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Ruling
HENRIETTA E. ANAKWENZE VS YEIRA LISBETH VILLA, ET AL.
Oct 03, 2024 |Shannon M Gerhart |24PSCV00253
Case Number: 24PSCV00253 Hearing Date: October 3, 2024 Dept: H Anakwenze v. Villa, et al., Case No. 24PSCV00253 ORDER ON PLAINTIFFS MOTION TO COMPEL DEPOSITION Plaintiff Henrietta Anakwenzes unopposed Motion to Compel the Deposition of Yeira Lisbeth Villa is GRANTED. Villa is ordered to provide Plaintiff forthwith with three dates Villa is available for deposition within the twenty-day period from the date of the notice of ruling. Sanctions are imposed in the reduced amount of $760.00 and are payable within 20 days from the date of the notice of ruling. Background Plaintiff Henrietta E. Anakwenze (Plaintiff) alleges that she sustained injuries and damages in a January 20, 2022 motor vehicle accident. On August 20, 2024, Plaintiff filed a Second Amended Complaint (the Operative Complaint), asserting a motor vehicle cause of action against Yeira Lisbeth Villa (Villa), Cuberto Munoz (together, Defendants), and Does 1-10. A Case Management Conference is set for October 30, 2024. Pending before the Court is Plaintiffs motion to compel Villas deposition. Legal Standard If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection . . ., fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) A motion to compel deposition shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b)(2).) A court shall impose monetary sanctions if the motion to compel is granted, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450, subd. (g)(1).) Discussion Plaintiff moves the Court for an order compelling Villa to submit to deposition. Plaintiff also seeks sanctions against Villa and her attorneys of record in the amount of $3,060.00. Plaintiffs counsel Emmanuel C. Akudinobi (Akudinobi) represents as follows: On June 17, 2024, Plaintiff served Villa with a Notice of Deposition, wherein Villas deposition was scheduled for July 2, 2024. (Akudinobi Decl., ¶ 2, Exh. A.) On June 27, 2024, Villa served an objection thereto, advising that she was not available for her deposition at the date and time scheduled and requesting that Plaintiffs counsel confer regarding a mutually agreeable deposition date, time and location. (Id., ¶ 3, Exh. B.) Akudinobi subsequently reached out to coordinate a time for Villas deposition; however, Villas counsel has taken the position that Villa will be made available [o]nce the pleadings are in final form and [Villa] formally appears in the case. (Id., ¶ 5, Exh. D.) Villas position is not well taken. The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant . . . (Code Civ. Proc., § 2025.210, subd. (b).) Court records reflect that Villa was personally served with the summons and complaint on May 17, 2024. Villa, in opposition, also asserts that any deposition is premature because the case will more likely than not be dismissed after her demurrer to the Operative Complaint is heard. (Opp., 2:19-21.) The Court declines to surmise what the outcome of that future hearing will be; regardless, it does not appear to the Court that Villa submitting to a deposition (which does not involve the concurrent production of any documents) under the factual scenario presented here would constitute an unnecessary and burdensome additional expense as contemplated in Villas cited case of Terminals Equipment Co. v. City and County of San Francisco (1990) 221 Cal.App.3d 234, 247. The motion is granted. Villa is ordered to provide Plaintiff forthwith with three dates Villa is available for deposition within the twenty-day period from the date of the notice of ruling. Turning to Plaintiffs request for sanctions, Plaintiffs seeks sanctions against Villa and her attorneys of record in the amount of $3,600.00 [calculated as follows: 6 hours preparing motion and reply and appearing for the hearing at $500.00/hour, plus $60.00 filing fee]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorneys fees and costs incurred for the work performed in connection with the pending motion is $760.00 (i.e., 2 hours attorney time at $350.00/hour, plus $60.00 filing fee). Sanctions are payable within 20 days from the date of the notice of ruling.
Ruling
Christensen, Michael et al vs. Nicole Lopez Seminario M.D.
