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Monroy- Bautista -v - American Honda Motor CO., INC et al Print
Jul 15, 2024 |CIVSB2315690
PROCEDURAL/FACTUAL BACKGROUND Currently before the Court is a Motion to Compel related to lemon law litigation. As alleged, in March 2019, Plaintiff Salvador Monroy-Bautista (hereinafter, “Plaintiff”)purchased a 2019 Honda Civic (hereinafter, “Subject Vehicle”) that was covered by DefendantAmerican Honda Motor Co., Inc.’s (hereinafter, “Defendant” or “Honda”) warranties. (Compl.¶¶9-10.) Plaintiff alleges the Subject Vehicle was delivered defective and, after its purchase,showed defects in its electrical and transmission systems. (Id. at ¶11.) On July 7, 2023, Plaintiff filed his Complaint against Honda and co-defendant OntarioAutomotive LLC d/b/a Penske Honda Ontario (“Penske Honda Ontario,” and collectively, withHonda, “Defendants”). The Complaint pleads four causes of action: (1) Violation of the Song—Beverly Act — Breach of Express Warranty (against Honda); (2) Violation of the Song—BeverlyAct — Breach of Implied Warranty (against Honda); (3) Violation of the Song—Beverly Actsection 1793.2, subdivision (b) (against Honda); and (4) Negligent Repair (against Penske HondaOntario). Defendant answered on August 14, 2023. 2 On October 11, 2023, the parties entered into a protective order governing discovery. 1 OnNovember 29, 2023, Plaintiff filed a motion to compel further responses to Plaintiff’s Request forProduction of Documents, Set One, which was noticed for February 14, 2024. On January 12, thisCourt held a Trial Setting Conference, in which it set an Informal Discovery Conference for March8 and continued the hearing for the motion to compel until March 27. (Jan. 12, 2024 Min. Order.)Honda did not appear at the March 8 discovery conference, and the Court set another one for May17, continuing the hearing on the motion to compel to May 30. (Mar. 8, 2024 Min. Order.) On March 29, Plaintiff filed the instant motion to compel, seeking further responses toPlaintiff’s Request for Production of Documents, Set Two. Plaintiffs’ motion seeks to compelfurther responses to their requests for production (hereinafter, “RFPs”) 10, 14, 23, 24, 33, 37, 46,and 47. In support of their motion, Plaintiff also filed a proposed order, declaration of counsel, andseparate statement. On May 17, the parties met for an informal discovery conference, and the Court vacatedthe hearing date for May 30, which was set to rule on Plaintiff’s first motion to compel. In theminute order, the Court stated: Parties agree that the only Request for productions that remain at issue are No.’s 10, 14, 23, 24, 33, 37, 46, and 47. The only document in contention is the Honda “Quality Improvement Sheet(s)”, otherwise, all documents responsive to these request[s] for production[] have been produced. Honda’s opposition to the motion will focus on its refusal to produce the Quality Improvement Sheet(s).(May 17, 2024 Min. Order.) The RFPs referenced above correspond to the RFPs at issue in thecurrent motion to compel, however, despite what is written in the May 17 Minute Order, Honda’s1 This protective order was filed with the Court on October 17, 2023, but based on a review of Odyssey, it does notappear to be signed by the Court. 3opposition does not just “focus on its refusal to produce the Quality Improvement Sheet(s).” (Ibid.)It, instead, addresses all of Plaintiff’s motion. On July 8, Plaintiff filed his reply. This motion is currently scheduled to be heard Monday, July 15, 2024. DISCUSSION I. Legal Standard. a. The Parameters of Discovery. Under California’s Civil Discovery Act, “parties may conduct discovery ‘regarding anymatter, not privileged, that is relevant to the subject matter involved in the pending action … if thematter either is itself admissible in evidence or appears reasonably calculated to lead to thediscovery of admissible evidence.’” (Perlan Therapeutics, Inc. v. Superior Court (2009) 178Cal.App.4th 1333, 1351, fn.12 (citing Code Civ. Proc., §2017.010).) “Thus, for discovery purposes, information is relevant to the ‘subject matter’ of an actionif the information might reasonably assist a party in evaluating a case, preparing for trial, orfacilitating settlement.” (Jessen v. Hartford Cas. Ins. Co. (2003) 111 Cal.App.4th 698, 711-712.)With respect to whether a request will lead to the discovery of admissible evidence, “[i]nformationis relevant if its discovery will tend to promote settlement or assist in preparation for trial” and theparty seeking discovery is entitled to substantial leeway, with doubts resolved in favor of allowingdiscovery. (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1760-1761.) Although trial courts have “wide discretion” to allow or prohibit discovery, “trial courtsissuing discovery orders and appellate courts reviewing those orders should do so with the pro-discovery policies of the statutory scheme firmly in mind. A trial court must be mindful of theLegislature’s preference for discovery over trial by surprise, must construe the facts before itliberally in favor of discovery, may not use its discretion to extend the limits on discovery beyond 4those authorized by the Legislature, and should prefer partial to outright denials of discovery.”(Williams v. Superior Court (2017) 3 Cal.5th 531, 540.) b. Motions to Compel. A party who deems a statement of compliance with a document demand as incomplete, orthe representation of inability to comply as inadequate, incomplete, or evasion, or an objection toa document demand as without merit or too general can move to compel further responses. (CodeCiv. Proc., §2031.310, subd. (a).) In ruling on the motion, courts may consider the relationship ofthe information sought to the issues framed in the pleadings; the likelihood that disclosure will beof practical benefit to the party seeking discovery; and the burden or expense likely to beencountered by the responding party in furnishing the information sought. (Weil & Brown, Cal.Prac. Guide (TRG 2013), Civil Procedure Before Trial, §8:1180-8:1181.) The motion to compel must be noticed within 45 days of receipt of the responses (plus theadditional time if not personally served). (Code Civ. Proc., §2031.310, subd. (c).) The motion tocompel must be accompanied by a declaration stating facts showing a reasonable and good faithattempt to resolve informally the issues presented by the motion before filing the motion. (CodeCiv. Proc., §§2031.310, subd. (b)(2), 2016.040.) Additionally, the moving party must set forthfacts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc.,§2031.310, subd. (b)(1).) Motions to compel must also be accompanied by a separate statementcontaining the requests and the responses, verbatim, as well as reasons why a further response iswarranted. (Cal. Rules of Court, rule 3.1345(a).) The separate statement must be complete in itself;no extrinsic materials may be incorporated by reference. (Id., rule 3.1345(c).) A motion to compel further responses to a demand for inspection or production ofdocuments may be brought based on: (1) incomplete statements of compliance; (2) inadequate, 5evasive or incomplete claims of inability to comply; or (3) unmerited or overly generalizedobjections. (Code Civ. Proc., § 2031.310, subd. (c).) A motion to compel further responses “shallset forth specific facts showing good cause justifying the discovery sought by the inspectiondemand.” (Code Civ. Proc. § 2031.310(b)(1).) Unverified discovery responses are tantamount to no response at all, and are subject to amotion to compel responses (rather than a motion to compel further responses). (Appleton v.Superior Court (1988) 206 Cal. App. 3d 632, 635-36.) However, objections to interrogatories anddemands for production are not required to be verified because “objections are legal conclusionsinterposed by counsel, not factual assertions by a party.” (Blue Ridge Insurance Co. v. SuperiorCourt (1988) 202 Cal.App.3d 339, 345.) The standard of review for discovery orders in general is abuse of discretion. (CostcoWholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.) The determination whether aprivilege applies likewise is subject to the abuse of discretion standard. (Kirchmeyer v.Phillips (2016) 245 Cal.App.4th 1394, 1402.) II. Analysis. In Plaintiff’s motion he seeks further responses to eight specific RFPs (10, 14, 23, 24, 33,37, 46, and 47), all of which seek documents, including emails, relating to “field technical reports”.Each of the eight RFPs relate to slightly different topics, and are analyzed below. a. Meet and Confer Requirement Procedurally, Plaintiff is required to file “a meet and confer declaration,” that states “factsshowing a reasonable and good faith attempt at an informal resolution of each issue presented,”along with its motion to compel. (Code Civ. Proc., §§ 2016.040; 2031.310, subd. (b)(2).) Alongwith his motion, Plaintiff filed the declaration of counsel Chris Grigoryan, which stated thatcounsel sent two separate meet and confer letters, in good faith, prior to filing this motion. (C. 6Grigoryan ¶¶19-20.) Although Honda argues that Plaintiff did not attempt to meet and confer afterthe May discovery conference as was requested by the Court, the meet and confer requirement hastechnically been met. As such, the Court will rule on the merits to avoid further delays. b. RFP 10: Structural Defects Plaintiffs seek further responses to RFP 10, which seeks “field technical reports … withinformation relating to warranty parts replacement trends relating to the STRUCTURALDEFECTS in vehicles of the same year, make, and model as the Subject Vehicle.” (Pl.’s Sep.Statement at 16 (emphasis in original).) To this request, Honda objects, but then also states that it“has made a diligent search and reasonable inquiry in an effort to comply with this request and hasno field technical reports directed to warranty parts replacement trends and no responsivedocuments have ever existed.” (Id. at 17.) Defendant’s response that it made a diligent search, reasonable inquiry and no documentexists is code-compliant and the Court cannot order Honda to produce records it states do not exist.(Code Civ. Proc., § 2031.230.) To the extent Honda is interpreting the request too narrowly andresponsive documents do exist, Honda is correct that the documents sought by RFP 10 areirrelevant and beyond the scope of discovery in this case. In his complaint, Plaintiff alleges problems with electrical and transmission defects, butRFP 10 seeks documents related to “structural defects.” In his motion, Plaintiff goes through therepair history of the Subject Vehicle (Mem. at 3), and none of those repairs deal with the SubjectVehicle’s structure. As such, RFP 10 is beyond the scope of discovery. The Court denies themotion to compel as to RFP 10. c. RFPs relating to Transmission and Electrical Defects (14, 23, 24, 33, 37, 46, 47). 7 Plaintiff seeks further responses to seven RFPs that seek “field technical reports” relatedto “common parts failures,” (RFPs 14, 37) “commonly observed problems,” (RFP 23), “repeatrepair failures,” (RFP 24, 47), warranty parts replacements (RFP 33), and “suggested repairprocedures” (RFP 46) relating to electrical or transmission defects in vehicles of the same year,make, and model as the Subject Vehicle. To these requests, Honda objects but then also states that it “has made a diligent search andreasonable inquiry in an effort to comply with this request and has no field technical reports…andno responsive documents have ever existed.” (Pl.’s Sep. Statement at 19-27.) Defendant’s response that it made a diligent search, reasonable inquiry and no documentexists is code-compliant and the Court cannot order Honda to produce records it states do not exist.(Code Civ. Proc., § 2031.230.) As Honda has noted, Plaintiff did not define “field technicalreports,” in its RFPs, and if Honda has no documents under this title, it cannot be expected toproduce anything responsive to these requests. It may be, however, that at the informal discovery conference, the parties came to anunderstanding that these RFPs are actually seeking “Quality Improvement Sheet(s),” related to thespecific topics. (May 17, 2024 Min. Order.) To the extent the parties do have an understandingthat these RFPs seek “Quality Improvement Sheet(s)” and these documents do exist, they arerelevant to the litigation and should be produced. Discovery is relevant if it is admissible or reasonably calculated to lead to admissibleevidence. (Code Civ. Proc., §2017.010.) “In the context of discovery, evidence is ‘relevant’ if itmight reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement.(Glenfed Dev. Corp. v. Superior Court (National Union Fire Insurance Company of Pittsburgh,PA) (1997) 53 Cal.App.4th 1113, 1117; Norton v. Superior Court (Ein) (1994) 24 Cal.App.4th 81750, 1760.) Case law allows the discovery of other vehicles having the same defects as the at-issue vehicle. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973-74 (the courtallowed the discovery of all warranty complaints received on vehicles of the same make, model,and year as the plaintiff’s vehicle); Donlen v. Ford Motor Company (2013) 217 Cal.App.4th 138,152-532 (the Court of Appeal recognized that submitted evidence concerning the same make andmodel vehicle that showed the same non-conformities, as the subject vehicle, was evidence theexpert properly relied upon to show the defendant failed to conform the subject vehicle to itswarranty).) Plaintiff cites several cases to illustrate that it is common practice to allow production ofinternal emails, bulletins, and database searches related to similarly situated vehicles of theinvolved in litigation. For example, in Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 340-347, the Court of Appeal noted that internal e-mails demonstrated that Chrysler was aware of theproblem with the Totally Integrated Power Module, which affected the plaintiff’s vehicle, and thisultimately led the Santana Court to conclude the jury could infer from the emails that themanufacturer intentionally chose not to fully honor the express warranty, which was sufficient tosupport a civil penalty under section 1794, subdivision (c). Honda argues these RFPs are entirely too broad, and, even if narrowed, do not seekinformation allowed pursuant to the case law cited by Plaintiff. Defendant essentially argues thisaction is for one vehicle hence these requests exceed the scope of relevant discovery. For supportto limit the discovery, Defendant relies on Calcor Space Facility v. Superior Court (ThiemIndustries, Inc.) (1997) 53 Cal.App.4th 216, 224-225 (Calcor Space Facility) and distinguishes2 In Velasco v. Mercedes-Benz USA, LLC (C.D.Cal. 2019) 2019 U.S.Dist. LEXIS 222387, at *3, the Central District Courtof Appeal indicates Donlen is superseded by statute. But the Velasco court is referring to revisions in the FederalRules of Civil Procedure. (Ibid.) This Court relies on California law, not the Federal Rules of Civil Procedure.Therefore, the holding of Velasco is irrelevant. 9Plaintiff’s relied on cases Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 (Doppes)and Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138 (Donlen). In Calcor Space Facility (cited by Defendant), the Court of Appeal, Fourth District vacateda trial court order compelling discovery, where it found Plaintiff had been allowed to proceed witha “fishing expedition,” because the plaintiff’s requests failed to “bear any relationship to themanner in which [defendant] Calcor maintains its records. The burden is sought to be imposed onCalcor to search its extensive files, at many locations, to see what it can find to fit [plaintiff’s]definitions, instructions and categories.” (Calcor Space Facility v. Superior Court, supra, 53Cal.App.4th at 222.) Plaintiff’s RFPs, however, do bear a relationship to the claims at issue and given that theyare tailored to issues named in the complaint and related to the same make and model of the SubjectVehicle, they seem sufficiently narrowly tailored. While neither Doppes nor Donlen is directly onpoint, they do establish a consensus that discovery associated with complaints and defects insimilar vehicles can be relevant under the Song Beverly Consumer Warranty Act, particularly, inassisting on whether Honda was aware of the defects. Also, Civil Code section 1794, subdivision(c), provides that if a buyer establishes the defendant willfully failed to comply with its obligation,he is entitled to recover a civil penalty. However, if the manufacturer’s failure to repurchase orreplace was based on good faith and reasonable belief the statutory obligation did not exist, thenwillfulness cannot be found. (Lukather v. General Motors, LLC (2010) 181 Cal.App.4th 1041,1051; Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104.) Nevertheless,“[a] decision made without the use of reasonably available information germane to that decisionis not a reasonable, good faith decision.” (Lukather v. General Motors, supra, 181 Cal.App.4th at1051.) 10 Applying this here, these RFPs seek documents discussing common part failures, observedproblems, warranty parts replacements, suggested repair procedures, and repeat repair failuresrelating to electrical and transmission defects in vehicles of the same year, make, and model as theSubject Vehicle. They thus go to Honda’s knowledge of the issues and/or ability to fix/repair thedefects present in the Subject Vehicle that were specifically plead in the Plaintiff’s complaint.These RFPs also relate to the issue of Honda’s duty to replace or repurchase under the SongBeverly Consumer Warranty Act. As such, if Plaintiff’s RFPs 14, 23, 24, 33, 37, 46, and 47 are seeking “QualityImprovement Sheet(s),” a document familiar to Honda, and related to electrical and transmissiondefects in vehicles of the same year, make, and model as the Subject Vehicle, the Court grants themotion to compel. But if the parties do not have an understanding as to what specific documentsthese requests are seeking, Plaintiff is given leave to amend the requests. CONCLUSIONS Based on the foregoing analysis, the Court Grants, in part, and Denies, in part, Plaintiff sMotion to Compel Further Responses: (1) Denies the Motion as to RFP 10; and (2) Grants the Motion to Compel and orders Defendant to further respond to RFPs 14,23, 24, 33, 37, 46, and 47 if the parties have an understanding as to what title or category ofdocuments Plaintiff is seeking, given that repair reports related of vehicles of the same year, makeand model as the Subject Vehicle relating to electric or transmission defects are relevant. If theparties do not have an understanding of the specific type of document Plaintiff is seeking, Plaintiffis given leave to amend the requests to define “field technical reports”. Plaintiff’s counsel is ordered to provide notice. 1112
Ruling
through her guardian ad Defendant’s Motion to
Jul 30, 2024 |CIVSB2300806
1) Plaintiff’s unopposed motion re joinder in Defendant SCI California Funeral Services, Inc. dba Mt. View Mortuary & Cemetery’s Motion’s to Compel Appearance of Juan Pena at Deposition is granted. 2) Defendant SCI California Funeral Services, Inc. dba Mt. View Mortuary & Cemetery’s (Defendant) unopposed Motion to Compel Appearance of Juan Pena at Deposition is granted. Mr. Juana Pena shall appear for deposition within thirty (30) days from the date he is served with the order of the court. Mr. Juan Pena is ordered to pay Defendant SCI California Funeral Services, Inc. dba Mt. View Mortuary & Cemetery $1,200 in sanctions. Payment shall be made within thirty (30) days from the date Mr. Penal is served with a copy of the court’s order. Defendant SCI California Funeral Services, Inc. dba Mt. View Mortuary & Cemetery shall submit a proposed order consistent with this ruling. Counsel for Defendant SCI California Funeral Services, Inc. dba Mt. View Mortuary & Cemetery is ordered to provide notice. 2
Ruling
Complaint
Jul 17, 2024 |CIVSB2332582
No tentative. The Court has questions. 2
Ruling
in the Alternative, Motion for
Jul 24, 2024 |CIVSB2129221
FACTUAL AND PROCEDURAL BACKGROUND On October 15, 2021, plaintiff Ruben Cardenas Guzman (Plaintiff) initiated the instantaction against defendants Canyon Ridge Hospital (Defendant) and Does 1-30. The operativeComplaint alleges two causes of action for (1) negligence- premises liability, and (2)professional negligence. Plaintiff alleges on August 19, 2019, he was admitted as an in-patientto Defendant’s facility. Plaintiff alleges Defendant failed to either properly maintain its premisesor failed to exercise the degree of knowledge and skill ordinarily possessed by other healthcareproviders and as a result, Plaintiff slipped while showering, causing him to sustain injuries. On April 4, 2024, Defendant filed the instant Motion for Summary Judgment or, in theAlternative, Summary Adjudication (Motion). The Motion is supported by a Separate Statementof Undisputed Material Facts, a Notice of Lodgment in Support of Defendant’s Motion anddeclarations from Justin Dulay, R.N.; Nancy L. Beecham, R.N. (Ms. Beecham); Gilbert E.Boswell, M.D. (Dr. Boswell); and Stacy E. Thumsuden. On July 10, 2024, Plaintiff filed hisOpposition to the Motion (Opposition), along with his Opposition to Defendant’s SeparateStatement of Undisputed Material Facts, a Separate Statement of Undisputed Material Facts,Objections to Evidence and declarations from Erin Boeck; the Plaintiff; Michael Gillman, M.D. 2(Dr. Gillman); Lokesh Arora, M.D. (Dr. Arora) and Ryan Klein, M.D. (Dr. Klein). Defendantfiled its Reply on July 16, 2024. II. APPLICABLE LAW AND ANALYSIS A. Defendant’s Notice of Lodgment Defendant files a Notice of Lodgment of Documents in Support of the Motion concurrentlywith the instant Motion, seeking to “lodge” Exhibits 1-31. No exhibits were attached to the actualnotice. Under Local Rule 571, “[a]ny Notice of Lodgment shall include a citation to the statute orrule that authorizes that type of document to be lodged.” Defendant notice fails to include anycitations to a statute or local rule. Exhibits in support of a motion for summary judgment are “filed” not “lodged.” Thedistinction between lodged and filed documents has been found to be significant. (Mao's Kitchen,Inc. v. Mundy (2012) 209 Cal.App.4th 132, 150–151 [finding a “meaningful difference” since fileddocuments become “part of the permanent court file”; Beltone Electronics Corp. v. Superior Court(1978) 87 Cal.App.3d 452, 455; Sacks v. FSR Brokerage, Inc. (1992) 7 CA4th 950, 962, 9 CR2d306, 313 [summary judgment motion based on “papers on file and lodged with court” did not makedeposition transcripts part of record].) While the court may strike Defendant’s Notice of Lodgment of Documents in Support ofthe Motion pursuant to section 436 of the Code of Civil Procedure, as Plaintiff made no objectionto the subject notice, the court orders the pleading and any attachments be immediately filed withthe clerk of the court. (Code Civ. Proc., § 436 [Court can, sua sponte, strike out a pleading notfiled in conformity with a court rule].) Defendant’s counsel is reminded that they must complywith the Local Rules of San Bernardino County Superior Court. 3 B. Plaintiff’s Evidentiary Objections Along with his Opposition, Plaintiff filed fourteen objections to the declarations of Ms.Beecham and Dr. Boswell. As to the declaration of Ms. Beecham, Plaintiff objects to thedeclaration in its entirety on the grounds of inadmissible expert opinion, lacks foundation andconclusory and speculative. Plaintiff further objects to paragraphs 9a, 9c, 9d, 9f, 9g, 9h and 9ion the same grounds as well as on the grounds of relevancy. The court overrules theseobjections in their entirety as the objections go to the weight rather than admissibility of theevidence. Plaintiff further objects to the declaration of Dr. Boswell in its entirety because it isinadmissible expert opinion, lacks foundation and is conclusory and speculative. Plaintiff furtherspecifically objects to paragraphs 10c, 10d and10e on the same grounds as well as the additionalground of relevancy. The court overrules these objections in their entirety as the objections go tothe weight rather than admissibility of the evidence. C. Motion for Summary Judgment “The purpose of the law of summary judgment is to provide courts with a mechanism tocut through the parties’ pleadings in order to determine whether, despite their allegations, trial isin fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,843 (Aguilar).) Summary judgment is proper where there is no triable issue as to any material factand the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd.