Violetta Mkrtychan, Et Al. Vs Jacqueline Torres Hernandez, Et Al.

Case Number: 23CHCV02301 Hearing Date: July 18, 2024 Dept: F47 Dept. F47 Date: 7/18/24 Case #23CHCV02301 DEMURRER & MOTION TO STRIKE TO THE FIRST AMENDED COMPLAINT Demurrer & Motion to Strike filed on 5/28/24. MOVING PARTY: Defendants Pacifica SL Santa Clarita LLC dba Pacifica Senior Living Santa Clarita erroneously sued as Pacifica Senior Living aka Pacifica Senior Living Newhall aka Pacifica Senior Living Santa Clarita; Pacifica Living Management LLC; W Lyons LLC; Pacifica Companies LLC dba Pacifica Senior Living Santa Clarita RESPONDING PARTY: Plaintiff Rose Adele Cavanagh NOTICE: ok Demurrer is to the 1 st , 2 nd , 4 th and 5 th causes of action in the First Amended Complaint: 1. Dependent and Elder Abuse/Neglect 2. Willful Misconduct 3. Negligence 4. Unfair Business Practices (Business & Professions Code 17200, et seq.) 5. Battery RELIEF REQUESTED IN MOTION TO STRIKE : An order striking the following portions of the First Amended Complaint: Page 18, Lines 15-19: 3. For punitive damages (also known as exemplary damages), according to proof; 4. For attorneys fees and costs, according to proof, as permitted by Welfare & Institutions Code §15657; 5. For restitutionary disgorgement pursuant to Bus. & Prof. Code §§ 17200, et seq.; 6. For treble damages pursuant to Civil Cod §3345 RULING : The demurrer is sustained and the motion to strike is granted, both, with 30 days leave to amend. SUMMARY OF FACTS & PROCEDURAL HISTORY This action arises from the care and services provided to Plaintiff Rose Adele Cavanagh (Plaintiff) beginning on 7/24/20 while she was a resident at Defendant Pacifica Senior Living Santa Clarita (the Facility), a residential care facility for the elderly. Plaintiff alleges that all defendants owned, operated, managed and/or controlled the Facility. (FAC ¶¶11, 14-15). Plaintiff alleges that between 9/13/20 through 12/10/20, while she was in the care and custody of Defendants, she developed a Stage 2 wound on her coccyx because she was not properly turned. (FAC ¶19). Plaintiff alleges that due to the worsening of the wounds she was transferred out of Defendants care on 5/21/21 until 6/4/21 when she returned. (FAC ¶¶20-21). Plaintiff alleges that on 8/28/21, she had developed a Stage 1-2 wound on her buttocks due to Defendants failure to turn and reposition her throughout the day as required. (FAC ¶22). Plaintiff alleges that on 5/5/22, Defendants employee forcefully transferred Plaintiff from her bed to her wheelchair when her left leg was stuck in the bed snapping Plaintiffs left tibia and fibula requiring surgery. (FAC ¶24). On 8/2/23, Plaintiff filed this action against Defendants Pacifica SL Santa Clarita LLC dba Pacifica Senior Living Santa Clarita erroneously sued as Pacifica Senior Living aka Pacifica Senior Living Newhall aka Pacifica Senior Living Santa Clarita; Pacifica Living Management LLC; W Lyons LLC; Pacifica Companies LLC dba Pacifica Senior Living Santa Clarita (collectively, Defendants) for: (1) Negligence and (2) Elder Abuse. In response to Defendants demurrer and motion to strike addressing the original complaint, on 3/20/24, Plaintiff filed the operative First Amended Complaint against Defendants for: (1) Dependent and Elder Abuse/Neglect, (2) Willful Misconduct, (3) Negligence, (4) Unfair Business Practices (Business & Professions Code 17200, et seq.) and (5) Battery. After Plaintiffs counsel failed to respond to Defendants meet and confer efforts regarding the First Amended Complaint, on 5/28/24, Defendants filed and served the instant demurrer to the 1 st , 2 nd , 4 th and 5 th causes of action in the First Amended Complaint and motion to strike which seeks to strike portions of the First Amended Complaint regarding punitive/exemplary damages, attorneys fees and costs under Welfare & Institutions Code 15657, restitutionary disgorgement pursuant to Business and Professions Code 15657 and treble damages pursuant to Civil Code 3345. The demurrer and motion to strike were originally scheduled for hearing on 7/9/24. On 6/21/24, Plaintiff filed a combined opposition to the demurrer and motion to strike but failed to serve the document on Defendants. After Defendants filed and served notices of non-opposition to the demurrer and motion to strike on 6/27/24, Plaintiff served the opposition on Defendants on 6/27/24, 2 days late. See CCP 1005(b). On 7/2/24, Plaintiff filed an ex parte application to continue the hearing by at least 2 court days to allow Defendants to file a reply. On 7/5/24, the Court granted the ex parte application, continued the hearing on the demurrer and motion to strike to 7/18/24 and allowed Defendants until 7/15/24 to file and serve a reply. Despite having 11 court days to file and serve a reply after receiving the opposition, Defendants still argue that Plaintiffs failure to oppose the demurrer and motion to strike requires that the Court sustain the demurrer in its entirety. ( See