Oct 14, 2024 |S-CV-0052406
S-CV-0052406 Christensen, Michael et al vs. Nicole Seminario M.D.** NOTE: telephonic appearances are strongly encouragedNOTE: No party has paid advance jury fees pursuant to CCP § 631.Trial Date & Length: 02/09/26 5 day Jury Trial(Please contact Master Calendar (916) 408-6061 on the business dayprior to the scheduled trial date to find courtroom availability.)Civil Trial Conference: 01/30/26(heard at 8:30 am in Dept. 3)Mandatory Settlement Conference: 01/23/26(heard at 8:30am; report to Jury Services)NO APPEARANCE REQUIRED UNLESS REQUESTED BY PARTY BY 3PM ONTHE THURSDAY PRIOR TO HEARING DATE. REQUESTS FORAPPEARANCE MUST BE FAXED TO THE CIVIL DEPARTMENT, ATTN: CMCCLERK AT (916) 408-6275, AND TO ALL OPPOSING ATTORNEYS ANDPARTIES WITHOUT ATTORNEYS BY 3:00 PM THE THURSDAY PRIOR TOTHE CASE MANAGEMENT DATE. SEE LOCAL RULE 20.1.7.
Ruling
BRANDEN MACOR, AN INDIVIDUAL VS BIRD RIDES, INC., A DELAWARE CORPORATION, ET AL.
Oct 02, 2024 |22STCV22072
Case Number: 22STCV22072 Hearing Date: October 2, 2024 Dept: 27 Hon. Lee S. Arian, Dept 27 DEMURRER Hearing Date: 10/2/24 CASE NO./NAME: 22STCV22072 BRANDEN MACOR v. CITY OF WEST HOLLYWOOD et al. Moving Party: Defendant City of West Hollywood Responding Party: Unopposed Notice: Sufficient Ruling: DEMURRER IS SUSTAINED WITH LEAVE TO AMEND BACKGROUND On July 8, 2022, Plaintiff filed the present complaint for dangerous condition of public property, premises liability, strict products liability, and negligence against Bird Rides, Inc., City of West Hollywood, County of Los Angeles, California Department of Transportation, Maria V. Montgomery, the MVM Evergreen Trust, and FSM Partnership. The only cause of action against the City of West Hollywood is for dangerous condition of public property. Plaintiff Branden Macor alleges that on or around July 13, 2021, he was injured while riding a Bird scooter near 8600 Sunset Boulevard, West Hollywood, CA 90069. Defendant City of West Hollywood now demurs to the present complaint on the basis that the complaint fails to allege that Plaintiff presented a government claim to the City of West Hollywood prior to filing suit and the complaint fails to allege facts with particularity as required for causes of action against public entities. LEGAL STANDARD A demurrer may be made to a complaint or cross-complaint on the basis that the court does not have jurisdiction over the subject matter of the cause of action in the pleading. (Code Civ. Proc., § 430.10, subd. (a); Buss v. J.O. Martin Co. (1966) 241 Cal.App.2d 123, 133; Davis v. Southern Cal. Edison Co. (2015) 236 Cal.App.4th 619, 636.) A court may lack subject matter jurisdiction over a cause of action for various reasons, including: a statutory prerequisite to bringing suit has not been satisfied. (Hu v. Silgan Containers Corp. (1999) 70 Cal.App.4th 1261) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law. (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].) Pursuant to CCP § 430.41, before filing a demurrer, the demurring party shall meet and confer in person, by telephone, & with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41). ANALYSIS On December 28, 2023, defense counsel contacted Plaintiff's counsel to discuss deficiencies in the complaint. Plaintiff's counsel granted multiple extensions to continue discussions and avoid a demurrer, with the final extension on May 10, 2024. Despite ongoing discussions, the parties could not resolve the issues. The meet and confer requirement of CCP § 430.41 is satisfied. Claims to Public Entity Defendant alleges that Plaintiff has not shown that the Court has subject matter jurisdiction because the complaint does not include allegations of compliance with Government Code section 945.4. Specifically, Plaintiff did not state that he presented a claim to West Hollywood before filing this lawsuit. Under Govt. Code § 945.4, failing to present a government claim to a public entity bars a plaintiff from filing a lawsuit against that entity. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 737-38.) The Complaint states that on January 10, 2022, Plaintiff filed three separate Government Tort Claims against the City of Los Angeles, County of Los Angeles, and the California Department of Transportation. However, it does not allege whether Plaintiff filed a claim with the City of West Hollywood, whether the city rejected Plaintiffs claims, or whether Plaintiff filed the present complaint timely after the rejection. Therefore, the Complaint fails to allege sufficient facts to sustain a cause of action for dangerous condition of public property against the City of West Hollywood. Thus, the demurrer is sustained on this basis with leave to amend, as there is a possibility for Plaintiff to cure this