Mario Gonzalez Gallaga Vs. Brandy Lynn Kieschnick

23CV041625: REYES vs NSIBUKA, et al. 07/16/2024 Hearing on Motion to Compel Arbitration filed by Musa Nsibuka (Defendant) in Department 16 Tentative Ruling - 07/12/2024 Somnath Raj Chatterjee The motion to compel arbitration is withdrawn. Appearances are unnecessary.

Re: J.C. v. Fresno Unified School District et al. Superior Court Case No. 23CECG03952 Hearing Date: July 18, 2024 (Dept. 503) Motion: by Plaintiff J.C. for Trial Preference Tentative Ruling: To grant. Explanation: Plaintiff J.C. (“Plaintiff”) seeks preferential setting of trial under Code of Civil Procedure section 36, subdivision (b). Code of Civil Procedure section 36, subdivision (b) provides, in pertinent part: A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. Here, Plaintiff submits evidence demonstrating that Plaintiff is under 14 years of age. (Trujillo Decl., ¶ 3.) Plaintiff further submits that, as the only plaintiff party, Plaintiff has a substantial interest in the case as a whole. (Id., ¶ 4.) Accordingly, preference is mandatory. (Code Civ. Proc. § 36, subd. (b).) Defendant Fresno Unified School District (“Defendant”) opposes. In opposition, Defendant relies on series of cases interpreting the intersection between Code of Civil Procedure section 36 and other statutes, such as the 5-year limit to bring the case to trial, or cases that have been coordinated. Defendant however concedes that no other statutes are in conflict that would require the harmonizing considerations put forth in Defendant’s cited authority. Rather, “subdivision (b) is mandatory; accordingly… the trial court does not have discretion to deny trial preference to a party under 14 who has a substantial interest in the litigation.” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 696.) Defendant submits that to grant trial preference would be a denial of due process. Defendant relies on Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital, which is inapposite. (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100.) There, the issue was whether a judgment was binding to an indemnitor where the indemnitor had no opportunity to defend the action. (Id. at p. 118.) The authority did not consider the constitutionality of the present statute of Code of Civil Procedure section 36. Defendant further relies on Peters v. Superior Court; however, the opinion expressly does not address the issues of due process. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227.) Additionally, the court there specifically found that the Legislature intended Code of Civil Procedure section 36, subdivision (b) to be mandatory. (Id. at pp. 223-224.) Finally, Defendant argues that Plaintiff fails to demonstrate good cause as required by California Rules of Court, rule 3.1335(b). Good cause is sufficiently demonstrated by and through Code of Civil Procedure section 36. Based on the above, the motion for trial preference is granted. Accordingly, trial shall be set not more than 120 days from the date of this order. (Code Civ. Proc. § 36, subd. (f).) Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: jyh on 7/16/24 . (Judge’s initials) (Date)

Case Number: 22STCV06115 Hearing Date: July 17, 2024 Dept: 8 Tentative Ruling HEARING DATE: July 17, 2024 CASE NUMBER: 22STCV06115 CASE NAME: John Doe v. Loyola Marymount University, et al. MOVING PARTY: Defendant , Loyola Marymount University RESPONDING PARTY: Plaintiff, John Doe. TRIAL DATE: August 26, 2024 MOTION: ( 1) LMUs Motion for Summary Judgment (2) LMUs Ex Parte Application to Continue trial , FSC and other dates (3) LMUs ex par t e application to compel IME of Plaintiff Tentative Rulings: ( 1)¿ GRANTED only as to Violation of Education Code section 220 . ARGUE as to the first cause of action . DENIED as the rest of the motion . (2) Discuss . Trial has already been continued twice in a case field nearly 2-1/2 years ago, but with Plaintiff having belated ly sought leave to amend so close to trial the possibility of a pleading motion was noted at the hearing on the motion for leave to amend (3) Discuss . The Court would be inclined to consider shortening time for the motion to be heard and to set a briefing schedule I. BACKGROUND A. Factual On February 17, 2022, John Doe (Plaintiff) filed this action. On March 16, 2022, Plaintiff filed a First Amended Complaint against Defendants, Loyola Marymount University (LMU) and Michael Mozilo (Mozilo). The FAC alleges the following causes of action: (1) Discrimination under Education Code § 66251; (2) Discrimination in Violation of the Unruh Civil Rights Act ; (3) Education Code Section 220; (4) Negligence against Loyola Marymount University; (5) Breach of Contract; (6) Negligence against Michael Mozilo and Does 50-99; (7) California Civil Code § 1708.85 Revenge Porn Statute; (8) Intentional Infliction of Emotional Distress; and (9) Injunctive Relief. Plaintiff brought this lawsuit against LMU and Mozilo alleging that LMU failed to take appropriate action to investigate, and remedy alleged abusive conduct by Plaintiffs fellow student Mozilo. Among other things, Plaintiff alleges that (a) Mozilo unlawfully took and distributed a video recording of Plaintiff to fellow students; (b) that Mozilo and fellow students tormented and bullied Plaintiff based on the illicit video; (c) Plaintiffs fellow students threatened and harassed Plaintiff; (d) that LMUs employees, despite being aware of the misconduct, failed to investigate or take action to prevent or remedy the abuse; and (e) Plaintiff was forced to leave school, surrender an athletic scholarship, and sustained substantial damages as a result of the misconduct and LMUs failures to follow its legal obligations and duties. On July 8, 2024, this court GRANTED Plaintiffs Motion for Leave to Amend Complaint which included