PRE-TRIAL DOCUMENT(S) - Pneumo Abex LLC's Exhibit List April 19, 2022 (2024)

Case

Hinelsey Quezada v. The City Of New York, Luigi Campoli, Shade Blancaneaux

Aug 23, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |157835/2024

Case

Ark536 Doe v. Archdiocese Of New York, Brothers Of The Congregation Of Holy Cross A/K/A Congregation Of The Holy Cross, MOREAU PROVINCE d/b/a CONGREGATION OF HOLY CROSS MOREAU PROVINCE, INC. f/k/a EASTERN PROVINCE OF THE BROTHERS OF HOLY CROSS d/b/a BROTHERS OF THE HOLY CROSS OF THE EASTERN PROVINCE OF THE UNITED STATES OF AMERICA, INC., Pius Xii Youth And Family Services d/b/a PIUS XII YOUTH AND FAMILY SERVICES, INC., Does 1-5 Whose Identities Are Unknown To Plaintiff

Jan 01, 2021 |Sabrina Kraus |Torts - Child Victims Act |Torts - Child Victims Act |950728/2021

Case

Almaz Guteta v. New York City Transit Authority

Aug 23, 2024 |Torts - Other Negligence (City Premises) |Torts - Other Negligence (City Premises) |157830/2024

Case

Ruth Mcdaniels v. Nyc P.S. 149 Sojourner Truth

Aug 27, 2024 |Torts - Other (Slip and Fall) |Torts - Other (Slip and Fall) |157896/2024

Case

BROWN, CHANTEL v. NEW YORK CITY HOUSING AUTHORITY

Apr 17, 2024 |Tort-Other Negligence |Tort-Other Negligence |153598/2024

Case

DAVIDSON, JAMES v. TRITON CONSTRUCTION COMPANY, LLC et al

Jul 22, 2021 |Kotler, Hon. Lynn R. |Tort-Other Negligence |Tort-Other Negligence |156809/2021

Case

KAPLAN, SAMUEL v. RODRIGUEZ, THOMAS JOSEPH

Jul 29, 2021 |Headley, Hon. Lisa S. |Tort-Motor Vehicle |Tort-Motor Vehicle |156276/2021

Case

T. B. v. City Of New York, New York Foundling f/k/a NEW YORK FOUNDLING HOSPITAL, f/k/a ST. AGATHA HOME FOR CHILDREN, Catholic Charities Of Staten Island f/k/a THE MISSION OF THE MT. LORETTO FOR THE PROTECTION OF HOMELESS AND DESTITUTE CHILDREN a/k/a MOUNT LORETTO, Catholic Charities Of New York, Archdiocese Of New York, The Sisters Of Charity Of Saint Vincent De Paul Of New York a/k/a SISTERS OF CHARITY NEW YORK, The Salvation Army Greater New York Division, Does 1-10

Aug 08, 2021 |Alexander M. Tisch |Torts - Child Victims Act |Torts - Child Victims Act |951028/2021

Case

FLANNERY, JOHN v. LAZ PARKING NEW YORK/NEW JERSEY, LLC et al

Oct 29, 2021 |Latin, Hon. Richard |Tort-Other Negligence |Tort-Other Negligence |159672/2021

Ruling

AMIR DEAN VS UZUN WHITE GLOVE LLC

Case Number: 23STCV19314 Hearing Date: August 26, 2024 Dept: 29 On April 19, 2024, the Court continued the hearing so that the parties could schedule and participate in an Informal Discovery Conference (IDC). No IDC has been scheduled or conducted. Accordingly, it appears to the Court that the issue has been resolved, and moving party no longer seeks to proceed on its motion. The tentative ruling is that this motion is placed off calendar.

Ruling

XIOMARA ARELLANO BY AND THROUGH HER GUARDIAN AD LITEM BRENDA RODRIGUEZ VS ROUDEL SANDOVAL, ET AL.

