.56 whereas Paragraph 16(f) of the Petition indicates that Claimant will receive a net balance of proceeds of $163,307.59. While the funds are proposed to be deposited in an insured account at one or more financial institutions in this state, Petitioner has not provided any information on the name, branch, or address of such financial institutions. (Petition, ¶ 18(b)(2).) Attachment 18(b)(2) is not attached to the Petition. Additionally, Petitioner has also failed to serve all interested parties with the Petition. As such, the Petition is defective as identified above. CONCLUSION Based on the foregoing, the Petition is DENIED WITHOUT PREJUDICE. Moving party is ordered to give notice.
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TAMERA PINELO VS LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY
Jul 15, 2024 |23STCV11541
Case Number: 23STCV11541 Hearing Date: July 15, 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: July 15, 2024 CASE NUMBER: 23STCV11541 MOTIONS: Motion to Compel Defendants Deposition MOVING PARTY: Plaintiff Tamera Pinelo OPPOSING PARTY: Defendant Jorge Carlos Castro BACKGROUND Plaintiff Tamera Pinelo (Plaintiff) moves to compel Defendant Jorge Carlos Castros (Defendant) deposition. Plaintiff also seeks monetary sanctions. Defendant opposes. No reply has been filed. LEGAL STANDARD If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document . . . described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) A motion under subdivision (a) [above] shall comply with both of the following: 1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. 2. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b).) If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).) MEET AND CONFER The Declaration of Sayeh M. Dayen, Plaintiffs counsel, shows an effort to coordinate Defendants deposition with Defendants counsel since November 2023. DISCUSSION On November 21, 2023, Plaintiff asked for available dates for Defendants deposition but received no response. (Dayen Decl. ¶ 34.) On December 15, 2023, Plaintiff served a deposition notice set for January 8, 2024. (Id. ¶ 4, Exh. C.) Defendant objected on December 29, 2023 because the date was unilaterally set. (Id., Exh. D.) On February 23, 2024, Plaintiff served a second deposition notice set for March 4, 2024. (Id. ¶ 4, Exh. E.) On February 26, 2024, Defendant objected to the second deposition notice and informed Plaintiff he was available for various dates in March via teleconference. Plaintiff then asked for the basis for the teleconference deposition but received no response. (Id. ¶ 7, Exh. G.) In opposition, Defendant contends that the motion is moot since he has agreed to appear for an in-person deposition on August 13, 2024. (Renaud Decl. ¶ 15, Exh. K.) Defendant also seeks monetary sanctions. No reply has been filed. Based on the information above, because Defendant served timely objections, and has now agreed to appear at a noticed deposition, the motion to compel is denied. The Court declines to award monetary sanctions to Defendant since he has not shown a statutory basis under section 2025.450. CONCLUSION AND ORDER Accordingly, Plaintiffs motion to compel Defendants deposition is DENIED. Plaintiff shall provide notice of the Courts ruling and file a proof of service of such.
Ruling
JOHN VU VS JEFFREY GEGIELSKI
Jul 17, 2024 |22STCV20052
Case Number: 22STCV20052 Hearing Date: July 17, 2024 Dept: 74 McDaniel v. Colaianni et al. Defendants Motion to Correct and Confirm Arbitration Award BACKGROUND Plaintiff April McDaniel sued defendants Rodrigue Colaianni and Lisa Colaianni aka Lisa Leroy on September 14, 2022 for (1) breach of contract, (2) negligence, (3) fraud, (4) negligent misrepresentation, and (5) concealment. Plaintiff alleged Defendants knowingly sold her a home replete with construction defects after Defendants negligently remodeled it. On October 31, 2022, the parties stipulated to arbitrate their claims and stay court proceedings in the interim. The arbitrator, Ernest C. Brown, issued a twenty-six-page Final Award on April 19, 2024, awarding Plaintiff $391,114.50, accruing simple interest at 10% annually from the date of the award. (D.Ex. 10, 26:2-7 (Award).) On May 28, 2024, Defendants filed the instant Motion to Confirm the Arbitration Award With Corrections by Striking the Award of Attorneys fees and Pre-Judgment Interest. On July 3, 2024, Plaintiff opposed. On July 10, 2024, Defendants replied. LEGAL STANDARD ¿¿ Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. (Code Civ. Proc., § 1285.) If a petition or response under [section 1285] is duly served and filed, the court shall confirm the award as made ... , unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding. (Id., § 1286.) [T]he court ... shall correct the award and confirm it as corrected if the court determines that: (a) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award; (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted; or (c) The award is imperfect in a matter of form, not affecting the merits of the controversy. (Id., ¶ 1286.6.) [A]n arbitrator's decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties. (Moncharsh v. Heily & Blase¿(1992) 3 Cal.4th 1, 6.) An arbitrator