adding reference s to Education Code section s 66252, 66270, and 66294.2 , while LMU s Motion for Summary Judgment or in the alternative, Summary Adjudication was pending . On July 16, 2024, one day before the MSJ hearing, LMU filed ex parte application to continue the trial, FSC and other dates, and for an ex parte order to compel Plaintiff to attend an IME that LMU sought to explore Plaintiffs claimed mental health issues, causation and damages B. Procedural On May 3 , 2024, LMU filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication. On July 3 , 2024, Plaintiff filed an opposition brief. On July 12, 2024, LMU filed a reply brief. II. EVIDENTIARY OBJECTIONS Plaintiffs Evidentiary Objections : Overrule: 1 , 2 - 4 (not offe re d or considered by the Court for truth) , 5 , 7 Sustain: 6 LMUs Evidentiary Objections: Overrule: 1 -14 Sustain: none. III. ANALYSIS A. Legal Standard The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿ ( Adler v. Manor Healthcare Corp . (1992) 7 Cal.App.4th 1110, 1119.)¿ The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.¿ ( Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)¿ ¿ As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520 . ) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.¿ ( Dore v. Arnold Worldwide, Inc. ¿(2006) 39 Cal.4th 384, 389.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.¿¿¿ ¿ To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. ( Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) ¿ B. Discussion Preliminarily, this Court notes that Plaintiff has procedurally objected to Defendants notice of the motion for summary judgment and not complying with Code of Civil Procedure section 437c(a)(2) when it did not allow 75-day notice prior to the motion for summary judgment. This Court notes that the Amended Separate Statement was filed on May 13, 2024, and then again on June 24, 2024. Although the Court understands that the filing of the two errata compendium of evidence , Plaintiffs opposition clearly was able to oppose each of these prior to filing its opposition brief. As such, the Court finds good cause to consider it, and not deny the motion on this procedural grounds , further delaying dispositive motions in this case. Plaintiffs Claim for Discrimination under California Education Code Here, LMU argues that Plaintiffs claim for discrimination under Education Code section 66251 fails because the C ode sections cited to are not substantive and impose no mandatory duty on LMU to combat bias. Furthermore, LMU argues that Plaintiff cannot satisfy the elements necessary to recover for discrimination under the applicable C ode section. Namely, LMU argues that C ode sections 66251 and 66252 are not substantive and impose no mandatory duty on LMU as section 66251 is merely a statement of policy and purpose for the Equity in Higher Education Act, and section 66252 is a statement of legislative intent. However, as noted by Plaintiff, Defendant notes that Plaintiff failed to cite to the correct C ode section Education Code section 66270 , which Plaintiffs Motion for Leave to Amend complaint was granted for, and for which Defendant, LMU filed a notice of non-opposition to previously. LMUs moving papers argue that if Plaintiffs pleading was attempting to assert a claim under Education Code section 66270, it also would not be able to survive summary judgment. E ducation Code section 66270 provides [n]o person shall be subjected to discrimination on the basis of . . . sexual orientation . . . in any program or activity conducted by any postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid.¿ As noted by the parties, a claim under this section has been analyzed under an analogous claim to a Title IX cause of action. ( Videckis v. Pepperdine University (C.D. Cal. 2015) 100 F.Supp.3d 927, 935.) Videckis held that a n implied private right of action for sexual orientation discrimination does exist under Title IX. (Id. at p. 937 ), and that claims for sexual orientation harassment under the California Educational Code §§ 220 and 66270 are governed by the same elements as a federal cause of action under Title IX. (Id. at p. 935.) To prevail on his claim, Plaintiff must prove that: (1) he suffered severe, pervasive and offensive harassment, that effectively deprived him of the right of equal access to educational benefits and opportunities; (2) LMU had actual knowledge of that harassment; and (3) LMU acted with deliberate indifference in the face of such knowledge. ( Ibid. )¿ H ere, the parties focus their dispute on the third element, i.e., whether LMU and/or its employee designated to respond to Plaintiffs claims of harassment acted with deliberate indifference . A Plaintiff alleging deliberate indifference is required to demonstrate that the schools actions amounted to an official decision & not to remedy the discrimination. ( Oden v. N. Marianas Coll. (9th Cir. 2006) 440 F.3d 1085, 1089 .) Further, the Plaintiff must show that the schools deliberate indifference must have subjected the student to harassment. ( Davis v. Monroe Cty . Bd. Of Educ. ( 1999) 526 U.S. 629, 644.) As noted by LMU, Plaintiffs allegations that he was harassed based on sexual or gender orientation fall into two categories : (1) the bath video allegedly taken by Mozilo; and (2) the allegations that other students made offensive comments about his sexuality, implying that he was bisexual or homosexual . The deliberate indifference contention is supported by Plaintiffs references to LMU having failed to take affirmative steps to address the bullying or harassing comments by his golf teammates . First, as to the bath video, LMU argues that although DAmore was aware of the bath video in 2018, Plaintiff complained to DAmore and/or McCabe about it in 2019 and 2020, that Plaintiff mentioned the bath