Case Number: 22STCV13371 Hearing Date: August 28, 2024 Dept: 29 Arellano v. Sandoval 22STCV13371 Petition for Approval of Minors Compromise for Xiomara Arellano (Age 17). Tentative: The Court excuses the personal appearance of the claimant and the guardian ad litem. Counsel may appear by telephone or video conference call. The Court reviewed the Petition and Proposed Orders filed on May 17, 2024, and identified certain issues that needed to be addressed. The Court has reviewed the most recent versions of all of the documents submitted and finds that all substantive and procedural requirements are satisfied. The proposed settlement and fees are fair and reasonable. Accordingly, the Court GRANTS the petition for approval of the minors compromise. Conclusion The petition is granted. The Judicial Assistant is directed to correct the hearings dates on the two proposed orders. The Court sets an Order to Show Cause re Proof of Deposit of Funds into Blocked Account for _________________, 2024, at 8:30 am, in Department 29 of the Spring Street Courthouse.

Ruling

Lance Pehrson vs. City of Clovis, a public entity

Aug 28, 2024 |24CECG00915

Re: Lance Pehrson v. City of Clovis, a public entity Superior Court Case No. 24CECG00915Hearing Date: August 28, 2024 (Dept. 502)Motion: 1) By Defendant Fresno County to Strike (Anti-SLAPP) the First and Third Causes of Action; 2) Defendant Fresno County’s Demurrer as to the First and Third Causes of ActionTentative Ruling: To grant the special motion to strike. (Code Civ. Proc., § 425.16.) To find the demurrer moot in light of the special motion to strike.Explanation: Defendant Fresno County has filed both a special motion to strike and a demurreras to the first and third causes of action alleged against it. Both motions involve acommunication between the Fresno County District Attorney’s Office and the FederalBureau of Investigation (“F.B.I.”). Neither party disputes that the information conveyed tothe F.B.I. was erroneously made as the District Attorney’s Office investigator was relyingon information which had been incorrectly entered into its internal database.Anti-SLAPP A SLAPP suit (Strategic Litigation Against Public Participation) is a suit brought“primarily to chill the valid exercise of constitutional rights of freedom of speech andpetition for redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) The anti-SLAPP statute permits a defendant whose free speech rights and/or rightto petition have been infringed to move the court to strike the SLAPP suit. The anti-SLAPPstatute may be invoked to challenge suits based on four different categories of speech: (1) statements made before a legislative, executive, judicial, or other official proceeding; (2) statements made in connection with an issue being considered by a legislative, executive, or judicial body; (3) statements made in a public forum or in connection with an issue of public interest; OR (4) any other conduct in furtherance of the exercise of the constitutional right of petition or free speech, in connection with an issue of public interest.(Code Civ. Proc., § 425.16, subd. (e).) Categories (a) and (b) are NOT limited to issues of public interest, while categories(c) and (d) ARE limited to issues of public interest. (Ibid.) The anti-SLAPP is one of the few motions where the burden is on the party opposingthe motion. First, the defendant must make a prima facie showing that plaintiff’s lawsuitarises from “an act in furtherance of a person’s right of petition or free speech under theUnited States or California Constitutions in connection with a public issue,” as defined insubdivision (e). Once defendants make such prima facie showing, the burden shifts tothe plaintiff to establish a “probability” that it will prevail on whatever claims are assertedagainst the defendants. (See Code Civ. Proc., § 425.16, subd. (b); Dixon v. Superior Court(1994) 30 Cal.App.4th 733, 744.) The plaintiff must show: (1) a legally sufficient claim (i.e.,a claim which, if supported by facts, is sustainable as a matter of law); and (2) that theclaim is supported by competent, admissible evidence within the declarant’s personalknowledge. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78Cal.App.4th 562, 568.)First Prong The moving party only needs to make a prima facie showing that the cause ofaction arises from constitutionally protected free speech or petition activity. (GovernorGray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) A claim is only subject to the anti-SLAPP statute if the protected activity forms thebasis for the claim. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th1057, 1062.) The act underlying the cause of action must have been in furtherance ofthe free speech or right of petition. (Id. at 1063.) Here, defendant has made a prima facie showing that the first and third causesof action arise from a protected activity. Specifically, defendant has made a prima facieshowing that the communication by the Fresno County District Attorney’s Officeinvestigator to the F.B.I. regarding the status of charges brought against plaintiff is aprotected activity. Here, plaintiff specifically alleges that the F.B.I. commenced aninternal investigation relating to his employment because of the charges. (FAC, ¶ 25.)Plaintiff suggests that this internal investigation does not constitute an official proceeding.However, plaintiff’s position is entirely unsupported as it appears to imply that the F.B.I. isnot a governmental agency under these circ*mstances. The F.B.I. is a governmentagency under the umbrella of the Department of Justice. (28 U.S.C. §§ 531 et seq.) TheF.B.I.’s internal investigation is an official proceeding. (Hansen v. California Dept. ofCorrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1544; Shaddox v. Bertani(2003) 110 Cal.App.4th 1406, 1415.) Furthermore, when the F.B.I. makes a request forinformation regarding individuals under investigation, including for its own employmentpurposes, criminal justice agencies are obligated to comply with such requests. (5U.S.C.A. § 9101.) As such, defendant was obligated to provide the requested informationto the F.B.I. Defendant has met the threshold required that the causes of action arise from aprotected activity.Second Prong If the moving party can meet the first prong, then the burden shifts to the opposingparty to show a probability that he will prevail on the claims based on protected activityasserted against the moving party. (See Code Civ. Proc., 425.16, subd. (b).) Theopposing party must produce evidence which would be admissible at trial. (Chavez v.Mendoza (2001) 94 Cal.App.4th 1083, 1087.) The probability of prevailing is established ifthe opposing party presents evidence which would result in a judgment for the opposingparty, if believed by the trier of fact. (Thomas v. Quintero (2005) 126 Cal.App.4th 635,637.) In considering this issue, the court looks at the pleadings and evidentiary submissionsof the parties, without weighing the credibility or strength of competing evidence.(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) A plaintiff's complaintneed only be shown to have “minimal merit”. (Soukup v. Law Offices of Herbert Hafif(2006) 39 Cal.4th 260, 279; Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 95.) Here, plaintiffhas alleged the first cause of action for defamation based on libel and the third causeof action for intentional interference with prospective economic advantage againstdefendant Fresno County. Both of these claims are based on a communication madeby a Fresno County District Attorney’s Office investigator to an F.B.I. agent regarding thestatus of criminal prosecution involving plaintiff. Libel is a “false and unprivileged publication … which causes him to be shunnedor avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.)Here, the third cause of action for interference with prospective economic advantage isbased on the same acts alleged in the libel cause of action. As such, it is derivative ofthe libel cause of action. (Lee v. Fick (2005) 135 Cal.App.4th 89, 93, 98.) Defendantacknowledges that the communication was based on erroneous information, but assertsthat plaintiff cannot prevail on these causes of action because the statement, whileerroneous, is privileged and the government has immunity. Civil Code section 47, subdivision (b) provides that statements made in legislative,judicial, other official proceedings, or in the initiation or course of proceedings authorizedby law are privileged publications. Statements made in furtherance of a governmentalinvestigation are privileged under Civil Code section 47. (Braun v. Bureau of State Audits(1998) 67 Cal.App.4th 1382, 1389-1390.) While plaintiff asserts that the Braun case isinapplicable here because it was specifically about investigative audits pursuant to theReporting of Improper Governmental Activities Act, this argument lacks merit. Indeed,Braun specifically notes that its decision is consistent with many other cases involvingcommunications to official agencies. (Ibid.) As discussed above, the F.B.I.’s internalinvestigation is an official proceeding. As such, the communication is subject to theprivilege here. Civil Code section 47, subdivision (c) also provides privilege for communicationsmade without malice to a person interested in the communication (1) by a person whois also interested or (2) has a reasonable ground for supposing the motive of thecommunication to be innocent or (3) who is requested by the interested person to givethe information. Malice is defined as being motivated by hatred or ill will, or by a showingthe defendant lacked reasonable grounds for belief in the truth of the publication andacted in reckless disregard of the plaintiff’s rights. (Rockridge Trust v. Wells Fargo, N.A.