defect by alleging whether or not he filed a government claim with City of West Hollywood. Allegations Not Stated with Particularity To state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity." (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) Defendant argues that the Complaint lacks specific and concrete details as required for claims against public entities. Defendant argues that the allegation in paragraph 22 of the Complaint does not make it clear whether the incident happened on a sidewalk or walkway and whether the sidewalk or walkway was uneven, broken, or deteriorated. The Court agrees with Defendant that Plaintiff needs to specify whether the incident occurred on a sidewalk or walkway. This distinction is necessary to pinpoint the location of the displacement and is relevant to the issue of control. Public entities typically own and control sidewalks. However, the ownership and control of walkways are not as clear-cut and can vary depending on the specific location and context. Identifying whether the incident took place on a sidewalk or walkway will help determine the appropriate entity responsible for maintaining the area The Court finds the terms "uneven," "broken," and "deteriorated" to be synonymous and a sufficient description of the dangerous condition, providing Defendant with enough information to locate and investigate the displacement. Defendant further argues that paragraph 25 of the Complaint, which states that the scooter Plaintiff was riding, owned and/or manufactured by Defendants Bird and/or Segway, "malfunctioned and/or failed to slow down and/or stop thereby causing Plaintiff to be propelled off the scooter and fall onto the pavement and/or road," is similarly vague. The Court agrees; Plaintiff needs to state whether he fell due to hitting the displacement or because of the malfunctioning of the scooter. The complaint does not state the cause of Plaintiffs fall with particularity. In paragraph 33, Defendant asserts an alternative theory of liability, stating, "such that an unknown object and/or construction debris were allowed to exist and be left in disrepair. Defendants failed to barricade the area and/or to warn of the dangerous condition, rendering the area of said premises dangerous and resulting in serious bodily injury to the Plaintiff." Plaintiff needs to state with particularity the cause of his fall, whether it was due to striking an uneven displacement or because of the debris. If Plaintiff fell in part due to the debris, Plaintiff needs to allege how the debris led to the fall, which he has not in the Complaint. Defendant finally argues that in paragraphs 33, 44, and 45 of the Complaint, Plaintiff alleges that three separate public entities and various private entities own/control the location of the incident and that Plaintiff needs to specify which entity actually controls the location at issue. The Court disagrees. Under the doctrine of less particularity, less specificity is required in pleading matters of which the defendant has superior knowledge (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028). A plaintiff need not particularize matters presumptively within the knowledge of the demurring defendant. (Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 858). This includes matters such as a defendant's knowledge, notice, or intent. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550). A complaint will be upheld so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. (Id.). Plaintiff has already alleged that the incident occurred near 8600 Sunset Boulevard, West Hollywood, CA 90069, which is sufficient for Defendants to prepare a defense. Which of the public or private entities own, control, or maintain the sidewalk is a matter within Defendants' superior knowledge, and a result, the Plaintiff has met this reduced pleading standard. In sum, Defendant failed to state every material fact with particularity, especially whether the incident occurred on a sidewalk or a walkway, and what caused Plaintiff to fall, whether it was the debris, displacement, or malfunctioning of the scooter. Thus, the demurrer is sustained on these bases with leave to amend, as the Court finds it possible for Plaintiff to cure the defects in the Complaint if leave to amend is granted. Plaintiff is grated leave to amend within 20 days. PLEASE TAKE NOTICE: If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Ruling
Burke, James vs. Wolfe Creek Care Center et al
Oct 14, 2024 |S-CV-0051441
S-CV-0051441 Burke, James vs. Wolfe Creek Care Center et al** NOTE: telephonic appearances are strongly encouragedAppearance required. Complaint is not at issue. Need responsive pleading,default or dismissal as to Defendant(s): Foremost Healthcare Properties, Inc.
