Proposed Order - RE Combined Motion for Reconsideration of the Court's June 26, 2020, Discovery Hearing Rulings and Motion for Protective Order July 10, 2020 (2024)

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Ruling

SEDIGHEH HAji*zADEH VS MAGIC MOUNTAIN, LLC

Aug 07, 2024 |21STCV19791

Case Number: 21STCV19791 Hearing Date: August 7, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND On May 26, 2021, Plaintiff Sedigheh Haji*zadeh (Plaintiff) filed this action against Defendants Magic Mountain, LLC (Defendant) and Does 1-50 for general negligence and premises liability. On June 21, 2021, Defendant filed an answer. On January 30, 2024, the Court granted Plaintiffs motion for summary adjudication of Defendants statute of limitations affirmative defense (fourth affirmative defense) and denied Plaintiffs motion for summary adjudication of four other affirmative defenses. On March 11, 2024, Defendant filed a motion for leave to amend its answer. The motion was set for hearing on April 5, 2024. On March 22, 2024, Plaintiff filed an opposition and a request for judicial notice. On March 28, 2024, Defendant filed a reply. The Court continued the hearing to August 7, 2024. No trial date is currently scheduled. PARTIES REQUESTS Defendant asks the Court to grant leave to file an amended answer that includes new affirmative defenses. Plaintiff asks the Court to deny the motion. PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE Granted. (Evid. Code, § 452, subd. (d).) LEGAL STANDARD 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).) Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Code Civ. Proc., § 576; see Cal. Rules of Court, rule 3.1324.) While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. [Citations.] And it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case. [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. [Citations.] (Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031, quoting Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Courts usually display great liberality in allowing amendments to answers because a defendant denied leave to amend is permanently deprived of a defense. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 6:643, p. 6-189 (Cal. Practice Guide), quoting Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159.) Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. . . . After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading. (Cal. Practice Guide, supra, ¶ 6:644, pp. 6-189 to 6-190.) DISCUSSION A. The complaint The complaint alleges the following: Defendants negligently, carelessly, and recklessly and with disregard for the rights of the Plaintiff, managed, maintained, supervised, entrusted, repaired, authorized, approved, leased, loaned, bailed, controlled, and operated a facility located at 26101 Magic Mountain Parkway, Valencia, CA 91355 (the premises). On August 19, 2019, Defendants failed to maintain, design, inspect, control, supervise, attend to, and care for the premises. Defendants breached their duty of care to Plaintiff when they failed to properly maintain, manage, and control the premises, failing to alert or warn Plaintiff of an inherently unsafe condition. As a proximate result of Defendants negligence, Plaintiff sustained severe injuries. B. The answer Defendants answer filed on June 21, 2021, denies the complaints allegations and asserts affirmative defenses. C. Motion for leave to amend answer Defendant asks for leave to amend its answer to add the following affirmative defenses: estoppel (tenth affirmative defense), res judicata and collateral estoppel (eleventh affirmative defense), and waiver (twelfth affirmative defense). According to Defendant, it discovered the facts supporting these affirmative defenses in January 2024 in Plaintiffs motion for summary adjudication. Defendants motion includes a supporting declaration explaining why Defendant did not file the motion sooner. (Makorow Dec. ¶ 5.) The proposed amendments are based on what Defendant contends is Plaintiffs previous dismissal with prejudice of another action with the same parties and same subject matter as this case. Plaintiff opposes the motion, contending that Defendant did not act diligently because it knew about the previous lawsuit long before January 2024. (Defendant responds that it did not know until January 2024 that the previous lawsuit was dismissed with prejudice.) But even assuming Defendant unreasonably delayed in filing the motion to amend, it is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. (Cal. Practice Guide, supra, ¶ 6:656, p. 6-193.) Plaintiff has not shown that allowing the amendment will prejudice her. No trial date is currently scheduled. A trial setting conference is set for August 15, 2024. Counsel may address any need for discovery based on the amendments and other scheduling issues at the trial setting conference. Plaintiff also argues that the premise of Defendants motion for leave to amend the answer to include the new affirmative defenses is incorrect. The Court does not evaluate the truth or strength of pleadings when deciding whether to grant leave to amend. The Court grants the motion. CONCLUSION The Court GRANTS Defendant Magic Mountain, LLCs motion for leave to file an amended answer. The Court orders Defendant Magic Mountain, LLC, to file and serve the first amended answer within 30 days of the hearing on this motion. Moving party is ordered to give notice of this ruling. Moving party is ordered to file the proof of service of this ruling with the Court within five days.

Ruling

ZURY HERNANDEZ, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO PORFIRIO DE JESUS HERNANDEZ, DECEASED, ET AL. VS PIH HEALTH GOOD SAMARITAN HOSPITAL

Aug 08, 2024 |23STCV08578

Case Number: 23STCV08578 Hearing Date: August 8, 2024 Dept: 14 #8 Decision:The Court notes that Peter McNulty is Plaintiffs counsel of record in this matter. Counsels MC-053 must include McNultys name in item 1. Counsel must file an amended MC-053. Counsel complied with the requirements of Rule 3.1362, and relief is appropriate under the circ*mstances of this case. The motion will be GRANTED, effective upon the filing of the proof of service of the signed order upon the client, once Counsel submits an amended MC-053.