(2013) 985 F.Supp.2d 1110, 1159.) Plaintiff argues that he should be permitted to conductdiscovery regarding whether defendant’s investigator acted with malice. However, thisdisregards that the investigator has provided her declaration where she clarifies that anF.B.I. agent sought information about plaintiff’s criminal matter, that she reviewed theinternal database, and conveyed the information contained in the database afterconfirming she was sending it to a valid email address for the F.B.I. (See Nadeau Decl.)Additionally, even if discovery might assist plaintiff here, defendant has establishedprivilege based on subdivision (b). Government Code section 815 articulates that public entities are not liable forinjury except where provided for by statute. Plaintiff argues that Government Codesection 815.2 is applicable, which provides for liability for acts and omissions of publicentity employees where personal liability could attach to the employee. Plaintiff arguesthat the pleadings do not include any facts about the investigator’s job duties. However,this too disregards that the investigator has provided a declaration which explicitly statesthat as part of her job duties, she is “tasked with responding to requests for criminal caseinformation from federal and state law enforcement agencies, including responding tosuch inquiries made via telephone.” (Nadeau Decl., ¶ 3.) Plaintiff fails to recognize thatCode of Civil Procedure section 425.16, subdivision (b)(2) specifically provides that thecourt is to consider the pleadings and any supporting or opposing declarations in an anti-SLAPP motion. Plaintiff’s argument here is without merit as the investigator’s declarationclarifies the job duties, including reporting to agencies such as the F.B.I. Public employees are not liable for injuries caused by instituting or prosecutingjudicial or administrative proceedings within the scope of their employment. (Gov. Code,§ 821.6.) The court in Leon v. County of Riverside (2023) 14 Cal.5th 910, 922 recentlyclarified that Government Code section 821.6 “is more aptly characterized as providingimmunity against liability for claims of injury based on tortious or wrongful prosecution.”The immunity applies if the conduct alleged “was the institution or prosecution of anofficial proceeding.” (Ibid.) Critically here, the communication was the investigatorreporting the results of the judicial proceedings to the F.B.I. While the court in Leon clarifies that Government Code section 812.6 “does notbroadly immunize police officers or other public employees for any and all harmfulactions they may take in the course of investigating a crime,” Leon does not clearlyaddress the question of reporting the results of a completed judicial proceeding. (Id. atp. 915.) The court in Leon did not challenge the long held understanding thatprosecuting “an action is not merely to commence it, but includes following it to anultimate conclusion.” (Id. at p. 920, quoting Black’s Law Dict. (4th ed. 1951) p. 1385, col.1;see 12 Oxford English Dict. (2d ed. 1989) p. 662.) The court in Leon also noted its previousruling in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710 which provided thatholding a person in jail beyond the person’s sentence was not subject to GovernmentCode section 812.6 immunity. (Leon v. County of Riverside, supra, 14 Cal.5th at p. 920.) That said, Leon specifically notes its disapproval of Ingram v. Flippo (1999) 74Cal.App.4th 1280. (Leon v. County of Riverside, supra, 14 Cal.5th at p. 930.) In Ingram,the communication at issue was a letter and press release made by a district attorneyregarding minor violations of the Brown Act by members of a school board which did notresult in criminal proceedings. (Ingram v. Flippo, supra, 74 Cal.App.4th at p. 1283-1285.)In determining that Government Code section 812.6 applied and the communicationwas therefore immune, Ingram relied on Kayfetz v. State of California (1984) 156Cal.App.3d 491, Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, and CitizensCapital Corp. v. Spohn (1982) 133 Cal.App.3d 887. Defendant here also relies on Kayfetzand Cappuccio, which have not been directly overruled, but, in light of the Leon court’sexplicit disapproval of Ingram, this court is not inclined to find the immunity applies here.Ultimately, the Civil Code section 47, subdivision (b) privilege applies and therefore thecourt does not need to apply this immunity in order to grant the anti-SLAPP motion. Here, defendant has met its burden in showing the causes of action arise fromprotected activity and plaintiff cannot demonstrate a likelihood of prevailing on themerits where the communication at issue was privileged.Demurrer In light of the above, the court need not reach the merits of the demurrer. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 08/26/24 . (Judge’s initials) (Date)