(c).) The analysis requires the trial court to engage in three steps: First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's 4 pleading. [Citations.] [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. [Citations.] The motion must stand self-sufficient and cannot succeed because the opposition is weak. [Citations.] A party cannot succeed without disproving even those claims on which the opponent would have the burden of proof at trial. [Citations.] [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-65.) When the moving party is a plaintiff, the initial burden is met by a showing that there is nodefense to the action or rather by proving each element of the cause or causes of action. (See CodeCiv. Proc., § 437c, subd. (p)(1).) Likewise, defendants can meet their initial burden by showingthat a cause or causes of action have no merit because one or more elements of the claims “cannotbe established.” (See Code Civ. Proc., § 437c subd. (p)(2).) Once the movant has met the initialburden, the burden then shifts to the opposing party to produce admissible evidence showing thatthere is a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 849-851.) However, if themovant does not satisfy the initial burden, the motion must be denied and it is unnecessary for thecourt to consider the opposition. (Swanson v. Morongo Unif. Sch. Dist. (2014) 232 Cal.App.4th954, 963.) D. Motion for Summary Adjudication The same rules of summary judgment must apply to the summary adjudication of issues.If the pleadings are not defective, the court may then determine from the evidence in support ofand in opposition to the motion “whether the triable issues apparently raised by them are real ormerely the product of adept pleading.” (Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525,536.) A party may move for summary adjudication as to one or more causes of action within an 5action, one or more affirmative defenses, one or more claims of damages, or one or more issuesof duty. (Code Civ. Proc., § 437c, subd. (f); Paramount Petroleum Corporation v. SuperiorCourt (2014) 227 Cal.App.4th 226.) A summary adjudication motion is subject to the same rulesand procedures as a summary judgment motion. (Lomes v. Hartford Financial Service Group,Inc. (2001) 88 Cal.App.4th 127, 131.) Furthermore, the motion for summary adjudication must specifically identify eachspecific cause of action, affirmative defense, claim of damages or issue of duty to be adjudicated,and repeat each such identification verbatim in the separate statement, even if each item to beadjudicated relies on the same evidence offered to support summary judgment. (Rules of Court,Rule 3.1350(b).) Summary adjudication is granted when the moving party establishes that there are notriable issues of material fact, and the moving party is entitled to entry of judgement as a matterof law. (RC Royal Development and Realty Corp. v. Standard Pacific Corp. (2009) 177Cal.App.4th 1410.) To defeat summary adjudication, the opposing party must set forth specificfacts and admissible evidence to show their claims or defenses to the causes of action have merit.(Code Civ. Proc., § 437c, subd. (o)(2), Union Bank v. Super Ct. (1995) 31 Cal.App.4th 573, 590-593.) A party opposing summary adjudication must establish there is “substantial evidence” togive rise to the findings of fact that support a given defense. (Grainger v. Antoyan (1957) 48Cal.2d. 805, 807.) If there is no validity or factual support for any of the defenses, summaryadjudication is proper as a matter of law. E. Undisputed Material Facts 6 In support of its Motion, Defendant submits eighty-six facts it contends are material andundisputed (UMFs). UMFs #2-4, 9, 19, 21-22, 27, 31, 34, 38, 41, 45-47, 52, 62, 64-65, 70, 74, 77,81 and 84 are undisputed in their entirety. Defendant’s undisputed material facts are summarized as follows. On the morning ofAugust 14, 2020, Plaintiff was at the Santa Ana Zoo when he reported being attacked by a transientindividual. (UMF #3). Plaintiff reported he was pushed to the ground, and repeatedly kicked inthe back punched in the face. (UMF #4). As no acute intervention was required and Plaintiff’svital signs were stable with no respiratory distress, Plaintiff was medically cleared and transferredto Defendant’s facility to address Plaintiff’s suicidal ideation and associated 5150 hold. (UMF#9). Around the 3:30 pm., Plaintiff reported to Defendant’s staff that he had fallen in the showerwhile utilizing the shower outside of the assigned, supervised time. (UMF #19). Plaintiff deniedany chest pain or shortness of breath prior to the fall and explained that he lost balance and landedon his left hip, resulting in pain upon weight bearing to his left hip. (UMF #21). Plaintiff wasimmediately assessed to be alert and oriented with stable vital signs and the environment wasexamined for contributing factors to Plaintiff’s fall and none were found by the investigating R.N.(UMF #22). Defendant’s nursing and non-physician staff were not responsible for diagnosingPlaintiff or prescribing treatments, medications, and interventions. (UMF #31). In support of his Opposition, Plaintiff submits eighty-seven facts it contends are materialand undisputed (PUMFs). Defendant declines to address the PUMFs in its Reply. F. The Merits of Defendant’s Motion Defendant moves for summary judgment, or in the alternative, summary adjudication,pursuant to section 437c of the Code of Civil Procedure, alleging that there are no triable issuesof fact as to Plaintiff’s two causes of action in the Complaint. 7 i. First Cause of Action for Negligence- Premises Liability An owner of property is under a duty of ordinary care or skill in the management of his/herproperty. (Civ. Code § 1714, subd. (a).) Thus, a landowner may be liable in negligence under apremise liability theory since “[p]remises liability is a form of negligence … and is described asfollows: The owner of premises is under a duty to exercise ordinary care in the management ofsuch premises in order to avoid exposing persons to an unreasonable risk of harm. A failure tofulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215Cal.App.3d 1611, 1619.) The elements of a claim for premises liability are: (a) the defendant was owner, occupier,or lessor of premises; (b) the defendant was negligent in the use, maintenance, and/or managementof the premises, and (c) negligence was the cause of injury, damage, loss or harm to plaintiff.(Ibid.) “The cases [also] require that an owner must have actual or constructive notice of thedangerous condition before incurring liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200,1203, 13.) The Complaint frames the first cause of action for negligence-premises liability asDefendant owed Plaintiff a duty of care with owning, possessing, leasing, designing, installing,monitoring, maintaining, supervising, managing and controlling the subject premises and to takereasonable measures to ensure patient safety. In particular, in ensuring patients designated as fallrisks were assisted on hospital premises and providing safe and clean shower facilities equippedto prevent harm and providing medical care in a timely manner. Defendant argues in his Motion that there are no facts that indicate Defendant wasnegligent in its use or maintenance of the premises. Further, Plaintiff, who was consistentlyassessed to be capable of performing his activities of daily living and making informed decisions, 8utilized the shower facilities contrary to Defendant’s policies. Alternatively, Defendant arguessummary adjudication of this cause of action is appropriate as the Defendant can only be held to aprofessional standard of care because its duty to Plaintiff was that of a healthcare provider to apatient. Citing Bellamy v. Central Valley General Hospital (1996), 50 Cal.App.4th 797 (Bellamy),Defendant argues Plaintiff cannot, on the same facts, state causes of action for ordinary negligenceand professional negligence as a defendant has only one duty that can only be measured by onestandard of care under any given circ*mstances. As the Complaint alleges causes of action forpremises liability and professional negligence, Plaintiff’s negligence claim is subject to summaryadjudication as Plaintiff‘s contentions of premises liability are substantively defined by statutoryand case law as professional negligence. In his Opposition, Plaintiff first argues there are triable issues of material fact as to theComplaint’s first cause of action. Specifically, whether Defendant’s shower had been improperlycleaned, which became a slip-hazard during Plaintiff’s shower and caused Plaintiff’s injuries.Further, Plaintiff argues the Complaint pleads both a premises liability claim and a professionalnegligence claim as the facts lend themselves to multiple theories of liability. Citing Flores v.Presbyterian Intercommunily Hospital (2016) 63 Cal.4th 75, 88, Plaintiff argues the determinationof whether Plaintiff’s claims sound in professional negligence or premises liability is a fact-specific analysis and cannot be resolved by summary adjudication as the facts remain disputed. Defendant agues in its Reply that there are no facts unique to Plaintiff’s claim of premisesliability as compared to his claim of professional negligence. As such, the California SupremeCourt’s holding in Bellamy applies to this case. Further, Defendant argues Plaintiff‘s own facts inthe Complaint allege negligence in the rendering of professional service as Plaintiff was assessed 9by healthcare professionals to be fall risk and that Defendant had a duty to assist Plaintiff in theshowers. The court denies Defendant’s request for summary judgment, or in the alternative,summary adjudication as to the Complaint’s first cause of action for premises liability. There aremultiple triable issues of material fact including what was the cause of Plaintiff’s fall atDefendant’s facility. Further, the court find the facts of this case are distinct from those of Bellamy,which Defendant cites to as authority for his argument that the Plaintiff may not advance claimsfor both professional negligence and general negligence. In Bellamy, the plaintiff needed to pleada cause of action for professional negligence, otherwise her personal injury claim would have beenbarred under the applicable statute of limitations. Further, in the instant case, Plaintiff pleads factsas to the first cause of action that are not pled in the second cause of action including the allegationthat Defendant failed to properly clean the showers between uses and allowed soap to remain onthe shower stall floor, which caused Defendant to slip and fall. As such, contrary to Defendant’sassertions, Plaintiff does plead facts unique to his claim of premises liability as compared to hisclaim of professional negligence. Accordingly, the court denies Defendant’s request for summaryjudgment or in the alternative, summary adjudication, of the Complaint’s first cause of action forpremises liability. ii. Second Cause of Action for Professional Negligence The standard of care against which the acts of a physician are to be measured is a matterpeculiarly within the knowledge of experts, and can only be proved by experts' testimony, unlessthe conduct required by the particular circ*mstances is within the common knowledge oflaymen. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, citing,Landeros v. Flood (1976) 17 Cal.3d 399.) 10 A health care provider is required to exercise that degree of skill, knowledge, and careordinarily possessed and provided by members of their profession under similar circ*mstances.(Alefs v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) A plaintiff must demonstrate thatthe defendant's malpractice caused injury, and the elements of causation and damages must beestablished to a reasonable degree of medical probability based upon competent experttestimony. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) In any medical malpractice action, the plaintiff must establish: (1) the duty of theprofessional to use such skill, prudence, and diligence as other members of his professioncommonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connectionbetween the negligent conduct and the resulting injury; and (4) actual loss or damage resultingfrom the professional's negligence. (Budd v. Nixen (1971) 6 Cal.3d 195, 200.) In Garibay v. Hemmat (2008) 161 Cal.App.4th 735 (Garibay), the court held that anexpert medical opinion may be based on hospital and medical records, but those records must beproperly authenticated under Evidence Code § 1271 under the business records exception to thehearsay rule. Evidence Code § 1271 states the business records exception to the hearsay rule:Evidence of a writing made as a record of an act, condition, or event is not made inadmissible bythe hearsay rule when offered to prove the act, condition, or event if: (a) the writing was made inthe regular course of a business; (b) the writing was made at or near the time of the act,condition, or event; (c) the custodian or other qualified witness testifies to its identity and themode of its preparation; and (d) the sources of information and method and time of preparationwere such as to indicate its trustworthiness. (Id. at 742.) In Garibay, the court held that withoutthe hospital records and without testimony providing for authentication of such records, the 11medical expert opinion had no evidentiary basis and a grant of summary judgment wasinappropriate. (Id. at 743.) The Complaint frames Plaintiff’s cause of action for negligence as Plaintiff was admittedas an in-patient to Defendant’s facility in August of 2019. Defendant agreed and undertook tocare for, treat, medically manage and assist in the performance of medical services for the healthand well-being of the Plaintiff. Defendant failed to escort Plaintiff, a known fall risk, on thegrounds of the premises, including to and/or from the shower, failed to assign him to a properlyequipped showering facility to ensure his safety and failed to timely assist Plaintiff uponsuffering his injuries. Defendant argues in its Motion that it has established the standard of care through theexpert testimony of Ms. Beecham, who opines that to reasonable degree of medical probability,the care provided by the Defendant through its nurses and non-physician staff during Plaintiff’shospitalization at its facility complied with the standard of care. (UMF #27). As such,Defendant argues there are no triable issues of material facts regarding Defendant’s compliancewith the applicable standard of care in the instant action and summary judgment is warranted. In his Opposition, Plaintiff argues Ms. Beecham’s declaration is inadmissible in itsentirety because it fails to sufficiently specify the applicable standard of care and fails to addresscritical facts such as to whom the stated standard of care applies. Further, Plaintiff argues triableissues of material facts exist in the present case as its own expert witness, Dr. Klein, opines thatDefendant did not appropriately observe Plaintiff as he was able to gain permission to showeroutside of his assigned supervised bathing time and was able to access the showers unsupervised.As such, based on the declaration of Dr. Klein, Defendant’s care of the Plaintiff fell below the 12applicable standard of care. Defendant further argues triable issues of fact are raised through thedeclarations of Dr. Gillman and Dr. Arora as to what caused Defendant to fall. Defendant’s Reply does not address the Complaint’s second cause of action. The court denies Defendant’s request for summary judgment as to the Complaint’ssecond cause of action for professional negligence. Given the conflicting expert testimony of Dr.Klein, triable issues of fact remain. Specifically, Plaintiff raises the issue of whether it was abreach of Defendant’s duty to provide for Plaintiff’s care and safety to believe Plaintiff couldand should ambulate unassisted and shower by himself. Accordingly, the court deniesDefendant’s request for summary judgment as to the Complaint’s second cause of action forprofessional negligence. III. CONCLUSIONBased on the foregoing, the court: (1) Overrules Plaintiff’s Objections to Evidence in its entirety. (2) Denies Defendant’s Motion for Summary Judgment or in the Alternative, Summary Adjudication, in its entirety.Defendant’s Undisputed Material Facts: (1) UMFs #2-4, 9, 19, 21-22, 27, 31, 34, 38, 41, 45-47, 52, 62, 64-65, 70, 74, 77, 81 and 84.Evidence Presented: (1) Defendant’s Notice of Lodgment in Support of Defendant’s Motion and Exhibits 1- 31. 13 (2) Defendant’s declarations from Justin Dulay, R.N.; Nancy L. Beecham, R.N.; Gilbert E. Boswell, M.D.; and Stacy E. Thumsuden.Plaintiff’s declarations from Erin Boeck; the Plaintiff; Michael Gillman, M.D.; Lokesh Arora,M.D. and Ryan KlPlaintiff’s counsel is ordered to provide notice. 14
Ruling
Stewart et al -v - Triple Star Company, LLC et al Print
Jul 23, 2024 |CIVSB2205845
Procedural/Factual Background On March 17, 2022, plaintiffs Ashley Stewart, individually and as successor ininterest of the estate of April Miller, and Jeremy Maul filed their Complaint against TripleStar Company, LLC; NVA LLC, and Does 1 through 30 alleging the following 15 causesof action: 1) Breach of Contract; 2) Breach of Covenant of Quiet Enjoyment; 3) Breachof Warranty of Habitability; 4) Private Nuisance; 5) Negligence; 6) Negligence Per Se; 7)Premises Liability; 8) Fraud; 9) Violation of California Civil Code section 1942.4; 10)Intentional Infliction of Emotional Distress; 11) Violation of Business and ProfessionsCode section 17200; 12) Violation of California Civil Code section 1950.5; 13)Constructive Eviction; 14) Tenant harassment; and 15) Violation of California Civil Codesection 1942.5 (Retaliation). Plaintiffs voluntarily dismissed the eighth cause of action 2for Fraud, the tenth cause of action for Intentional Infliction of Emotional Distress, andthe fifteenth cause of action for violation of Civil Code section 1942.5 without prejudiceon July 17, 2023. Plaintiffs allege that Maul and Defendants entered into a written, leaseagreement around October 1, 2016. In 2018, April Miller moved in. On or around May 1,2020, Maul delivered a 60-day notice to vacate, and in or around July 2020, Millersigned a written lease with Defendants under her own name. Miller resided there untilher death on or around November 28, 2021. It is alleged the conditions of the propertycaused her death. Specifically, Plaintiffs allege the property lacked basic characteristicsnecessary for human habitation as prescribed by Civil Code section 1941.1, and was asubstandard unit pursuant to Health and Safety Code section 17920.3. During theirtenancy, Plaintiffs regularly complained to Defendants about slum-housing and thefollowing conditions: inadequate weather protection, inadequate plumbing and gas,dampness and mold, inadequate heating, inadequate sanitation, vermin infestation,structural hazards, nuisance, failure to maintain premises in a good and safe condition,inadequate mechanical equipment. No repairs or maintenance were performed, andthese conditions remained unabated. It is also alleged code enforcement issued anumber of notice of violations as to the property. Eventually Miller discovered blackmold in her apartment, and ultimately, Plaintiffs allege she died as a result of theexposure. On April 25, 2024, Defendant and Cross-Complainant Triple Star Company, LLCfiled the instant Motion for Summary Judgment, or in the alternative Adjudication as well 3as a separate statement of undisputed material facts, the declaration of Kelly M. Dankerand attached Exhibits A through O. No Opposition has been filed. Discussion Statement of the Law. Although summary judgment might no longer beconsidered a “disfavored” procedure, the rule continues that the moving party’sevidence must be strictly construed, while the opposing party’s evidence must beliberally construed. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832.) Thecourt’s sole function on a motion for summary judgment is issue finding, not issuedetermination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) The judge mustdetermine from the evidence submitted whether there is a triable issue as to anymaterial fact. (Code Civ. Proc. § 437c, subd. (c); see, Zavala, supra, 58 Cal.App.4th915, 926.) If there is a single such issue, the motion must be denied. (VersaTechnologies, Inc. v. Superior Court (1978) 78 Cal.App.3d 237.) The moving party bears the initial burden of production to make a prima facieshowing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4th 826, 850-851.) Where the plaintiff seeks summary judgment, theburden is to produce admissible evidence on each element of a cause of action entitlinghim or her to judgment. (Code Civ. Proc. § 437c, subd. (o)(1).) Where the defendantseeks summary judgment, the burden is to show that one or more elements of a causeof action, even if not separately pleaded, cannot be established, or that there is acomplete defense to that cause of action. (Code Civ. Proc. § 437c, subd. (p)(2).) Thismeans that a plaintiff who bears the burden of proof at trial by a preponderance ofevidence must produce evidence that would require a reasonable trier of fact to find any 4underlying material fact more likely than not. (Aguilar, supra, 25 Cal.4th 826, 851.) If themoving party carries this burden, it causes a shift, and the opposing party is thensubject to its own burden of production to make a prima facie showing that a triableissue of material fact exists. (Ibid.) Where the plaintiff seeks summary judgment, a plaintiff has met his burden ofshowing that there is no defense to a cause of action if that party has proved eachelement of the cause of action entitling the party to judgment on that cause of action.(Code Civ. Proc. § 437c, subd. (p)(1).) The opposing party’s failure to file counter-declarations does not relieve the moving party of the burden to establish every elementof the causes of action necessary to sustain a judgment in his favor. (Consumer Cause,Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) A motion for summary judgment, or for summary adjudication, must be supportedby evidence establishing the moving party’s right to the relief sought. (Regents of Univ.of Calif. v. Superior Ct. (1996) 41 Cal.App.4th 1040, 1044.) Such evidence usuallyconsists of declarations, admissions by the opposing party, evidence obtained throughdiscovery, and matters judicially noticed. (Code Civ. Proc. § 437c, subd. (b).)Declarations must be based on the personal knowledge of the declarant, showaffirmatively that the declarant is competent to testify to the matters stated, and set forthadmissible evidence. (Code Civ. Proc. § 437c, subd. (d).) Analysis. Defendants argue there is no triable issue of material fact to supportPlaintiff’s causes of action against Defendant Triple Star by a preponderance of theevidence. Triple Star submits 17 undisputed material facts (UMF) in support of summary 5judgment. UMFs 18 through 221 address the individual causes of action in support ofadjudication.1 Triple Star’s UMFs. Defendant NVA LLC owned the property throughout Mauland Miller’s tenancy until September 2018, when Triple Star acquired the property.(UMF 1.) Maul moved in during 2016, and he moved out in June 2020. (UMF 2.) In2018, Miller moved in. (Ibid.) Stewart never resided at the property. (Ibid.) Maul testifiedhe made oral complaints regarding the condition of the property. (UMF 3.) Stewarttestified she did not make any complaints regarding the condition of the property. (Ibid.)Both testified that Miller advised them that she made oral complaints regarding thecondition of the property. (Ibid.) Plaintiffs did not produce written complaints from eitherMaul or Miller. (UMF 4.) Plaintiffs affirmed that the only documents in their possession,custody and control are photographs taken by Miller and records from governmentagencies related to complaints and citations regarding other units. (Ibid.) Triple Star is in the possession, custody, and control of only three writtencomplaints made by Miller regarding the condition of the property. (UMF 5.) Soon afterMiller signed a lease agreement, on July 13, 2020, Triple Star inspected the property.