Ruling

RICHARD FRIEDMAN VS WESTLAKE VILLAGE ATHLETIC CLUB, LP

Aug 05, 2024 |22STCV23564

Case Number: 22STCV23564 Hearing Date: August 5, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND On July 20, 2022, Plaintiff Richard Friedman (Plaintiff) filed this action against Defendants Westlake Village Athletic Club, LP, dba Westlake Athletic Club (Westlake) and Does 1-50 for general negligence and premises liability. On October 3, 2022, Westlake filed an answer. On November 20, 2023, the Court found that this case (case number 22STCV23564) and case number 23VECV03754 are related within the meaning of California Rules of Court, rule 3.300(a). Case number 22STCV23564 became the lead case. The cases were assigned to Department 28 in the Spring Street Courthouse for all purposes. On December 15, 2023, Plaintiff filed a first amended complaint against Westlake and Does 1-50 for gross negligence. On January 12, 2024, the Court (1) granted the parties stipulated request to consolidate this case (case number 22STCV23564) and case number 23VECV03754, (2) consolidated the cases, and (3) assigned them to Department 28 in the Spring Street Courthouse for all purposes. Case number 22STCV23564 remained the lead case. On March 15, 2024, the Court sustained Westlakes demurrer to the first amended complaint with leave to amend. On May 23, 2024, Plaintiff filed a second amended complaint against Defendants Westlake and Does 1-50 for negligence (gross negligence). On June 21, 2024, Plaintiff amended the complaint to include Defendant California Athletic Clubs Management, Inc. as Doe 1. On June 21, 2024, Westlake filed a demurrer and a motion to strike. The demurrer and motion to strike were set for hearing on July 25, 2024. The Court continued the hearing to August 5, 2024. On July 24, 2024, Plaintiff filed oppositions. On July 29, 2024, Westlake filed replies. Trial is scheduled for October 1, 2024. PARTIES REQUESTS Westlake asks the Court to sustain the demurrer to the second amended complaint and strike portions of the second amended complaint. Plaintiff asks the Court to overrule the demurrer and deny the motion to strike. LEGAL STANDARDS A. Demurrer The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: * * * (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, uncertain includes ambiguous and unintelligible. . . ." (Code Civ. Proc., § 430.10, subds. (e), (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading].) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law). (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).) B. Motion to strike Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . . (Code Civ. Proc., § 435, subd. (b)(1).) The Court may [s]trike out any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) In ruling on a motion to strike, courts do not read allegations in isolation. (Ibid.) C. Gross negligence [O]rdinary negligence consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circ*mstances would employ to protect others from harm. (Anderson v. Fitness International, LLC (2016) 4 Cal.App.5th 867, 881 (Anderson), quoting City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (Santa Barbara).) [M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty, amounts to ordinary negligence. (Ibid., quoting Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48.) However, to support a theory of [g]ross negligence, a plaintiff must allege facts showing either a want of even scant care or an extreme departure from the ordinary standard of conduct. [Citations.] (Anderson, supra, 4 Cal.App.5th at p. 881, quoting Santa Barbara, supra, 41 Cal.4th at p. 754.) [G]ross negligence falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind . . . . (Ibid., quoting Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197; see Rosecrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [gross negligence is pleaded by alleging extreme conduct on the part of the defendant in addition to the traditional negligence elements of duty, breach, causation, and damages].) DISCUSSION A. Plaintiffs second amended complaint The second amended complaint alleges the following: On May 9, 2022, Plaintiff collided with an unpadded, free-standing light post located within an enclosed tennis court located at 32250 West Triunfo Canyon Road in Westlake, California (premises), suffering a neck fracture and spinal cord injuries. Defendants were grossly negligent in the manner in which they owned, occupied, controlled, maintained, managed, and/or operated the premises, including the tennis court. Defendant's failure to provide padding on free-standing light posts, including the subject light posts, as well as the placing of the light post inside the playing area, in addition to the irregularity in the number of light posts on each side of the subject tennis court, as well as the inconsistency in distance between the light posts, such as the subject posts, was an extreme departure from the common practice of tennis court design and industry standards. As a result, Defendant's gross negligence was a substantial factor in causing in causing harm to [Plaintiff]. Plaintiff attached as exhibits to the second amended complaint (1) the Declaration of Alex Levitsky (Levitsky) (Exhibit 1) and (2) a photograph of a pickleball court (Exhibit 2). B. Westlakes motion to strike 1. The Levitsky declaration a. The declaration Levitsky, an architect who has designed tennis courts and other sports facilities, opines (among other things) that Westlakes facility of 11 tennis courts and 8 pickleball courts contains features that vary greatly from the guidelines set by the [United States Tennis Association] and [American Sports Builders Association] . . . . In Levitskys opinion: The most dangerous of the deviations from the standards, is that many light poles are located inside the overall playing area and are not padded, including on the subject tennis court. This is especially true due to the other numerous deviations listed above. Further exacerbating the conditions is that the poles are black, set on a black background of the fence fabric. From the court, they appear to be part of the fence line yet they are standalone fixed hazards. (Levitsky dec. p. 4.) According to Levitsky, Where tennis courts were built before the issue of fixed objects was addressed by the USTA in its publications, and included fixed objects inside the fence enclosures, the established remedy has been padding. Paddings single purpose is shock attenuation. Padding reduces the severity of impact and lowers the chance of injury. (Levitsky dec. p. 4.) b. Incorporation of exhibits by reference In Del Mar Beach Club Owners Assn. v. Imperial Contacting Co. (1981) 123 Cal.App.3d 898 (Del Mar), the plaintiff acquired title to not only the [propertys] customary common areas, but pursuant to the Declaration of Restrictions recorded May 16, 1971, it also acquired title to the real property and structures. In other words, the individual owners only purchased the air space units within the apartment buildings and not the buildings and the land underlying them. (Del Mar, supra, 123 Cal.App.3d at p. 906.) The plaintiff attached the Declaration of Restrictions to the fourth amended complaint as an exhibit with its terms incorporated by reference into the pleading. The [plaintiff] specifically alleged it could prosecute the action on behalf of the owners because of the authority given to it under the Declaration. Defendants argue[d] this type of pleading is defective because material facts comprising a substantive cause of action cannot be pleaded by simple reference to an exhibit attached to the complaint. (Id. at p. 908.) The Court of Appeal rejected the defendants argument, observing that the plaintiff, by reference to the attached exhibit, clearly and directly incorporated the Declaration of Restrictions in its entirety as it pertained to standing. The incorporated restrictions defining a unit as an air space and prohibiting the owner from altering or modifying a wall within the acquired unit without first obtaining approval of such alteration or modification from the [plaintiff] are sufficient allegations of ownership interest in the [plaintiff]. (Del Mar, supra, 123 Cal.App.3d at p. 908.) Construing the pleadings liberally with a view to attaining substantial justice among the parties, the court held that the pleadings adequately allege standing to withstand a general demurrer. (Ibid.) Here too, the assertions contained in the Levitsky declaration are incorporated by reference into the second amended complaint. (See Cal. Practice Guide, supra, ¶ 6:233, p. 6-81 [Plaintiff may attach a copy of a document to the complaint and incorporate it by reference. By doing so, the documents become part of the complaint as if set forth verbatim therein].) Plaintiff includes these assertions in an effort to plead the extreme conduct factor of his gross negligence claim. c. Motion to strike Levitsky declaration Westlake moves to strike the Levitsky declaration because it contains opinions, contentions, deductions, and conclusions of law. Westlake is correct that Levitskys declaration includes conclusions, deductions, or conclusions of facts or law, which the Court does not accept as true in ruling on a demurrer. (See Cal. Practice Guide, supra, ¶ 7:43, p. 7(l)-25.) In addition, the declaration includes statements that discuss Westlakes facility generally without a specific reference to the tennis court and light pole involved in Plaintiffs accident. But the declaration also contains statements that do not include these defects. Accordingly, the Court strikes only the following portions of Levitskys declaration: Page 4, lines 1-8 Page 4, line 9: the phrase The most dangerous of these deviations from the standards, is that Page 4, lines 10-11: the sentence This is especially true due to the other numerous deviations listed above. Page 4, line 11: the phrase Further exacerbating the conditions is that Page 4, lines 27-28 Page 5, lines 1-3 Page 5, lines 6-7 The Court also strikes the following portion of the second amended complaint: the phrase and violations of those standards as discussed herein in Attachment 1 of 2, third full paragraph, last sentence. 2. The photograph of a pickleball court The second amended complaint attaches a photograph which it describes as photographs of the pickleball courts that have padding around the posts located within the overall playing area. (Exhibit 2.) The second amended complaint provides no other information about the photograph. The Court strikes the photograph from the second amended complaint. The Court also strikes the following portion of the second amended complaint: The sentence Attached here as Exhibit 2 are photographs of the pickleball courts that have padding around the posts located within the overall playing area in Attachment 2 of 2. C. Westlakes demurrer The second amended complaint alleges, among other things, that Westlake did not comply with industry standards by placing padding around the light pole which Plaintiff allegedly struck while playing tennis. The Court cannot say that, as a matter of law, these alleged facts do not demonstrate an extreme departure from the ordinary standard of care. Plaintiff has pleaded facts which support his demurrer claim. The Court overrules the demurrer. CONCLUSION The Court GRANTS in part and DENIES in part Defendant Westlake Village Athletic Club, LP, dba Westlake Athletic Clubs motion to strike as follows. The Court strikes the following portions of the Declaration of Alex Levitsky (attached as Exhibit 1 to the second amended complaint) without leave to amend: Page 4, lines 1-8 Page 4, line 9: the phrase The most dangerous of these deviations from the standards, is that Page 4, lines 10-11: the sentence This is especially true due to the other numerous deviations listed above. Page 4, line 11: the phrase Further exacerbating the conditions is that Page 4, lines 27-28 Page 5, lines 1-3 Page 5, lines 6-7 The Court strikes the photograph of pickleball courts (attached as Exhibit 2 to the second amended complaint) without leave to amend. The Court strikes the following portions of the second amended complaint without leave to amend: (1) the phrase and violations of those standards as discussed herein in Attachment 1 of 2, third full paragraph, last sentence and (2) the sentence Attached here as Exhibit 2 are photographs of the pickleball courts that have padding around the posts located within the overall playing area in Attachment 2 of 2. In all other respects, the Court denies the motion to strike. The Court OVERRULES Defendant Westlake Village Athletic Club, LP, dba Westlake Athletic Clubs demurrer to the second amended complaint. Defendant Westlake Village Athletic Club, LP, dba Westlake Athletic Club is to file its answer to the second amended complaint within 10 days. Moving party is ordered to give notice of this ruling. Moving party is ordered to file the proof of service of this ruling with the Court within five days.