Reply, p.2:22-p.3:1). The Court finds that continuing the hearing on the demurrer and motion to strike and allowing Defendants additional time to file and serve their reply cured any prejudice Defendants may have suffered by the delayed service of the opposition. As such, the Court considered the opposition arguments in ruling on the demurrer and motion to strike. The Court further notes that the memorandum of points and authorities filed in support of the demurrer exceeds the 15-page limit by 5 pages without court approval. See CRC 3.1113(d), (e). Despite the foregoing rule violation, the Court has considered the entirety of the opposition. See CRC 3.1113(g); CRC 3.1300(d). The parties are warned that failure to comply with the filing requirements in the future (i.e., timeliness, length of memorandums) may result in papers not being considered. ANALYSIS 1 st cause of action Dependent and Elder Abuse/Neglect Statutory causes of action such as dependent adult/elder abuse/neglect must be pleaded with particularity. Covenant Care, Inc. (2004) 32 C4th 771, 790; Carter (2011) 198 CA4th 396, 410. To recover for dependent adult/elder abuse/neglect, a plaintiff must prove by clear and convincing evidence that the defendant is liable for physical abuse as defined by Welfare & Institutions Code 15610.63 or neglect as defined by Welfare & Institutions Code 15610.57, and that the defendant is guilty of recklessness, oppression, fraud, or malice in the commission of the abuse/neglect. See Welfare & Institutions Code 15657; Delaney (1999) 20 C4th 23, 31-32; Covenant Care , supra at 785. Plaintiff has failed to plead facts to establish the necessary egregious and willful misconduct by Defendant to state a claim for dependent adult/elder abuse by Defendants. With regard to the pressure wounds suffered by Plaintiff while a resident at the Facility, Plaintiff admits that she suffered from such injuries before she entered the Facility. (FAC ¶¶16-17). Additionally, Plaintiff does not allege that Defendants completely failed to care for her or treat the wounds. Rather, Plaintiff alleges that she was not properly turned and not receiving proper care. (FAC ¶19). While such allegations are sufficient to support a claim for negligence, they are insufficient to state a claim for elder abuse/neglect. See Carter , supra 406-407, 410. The allegations regarding the incident that occurred on 5/5/22 which resulted in Plaintiff suffering a broken leg are also insufficient to support a claim for elder abuse/neglect. Again, while the allegations are sufficient to state a claim for negligence, they do not show the type of egregious and willful misconduct necessary to state this statutory claim. (FAC ¶24); See Cochrum (2018) 25 CA5th 1034, 1044-1045; Delaney , supra 31-32, 35; Civil Code 3294(c). Even if Plaintiff had pled the type of egregious conduct necessary to state a claim for elder abuse/neglect, she has not pled sufficient facts to show the requisite authorization and/or ratification of such conduct by any of the entity defendants. See Welfare & Institutions Code 15657(c); Civil Code 3294(b). Rather, Plaintiff merely concludes that the conduct alleged was authorized and/or ratified by managerial employees of Defendants. ( See FAC ¶¶41, 50, 60). Plaintiff has not pled that any employee was unfit or that Pacifica Santa Clarita or any other Defendant was aware of any wrongful conduct by an employee or knowingly hired any unfit employee or authorized or ratified any act of the alleged abuse/neglect. The vague allegations do not comply with the requirement that each specific element must be pled to state a cause of action for elder abuse/neglect. See Covenant Care , supra at 790. 2 nd cause of action Willful Misconduct Plaintiffs willful misconduct cause of action is duplicative of her negligence and/or elder abuse causes of action. ( See FAC ¶43). In Berkley (2007) 152 CA4th 518, relied on by Plaintiff to support her argument that the claim is not duplicative, the Court of Appeal held that willful misconduct is not a separate tort, but simply an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. Id . at 526 internal citations omitted. To the extent that such a claim could be deemed a different claim from negligence due to the stricter pleading requirements, the claim is duplicative of the elder abuse/neglect cause of action which must be based on willful misconduct, as set forth above. ( See FAC ¶46 whereat Plaintiff refers to the Elder/Dependent Adult Abuse Act in the willful misconduct cause of action). Whether included in the negligence claim or the elder abuse/neglect claim, Plaintiff has failed to allege sufficient facts to support the following required elements for a claim based on willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. Simmons (1976) 62 CA3d 341, 360. 