(UMF 6.) The inspection report noted that the following items needed repair: repaintingthe living room, replacing the carpet, and replacing the Windows. (Ibid.) It was alsonoted that Miller did not make any additional complaints. (Ibid.) Miller signed theinspection report. (Ibid.) Miller made written complaints on July 13 and 17, 2020. (UMF7.) Therein, Miller requested repairs to her front door, abatement of an insectinfestation, replacement of carbon monoxide detectors, repainting, installing new1 Although not listed as an issue to be adjudicated, Defendants include a section in their points and authoritiesarguing for the adjudication of the issue of punitive damages. 6flooring, changing the vanity, replacing the curtains, re-glazing the vanity and kitchencounter tops, installing new windows, changing a toilet seat, and repairing the bedroomdoor, closet door, kitchen light, and leaks. Triple Star posted a notice on July 20, 2020to enter on July 21, 2020. (Ibid.) Miller also complained on September 30, 2020 about mold behind the toilet, aleak in the shower, and a leak in the toilet. (UMF 8.) Repairs were made the same day,including repairing the toilet tank, replacing the shower knob and shower temperatureregulator, cleaning mold behind the toilet. (Ibid.) Also on the same day, Miller signed adocument stating she was content with all repairs and that she had no pending repairrequests. (Ibid.) Maul testified that he vacated voluntarily. (UMF 9.) Additionally, he received aletter of recommendation from Triple Star to his prospective landlords. (Ibid.)Additionally, Plaintiffs have no evidence that Miller paid a security deposit. (UMF 17.)Miller’s lease with Triple Star and the ledger of her payments indicates that she did notpay a security deposit. (Ibid.) Maul also has no evidence that he paid a security deposit,despite requests that he produce all documents that support his cause of action forViolation of Civil Code section 1950.5. (Ibid.) Plaintiffs nor Triple Star are in the possession, custody, and control of a mold testtaken at the property during Maul’s or Miller’s tenancies. (UMF 10.) According to expertindustrial hygienist, Brian Daly, no expert could opine to a reasonable degree ofscientific certainty that Miller was exposed to levels of mold spores that would haveadversely affected her health. (UMF 13.) Additionally, Dr. Alan Szeftel opines to areasonable degree of scientific certainty that Miller did not die of exposure to mold, as 7there is no clinical evidence in Miller’s medical records indicating that she had a fungalinfection because only two tests were conducted to determine whether Miller had afungal infection. (UMF 14.) One of these tests was negative while the other was a falsepositive. (Ibid.) Rather, Miller died of multi-organ failure caused primarily by worseningliver cirrhosis. (UMF 16.) Triple Star’s Arguments. To begin with, Triple Star requests summary judgment,or in the alternative adjudication, as to each cause of action. They begin their argumentby contending a material fact does not exist to support Maul’s recovery or Stewart’srecovery under a wrongful death or a survivor theory. Next, they address the causes ofaction for breach of contract, breach of quiet enjoyment, breach of warranty ofhabitability, negligence, negligence per se, constructive eviction, and premises liability.Finally, they address the causes of action for Violation of Business and ProfessionsCode section 17200, Tenant Harassment, and Violation of Civil Code sections 1950.5and 1942.4. Wrongful Death Theory. Triple Star argues that Stewart did not reside at theproperty, and thus her causes of action depend on either a survival cause of action ifTriple Star is liable as to Miller or under a wrongful death cause of action theory. Toeliminate Stewarts’ wrongful death theory, Triple Star submits the declaration of Dr.Alan Szeftel. In sum, Dr. Alan Szeftel is a medical doctor who specializes in pulmonaryconditions and allergies and opines to a reasonable degree of scientific certainty thatMiller’s death was not caused by exposure to mold at the property. (UMFs 11, 12.) Inaddition, he states that the medical records indicate a false positive beta-D glucan test 8that could detect a fungal infection. (UMF 12.) But, he contends this is a false positivebecause it was caused by an antibiotic. (Ibid.) However, there are evidentiary issues with the declaration of Dr. Szeftel. Dr.Szeftel attests he reviewed Ashley Stewart’s Saint Bernardine Medical Center medicalrecords. (Szeftel Decl. ¶ 4.) And then opines that April Miller did not die from moldexposure. (Szeftel Decl. ¶ 5.) The remainder of the declaration appears to discussMiller’s medical records; however, this does not resolve the issue. The expert here hasattested to reviewing the medical records of Plaintiff Ashley Stewart and not that of thedeceased, Mary Miller. Further, there is no evidence submitted that these medicalrecords were authenticated in any way. In Garibay v. Hemmat (2008) 161 Cal.App.4th 735, the court held that an expertmedical opinion may be based on hospital and medical records, but those records mustbe properly authenticated under Evidence Code section 1271 under the businessrecords exception to the hearsay rule. Evidence Code section 1271 states the businessrecords exception to the hearsay rule: Evidence of a writing made as a record of an act,condition, or event is not made inadmissible by the hearsay rule when offered to provethe act, condition, or event if: (a) the writing was made in the regular course of abusiness; (b) the writing was made at or near the time of the act, condition, or event; (c)the custodian or other qualified witness testifies to its identity and the mode of itspreparation; and (d) the sources of information and method and time of preparationwere such as to indicate its trustworthiness. (Id. at p. 742.) In Garibay, the court heldthat without the hospital records and without testimony providing for authentication of 9such records, the medical expert opinion had no evidentiary basis and a grant ofsummary judgment was inappropriate. (Id. at p. 743.) Here, there is no foundation as to what Dr. Szeftel relied upon. There is noevidence that he reviewed the medical records of Miller when he attests he reviewedthe records of Stewart. There is no evidence those records were properly authenticated;therefore, there is no evidentiary basis for this medical expert opinion. Triple Star also submits the declaration of Brian P. Daly, a certified industrialhygienist. (See Daly Decl. ¶ 2.) The purpose of this declaration is to show there is noevidence mold was in the apartment, and Miller could not have had adversely affectedhealth as a result. (See Daly Decl. 4.) Daly however, does not appear to be a medicalexpert, nor does he appear to have reviewed any medical records, and yet appears toopine that no expert could opine mold affected Miller’s health. [T]he trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or 3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion testimony.(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal. 4th 747,771–772.) While Triple Star has proffered evidence that neither they nor Plaintiffs are inpossession of a mold test taken at the property during Maul and Miller’s tenancies, thatin and of itself does not prove there was no mold. Plaintiffs have photographs and theirown testimony as well as documented complaints by Miller as to the mold. (See UMFs4, 8, 10.) The Daly declaration does not establish the absence of mold, it only claims toestablish that a mold test produces a data set necessary for an expert to opine as to itseffect on Miller’s health; however, Daly, again is not a medical expert. “[T]he expert 10opinion may not be based on assumptions of fact that are without evidentiary support orbased on factors that are speculative or conjectural, for then the opinion has noevidentiary value and does not assist the trier of fact.” (Garibay, supra, at p. 743.) Inlight of this, Triple Star has not met their burden to the extent Stewart’s causes of actionagainst them rely on a wrongful death theory. Causes of Action: Breach of Contract, Covenant of Quiet Enjoyment, Warranty of Habitability, Nuisance, Negligence, Negligence Per Se, Premises Liability, and Constructive Eviction.2 The elements for a breach of contract are (a) existence of a contract, (b)plaintiff’s performance or excuse for performance, (c) defendants’ breach, and (d)resulting damages. (Wall Street Network Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th1171, 1176.) Plaintiff’s breach of contract cause of action is predicated on the breach ofthe implied warranty of habitability. (See Compl. ¶ 62.) A warranty of habitability isimplied in every residential lease (i.e. constituting a breach of contract). (Erlach v. SierraAsset Servicing LLC (2014) 226 Cal.App.4th 1281, 1296-1297.) The elements of acause of action for breach of the implied warranty of habitability “are the existence of amaterial defective condition affecting the premises' habitability, notice to the landlord ofthe condition within a reasonable time after the tenant's discovery of the condition, thelandlord was given a reasonable time to correct the deficiency, and resulting damages.”(Id. at p. 1297.) The alleged defective condition must “affect the tenant's apartment orthe common areas which he uses.” (Peviani v. Arbors at California Oaks PropertyOwner, LLC (2021) 62 Cal.App.5th 874, 891.)2 Defendants did not provide the legal elements as to each cause of action, nor did they discuss the elementsdirectly. 11 A violation of a statutory housing standard that affects health and safety is a strong indication of a materially defective condition. [Citation.] By statute, a dwelling will be considered untenantable if (1) the “[b]uilding, grounds, and appurtenances” are not “clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin” (Civ. Code, § 1941.1, subd. (a)(6)); or (2) the dwelling substantially lacks “[a]n adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair. (Civ. Code, § 1941.1, subd. (a)(7)).(Ibid.) Similarly, it has long been the rule that in the absence of language to thecontrary, every lease contains an implied covenant of quiet enjoyment. (Erlach, supra,at p.1300.) This covenant is breached upon actual or constructive eviction of the tenant. [Citation.] Any interference by the landlord that deprives the tenant of the beneficial enjoyment of the premises or renders the premises unfit for the purposes for which they are let amounts to a constructive eviction if the tenant so elects and vacates within a reasonable time.(Id. at pp. 1299–1300.) As to nuisance: First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.(Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83Cal.App.5th 1137, 1176.) “Substantial damage and unreasonableness are to be judgedby an objective standard.” (Ibid.) “With respect to the substantial damage element, thedegree of harm is to be measured by the effect the invasion would have on persons ofnormal health and sensibilities living in the same community.” (Ibid.) An action for negligence “consists of three elements: (1) a defendant's legal dutyto use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal 12cause of plaintiff's resulting injury.” (George A. Hormel & Co. v. Maez (1979) 92Cal.App.3d 963, 966.) Negligence per se is not a cause of action but creates anevidentiary presumption that affects the standard of care in a negligence claim. (Millardv. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn. 2.) For this presumption tobe available, an underlying negligence claim must be viable. (Id. at p. 1353.) The cause of action for premises liability is similar to negligence such as theparty must show duty, breach, causation, and damages. (Castellon v. U.S. Bancorp(2013) 220 Cal.App.4th 994, 998.) Regarding premises liability, the duty arising frompossession and control of property is in conformity with the standard of care that appliesin negligence cases. (Coyle v. Historic Mission Inn Corporation (2018) 24 Cal.App.5th627, 634.) The elements for premises liability are: (a) the defendant was owner,occupier or lessor of premises; (b) the defendant was negligent in the use,maintenance, and/or management of the premises, and (c) negligence was the cause ofinjury, damage, loss or harm to plaintiff. (Brooks v. Eugene Burger Management Corp.(1989) 215 Cal.App.3d 1611, 1619.) Triple Star does not address the causes of action individually, but contends thatthese causes of action essentially fail because Plaintiffs lack evidence. For example,they contend that in response to a demand for inspection, Plaintiffs produced 176photographs of the unit, 676 pages of records from government agencies regardingcomplaints/citations as to the condition of the property, and Miller’s medical records.But, Triple Star argues the government agency records do not contain a citation orcomplaint regarding the specific unit 70 at issue. (UMF 4.) Next, they contend thatbecause the photographs were taken by Miller, they are inadmissible. They further claim 13that according to Mr. Daly, their expert, whether mold was present and whether themold present may have an adverse effect on health can only be determined if a moldtest were taken at the property. (UMFs 11-13.) No mold test was taken in Maul andMiller’s unit during their tenancies. (UMF 10.) Thus, Plaintiffs have no evidence thatmold was present or that, if mold was present, it would have had an adverse effect ontheir health. Triple Star, however, claims the only evidence supporting Plaintiffs’ contention ofthe substandard conditions is their own testimony, which they claim in light of thedocumentary evidence is vague and insufficient to demonstrate a substantialsubstandard condition existed. Further, they contend Maul testified he only made oralcomplaints, and these, they contend, are too vague to satisfy the required elements asto these causes of action. (See UMF 3.) As to Miller, Maul and Stewart testified they didnot recall her making an oral complaint, but she told them she did. (Ibid.) This, theyassert, is inadmissible hearsay. Instead, Triple Star asserts that there are only three complaints by Miller in theirpossession: July 13, 17, and September 30, 2020. Miller requested repairs to her frontdoor, abatement of an insect infestation, replacement of carbon monoxide detectors,repainting, installing new flooring, changing the vanity, replacing the curtains, reglazingthe vanity and kitchen counter tops, installing new Windows, changing a toilet seat, andrepairing the bedroom door, closet door, kitchen light, and leaks. (See UMFs 6-8). ButTriple Star states it posted a notice to enter on July 20 to make the repairs on July 21,2020. (Ibid.) Triple Star, however, has not shown evidence the repairs were made. Next,Triple Star states, on September 30, 2020, Miller complained about mold behind the 14toilet and leaks, and repairs were made the same day. (UMF 8.) But Miller also signed adocument that she was content with all repairs, and had no pending requests. (Ibid.) Triple Star does not meet their burden. Triple Star appears to argue Plaintiffssimply lack evidence. But a defendant must support its motion with discoveryadmissions or other admissible evidence showing that “plaintiff does not possess, andcannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) And,it is not enough for defendant to show merely that plaintiff lacks evidence. TheDefendant must also produce evidence showing plaintiff cannot reasonably obtainevidence to support that claim. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891;Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.) Triple Star notes that both Maul and Stewart had been at the premises, and theirown testimony is available. Next, Triple Star contends the photographs areinadmissible. However, it is contended Maul only does not recognize them. This doesnot eliminate the possibility that Stewart may be able to lay the necessary foundation.The fact that Miller is now deceased in and of itself does not demonstrate these imagesare inadmissible. Instead, Triple Star asks the Court to weigh this evidence and essentially findthat it is vague and insufficient to demonstrate a substantial substandard conditionexisted. Triple Star also asks the Court to weigh this evidence and find that the imagesare blurry and indiscernible. Essentially, they ask the Court to weigh the credibility of thetestimony of Maul and Stewart to find no triable issue of material fact. On a motion forsummary judgment, the court does not weigh evidence, but instead considers whetherthe evidence creates a triable issue of fact. (Blue Mountain Enterprises, LLC. v. Owen 15(2022) 74 Cal.App.5th 537, 549.) Further, the fact that mold may not have been presentor tested, or that Maul voluntarily moved out, does not eliminate other conditions thatcould support the allegations as to these causes of action, which are alleged in theCompliant. Nor does it eliminate constructive eviction. Therefore, as to these causes ofaction, the Court DENIES the motion with respect to adjudication. For this reason, theCourt DENIES the motion for summary judgment as the moving Defendant has not mettheir burden. Causes of Action: Civil Code section 1942.4, Business and Professions Codesection 17200, Civil Code section 1950.5, and Tenant Harassment. Civil Code section 1942.2 provides circ*mstances under which a landlord maynot demand rent. Relevant here is that this code section requires a public officer oremployee who is responsible for the enforcement of any housing law, after inspectingthe premises to notify the landlord or its agent in writing of his or her obligations to abatethe nuisance or repair the substandard conditions. (See Civ. Code § 1942.4, subd.(a)(2)). Notably, Plaintiffs lack evidence that the relevant unit, unit 70, was everinspected by a public officer or employee. Their documentation, government agencyrelated to citations and complaints, regard other units only. (UMF 4.) Therefore, TripleStar has eliminated an element as to this cause of action, and the Court GRANTSadjudication as to the ninth cause of action. The UCL is codified in California Business & Professionals Code section 17200with prohibiting any unlawful, unfair, or fraudulent business practice. (Berryman v. MeritProperty Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) Under the “unlawful”prong, the unfair competition laws incorporate other laws and treats violations of those 16laws as unlawful business practices independently actionable under the UCL.(Berryman, supra, 152 Cal.App.4th at p. 1554.) “Unfair” conduct under the UCL hasbeen commonly defined as conduct that “offends an established public policy or ... isimmoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”(Scripps Clinic v. Sup. Ct. (2003) 108 Cal.App.4th 917, 939.) Under the “unfair” prong, adefendant’s conduct must violate a public policy “tethered to specific constitutional,statutory, or regulatory provisions.” (Id. at 940.) Under the “fraudulent” prong, a plaintiffmust show that “members of the public are likely to be ‘deceived’” by the defendant’spractices. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 951.) A violation of this codesection requires that the plaintiff demonstrate that the defendant violated statutes infurtherance of a business practice. (Bernardo v. Planned Parenthood Federation ofAmerica (2004) 115 Cal.App.4th 322, 353-354.) As the pleadings frame the issues, the Complaint specifically alleges theunderlying violations in support of the unlawful business practice are Civil Code 1940.3,1941.1, 1942, Health and Safety Code section 17920.3. As noted above, Triple Star hasnot shown that Health and Safety Code section 17920.3 was not violated. 3 They argueessentially that Stewart and Maul have weak evidence, but do not meet their burden forthe purpose of summary judgment. In light of this, the Court DENIES summaryadjudication as to this cause of action. Civil Code section 1950.5 provides requirements for the return of a securitydeposit. Triple Star has established that neither Maul nor Miller provided a security3 Health and Safety Code section 17920.3 details conditions by which a building will be deemed substandard, and itincludes infestations of vermin, visible mold growth, dampness, any nuisance, etc. 17deposit. (UMF 17.) Therefore, the Court GRANTS summary adjudication as to thetwelfth cause of action. Plaintiff’s cause of action for Tenant Harassment is predicated on Civil Codesections 1954 and 1940.2, which detail the circ*mstances by which a landlord mayenter a dwelling and conduct landlords may not engage in for the purpose of influencinga tenant to vacate a dwelling. Maul and Stewart testified that Triple Star never enteredor posted a notice to enter the unit. (UMF 3.) Triple Star’s records show they onlyentered when addressing Miller’s complaints. (UMFs 3, 6-8.) A notice to enter wasposted 24 hours prior to noticed entry. (Ibid.) It appears therefore, that plaintiffs lackevidence Triple Star entered the unit in violation of Civil Code section 1954. As tosection 1940.2, Maul testified he was never threatened by Triple Star and voluntarilyvacated. (UMF 9.) Therefore, the Court GRANTS summary adjudication as to this causeof action with respect to plaintiff Maul; however, Triple Star does not meet its burdenhere as to Stewart’s claim. In their points and authorities, Triple Star asserts Stewart and Maul have vagueknowledge as to these incidents with respect to Miller and whether she was threatenedor whether conduct was directed at her to vacate. They cite to UMF 3, but that is notwhat UMF 3 asserts. Next, they claim no admissible evidence exists because Miller isdeceased and her statements would be inadmissible hearsay. But, Triple Star has notestablished that the only evidence Stewart possesses is inadmissible hearsay. Theallegation in the Complaint is that a security guard pretended to be an officer andthreatened Miller. (See Compl. ¶ 193.) While Triple Star has shown plaintiffs lackdocumentation of this incident (See UMF 4), they have not shown Stewart did not 18eyewitness the event, nor have they shown this evidence cannot be otherwise obtained.Therefore, with respect to Stewart, the Court DENIES summary adjudication as to thiscause of action. Punitive Damages. The entirety of Triple Star’s argument as to why the Courtshould grant adjudication as to the claim for punitive damages is that there is noevidence Maul or Miller complained of substantial substandard conditions, or that TripleStar failed to make reasonable repairs. They broadly cite to UMFs 3-13. But Triple Starhas not shown this. Maul made oral complaints. (UMF 3.) Triple Star did not show itmade the repairs on July 21, 2020. (See UMF 7.) Courts have held that allegationssimilar to those alleged by Plaintiffs are sufficient for purposes of pleading punitivedamage claims. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 [holdingthat a claim for punitive damages was adequately pleaded when the complaint allegedthat “defendant had actual knowledge of the defective conditions in the premisesincluding leaking swage, deteriorated flooring, falling ceiling, leaking roof, brokenwindows and other unsafe and dangerous conditions” and that defendant “acted with fullknowledge of the consequences thereof and the damage being caused to plaintiff, andtheir conduct was willful, oppressive and malicious.”]; see also Smith v. David (1981)120 Cal.App.3d 101, fn.3 [punitive damages available for intentional tortious breach ofthe warranty of habitability].) The allegations Plaintiffs have alleged as to the warranty ofhabitability, if proven, could support a claim for punitive damages. Triple Star has notshown Plaintiffs cannot present such evidence. Therefore, with respect to the claim forpunitive damages, the Court DENIES the motion. Conclusion 19 The Court DENIES summary judgment. The Court DENIES summaryadjudication as to the first through seventh, eleventh, and thirteenth causes of action,but GRANTS summary adjudication as to the ninth and twelfth causes of action. As tothe fourteenth cause of action, the Court GRANTS summary adjudication as to PlaintiffMaul, but DENIES it as to Plaintiff Stewart. Finally, the Court DENIES summaryadjudication as to the issue of punitive damages. Material Facts in Dispute: Whether Miller’s death was caused by mold exposure,whether the condition of the unit was substandard, whether Triple Star was in breach ofthe lease agreement, whether Plaintiffs were constructively evicted, and whether TripleStar harassed Miller. Evidence: Relevant portions of Plaintiff Jeremy Maul’s deposition; relevantportions of Plaintiff Ashley Stewart’s deposition; the declaration of counsel, Kelly M.Danker and attached Exhibits A through O, and the declarations of Dr. Alan Szeftel andBrian P. Daly. Counsel for Triple Star Company, LLC is ordered to provide notice. 20
Ruling
v.