video to professors Edwards and Avalos in 2021, and finally disclosed the bath video to Pintens in June 2021 , all of the LMU employees are merely designated to report the complaints, not ones who are the appropriate persons whose knowledge is imputed to LMU. However, th e Court notes that although the employees who Plaintiff made aware of the bath video may have not been DPS or the Title IX coordinator, all of those individuals are mandatory reporters of Plaintiffs complaints . LMUs UF No. 62 indicates that until Pin tens in June of 2021, the other employees failed to report Plaintiffs claims to DPS. LMU attempts to draw an incomplete analogy to the United States Court of Appeal for the Fifth Circuit case of Rosa H. v. San Elizario Independent School Dist. (1997) 106 F.3d 648 , 660-661 when asserting that the case indicated that notice of harassment by employees who lacked authority, beyond reporting the misconduct to other employees, is insufficient to trigger a schools liability under Title IX. However, this exact analysis is not per se implied or indicated in Rosa H. , and was instead a fact-based analysis as to the school placing a duty to supervise certain employees of other students. Plaintiffs Opposition appears to argue that a triable issue of fact exists as to the imputed knowledge of the coaches, athletic directors, or professors . The argument, as the Court understands it, is that the fact that a mandatory reporter has knowledge of facts could be found by the jury to impute their knowledge to LMU , i.e., constructive notice or implied ratification even if not actual notice to DPS or the Title IX coordinator until June of 2021 . Evidence can either direct or circumstantial ; here the direct evidence is that the mandatory reporters failed to report the conduct . Certainly, the evidence cited in U F 62 stands for the proposition that these individuals were only reporters as opposed to the appropriate persons whose actual knowledge is imputed to LMU . A n entity can be liable for its employees acts where the entity either authorized the tortious act or subsequently ratified an originally unauthorized tort. ( Shultz Steel Co. v. Hartford Accident & Indemnity Co. (1986) 187 Cal.App.3d 513, 519 ; Civil Code § 2339.) The theory of ratification can be applied w here an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery . . . . Whether an employer has ratified an employee's conduct is generally a factual question. ( Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169170 .) On the other hand, a ratification or impute d knowledge theory seems to have been rejected in an Education Code cause of action in Donovan v. Poway Unified School Dist rict (2008) 167 Cal.App.4 th 567, 605: 1 We decline to adopt a liability standard for damages under section 220 based on principles of respondeat superior and/or constructive notice, particularly in light of the circumstances presented here, when the claim of discrimination is not, for example, based on an official policy of the District , but is instead the result of peer sexual orientation harassment and the District's response (or lack thereof) to such harassment. We agree with Gebser and Davis that negligence principles should not apply to impose liability under a statutory scheme when administrative enforcement of that scheme contemplates actual notice to the funding recipient, with an opportunity to take corrective action before a private action may lie. By requiring actual notice, we ensure liability for money damages under section 220 is based on a funding recipient's own misconduct, determined by its own deliberate indifference to known acts of harassment. Donovan rejected the Plaintiffs argument there that FEHA theories including imputed knowledge should apply to an Education Code §220 cause of action for money damages . However, Donovan was decided under Section 220 and as discussed with respect to th e fourt h cause of action below, that statute does not appear to apply to a postsecondary institution such as a University . The Court will allow oral argument as to whether a constructive notice or imputed notice would be sufficient to raise a triable issue of fact on t he first cause of action , or whether as a matter of law the administrative scheme in the Education Code required Plaintiff to h av e notified the appropriate persons rather than a mandatory reporter . There is no dispute that the appropriate persons were not provided actual notice until after all or virtually all of Plaintiffs alleged injuries had occurred . T he tentative is thus to ARGUE the motion as to the first cause of action. Plaintiffs Claim for Discrimination under The Unruh Civil Rights Act Second, LMU argues that Plaintiff cannot maintain a claim for discrimination under the Unruh Civil Rights Act on the grounds that : (1) LMU is not a business establishment , and is not subject to the UCRA; and (2) Plaintiff cannot establish any actionable discrimination by LM U. LMU argues that it is not a business establishment under the UCRA as it is a religiously-affiliated school . Pursuant to 20 USCA § 1681(a)( 4 ), title IX does not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization. LMU attempts to analogize the case at bar to that of Doe v. Cal. Lutheran High Sch. Assn. (2009) 170 Cal.App.4th 828 . However, LMU has not alleged the same or similar breadth of facts as the Lutheran school in that case. LMU, for example, does not have a statement that expresses the school was open for admission to Roman Catholic families and to other families&who are in harmony with the policies and principles of [their] school. In fact, LMUs mission statement indicates that it provides touchstones for understanding of LMUs threefold mission. This is the only UF evidenced in LMUs argument as to this section. This statement