Ruling
Wycoff, Monique vs. Coleman, Lucian et al
Oct 14, 2024 |S-CV-0052346
S-CV-0052346 Wycoff, Monique vs. Coleman, Lucian et alDropped. The court sets an OSC re: Arbitration 2/24/25 at 3:30pm in Dept. 40.
Ruling
HENRY YEE VS GOLDBOURN PHILLIP TRAPP, JR, ET AL.
Oct 02, 2024 |24TRCV01345
Case Number: 24TRCV01345 Hearing Date: October 2, 2024 Dept: 8 Tentative Ruling ¿¿ HEARING DATE: October 2, 2024 ¿¿ CASE NUMBER: 24TRCV01345 ¿¿ CASE NAME: HENRY YEE v. GOLDBOURN PHILLIP TRAPP, JR., et al. ¿¿ MOVING PARTIES: Specially Appearing Defendant Loya Casualty Insurance Company (erroneously sued as Fred Loya Insurance Agency, Inc. (Doe 1)) ¿¿ RESPONDING PARTY: Plaintiff Henry Yee ¿¿ TRIAL DATE: None ¿¿ MOTION:¿ Demurrer ¿ Tentative Ruling: Sustain with leave to amend, and continue CMC from its current 10/3/24 date approximately 75 days I. BACKGROUND¿¿ ¿¿ A. Factual¿¿ In this personal injury lawsuit arising from an automobile collision, Plaintiff Henry Yee (Plaintiff) sues Defendants Goldbourn Phillip Trapp, Jr. (Trapp), United States Postal Service (UPS), and Precious Evans (Evans), alleging the following. On April 28, 2022, Plaintiff was driving his vehicle when he was rear-ended by a vehicle driven by Evans, who claimed that she was struck by a vehicle driven by Trapp (a UPS employee), who was negligently driving a UPS vehicle. As a result of the impact, Plaintiff allegedly sustained property damage to his vehicle as well as personal injuries to his head, neck, back, arms, and legs. He is claiming general and special damages above $100,000. B. Procedural ¿ On April 22, 2024, Plaintiff filed this lawsuit against Trapp, UPS, Evans, and Does 1 to 10, asserting causes of action for (1) motor vehicle negligence and (2) general negligence. On July 23, 2024, Plaintiff filed an Amended to Complaint substituting Fred Loya Insurance Agency, Inc. for the defendant sued fictitiously as Doe 1. On August 20, 2024, Plaintiff filed a Proof of Service of Summons on Fred Loya Insurance Agency, Inc. On August 29, 2024, Loya Casualty Insurance Company (Loya Casualty), claiming that it was erroneously sued as Fred Loya Insurance Agency, Inc., filed the instant demurrer. On September 24, 2024, Plaintiff filed his opposition. No reply has been filed as of the date of this tentative ruling. ¿¿ ¿III. ANALYSIS¿ A. Legal Standard A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiffs proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿ ¿¿ If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 6.) B. Meet and Confer Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. § 430.41, subd. (a).) Here, Loya Casualty has satisfied the meet and confer requirement. (Demurrer, Declaration of Christine E. Urbano, ¶ 4.) B. Discussion The Complaint asserts the first cause of action for motor vehicle negligence and second cause of action for general negligence against Loya Casualty. Loya Casualty has filed a demurrer to those negligence claims, arguing that Plaintiff failed to join the proper parties. (Notice of Demurrer, p. 2:13-23; Code Civ. Proc., § 430.10, subd. (d) [stating that a party may object to a complaint by filing a demurrer on the ground that [t]here is a defect or misjoinder of parties].) However, the demurrer does not specify which party Plaintiff failed to join, or even explain the basis for its joinder argument. (See Van Zant v. Apple Inc. (2014) 229 Cal.App.4th 965, 973 (Van Zant) [Code of Civil Procedure section 389 (section 389) governs joinder of parties]; Pinto Lake MHP LLC v. County of Santa Cruz (2020) 56 Cal.App.5th 1006 [explaining that Section 389, subdivision (a) (Section 389(a)) defines persons who should be joined in a lawsuit if possible and are thus deemed necessary to the action]; Countrywide Home Loans, Inc. v. Superior Court (1999) 69 Cal.App.4th 785, 793 [pointing out that under Section 389(a)(1), parties should be joined as defendants if, in their absence, complete relief cannot be accorded among those already parties. [Citation]]; Van Zant, supra, 229 Cal.App.4th at p. 974975 [explaining that for a party to be deemed necessary under Section 389(a)(2), the absent party must claim an interest relating to the subject of the action].) Therefore, the Court finds the joinder argument unpersuasive. However, Loya Casualty also demurs to the negligence claims, arguing that Plaintiff failed to state sufficient facts against Loya for the following reasons. First, Plaintiff did not plead any facts to support his first cause of action for motor vehicle