4 th cause of action Unfair Business Practices (Business & Professions Code 17200, et seq.) A claim for unfair business practices may be based on unlawful, unfair or fraudulent business practices. See Business & Professions Code 17200; Daugherty (2006) 144 CA4th 824, 837. In order for a private plaintiff to recover on such a claim, there must be a causal connection between the harm suffered and the unlawful business activity. Daro (2007) 151 CA4th 1079, 1099. No such connection exists when the plaintiff would have suffered the same harm whether or not the defendant complied with the law. Id . This cause of action is based, at least in part, on Plaintiffs claims of abuse and neglect which form the basis of her insufficient elder abuse/neglect claim. ( See FAC ¶63). As such, this claim fails for the same reasons as the 1 st cause of action. Plaintiff has not alleged sufficient facts to establish that the harm she allegedly suffered was caused by Defendants purported failure to comply with various laws. ( See FAC ¶¶28, 34). 5 th cause of action Battery The elements of a battery cause of action are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendants conduct; and (4) a reasonable person in plaintiffs position would have been offended by the touching. So (2013) 212 CA4th 652, 669. While not entirely clear from the allegations within the 5 th cause of action, it appears that this claim is based on the 5/5/22 transfer incident which resulted in Plaintiff suffering a broken leg. Plaintiff has failed to allege facts to support the necessary elements of a battery claim. Based on the totality of the allegations in the First Amended Complaint, it is clear that Plaintiff consented to being touched by Defendants employees for her care, including being transferred from her bed to her wheelchair. ( See FAC ¶¶17, 24, 72). Also, Plaintiff has not alleged facts which show that Defendants/Defendants employee touched plaintiff with the intent to harm or offend plaintiff. Motion to Strike Plaintiff has failed to allege sufficient facts to support the damage allegations Defendants seek to have stricken. The prayers for punitive/exemplary damages, attorneys fees and costs under Welfare & Institutions Code 15657, restitutionary disgorgement pursuant to Business and Professions Code 15657 and treble damages pursuant to Civil Code 3345 relate to the 1 st , 2 nd , 4 th and 5 th causes of action which, as noted above, are insufficiently pled. CONCLUSION The demurrer is sustained and the motion to strike is granted. Due to the liberal policy of allowing leave to amend and since this is the first time the Court is ruling on the sufficiency of Plaintiffs pleading, Plaintiff is given the opportunity to try to cure the defects in the First Amended Complaint. A Second Amended Complaint is due to be filed and served within 30 days.

Case Number: 23LBCV00172 Hearing Date: July 18, 2024 Dept: S27 Defendants propounded RFAs, set one and FROGs, set two on Plaintiff on 4/04/24. Defendants propounded FROGs, set three, SROGs, set two, and RFAs, set three on Plaintiff on 4/10/24. On 5/15/24 and 5/16/24, Defendants filed motions to compel responses to the above interrogatories and to deem the above RFAs admitted, setting them for hearing on various dates. On 6/03/24, the Court rescheduled the hearing on all of the motions to 7/18/24. Defendants gave notice of the ruling the same day. To date, Plaintiff has not served responses to any of the propounded discovery. Defendants therefore seek an order compelling Plaintiff to respond, without objections, to the outstanding discovery, deeming the RFAs admitted, and requiring Plaintiff to pay sanctions. Defendants motions to compel are granted. Plaintiff is ordered to serve verified responses to the above-detailed interrogatories, without objections, within five days. The Court notes that time is of the essence, as the case is scheduled for trial on 8/06/24. CCP §§2030.290(a),(b). Defendants motions to deem RFAs, sets two and three, admitted are also granted. CCP §2033.280(a), (b). Sanctions are mandatory. §§2030.290(c), 2033.280(c). Defendants seek sanctions in the varying amounts in connection with each motion. Counsel bills at the rate of $210/hour. The Court awards one hour of time to prepare each of these form discovery motions. No opposition was filed and therefore no reply was necessary. The Court awards one hour to appear at the hearing on the motions, as the Court strongly encourages remote appearance. The Court therefore awards a total of six hours of attorney time at the requested rate $210/hour, or $1320 in attorneys fees. The Court also awards five filing fees of $60 each, or $300 in costs. Sanctions are sought against and imposed against Plaintiff, in pro per; he is ordered to pay sanctions to Defendants, by and through their attorney of record, in the amount of $1620, within twenty days. Defendants are ordered to give notice. Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org . 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 . 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 any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.