Ruling

FCS059298 - THOMPSON, FELICIA V. SAUKHLA, M.D., NARINDER (DMS)

Aug 05, 2024 |FCS059298

FCS059298PORTUGAL’s Motion for Summary JudgmentTENTATIVE RULINGDefendant RUTH PORTUGAL, R.N. (“PORTUGAL”) moves for summary judgment onPlaintiff FELICIA THOMPSON’s cause of action for wrongful death via medicalnegligence. Summarized, Plaintiff alleges that PORTUGAL’s failure to observe thestandard of care applicable to a nurse caused the death of Plaintiff’s father (“Decedent”)on September 2, 2017.Objections to Evidence. In ruling on a motion for summary adjudication the courtneed only rule on those evidentiary objections that it deems material to its disposition ofthe motion. (Code Civ. Proc., § 437c, subd. (q).)PORTUGAL’s Objections #1-10. PORTUGAL’s objections #1-10 are overruled.PORTUGAL’s Objections #11-22. PORTUGAL’s objections to Plaintiff’s declarationsfrom Melvin Smith, Michael Burrus, Cole Bienek, Earl Miller, James Cross, JohnLawyer, Herman Davis, Clarence Myers, Shelvert Dyer, Lamar Minor, and MichaelDavis, as well as the second supplemental declaration of Dr. Dan Field, on the basis offailure to comply with Code of Civil Procedure section 2015.5 are sustained. Thoughthe declarations are not hearsay they do not meet Code of Civil Procedure section2015.5 requirements. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th601, 609 [declarations of personal knowledge admissible on summary judgment].) Alldeclarations but Dr. Field’s fail to state the date and place of execution of thedeclarations. Dr. Field’s second supplemental declaration does not state the place.PORTUGAL’s Objections #23-24. PORTUGAL’s objections to all proffered evidencefrom Dr. Field, being his two declarations, a rebuttal declaration to defense expertopinions, and deposition excerpts, are sustained. A doctor may speak to the standardof care for a nurse if he possesses relevant qualifications or knowledge. (Lattimore v.Dickey (2015) 239 Cal.App.4th 959, 970 (Lattimore).) However, Dr. Field’squalifications and knowledge are solely set forth in his second supplementaldeclaration, which fails to meet Code of Civil Procedure section 2015.5 requirements.Accordingly Plaintiff does not establish with admissible evidence that Dr. Field canspeak to the standard of care applicable to PORTUGAL.Similarly, Dr. Fields’ opinions as a medical doctor are also lacking in foundation. Neitherthe Record Review Report dated 12/11/2020 or the Rebuttal Report dated 1/14/2021state Dr. Fields’ qualifications. The Second Supplemental Declaration, which does statethe doctor’s qualifications, does not cure the problem as the declaration is procedurallydefective under CCP 2015.5.The court does not consider PORTUGAL’s remaining objections material to thedisposition of the motion.Requests for Judicial Notice. Matters subject to judicial notice may support a motionfor summary judgment. (Code Civ. Proc. § 437c, subd. (b)(1).) The court takes judicialnotice of all items proffered by PORTUGAL, being documents from Plaintiff’s federalcase preceding this one on the same facts, as records of a court of the United Statesper Evidence Code section 452, subdivision (d).Legal Standard. A defendant may move for summary judgment on the basis that theplaintiff cannot establish an element of his cause of action. (Code Civ. Proc., § 437c,subd. (o)(1).) A summary judgment motion is properly granted where the evidence insupport of the moving party would be sufficient to sustain a judgment in his favor andhis opponent does not show facts sufficient to present a triable issue of fact. (Parker v.Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion isnot to be granted where any triable issue of material fact exists. (Ibid.) The affidavits ofthe moving party are strictly construed, and doubts as to the propriety of summaryjudgment should be resolved against granting the motion. (Ibid.) Reasonableinferences from the evidence must be drawn in the light most favorable to the opposingparty. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155.)Affidavits, declarations, admissions, answers to interrogatories, depositions, andmatters judicially noticed may all support a motion for summary judgment, provided theycontain admissible evidence. (Code Civ. Proc., §§ 437c, subds. (b)(1), (d).) Allegationsin a party’s own pleadings may not satisfy deficiencies in evidence. (Code Civ. Proc., §437c, subd. (p).) Allegations in an opposing party’s pleadings may be consideredevidence, however. (Parker, supra, 3 Cal.3d at p. 181.) Additionally, a defendant doesnot meet its burden of showing a plaintiff cannot establish an element merely bypointing out the absence of evidence; the defendant must show that the plaintiff bothdoes not possess and cannot reasonably obtain evidence. (Zipusch v. LA Workout, Inc.(2007) 155 Cal.App.4th 1281, 1286-1287.)Wrongful Death via Medical Negligence. Wrongful death is a statutory cause ofaction, the elements of which are simply a tort resulting in death and damages.(Lattimore, supra, 239 Cal.App.4th at p. 968.) In this case Plaintiff alleges the wrongfuldeath of Decedent due to the underlying tort of medical malpractice or negligence.(First Amended Complaint at ¶¶ 38-44.) Medical negligence is a form of negligence, towhich general principles of negligence apply. (Massey v. Mercy Medical CenterRedding (2009) 180 Cal.App.4th 690, 695.) Thus a medical practitioner is negligent ifhe fails to use the standard of care that a reasonably careful practitioner would use insimilar circ*mstances, but what the standard of care is for a medical practitioner is amatter peculiarly within the knowledge of experts. (Ibid.) The standard of care for amedical practitioner may therefore only be proven by the testimony of experts unlessthe conduct required in the circ*mstances is something within the common knowledgeof laymen. (Ibid.) In other words, a plaintiff usually may only prove that a medicalpractitioner failed to meet the standard of care via expert testimony. (Ibid.) Theforegoing rules of analysis apply whether the practitioner is a doctor or a nurse; anurse’s conduct is not measured by the same standard of care as a doctor’s butlikewise must be assessed by expert testimony from one qualified to speak to theappropriate profession’s standard of care. (Lattimore at p. 969.)On moving for summary judgment a medical practitioner will accordingly have the initialburden to present evidence, supported by expert testimony where necessary, thathis/her acts met the applicable standard of care, else the motion must be denied.PORTUGAL carries her initial burden as to the standard of care issue. The Declarationof Nancy Booth in Support of PORTUGAL’s Motion for Summary Judgment (Booth)states that PORTUGAL observed the relevant standard of care (Booth at ¶ 17.) Ms.Booth declares she is qualified to speak to the standard of care for a nurse inPORTUGAL’s circ*mstances because she is a licensed registered nurse with almostfifty years’ experience who has been a certified correctional setting health careprofessional since 2013 and worked in a correctional health care setting from 2006 to2021. (Id. at ¶¶ 1, 3.) Ms. Booth reviewed Decedent’s general medical records, therecords from September 2, 2017, and numerous documents generated in the course ofthis litigation. (Id. at ¶ 5.) Ms. Booth explains that in the context of the unusually hotday on September 2, 2017 it was reasonable for PORTUGAL to believe Decedentsuffered heat-related problems and perform associated assessments and treatment.(Id. at ¶ 18.) Ms. Booth states that Decedent was able to answer questions and obeycommands and so it was reasonable for PORTUGAL to not explore a possible alteredmental state. (Id. at ¶ 17.) Ms. Booth states that it was reasonable to believeDecedent’s problems had resolved because he displayed improved vital signs aftertreatment. (Id. at ¶ 18.) Additional tests such as rectal thermometer and orthostaticblood pressure readings were not necessary to meet the standard of care becauseDecedent was a conscious adult male whose vital signs were able to be accessed inother ways. (Id. at ¶¶ 20-21.) Ms. Booth connects her opinions to facts and offerscompetent expert testimony that PORTUGAL met the standard of care.Plaintiff’s admissible evidence suffices to raise triable issues of material fact on theissue of the standard of care. In paragraph 13 of the Ron Lopez declaration he statesthat PORTUGAL observed that Decedent was dehydrated yet performed no evaluationof urine specific gravity, orthostatic blood pressure, or fluid intake and output. Thisdirectly counters Ms. Booth’s assertion that there was no need to examine Decedent’sorthostatic blood pressure and raises a triable issue of material fact on the standard ofcare given that the defense position hinges on the idea that PORTUGAL respondedappropriately to presented dehydration. In paragraph 14 Mr. Lopez states thatPORTUGAL observed “10/10” pain from Decedent for two and a half hours but did notperform a PQRST pain assessment or document the effect of the analgesics provided.This too raises an issue as to the standard of care in the circ*mstances Decedentpresented.On the issue of causation, however, PORTUGAL fails to meet her initial burden. In amedical negligence case, causation must be proven with expert testimony. (Bromme v.Pavitt (1992) 5 Cal.App.4th 1487, 1498; Dumas v. Cooney (1991) 235 Cal.App.3d 1593,1603; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.) In the context of a motion for summary judgment, it stands to reason that experttestimony is needed to negate causation. PORTUGAL offers no expert evidence tonegate causation. She uses only a layperson’s analysis based on the disputed factssurrounding Decedent’s cause of death to conclude that there is no evidence thatresponding differently to Decedent’s initial presentation would have changed histreatment outcome.Conclusion. PORTUGAL’s motion for summary judgment is denied.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)