negligence. (Demurrer, p. 6:12-13.) Second, with regard to the second cause of action for general negligent driving, & Defendant Loya as a corporation cannot drive a vehicle &. (Demurrer, p. 6:13-16 [italics removed].) Lastly, Plaintiff cannot not sue Loya Casualty, an insurance company, for direct liability based on the contract that the defendant had with its insured. (Demurrer, pp. 6:23-7:4.) In opposition, Plaintiff argues that he has a valid claim against Loya Casualty because (1) Loya Casualty was Defendant Evans insurance company at the time of the motor vehicle collision and (2) Loya Casualty denied Plaintiffs insurance claim without investigation. (Opposition, p. 3:7-13.) He asserts that Loya Casualty owed Evans the duty to provide insurance coverage and provide Evans with legal representation. (Opposition, p. 4:8-11.) He also asserts that Loya Casualty breached its duty to Evans by not providing representation in the investigation and/or evaluation of the automobile claim. Furthermore, they breach[ed] their duty to Plaintiff by not providing legal representation to Defendant Evans. (Opposition, p. 4:14-18.) As a result of the breach of that duty, [Plaintiff] incurred damages: medical expenses, property damage, loss of income and general pain and suffering. (Opposition, p. 4:18-21.) Plaintiff justifiably relied upon the statements of [Loya Casualty], when in fact they had no intention of investigating and providing counsel to their insured: [Evans]. (Opposition, p. 5:15-18.) However, nowhere in the Complaint does Plaintiff allege he is suing Loya Casualty because the defendant was Evans insurance company at the time of the collision. As the Demurrer points out, [g]enerally an insurer may not be joined as a party-defendant in the underlying action against the insured by the injured third party. The fact that an insurer has agreed to indemnify the insured for any judgment rendered in the action does not make the insurer a proper party. Liability insurance is not a contract for the benefit of the injured party so as to allow it to sue the insurer directly. [Citation.] [Citations.] (Royal Indemnity Co. v. United Enterprises, Inc. (2008) 162 Cal.App.4th 194, 205 [emphasis added] (Royal Indemnity).) Therefore, a third party who is not in privity of contract with the liability insurer (nor named as an express beneficiary of the policy), & would normally lack standing to sue the insurer to resolve coverage questions about a tortfeasor, such as where there has been a failure to settle a claim under the policy. (Ibid. [emphasis added].) There are exceptions to the above rule that a third party generally does not have standing to sue an insurer. (See Royal Indemnity, supra, 162 Cal.App.4th at pp. 205-207 [explaining that those exceptions include (1) where the injured third party is a judgment creditor, who has standing as such to seek payment under the insurance policy, (2) where the claimant is an assignee of the insureds claims, (3) if the liability insurance also provides medical payments coverage for anyone injured by the insured, the injured party may have a direct claim against the insurer for his or her medical expenses. I.e., the injured party is treated as an additional insured as to the medical payments coverage, (4) where the insurer itself is seeking to obtain declaratory relief against a third party claimant &., (5) if a liability insurer joins the injured third party as codefendant in a declaratory relief action to determine coverage, the third party may raise coverage issues in that action, rather than waiting until after a judgment is obtained and suing as judgment creditor, (6) when the insurer is allowed to take over in litigation if its insured is not defending an action, to avoid harm to the insurer].) Here, however, the Complaint has not alleged which exception, if any, applies in this case such that Plaintiff has standing to sue Loya Casualty for the companys alleged refusal to investigate Plaintiffs claims or provide Evans with legal representation. Therefore, the Court agrees that the Complaint has failed to state facts sufficient to constitute a cause of action against Loya Casualty. Accordingly, the demurrer is sustained, with leave to amend. IV. CONCLUSION The Demurrer is SUSTAINED, with leave to amend. If Plaintiff elects to amend to address the concerns raised by this Demurrer, he shall file and serve his first amended complaint within 30 days of this ruling. Loya Casualty Insurance Company to give notice of the Courts ruling.