Ruling

KELLY LANGE, AN INDIVIDUAL, ET AL. VS BEL-AIR COUNTRY CLUB, A CALIFORNIA CORPORATION

Case Number: 21STCV44719 Hearing Date: August 26, 2024 Dept: 29 Lange v. Bel-Air Country Club 21STCV44719 Defendants Motion to Compel Plaintiff to Sign Authorization for Release of Medicare Records Tentative The motion is denied. Background On December 7, 2021, Kelly Lange and James Everling (collectively Plaintiffs) filed a complaint against Bel-Air Country Club (Defendant) and Does 1 through 50, asserting causes of action for premises liability and general negligence arising out of incident in which, Plaintiffs allege, both Plaintiff fell on a dance floor on December 7, 2019. On May 10, 2022, Defendant filed its answer. On July 24, 2023, Defendant filed a cross-complaint against The Thalians (Thalians); Jimmy Carnelli Music & Entertainment, Inc. dba Jimmy Carnelli Entertainment (Carnelli); and Roes 1 through 25. On August 14, 2023, Plaintiffs amended their complaint to name Thalians as Doe 1 and Carnelli as Doe 2. On September 25, 2023, Thalians filed an answer to Plaintiffs complaint and Carnelli filed an answer to Defendants cross-complaint. On June 14, 2024, Defendant filed this motion for an order compelling Plaintiffs to sign a HIPAA Authorization for Release of Records. Defendants also seek certain other relief and monetary sanctions. On July 10, Plaintiffs filed an opposition, along with their own request for sanctions. Defendant filed a reply on July 16. This motion was initially set for hearing on July 23 and was continued to August 26. Legal Authority The process by which a party may obtain discovery from a person who is not a party to the action is through a deposition subpoena. (Code Civ. Proc., § 2020.010, subd. (b).) Personal service of the deposition subpoena on the non-party is required. (Code Civ. Proc., § 2020.220, subd. (b).) A deposition subpoena may command any of the following: (a) Only the attendance and testimony of the deponent &. (b) Only the production of business records for copying &. (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240 [contempt and an action for civil damages under section 1992]. (Code Civ. Proc., § 2025.440, subd. (b).) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (Code Civ. Proc., § 2025.480, subd. (a).) Except as specifically modified by the Civil Discovery Act, the provisions of Code of Civil Procedure sections 1985 through 1997 apply to deposition subpoenas. (Code Civ. Proc., § 2020.030.) Code of Civil Procedure section 1987.1, subdivision (a), states: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. Discussion There is no express provision in the Civil Discovery Act (or anywhere else in the Code of Civil Procedure) for a party to seek an order, or a court to make an order, compelling a party to sign an authorization for the release of their medical records. Generally, courts lack the power to order civil discovery by a method that is not authorized in the Code of Civil Procedure. (Haniff v. Super. Ct. (2017) 9 Cal.App.5th 191, 200.) Defendant contends the Court has authority, citing Evidence Code sections 991, 996, and 999. These code provisions relate to the Physician Patient Privilege and do not grant (expressly or impliedly) the Court authority to order Plaintiffs to sign an authorization for release of records. The Court is aware of three appellate cases in California that mention this issue, but none address it directly, and none are on point. In each case, the superior court had issued an order compelling a party to provide an authorization for disclosure of medical records, but in neither case did the Court of Appeal directly address whether the superior court had acted properly in doing so (or had the authority to do so). For example, in Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913, the Court of Appeal affirmed a sanction against a party who had violated the court order to provide the authorization, without ruling on whether the underlying order was properly issued. In Coats v. K-Mart Corp. (1989) 215 Cal.App.3d 961, the issue on appeal related to the statute of limitations, although the superior court had issued an order for a compelled authorization for the records of a decedent. And in Little v. Superior Court (1968) 260 Cal.App.2d 311, the Court of Appeal reversed (on other grounds) a judgment of contempt for failing to comply with an order for a compelled authorization.) Of course, cases do not provide authority or guidance on issues that the appellate court did not address or decide. There is a statutorily authorized procedure for obtaining records from a non-party: issuing and enforcing a subpoena, whether under Code of Civil Procedure section 1987.1 or section 2020.020. Indeed, in the Miranda case, the Court of Appeal was puzzled regarding why this standard procedure had not been followed. (Miranda, supra, 117 Cal.App.4th at p. 918 fn. 2.) Given the absence of statutory authority to compel an authorization and the presence of an express statutory alternative, the Court sees no basis to conclude that it has an implied power to compel a party to provide an authorization for the release of their medical records. In its reply, Defendant argues for the first time that the presence of a statutory alternative is illusory, as a Medicare attorney has advised that Medicare will simply ignore state court subpoenas and state court orders. That may or may not be Medicares litigation position, but this court has ample authority to issue orders against any nonparty witness (whether a private citizen or a state or federal government agency) that fails to comply with a subpoena. To the extent that there is any implied authority in this area (a proposition as to which the Court expresses some skepticism), it would apply only if and when all alternatives are exhausted: that is, after a subpoena is issued, the agency fails to comply, the party issuing a subpoena seeks and obtains a court order directing the agency to comply, the agency still refuses to comply, and the other express enforcement mechanisms set forth in the Code of Civil Procedure are ineffective in obtaining the agencys compliance. Accordingly, Defendants request for an order compelling Plaintiffs to provide authorizations is denied. The other relief sought in Defendants motion is also denied. Other discovery tools (including interrogatories and requests for production) appear to be available for Defendant to seek the requested information. Both parties requests for sanctions are denied. Defendants request is denied as it has not successfully made a motion to compel. Plaintiffss request is denied because the Court finds that, given the uncertainty surrounding this issue and the lack of clear appellate authority, Defendants conduct in bringing this motion, although unsuccessful, was substantially justified. Conclusion The Court DENIES Defendant Bel-Air Country Clubs motion. The Court DENIES both requests for sanctions. Moving party to provide notice.