Ruling

MATTHEW ROCKWELL, et al vs JACK KARAMIAN, Sr, et al

Aug 07, 2024 |23CV02976

23CV02976ROCKWELL v. KARAMIAN DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT The demurrer is sustained, in part, and overruled in part, as discussed below. Page 10 of 18 I. BACKGROUND AND COMPLAINT Plaintiffs Central Coast Citrus Holdings and Mathew Rockwell (“Plaintiffs”) filed a firstamended complaint (“FAC”) on April 15, 2024. There are twelve causes of action alleged in theFAC: breach of contract, declaratory relief, intentional misrepresentation (fraud), breach offiduciary duty, conversion, intentional interference with prospective economic advantage, tradelibel, constructive trust, accounting, unfair business practices (Business and Prof. Code § 17200),misappropriation of trade secrets, and failure to pay wages and penalties pursuant to Labor Codesection 201 et seq. Central Coast Citrus Holdings is in the business of developing, marketing, and licensingmarijuana products and accessories. Rockwell is the majority shareholder of Central. Rockwellcreated a product containing high-end marijuana called “Lemon Tree.” (FAC at ¶ 9.) Thisproduct proved to be popular and additional products in this line followed. Central was created asa holding company for the limited liability company called “Lemon Life.” (FAC at ¶¶ 12-13.) Plaintiffs assert the success of the brand led to investment interest, including fromdefendants Karamian and Martinson who represented themselves as industry professionals whowould expand the brand into a global empire. (FAC at ¶ 15.) The parties entered a memorandumof understanding (“MOU”) in October 2021 (F.AC at ¶ 16.) Karamian and Martinson neverreturned a signed copy of the MOU, but plaintiffs believe they signed it. Martinson andKaramian created two new entities in December 2021: defendants Orchard Beach Farms, Inc.and Orchard Beach Farms, LLC; these entities were not approved by plaintiffs; they allege. TheFAC alleges that without Rockwell’s knowledge or agreement, Martinson and Karamianfraudulently informed the Secretary of the State that Rockwell was the director of Orchard BeachFarms; they also removed Rockwell from corporate filings and then again alleged to theSecretary of State that Rockwell was a director of Orchard Beach Farms. (FAC at ¶ 17.) Plaintiffs assert that none of the defendants have a right to their brand without the expressapproval of Central and Rockwell. (FAC at ¶ 19.) However, defendants have engaged in massivefraud to misappropriate and convert property and funds belonging to plaintiffs, committed tradeliable, engaged in unfair business practices and have wrongfully and intentionally interfered withplaintiffs’ business and the brand. Further, plaintiffs assert Karamian failed to disclose he is a convicted felon. Californialaw prevents or makes it very difficult for a convicted felon to legally participate in themarijuana industry. Plaintiffs contend, as a result, they have been unable to proceed with anexpansion of the brand. (FAC at ¶ 21.) Plaintiffs allege defendants have engaged in a course ofaction to destroy the reputation of the brand, including failing to pay bills owed to third-partyvendors, entering into contracts without authorization, causing various issues with third-partieswhich could potentially expose plaintiffs to liability, creating extensive debts to third parties, Page 11 of 18wrongfully taking business revenue as their own, failing to provide accounting of transactions,and failing to pay Rockwell a salary as required. II. DEMURRER Defendants Karamian, Martinson, Orchard Beach Farms, Inc. and Orchard Beach Farms,LLC demur to the third, fifth, seventh, eighth, and tenth causes of action pursuant to Code ofCovil Procedure section 430.10, subdivision (e). Third cause of action- fraud against Karamian and Martinson Defendants assert this cause of action fails because it was not pled with sufficientparticularity; that is, the heightened pleading standard associated with fraud. Defendants contend“it is impossible to tell what alleged representations are actually the subject of the fraud claim.”(Demurrer at pg. 4.) Further, defendants argue there are not facts alleged which show or would tend to showdefendants knew the alleged representations were false when made. Defendants contendplaintiffs failed to allege that their belief in defendants’ representations were justifiable andreasonable. Finally, defendants contend plaintiffs failed to allege a definite and certain amount ofdamages. Fifth cause of action- conversion against all defendants Defendants contend the cause of action for conversion fails because it does not state aclaim involving money but rather “intangibles.” Defendants argue the FAC alleges defendantsconverted the “brand”, by selling brand products and receiving funds for the products.Defendants assert case law requires a specific amount of money and “a generalized claim formoney is not actionable as conversion.” (Demurrer at pg. 7, citing Vu. V. California CommerceClub, Inc. (1997) 58 Cal.App.4th 229, 235.) Seventh cause of action- trade libel against all defendants Defendants assert the FAC lacks allegations to support a trade libel claim becausedefendants are not alleged to have disparaged plaintiff’s brand or other products. Instead,plaintiffs alleged defendants injured plaintiffs’ reputation, which is distinct from trade libel.Defendants cite Shores v. Chip Steak. Co. (1955) 130 Cal.App.2d 627. 630. Eighth cause of action – constructive trust against all defendants Defendants assert a constructive trust is a remedy rather than an independent cause ofaction. Page 12 of 18 Tenth cause of action – unfair competition against all defendants Defendants assert this cause of action fails because the only monetary remedy availableunder a UCL claim is restitution and/or injunctive relief and plaintiffs do not seek “restitution”but “damages.” III. STANDARD ON DEMURRER A demurrer tests the legal sufficiency of a pleading. (Brown v. Los Angeles Unified SchoolDist. (2021) 60 Cal.App.5th 1092, 1103.) We accept as true all material facts properly pleaded inthe complaint, but do not assume the truth of contentions, deductions, or conclusions of fact andlaw." (Ibid.) However, "[a] party may not avoid demurrer by suppressing facts, including thosethat are judicially noticeable, which prove the pleaded facts false." (Gentry v. eBay, Inc. (2002) 99Cal.App.4th 816, 824.) Where facts appearing in attached exhibits or judicially noticed documentscontradict, or are inconsistent with, the complaint’s allegations, we must rely on the facts in theexhibits and judicially noticed documents." (Genis v. Schainbaum (2021) 66 Cal.App.5th 1007,1015.) IV. DISCUSSION Procedurally, plaintiffs argue the demurrer is untimely as it was filed on May 21, 2024,and is not to be heard until August 6, 2024, 77 days later. Plaintiffs contend this is beyond thelimitations period of CRC, Rule 3.1320, subdivision (d), which requires a demurrer be heard nomore than 35 days following the filing of the demurrer or on the first date available to the court.There is no evidence that defendants specifically requested that the hearing be set for this daterather than the hearing was set pursuant to the court’s calendar. The court will proceed to themerits of the demurrer. Third cause of action – fraud/intentional misrepresentation The essential elements for this cause of action are as follows: 1. That defendants represented to plaintiffs that a fact was true; 2. That defendants’ representation was false; 3. That defendants knew that the representation was false when they made it, or that they made the representation recklessly and without regard for its truth 4. That defendants intended that plaintiffs rely on the representation; 5. That plaintiffs reasonably relied on defendants’ representation 6. That plaintiffs were harmed; and 7. That plaintiffs’ reliance on defendants’ representation was a substantial factor in causing their harm. (1 CACI 1900.) Page 13 of 18 In support of this cause of action, defendants are alleged to have made factualrepresentations to plaintiffs during the negotiation process for the MOU. Thesemisrepresentations are outlined in paragraphs 48-49 of the FAC. Plaintiffs allege defendantsknew these representations were false at the time they were made and relied on them to theirdetriment. Defendants assert this cause of action is insufficiently pled when measured against theheightened pleading standards required for fraud. Defendants contend “it is impossible to tellwhat alleged representations are actually the subject of the fraud claim.” (Demurrer at pg. 4.)Defendants argue by the language of the FAC, there may be facts which were not alleged but arein existence and that there is confusion as to whether the representations are all oral or if someare written. (Demurrer at pg. 5.) They also contend there are insufficient allegations as to whichrepresentations were made by which defendant. A review of the FAC shows sufficient pleadings, at this stage, to support a cause of actionfor intentional misrepresentation/fraud. For example, plaintiffs allege Karamian and Martinsonmade the factual representations immediately during and prior to October 2021. The FACcontains an extensive list of the alleged false representations. (See FAC at ¶ 48.) The demurrer asto this cause of action is overruled. Fifth cause of action - conversion The essential elements for conversion are: 1. That plaintiffs owned, possessed or had the right to possess an item of personal property; 2. That defendants substantially interfered with plaintiffs’ property by knowingly or intentionally: [taking possession of the [insert item of personal property];] [or] [preventing [name of plaintiff] from having access to the [insert item of personal property];] [or] [destroying the [insert item of personal property];] [or] [refusing to return the [insert item of personal property] after [name of plaintiff] demanded its return.] 