Jul 17, 2024 |CIVSB2322819
PROCEDURAL AND FACTUAL BACKGROUNDThe Complaint, Allegations, and Defendants’ Default Plaintiff DML Capital, Inc. contends it holds valid deeds of trust against properties onCougar Lane in Running Springs and on State Highway 189 in Blue Jay. However, due to a mistakethe deeds of trust were not properly recorded. The Blue Jay property is owned by the Riordans,John and Lisa (Lisa is also known as Lisa Griggs-Riordan). 1 The Running Springs property isowned by Lisa’s company, Veracity Marketing, LLC (Veracity), but there was a “vesting error”in the deed of trust as it identified Lisa as the owner. Therefore, the pending litigation wascommenced on September 20, 2023, against the Riordans and Veracity. DML seeks declaratoryrelief or a determination that the liens are valid and enforceable. The complaint also containscauses of action for equitable lien and reformation.1 Because the Riordans share the same last name, the Court will refer to them by their first name for thepurpose of clarity. The Court means no disrespect. 3 The proofs of service of summons on file indicate Lisa was personally served at the BlueJay address on October 11, 2023. John was substitute served at the same time and at the sameaddress via Lisa. Defaults were entered against the Riordan’s on November 27, 2023.The Motion to Vacate John, but not Lisa, now moves to set aside the default on the grounds that service wasdefective and did not result in actual notice as the couple had separated in November 2021 andwere living in different households, with John living at the Cougar Lane property and Lisa livingat the Blue Jay property. Thus, John did not reside at the residence where substitute service wasallegedly perfected. John also contends his mother learned of the lawsuit in mid-January 2024 andcontacted DML’s attorney to resolve the lawsuit. Then, in March 2024, John received a solicitationletter from an attorney about the lawsuit. It is unclear if John had been informed about the lawsuitby his mother. In any event, John attended a hearing on March 20, 2024, and then retained counsel.The set aside motion followed on April 23, 2024. The motion also indicates that Lisa fraudulentlypledged the properties as collateral during the time the parties were separated. The motion is supported by a declaration from John, the proof of service of summons, therequest for entry of default, property history records, quit claim deeds, a proposed answer, and aproposed cross-complaint for fraud, indemnity, declaratory relief, and apportionment of faultagainst Lisa. The motion is opposed by DML, which essentially argues that it had attempted to obtain adefault judgment, but it never came to fruition because the Court was improperly requiring adefault prove-up hearing. Regardless, the judgment was never entered and the pending motion wasfiled. DML also argues that the motion is untimely because John’s mother admitted during theJanuary 2024 phone call that her son was aware of the lawsuit yet John waited until April to file 4his motion. Finally, DML refutes John’s suggestion that he was defrauded, but those argumentsare beyond the scope of the pending motion. The opposition is supported by a declaration from attorney Charles Correia and variousexhibits, which are irrelevant as they go towards DML’s prima facie case or refuting John’sassertions about Lisa’s alleged fraud. DISCUSSIONThe Law Related to Motions under Code of Civil Procedure Sections 473 The trial court has broad discretion to vacate a judgment and/or the preceding clerk’s entryof default so long as the moving party establishes the grounds for relief, the relief has been raisedin a procedurally proper manner, and the motion is made within any applicable time limits. (Cruzv. fa*gor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Under Code of Civil Procedure section 473, subdivision (b), “[t]he court may, upon anyterms as may be just, relieve a party … from a judgment … or other proceeding taken against himor her through his or her mistake, inadvertence, surprise, or excusable neglect.” However, a motionfor such relief must be made within a reasonable time, but in no case exceeding six months afterthe entry of the judgment, default, order, etc. The six-month limit is jurisdictional in nature.(Maynard v. Brandon (2005) 36 Cal.4th 364, 372.) In this case, John has presented a valid basis for why the default was taken against him—a reason that DML has not refuted. Namely, John did not live at the address were he waspurportedly substitute served because he and Lisa separated and he did not live at the property atthe time of service. This means service was defective because to perfect substitute service in themanner advanced by DML, the service documents must be left at the defendant’s “dwelling house” 5and then mailed. (Code Civ. Proc. § 415.20.) DML’s claimed service is therefore factuallyinaccurate and, in-turn, legally invalid. (See 10/25/24 Proof of service at ¶ 5b.) Although DML argues that John’s mother purportedly admitted that John knew about thelawsuit in January 2024, “[a]ctual notice of the action alone, however, is not a substitute for properservice and is not sufficient to confer jurisdiction.” (American Express Centurion Bank v. Zara(2011) 199 Cal.App.4th 383, 392.) Furthermore, the assertion in the declaration from attorneyCorreia about what John’s mother told him about John’s knowledge of the lawsuit would logicallybe hearsay since it is offered to prove the truth of the matter asserted. Finally, even assuming thatJohn had notice of the lawsuit in January 2024, the three month delay in filing the motion is notnecessarily unreasonable since it appears that settlement efforts were made and then John soughtan attorney referral service in the interim. The motion was otherwise filed well within the outersix month limit imposed by section 473. Conclusion Based on the foregoing: The Court grants defendant John Riordan’s motion to set aside the default. Defendant John Riordan shall have thirty (30) days to file a responsive pleading to the complaint. The Court sets a trial setting conference for September 18, 2024 at 8:30 a.m. Counsel for defendant John Riordan is ordered to provide notice. 6
Ruling
v. Complaint
Jul 09, 2024 |CIVSB2222861
CASE BACKGROUND On October 11, 2022, Plaintiffs Dong Yoong Kwak (“Kwak”) and Laura Nomura(“Nomura”) (collectively, “Plaintiffs”) filed this motor vehicle personal injury case based on amotor vehicle accident that occurred on July 27, 2020. The Hon. Judge Charlie Hill sustained Defendant’s demurrer to the original complaintbased on statute of limitations grounds on August 29, 2023 with 20 days leave to amend.Plaintiffs subsequently filed their first amended complaint (“FAC”), also a form complaint, onSeptember 18, 2023 nearly identical to the original complaint but containing an attachment withpre-filing case history and allegations, including a reference to an arbitration hearing fromArbitrations Forums, Inc., No. A2100B85A8C-C1-D1. Judge Hill sustained Defendant’sdemurrer to the FAC on statute of limitations grounds with 20 days leave to amend on February23, 2024. Plaintiffs subsequently filed their non-Judicial Council second amended complaint(“SAC”) on March 14, 2024 alleging a single cause of action for negligence. At issue today is Defendant’s demurrer to the SAC, again based on statute of limitationsgrounds. Defendant filed a Meet and Confer declaration from defense attorney Emily Corea(“Corea”). 2 Plaintiffs filed an opposition along with a request for judicial notice; Defendant replies. DISCUSSIONMeet and Confer Effort Before filing a demurrer, the moving party shall meet and confer in person, by telephone,or by video conference with the party who filed the pleading for purposes of “determiningwhether an agreement can be reached that would resolve the objections to be raised in thedemurrer.” (Code Civ. Proc., § 430.41, subd. (a).) This meet and confer applies to amendedpleadings as well as originals. (Code Civ. Proc., § 430.41, subd. (a).) The meet and confershall occur at least five days before the date the responsive pleading is due. (Code Civ. Proc., §430.41, subd. (a)(2).) If there is no resolution, the demurring party shall submit a declarationwith the demurrer stating either (a) the means in which the parties met and conferred and that noresolution was reached, or (b) the opposing party failed to respond to the demurring party’s meetand confer requests or failed to meet and confer in good faith. (Code Civ. Proc., § 430.41, subd.(a)(3).) Defense counsel Corea declares that she spoke with opposing counsel on March 27,2024, who stated that he would not agree to dismiss the case based on the statute of limitationsexpiring. (Corea Decl., ¶ 4.) The Court finds that a sufficient meet and confer occurred.Request for Judicial Notice Pursuant to Evidence Code sections 451, 452, and 453, Plaintiffs request the court takejudicial notice of the same two documents it requested judicial notice of with their opposition toDefendant’s demurrer to their FAC: 1. The docket for San Bernardino Superior Court small claims case No. SCVA2100957. (Request for Judicial Notice, Exh. 1.) 3 2. The May 3, 2021 arbitration decision (“the arbitration decision”) issued by Arbitration Forums, Inc. (Request for Judicial Notice, Exh. 2.) Judicial notice may be taken of records of any court of this state. (Evid. Code § 452,subd. (d).) Therefore, the court GRANTS Plaintiffs’ unopposed request for judicial notice ofExhibit 1. In regards to the document described by Plaintiffs’ counsel as “a true and correct copy”of the May 3, 2021 arbitration decision attached as Exhibit 2, Plaintiffs have only providedpages 2 and 3 of the arbitration decision. Plaintiffs previously attached all three pages of thesame arbitration decision as Exhibit 2 to the SAC and to Plaintiffs’ previous request for judicialnotice in support of its opposition to Defendant’s demurrer to the FAC. The reason for theomission of the first page of the decision at this point in the litigation is unknown. However, itshould be noted that the missing first page clearly lists the names of the parties who participatedin the intercompany arbitration, which, as will be discussed in more detail, did not includeDefendant Fernando Suarez. Furthermore, as all three pages of the arbitration decision wereattached as an exhibit to the SAC, this request is duplicative and irrelevant. Therefore, the courtDENIES Plaintiffs’ request for judicial notice of Exhibit 2 as duplicative/irrelevant andincomplete. Any references to the May 3, 2021 arbitration decision in this memo refer to thecomplete document attached as Exhibit 2 to the SAC.Statement of the Law The function of a demurrer is to test the legal sufficiency of the challenged pleading.(Kendrick v. City of Eureka (2000) 82 Cal.App.4th 364, 367; Hernandez v. City of Pomona(1996) 49 Cal.App.4th 1492, 1497.) As a general rule, in testing a pleading against a demurrer,the facts alleged in the pleading are deemed true, however improbable they may be. (Del E. 4Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court assumesthe truth of all material facts that have been properly pleaded, of facts that may be inferred fromthose expressly pleaded, and of any material facts of which judicial notice has been requestedand may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) All that is necessary as against a general demurrer is to plead facts showing that theplaintiff may be entitled to some relief. In passing upon the sufficiency of a pleading, itsallegations must be liberally construed with a view to substantial justice between the parties.”(Fundin v. Chicago Pneumatic Tool Co. (1984) 152 Cal.App.3d 951, 955; Michaelian v. StateCompensation Insurance Fund (1996) 50 Cal.App.4th 1093, 1104-1105.) A demurrer for failureto state a cause of action should be sustained only where the facts alleged on the face of thecomplaint fail to state any valid claim entitling the plaintiff to relief. The plaintiff may bemistaken as to the nature of the case or the legal theory on which he or she can prevail, but if theessential facts of some valid cause of action are alleged, the complaint is good against a generaldemurrer. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.)Statute of Limitations Personal injury negligence actions are subject to the two-year statute of limitations foundin Code of Civil Procedure, section 335.1, which addresses "[a]n action for assault, battery, orinjury to, or for the death of, an individual caused by the wrongful act or neglect of another." The accident occurred on July 27, 2020 and the complaint was filed on October 11, 2022,76 days after July 27, 2022.Analysis 5 Defendant again demurs on statute of limitations grounds, arguing that the secondamended complaint is essentially the same as the original complaint and still demonstrates thatPlaintiffs filed their complaint after the statute of limitations had passed. In opposition, Plaintiffs argue for the third time that their complaint was timely filed dueto tolling under Emergency Rule 9. Plaintiffs additionally argue for the second time that theirclaims were equitably tolled due to intercompany arbitration. In reply, Defendant correctly points out that Plaintiff’s arguments and interpretation oftolling under Emergency Rule 9 were already rejected by this court at when it sustainedDefendant’s demurrer to the original complaint in August 2023 and February 2024. He furtherargues the insurance carriers’ participation in intercompany arbitration has “nothing to do withthe filing of the plaintiffs’ bodily injury lawsuit.” (Reply at p. 4:10-12.) Defendant is againcorrect.1 1. Plaintiff’s argument that Emergency Rule 9 tolled the statute of limitations in this case to January 23, 2023 fails Emergency Rule 9 stopped the running of the statute of limitations in this action from July 27, 2020, the date Plaintiffs’ cause of action accrued, to October 1, 2020. The time between is 66 days. To the extent Plaintiffs contend Emergency Rule 9 tolled the time for Plaintiffs to file their action from April 6, 2020 to August 27, 2020, it lacks merit because Plaintiffs’ cause of action did not exist during this period. There was thus nothing for Emergency Rule 9 to toll during this time. Plaintiffs' cause of action did not accrue until July 27, 2020, and only at that point did the limitations period stop running. The limitations period stopped running for 66 days until October 1, 2020, at which point it began to run again. (See Lantzy [v. Centex Homes (2003) 31 Cal.4th 363, 370].) The tolled interval of 66 days is then tacked onto the end of the limitations period. (Id. at 370-71; Graybar Electric Co. v. Lovinger (1947) 81 Cal.App.2d 936, 938 ["When the1 It should be noted that Defendant’s motion and reply and Plaintiffs’ opposition are largely duplicative of previouspleadings. In some portions of his demurrer, Defendant refers to the FAC as the operative complaint instead of theSAC and left out some details regarding the Court’s ruling on the demurrer to the FAC. Because Plaintiffsresponded to the demurrer on the merits, any due process concerns regarding the errors in Defendant’s demurrerhave been satisfied. 6 operation of a statute of limitations is suspended for a given period of time the effect is to add an equal period to the statutory limitation."].) Consequently, because Emergency Rule 9 tolled Plaintiffs’ cause of action for 66 days, this interval was tacked onto the end of the limitations period and extended the time for Plaintiff to file this action by 66 days. (See Lantzy, supra, 31 Cal.4th at p. 370; see also Willis, supra, 48 Cal.App.5th at pp. 1120-21.) Two years after the date of the accident was Wednesday, July 27, 2022. Sixty-six days after July 27, 2022, was Saturday, October 1, 2022, with the next court day being Monday October 3, 2022. Therefore, Plaintiffs had until October 3, 2022, to file their complaint. Plaintiffs, however, did not file the complaint until Tuesday, October 11, 2022, eight days after the statute of limitations for Plaintiffs' personal injuries claims had passed. In their current opposition, Plaintiffs fail to raise any new and/or persuasive argumentsregarding tolling under Emergency Rule 9. Thus, the court rejects Plaintiffs’ arguments that Emergency Rule 9 tolled the statute oflimitations in this case to January 23, 2023, find that Emergency Rule 9 tolled the statute oflimitations 66 days, and find that the statute of limitations in this case expired when Plaintiffsfailed to file their complaint by October 3, 2022. 2. Intercompany arbitration did not equitably toll the statute of limitations In their SAC, Plaintiffs allege that Defendant negligently operated his vehicle on July 27,2020 and struck Plaintiff Nomura, which caused a secondary collision with Plaintiff Kwak,causing multiple injuries to both plaintiffs. (SAC, ¶¶ 1, 35.) Plaintiffs allege that auto insurancecompanies Mercury (Defendant’s insurance carrier), USAA Insurance company (PlaintiffKwak’s insurance carrier) and Kemper Insurance Company (Plaintiff Nomura’s insurancecarrier) filed for intercompany arbitration on January 7, 2021. (SAC, ¶¶ 11, 15-16.) On May 5,2021, “unbeknownst to Plaintiffs, an arbitrator found Defendant 100% liable for the accident. 7Exhibit “1”(sic2).” (SAC, ¶ 20.) However, the arbitration decision itself shows that someonenamed Luisana Suarez was found 100% liable; indeed, Fernarndo Suarez’s name is notmentioned at all in the arbitration decision. (SAC, Exh. 2, p. 1.) Neither Plaintiffs nor Defendanthave identified who Luisana Suarez is or her relationship (if any) to this case. Plaintiffs were advised that the intercompany arbitrator found in their favor in late 2021.Plaintiffs allege that they “made Mercury aware that Plaintiff intended to file suit.” (SAC, ¶¶ 23-24.) They further allege that they provided timely notice of the claim via the initial insuranceclaim process, via intercompany arbitration, and “were provided notice that suit would beforthcoming since late 2021.” (SAC, ¶ 27.) They also allege that Defendant filed a small claimsaction against Plaintiff Nomura and her husband on May 5, 2021, which was dismissed withoutprejudice on June 22, 2021 when Defendant failed to appear in court. (SAC, ¶¶ 19, 21.) Plaintiffs now argue for the second time that their claims were equitably tolled 117 daysfrom the date of the intercompany arbitration demand date on January 7, 2021 through May 3,2021, the date of the intercompany arbitration decision. (Opp. at p. 7:2-4.) Although the minuteorder from February 23, 2024 does not specify all the reasons the Court previously sustainedDefendant’s demurrer on statute of limitations grounds, it appears the Court has already rejectedthat argument. However, Plaintiffs now attempt to stretch their previously rejected argument further byasserting without authority that the present case “was under the sole jurisdiction of ArbitrationForums Inc. from the commencement of arbitration on January 7, 2021 to May 5, 2021, and byoperation of law, [the statute of limitations] was tolled for an additional 118 days.” (Opp at p. 7:1-3.)2 Plaintiffs mistakenly labelled the May 3, 2021 arbitration decision as Exhibit 1 to the SAC; however, thearbitration decision was attached to the SAC as Exhibit 2. (SAC, Exhibits 1 and 2) 8 “Broadly speaking, the doctrine [of equitable tolling] applies “‘[w]hen an injured personhas several legal remedies and, reasonably and in good faith, pursues one.’” [Citation.] Thus, itmay apply where one action stands to lessen the harm that is the subject of a potential secondaction; where administrative remedies must be exhausted before a second action can proceed; orwhere a first action, embarked upon in good faith, is found to be defective for some reason.”(McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 100(“McDonald”).) “Tolling eases the pressure on parties ‘concurrently to seek redress in twoseparate forums with the attendant dangers of conflicting decisions on the same issue.’[Citations.]” (Ibid.) Application of the doctrine of equitable tolling requires: 1) timely notice to the defendantin filing the first claim; 2) lack of prejudice to the defendant; and 3) reasonable and good faithconduct on the part of the plaintiff in filing the second claim. (Addison v. State of California(1978) 21 Cal.3d 313, 319 (“Addison”); Collier v. City of Pasadena (1983) 142 Cal.App.3d 917,924 (“Collier”).) In the equitable tolling situation, the element of timely notice is not of a potential claim, itis of a plaintiff’s intention to file suit and pursue a claim. (Addison, supra, 21 Cal.3d at p. 319.)Additionally, the timely notice requirement “means that the first claim must have been filedwithin the statutory period.” (Collier, supra, 142 Cal.App.3d at p. 924.) For example, in McDonald, our Supreme Court held equitable tolling applied underFEHA during the period the aggrieved party’s claims were being addressed in an alternateforum. In Addison, the issue was whether the filing of an action in federal court tolled therunning of the six-month limitations period under Government Code section 945.6. Plaintiff hadtimely filed a suit in federal court, which was later dismissed without prejudice. Plaintiff then 9filed suit in state court. The trial court dismissed the suit as barred by the six-month statute oflimitation applicable to suits against public entities. The California Supreme Court reversed andremanded after concluding the plaintiff’s timely filing in federal court tolled the limitationsperiod under the doctrine of “equitable tolling.” In both of these cases, timely notice was foundbecause the defendant was made aware the plaintiff was timely pursuing his or her claim underalternative remedies. However, that is not the situation here – there is no evidence that by the insurancecarriers participating in arbitration to determine liability and property damage, the Defendantwas put on timely notice of Plaintiffs’ intent to file a personal injury and lawsuit against him. Neither Defendant Fernando Suarez nor Plaintiffs were parties to the intercompanyarbitration, as they are not “companies.3” The first page of the arbitration decision attached asExhibit 2 to Plaintiffs’ SAC shows that the parties involved in the arbitration were insurancecompanies – USAA General Indemnity Co., Mercury Insurance Co., and Unitrin PreferredInsurance Co.4 Although both Plaintiffs’ names appear in the arbitration decision, DefendantFernando Suarez’s name is absent from the entire document; instead, “Luisana Suarez” ismentioned. As such, Plaintiffs fail to prove that the intercompany arbitration qualifies asPlaintiffs’ “first claim” against Defendant Fernando Suarez, nor did they allege sufficient factsto show the intercompany arbitration put Suarez on notice of Plaintiffs’ intention to file suitagainst him.3 Merriam-Webster defines “intercompany” as “occurring or existing between two or more companies.”Please see the definition of “intercompany” at: https://www.merriam-webster.com/dictionary/intercompany#:~:text=%3A%20occurring%20or%20existing%20between%20two%20or%20more%20companies.4 No party has explained who “Unitrin Preferred Insurance Co.” is or their relationship to either theinstant case or the arbitration. 