Ruling

ROSALES, GEETANGALY PRASAD vs TURLOCK UNIFIED SCHOOL DISTRICT

Aug 27, 2024 |CV-23-003274

CV-23-003274 – ROSALES, GEETANGALY PRASAD vs TURLOCK UNIFIED SCHOOL DISTRICT – Defendant’s Demurrer to the Second Amended Complaint – OVERRULED.Defendant's Demurrer to the Second Amended Complaint for Damages is OVERRULED. Preliminarily, Defendant’s reply brief’s table of contents and table of cases appear unrelated to this case.“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) The Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)Defendant’s primary argument is that Government Code § 831.7 grants them immunity as a matter of law.Section 831.7 grants immunity when a participant is involved in a “hazardous recreational activity” which includes “[w]ater contact activities.” Perry v. East Bay Regional Park Dist. (2006) 141 Cal.App.4th 1 holds (probably in dicta) that swimming without a lifeguard is in fact definitionally a hazardous recreational activity under the code.Nonetheless, the district may have an obligation to its students – probably even its trespassing students – under Constantinescu v. Conejo Valley Unified School District, (1993) 16 Cal.App.4th 1466. It cites with approval the California Law Revision Committee’s statement that “where it is reasonably foreseeable that persons to whom a lower standard of care is applicable – such as children – may be exposed to a substantial risk of injury from the property, the public entity should be required to take reasonable precautions,” offering an example: “Thus, a public entity may be expected to fence a swimming pool[.]”Here, there was fencing, but the question of the adequacy of the fencing is addressed in the Second Amended Complaint. It also alleges that a school function, a football game was in progress. These allegations defeat the demurrer. Defendant is ordered to file an answer within 15 days of this ruling.Defendant asserts that Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492 renders Plaintiff a trespasser ineligible to sue. But Bartell specifically uses the language that this exemption applies when the student is on the premises “apart from school-related activities and functions which require persons to be on school grounds.Defendant aptly cites to Bartell at 499-500: Even though a harm may be foreseeable, as under plaintiffs' pleadings it was here, a concomitant duty to forestall and prevent the harm does not automatically follow. (Internal Citations Omitted.) Rather, the question is whether the risk of harm is sufficiently high and the amount of activity needed to protect against harm sufficiently low to bring the duty into existence, a threshold issue of law which requires the court to consider such additional factors as the burdensomeness of the duty on defendant, the closeness of the relationship between defendant's conduct and plaintiff's injury, the moral blame attached to defendant's conduct and plaintiff's injury, and the prevention of future harm.Here, such an analysis is different than Bartell’s, which would have required a full lockdown. In this case, prevention would have involved having a person present or fixing known issues prior to the swimming accident. If there had not been a simultaneous event going on, Defendant would have been immune.Defendant cites to cases and asserts “The Courts are very clear that the duty of a school to its students ends after school hours unless it is a school sponsored athletic practice.” This is not at all clear to this particular Court. Consider a simple case where a drama club production is put on in the school auditorium after hours. The auditorium floor has some standing slick spot where a student – whether in or out of the club - trips and falls. It seems unlikely that this is exempted.This is a close case at the demurrer stage, but I find that Defendant is not facially exempted from liability based on Plaintiff’s pleadings. Defendant is to file an Answer within 15 days. The matter is set for Case Management Conference on November 18, 2024, at 2:00 p.m. in Department 21.