3. That plaintiffs did not consent; 4. That plaintiffs were harmed; 5. That defendants’ conduct was a substantial factor in causing plaintiffs’ harm. (1CACI 2100) In support of this cause of action, plaintiffs allege they are the legal and equitable ownersof the “brand”, which carries an economic value that may only be used or exploited by plaintiffs,for their own use and benefit. (FAC at ¶ 74.) They further allege defendants knowingly Page 14 of 18converted the property of plaintiffs by selling the brand products and receiving funds for theseproducts and thus, defendants wrongfully took the funds and used them to personally benefitthemselves. (FAC at ¶ 75.) Defendants assert case law requires a pleading of a specific amount of money which was“converted” and that “a generalized claim for money is not actionable as conversion.” “In order to establish a conversion, the plaintiff ‘must show an intention or purpose toconvert the goods and to exercise ownership over them, or to prevent the owner from takingpossession of his property.’ Thus, a necessary element of the tort is an intent to exerciseownership over property which belongs to another. For this reason, conversion is considered anintentional tort.” (Collin v. American Empire Insurance Co. (1994) 21 Cal.App.4th 787, 812.)Further, “[m]oney cannot be the subject of conversion unless a specific, identifiable sum isinvolved.” (5 Witkin Sum. Cal. Law Torts § 815.) While it is true that California law recognizes “intangible” items as possibly subject toconversion, “the law has been careful to distinguish proper claims for the conversion of moneyfrom other types of monetary claims more appropriately dealt with under other theories ofrecovery. Thus, although our law has dispensed with the old requirement that ‘each coin or billbe earmarked,’ it remains the case that ‘money cannot be the subject of an action for conversionunless a specific sum capable of identification is involved.’ [Citations.]” (Voris v. Lampert(2019) 7 Cal.5th 1141, 1151.) Further, “[e]qually important, the “specific thing” at issue[citation] must be a thing to which the plaintiff has a right of ownership or possession—a rightwith which the defendant has interfered by virtue of its own disposition of the property. Thismeans that ‘[a] cause of action for conversion of money can be stated only where a defendantinterferes with the plaintiff's possessory interest in a specific, identifiable sum’; ‘the simplefailure to pay money owed does not constitute conversion.’ [Citation.]” (Id.) Plaintiffs argue their allegations that defendants knowingly converted the property ofplaintiffs by selling brand products is sufficient to sustain a cause of action for conversionbecause even though they are “intangible”, they are sufficiently defined and certain. The “personal property” element for this cause of action is not sufficiently pled. Thetheory behind this cause of action is that defendants converted “property” belonging to plaintiffsby selling their products. There is no monetary figure attached to this property or even adefinitive categorization of this property other than selling products under the brand label.Defendants’ demurrer to this cause of action is sustained with leave to amend. Seventh cause of action- trade libel The essential elements for trade libel include: Page 15 of 18 1. That defendants made a statement that [would be clearly or necessarilyunderstood to have] disparaged the quality of plaintiffs’ [product/service]; 2. That the statement was made to a person other than plaintiffs; 3. That the statement was untrue; 4. That defendants [knew that the statement was untrue/acted with reckless disregardof the truth or falsity of the statement]; 5. That defendants knew or should have recognized that someone else might act inreliance on the statement, causing plaintiffs’ financial loss; 6. That plaintiffs suffered direct financial harm because someone else acted inreliance on the statement; and 7. That defendants’ conduct was a substantial factor in causing plaintiffs’ harm. (1CACI 1731.) Defendants assert there are no allegations in the FAC to support a trade libel claimbecause defendants are not alleged to have disparaged plaintiffs’ brand or other products.Instead, plaintiffs have alleged defendants injured their reputation, which is distinct from tradelibel. Turning to the FAC, plaintiffs assert defendants injured their reputation and ability toconduct business by representing themselves as acting on behalf of, or with the authority of, theplaintiffs and conducting transactions with vendors and suppliers for the brand products, with theknowledge they [defendants] did not have the authority to do so. (FAC at ¶ 82.) The FAC furtheralleges that defendants “have insulted Plaintiffs’ vendors and suppliers and failed to pay vendorsand suppliers for debts Defendants have incurred while representing themselves as acting onbehalf of, or with the authority of, Plaintiffs for Brand products.” (FAC at ¶ 83.) “Trade libel is the publication of matter disparaging the quality of another’s property,which the publisher should recognize is likely to cause pecuniary loss to the owner. [Citation.]The tort encompasses ‘all false statements concerning the quality of services or product of abusiness which are intended to cause that business financial harm and in fact do so.’ [Citation.]To constitute trade libel, a statement must be false.” (City of Costa Mesa v. D’AlessioInvestments, LLC (2013) 214 Cal.App.4th 358, 376.) “Trade libel is generally defined as ‘anintentional disparagement of the quality of property, which results in pecuniary damage toplaintiff.’ [Citation.] Despite its name, ‘trade libel is not true libel and is not actionable asdefamation.’ [Citation.]” (Muddy Waters, LLC v. Superior Court (2021) 62 Cal.App.5th 905, Page 16 of 18925.) “At a minimum, a trade libel cause of action requires: ‘(1) a publication; (2) which inducesothers not to deal with plaintiff; and (3) special damages.’ [Citation.]”. (Id.) The FAC does not contain adequate allegations that defendants made false statementsregarding the quality of the products. Rather, the allegations are that defendants’ actions loweredthe reputation of the company by failing to pay vendors and suppliers. These actions are notstatements which were published. Paragraph 86 of the FAC states, in very general terms, that“Defendants knowingly made false representations to Plaintiffs’ vendors and suppliers regardingmaterial facts involving the Brands’ property, causing property damage to Plaintiffs’ vendorsand suppliers.” (FAC at ¶ 86.) (Emphasis added.) Even this statement is not on point with therequired elements of this cause of action. The FAC does not allege disparaging statements weremade regarding the quality of the Brand’s property and alleges the damage sustained was to thevendors and suppliers. (See FAC at ¶¶ 83-85.) The demurrer to this cause of action is sustained with leave to amend. Eighth cause of action – constructive trust In support of this cause of action, plaintiffs assert defendants have taken hundreds ofthousands of dollars from them and have diverted existing clients and suppliers and will continueto profit from those clients without plaintiffs’ participation because of their scheme. Further, theyallege the property defendants will acquire is because of their tortious conduct. Plaintiffs assert“[p]rinciples of equity and good conscience mandate this Court to prevent Defendants fromenjoying and reaping windfalls worth millions of dollars ….” (FAC at ¶ 90.) "A constructive trust is an involuntary equitable trust created by operation of law as aremedy to compel the transfer of property from the person wrongfully holding it to the rightfulowner. The essence of the theory of constructive trust is to prevent unjust enrichment and toprevent a person from taking advantage of his or her own wrongdoing.” (Burlesci v. Petersen(1998) 68 Cal.App.4th 1062, 1069.) “‘[A]constructive trust may only be imposed where thefollowing three conditions are satisfied: (1) the existence of a res (property or some interest inproperty); (2) the right of a complaining party to that res; and (3) some wrongful acquisition ordetention of the res by another party who is not entitled to it.’ [Citation.] A constructivetrust may be imposed in practically any case where there is a wrongful acquisition or detention ofproperty to which another is entitled.’ [Citation.]” (Id.). It appears there is a split in authority as to whether a constructive trust is a stand-alonecause of action, as is argued by plaintiffs, or is only a remedy, as asserted by defendants. InGlue-Fold, Inc. v. Slautterback Corp. (2001) 82 Cal.App.4th 1018, the court held that aconstructive trust “is not an independent cause of action but merely a type of remedy for some Page 17 of 18categories of underlying wrong.” Further cases have affirmed this position. “A constructivetrust is an equitable remedy to compel the transfer of property by one who is not justly entitled toit to one who is.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1332.) “A constructive trust, however, is an equitable remedy, not a substantiveclaim for relief.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP(2007) 150 Cal.App.4th 384, 398.) “A constructive trust is not a substantive device but merely aremedy, and an action seeking to establish a constructive trust is subject to the limitation periodof the underlying substantive right.” (Embarcadero Mun. Improvement Dist. v. County of SantaBarbara (2001) 88 Cal.App.4th 781, 793.) However, in Higgins v. Higgins (2017) Cal.App.5th648, in footnote, the court disagreed with Glue-Fold and stated Glue-Fold’s holding isinconsistent with the weight of authority. In Meister v. Mensinger (2014) 230 Cal.App.4th 381,400, the Sixth District refers to a constructive trust as a “remedy tied to the concept of unjustenrichment.” Finally, “[t]he issue of whether to impose a constructive trust is an equitable issuefor the court.” (American Master Lease LLC v. Idanta Partners, Ltd (2014) 225 Cal.App.4th1451, 1485.) Considering these holdings, the court finds it appropriate to permit plaintiffs to amendtheir first amended complaint and reframe this cause of action as a remedy, rather than astandalone cause of action. To that extent, the demurrer to this cause of action is sustained withleave to amend. Tenth cause of action – unfair competition Defendants take issue with this cause of action because it seeks improper relief. Plaintiffs point out, in their opposition, that their FAC does in fact request injunctiverelief, on page 18, in connection with the prayer for relief, thus, the demurrer to this cause ofaction is overruled. Plaintiffs have 20 days from the date the order is signed to file a second amendedcomplaint in accordance with the court’s order.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 18 of 18