Case Number: 24BBCV00455 Hearing Date: July 19, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B lena mestrandrea , Plaintiff, v. nancy ming ling chen, Defendant. Case No.: 24BBCV00455 Hearing Date: July 19, 2024 [ TENTATIVE] order RE: motions to compel further responses BACKGROUND A. Allegations Plaintiff Lena Mestrandrea (Plaintiff) alleges that on August 22, 2023 at approximately 1 P.M. at or near 4041 Whitset Avenue in Studio City, she was attacked and bit by Defendant Nancy Ming Ling Chens (Defendant) German Shepherd Mix dog. Plaintiff alleges that she was jogging past Defendant on a public street when Defendant was unable to control her dog and, without warning or provocation, the dog viciously attacked and bit Plaintiff. The complaint, filed February 23, 2024, alleges causes of action for: (1) negligence; and (2) strict liability. B. Motion on Calendar On June 28, 2024, Plaintiff filed 3 motions to compel Defendants further responses to: (1) Form Interrogatories, set one (FROG); (2) Requests for Production of Documents, set one (RPD); and (3) Requests for Admissions, set one (RFA). On July 8, 2024, Defendant filed objections to the motions. DISCUSSION Plaintiff moves to compel Defendants further responses to FROG Nos. 2.2, 2.3, 2.5, 12.4, 16.3-16.5, and 17.1(b); RPD Nos. 17 and 18; and RFA Nos. 1, 2, 4, 5, 7, 8, 10-13, 15, 17-19, and 23-29. Defendant filed objections to the three motions, arguing that they were not timely served by electronic mail pursuant to CCP §§ 1005(b) and 1010.6(a)(3)(B). Defendant argues that the motions were set for hearing on July 19, 2024, but they were filed with the Court and served by electronic service on June 28, 2024. To be timely, the motions were required to be filed 16 court days before the hearing (or June 26, 2024) and served at least 2 days prior to account for electronic service (or June 24, 2024). Thus, Defendant states in her objections that she will not address the merits of the motions or attend the hearing in order that she not waive her objections. As the motions were not timely filed and served, the Court will continue the hearing on the motions to August 16, 2024 so that issues regarding service and the time to file substantive opposition briefs are fully provided. CONCLUSION AND ORDER Plaintiff Lena Mestrandreas three motions to compel Defendant Nancy Ming Ling Chens further responses are continued to August 16, 2024 at 8:30 a.m. Defendants opposition briefs and Plaintiffs reply briefs shall be filed and served pursuant to code based on the August 16, 2024 hearing date. Plaintiff shall provide notice of this order. DATED: July 19, 2024 ___________________________ John Kralik Judge of the Superior Court

Case Number: 22STCV28221 Hearing Date: July 18, 2024 Dept: 28 Having considered the petitioning papers, the Court rules as follows. BACKGROUND On August 30, 2022, Plaintiffs Paul Culver, Landon Culver, a minor by and through his guardian ad litem Paul Culver , and Katrina Culver, a minor by and through her guardian ad litem Paul Culver, filed this action against Defendants Karina Del Carmen Hussey (Defendant) and Does 1-50 for motor vehicle tort and general negligence. On September 6, 2022, the Court appointed Paul Culver to serve as guardian ad litem for Plaintiffs Katrina Culver and Landon Culver. On January 24, 2024, Defendant filed an answer. On June 10, 2024, Plaintiffs filed a notice of settlement. On June 17, 2024, Petitioner Paul Culver (Petitioner) filed petitions for expedited approval of minors compromises. PETITIONERS