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Marissa Galban Vs Samantha Brigman

Case Last Refreshed: 7 months ago

Brigman, Samanta Michele filed a(n) Harassment - Torts case in the jurisdiction of Adams County, WA, . Adams County, WA Superior Courts .

Case Details for v.

Filing Date

June 21, 2010

Category

Har Unlawful Harassment

Last Refreshed

November 29, 2023

Practice Area

Torts

Filing Location

Adams County, WA

Matter Type

Harassment

Parties for v.

Plaintiffs

Attorneys for Plaintiffs

Other Parties

Brigman, Samanta Michele (Respondent (wip))

Galban, Marissa Nichole H (Petitioner (wip))

Case Events for v.

Type Description
Docket Event Return of Service
12: RETURN OF SERVICE;
Docket Event Transmittal Letter Copy Filed
10: TRANSMITTAL LETTER - COPY FILED;
Docket Event Transmittal Letter Copy Filed
11: TRANSMITTAL LETTER - COPY FILED;
Docket Event Motion Hearing
-: MOTION HEARING;
Docket Event Court Hearing Minutes
9: COURT HEARING MINUTES;
Docket Event SC
ANTIHARR 3:30 P.M.
Docket Event Order for Protection From Civil Harassment Rsp Under 18
8: PROT ORDER FOR CV HAR RESP UNDER 18;
Docket Event Return of Service
7: RETURN OF SERVICE;
Docket Event Transmittal Letter Copy Filed
6: TRANSMITTAL LETTER - COPY FILED;
Docket Event Temporary Antiharassment Protection Order Respondent Under
4: TEMP ANTIHAR PROT ORD RESP UNDER 18; 07-01-2010SC; ANTIHARR 3:30 P.M.;
See all events

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Ruling

KEENAN CONROY, ET AL. VS SHANNON EILEEN DUFFICY
Jul 10, 2024 | 23STCV09001
Case Number: 23STCV09001 Hearing Date: July 10, 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 DEPT : 32 HEARING DATE : July 10, 2024 CASE NUMBER : 23STCV09001 MOTIONS : Motion for Leave to Intervene MOVING PARTY: Falls Lake Fire and Casualty Company OPPOSING PARTY: Unopposed BACKGROUND On April 24, 2023, Plaintiffs Keenan Conroy, Juan Delgado, Melissa Cossio, and Juan Antonio Gutierrez (Plaintiffs) filed a complaint against Defendants Shannon Eileen Dufficy and Does 1 to 20 for negligence surrounding a motor vehicle accident. Prospective Intervenor Falls Lake Fire and Casualty Company (Intervenor) seeks a Court order granting leave to file a complaint-in-intervention in this action. No opposition has been filed. LEGAL STANDARD Code of Civil Procedure section 387(d) states, [t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) A provision of law confers an unconditional right to intervene. (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. (Code. Civ. Proc. § 387(d)(1).) Pursuant to section 387 the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. ( Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.) Labor Code sections 3852 and 3853 provide that an employer against whom a claim for workers compensation damages was made may join in an action against a third party arising out of the incident for which the workers compensation payment was made. (Lab. Code, §§ 3852, 3853.) [Labor Code] [s]ection 3853 states that when an action is brought against a third party by either the employer or the employee, the other may, at any time before trial on the facts, join as party plaintiff. ( Jordan v. Superior Court (1981) 116 Cal.App.3d 202, 206 (quoting Labor Code section 3853).) An employer includes the employers insurer. (Lab. Code, § 3850(b).) DISCUSSION Here, Intervenor asserts it insured Plaintiffs employer, Brea Glass and Mirror, Inc., and the underlying incident took place within the scope of Plaintiffs employment. As a result, Intervenor has paid workers compensation benefits to Plaintiffs Juan Delgado, Keenan Conroy, and Juan Gutierrez for the subject accident. [1] (Zaiderman Decl. ¶ 24.) Intervenor has attached a proposed complaint-in-intervention. (Exh. A.) No opposition has been filed. Accordingly, the Court grants the motion. CONCLUSION AND ORDER Accordingly, Falls Lake Fire and Casualty Companys motion for leave to intervene is GRANTED. Falls Lake Fire and Casualty Company is ordered to file and serve its Complaint-in-Intervention within 10 days. Falls Lake Fire and Casualty Company to provide notice and file a proof of service of such. [1] Plaintiff Melissa Cossio brings a loss of consortium action only.