Ruling

KEVIN FREEMAN VS EMMANUEL DOSSETTI, ET AL.

Case Number: 22STCV03788 Hearing Date: August 9, 2024 Dept: 29 Freeman v. Dossetti 22STCV03788 Defendants Motion for Second Physical Examination of Plaintiff Tentative The motion is denied without prejudice. Background On January 31, 2022, Kevin Freeman (Plaintiff) filed a complaint against Emmanuel and Kristin Dossetti (collectively Defendants) and Does 1 through 50, asserting a negligence cause of action arising out of dog bite incident occurring on September 13, 2021. Defendants filed their answer on May 30, 2023. On May 13, 2024, the Court denied, without prejudice, Defendants motion for a second physical examination of Plaintiff, based upon the failure of moving parties to file a declaration showing that they made a reasonable effort to meet and confer with Plaintiff about the examination before filing the motion. (See Minute Order dated May 13, 2024, at p. 3.) The Court also cautioned moving parties that if they were to file a further motion, they must adhere to the requirements of the Code, including, but not limited to, Code of Civil Procedure section 2032.310, subdivision (b). (Ibid.) On June 18, 2024, Defendants filed this motion for a second physical examination of Plaintiff. Plaintiff filed an opposition on July 5, and Defendants filed a reply on July 12. This motion was initially set for hearing on July 19, but, due to a cyber attack on the Los Angeles Superior Court, the Court continued the hearing to August 9. Legal Standard Any party may obtain discovery . . . by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action. (Code Civ. Proc., § 2032.020, subd. (a).) In a personal injury action, the defendant may demand one physical examination of plaintiff as of right, without advance leave of the court. (Code Civ. Proc., § 2032.220.) If a defendant seeks a further physical examination of plaintiff, or a mental examination, the defendant must first file a motion and obtain leave of court. (Id., § 2032.310, subd. (a).) Such a motion must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. (Id., subd. (b).) The court may grant such a motion only for good cause shown. (Id., § 2032.320, subd. (a).) A showing of good cause generally requires that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 840.) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (Code Civ. Proc., § 2032.320, subd. (d).) The court is to describe in detail who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. The way to describe these diagnostic tests and proceduresfully and in detailis to list them by name. (Carpenter v. Super. Ct. (2006) 141 Cal.App.4th 249, 260.) The moving party must support the motion with a meet and confer declaration. (Code Civ. Proc., § 2032.310, subd. (b).) A meet and confer declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Id., § 2016.040.) The examination will be limited to whatever condition is in controversy in the action. (Id., § 2032.020, subd. (a).) Discussion The statutory meet and confer requirement is satisfied. Following the hearing on May 13, Defendants made several attempts to meet and confer with Plaintiff, but Plaintiff did not respond to Defendants letters or telephone calls. (Cadena, ¶¶ 14-18.) In the Minute Order dated May 13, 2024, the Court specifically cautioned Defendants that if they were to file a new motion, they must adhere to the requirements of the Code, including, but not limited to, Code of Civil Procedure section 2032.310, subdivision (b). (Minute Order dated May 13, 2024, at p. 3.) Defendants have not done so. Code of Civil Procedure section 2032.310, subdivision (b) requires that a motion for an examination must specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. (Id., subd. (b).) Defendants motion identifies examiner and the examiners specialty, the place of the examination, but the motion does not specify the time and date of the examination. That is required. In addition, the statement that the examination shall include whatever history and tests the doctor deems relevant is impermissibly vague, even in the context here, in which numerous tests are specifically enumerated. Accordingly, the motion is DENIED without prejudice. Conclusion The Court DENIES without prejudice the motion of Defendants for a second physical examination of Plaintiff Kevin Freeman. Moving Party is to give notice.