REQUESTS Petitioner asks the Court to approve the compromises of the claims of Plaintiffs Katrina Culver and Landon Culver. DISCUSSION A. Katrina Culver The petition states that both Medicare and the claimants health plan will be reimbursed from the settlement proceeds for $1,440.00 in medical expenses. (Sections 13b(2), 13d.) Petitioner should explain whether both Medicare and the health plan are receiving this amount as reimbursement (and if so, why). (Section 17b of the petition shows only one reimbursement of $1,440.00.) Attachment 13b(2) describes a November 30, 2022 letter from the Rawlings Company as the Final Medicare agreement. (Attachment 13b(2).) It is unclear why a letter stating that The Rawlings Company is to receive $1,440.00 is a Final Medicare agreement. The petition does not provide any information showing that Medicare paid for any of the medical expenses. If Medicare is to receive $1,440.00 in reimbursement, Petitioner should explain why the attachment refers to The Rawlings Company and not to Medicare. (The proposed order states that $1,440.00 will be paid to The Rawlings Company and does not mention Medicare.) For the reasons stated above, the Court denies the petition. B. Landon Culver The petition states that $1,845.00 in medical expenses will be reimbursed from the settlement proceeds to Medicare. (Section 13b(2).) However, the attachment described as the Final Medicare agreement is a November 30, 2022 letter from the Rawlings Company. (Attachment 13b(2).) The letter states that The Rawlings Company is to receive the reimbursement. The petition does not provide any information showing that Medicare paid for any of the medical expenses. If Medicare is to receive $1,845.00 in reimbursement, Petitioner should explain why the attachment refers to The Rawlings Company and not to Medicare. (The proposed order states that $1,845.00 will be paid to The Rawlings Company and does not mention Medicare.) For the reasons stated above, the Court denies the petition. CONCLUSION The Court DENIES without prejudice the petition to approve the compromise of minor Plaintiff Katrina Culvers action filed by Petitioner Paul Culver on June 17, 2024. The Court DENIES without prejudice the petition to approve the compromise of minor Plaintiff Landon Culvers action filed by Petitioner Paul Culver on June 17, 2024. Petitioner is ordered to give notice of this ruling. Petitioner is ordered to file the proof of service of this ruling with the Court within five days.

Case Number: 24NWCV00022 Hearing Date: July 17, 2024 Dept: C ZHOIE PEREZ v. SANDRA NGAYAN, et al. CASE NO .: 24NWCV00022 HEARING : 7/17/24 @ 9:30 A.M. #6 TENTATIVE RULING Defendants Sandra Ngayan and Francisco Alejandro Ngayans demurrer to Plaintiffs first amended complaint is CONTINUED to July 23, 2024 at 9:30 A.M. in Dept. SE-C. Moving Party to give NOTICE. The motion is unopposed as of July 15, 2024. This is a status hearing. At the June 12, 2024 hearing, the Court learned that Plaintiff was incarcerated. According to Court records, it appears Plaintiff is held without bail in People v. Zhoie Perez , Case No. PA098371-01. Her Probation and Sentencing Hearing on June 26, 2024 at 8:30 a.m. in San Fernando Courthouse, Dept. 1 was continued October 9, 2024. Plaintiff remains in custody for the criminal case. The Court has been in contact with Rosemary Chavez, new counsel for Plaintiff in the criminal matter, and has invited her to make a limited appearance in this case and to update the Court on the criminal matter.