Ruling

HERNANDEZ vs LOPEZ

Aug 29, 2024 |CVRI2402735

Motion to Strike Complaint on Complaintfor Auto (Over $35,000) of FABIANCVRI2402735 HERNANDEZ vs LOPEZHERNANDEZ by ANTHONY DANIELLOPEZTentative Ruling:This action arises from a motor vehicle accident that occurred on 6/18/2022, wherein Plaintiff,who was a passenger in a vehicle driven by Defendant, sustained injuries when Defendant’svehicle hit a hydrant, struck a fence and overturned multiple times. (Compl. 5.) Plaintiff allegesthat, at the time of the accident, Defendant was driving at approximately 60 mph in a 45-mphzone, was ignoring traffic control signs, and was intoxicated with a blood alcohol level exceedingthe legal limit. (Id. at 6.) He alleges that Defendant’s actions were done with absolute andconscious disregard and callous indifference to the rights and safety of other persons, and thatDefendant knowingly and willingly became intoxicated with the full knowledge that his intoxicationrendered him physically unfit to operate a motor vehicle safely. (Id.)On 5/15/2024, Plaintiff filed a Complaint against Defendant, alleging (1) motor vehicle, (2) generalnegligence, and (3) punitive and exemplary damages.***Defendant now moves to strike punitive damages from the Complaint on the grounds that it failsto set forth facts sufficient to support a claim for punitive damages. Specifically, Defendant arguesthat the Complaint fails to allege facts sufficient to constitute malice or oppression. He furtherargues that Plaintiff’s allegations as to his intoxication is insufficient to support an award of punitivedamages.In opposition, Plaintiff argues that his claim for punitive damages has been properly pled, and thatless particularity is required where Defendant has superior knowledge of the facts and is put onnotice through specific allegations of the basis for such claim. He further argues that hisallegations regarding Defendant’s conduct is sufficient to allege malice in accordance withCalifornia law and to provide Defendant with notice of the issues sufficient for him to prepare adefense.In reply, Defendant argues that Plaintiff failed to properly serve him with the opposition, and thus,should not be considered. He further argues that the Complaint and opposition do not allege anyfacts that support a finding of malice against him. He thus asks the Court to grant the motion, andstrike Plaintiff’s claim for punitive damages without leave to amend. By presenting a substantivereply, Defendant waived any defect or irregularity in services, and thus, the Court will exercise itsdiscretion to consider the opposition. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)Analysis1. Meet and ConferDefendant satisfied his obligation to meet and confer via telephone in accordance with CCP §435.5(a), and filed an appropriate declaration in accordance with CCP § 435.5(a)(3). (SeeBarcena Decl. ¶ 3 [stating that the parties’ counsel met and conferred over the phone on7/25/2024, but they were not able to reach an agreement].)2. Motion to StrikeThe court may, upon a motion made pursuant to CCP § 435: (a) Strike out any irrelevant, false,or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawnor filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.)On a motion to strike, as with a demurrer, the court reads the allegations of the complaint as awhole, and accepts the facts alleged as true. (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253,1255.) A motion to strike is the proper vehicle to attack a punitive damages claim where the factsalleged do not rise to the level of fraud, malice or oppression. (CCP §§ 435–436; Turman v.Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) If the defect in the pleading iscorrectible, leave to amend should be granted. (Grieves v. Sup. Ct. (1984) 157 Cal.App.3d 159,168.)3. Punitive DamagesTo support a demand for punitive damages under Civ. Code § 3294, a plaintiff must plead andprove facts demonstrating malice, oppression, or fraud as defined in Civ. Code § 3294(c). “Malice”is defined as “conduct which is intended by the defendant to cause injury to the plaintiff ordespicable conduct which is carried on by the defendant with a willful and conscious disregard ofthe rights or safety of others,” while “oppression” is defined as “despicable conduct that subjectsa person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code§§ 3294(c)(1)–(2).) Despicable conduct is conduct that is base, vile or contemptible. (CollegeHospital, Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 725.)The mere allegation that an intentional tort was committed is not sufficient to warrant an award ofpunitive damages. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 894.) “There must be circ*mstancesof aggravation or outrage, such as spite or malice or a fraudulent or evil motive on the part ofdefendant, or such conscious and deliberate disregard for the interests of others that his conductmay be called willful or wonton.” (Id. at 894–95 [citation and internal quotation marks omitted];see also G.D. Searle & Co. v. Sup. Ct. (1975) 49 Cal.App.2d 22, 29; Smith v. Sup. Ct. (1992) 10Cal.App.4th 1033, 1041–42.) Thus, punitive damages may be recovered for a non-intentional tortwhere a plaintiff pleads and proves that the defendant acted with “conscious disregard of therights and safety of others.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299[quoting Gawara v. United States Brass Corp. (1998) 63 Cal.App.4th 1341, 1361].) “In order tojustify an award of punitive damages on this basis, the plaintiff must establish that the defendantwas aware of the probable dangerous consequences of his conduct, and that he willfully anddeliberately failed to avoid those consequences.” (Taylor, supra, 24 Cal.3d at 895–96.)Plaintiff in the present case allege the following: at the time of the accident, Defendant was drivinga vehicle on the public streets and highways at an excessively high speed above the speed limit,ignoring traffic control signs, and driving while intoxicated with a blood alcohol level exceedingthe legal limit; specifically, Defendant sped down a two-lane roadway at speed exceeding 60 mphin a 45-mph zone, hit a hydrant, struck a fence and overturned multiple times, causing physicalharm to Plaintiff, including spinal paralysis; all of this was done with absolute and consciousdisregard and callous indifference to the rights and safety of other persons on public streets andhighways; Defendant knowingly and willingly became intoxicated with the full knowledge that hisintoxication rendered him physically unfit to operate a motor vehicle safely; the Riverside CountyDistrict Attorney charged Defendant with a violation of Veh. Code § 23152(b), for driving with ablood alcohol level exceeding the legal limit; and Defendant was convicted of driving under theinfluence arising out of this case. (Compl. 6.)While general allegations of intoxication without more do not adequately support a demand forpunitive damages (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 88–90), the allegations aboveare sufficient under Taylor to state a claim for punitive damages. Accordingly, Defendant’s motionto strike is denied.Summary:DENY Defendant’s motion to strike Plaintiff’s allegations and prayer for punitive damages.