Ruling

J.D. vs. The General Council Of The Assemblies Of God, et al.

Aug 05, 2024 |23CV-0201767

GOD, ET AL.Case Number: 23CV-0201767Tentative Ruling on Motion to Quash Service of Summons: This action alleging childhoodsexual assault was filed March 14, 2023. Plaintiff amended the Complaint naming UnitedPentecostal Church International (“UPCI”) as Doe 2 on November 29, 2023. UPCI now speciallyappears to move for an order quashing Plaintiff’s service of Summons on the grounds that theCourt lakes personal jurisdiction over UPCI. Plaintiff opposes the Motion.Evidentiary Objections: UPCI raises 15 objections to the Declaration of Magnus Forsythe on thebasis of lack of personal knowledge, inadmissible hearsay, lack of relevance, and lack ofauthentication. The objections are overruled, with the exception of the objection to Exhibit 7,which is sustained on hearsay grounds.Merits. A defendant can challenge jurisdiction in California courts by filing a motion to quash forlack of jurisdiction. CCP § 418.10(a)(1). California courts “may exercise jurisdiction on any basisnot inconsistent with the Constitution of the state or of the United States.” CCP § 410.10. Whena defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initialburden of demonstrating facts justifying the exercise of jurisdiction. Burdick v. Superior Court(2015) 233 Cal.App.4th 8, 17. Once minimum contacts with the forum state are established, itbecomes the defendant’s burden to demonstrate that the exercise of jurisdiction would beunreasonable. Id.There are generally two types of personal jurisdiction. General personal jurisdiction is foundwhere a defendants’ activities in the forum state are so “substantial” or “continuous andsystematic” that the defendant is essentially at home in the forum. Daimler AG v. Bauman (2014)134 S.Ct. 746, 754. A court with general jurisdiction over the defendant could hear the claim evenif the underlying incidents occurred in a different state. Id. Specific jurisdiction is exercised overdefendant as it pertains to a certain claim that arises out of the defendant’s contacts with the forumstate, and if the defendant purposefully directed those activities toward forum residents orpurposefully availed itself of the privilege of conducting activities in the forum state. Burger KingCorp. v. Rudzewicz (1985) 471 U.S. 462, 476. A court may exercise “specific jurisdiction” over anon-resident defendant if: 1) the defendant has purposefully availed themselves of the forumbenefits; 2) the controversy is related to or arises out of defendants contacts with the forum; and3) the assertion of personal jurisdiction would comport with fair play and substantial justice.Pavlovich v. Superior Court (2002) 29 Cal.4th 262, 269. Purposeful availment occurs when thenonresident defendant purposefully directs its activities at residents of the forum. Burger KingCorp. v. Rudzewicz (1985) 471 U.S. 462, 475.Defendant UPCI challenges whether this Court has personal jurisdiction. Plaintiff has submittedminimal evidence to establish personal jurisdiction. The evidence submitted as exhibits to theDeclaration of Forsythe include screenshots from UPCI’s website which indicate there are manyUPCI locations worldwide, and that some are in California. The evidence also includes a UPCImanual from 2019, of unclear relevance to the time of the alleged incidents. In sum, the evidenceprovided does not justify the Court finding that Defendant UPCI has continuous and systematiccontacts sufficient to support general jurisdiction. Likewise, Plaintiff’s evidence does not establishthat UPCI purposefully availed itself of this forum’s benefits, or that the controversy arises out ofUPCI’s contacts to support specific jurisdiction. However, Plaintiff has requested an opportunityto conduct discovery to obtain additional information. “It is well established in the area of motionsto quash service of summons for lack of personal jurisdiction that a plaintiff is entitled to conductdiscovery on the jurisdictional issues.” Omega Video Incorporated v. Superior Court (1983) 146Cal .App. 3d 470, 481. A plaintiff attempting to assert jurisdiction over a nonresident defendant is entitled to an opportunity to conduct discovery of the jurisdictional facts necessary to sustain its burden of proof. (Magnecomp Corp. v. Athene Co., supra, 209 Cal.App.3d at p. 533, 257 Cal.Rptr. 278.) In order to prevail on a motion for a continuance for jurisdictional discovery, the plaintiff should demonstrate that discovery is likely to lead to the production of evidence of facts establishing jurisdiction. (See, e.g., Beckman v. Thompson (1992) 4 Cal. App. 4th 481, 486–487, 6 Cal.Rptr.2d 60.)In Re Automobile Antitrust Cases I & II (2005) 135 Cal. App. 4th 100, 127.Plaintiff has demonstrated that discovery is likely to lead to the production of evidence establishingjurisdiction. The Court will grant the request to conduct limited discovery related to jurisdictionas to Defendant UPCI. Hearing on this motion is continued to Monday, December 16, 2024, at8:30 a.m. in Department 64. Supplemental briefing is to be served and filed per CCP § 1005(b)using the continued hearing date. The parties may request the Court set an alternative date byappearing at today’s hearing, or by stipulation and order.

Ruling

INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB AS SUBROGEE OF FRAN GRODZIENSKI VS AIR VENT, INC., ET AL.