alone does not indicate to this Court that like the school in Doe or Valley Christian Academy is exempt from the Unruh Civil Rights Act . There is no evidence before the Court that Plaintiffs sexual orientation was known or disclosed to or even suspected by the coaches, staff, administrators, Title IX coordinator or anyone else until the email from Plaintiffs father on January 2, 2019 at the earliest, and possibly until the October 26, 2020 Wayne Jones COVI D party video , both of which were after the Bath Video, some of the alleged harassment, and alleged overdose had already occurred. Further, if LMU is not exempt from UCRA, it argues that Plaintiff cannot establish that LMU denied any services because of his gender or actual/perceived sexual orientation. Plaintiff argues that LMU employee DAmore treated him unfairly because of his sexuality as he did not step in to address the bullying because of Plaintiffs sexual orientation. LMUs argument in this section relies only on Plaintiffs deposition and argues mainly that Plaintiff will need more to meet his evidentiary burden. However, on a motion for summary judgement, the initial burden is on the moving party here, LMU. LMU does not provide evidence or even argument that there are no triable issues of fact as to whether Plaintiff was discriminated against. While there is evidence th a t DAmore asked Plaintiff to keep information about Plaintiffs taking anti-depressants , such evidence and D/Amores actions thereafter do not prove a lack of discrimination . As such, LMU has failed to carry its initial burden, and the motion is DENIED as to this issue. Education Code Section 220 Does Not Apply to LMU Next, LMU contends that the Education Code section 220 claim should be dismissed because that section does not apply to postsecondary institutions, such as LMU . The Court finds that LMU is correct. Section 221 clearly states that the article shall not apply to an educational institution that is controlled by a religious organization if the application would not be consistent with religious tenets of that organization. (Edu. Code, §221.) However, more importantly for this motion , Education Code section 210.3 defines an Educational Institution for the purposes of the C ode, as a public or private preschool, elementary, or secondary school or institution & (Edu. Code, § 210.3.) Defendant relies on the unpublished federal case of Karasek v. Regents of the Univ. of California (N.D. Ca. Dec. 11, 2015) No. 15-CV-03717-WHO, 2015 WL 852733 8, where the United States District Court tackled this very issue, finding that section 220 does not apply to a postsecondary institution such as [a] University. Further, the Court noted that any ambiguity in the meaning of secondary institution or school is eliminated by Education Code section 66261.5 and other provisions in that chapter of the California Education Code, which makes clear the distinction between secondary and postsecondary as used in the Code. As such, this Court notes that because Plaintiff has made the claim above for violation of E ducation C ode based on the different section of the C ode, like in Karasek , the Court is persuaded by the distinguishing of secondary versus postsecondary, and finds that Plaintiff cannot maintain a cause of action against LMU based on Education Code section 220. As such, summary adjudication is GRANTED as to this cause of action. Plaintiffs Negligence Claim LMU next argues that Plaintiffs negligence claim fails because it had no duty to protect Plaintiff from purely emotional harm. LMU relies on the recent decision of Thomas v. Regents of Univ. of Cal. (2023) 97 Cal.App.5th 587 ( Thomas ) . Thomas involved a public university , the University of California, the Tort Claims Act, and governmental immunity, none of which are presented here . Thomas did involve a claim against a college sports team coach and alleged bullying behavior that created a hostile environment . Thomas also was a demurrer case and the sufficiency of allegations , not a summary judgment case , but in each the existence of a legal duty owed on a common law negligence theory is presented so the factual points of distinction do not militate against this Courts consideration of the legal doctrine evaluated. The First District Court of Appeal in Thomas e valuated the question of law as to whether the soccer coach and the university owed the plaintiff there a special duty to protect her from foreseeable injury . The First District analy zed the leading cases on the expansion of tort duties of care, including Regents of Univ. of California v. Superior Court (2018) 4 Cal.5th 607 and C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal.4th 861 . Regents recognized a special relationship ... in the college setting, concluding postsecondary schools do have a special relationship with students while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services. ( Regents, supra, 4 Cal.5th at pp. 624-625 .) The existence of a special relationship imposes obligations beyond what each person generally owes others under Civil Code section 1714, including the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. ( CA, supra , 53 Cal.4th at p. 870.) Plaintiffs opposition brief argues that because of the special relationship between universities and their students, LMU owed a duty to protect students from harm from third parties absent reasons to depart from that rule. Further, Plaintiff argues that the Rowland and Regents factors, do not favor excusing universities from the duty to exercise care in protecting students with which the universities have a special relationship merely because the injury is not accompanied by a physical attack. Plaintiff suggests that this argument would run counter to what the California Supreme Court in cases such as Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916 have held that a plaintiff may recover for purely emotional injury unaccompanied by physical injury where the risk of emotional harm to the plaintiff was reasonably foreseeable to the defendant. Plaintiff cites to the federal case of Walsh v. Tehachapi Unified School Dist. (2014) 997 F.Supp.2d 1071, to argue that there, the United States District Court for the Eastern District of California noted (not held as suggested by Plaintiff), that it presumed for the purposes of the motion that the Defendants there owed a duty to decedent and that Defendants breached th at duty by failing to stop, remedy, and prevent the in-school harassment and bullying of Decedent. Further, the Walsh Court noted that it was also undisputed that it was foreseeable that this breach would cause Decedent to suffer mental or emotional distress. Plaintiff here has developed his duty theory more fully than the thin allegations and limited briefing in Thomas where the appellate court found a lack of sufficient allegations or citations bearing on the claimed duty of a university to protect students from harm of a non-physical nature . While it is true that the school- or college-student relationship precedents discussed in Regents and C.A. involved claims of physical violence or sexual abuse , t he Thomas Court did not rule as a matter of law that there can neve r be such a duty in the absence of physical injury . I n fact, the decision noted: This is not to say sexual harassment in the form alleged in this case does not cause significant harm, nor that a university may never be held to have a duty to protect its students from non-physical injuries. We simply are not prepared to take the step Thomas suggests on the basis of the briefing she has provided . ( Thomas , supra, 97 Cal.App.5th at pp. 627628 .) Here, Plaintiff Doe has pleaded the negligence duty more extensively than in Thomas , cited to several precedents finding a duty to protect a plaintiff in a special relationship from harm of a non-physical nature, and has more extensively briefed the application of the Rowland factors in determining the scope of the duty . This Court finds that such a negligence duty of care does exist as owed by a post-secondary school to a student athlete , that there is a higher degree of certainty that a gay student who had not come out to his teammates or fellow students would sustain emotional injuries when publicly outed in an embarrassing way, and that the Legislature has attached moral blame to discrimination or unequal treatment on the basis of sexual orientation, all of which sufficient to create a duty for a general negligence cause of action on the facts presented here. As such, the Court finds that LMU failed to carry its initial burden, and the motion as it relates to the negligence cause of action and the claimed absence of the essential element of a duty of care is DENIED. Plaintiffs Breach of Contract claim LMU next argues that Plaintiffs breach of contract claim fails because Plaintiff has failed to identify any express written contract term he contends was breached, and instead claims LMU breached an implied contractual duty. Specifically, Plaintiff alleges that he had a contractual relationship with LM U through LMUs student handbook and student regulations where LMU was required to act in accordance with this handbook and regulations in addressing complaints of abuse, retaliation, discrimination, and harassment, investigating Plaintiffs complaints, and taking action to remedy the misconduct, discipline persons engaged in the misconduct, and to protect Plaintiff. (FAC, ¶ 95.) LMU argues in its moving papers that California courts have be e n reluctant to apply contract law to general promises or expectations or have been reluctant to apply contract law to universities academic and disciplinary decisions . However, the moving papers fail to provide evidence to suggest that no triable issue of fact exists as to Plaintiffs breach of contract claim. The only cited to evidence in LMUs moving papers is that in Plaintiffs deposition and discovery responses, he failed to identify any policy that LMU purportedly breached , or a specific policy or contract term that was breached. This is simply not enough to shift LMUs initial burden . LMU conceded that California Courts have found that a contractual relationship between students and universities can be created by the terms of the relationship described in a student handbook. The Court finds that L MU has failed to satisfy its initial burden in showing that no triable issue of material fact exists as to the Plaintiffs breach of contract cause of action. The motion is DENIED as to this cause of a ction. Plaintiffs Punitive Damages Lastly, LMU argues that Plaintiff cannot recover punitive damages against LMU because Plaintiff has not shown, by clear and convincing evidence, that an officer, director, or managing agent of LMU acted with malice, oppression, or fraud and that LMU had advanced knowledge and conscious disregard, authorized, or ratified such conduct. Again, because this Court finds that LMU has failed to carry its initial burden of showing that no triable issues of fact exist as to the causes of action invoking punitive damages, and that LMUs only arguments in this section are about how Plaintiff cannot carry its shifted burden, this Court also DENIES the motion as to this section. The denial is without prejudice to a motion in limine under Civil Code section 3295 or to a possible bifurcation motion . III. CONCLUSION For the foregoing reasons, LMUs Motion for Summary Judgment is GRANTED only as to Violation of Education Code section 220 , to be argued as to the first cause of action , and is otherwise DENIED pending oral argument . Plaintiff is ordered to provide notice.