10 Plaintiffs similarly fail to prove that they acted reasonably and in good faith in “filing asecond claim.” Plaintiffs assert a somewhat confusing and conclusory argument that, even ifEmergency Rule 9 did not grant them an additional 180 days of tolling (which, as alreadydiscussed, it only granted 66 days of tolling), equitable tolling based on the dates of theintercompany arbitration granted them an additional 117 days in the statute of limitations and,because they filed their complaint on October 11, 2022 with 107 days remaining under theequitable tolling doctrine, this is “prima facia (sic) reasonable and in good faith” proof that theypromptly filed their lawsuit. (Opp. at p. 8:8-11.) However, the cases they cite in support of their argument all involved timely “secondclaims” filed subsequently to timely filed “first claims.” (See Collier, supra, 142 Cal.App.3d atpp. 924, 927 [filing a workers’ compensation claim equitably tolled the statute of limitations forfiling a disability pension claim arising out of the same disabling injury]; McDonald v. AntelopeValley Community College Dist. (2008) 45 Cal.4th 88 [discussed above]; and Addison, supra 21Cal.3d 313 [discussed above.]) As discussed above, the insurance companies’ intercompany arbitration was not a “firstclaim” by Plaintiffs Nomura and Kwak against Suarez – it involved only the insurancecompanies. Thus, Plaintiffs cannot prove their reasonable and good faith conduct in filing a“second claim,” as the instant lawsuit is actually the first claim. Plaintiffs provide no additionalauthority to support their argument that the intercompany arbitration between the insurancecompanies somehow tolls the statute of limitations for Plaintiffs to file a personal injury lawsuitand Defendant. Additionally, Plaintiffs do not provide any statutory or case law authority for their bizarreassertion contrary to settled law that “the present case” was under the sole jurisdiction of 11Arbitration Forums Inc. between the dates intercompany arbitration commenced and concluded.Indeed, the only material they cite to in support of this claim is to an apparent ArbitrationForums, Inc.’s rule found on a website that pertains to the statute of limitations regardingcounterclaims, which is irrelevant Lastly, Plaintiffs mention that Defendant filed a small claims action against PlaintiffNomura and her husband on April 8, 2021 that was dismissed due to Defendant’s failure toappear. Plaintiffs’ argue this small claims action and the arbitration provided Defendant “ampleopportunity to prosecute their claims” (Opp., p. 8:20-21) and to “obtain additional information”from Plaintiffs. They conclude that Plaintiffs’ engagement in arbitration [despite their claim inthe SAC that they were not notified that an arbitration date had been set or of the arbitrationdecision until the summer/fall of 2021, calling into question what their “engagement” in thearbitration was] and Plaintiffs’ “forced defense against Defendant’s small claims” demonstratethat they are entitled to equitable tolling. (Opp. at p. 9:19-21.) However, they do not provide anyauthority to support this assertion. As Plaintiffs cannot prove two of the three requirements for equitable tolling [timelynotice to the defendant in filing the first claim and reasonable and good faith conduct on the partof the plaintiff in filing the second claim], their argument fails and the court need not determinewhether the defendant was prejudiced. Based on the foregoing, the court SUSTAINS Defendant’s demurrer to the FAC onstatute of limitations grounds. Leave to Amend Generally, it is an abuse of discretion to sustain a demurrer without leave to amend ifthere is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. 12Kennedy (1976) 18 Cal.3d 335, 349.) "Liberality in permitting amendment is the rule; if a fairopportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37Cal.App.4th 1217, 1227.) This does not mean that leave to amend should always be granted.“Leave to amend should be denied where the facts are not in dispute and the nature of the claimis clear, but no liability exists under substantive law.” (Lawrence v. Bank of America (1985) 163Cal.App.3d 431, 436.) The burden is on Plaintiff to show in what manner he or she can amend the complaint,and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy,supra, 18 Cal.3d at 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) In this case, Plaintiffsrequest leave to amend the complaint to “include facts that will assert that Plaintiffs’ action isequitably tolled and therefore timely.” However, Plaintiffs have had two prior opportunities toamend their complaint to demonstrate but failed. As such, the Court DENIES Plaintiffs’ requestfor leave to amend. CONCLUSIONS The court rules as follows: 1. FINDS that the meet and confer requirement in Code of Civil Procedure section 430.41, subdivision (a) was met; 2. GRANTS Plaintiffs’ requests for judicial notice of Exhibit 1 pursuant to Evidence Code section 452, subdivision (d) but DENIES Plaintiffs’ 13 request for judicial notice Exhibit 2 as duplicative/irrelevant and incomplete; AND 3. SUSTAINS Defendant’s demurrer to the SAC on statute of limitations grounds without leave to amend.Defendant’s counsel is ordered to provide notice. 14 CASE NUMBER CASE NAME TYPE OF HEARING CIVSB 2203862 Cosco Shipping Lines, Inc. Motion to Set Aside Default Judgment, v. Sanctions under Code of Civil Procedure, section 128.5 Public Mutual Corp. etc. And related Cross-ActionTentative Ruling CASE BACKGROUND On February 17, 2022, Plaintiff Cosco Shipping Lines (North America) Inc.(“Cosco”) filed this common count / open book account action against Defendant PublicMutual Corp. dba Legendary Trucking Company (“Public Mutual”). On April 28, 2023, Public Mutual answered Cosco’s complaint and filed its owncross-complaint against Cosco and a third-party cross-defendant, Lever Logistics,LLC (“Lever Logistics”). Public Mutual alleges it entered into a settlement agreementwith Lever Logistics in which Lever Logistics agreed to pay Public Mutual $67,390. (SeeCross-Compl. ¶3.) Lever Logistics breached the agreement “by failing to pay the fullamount . . . .” (Id., ¶5 (emphasis added).) Public Mutual’s cross-complaint included five causes of action against LeverLogistics: (1) breach contract; (2) negligence; (3) indemnity; (4) accounting; and (5)declaratory relief. On July 13, 2023, Cosco answered Public Mutual’s cross-complaint. 15 On August 18, 2023, default was entered against Lever Logistics on thecross-complaint. On November 21, 2023, Public Mutual filed a request for entry ofClerk’s default judgment. On February 21, 2024, the Court ordered Cosco’s complaint dismissed based onCosco’s failure to appear at multiple hearings. Lever Logistics’ attorney, MargaretMorrow, informed the Court that she was unaware her client was in default and thatLever Logistics would be filing a motion to set aside the default. (See Minutes, 2/21/24.) On March 15, 2024, Lever Logistics filed “objections” to Public Mutual’s requestfor entry of default judgment. On April 8, 2024, the Court entered default judgment on Public Mutual’scross-complaint in favor of Public Mutual, and against Lever Logistics, in the amountof $42,078.30. The following day, April 9, 2024, Lever Logistics filed this Motion to SetAside the Default Judgment. Meanwhile, on April 12, 2024, the Court entered a minute order stating it wasmodifying the judgment by reducing it by $100 in costs, to $42,078.30. (See Minutes,4/12/24.) On April 25, 2024, Lever Logistics filed its notice of intent to file a motionfor new trial. The Court set the hearing for May 29, 2024 and on May 6, 2024, LeverLogistics filed its motion for new trial which Public Mutual opposed. The Court (theHonorable Judge Charlie Hill) denied the motion after hearing it on May 29, 2024. Two days later, on May 31, 2024, Lever Logistics filed the instant Motion to SetAside Default and Default Judgment. An Opposition and Reply have been filed. 16 DISCUSSION There is a jurisdiction question which must be addressed by the parties withfurther briefing. On June 7, 2024, Lever Logistics filed a Notice of Appeal from the May 29,2024 order denying its motion for new trial. The Notice of Appeal does not refer to theApril 8, 2024 default judgment, or its modification on April 12, 2024. Only the Orderdenying the Motion for New Trial is on appeal. However, the Motion for New Trialsought relief from the judgment claiming: (1) Pacific Mutual did not allege entitlement to contractual attorney fees in itscross-complaint; (2) the default judgment is void because it was entered after the Courtdismissed Cosco’s underlying complaint; (3) Lever Logistics was never served with the complaint or cross-complaint; (4) counsel for Pacific Mutual was aware Lever Logistics was representedby counsel but never contacted counsel prior to seeking default and defaultjudgment; (5) counsel for Pacific Mutual misled counsel for Lever Logistics; and (6) Lever Logistics has a meritorious defense to this case. At present, the parties have not addressed the impact, if any, of the pendingappeal and whether this Court has jurisdiction to hear the current motion or if the Courtof Appeal must remand the case first. Code of Civil Procedure, section 916.5 [Stay of proceedings on perfectingappeal] provides: 17 (a) Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (b) When there is a stay of proceedings other than the enforcement of the judgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from. Conclusion The Court continues the hearing on the instant motion to allow the parties to briefthe issue whether this Court has jurisdiction to hear and rule upon the Motion to SetAside Default while the appeal re: Motion for New Trial is pending. The Court sets the following briefing and hearing schedule: 1. Lever Logistics, LLC shall file its brief by July 23, 2024; 2. Public Mutual shall file its opposition brief by August 6, 2024; and 3. Lever Logistics may file a reply by August 6, 2024.The hearing on the motion is continued to August 26, 2024 at 8:30 a.m.Counsel for Lever Logistics is ordered to provide notice. 18 CASE NUMBER CASE NAME TYPE OF HEARINGTentative Ruling: 19 CASE NUMBER CASE NAME TYPE OF HEARINGTentative Ruling: 20
Ruling
Lebron et al Jehad Shakfeh, M.D. ’s
Jul 30, 2024 |CIVSB2328322
PROCEDURAL/FACTUAL BACKGROUND This is a wrongful death/survivors action arising from allegedly medical malpractice.Plaintiffs The Estate of Lillian Lebron (Estate), Priscilla Macias as an individual and successor-in-interest of the Estate, Thomas Berrios as an individual and successor-in-interest of the Estate,and Corinne Roman Torres as an individual and successor-in-interest of the Estate, initiated theseproceedings on November 27, 2023, against Defendants Mohammad Jehad Shakfeh, M.D. (Dr.Shakfeh), and Montclair Hospital Medical Center (Montclair Hospital). After the initialdemurrer/strike motion filing, Plaintiffs voluntarily filed the operative First Amended Complaint(FAC) with the following causes of action: (1) Wrongful Death – Medical Malpractice; (2) Breachof Contract; (3) Negligent Infliction of Emotional Distress (NIED); (4) Fraud – Misrepresentation;(5) Fraud – Concealment; (6) Violation of Statutes – Health and Safety Code sections 102850,102875, and 103775, and Government Code section 27491 [against Dr. Shakfeh only]; and (7)Survival Damages. The Successors-in-Interest are Decedent Lillian Lebron’s natural daughters and son.Plaintiffs allege as follows. Ms. Lebron was admitted to Montclair Hospital on October 7, 2022,with an admitting diagnosis of dysphagia and a screening for malignant neoplasm of her colon.She underwent an upper and lower colonoscopy by Defendants. Dr. Shakfeh noted the Decedentwas generally normal, but made no mention of an esophageal perforation in her esophagus, which 3occurred during the same procedure. By 3:15 pm, Decedent returned to her room with no painnoted. By 3:32 pm, Decedent was noted to have “10/10 sharp back and stomach pain.” Dr. Shakfehprescribed a pain medication, and it was given to Decedent at 3:20 pm (based on the time’s historythis seems to be a typographical error). By 4:30 pm, Decedent was discharged from the care of Dr.Shakfeh and Montclair Hospital. The discharge notes indicated Decedent had “colon polyps” and“esophageal stricture” in stable condition. The following day, on October 8, 2022, Ms. Lebronpassed away at her residence in Rancho Cucamonga, CA, and in front of her children. The deathcertificate completed by Dr. Shakfeh, on October 11, 2022, lists the primary cause of death as“hypertension” with a significant contributing factor being “aspiration due to seizure.” However,there is no mention of a perforated esophagus. Before the death certificate’s completion, onOctober 10, 2022, Plaintiffs Macias and Berrios had a telephone conference with Dr. Shakfehwhere they informed him of Decedent’s symptoms just prior to her death, which included spittingup dark brown fluid. It was during this telephone conference that Dr. Shakfeh knew or should haveknown the cause of death was not hypertension but very likely due to the endoscopy procedure.Despite knowing Decedent had aspirated dark brown fluid and had severe abdominal pain prior toher death, Dr. Shakfeh failed to list other possible causes of death. On October 13, 2022, an autopsywas completed by John C. Hiserodt, M.D., Ph.D., FCAP, and Dr. Hiserodt noted in the autopsydeath summary: “Ms. Lebron died as a result of sepsis (blood infection) due to a perforation of thewall of the distal esophagus following an upper endoscopy procedure to evaluate and dilate anesophageal stricture. The autopsy revealed a 2.0 cm perforation/tear in the left side of the distalesophageal wall allowing non-sterile fluid containing particulate food material to flow into the leftpleural cavity.” (FAC at ¶¶ 1-3 & 25-36.) 4 On July 1, 2024, Dr. Shakfeh’s Demurrer and Motion to Strike came before the Court.Because an insufficient declaration for the required meet and confer was filed, the Court continuedthe hearing and ordered the moving party to properly meet and confer. (Code Civ. Proc., §§ 430.41,subd. (a), 435.5, subd. (a).) On July 10, 2024, Dr. Shakfeh filed a Supplemental Declaration of Heidi L. Kjar, Esq.,regarding the meet and confer in support of the Demurrer and Motion to Strike. Now properly before the Court is Dr. Shakfeh’s Demurrer and Motion to Strike. Thespecific grounds for demurrer are as follows: o Plaintiffs’ FAC is uncertain and unintelligible pursuant to Code of Civil Procedure section 430.10, subdivision (f); o Defendant demurrers to the second cause of action for Breach of Contract on the grounds that said cause is uncertain, fails to state facts sufficient to maintain a cause of action, is vague and ambiguous pursuant to Section 430.10, subdivisions (e) and (f); o Defendant demurrers to the third cause of action for Negligent Infliction of Emotional Distress on the grounds that said cause is uncertain, fails to state facts sufficient to maintain a cause of action, and is vague and ambiguous pursuant to Section 430.10, subdivisions (e) and (f); o Defendant demurrers to the fourth cause of action for Fraud/Misrepresentation on the grounds that said cause is uncertain, fails to state facts sufficient to maintain a cause of action, and is vague and ambiguous pursuant to Section 430.10, subdivisions (e) and (f); o Defendant demurrers to the fifth cause of action for Fraud/Concealment on the grounds that said cause is uncertain, fails to state facts sufficient to maintain a cause of action, and is vague and ambiguous pursuant to Section 430.10, subdivisions (e) and (f); and o Defendant demurrers to the sixth cause of action for Violation of Statutes on the grounds that said cause is uncertain, fails to state facts sufficient to maintain cause of action, and is vague and ambiguous pursuant to Section 430.10, subdivisions (e) and (f).Regarding the motion to strike, Dr. Shakfeh seeks to strike the exemplary/punitive damages in thePrayer for Relief on the grounds that there are no facts alleged which support such a claim and the 5prayers are in violation of Code of Civil Procedure section 425.13. The specific portions to strikeare as follows: o Prayer for Relief F to the Fourth Cause of Action, page 23, Line 12, “For exemplary and punitive damages;” o Prayer for Relief F to the Fifth Cause of Action, page 23, Line 22, “For exemplary and punitive damages;” and o Prayer for Relief F to the Sixth Cause of Action, page 24, Line 4, “For exemplary and punitive damages.”Plaintiffs oppose the demurrer and motion to strike. Dr. Shakfeh replies to the opposition. DISCUSSIONSMeet and ConferBefore filing a demurrer and/or motion to strike, the moving party shall meet and confer, at least5 days before a responsive pleading is due, in person, by telephone or by video conference, withthe party who filed the pleading that is subject to the moving papers in order to see if a resolutioncan be reached on the objections to the pleading. (Code Civ. Proc., §§ 430.41, subd. (a)(1)-(2);435.5, subd. (a)(1)-(2).) If no resolution is reached, along with the demurrer and/or motion tostrike, the moving party shall submit a declaration stating (A) how the parties met and conferredand no resolution was reached, or (B) the opposing party failed to respond to the moving party’smeet and confer requests or otherwise failed to meet and confer in good faith. (Code Civ. Proc.,§§ 430.41, subd. (a)(3); 435.5, subd. (a)(3).)A sufficient declaration in support of the meet and confer effort was filed. Dr. Shakfeh’s counselspoke telephonically with Plaintiffs’ counsel Nicholas Buscemi on July 10, 2024. After discussingthe issues in the moving papers, no resolution was reached. (Kjar Decl., at ¶ 2.) Therefore, theCourt considers the merits below.Statement of the Law for Demurrer 6The function of a demurrer is to test the legal sufficiency of the challenged pleading. (Kendrick v.City of Eureka (2000) 82 Cal.App.4th 364, 367; Hernandez v. City of Pomona (1996) 49Cal.App.4th 1492, 1497.) Under Code of Civil Procedure section 430.10, a party against whom acomplaint has been filed may object by demurrer to the pleading on several grounds. ThisDemurrer objects under section 430.10, subdivision (e) which says the pleading does not state factssufficient to constitute a cause of action, and subdivision (f) which says the pleading is uncertain,including ambiguous and unintelligible.Demurrers for failure to state a cause of action are commonly referred to as “general” demurrers.(McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) While all othergrounds for demurrers are referred to as “special demurrers.” (Collins v. Rocha (1972) 7 Cal.3d232, 239.)A demurrer can be used only to challenge defects that appear on the face of the pleading underattack, or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985)39 Cal.3d 311, 318 (Blank).) The face of the complaint includes matters shown in exhibits attachedto the complaint and incorporated by reference. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91,94.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truthof all material facts properly pleaded, i.e., ultimate facts alleged, but not contentions, deductions,or conclusions of fact or law. (Adelman v. Associated Int’l. Ins. Co. (2001) 90 Cal.App.4th 352,359.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause ofaction; each evidentiary fact that might eventually form part of the plaintiff's proof need not bealleged.” (See Martinez v. City of Clovis (2023) 90 Cal.App.5th 193, 253-254, citing C.A. v.William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “Plaintiff may allege oninformation and belief any matters that are not within his personal knowledge, if he has information 7leading him to believe that the allegations are true.” (Pridonoff v. Balokovich (1951) 36 Cal.2d788, 792.) Of note, the reviewing court draws inferences favorable to the plaintiff, not thedefendant. (Perez v. Golden Empire Transit Dist., (2012) 209 Cal.App.4th 1228, 1239, citingCarney v. Simmonds (1957) 49 Cal.2d 84, 93.)An uncertainty challenge is sustained only where the complaint is unfairly vague or so ambiguousor unintelligible that the defendant cannot reasonably respond i.e., determine the issues to beadmitted or denied. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrerfor uncertainty is strictly construed, even where a complaint is in some respects uncertain, becauseambiguities can be clarified under modern discovery procedures.” (Ibid.)If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend ifthere is a reasonable possibility that the defect can be cured by amendment. (Blank, supra, 39Cal.3d at p. 318.) “Liberality in permitting amendment is the rule; if a fair opportunity to correctany defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)However, “if it appears from the complaint … there is no reasonable possibility that an amendmentcould cure the complaint’s defect,” sustaining without leave to amend is permissible. (Heckendornv. City of San Marino (1986) 42 Cal.3d 481, 486.) Where a complaint is successfully challengedby general demurrer, the burden is on the plaintiff to demonstrate how the complaint can beamended to cure the defect. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)Analysis for DemurrerSpecial Demurrer Dr. Shakfeh contends Plaintiffs’ FAC is uncertain, unintelligible, vague, and ambiguous.However, outside of these comments in the demurrer’s notice, defendant does not provide anyargument in support of the special demurrer. Put simply, Dr. Shakfeh fails to explain how the FAC 8is uncertain. Because he fails to provide any specifics as to how or why the pleading is uncertainand where the uncertainty appears in the FAC, the Court OVERRULES Dr. Shakfeh’s specialdemurrer in its entirety. (Fenton v. Groveland Comm. Services Dist., (1982) 135 Cal.App.3d 797,809, overruled in part on other grounds noted in Katzberg v. Regents of the University of California(2002) 29 Cal.4th 300.)General DemurrerAs to the 2nd Cause of Action for Breach of Contract For an ordinary breach of contract claim, plaintiff must establish: (1) the existence of acontract; (2) plaintiff’s performance or excuse for nonperformance; (3) defendant’s breach; and(4) damages to plaintiff resulting from the breach. (See Richman v. Hartley (2014) 224Cal.App.4th 1182, 1186; Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)However, for a breach of contract in a medical malpractice context, plaintiff must establish: (1)the existence of an express contract in which the physician clearly promised a particular result willfollow; and (2) the patient consented to the treatment in reliance on that promise. (McKinney v.Nash (1981) 120 Cal.App.3d 428, 442 (McKinney).) The physician’s clear promise of a particularresult must be more than a “mere generalized statement that the result of the treatment will begood.” (Depenbrok v. Kaiser Foundation Health Plan, Inc. (1978) 79 Cal.App.3d 167, 171.) Inthe medical malpractice context, “[i]t is settled that an action against a doctor arising out of hisnegligent treatment of a patient is an action sounding in tort and not one based upon a contract.”(Christ v. Lipsitz (1979) 99 Cal.App.3d 894, 899, citing Bellah v. Greenson (1978) 81 Cal.App.3d614, 625.) Dr. Shakfeh contends Plaintiffs’ cause of action for breach of contract is based on theConsent to Surgery form signed by Decedent, wherein she authorized him to perform the upper 9and lower colonoscopy procedure. Dr. Shakfeh disputes this consent form is a contract as well asargues there is no promise of a specific result or reliance by Decedent. In opposition, Plaintiffs contend their FAC pleads all of the elements required for theirsecond cause of action. Plaintiffs represent the Decedent was instructed to review and completethe terms of her admission for her medical procedures under the Conditions of Admissions form.(See FAC, Exhibit C.) For support that a contract exists, Plaintiffs cite Wheeler v. St. JosephHospital (1976) 63 Cal.App.3d 345 (Wheeler), which states that a hospital’s “Conditions ofAdmission” form possessed all the characteristics of a contract of adhesion, and cite Nolte v.Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401 (Nolte), which states that hospitalsmay enforce signed Conditions of Admission forms to recover service charges. However, Plaintiffsprovide no authority to support their breach of contract claim in the context of a medical practiceaction such as this matter. Wheeler mainly concerns the arbitration clause in the admissions form.(Wheeler, supra, 63 Cal.App.3d 345, 350-351.) While Nolte concerns a claim for unfair businesspractices due to a billing issue that was ultimately found not enough to state a claim under Business& Professions Code section 17200 et seq. (Nolte, supra, 236 Cal.App.4th 1401, 1407-09.) In reply, Dr. Shakfeh reiterates his grounds for the demurrer against the second cause ofaction. Additionally, Dr. Shakfeh states he was not a party to the Conditions of Admission formso it is not a contract that binds him. Here, in the medical malpractice context Plaintiffs fail to plead sufficient facts to supporta breach of contract claim. (McKinney, supra, 120 Cal.App.3d 428, 442.) Specifically, in theFAC’s paragraphs 20 to 36, under Defendants’ wrongful conduct title, and paragraphs 52 to 58,under the breach of contract cause title, there are no facts which indicate Dr. Shakfeh made a clear 10promise of a particular result from the treatment nor are there any facts which indicate the Decedentconsented to the treatment in reliance on that promise. (Ibid.)The Court SUSTAINS Dr. Shakfeh’s demurrer against the second cause of action for breach ofcontract on the grounds that the pleading does not state facts sufficient to constitute a cause ofaction. Given the circ*mstances of the case, the demurrer to the second cause of action is sustainedwithout leave to amend. The facts conveyed by Plaintiffs only support a medical malpracticecontext for a breach of contract and Plaintiffs in the opposition fail to demonstrate how thecomplaint can be amended to cure this defect of no clear promise and/or no reliance on thatpromise.As to the 3rd Cause of Action for Negligent Infliction of Emotional Distress “In the absence of physical injury or impact to the plaintiff himself, damages for emotionaldistress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) ispresent at the scene of the injury-producing event at the time it occurs and is then aware that it iscausing injury to the victim and, (3) as a result suffers emotional distress beyond that which wouldbe anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647 (Thing).) Dr. Shakfeh contends the FAC does not allege that any of the Plaintiffs were with theDecedent at the scene of the injury-producing event which was the colonoscopy procedures andwere not contemporaneously aware that the procedure was causing injury to the patient. As anexample, Dr. Shakfeh references the FAC at paragraph 63 which states, “Plaintiffs were not awareof the probable consequences of the Plaintiffs’ decedent’s discharge, and the fact that anundiagnosed condition (a 1.0 cm perforation/tear in the left side of the distal esophageal wall) wasnot being treated.” For additional support, Dr. Shakfeh cites Bird v. Saenz (2002) 28 Cal.4th 910,920 (Bird), where the California Supreme Court ruled that to maintain a cause of action for NIED 11on a bystander theory one must not only witness the injury but also have contemporaneousawareness of the cause of the injury. In Bird, the plaintiffs were the adult daughters of the decedent and following the decedent’ssurgical procedure, one of the daughters saw her mother being rushed down the hallway with abright blue appearance. That decedent’s daughter witnessed hospital personnel running down thehallway to render treatment and one of the physicians informed that daughter, “I think they nickedan artery or a vein, and it looks like all the blood went into her chest.” (Bird, supra, 28 Cal.4th910, 913.) In the end, their mother died in the operating room and the Bird Court found there wasno valid cause of action for NIED because “plaintiffs have not shown they were aware of thetransection of [the decedent’s] artery at the time it occurred. Nor have they shown they werecontemporaneously aware of any error in the subsequent diagnosis and treatment of that injury inthe moments they saw their mother rolled through the hall by medical personnel. In view of theseundisputed facts, plaintiffs cannot show they were present at the scene of the injury-producingevent at the time it occurred and were then aware that it was causing injury to the victim.” (Id. atpp. 921-922.) Moreover, the Bird Court provides an example of when an NIED claim may exist in amedical malpractice case. “To suggest an extreme example, a layperson who watched as arelative’s sound limb was amputated by mistake might well have a valid claim for NIED againstthe surgeon. Such an accident, and its injury-causing effects, would not lie beyond the plaintiff’sunderstanding awareness.” (Bird, supra, 28 Cal.4th 910, 918.) Put simply, the plaintiffs makingan NIED claim must experience a contemporaneous sensory awareness of the causal connectionbetween the negligent conduct and the resulting injury. (Ibid.) 12 In opposition, Plaintiffs contend Decedent’s injuries were ongoing as the sepsis (bloodpoisoning) spread and caused the Plaintiffs’ mother to endure excruciating pain from the 7th to 8thof October 2022. The adult children saw their mother in severe pain and discomfort then eventuallywitnessed her death while she was home. Plaintiffs argue this case is different from Bird as themother there died in the operating room during a medical procedure while Plaintiffs’ mother diedin front of two of the adult children, not in an operating room out of their view. Plaintiffs assertthis case is more like Keys v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484(Keys). The Court of Appeal in Keys held the evidence supported a finding that sister and daughterwere contemporaneously aware that patient’s inadequate treatment was causing patient’s difficultybreathing. (Ibid.) In Keys, decedent Ms. Knox, was the mother and sister of plaintiffs who accompanied herto Alta Bates Summit Medical Center where she underwent thyroid surgery. At approximately6:45 pm, Ms. Knox was transferred from the recovery unit to the medical-surgical floor. Uponarrival to the floor, she was pale, sweaty, and had difficulty breathing. The sister brought this tothe attention of the nurse who described the breathing as “stridulous,” suggesting Ms. Knox’sairway was obstructed. (Keys, supra, 235 Cal.App.4th 484, 486-87.) In the end, the Keys Courtaffirmed the jury’s findings for the NIED award and precisely reasoned as follows:The evidence here showed that plaintiffs were present when Knox, their mother and sister, haddifficulty breathing following thyroid surgery. They observed inadequate efforts to assist herbreathing, and called for help from the respiratory therapist, directing him at one point to suctionher throat. They also directed hospital staff to call for the surgeon to return to Knox’s bedside totreat her breathing problems. These facts could be properly considered by the jury to demonstratethat plaintiffs were contemporaneously aware of Knox’s injury and the inadequate treatmentprovided her by defendant.Defendants says recovery here is not possible because under Bird it was incumbent upon plaintiffsto prove that Knox’s inability to breathe was due to the hematoma in her throat. We disagree. Thereis no evidence that the hematoma was due to an act of medical negligence. The only evidence inthe record is that the stridor presented by Knox is a well-known, post-operative complication ofthyroid surgery. No evidence suggests that the hematoma resulted from substandard care. Rather,a hematoma was described by defendant’s expert as a common risk of thyroid surgery that can 13occur without negligence. It would be erroneous for us to characterize a common surgicalcomplication that may occur without any breach of the duty of care to be an injury producing eventfor a medical malpractice or NIED claim. (See, Johnson v. Superior Court (2006) 143 Cal.App.4th297, 305, 49 Cal.Rptr.3d 52 [“The elements of a cause of action for medical malpractice are: (1) aduty to use such skill, prudence, and diligence as other members of the profession commonlypossess and exercise; (2) a breach of the duty; (3) a proximate causal connection between thenegligent conduct and the injury; and (4) resulting loss or damage.”].) Moreover, plaintiffs’ expertdid not characterize the hematoma as critical in warranting an urgent response on the part ofdefendant. Instead, he described the critical factor as the failure of defendant to realize Knox had acompromised airway. The negligence in this case was the failure of defendant to intubate thedecedent or otherwise treat her compromised airway, not a failure to diagnose her post-surgicalhematoma. The injury-producing event here was defendant’s lack of acuity and response to Knox’sinability to breathe, a condition plaintiffs observed and were aware was causing her injury.The jury was instructed under CACI 1621 as it provided at the time of trial, that in order to finddefendant liable for NIED it had to find that plaintiffs were present when the injury occurred and“aware that Madeline Knox was being injured.” The dissent considers it material in this case thatCACI 1621 has been modified since the time of trial to include a specific paragraph elaborating onthe causation requirement for a NIED claim. We do not. As the dissent points out, CACI 1621provides the jury is to determine: “That [name of plaintiff] was then aware that the [e.g., trafficaccident] was causing [injury to/the death of] [name of victim].” (CACI No. 1621 (2014) vol. 1, p.878.) Here, if the court had this version of the instruction available, the jury would be told it had todetermine: “That Ms. Keys and Ms. Smith were then aware that the inadequate treatment of Ms.Knox’s compromised airway was causing her injury.” The evidence and the record in this case leadus to conclude that they were and that the jury made such a determination.This case is more like Ochoa1 than Bird. A reasonable inference can be drawn from the evidencethat Keys and Smith were present and observed Knox’s acute respiratory distress and were awarethat defendants’ inadequate response caused her death. When ‘“substantial” evidence is present, nomatter how slight it may appear in comparison with the contradictory evidence, the judgment mustbe upheld.’ (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631, 85 Cal.Rptr.2d 386.)”(Keys, supra, 235 Cal.App.4th 484, 489–91.) As both Bird and Keys reference Ochoa v. Superior Court (1985) 39 Cal.3d 159 (Ochoa),“[i]n [Ochoa], a boy confined in a juvenile detention facility died of pneumonia after authoritiesignored his obviously serious symptoms, which included vomiting, coughing up blood, andexcruciating pain. [California Supreme Court] permitted the mother, who observed the neglect andrecognized it as harming her son, to sue as a bystander for NIED. Anticipating the formula wewould later adopt in Thing, we explained that ‘when there is observation of the defendant’s conductand the child’s injury and contemporaneous awareness the defendant’s conduct or lack thereof is1 Ochoa v. Superior Court (1985) 39 Cal.3d 159. 14causing harm to the child, recovery is permitted.’ [Citation.] The injury-producing event was thefailure of custodial authorities to respond significantly to symptoms obviously requiring immediatemedical attention. Such a failure to provide medical assistance, as opposed to a misdiagnosis,unsuccessful treatment, or treatment that turns out to have been inappropriate only in retrospect,is not necessarily hidden from the understanding awareness of a layperson.” (Bird, supra, 28Cal.4th at pp. 919-920, 123 Cal.Rptr.2d 465, 51 P.3d 324; see Wright v. City of Los Angeles (1990)219 Cal.App.3d 318, 268 Cal.Rptr. 309 [relative who watched a paramedic conduct a cursorymedical examination that failed to detect signs of sickle cell shock was permitted to sue forwrongful death but not for NIED because there was no evidence “he was then aware [that thedecedent] was being injured by [the paramedic’s] negligent conduct” (italics omitted)].)” (Keys,supra, 235 Cal.App.4th 484, 489.) In reply, Dr. Shakfeh re-emphasizes that none of the Plaintiffs were present at MontclairHospital when Ms. Lebron underwent the procedures performed by Dr. Shakfeh. Also, Dr. Shakfehcontends the following day when they were at her bedside the Plaintiffs had no understanding ofwhat was causing her injury as they did not learn what actually happened until an autopsy wasperformed on the Decedent days later. With respect to Keys, Dr. Shakfeh notes its holding doesnot change the holding in Bird. Dr. Shakfeh argues that Keys is distinguishable as there theplaintiffs were in fact present at the hospital immediately following the surgery and during thetime their mother was struggling to breathe. In this case, Dr. Shakfeh states the alleged injuryproducing event was the perforation of Ms. Lebron’s esophagus and none of the plaintiffs werepresent at that time. Further, none of the Plaintiffs learned of the perforated esophagus until dayslater when the autopsy was completed. 15 Here, Plaintiffs fail to plead sufficient facts to support a NIED claim. (Thing, supra, 48Cal.3d 644; Bird, supra, 28 Cal.4th 910; Keys, supra, 235 Cal.App.4th 484.) The plaintiffs makingan NIED claim must experience a contemporaneous sensory awareness of the causal connectionbetween the negligent conduct and the resulting injury. (Bird, supra, 28 Cal.4th 910, 918.) In Keys,the plaintiffs experienced a contemporaneous sensory awareness of the causal connection betweenthe negligent conduct and the resulting injury as the injury-producing event there was defendant’slack of acuity and response to the decedent’s inability to breathe, not a failure to diagnose her post-surgical hematoma, and the plaintiffs observed decedent’s condition and were aware hercompromised airway was causing her injury. (Keys, supra, 235 Cal.App.4th 484, 489-91.) In thismatter, within the FAC’s paragraphs 20 to 36, under Defendants’ wrongful conduct title, andparagraphs 59 to 66, under the negligent infliction of emotional distress cause title, there are nofacts which indicate Plaintiffs were present at the hospital during the injury-producing event as theperforation/tear in the left side of the distal esophageal wall allegedly occurred during Dr.Shakfeh’s colonoscopy procedures, and there are no facts which indicate Plaintiffs were aware thatthe perforation/tear was causing injury to the victim as Plaintiffs learned of the perforation/tearafter the autopsy.Therefore, the Court SUSTAINS Dr. Shakfeh’s demurrer against the third cause of action forNIED on the grounds that the pleading does not state facts sufficient to constitute a cause of action.However, the demurrer to the third cause of action is sustained with leave to amend becausePlaintiffs allege that Plaintiff Macias repeatedly contacted Defendants on October 8, 2022,requesting advice on her mother’s deteriorating condition and inability to swallow any soft foodbut it was met without any meaningful response. (See FAC at ¶ 62.) This raises a question as towhether there was a failure to provide medical assistance to a patient who the day before underwent 16a medical procedure that resulted in sharp back and stomach pain before being discharged. (Bird,supra, 28 Cal.4th 910, 919-920 [In Ochoa, “[t]he injury-producing event was the failure ofcustodial authorities to respond significantly to symptoms obviously requiring immediate medicalattention. Such a failure to provide medical assistance, as opposed to a misdiagnosis, unsuccessfultreatment, or treatment that turns out to have been inappropriate only in retrospect, is notnecessarily hidden from the understanding awareness of a layperson”].) At this time, there is areasonable possibility that an amendment could cure the FAC’s defect.As to the 4th Cause of Action for Fraud (Misrepresentation) and 5th Cause of Action forFraud (Concealment)The elements for intentional misrepresentation are: (1) a false representation, actual or implied, ofa matter of fact, (2) knowledge of the falsity, or statements made with such disregard andrecklessness that knowledge is inferred, (3) intent to induce another into relying on therepresentation; (4) justifiable reliance, and (5) resulting damage. (Small v. Fritz Companies, Inc.(2003) 30 Cal.4th 167, 173 (Small); Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184(Charnay).)The elements of an action for fraud and deceit based on concealment are: (1) the defendant musthave concealed or suppressed a material fact, (2) the defendant must have been under a duty todisclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressedthe fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the factand would not have acted as he did if he had known of the concealed or suppressed fact, and (5)as a result of the concealment or suppression of the fact, the plaintiff must have sustaineddamage. (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 (Boschma).) 