Aug 08, 2024 |23CHCV01659

Case Number: 23CHCV01659 Hearing Date: August 8, 2024 Dept: F43 Dept. F43 Date: 8-8-24 Case #23CHCV01659, Interinsurance Exchange of the Automobile Club vs. Air Vent, Inc., et al. Trial Date: N/A MOTION TO QUASH SERVICE OF SUMMONS MOVING PARTY: Cross-Defendant Powermax Electric Co. Ltd. Guangdong RESPONDING PARTY: Defendant/Cross-Complaint Air Vent, Inc. RELIEF REQUESTED Cross-Defendant has requested that the Court quash the service of summons. RULING: Motion is granted. SUMMARY OF ACTION Cross-Defendant Powermax Electric Co. Ltd. Guangdong (Powermax) filed this motion to quash service of summons on May 8, 2024, pursuant to CCP §§ 418.10 and 1167.4(a). Powermax filed the motion on the basis that this Court lacks personal jurisdiction over Defendant. Powermax is a company based in the Peoples Republic of China. Powermax argues that it lacks sufficient minimum contacts with California for the Court to exercise general jurisdiction over Powermax and that Powermax has not purposefully availed itself of forum benefits for specific jurisdiction to exist. Cross-Complainant Air Vent, Inc. (Air Vent) argues in its opposition that California courts would have general and specific jurisdiction over Powermax. Air Vent argues that general jurisdiction exists because Powermaxs contacts with California have been substantial, continuous, and systematic because Powermaxs products are available for purchase in California and throughout the United States. Similarly, Air Vent argues that specific jurisdiction exists because Powermax has purposefully availed itself of the jurisdiction of California courts because it has been doing business with Air Vent. Air Vent also argues that Powermax exports its products directly to ports in California. Finally, Air Vent argues that the Plaintiffs claims in this case arise out of Powermaxs business activities in California and that exercising jurisdiction over Powermax is reasonable. Alternatively, Air Vent argues that Powermaxs motion should be denied without prejudice to allow discovery on jurisdictional issues. Powermax argues in its reply that Air Vent fails to set forth any relevant, admissible evidence with respect to jurisdiction in its supporting declaration. Powermax also argues that Air Vent appears to make the assumption that DM (Asia) Ltd (DMA) and Powermax are one in the same, and Powermax argues that they are not. Next, Powermax argues that even if it did contract directly with Air Vent, which it argues it did not, Air Vent is a Texas company, so that would still not create jurisdiction in California. Powermax also argues that the exhibits submitted with Air Vents declaration do not show Powermax as contracting with any California companies. Powermax next argues in its reply that Air Vent has failed to meet its burden to show that Powermax is at home in California and thus cannot establish general jurisdiction. Powermax also argues that Air Vent has failed to establish why specific jurisdiction exists pursuant to the stream of commerce plus theory or any other theory. Finally, Powermax argues that Air Vents request for additional jurisdictional discovery should be denied. Air Vents Request for Judicial Notice: Air Vent has requested that the Court take judicial notice of a Nevada case and a San Bernardino County case that denied Powermaxs motion to dismiss and motion to quash in similar cases. The Court takes judicial notice of these documents, but only as to their existence, and not for the truth of any matter asserted therein. ANALYSIS CCP § 418.10(a)(1) allows a defendant to serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction of the court. Where a nonresident defendant challenges jurisdiction by a motion to quash, the plaintiff bears the burden of establishing by a preponderance of the evidence the factual bases justifying the exercise of jurisdiction. (Viaview, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 216.) To satisfy this burden, a plaintiff must present competent evidence showing that the defendants conduct related to the pleaded causes of action is such as to constitute minimum contacts with the forum to justify jurisdiction. (Id. at 217.) General Jurisdiction A nonresident defendant is subject to the forums general jurisdiction where the defendants contacts are substantial, continuous, and systematic. (DVI, Inc. v. Superior Court (2002) 104 Cal.App.4th 1080, 1090.) A court has no general jurisdiction when the company has no offices, employees, bank accounts, or real property in California. (See Cassiar Mining Corp. v. Superior Court (1998) 66 Cal.App.4th 550, 554.) In this case, Air Vent have provided no evidence that Powermax has offices, employees, bank accounts, or real property in California. Powermax is a Chinese corporation headquartered in China. Powermax does not appear to have contacts that are substantial, continuous, and systematic. In its opposition, Air Vent appears to confuse the standards for general and specific jurisdiction. Air Vent argues that the Court has general jurisdiction over Powermax because it allegedly sold and marketed its products to customers in California. However, that is not one of the indications of substantial, continuous, and systematic contact required for a forum to have general jurisdiction over a nonresident defendant. Such arguments regarding the selling and marketing of products are more applicable to the standard for specific jurisdiction. Accordingly, Air Vent has not provided evidence that the Court has general jurisdiction over Powermax. This Court does not have general jurisdiction over Powermax. Specific Jurisdiction If a nonresidents contacts are not substantial and systematic, a court may exercise specific jurisdiction over a nonresident defendant only if (i) the defendant has purposefully availed itself of forum benefits by purposefully and voluntarily directing its activities toward the forum, (ii) the controversy is related to or arises out of the defendants contacts with the forum, and (iii) the forums assertion of personal jurisdiction over the defendant would comport with fair play and substantial justice. (Jensen v. Jensen (2019) 31 Cal.App.5th 682, 686-687.) In determining whether a defendant has purposefully availed itself of the benefits of the forum state, the relevant inquiry is the degree to which a foreign corporation interjects itself into the forum state such that the defendant can reasonably expect to be haled into court there. (Felix v. Bomoro Kommanditgesellschaft (1987) 196 Cal.App.3d 106, 115-117.) First, Powermax argues that it has not purposefully availed itself of forum benefits by purposefully directing its activities toward the forum. Powermax argues that it does not direct any business activities toward the State of California and that even if it had manufactured the product, it sold the product to DMA, and that sale occurred in China, not California. Air Vents opposition includes declarations that claim that Powermax distributed millions of motors directly from the Powermax facility to Air Vent (which is a Texas corporation) and that Powermax exports its products directly to ports in California. (See Holland and Jakofsky Declarations.) Powermax argues in its reply that none of the exhibits provided by Air Vent establish a direct connection between Powermax and California. The exhibits only vaguely reference business contacts with the United States with no mention of California, or show that Powermaxs products arrived in California or passed through California through the stream of commerce. There is also no evidence that Powermax expected its motors to be purchased by consumers in California or purposefully availed itself of the benefits of the California forum. Additionally, Air Vent indicates that the relevant motors that it purchased from DMA (which bought the motors from Powermax in China), were shipped to Air Vents Texas facility and then incorporated into an attic fan manufactured in Texas, not California. Powermax also argues that the exhibits submitted by Air Vent, including the Amazon screenshots showing Powermax as a manufacturer and purported contracts with various hardware stores, are not authenticated and lack foundation or verifiable links. (Reply at pp. 3-4.) These exhibits were attached to the declarations of a private investigator, Air Vents attorney, and the Director of Quality and Technical Services for Air Vent. These individuals simply claimed that these were true and correct copies without more. Furthermore, the sales contracts that Air Vent provided are with the DMA entity, not Powermax. Though Air Vent claims that DMA is Powermaxs marketing agent/partner, Air Vent has provided no evidence of this and appears that its assertions on this matter are just based on speculation. The Court agrees with Powermaxs objections to these exhibits and sustains Powermaxs objections to Air Vents exhibits. Based on the foregoing, there is no evidence that Powermax purposefully availed itself of the forum benefits. Second, Powermax argues that Air Vents claims do not arise from any contact by Powermax with the state of California. Air Vents claims arise from Air Vent purchasing the motor at issue from DMA. Powermax has submitted evidence that it did not sell the motor directly to any California entity or any individual in the United States, as Powermaxs sale to DMA took place in China. Air Vent argues in its opposition that Powermax sold the motor knowing that it would be purchased in California, but Air Vent provides no evidence to support this argument. Furthermore, Powermax sold the motors to DMA in China, and DMA sold the motors to Air Vent in Texas, not California. There is no evidence that Plaintiffs claims arise out of any activities on the part of Powermax in California. Third, Powermax argues that the exercise of specific jurisdiction would offend traditional notions of fair play and substantial justice. When considering whether the assertion of personal jurisdiction would comport with fair play and substantial justice, the Court must consider (1) the burden on Powermax, (2) the interests of the forum state, (3) Cross-Complainants interests in obtaining relief, (4) the interstate and international judicial systems interest in obtaining the most efficient resolution of controversies, and (5) shared interest of the various jurisdictions in furthering fundamental substantive social policies. (Snowney v. Harrahs Entertainment (2005) 35 Cal.4th 1054, 1062.) Powermax argues that the burden on it in defending this action would far outweigh any interest the State of California has, if any, in adjudicating the allegations against Powermax. Powermax argues that California has no interest in regulating the products sold by a company from China outside the State of California. It also argues that it would be unfair and unreasonably burdensome to force Powermax to defend itself over 11,500 miles from its place of business. Air Vent only argues that it would be reasonable because Air Vent has established that Powermax has minimum contacts with California. However, the Court found that Powermax does not have minimum contacts with California. It would be unfair and overburdensome to require Powermax to defend this case in a California court. As for the parties differing interpretations of Asahi Metal Industry Co., Ltd. v. Superior Court of California, Solano County (1987) 480 U.S. 102, the Court agrees with Powermax that minimum contacts, and thus personal jurisdiction, cannot be established based simply on the arrival of components from outside the United States into the forum State through the stream of commerce. As for Bridgestone Corp. v. Superior Court (2002) 99 Cal.App.4th 767, that case involved a Japanese company selling a product directly to a company in California. The present case is distinguishable because Powermax sold to DMA in China, and then DMA sold to Air Vent in Texas. This Court does not have specific jurisdiction over Powermax. Additional Discovery Air Vent requested in the alternative that additional discovery on the jurisdictional issue should be ordered. Air Vent has already done limited discovery in opposing this motion. Air Vent has not indicated how additional discovery may help in determining the jurisdictional issue. No additional discovery will be ordered. CONCLUSION Based on the foregoing, Powermaxs motion to quash service of summons is granted. Powermax is dismissed from this action. Moving party to give notice.

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