Ruling
EVAN MCNIEL VS NORTHWEST INDUSTRIAL CENTER, LLC
Oct 03, 2024 |20STCV38882
Case Number: 20STCV38882 Hearing Date: October 3, 2024 Dept: T Motion for Determination of Good Faith Settlement Moving Party: Defendants Best American Toxicology Testing Services LLC dba BATTS Laboratories (Doe 2); Defendant in Intervention Best American Toxicology Testing Services LLC Responding Party: N/A Tentative Ruling: GRANT BACKGROUND This is a premises liability case. Plaintiff Evan McNiel (Plaintiff) alleges that on October 15, 2018 he fell through a T bar ceiling to the floor while working for Cantrell Aire at a property owned by Defendant Northwest Industrial Center. Defendant Best American Toxicology Testing Services (BATTS) named as Doe 2 to the Complaint had leased the premises from Northwest Industrial Center and contracted with Cantrell Aire for the duct work. BATTS was later named as a Defendant-in-Intervention in a Complaint-in-Intervention filed by Benchmark Insurance, the workers compensation carrier for Cantrell Aire which subrogates for payments it made to Plaintiff. Plaintiff later named Defendant The Bell Organization Ltd., dba Associates Material Handling, as Doe 5 (AMH). (Motion for Determination of Good Faith Settlement, p. 4.) On August 22, 2024 the parties in the case including Plaintiff, BATTS and AMH, attended a mediation. Plaintiff claimed multiple injuries, with medical bills paid by Benchmark amounting to approximately $60,000, and disability payments of approximately $44,000. At the mediation, BATTS, Plaintiff, and Benchmark reached a tentative settlement of $75,000 split evenly between Plaintiff and Benchmark conditioned on the granting of a good faith settlement motion. The settlement was confirmed on August 27, 2024. BATTS requested a stipulation for good faith settlement from AMH, which refused. MOVING PARTY POSITION BATTS argues the Court should grant the motion for determination of good faith settlement based on the settlement, contending the settlement was made in good faith after the recent completion of mediation and represents triple BATTS potential maximum liability, and far more than BATTS would owe if it were to prevail on its Privette defense. (Privette v. Superior Court (1993) 5 Cal. 4th 689.) BATTS contends there is no collusion, fraud, or tortious conduct aimed at the non-settling Defendants. OPPOSITION No opposition was filed in response to this motion. ANALYSIS I. Motion for Determination of Good Faith Settlement Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. Upon a showing of good cause, the court may shorten the time for giving the required notice to permit the determination of the issue to be made before the commencement of the trial of the action, or before the verdict or judgment if settlement is made after the trial has commenced. (Code Civ. Proc., § 877.6, subd. (a).) [T]he intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. [Citation.] Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. [A] defendant's settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant's liability to be. [Citation.] The party asserting the lack of good faith, who has the burden of proof on that issue [citation], should be permitted to demonstrate, if he can, that the settlement is so far out of the ballpark in relation to these factors as to be inconsistent with the equitable objectives of the statute. (Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499-500 (Tech-Bilt).) The Court finds BATTS motion is well-supported and construes the lack of opposition from the other parties to this action as a tacit admission that the motion is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motionand Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶¿9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]]) The Court also notes the lack of opposition because there is no argument or evidence this settlement was made in bad faith, and the party asserting bad faith bears the burden of proof. (Tech-Bilt, supra, 38 Cal.3d at pp. 499-500.) Additionally, there is no indication that this settlement was the result of collusion, fraud, or tortious conduct aimed at any other party. Moreover, the Court finds the amount of $75,000.00 to be fair and reasonable considering the contested issues between the parties with respect to BATTS liability, the likelihood that BATTS would be found not liable, and the damages associated with Plaintiffs injuries. Having no reason to conclude otherwise, the Court therefore finds that BATTS motion represents a good faith settlement. RULING The Court GRANTS BATTS motion for determination of good faith settlement.