does not exceed their powers by assigning an erroneous reason for their decision. (Id. at 28.) Arbitrators do not exceed their statutory powers merely by rendering an erroneous decision on a legal or factual issue, so long as the issue was within the scope of the controversy submitted to the arbitrators. (Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 348.) DISCUSSION 1. Attorneys Fees Defendants move the Court to strike the arbitrators $87,320.00 attorneys fees award. Defendants mistakenly suggest that the award of attorneys fees and the award of interest [by the arbitrator] are reviewed de novo but the authorities they cite refer to the standard a higher court applies when reviewing a lower courts fees determination. (Mot., 3:27-28.) When a trial court reviews an arbitrators decision, the standard is more deferential, as described above. (See Moncharsh, supra, 3 Cal.4th at p. 6.) Defendants argue Plaintiff is not entitled to fees because she did not attempt to mediate with them before resorting to legal action. The arbitrator found differently. The Final Award includes findings that on May 25, 2022, Plaintiffs counsel demanded prompt mediation, and between June and August 2022, Plaintiff requested that Respondents participate in an early mediation and Respondents and its [sic] counsel did nothing and refused to agree to mediate. (Award, 14:20-26, 15:7-14.) Defendants ask the Court to reverse the arbitrators factual determinations, not to correct them. The Court cannot do so. [P]arties who enter into arbitration agreements are presumed to know the arbitrators decision will be final and binding; arbitral finality is a core component of the parties agreement to submit to arbitration. (SingerLewak LLP v. Gantman (2015) 241 Cal.App.4th 610, 616, quoting Moncharsh, supra, at pp. 6, 10.) The Court defers to the arbitrators finding of fact that Plaintiff tried to mediate and Defendants refused. The arbitrator was thus empowered to award fees. 2. Prejudgment Interest Defendants contend the arbitrators award is not clear and unequivocal as to the scope of interest awarded. (Mot., 10:23-25 [heading].) The contention is unavailing because the award is straightforward. The arbitrator awarded Plaintiff 10% simple annual interest beginning on the date of the award. That rate will continue after judgment. The arbitrator simply formalized the date on which damages were capable of being ascertained for purposes of post-award, prejudgment interest. 3. Attorneys Fees for This Motion A party entitled to attorneys fees in an arbitration award is similarly entitled to fees incurred to confirm it, where fees are otherwise authorized by the parties contract. (See Carole Ring & Associates v. Nicastro (2001) 87 Cal.App.4th 253, 260-261.) The prevailing partys right to fees extends from Code of Civil Procedure section 1293.2, entitling a party to costs after a successful petition to confirm, and Code of Civil Procedure section 1033.5(a)(10), incorporating attorneys fees within costs when authorized by contract. Here, the parties contract authorized a fees award. (See Mot. Ex. 1, ¶ 25 [reasonable fees to prevailing party [i]n any action, proceeding, or arbitration between the parties arising out of [their] Agreement].) The arbitrator determined Plaintiff to be the prevailing party and awarded fees. The Court awards Plaintiff the costs of litigating this petition based on section 1293.2, and per section 1033.5, those costs include Plaintiffs fees. Plaintiffs two attorneys charge a reasonable hourly rate of $400.00 based on their experience and qualifications. (Markow Dec., ¶¶ 17-19.) Counsel Ari Markow estimates his colleague spent 15.4 hours reading and analyzing Defendants motion, conducting legal research, and writing the opposition, and Markow himself spent 2.2 hours discussing the motion, case status, and strategy with Plaintiff, and reviewing and finalizing [counsels] declaration and related exhibits. (Id., ¶ 21 [typo omitted].) Markow estimated 3.5 hours reviewing a reply brief and appearing at the hearing. Plaintiffs counsels billing is slightly excessive. 2.2 hours spent meeting with the client about a single law and motion matter is unnecessary, as is 3.5 hours to review the reply and prepare for the hearing on a straightforward legal issue. The Court will award 15.0 hours, in total, to review the motion and reply and prepare the opposition, and 1.0 hours to prepare for and attend the hearing, which can be accomplished remotely. The Court awards $6,400.00 in attorneys fees. 4. Prejudgment Interest The Court also calculates interest from April 19, 2024, through date of judgment as follows: ten percent, divided by three-hundred sixty five, multiplied by the total award of $391,114.50, results in a $107.15 per diem accrual. Eighty-nine (89) days passed between the award on April 19, 2024 and the judgment on July 17, 2024; $107.15 multiplied by 89 is $9,536.35. CONCLUSION The Court denies Defendants petition to correct the arbitration award. The Court confirms the award as rendered and enters judgment for Plaintiff against Defendants, jointly and severally, in the amount of $413,450.85, inclusive of attorneys fees and interest accrued to the date of judgment.