HEARING ON PRELIMINARY CVSW2404204 GARCIA DIAZ VS ANAND INJUNCTION Tentative Ruling: GRANT 1 Civ. Code § 3080.06(b) requires that any order authorizing sale of livestock shall: “(1) Identify the livestock for which sale is authorized; (2) Specify the manner of sale including the date, time, place, necessary publication or other notice; and (3) Except as may be ordered pursuant to subdivision (c), direct the lienholder to deposit the proceeds of sale with the clerk of court pending final judgment in the action.” (Civ. Code § 3080.06(b)(1)–(3).) 2 Notice of the sale of livestock must be provided as follows: (a) A notice in writing of the date, time and place of sale shall be delivered personally or be deposited in the United States mail, postage prepaid, addressed to the owner of the livestock, at his last known address, and to any other person claiming a lien upon or security interest in the livestock, who had on file with the California Secretary of State on the date the lien arose a financing statement covering the livestock for which livestock services secured by the lien were provided at least five days before the date fixed for any public sale or before the day on or after which any private sale or other disposition is to be made. (b) Notice of the time and place of a public sale shall also be given at least five days before the date of sale by publication once in a newspaper of general circulation published in the county in which the sale is to be held. If there is no such newspaper, notice shall be given by posting, for five days prior to sale, a notice of sale where the sale is to be conducted. (Civ. Code §§ 3080.17(a)–(b).)

Case Number: 19SMCV01966 Hearing Date: July 18, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 18, 2024 CASE NUMBER 19SMCV01966 MOTION Continue Trial MOVING PARTY Defendant Gilberto Rios dba Betos Drywall & Plaster Interior Finishes OPPOSING PARTY none BACKGROUND Plaintiffs Michael Levine and Zorbey Ozdilek (Plaintiffs) filed the operative Fourth Amended Complaint on June 30, 2022 against Defendants Montalba Architects, Inc.; David Desire Montalba, AIA; Jonathan Eric Handzo, AIA; Denver Thomas Dale IV; Temperature Equipment Corporation; Sure Light Electric, Inc.; Fabie Tile & Marble, Inc.; Folger Roofing & Construction Company, Inc.; Heritage Woodworks, Inc.; L.A. Overhead Door, Inc.; PBS Engineers, Inc. (fka Doe 1); WMW, Inc. dba Weather Masters Waterproofing (fka Doe 2); Rapid Duct Testing & Air Balancing, Inc. (fka Doe 3); Ben McDonald (fka Doe 4); Michael Knopoff (fka Doe 5); David Trumbull dba Sure Light Electric (fka Doe 6); Gilberto Rios dba Betos Drywall & Plaster Interior Finishes (fka Roe 1); E&J Lopez Plumbing, Inc. (fka Roe 2); and M&F Hardwood Floors, Inc. (fka Roe 3) alleging eleven causes of action for (1) professional negligence; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) breach of the implied covenant to perform work in a good and competent manner; (5) breach of fiduciary duty; (6) aiding and abetting breach of fiduciary duty; (7) fraud and deceit; (8) aiding and abetting fraud and deceit; (9) negligence; (10) conversion; and (11) violation of Business & Professions Code §§ 17200 et seq. Several cross-complaints have been filed, including one by Denver Thomas Dale, IV, which also names Defendant Gilberto Rios dba Betos Drywall & Plaster Interior Finishes (Betos). As the Court noted at the last status conference on May 30, although Betos has answered this cross-complaint, Betos has not yet filed an answer to Plaintiffs operative Fourth Amended Complaint. Betos now moves for a short continuance of the September 3, 2024 trial date to sometime on or after October 21, 2024 because counsel is out of the country when the current trial is set. Betos motion is unopposed. ANALYSIS Trial and Discovery Cut-Off Dates California Rules of Court, rule 3.1332(c), provides: Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. Factors the Court considers in ruling on a motion for continuance include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(d).) Betos requests a trial continuance because Betos counsel purchased tickets for an overseas trip in December 2023 which would take us out of the country for the first three weeks of September. (Wilton