Ruling
Oct 04, 2024 |24STCV12187
Case Number: 24STCV12187 Hearing Date: October 4, 2024 Dept: 17 Superior Court of California County of Los Angeles DEPARTMENT 17 TENTATIVE RULING ARNO PATRICK KUIGOUA, vs. THE MATTHEW L. TUCK & ASSOCIATES, et al. Case No.: 24STCV12187 Hearing Date: October 4, 2024 Defendants demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND. On 5/13/2024, in propria persona Plaintiff Arno Patrick Kuigoua (Plaintiff) filed suit against the Matthew L. Tuck & Associates, PLC dba Appellate Law Firm, Aaron Myers, and Matthew L. Tuck. On 8/19/2024, Defendants demurred to Plaintiffs Complaint. Discussion Defendants argue that Plaintiffs Complaint alleges improper claims that are barred and cannot be asserted in this action pursuant to the release in a contractually binding Memorandum of Understanding (MOU) Plaintiff agreed to and signed on February 20, 2024. In support, Defendants submitted evidence that: - On February 20, 2024, the parties attended a virtual mediation with the Honorable Linda Quinn (Ret.). Plaintiff and his attorney as well a representative for Defendants and Defendants attorney of record attended. At the end of the day, the Parties reached a settlement. To memorialize the essential terms of the agreement, the Parties circulated and signed a Memorandum of Understanding (MOU). The MOU first sentence states [t]he parties understand that formal documents remain to be drafted and signed, but consider the following to be binding and admissible to prove its contents as to the settlement of the individual pre-litigation action, Arno Kuigoua v. Matthew Tuck & Associates PC and Aaron Myers. - Plaintiffs counsel advised Plaintiff did not have printer/scanner and would instead go to a UPS store to sign and return a fully executed MOU. In the meantime, Plaintiff included a separate sheet of paper attached as the third page to the MOU in Plaintiffs handwriting that states I, Arno Kuigoua, hereby agree to the memorandum of understanding prepared today in the course of mediation with Judge Linda Quinn. It is signed by Plaintiff and dated February 20, 2024. Therefore, Plaintiff has agreed to be bound by the terms of the MOU which include a release of all claims, known and unknown, against Defendants. (Grasu Decl.) After review, the Court finds Plaintiffs claim here to be barred. When parties intend that an agreement be binding, the fact that a more formal agreement must be prepared and executed does not alter the validity of the agreement. (J.B.B. Inv. Partners Ltd. v. Fair, 37 CA5th 1, 12 (2019); Blix St. Records, Inc. v. Cassidy, 191 CA4th 39, 48 (2010). If the parties definitely agree on all of the essential terms of an agreement in an informal writing, that agreement may constitute an enforceable contract, even though the parties intend to execute a formal writing later. (CSAA Ins. Exch. v. Hodroj, 72 CA5th 272, 277 (2021); Harris v. Rudin, Richman & Appel, 74 CA4th 299, 3069 (1999). Here, Plaintiff has not alleged any facts which could show that material terms were missing from the MOU or that could sow he did not intend to agree to be bound by the MOU terms. Rather, Plaintiffs Complaint amounts to a re-litigation of the very same issues mediated, and resolved, by the MOU. Based on the foregoing, Defendants demurrer is sustained, without leave to amend. It is so ordered. Dated: October , 2024 Hon. Jon R. Takasugi Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. For more information, please contact the court clerk at (213) 633-0517.
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