17In California, fraud must be pled specifically, which means the policy of liberal construction willnot be invoked to sustain a pleading defective in any material respect. The particularityrequirement necessitates pleading facts that show how, when, where, to whom and by what meansthe representation was tendered. (Lazar v. Superior Court (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th631, 645; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 (Stansfield).) The facts constitutingthe fraud must be alleged with sufficient specificity to allow defendant to understand fully thenature of the charge made. (Stansfield, supra, 220 Cal.App.3d 59, 72-73.)Dr. Shakfeh contends Plaintiffs in this matter have failed to meet the heightened pleadingrequirement. Dr. Shakfeh states to the extent that the alleged fraud/misrepresentation was holdinghimself out as a competent medical practitioner as set forth in the fourth cause of action, that ismerely an attempt to convert a medical malpractice claim into one for fraud. With respect to thefifth cause of action for concealment, Dr. Shakfeh states Plaintiffs claim he documented anincorrect cause of death on the decedent’s death certificate on October 11, but Plaintiffsacknowledge the autopsy was not performed on the Decedent until October 13. In other words,Dr. Shakfeh contends the FAC fails to plead he had knowledge of the results of the autopsy and/orcause of death at the time he signed the death certificate and/or that he knew the cause of death heidentified was incorrect. Also, he contends the FAC fails to plead how the Plaintiffs were injuredin any way by the documentation of the incorrect cause of death.In opposition, Plaintiffs contend they have properly pled their fourth and fifth causes of action inthe FAC. For the fourth cause of action for misrepresentation, Plaintiffs specifically referenceparagraphs 70 to 72 of the FAC as sufficient facts to establish the claim. For the fifth cause ofaction for concealment, Plaintiffs specifically reference paragraph 75 of the FAC as a sufficientfact to establish the claim. 18FAC ¶ 70 states: “When Plaintiffs’ decedent was being admitted to MONTCLAIR HOSPITALMEDICAL CENTER, Defendants, MONTCLAIR HOSPITAL MEDICAL CENTER andSHAKFEH, M.D., and DOES through 100, and each of them, directly and/or through theiremployee(s) whose identit(ies) are unknown to Plaintiffs at this time, represented orally and inwriting to Plaintiffs and Plaintiffs’ decedent that, during colonoscopy procedure, Defendantswould be alert to Plaintiffs’ decedent’s medical requirements and she would be provided with carewhich met legal and medical standards, and suggested as fact that she would be properly cared for.Both Defendants, MONTCLAIR HOSPITAL MEDICAL CENTER employees and SHAKFEH,M.D. represented to Plaintiffs and Plaintiffs’ decedent that Defendant were the “best,” and thatPlaintiffs’ decedent would not find any facility better than MONTCLAIR HOSPITAL MEDICALCENTER nor SHAKFEH, M.D. to perform a routine upper endoscopy to evaluate the Plaintiffs’decedent’s progressive dysphagia. Plaintiffs are unable to identify the person from MONTCLAIRHOSPITAL MEDICAL CENTER who made such representations, but the person then chargedwith “patient intake” duties, and their identity is presumptively within the knowledge of theDefendant, MONTCLAIR HOSPITAL MEDICAL CENTER. Defendant SHAKFEH, M.D. madethe representation directly to Plaintiffs decedent.”FAC ¶ 71 states: “Said representation and suggestion were false, and known to be false whenmade, and made without reasonable basis for believing it to be true. The true facts are as alleged.”FAC ¶ 72 states: “Defendants, and each of them, were not intending to provide the medical careand treatment promised but were instead planning only to provide that care which would allowthem to make a profit out of their relationship with Plaintiff’s decedent. These Defendantsintentionally and knowingly concealed that information from Plaintiffs and Plaintiff’s decedent, 19with the intent to deceive them into believing the Plaintiff’s decedent died from something otherthan Defendants’ medical negligence.”And FAC ¶ 75 states: “Defendants, and each of them breached their duty to disclose said facts toPlaintiffs regarding the actual cause of death of Plaintiffs’ decedent, with the intent of misleadingPlaintiffs into believing that Plaintiffs’ decedent died as result of hypertension (heart disease),rather than as result of the negligence of Defendants, and each of them, which resulted in aperforated esophagus and development of sepsis, which was the actual cause of death.”In reply, Dr. Shakfeh contends that a wrong diagnosis does not equate to a fraudulent diagnosis.For fraud, defendant states that Plaintiffs are required to establish that when Dr. Shakfeh made therepresentation on the death certificate that he actually knew it was incorrect and that heintentionally provided the wrong information with the intent to mislead the plaintiffs. Furthermore,Dr. Shakfeh reiterates that Plaintiffs have also failed to establish how the incorrect cause of deathidentified on the death certificate caused any injury to them.Here, Plaintiffs have failed to plead a fraud cause of action with the requisite specificity.(Stansfield, supra, 220 Cal.App.3d 59, 72-73.)First, as to the fourth cause of action for fraud based on misrepresentation. According to the FAC’sparagraph 70, Plaintiffs allege two instances of intentional misrepresentations, which are thatduring the colonoscopy procedure Dr. Shakfeh misrepresented he would be alert to Plaintiffs’decedent’s medical requirements and Dr. Shakfeh misrepresented to Plaintiffs they would not findany doctor better than him to perform the routine procedures. A third misrepresentation is given atFAC’s paragraph 72 as Plaintiffs state Dr. Shakfeh represented that Decedent died from somethingother than his medical negligence. Again, the death certificate states that Decedent died due to“hypertension” with a significant contributing factor being “aspiration due to seizure.” However, 20Plaintiffs fail to provide specific facts which support the fifth element for intentionalmisrepresentation, which is resulting damage. (Small, supra, 30 Cal.4th 167, 173; Charnay, supra,145 Cal.App.4th 170, 184.) In the context of fraud, a plaintiff must specifically describe the factsrelating to his or her injury/damages and its causal connection with plaintiff’s reliance ondefendant’s misrepresentations. (Service of Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th1807, 1818.) Per paragraph 73 of the FAC, due to the fraud/misrepresentation, Plaintiffs allegethey incurred the cost of an autopsy and funereal/burial expenses. More information is needed forthe causal connection because currently as portrayed there was no reliance in Dr. Shakfeh’s signeddeath certificate as they did not believe Dr. Shakfeh. Second, as to the fifth cause of action for fraud based on concealment. Plaintiffs allege thatDr. Shakfeh concealed the actual cause of death for Decedent. (FAC at ¶¶ 75-77.) However,Plaintiffs fail to provide specific facts which support the fourth and fifth elements for concealment,which are respectively that the plaintiff must have been unaware of the fact and would not haveacted as he/she did if he/she had known of the concealed or suppressed fact, and as a result of theconcealment or suppression of the fact the plaintiff must have sustained damage. (Boschma, supra,198 Cal.App.4th 230, 248.) Plaintiffs do not allege the concealment of actual cause of death forcedthem to act a certain way that would have not occurred if they knew the concealed or suppressedfact. Additionally, Plaintiffs did not believe Dr. Shakfeh as they hired a private doctor for anautopsy thus there is a lack of cause from the concealment or suppression of the fact.Therefore, the Court SUSTAINS Dr. Shakfeh’s demurrer against the fourth cause of action forfraud (misrepresentation) and fifth cause of action for fraud (concealment) on the grounds that thepleading does not state facts sufficient to constitute these causes. 21However, the demurrer to the fourth and fifth causes of action be sustained with leave to amendbecause there is a reasonable possibility that an amendment could cure the defects under thecirc*mstances of the case.As to the 6th Cause of Action for Violation of StatutesPlaintiffs allege that Dr. Shakfeh violated the following statutes: Health and Safety Code sections102850, 102875, and 103775, and Government Code section 27491.Health and Safety Code section 102850 provides that the physician and surgeon, or other personshall immediately notify the coroner when he or she has knowledge of a death that occurred or hascharge of a body in which death occurred under a specific set of circ*mstances. (See Health & Saf.Code § 102850, subds. (a)-(f) [for the specific circ*mstances].)Health and Safety Code section 102875 details how to complete the certificate of death.Health and Safety Code section 103775 states: (a) Every person, except a parent informant for a certificate of live birth and as provided in subdivision (b), who is responsible for supplying information who refuses or fails to furnish correctly any information in his or her possession that is required by this part, or furnishes false information affecting any certificate or record required by this part, is guilty of a misdemeanor. (b) Every licensee or registrant pursuant to Chapter 12 (commencing with Section 7600) of Division 3 of the Business and Professions Code, and the agents and employees of the licensee, or any unlicensed person acting in a capacity in which a license from the Cemetery and Funeral Bureau is required, who is responsible for supplying information and who refuses or fails to furnish correctly any information in his or her possession that is required by this part, or furnishes false information with intent to defraud affecting a death certificate or record required by this part, is guilty of a misdemeanor that shall be punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine.Government Code section 27491 establishes the deaths which requires the coroner’s inquiry. Mostrelevant here, is that the physician who has charge of a deceased person’s body when death 22occurred as a result of any of the cases or circ*mstances described in this section, shall immediatelynotify the coroner. A person who does not notify the coroner as required by this section is guiltyof a misdemeanor. (Gov. Code § 27491, subd. (d).) Dr. Shakfeh contends the sixth cause of action seeks to hold him responsible for furnishingfalse information with the intent to defraud for the information he included on the Decedent’sdeath certificate. Dr. Shakfeh contends Plaintiffs have failed to plead facts that he knew what theautopsy would reveal, prior to it being performed, and contends that Plaintiffs have failed to pleadfacts establishing how the information contained on the decedent’s death certificate caused anyharm or injury to them. In opposition, Plaintiffs contend the FAC sufficiently pleads that Dr. Shakfeh knew or hadreason to highly suspect that the actual cause of death was not “hypertension” but rather the resultof his medical negligence – especially when he completed the death certificate following thelengthy telephone call with Plaintiffs as set forth in paragraph 90 of the FAC. FAC ¶ 90 states: “On October 10, 2022, Plaintiffs PRISCILLA MACIAS and THOMASBERRIOS held a telephone conference with Defendant SHAKFEH, M.D., to discuss how and whyPlaintiffs’ decedent died less than 24 hours after Defendant SHAKFEH, M.D, performed the upperendoscopy procedure. In this same telephone call, Plaintiffs’ decedent’s symptoms – wereprovided to Defendant SHAKFEH, M.D. in great detail just prior to the Plaintiff’s decedent’sdeath. Plaintiffs MACIAS and BERRIOS expressed the detailed symptomology experienced bythe Plaintiffs’ decedent after discharge from Defendant Montclair Hospital MEDICAL CENTER,including spitting up dark brown fluid, abdominal pains, and bloating, up to and including herdeath on the following day (October 8, 2024). It was during this telephone conference betweenPlaintiffs MACIAS and BERRIOS and Defendant SHAKFEH, M.D., that Defendant SHAKFEH, 23M.D. knew or should have known the cause of death was not hypertension but very likely due tothe endoscopy procedure performed on October 7th.” In reply, Dr. Shakfeh reiterates that Plaintiffs acknowledge that when they spoke with himon October 11, 2022, about the events leading up to their mother’s death, they had no knowledgethat she suffered an esophageal perforation. The reason for this, according to Dr. Shakfeh, is thatno one knew this information. Dr. Shakfeh contends he did not intentionally furnish falseinformation with the intent to defraud so he did not violate the statute. Here, although not addressed by either party, it is unclear if a civil action is possible solelybased on violations of these statutes: Health and Safety Code sections 102850, 102875, and103775, and Government Code section 27491. Neither statute mentions an individual may bringforth a civil claim and neither statute mentions a penalty or fine may be recovered from suchviolations. In fact, both Health and Safety Code section 103775 and Government Code section27491 mention a misdemeanor. Nonetheless, based on the parties’ present arguments, there againis no connection between the allegedly false death certificate and Plaintiffs’ damages.Therefore, the Court SUSTAINS Dr. Shakfeh’s demurrer against the sixth cause of action forviolations of statutes on the grounds that the pleading does not state facts sufficient to constitute acause of action. Plaintiffs shall be given an opportunity to amend the Complaint.Statement of the Law for Motion to StrikeCode of Civil Procedure section 436, subdivision (a), provides the court may strike out anyirrelevant, false, or improper matter inserted in any pleadings. “Irrelevant” means any immaterialallegation in the complaint. Code of Civil Procedure section 431.10, subdivision (b), defines animmaterial allegation as any of the following: (1) an allegation that is not essential to the statementof a claim or defense; (2) an allegation that is neither pertinent to nor supported by an otherwise 24sufficient claim or defense; or (3) a demand for judgment requesting relief not supported by theallegations of the complaint or cross-complaint. Additionally, under section 436, subdivision (b),the court may strike out all or any part of any pleading not drawn or filed in conformity with thelaws of this state, a court rule, or an order of the court.The grounds to strike shall appear either on the face of the challenged pleading or from mattersthat are judicially noticed. (Code Civ. Proc., § 437.) The court reads the allegations as a whole,with all parts in their context, and assumes their truth. (Spielholz v. Superior Court (2001) 86Cal.App.4th 1366, 1371; Clauson v. Superior Court (1989) 67 Cal.App.4th 1253, 1255 (Clauson).)Where a defect in a complaint is correctible, the Court may grant leave to amend on terms it deemsproper. Failure to do so when requested is an abuse of discretion. (See Code Civ. Proc., § 472a,subd. (d); Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768-769; See also Angie M. v. SuperiorCourt (1995) 37 Cal.App.4th 1217 [“Liberality in permitting amendment is the rule, if a fairopportunity to correct any defect has not been given”].)Punitive Damages. A party may obtain punitive damages where he or she proves by clear andconvincing evidence the defendant has been guilty of “oppression, fraud, or malice.” (Civ. Code§ 3294, subd. (a).)Civil Code section 3294, subdivision (c), defines malice, oppression, and fraud as:(1) “Malice” means conduct which is intended by the defendant to cause injuryto the plaintiff or despicable conduct which is carried on by the defendant with a willfuland conscious disregard of the rights or safety of others.(2) “Oppression” means despicable conduct that subjects a person to cruel andunjust hardship in conscious disregard of that person’s rights.(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of amaterial fact known to the defendant with the intention on the part of the defendant ofthereby depriving a person of property or legal rights or otherwise causing injury. 25With respect to despicable conduct, it is conduct that is so vile, base, contemptible, miserable,wretched, or loathsome it would be looked down upon and despised by ordinary decedent people.(Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)To survive a motion to strike allegations for punitive damages, the “ultimate facts showingentitlement to such relief must be pled by the Plaintiff.” (Clauson, supra, 67 Cal.App.4th at p.1255.) Facts of oppression, fraud, or malice must be alleged. (Grieves v. Superior Court (LeonardL. Fox) (1984) 157 Cal.App.3d 159, 166.) A motion to strike punitive damages allegations maylie where the facts alleged do not rise to the level of “malice, fraud or oppression” required tosupport a punitive damages award. (See Turman v. Turning Point of Central Calif., Inc. (2010)191 Cal.App.4th 53, 63.) Yet, the necessary facts can be stated as ultimate facts or conclusions oflaw, as long as they are read in context with the other facts alleged as to defendant’s conduct so asto “adequately plead the evil motive requisite to recover[] … punitive damages.” (Monge v.Superior Court (Crown Gibralter Graphic Center, Inc.) (1986) 176 Cal.App.3d 503, 510.)What is more, “a conclusory characterization of defendant’s conduct as intentional, willful andfraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864,872.) However, conclusory allegations will not be stricken where they are supported by other,factual allegations in the complaint. (Perkins v. Superior Court (General Tel. Directory Co.)(1981) 117 Cal.App.3d 1, 6 [holding that allegation that defendant was guilty of “oppression, fraudand malice” could not be stricken where the complaint contained sufficient facts to support suchallegation].)Analysis for Motion to Strike 26 Dr. Shakfeh seeks to strike the prayers for relief concerning exemplary and punitivedamages for the fourth, fifth, and sixth causes of action. He contends the prayers are in violationof Code of Civil Procedure section 425.13, which in pertinent part states: “In any action fordamages arising out of the professional negligence of a health care provider, no claim for punitivedamages shall be included in a complaint or other pleading unless the court enters an orderallowing an amended pleading that includes a claim for punitive damages to be filed. The courtmay allow the filing of an amended pleading claiming punitive damages on a motion by the partyseeking the amended pleading and on the basis of the supporting and opposing affidavits presentedthat the plaintiff has established that there is a substantial probability that the plaintiff will prevailon the claim pursuant to Section 3294 of the Civil Code.”Moreover, Dr. Shakfeh states he is a healthcare provider as contemplated by Code of CivilProcedure section 425.13, subdivision (b), and contends it is clear that Plaintiffs are seekingpunitive damages for conduct that arises out of the provision of medical services to Plaintiffs’decedent, irrespective of the titles of the causes. (See e.g., FAC at ¶¶ 25-31, 76, & 79.) In opposition, Plaintiffs contend there is no request for exemplary/punitive damages arisingfrom the professional negligent services of Dr. Shakfeh as the focus is his subsequent acts withrespect to the false death certificate claim. Plaintiffs state they seek these damages in their fourth,fifth, and sixth causes of action.Code of Civil Procedure section 425.13, in short, requires plaintiffs in an action arising from theprofessional negligence of a licensed “health care provider” to obtain court approval beforeincluding a punitive damages claim in the pleading.As Section 425.13 covers causes pertaining to fraud, which relate to the acts of a health careprovider, they would ordinarily be expected to perform such as completing a death certificate of a 27patient, Plaintiffs needed to first move for a court order to include the exemplary/punitive damagesin the FAC. (See Davis v. Superior Court (Carlos Fuentes) (1994) 27 Cal.App.4th 623, 629.)Therefore, the Court GRANTS Dr. Shakfeh’s Motion to Strike without prejudice to allow Plaintiffsan opportunity to bring forth a motion to amend the complaint pursuant to Code of Civil Proceduresection 425.13. CONCLUSIONBased on the foregoing, the Court: (1) OVERRULES Dr. Shakfeh’s special demurrer in its entirety; (2) SUSTAINS Dr. Shakfeh’s demurrer without leave to amend against the second cause of action for breach of contract on the grounds that the pleading does not state facts sufficient to constitute a cause of action (Code Civ. Proc., § 430.10, subd. (e)), and Plaintiffs fail to demonstrate how the complaint can be amended to cure its defect. (3) SUSTAINS Dr. Shakfeh’s demurrer with 20 days leave to amend against the third cause of action for negligent infliction of emotional distress on the grounds that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) (4) SUSTAINS Dr. Shakfeh’s demurrer with 20 days leave to amend against the fourth cause of action for fraud (misrepresentation) and fifth cause of action for fraud (concealment) on the grounds that the pleading does not state facts sufficient to constitute these causes. (Code Civ. Proc., § 430.10, subd. (e).) (5) SUSTAINS Dr. Shakfeh’s demurrer with 20 days leave to amend against the sixth cause of action for violations of statutes on the grounds that the pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) 28(6) GRANTS Dr. Shakfeh’s Motion to Strike pursuant to Code of Civil Procedure section 425.13, without prejudice in order to allow Plaintiffs an opportunity to bring forth a motion to amend the complaint in accordance with Section 425.13. Hence, the punitive damages in the FAC are stricken.Counsel for Dr. Shakfeh is ordered to provide notice. 29
Ruling
Defendant Dothan Security, Inc.