Ruling
JOSHUA LOMBARDO, ET AL. VS ELDEN ELMS, LP, A CALIFORNIA LIMITED PARTNERSHIP
Jul 17, 2024 |24CHCV00725
Case Number: 24CHCV00725 Hearing Date: July 17, 2024 Dept: F51 JULY 16, 2024 DEMURRER WITH MOTION TO STRIKE Los Angeles Superior Court Case # 24CHCV00725 Demurrer and Motion to Strike Filed: 4/18/24 MOVING PARTY: Defendant Elden Elms, LP, a California Limited Partnership (Defendant) RESPONDING PARTY: Plaintiffs Joshua Lombardo, an individual; and Michael D. Everett, an individual (collectively, Plaintiffs) NOTICE: OK RELIEF REQUESTED: Defendant demurs against the sixth, eighth, and ninth causes of action in Plaintiffs complaint. Defendant also moves to strike references to punitive damages from Plaintiffs complaint. TENTATIVE RULING: The unopposed demurrer is sustained, with 30 days leave to amend. The unopposed motion to strike is granted with 30 days leave to amend. ANALYSIS This is a landlord-tenant action in which Plaintiffs are tenants in a rental unit located at 1255 Elden Avenue, Los Angeles CA 90006, in a residential property owned and operated by Defendant. (Compl. ¶ 1.) Plaintiffs allege that the subject property holds numerous habitability violations, and resulting in ongoing bed bug infestations at the Subject Property, Plaintiffs endured slum-type living conditions resulting in financial loss, property loss, personal injury and presently ongoing emotional distress. (Id. at ¶ 3.) On 3/7/23, Plaintiffs filed their complaint against Defendant, alleging the following causes of action: (1) Breach of Warranty of Habitability (Civil Code § 1941.1); (2) Breach of Warranty of Habitability (Health & Safety § 17920.3); (3) Breach of Warranty of Habitability (Civil Code § 1942.4); (4) Negligence; (5) Nuisance; (6) Intentional Infliction of Emotional Distress; (7) Breach of Contract; (8) Unfair Business Practices; and (9) Fraudulent Concealment. On 4/18/24, Defendants filed the instant demurrer and motion to strike. No opposition has been filed to date. ANALYSIS As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that the pleading does not state facts sufficient to constitute a cause of action and is uncertain, meaning ambiguous and unintelligible. (Code Civ. Proc., § 430.10, subds. (e) and (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ A demurrer tests the pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Here, Defendants demur to the sixth, eighth, and ninth causes of action in Plaintiffs complaint on the bases that Plaintiffs fail¿to allege facts sufficient to¿constitute those causes of action, thereby rendering them fatally uncertain. A. Meet and Confer Defendants counsel declares that on 4/4/24, she sent Plaintiffs counsel a letter in an attempt to resolve the issues raised in the instant demurrer and motion to strike. (Decl. of Rochelle M. McKenzie ¶ 2.) On 4/16/24, counsel for the parties met and conferred telephonically, but were unable to come to a resolution. (Id. at ¶ 3.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a). B. Intentional Infliction of Emotional Distress Plaintiffs sixth cause of action alleges Intentional Infliction of Emotional Distress against Defendant. The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) A mere allegation that a plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendants alleged outrageous conduct, does not state a cause of action for intentional infliction of emotional distress. (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 10471048.) Here, Plaintiffs allege that although they notified Defendants of the bed bug infestations, Defendants knowingly, intentionally and willfully failed to abate the uninhabitable conditions (bed bug infestations), maintaining a company policy of apathy and/or denial. As such Plaintiffs were forced to live in uninhabitable conditions (bed bug infestations) for an extended period as a result of Defendants incessant failure to abide by their statutory duties to abate known uninhabitable conditions. (Compl. ¶ 139.) As a direct and proximate result thereof, Plaintiffs have endured and presently continue to endure many sleepless nights and much emotional and mental distress, coupled with other physical conditions associated with severe presently ongoing mental and emotional distress. (Id. at ¶ 143.) Defendant argues that Plaintiffs allegations do not rise to the requisite level of outrageousness to support a cause of action for