Case Number: 23SMCV05863 Hearing Date: July 16, 2024 Dept: M CASE NAME: Ontiveros v. SM 10000 Property LLC, et al. CASE NO.: 23SMCV05863 MOTION: Demurrer to the Complaint HEARING DATE: 7/16/2024 LEGAL STANDARD 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.) Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. ( Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. ( Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿ in what manner ¿plaintiff can amend the complaint, and¿ how ¿that amendment will change the legal effect of the pleading.¿( Id .) ANALYSIS Defendants SM 10000 Property LLC demurs to the third cause of action for breach of the covenant of quiet enjoyment. [E]very lease includes a covenant of quiet possession and enjoyment. ( Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281.) The covenant of quiet enjoyment is inherent in the tenant's exclusive right to possession granted by the rental agreement. ( Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223 Cal.App.4th 261, 291-292.) Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. ( Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589.) To be actionable, the [landlords] act or omission must substantially interfere with a [tenants] right to use and enjoy the premises for the purposes contemplated by the tenancy. ( Id . ) The interference must be so serious as to render the premises unfit for the purposes contemplated by the lease or which substantially affect the tenant's enjoyment of a material part of the premises. ( Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 589-590.) Plaintiff Ontiveros alleges she is a resident at an apartment complex located at 10000 Santa Monica Boulevard, Management Office, Los Angeles, CA 90067, owned/managed by Defendants. (Compl., ¶¶ 1-2, 8.) On June 28, 2022, Plaintiff entered an elevator at the Subject Building with her two dogs on a leash. (¶ 9.) The elevator door started to close while one of her dogs was still outside the elevator. (¶ 10.) Plaintiff attempted to stop the elevator door from closing, but the sensor malfunctioned, and the door closed. (¶¶10-11.) As the elevator ascended, it harshly pulled on the leash, causing injury to the middle finger of Plaintiffs right hand. (¶ 12.) Plaintiff also feared for the safety of her dog on the outside of the elevator. (Id.) Fortunately, a bystander observed the incident and disconnected the dog from the leash before any serious injury to the dog. (Id.) Plaintiffs injured finger was immobilized for several months and is left with a scar and limited mobility. (¶ 13.) As to the subject quiet enjoyment claim, the complaint only provides the legal conclusion that the elevator malfunction alleged constituted a violation of the implied covenant of quiet enjoyment[.] (Compl., ¶ 25, citing Civ. Code § 1955.) There are no facts showing how a single instance of an elevator sensor malfunction could substantially interfere with Plaintiffs use and enjoyment of her lease. Plaintiff presents no authority that a Defendants maintenance of a malfunctioning, common area elevator sensor could be considered a breach of the covenant of quiet enjoyment. Plaintiff instead cites inapposite cases discussing the general duties of landlords concerning common areas under its control without any reference to the covenant of quiet enjoyment. (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675 [discussing premises liability under a negligence theory; disapproved of on other grounds by Reid v. Google (2010) 50 Cal.4th 512].) In the absence of such authority, the Court is not inclined to grant leave to amend. Accordingly, the demurrer is SUSTAINED without leave to amend. Defendants to file an answer within 10 days.

Case Number: 21STCV07734 Hearing Date: July 17, 2024 Dept: 32 PLEASE NOTE : Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court . TENTATIVE RULING DEPARTMENT 32 HEARING DATE July 17, 2024 CASE NUMBER 21STCV07734 MOTIONS Motion to Substitute MOVING PARTIES Plaintiff Maria Cabriales OPPOSING PARTY None MOTIONS Plaintiff Maria Cabriales (Plaintiff) moves for an order pursuant to Code of Civil Procedure Section 377.31, substituting Lourdes Cabriales, Fermin Javier Cabriales, Jesus Jose Cabriales, Jose Federico Cabriales, Maria Zoila Diaz Cabriales, and Hector Hugo Cabriales, Plaintiffs only children, in their capacity as successors in interest to the deceased Plaintiff, under Code of Civil Procedure Section 377.11. No opposition has been filed. ANALYSIS California Code of Civil Procedure section 377.31 provides that the decedents personal representative or, if none, the decedents successor in interest may continue a decedents pending action. (Code Civ. Proc., § 377.30; see Adams v. Superior Court (2011) 196 Cal.App.4th 71, 78-79.) A successor in interest is the beneficiary of the decedents estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of the cause of action. (Code Civ. Proc., § 377.11.) Section 377.33 provides that the court in which an action is continued may make any order concerning parties that is appropriate to ensure proper administration of justice, including the appointment of the decedents successor in interest as a special administrator or guardian ad litem. Section 377.32 provides that a person who seeks to commence such an action as the decedents successor in interest must file an affidavit or declaration providing certain information, including the decedents name, date and place of decedents death, and statements regarding whether the estate has been administered and that the affiant or declarant is the successor in interest on decedents claim. ( Id ., § 377.32(a).) A certified copy of the decedents death certificate must also be attached to the affidavit or declaration. ( Id ., § 377.32(c).) Here, Plaintiff filed her complaint on February 26, 2021. Plaintiff passed away on March 14, 2022. A certified copy of Plaintiffs death certificate has been attached. (Exh. 1.) The certificate shows that Plaintiff was widowed at the time of death. The Court finds that Lourdes Cabriales, Fermin Javier Cabriales, Jesus Jose Cabriales, Jose Federico Cabriales, Maria Zoila Diaz Cabriales, and Hector Hugo Cabriales have filed declarations, under penalty of perjury, that they are Plaintiffs only children and successor in interest to Plaintiffs interest in this action. Therefore, the motion to substitute is granted. CONCLUSION AND ORDER Therefore, the Court grants the motion to substitute Lourdes Cabriales, Fermin Javier Cabriales, Jesus Jose Cabriales, Jose Federico Cabriales, Maria Zoila Diaz Cabriales, and Hector Hugo Cabriales as successors in interest to Maria Cabriales, deceased. Moving Party shall give notice of the Courts orders, and file a proof of service of such.