Decl. ¶ 6.) This was before the February 2, 2024 status conference where the Court set the trial date for September 3. Counsel advised the Court at the status conference of his unavailability for trial on September 3 due to his preplanned vacation, but the Court set the trial date anyway. The Court finds that Betos has not provided any legal basis demonstrating that counsels vacation constitutes other excusable circumstances warranting a continuance under Rule 3.1332(c)(3). The Court also finds it concerning that counsel has still not filed an answer on behalf of Betos when the parties are so close to trial, despite being alerted by the Court of this issue on May 30. With regard to the factors the Court considers when determining whether a continuance is warranted, Betos concedes that the trial is imminent, and that there have been previous continuances due to the large number of parties and cross-complaints at issue. The Court also notes that this case is extremely aged, with the original complaint having been filed on November 8, 2019, meaning that the parties are running up against the five-year rule, and the Courts trial calendar is very impacted. The Court further notes that although no party has opposed the motion, the requested continuance was not presented as a stipulation. Moreover, counsel declares, Discovery to date has shown Betos Drywall to be a peripheral party at best with minimal accusations of wrongdoing against him. (Wilton Decl. ¶ 7.) As such, in the absence of a stipulation, without other excusable circumstances or other good cause shown , and in view of Betos lack of diligence in filing an answer to the operative complaint, the Court does not find a trial continuance is warranted to accommodate the vacation of counsel to a peripheral party in such a complex and aged action. CONCLUSION AND ORDER Therefore, the Court denies Betos unopposed motion to continue the trial without prejudice. Betos shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 18, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Case Number: 24SMCV02124 Hearing Date: July 17, 2024 Dept: M CASE NAME: Berg v. Wright Medical Technology Inc., et al. CASE NO.: 24SMCV02124 MOTION: Application to Appear Pro Hac Vice HEARING DATE: 7/17/2024 LEGAL STANDARD California Rules of Court, rule 9.40 provides that an attorney in good standing in another jurisdiction may apply to appear pro hac vice in this State by way of written application upon due notice to all interested parties, as well as service on the State Bar in San Francisco with payment of a $50.00 fee, so long as that attorney is not a resident of California, does not work in California and does not perform regular or substantial business, professional or other activities in the State. The written application must provide the following information: (1) The applicant's residence and office address; (2) The courts to which the applicant has been admitted to practice and the dates of admission; (3) That the applicant is a licensee in good standing in those courts; (4) That the applicant is not currently suspended or disbarred in any court; (5) The title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) The name, address, and telephone number of the active licensee of the State Bar of California who is attorney of record. (CRC Rule 9.40(d).) ANALYSIS Counsel George E. McLaughlin applies for admission pro hac vice in order to represent Plaintiff James Berg. Counsel provides all the required information. (CRC Rule 9.40.) The Court will allow counsels admission pro hac vice. That said, the Court notes that admission pro hac vice is not a right. Counsel states that he has represented clients in four other California cases in the preceding two years. In light of this frequency of representation, further pro hac vice applications may be appropriately denied at the discretion of the court. Accordingly, the motion is GRANTED.

LYKKEBERG VS. WILBURN, ET AL. Case Number: 23CV-0202789 This matter is on calendar for review regarding status of arbitration. This matter was stayed by the Court’s Order dated January 23, 2024 pending conclusion of a FINRA arbitration between the parties. No status report has been filed. An appearance is necessary on today’s calendar.