intentional infliction of emotional distress because Plaintiffs do not reference any specific practices or maintenance by Defendant that led to the habitability issues with the unit. In fact, the Plaintiffs resided in the unit for over 2 years without any bed bug complaints from March 2021 until April 2023 until the first issue arose. (Dem. 4:69.) Defendant further argues that Plaintiffs have not sufficiently alleged severe emotional distress resulting from Defendants conduct. (Id. at 4:1328, citing Wong v. Jing (2010) 189 Cal.App.4th 1354.) The Court agrees and notes the Plaintiffs have failed to oppose this demurrer. Based on the foregoing, the demurrer against Plaintiffs sixth cause of action is sustained. C. Unfair Business Practices Plaintiffs eighth cause of action alleges that Defendant violated Business and Professions Code section 17200 et seq. (the UCL). To set forth a claim for unfair business practices in violation of the UCL, a plaintiff must establish that the defendant was engaged in an unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and certain specific acts. (Bus. & Prof. Code, § 17200.) In essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice borrows violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder. (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.) A plaintiff alleging an unfair business practice under the UCL must show that the defendant's conduct is tethered to an underlying constitutional, statutory or regulatory provision, or that it threatens an incipient violation of an antitrust law, or violates the policy or spirit of an antitrust law. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 613.) Fraudulent, as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public are likely to be deceived. (Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.) Here, Plaintiffs allege that Defendants failure to maintain the Subject Property and failure to abate known habitability violations while demanding rent constitutes an unlawful business practice. & Moreover, & the unlawful practices of the Defendants violated California Civil Code §§ 1941, 1941.1, 1942.4. (Compl. ¶¶ 157158.) Defendant argues that the allegations that Defendant failed to maintain the property and abate the habitability violations while demanding rent are insufficient to support a cause of action for unfair business practices. There are no specific allegations that this was a practice of the Defendant. (Dem. 5:276:1.) The Court once again, agrees and notes Plaintiff failed to oppose this demurrer. Accordingly, the demurrer against Plaintiffs eighth cause of action is overruled. D. Fraudulent Concealment Plaintiffs ninth cause of action alleges Fraudulent Concealment against Defendant. The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) Fairness requires that allegations of fraud be pled with particularity so that the court can weed out nonmeritorious actions before a defendant is required to answer. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity requirement typically necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Here, Plaintiffs allege that prior to their April 2023 discovery of the bedbug infestation in their apartment, Defendants knew of widespread bed bug infestations at the Subject Property and Plaintiffs Unit. However, Defendants intentionally withheld this information from Plaintiffs. (Compl. ¶ 163.) Specifically, Plaintiffs allege that Defendants knew that the Subject Property and Subject Unit was infested with bedbugs and that prospective tenants would incur significant physical injuries and severe emotional distress, along with property damage and economic losses, and therefore intentionally did not notify Plaintiffs so that they could ensure that the unit would be leased out by them. (Id. at ¶ 168.) Such knowledge was materially relevant to Plaintiffs and Defendants, as, had Plaintiffs known of the bedbugs within the unit, Plaintiffs would not have leased the Subject Property. (Id. at ¶ 165.) Defendant argues that Plaintiff fails to allege that Defendant owed them a duty to disclose the presence of bed bugs in other units that are not leased to Plaintiffs. (Dem. 7:1415.) Defendant further argues that this cause of action is not pled with the requisite specificity because Plaintiffs have failed to include any such facts about the specific representations made and at what point in time in the Complaint. (Id. at 7:2223.) The Court agrees, and again notes that Plaintiffs have failed to oppose the instant motion. Based on the foregoing, the Court finds that Plaintiffs have failed to allege facts sufficient to constitute a cause of action for fraudulent concealment. Accordingly, the demurrer is sustained as to Plaintiffs ninth cause of action. MOTION TO STRIKE The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any 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. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.) A. Punitive Damages Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) Malice is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Id. at subd. (c); Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) Oppression means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the persons rights. (Ibid.) Fraud is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) Here, Defendant argues that punitive damages are not warranted because Plaintiffs only claim inaction in the form of failing to abate bed bugs, which is not enough to support punitive damages. (MTS 2:2021.) Defendant contends that Plaintiffs[] Complaint merely alleges that Defendant failed to abate bed bugs. Nothing about the facts in the Complaint suggest any intentional let alone malicious behavior other than Plaintiffs[] conclusory allegation, absent of specific notifications made, that Defendant failed to address the alleged bed bugs. (Id. at 4:1619.) Once again, the Court notes Plaintiffs have failed to oppose the instant motion and grants the Motion to Strike. LEAVE TO AMEND Where a 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.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Here, the Court notes that this is the first demurrer brought against Plaintiffs original complaint. Therefore, under the Courts liberal policy of granting leave to amend, Plaintiff is granted 30 days leave to amend the complaint to cure the defects set forth above. Plaintiff is cautioned that following an order sustaining a demurrer & with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. & The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) CONCLUSION The unopposed demurrer is sustained with 30 days leave to amend. The unopposed motion to strike is granted with 30 days leave to amend.
Ruling
JONATHAN VARGAS, ET AL. VS LENA MEYER, ET AL.
Jul 17, 2024 |22STCV26120
Case Number: 22STCV26120 Hearing Date: July 17, 2024 Dept: 28 Having considered the moving papers, the Court rules as follows. BACKGROUND On August 12, 2022, Plaintiffs Jonathan Vargas and Ivan Vargas filed this action against Defendants Lena Meyer, Mimi Meyer, and Does 1-50 for motor vehicle tort. On December 18, 2023, the Court granted Plaintiffs counsels motion to be relieved as counsel. On January 18, 2024, Plaintiffs substituted new counsel to represent them. On January 26, 2024, no parties or counsel appeared at the scheduled final status conference or contacted the Court. On February 9, 2024, no parties or counsel appeared for the scheduled trial or contacted the Court. The Court dismissed the case without prejudice. On June 12, 2024, Plaintiffs filed a motion for relief from dismissal. The motion was set to be heard on July 17, 2024. No trial date is currently scheduled. PARTIES REQUEST Plaintiffs ask the Court to vacate the dismissal. LEGAL STANDARD Code of Civil Procedure section 473, subdivision (b), provides in part: Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorneys affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310. (Code Civ. Proc., § 473, subd. (b).) DISCUSSION Plaintiffs argue the dismissal resulted from their counsels inadvertent failure to calendar the January 26, 2024 final status conference and the February 9, 2024 trial. Plaintiffs counsel has submitted an attorney affidavit of fault. The Court grants the motion and vacates the default. CONCLUSION The Court GRANTS the motion for relief from dismissal filed by Plaintiffs Jonathan Vargas and Ivan Vargas. The Court vacates the dismissal entered on February 9, 2024. The Court sets an OSC re: dismissal for failure to file proof of service of the summons and complaint on August 20, 2024 at 8:30 a.m. in Department 28 of the Spring Street Courthouse. Moving parties are ordered to give notice of this ruling. Moving parties are ordered to file the proof of service of this ruling with the Court within five days.