Case Number: 20STCV00666 Hearing Date: July 16, 2024 Dept: A 20STCV00666 Tinisha Clay v. Watts Healthcare, et al. Tuesday, July 16, 2024 [TENTATIVE] ORDER OVERRULING DEMURRER TO THE FOURTH AMENDED COMPLAINT BY DEFENDANT, ALEXANDER STEIN, M.D. i. BACKGROUND The fourth amended complaint (4AC) alleges claims for medical negligence arising from the alleged failure to care and treat Alberta Childress for lung and breast cancer. Decedent died on December 14, 2019.Tinisha Clay, decedents daughter, alleged a survival action on behalf of decedents estate, wrongful death, and breach of informed consent. II. ARGUMENTS Defendant, Alexander Stein, M.D. (Dr. Stein or Defendant) demurs to the third cause of action for breach of informed consent allegedly arising from Dr. Steins failure to inform decedent of alternative, non-surgical treatment of lung cancer. Dr. Stein argues the claim is duplicative of the medical negligence claim, is unnecessary, superfluous and adds nothing to alleged claims. In opposition, Plaintiff argues that a claim for lack of informed consent is different from medical negligence, the latter of which arises from Defendants alleged failure to meet the applicable standard of care. The claim for lack of informed consent arises from a defendants duty to disclose material information which is a breach of fiduciary duty. If the court sustains demurrer, Plaintiff asks for leave to amend. In reply, Defendant contends that the opposition refers to pleadings no longer at issue, identifies other defendants who have not demurred, and is otherwise confusing and replete with errors. Plaintiff cannot split a negligence cause of action into two claims. III. LEGAL STANDARDS The bases for demurrer are limited by statute and may be sustained for failure to state facts sufficient to state a cause of action. ( Code Civ. Proc., § 430.10 ). A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. ( Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706). The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may not consider contentions, deductions, or conclusions of fact or law. ( Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) A demurrer reaches defects that appear on the face of the complaint. The court does not go beyond the four corners of the pleading. The court considers the allegations and matters that are subject to judicial notice. All facts are accepted as true. ( Saunders v. Superior Court (1994) 27 Cal.App.4 th 832, 838.) A demurrer tests the legal sufficiency of the allegations. It does not test their truth, the Plaintiffs ability to prove them, or the possible difficulty in making such proof. ( Id. at 840.) IV. DISCUSSION A claim based on lack of informed consent, which sounds in negligence, arises when the doctor performs a procedure without first adequately disclosing the risks and alternatives. ( Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324 .) To support a claim for medical negligence, Plaintiff must establish (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.' ( Hanson v. Grode (1999) 76 Cal.App.4th 601, 606 .) The claim for lack of informed consent is not duplicative of the first cause of action for negligence. The negligence claim alleges that Dr. Stein and a co-defendant did not perform lung resection surgery until nine months after detection, when the tumors had spread. (4AC ¶ 30.) The 4Ac alleges that the standard of care required Defendants to perform a different radiotherapy for patients with inoperable cancer. (4AC, ¶ 31. In contrast, the claim for lack of informed consent, which also arises from Defendants failure to properly perform the resection surgery, additionally alleges that Defendant concealed important potential results of alternatives to the resection surgery and the aortic valve replacement surgery. (4AC ¶ 59.) Plaintiff alleges that Dr. Stein deliberately did not disclose alternative treatments with which he was familiar and that were in effect. (F4AC, ¶ 61.) Each claim arises from a different set of alleged facts. V. CONCLUSION Based on the foregoing, the demurrer to the fourth amended complaint is OVERRULED. Defendant Dr. Stein is ordered to file an answer forthwith.