Ruling

FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)

Aug 27, 2024 |FCS057573

FCS057573Motions for ContemptTENTATIVE RULING:Petitioner’s “motions” for contempt are denied.No affidavit of the facts constituting any contempt has been presented to thecourt. The filing of a sufficient affidavit is a jurisdictional prerequisite to acontempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court(1951) 103 Cal.App.2d 512, 541.) Page 1 of 1

Ruling

JOSHUA MICHAEL FURMAN VS SHUM YIN WU

Case Number: 23STCV30525 Hearing Date: August 28, 2024 Dept: 29 Furman v. Wu 23STCV30525 Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Devin A. Cutting Tentative The motion is granted. Background On December 14, 2023, Joshua Michael Furman (Plaintiff) filed a complaint against Shum Yin Wu (Defendant) for motor vehicle negligence cause of action arising out of an automobile accident occurring on December 31, 2021. On June 5, 2024, Devin A. Cutting of Bish & Cutting, APC (Counsel) filed this motion to be relieved as counsel for Plaintiff. No opposition has been filed. The hearing on this motion was continued from July 22 to August 28. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.1362(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) Discussion Counsel has filed the Notice, Declaration, and Order to be Relieved as Counsel for Plaintiff. In the Declaration, Counsel contends there has been a breakdown of the attorney-client relationship. Counsel has served Plaintiff by mail, and confirmed Clients address within 30 days of filing this motion by telephone. All substantive and procedural requirements are satisfied. The Court finds that due to the breakdown of the attorney-client relationship, Counsel has established good cause to be relieved as counsel. Accordingly, the motion is GRANTED. Conclusion The motion to be relieved as counsel is GRANTED. The order is effective upon filing with the Court a proof of service showing service of the signed order (not just the minute order) on the clients. Moving counsel to give notice.

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