Ruling
BAYRON ENRIQUEZ VASQUEZ VS RICHARD CARTIER
Jul 18, 2024 |21STCV44649
Case Number: 21STCV44649 Hearing Date: July 18, 2024 Dept: T Motion to Reclassify to Limited Jurisdiction Moving Party: Richard Cartier (Defendant) Responding Party: N/A Tentative Ruling: Deny BACKGROUND Plaintiff Bayron Enriquez Vazquez (Plaintiff) filed this action on December 8, 2021, for personal injuries arising out of a motor vehicle accident on July 28, 2020, alleging negligence. Plaintiff seeks special damages for the medical treatment he received as a result, amounting to a $8,525.00, in addition to $3,500 in damages his vehicle sustained. Plaintiff also estimates he will incur between $1,500 to $3,000 in medical costs for future treatment. (Motion to Reclassify, Exh. A Response to Interrogatory Form 1.1.) MOVING PARTY POSITION Defendant Richard Cartier (Defendant) filed this motion to reclassify the action as a limited jurisdiction action, arguing that Plaintiff does not seek relief for costs above the $35,000.00 threshold for unlimited jurisdiction. Plaintiff has not filed an opposition to this motion. ANALYSIS I. Defects As a preliminary matter, the court notes Defendants notice was untimely. Defendants notice (p. 7) to Plaintiff reflects that service was provided to Plaintiff via email on June 2516 court days before the July 18 hearing. Because service made via email extends the notice period by 2 court days, Defendant was untimely. ((Code Civ. Proc., § 1010.6(a)(3)(B).) II. Motion to Reclassify this Action as a Limited Jurisdiction Action CCP § 403.040 governs reclassification of civil cases. The court shall grant the motion and enter an order for reclassification, regardless of any fault or lack of fault, if the case has been classified in an incorrect jurisdictional classification. (Code Civ. Proc.,, § 403.040(a).) A case should only be reclassified from unlimited to limited if the jurisdictional amount necessarily cannot be reached. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 270-71.) This is a high standard that amounts to a legal certainty. (Id. at 270) The court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount which he has demanded. (Id.) CCP § 86(a)(1) classifies civil cases as limited when the demand, exclusive of interest, or the value of the property in controversy amounts to thirty-five thousand ($35,000) or less. A. Amount in controversy The court initially notes the jurisdictional amount increased to $35,000 at the beginning of this year, but it does not appear the new statute is retroactive. (See Civ. Code §§ 85-86.) Thus, the central issue to determine whether to reclassify this action as limited jurisdiction is whether it is a legal certainty that Plaintiff cannot recover over $25,000.00 from this case. (Walker v. Superior Court (1991) 53 Cal.3d 257, 270.) Whether the new jurisdictional amount is retroactive and applicable to this case is immaterial, as Defendant still would not meet their burden for the reasons discussed below. Defendant points to Plaintiffs responses to form 1.1 interrogatories to assert that the total relief sought does not reach the jurisdictional amount required. Namely, Defendant indicates that Plaintiff incurred $12,025.00 in medical expenses and vehicle damage so far, and estimates up to $3,000.00 in additional costs for future medical expenses. (Motion to Reclassify, Exh. A Response to Interrogatory Form 1.1.) Defendant argues that because these total costsamounting to $15,025.00fall below the minimum requirement for unlimited jurisdiction, this action should be reclassified. (Memorandum of Points and Authorities in Support of Reclassification p. 3.) Here, it is not a legal certainty that Plaintiff will not recover over the jurisdictional minimum. Plaintiffs response to interrogatory no. 6.7 indicates that a healthcare provider advised Plaintiff that they will have between $1,500 to $3,000 in future medical costs attributable to Defendant, it does not speak directly to the issue of damages Plaintiff is seeking in this action. More specifically, Plaintiffs response to interrogatory no. 9.1 lists that he requests recovery for general damages, pain and suffering, and future medical expenses, all of which in the amount to be determined. Defendant has not addressed the potential for Plaintiff to recover for pain and suffering, nor the possibility that Plaintiffs future medical expenses will exceed the estimate his healthcare provider provided. Because of the especially uncertain nature of personal injury cases, failing to address all of Plaintiffs bases for recovery is especially problematicas Defendant did not conclusively show Plaintiff cannot receive above threshold required for unlimited jurisdiction. In turn, Defendant has not met the burden of showing the legal certainty required to reclassify the case to limited jurisdiction. RULING Based on the foregoing, the Motion to Reclassify is denied.