Jul 31, 2024 |CIVSB2403846
Procedural/Factual Background On January 25, 2024, plaintiff Beverly Winslett filed her Complaint againstdefendants Dothan Security, Inc. dba DSI Security Services; Phillip Bailey; and, Does 1through 20 alleging the following 21 causes of action: 1) Assault; 2) Battery; 3) Violationof the Ralph Civil Rights Act (Civil Code § 51.7); 4) Violation of the Tom Bane CivilRights Act (Civil Code § 52.1); 5) Discrimination in Violation of Gov’t Code §§ 12940 etseq.; 6) Harassment in Violation of Gov’t Code §§ 12940 et seq.; 7) Work EnvironmentHarassment – Conduct Directed at Others in Violation of Gov’t Code §§ 12940 et seq.;8) Retaliation in Violation of Gov’t Code §§ 12940 et seq.; 9) Failure to PreventDiscrimination, Harassment, and Retaliation in Violation of Gov’t Code § 12940(k); 10)For Declaratory Judgment; 11) Wrongful Constructive Termination in Violation of PublicPolicy; 12) Retaliation for Disclosing Violations of Law (Labor Code §§ 6310, 6400, etseq.); 13) Retaliation (Labor Code § 98.6); 14) Retaliation for Disclosing Violations ofLaw (Labor Code §§ 1102.5, 1102.6); 15) Failure to Pay Wages; 16) Failure to PayMinimum Wages; 17) Failure to Pay Overtime Compensation; 18) Failure to Provide 2Meal and Rest Periods; 19) Failure to Provide Itemized Wage Statements; 20) WaitingTime Penalties; and, 21) Unfair Competition. On April 22, 2024, defendant Dothan Security, Inc. filed its Notice of Motion andMotion to Compel Arbitration and the declarations of Eddie Sorrells and BimaliWalgampaya in support. They argue that Winslett entered into a binding arbitrationagreement when she began her employment with Dothan Security, Inc. Plaintiffopposes, and Defendant replies. Discussion Evidentiary Objections. Plaintiff submits four objections to the declaration ofEddie Sorrells. The Court overrules the first and second objections. As to the thirdobjection, evidentiary objections are to be specific and particularized. To the extent thematerial cited as being objectionable contains any statement that is non-objectionable,even if meritorious objections could have been posed to unspecified portions of thematerial, the objection is overruled. (OCFCD v. Sunny Crest Dairy, Inc. (1978) 77Cal.App.3d 742, 753; see also Rose v. State (1942) 19 Cal.2d 713, 742 [discussion incontext of motion to strike out inadmissible evidence, but should apply equally toevidentiary objections].) Therefore, the Court overrules this objection as well. As to the fourth objection, it is to the Agreement itself, Exhibit A. The Agreementwas also attached to the declaration of counsel, Bimali Walgampaya, but does notappear objected to. The Court overrules this objection. The purpose of Exhibit A is to provide the Court with the Binding ArbitrationAgreement at issue. In Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 3215, the petitioner attached the agreement without further authentication. (Id. at p. 218.)The court there held: For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication. “[T]he court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists....” (§ 1281.2) The statute does not require the petitioner to introduce the agreement into evidence. A plain reading of the statute indicates that as a preliminary matter the court is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity. This conclusion is bolstered by California Rules of Court, rule 371. A petitioner must attach a copy of the agreement to the petition, or its “provisions ... shall be set forth” in the petition. (Cal. Rules of Court, rule 371.)(Id. at pp. 218-219.) Because the normal procedure for authentication does not applyhere, the Court overrules this objection. With the Reply, Defendants also filed evidentiary objections. It appears they filedthree objections to the declaration of Plaintiff Winslett, but provided no stated groundsas to two of those. The Court overrules each of the objections here. Defendants alsofiled two objections to the declaration of Plaintiff’s counsel, Daniel J. Friedman. TheCourt overrules these objections. In sum, the Court OVERRULES all of the objections raised by the parties. Statement of the Law. California Law. Under Code of Civil Procedure section1281.2, a party to an arbitration agreement may move to compel arbitration if the othercontractual party refuses to arbitrate, and the court shall order the parties to arbitrate if itdetermines that an agreement to arbitrate exists unless (a) the right to arbitration hasbeen waived, (b) grounds exist to revoke the agreement, or (c) a party to the arbitration 4agreement is a party to a pending action with a third-party, arising from the sametransaction or series of related transactions and a probability exists of conflicting rulings. The court must determine whether a written arbitration agreement exists, if anydefense to its enforcement is raised, and whether the agreement is enforceable.(Rosenthal v. Great Western Fin. Sec. Corp. (1996) 14 Cal. 4th 394, 413.) Thepetitioner bears the burden of proving the existence of the arbitration agreement by thepreponderance of the evidence while the respondent bears the burden of proving by apreponderance of the evidence any defense to enforcement. (Ibid.) The trial court’s roleis to resolve these factual issues. (Id. at p. 414.) California law favors the enforcement of valid arbitration agreements. (Ericksen,Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312,320; In re Tobacco I (2004) 124 Cal.App.4th 1095, 1103.) Any doubts about arbitrationwill be resolved against the party asserting a defense to arbitration, whether the issue isthe construction of contract language, waiver, delay, or any like defense to arbitrability.(Ericksen, supra, 35 Cal.3d at p. 320; In re Tobacco I, supra, 124 Cal.App.4th at p.1103.) Federal Law. The Federal Arbitration Act (“FAA”) [9 U.S.C. §1, et. seq.]authorizes enforcement of arbitration clauses unless grounds exist in law or equity forthe revocation of any contract. (9 U.S.C. §2.) In situations governed by the FAA,conflicting state law is preempted in either state or federal courts. (Volt Info. Sciences,Inc. v. Board of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468,477.) 5 Under the FAA, to compel arbitration, a finding must be made that an agreementexists for arbitration between the parties and that the agreement covers the dispute.(AT&T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643,648-49.) The enforcement of an arbitration clause is a matter of ordinary state-lawcontract principles and should be enforced according to their terms. (AT&T Mobility LLCv. Concepcion (2011) 131 S.Ct. 1740, 1745.) Thus, arbitration agreements can bedeclared unenforceable on contract defenses of fraud, duress, or unconscionability. (Id.at p. 1746.) Any doubt about the arbitrability of a dispute under the FAA is resolved infavor of arbitration. (Id. at p. 650.) The party may also seek a stay of pending litigation either by itself or inconjunction with a petition to compel arbitration. (Code Civ. Proc., §1281.4; see also 9U.S.C. §3.) Analysis. FAA. First, the court must determine if the FAA applies, and then if so,whether there is an enforceable arbitration agreement. The FAA applies to arbitration clauses involving interstate commerce. 1 (9 U.S.C.§2; Aviation Data, Inc. v. American Express Travel Related Services Company, Inc.(2007) 152 Cal.App.4th 1522, 1534.) The defendant bears the burden of demonstratingFAA coverage by declarations and other evidence. (Shepard v. Edward MackayEnterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101; Woolls v. Superior Court (Turner)(2005) 127 Cal.App.4th 197, 213-214.)1 “Involving commerce” is the equivalent of the term “affecting commerce,” which is a term of art ordinarilysignaling the broadest permissible exercise of Congress’s commerce clause power. (Citizens Bank v. Alafabco, Inc.(2003) 439 U.S. 52, 56.) 6 In support of the motion, Eddie Sorrells submits a declaration. Sorrels is thePresident of Dothan Security, Inc. dba DSI Security Services. (Sorrells Decl. ¶ 2.) Hisjob duties include overseeing DSI’s daily business operations and providing legal adviceto DSI on various matters. He is also familiar with the operations, management,protocol, and procedures of DSI. He has personal knowledge of the business practicesof DSI regarding the retention of documents related to employees—including theirpersonnel files. (Ibid.) He attests that DSI has offices in over 15 states, includingCalifornia with corporate offices in Alabama. (Sorrells Decl. ¶ 6.) At the time Plaintiff washired, she was provided with several documents and agreements to review, whichincluded a Binding Arbitration Agreement, which he attaches to his declaration asExhibit A. (Sorrells Decl. ¶ 10; Exh. A.) Plaintiff was given the Agreement, ample time toreview it, and she signed it. (Sorrells Decl. ¶ 12.) At no time was she informed shewould not be hired if she did not sign the Agreement. (Sorrells Decl. ¶ 13.) A review of Exhibit A, the Agreement, shows that on page 1 of 4, section 1-Consideration, it states “This Agreement will be governed by the Federal ArbitrationAct.” And, on page 2 of 6 [sic], section 4-Arbitration, the Agreement reads: THISAGREEMENT IS COVERED BY AND MADE PURSUANT TO THE FEDERALARBITRATION ACT (9 U.S.C. § ET SEQ.). “[A] petitioner seeking an order to compel arbitration must show that the subjectmatter of the agreement involves interstate commerce.” (Giuliano v. Inland EmpirePersonnel, Inc. (2007) 149 Cal.App.4th 1276, 1286, emphasis added.) Here, althoughDSI has offices across state lines, it is unclear how Plaintiff’s position as a securityguard involved interstate commerce. On the other hand, if an arbitration agreement 7contractually provides for the FAA to apply, then it applies. (Cronus Investments, Inc. v.Concierge Services (2005) 35 Cal.4th 376, 394; Davis v. Shiekh Shoes, LLC (2022) 84Cal.App.5th 956, 964, [S]ince arbitration is a matter of contract, the FAA also applies if itis so stated in the agreement.]; Rodriguez v. American Technologies, Inc. (2006) 136Cal.App.4th 1110, 1115.) Here, because the contract expressly states the FAA applies,it applies. Arbitration Agreement. Next, the Court must determine if the Agreement coversthe claims herein. The Agreement itself provides that it covers: Employee and the company mutually agree to the resolution by arbitration of all claims, controversies, or other disputes arising out of Employee's employment or its termination (collectively, the "claims") that either party may have against the other, including the Company's parent, subsidiaries, or affiliates or any of their current and former owners, officers, directors, shareholders, representatives, attorneys, members, managers, employees, agents, assigns, contractors, or assigns in their capacity as such or otherwise.(See Sorrells Decl.; Exh. A, page 1 of 4, section 2.) Following this paragraph is adetailed list specifying claims covered, which include those types of claims alleged byPlaintiff. (Ibid.) Plaintiff, however, argues that arbitration is inappropriate where sexualharassment is a central allegation. Plaintiff cites to “The Ending Forced Arbitration ofSexual Assault and Sexual Harassment Act” (9 U.S.C Code §§ 401, et seq.) (“the Act”)stating Plaintiff’s claims cannot be arbitrated. Plaintiff, however, does not address thedate of enactment nor does she address if all of her claims fall under sexualharassment. Indeed, in the Reply, Defendants argue the Act is not retroactive. Plaintiff’sentire Complaint, they say, arises out of allegations that occurred prior to March 3,2022. They cite: “This Act, and the amendments made by this Act, shall apply with 8respect to any dispute or claim that arises or accrues on or after the date of enactmentof this Act.” (9 U.S.C. § 402.) The Act provides “[n]otwithstanding any other provision of this title, at the electionof the person alleging conduct constituting a sexual harassment dispute or sexualassault dispute, … no predispute arbitration agreement … shall be valid or enforceablewith respect to a case which is filed under Federal, Tribal, or State law and relates tothe sexual assault dispute or the sexual harassment dispute. (9 U.S.C. § 402(a).) The Act was adopted on March 3, 2022. Upon enactment, it became effectiveimmediately. (Murrey v. Superior Court (General Electric Company) (2023) 87Cal.App.5th 1223, 1235.) There is a presumption that a newly adopted statute is notretroactive. (Landgraf v. USI Film Products (1994) 511 U.S. 244, 265.) “The EFAA wasenacted on March 3, 2022, and does not have retroactive effect.” (Turner v. Tesla, Inc.(N.D. Cal. 2023) 686 F.Supp.3d 917, 924.) Neither party addresses the relevant issueswith respect to whether Plaintiff’s claims accrued before or after the Act was enacted.Recent case law has examined not just the conduct alleged but when the dispute aroseto determine the effective date: We conclude the date that a dispute has arisen for purposes of the Act is a fact- specific inquiry in each case, but a dispute does not arise solely from the alleged sexual conduct. A dispute arises when one party asserts a right, claim, or demand, and the other side expresses disagreement or takes an adversarial posture.(Kader v. Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214, 222.)Here, Plaintiff alleges the first incident of sexual harassment occurred on January 18,2022 when Bailey groped and rubbed himself on her. She immediately told him to stop,and he responded in disagreement that he was her supervisor and could do what he 9wanted. (See Compl. ¶ 61.) Arguably, this dispute arose at the same time as the sexualconduct because Plaintiff asserted a right and the other side, Baily, expresseddisagreement. The next alleged sexual conduct occurs on February 1, 2022 whenBailey again touches Plaintiff. (Compl. ¶ 63.) In response to this, Plaintiff then files aformal complaint on February 9, 2022 and was immediately pressured to retract herclaim. (¶ 64.) It appears, therefore, that by February 9, 2022 at the latest, the disputehad arisen. As a result, the Act does not apply in this case as there is no indication anyfurther sexual harassment occurred and the dispute arose prior to March 3, 2022. Defenses to the Enforcement of the Arbitration Agreement. Plaintiff also argues,however, that the Agreement is unenforceable because it is unconscionable. Unconscionability is the absence of meaningful choice on the part of one of theparties together with contract terms, which are unreasonably favorable to the otherparty. (Allan v. Snow Summit (1996) 51 Cal.App.4th 1358, 1376.) It has procedural andsubstantive elements. (Armendariz v. Foundation Health Psychcare Services, Inc.(2000) 24 Cal.4th 83, 114.) Both must be present for a court to exercise its discretion torefuse to enforce the arbitration clause under the unconscionability doctrine. (Ibid.)Although both must be present, they do not need to be present to the same degree.(Roman v. Superior Court (Flo-Kem, Inc.) (2009) 172 Cal.App.4th 1462, 1469.) Procedural unconscionability concerns how the contract was negotiated and thecirc*mstances of the parties at the time, i.e., done by oppression or surprise. (Suh v.Superior Court (CHA Hollywood Medical Center, L.P.) (2010) 181 Cal.App.4th 1504,1515; Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 113.) Theoppression arises when there is an inequality of bargaining power, or one party has no 10real power to negotiate or a meaningful choice. (Carmona v. Lincoln Millennium CarWash, Inc. (2014) 226 Cal.App.4th 74, 84.) The surprise is a function of thedisappointed reasonable expectations of the weaker party [Armendariz, supra, 24Cal.4th at p. 113] or when an unconscionable provision is hidden [Carmona, supra, 226Cal.App.4th at p. 84]. Plaintiff argues procedural unconscionability exists because the Agreement is acontract of adhesion.2 Procedural unconscionability typically exists when a contract isprepared by the employer and a mandatory part of the employment. (Carbajal v.CWPSC, Inc. (2016) 245 Cal.App.4th 227, 243.) But it imposes only minimal proceduralunconscionability unless other factors of surprise and oppression exist. (Baltazar v.Forever 21, Inc. (2016) 62 Cal.4th 1237, 1244; Serpa v. California Surety Investigations,Inc. (2013) 215 Cal.App.4th 695, 704.) Here, there is evidence the Agreement was not mandatory. Sorrells attested thatat no time did DSI inform Plaintiff that she would not be hired if she did not sign theAgreement. (Sorrells Decl. ¶ 13.) While Winslett herself also submitted a declaration,she only attests that she never travelled outside California as part of her duties. (SeeWinslett Decl. ¶ 2.) Further, the Agreement itself states that it is voluntary: “DSI SecurityServices, (the “Company”) and Beverly Winslett (“Employee”) voluntarily enter into thisBinding Arbitration Agreement (the “Agreement”) as of the date specified below.” (SeeSorrells Decl.; Exh. A, page 1 of 4, first paragraph.) Here, there is no evidence this is acontract of adhesion. Therefore, there does not appear to be any procedural2 An adhesion contract is defined as “a standardized contract, which, imposed and drafted by the party of superiorbargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.”(Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1289; Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533.) 11unconscionability, and for this reason, the Court will not refuse to enforce theAgreement. Regardless, the court also addresses substantive unconscionability. Substantive unconscionability focuses on the terms of the agreement and thepresence of overly harsh or one-sided results such that it shocks the conscience. (Suh,supra, 181 Cal.App.4th at p. 1515; Martinez, supra, 118 Cal.App.4th at p. 113.) The California Supreme Court in Armendariz v. Foundation Health PsychcareServices, Inc. (2000) 24 Cal.4th 83 discusses the enforcement of arbitration provisionsin the employment context. Armendariz holds that the arbitration of such statutoryclaims is permitted, but there are five minimum requirements for the lawful arbitration ofsuch rights pursuant to a mandatory employment arbitration agreement. Such an arbitration agreement is lawful if it ‘(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum. Thus, an employee who is made to use arbitration as a condition of employment ‘effectively may vindicate [his or her] statutory cause of action in the arbitral forum.’(Id. at p. 102.) Plaintiff argues the Agreement is substantively unconscionable at section6 because it waives Plaintiff’s right to file class actions,3 collective actions, andrepresentative action procedures. Plaintiff cites no authority in support of thesecontentions, and the court may deem this argument waived. (See Taylor v. NaborsDrilling USA, LP (2014) 222 Cal.App.4th 1228, 1247-48 (“The rules require that eachpoint in a brief be supported ‘by argument and, if possible, by citation of authority.’3 Class Action waivers are not unconscionable. (See AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352; seealso Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899.) 12[Citation.] The argument must include legal analysis. ‘When an issue is unsupported bypertinent or cognizable legal argument it may be deemed abandoned and discussion bythe reviewing court is unnecessary. [Citation.]’”) Plaintiff also claims theunconscionability cannot be cured by severance. The Agreement itself, however, provides: To the extent federal law prohibits enforcement of the Class Action Waiver with respect to representative claims under California's Private Attorneys General Act of 2004, California Labor Code §§ 2698, et seq., such representative claims are not covered by this Agreement and must be brought in a court of competent jurisdiction. Any dispute as to the enforceability of the Class Action Waiver shall be decided exclusively by a court of competent jurisdiction and not by the Arbitrator. ln the event a court determines the Class Action Waiver is unenforceable with respect to any Claim, then this waiver shall not apply to that claim, that claim must be filed in a court of competent jurisdiction, and such court shall be the exclusive forum for that claim.(Sorrells Decl.; Exh. A, page 3 of 4, section 6.) There is also a severability clause atpage 3 of 4, section 9 of the Agreement. Further, as noted by Defendants, the Agreement provides for a neutral arbitrator,it also states that the rules to apply will be in accordance with then-current JAMSEmployment Arbitration Rules and Procedures (noted as attached), provides for awritten award, all remedies allowed by law, and the Company will pay for hearing fees///////////////////// 13charged by the arbitrator and any other fees and costs which Employee is not requiredto pay in a court of law. (See Sorrells Decl.; Exh. A, page 2 of 6 [sic], sections 4, 5.) TheAgreement, thus, is not substantively unconscionable. ConclusionBased on the foregoing:The Court GRANTS the motion to compel arbitration and stay the proceedings.The Proceedings are hereby stayed pending arbitration.The Court sets the following hearing re status of arbitration: February 5, 2025 at8:30 a.m.Counsel for Defendant Dothan Security, Inc. is ordered to provide notice. 14
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