CU24-01421 Demurrer and Motion for Protective Order TENTATIVE RULING Defendants NORTHBAY HEALTHCARE GROUP INC. and NORTHBAY HEALTHCARE FOUNDATION demur to Plaintiff KIMMIE L. BUI, M.D.’s complaint alleging loss of consortium. Summarized, the complaint alleges that Dr. Saad Ismail, Plaintiff’s husband, was employed by Defendants in various leadership roles from 2009 to 2022. Defendants terminated Dr. Ismail’s employment on March 17, 2022, causing stress on the couple. Defendants simultaneously move for a protective order against discovery Plaintiff has propounded on topics relating to Dr. Ismail’s experiences working for Defendants. Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint must allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case Page 2 of 5 “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.) Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) The Court “assume[s] the truth of the allegations in the complaint, but do[es] not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) Loss of Consortium. To plead a cause of action for loss of consortium a plaintiff must allege (1) a valid and lawful marriage between the plaintiff and an injured person at the time of injury, (2) a tortious injury to the spouse, (3) loss of consortium suffered by the plaintiff, and (4) that the loss was proximately caused by the defendant’s act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2 (Hahn).) A loss of consortium claim is separate and distinct from the spouse’s cause of action for injury; it is not merely derivative or collateral to the spouse’s cause of action. (Gapusan v. Jay (1998) 66 Cal.App.4th 734, 742.) Nonetheless, as a loss of consortium claim is necessarily triggered by the tortious injury to the spouse, the claim stands or falls based on whether the spouse has suffered an actionable tortious injury. (Hahn at p. 746.) Where the spouse has no sufficiently stated cause of action a plaintiff asserting loss of consortium also lacks a sufficiently stated cause of action. (Id. at pp. 746, 751; Blain v. Doctor’s Co. (1990) 222 Cal.App.3d 1048, 1067.) A loss of consortium claim does not require physical injury to the spouse. (Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 633.) Certain psychological injuries, such as traumatically induced psychosis, neurosis, chronic depression, or phobia, can be equally severe and debilitating enough to cause injury to the martial relationship that is more than superficial or temporary. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 932-933 (Molien).) Plaintiff alleges a lawful marriage between herself and Dr. Ismail at all relevant times. (Complaint at ¶ 1.) Plaintiff does not sufficiently allege a tortious injury to her husband. Her counsel argues in opposition that the complaint alleges a number of legally cognizable injuries but none are borne out in the text. Plaintiff alleges it was the March 17, 2022 termination of Dr. Ismail’s employment that caused her injury but she does not allege how it is that the termination was wrongful as she never alleges that Dr. Ismail engaged in a protected activity or belonged to a protected class and that there was a causal nexus between that protected status and adverse employment action on Defendants’ part. (Complaint at ¶¶ 59, 73 [termination allegedly caused injury]; St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314 [elements of wrongful termination].) The complaint only alleges that Dr. Ismail was terminated on the stated basis of failure to maintain workplace relationships and that his Page 3 of 5 coworkers were nonetheless displeased with his departure. (Complaint at ¶¶ 59-72.) Plaintiff does not state any form of wrongful termination. The complaint does not state intentional infliction of emotional distress where there are no facts pled to support that Defendants meant to cause Dr. Ismail emotional distress or acted outrageously. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.) Negligent infliction of emotional distress is no better supported where there is no alleged predicate negligent injury. (Ess v. Eskaton Properties (2002) 97 Cal.App.4th 120, 126.) Both distress claims also find no sufficiently severe alleged distress as Dr. Ismail has merely experienced “significant stress” from losing employment. (Complaint at ¶ 73.) There is no description of what contract Dr. Ismail was under or how Defendants denied him the benefit thereof and thus no sufficient statement of breach of the covenant of good faith and fair dealing. (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 843.) Counsel’s assertion that negligent hiring, supervision, and/or retention could support Plaintiff’s loss of consortium claim is puzzling. (Opposition at 11:6-7.) Negligent hiring, supervision, and/or retention is a theory of liability that holds an employer liable for retaining an employee who is incompetent or unfit for his position and through that unfitness causes another injury. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) The complaint, focused on Dr. Ismail’s work history with Defendants, contains no such allegations. Plaintiff also does not allege a legally cognizable loss of consortium. A loss of consortium is damage to the marital relationship that is more than temporary or superficial. (Molien, supra, 27 Cal.3d at pp. 932-933.) Plaintiff alleges that Dr. Ismail “experience[d] significant stress” and the couple “worried” about their finances after the termination of his employment. (Complaint at ¶ 73.) It otherwise alleges in conclusory terms that Plaintiff has lost Dr. Ismail’s physical and moral support and that the couple’s sense of love and companionship “took a significant toll.” (Ibid.) This does not sufficiently allege that Dr. Ismail was effectively incapacitated such that he could no longer provide love, affection, society, comfort, and sexual relations, or that the damage to the marital relationship is more than superficial and/or temporary. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 400.) Leave to Amend. Leave to amend is proper where identified defects are amenable to cure. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) It is the pleading party’s burden to show the trial court that a reasonable possibility exists that amendment can cure identified defects in that party’s pleading. (Murphy v. Twitter, Inc. (2018) 60 Cal.App.5th 12, 42.) Plaintiff offers only a request for leave to amend that lacks any demonstration of potential merit in amendment. Motion for Protective Order. The motion for protective order is moot in light of the ruling on demurrer. Page 4 of 5 Conclusion. Defendants’ demurrer is sustained without leave to amend. The motion for protective order is denied as moot.