Ruling
ORTEGA vs MILLER
Jul 15, 2024 |CVPS2305851
Motion to Compel: Answer/Response toCVPS2305851 ORTEGA vs MILLERSpecial Interrogatories by THERESA MILLERTentative Ruling: No tentative ruling. A hearing will be conducted. Trial counsel are ordered to appearin person in Department PS1. No telephonic or video appearances will be permitted. Counsel shouldbe prepared to address in detail whether verified discovery responses were served in May 2024, priorto the time this motion was filed.Based on its review of the pleadings, the Court finds it is necessary to remind all counsel that civilityand professionalism among counsel should be the norm and not the exception. Counsel need notalways agree, but their disagreements, especially when relayed to the Court, should be free of rancorunbecoming of legal professionals.No further briefing of any kind may be filed.
Ruling
FCS055719 - PINEDO, CRISTOBAL VS. VALLEY FARM TRANSPORT, INC.,
Jul 18, 2024 |FCS055719
FCS055719Motion for Summary JudgmentTENTATIVE RULINGThe motion for summary judgment by Defendant Valley Farm Transport, Inc. is denied.Plaintiff has met his burden of establishing that there is a triable issue of material fact asto whether Defendant Martinez-Solis was an employee of Defendant Valley Farm at thetime of the incident.“The principal test of an employment relationship is whether the person to whom serviceis rendered has the right to control the manner and means of accomplishing the resultdesired.” (Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 946; Baco*ka v.Best Buy Stores, LP (2021) 71 Cal.App.5th 126, 133.) While the right to control workdetails is the “most important” consideration, “no rigid test governs whether someone isan employee” and the court may consider “secondary” indicia of an employmentrelationship, such as whether the person performing services is engaged in a distinctoccupation or business and whether the work is a part of the regular business of theprincipal. (Baco*ka, 71 Cal.App.5th at 133.)Plaintiff presents evidence that Defendant Valley Farm was in the business oftransporting goods as a licensed motor carrier (Depo. of David Nickum, pp. 69:24-70:4,16-18; Decl. of Miller, ¶ 6) and that Defendant Valley Farm was the primary carrier forthe load Defendant Martinez-Solis was transporting pursuant to a “sub-haul” contract atthe time of the incident (Depo. of Martinez-Solis, pp. 33:18-21, 69:21-70:6).Additionally, Plaintiff presents evidence that Delta Valley Logistics, LLC was “an entitycreated to ‘handle the sub-hauler trucks’” of Defendant Valley Farm in an attempt toshield Defendant Valley Farm from liability for any accidents or misdeeds of the sub-haulers (Decl. of Miller, ¶¶ 4-5, 7), that Defendant Valley Farm “was in complete controlof Delta Valley” (id. at ¶ 8), that sub-haulers, including Defendant Martinez-Solis, “werenot free to take on additional freight or do other loads” while under dispatch from DeltaValley (id. at ¶ 9), and that Delta Valley exercised “total control” over the use of its sub-haulers (id. at ¶ 10). These factors can support a determination that DefendantMartinez-Solis was an employee of Defendant Valley Farm.Department 7 is inviting you to a scheduled ZoomGov meeting.Join ZoomGov Meetinghttps://solano-courts-ca-gov.zoomgov.com/j/1611554664?pwd=T3U4QlBGWWNWaGlieXJTcGxIVHRXZz09Meeting ID: 161 155 4664Passcode: 818575One tap mobile+16692545252,,1611554664#,,,,*818575# US (San Jose)+14154494000,,1611554664#,,,,*818575# US (US Spanish Line)
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Jun 14, 2017 |JOHN MICHAEL |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |605626/2017
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Scott D. Mantel as Administrator for the Estate of Deborah Bucko v. South Nassau Communities Hospital d/b/a Mount Sinai South Nassau
May 11, 2023 |Randy Sue Marber |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |607604/2023
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David Mcneary v. Lawrence Woodmere Academy, Richard Briglio Phd
Mar 01, 2021 |Leonard D. Steinman |Torts - Child Victims Act |Torts - Child Victims Act |900014/2021