Ruling

DOE #1 (C.S.) vs DHSL, LLC
Jul 10, 2024 | CVPS2400961
Demurrer on Complaint by DHSO, INC., CVPS2400961 DOE #1 (C.S.) vs DHSL, LLC DHSL, LLC, and DHSE, INC. Tentative Ruling: Sustained in part, and overruled in part. Overruled as to all challenged causes of action with the exception of the 5th Cause of Action which is sustained without leave to amend. Defendants to file their answer within 20 days of this order becoming final. Plaintiffs to provide notice pursuant to CCP § 1019.5. Plaintiffs Jane Doe #1 (CS) and Jane Doe #2 (NH) (“Plaintiff”) filed the complaint (the “Complaint”) in the present action on February 15, 2023 against defendants DHSO, Inc.; DHSL LLC; and DHSE, Inc. (together, “Defendants”). Plaintiffs allege they separately went for massages at Miracle Springs Resort and Spa (the “Resort”), which is alleged to be owned and operated by Defendants. The assigned massage therapist, Francisco Terredanio III (“Terredanio”), engaged in unwanted and offensive sexual touching of Plaintiffs during the massages, which they describe in detail in the Complaint. They reported Terredanio’s inappropriate conduct. The manager told one Terredanio’s employment would be terminated and thanked her for coming forward. However, no termination of employment occurred and when the same happened to Doe #2, the manager of the Resort indicated she would provide a refund. Plaintiffs allege Defendants took no action against and continued to employ Terredanio. The Complaint sets forth six causes of action: (1) negligence; (2) negligent infliction of emotional distress (“NIED”); (3) intentional infliction of emotional distress (“IIED”); (4) sexual battery (Civ. Code § 1708.5); (5) gender violence (Civ. Code § 52.4); and (6) Ralph Act violation (Civ. Code § 51.7). Defendants DHSO, Inc.; DHSL LLC; and DHSE, Inc. (“Defendants”) demur to the Complaint and argue: (1) Plaintiff failed to comply with Civ. Code § 364; (2) the first through sixth causes of action are unintelligible and uncertain; (3) the first cause of action through third causes of action only allege economic loss; (4) the second cause of action for NIED is redundant of the first cause of action for negligence; (5) the third cause of action for IIED fails because the Complaint does not set forth outrageous conduct by Defendants; (6) the fourth cause of action for sexual battery fails because the Complaint does not allege facts demonstrating “harmful and offensive contact” and does not describe Defendant’s actual knowledge or ratification of Terredanio’s conduct; (7) the fifth cause of action for gender violence fails because the Complaint does not set forth a violation of Civ. Code § 52.4(e) by Defendants; and (7) the sixth cause of action does not describe an act of violence in violation of the Ralph Act. In opposition, Plaintiffs argues: (1) Civil Code § 364 is inapplicable, as the present action is not based upon professional negligence; (2) the first through fourth causes of action are not uncertain and are properly pleaded; (3) the first and second causes of action are properly pleaded and Defendant has not set forth a sufficient basis for demurrer; (4) the Complaint sufficiently sets forth outrageous conduct to support the third cause of action for IIED; (5) the fourth cause of action for sexual battery and fifth cause of action for gender violence are properly pleaded; and (6) the allegations of Terredanio’s unwanted and offensive touching is sufficient to support the sixth cause of action for violations of the Ralph Act. Demurrer A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded, of facts which may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductions or conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) Facts appearing in exhibits attached to the complaint will also be accepted as true and, if contrary allegations appear in the complaint, will be given precedence. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 606.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A special demurrer lies where a pleading is uncertain, ambiguous and unintelligible. (CCP § 430.10(f).) Demurrers for uncertainty, however, are typically sustained where the defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Special Demurrer for Uncertainty Defendants challenges the first four causes of action on the ground of uncertainty under CCP § 430.10(f). However, Defendants fail to explain how the claims are uncertain such that Defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against it. (Khoury, supra, 14 Cal.App.4th at 616.) While Defendants appears to argue that the Complaint lacks any basis for its liability for Terredanio’s actions, the Complaint very clearly alleges that Defendants owned and operated the Resort and employed Terredanio. (See Complaint, ¶¶ 4-8, 20-26.) Any clarification Defendants require may be obtained through discovery. OVERRULED. CCP § 364 Is Inapplicable to the Present Action Defendants first argues that because Plaintiff failed to comply with the notice provisions under CCP § 364, the demurrer to the Complaint should be sustained without leave to amend. CCP § 364(a) provides that an action based upon the professional negligence of a health care provider “may not be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” On its face, CCP § 364 only applies to actions for professional negligence. Here, Plaintiff has not set forth a cause of action for professional negligence/malpractice. Moreover, even if the statute were applicable – and it is not – additional causes of action that arise out of the same facts as a medical malpractice action do not trigger MICRA. (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 354-56.) More importantly, the failure to provide notice is not a ground for sustaining a demurrer; rather, under the express language of CCP § 365, the failure to comply with CCP § 364 is grounds for discipline of the attorney. OVERRULED. 1ST and 2nd Causes of Action – Negligence and Negligent Infliction of Emotional Distress (NIED) “Actionable negligence involves a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal. 4th 568, 573 [quoting United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594] [internal quotation marks omitted].) However, there is no independent tort of NIED; the tort is negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Thus, the elements of cause of action for NIED are: (1) legal duty to use due care; (2) breach of such legal duty; (3) damage or injury; and (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) The law of NIED is typically analyzed by reference to two “theories” of recovery: the “bystander” theory and the “direct victim” theory. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) Bystander liability is premised upon a defendant’s violation of duty not to cause emotional distress to people who observe negligent conduct which causes harm to another. (Id. at 1072.) In John R. vs. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447-452, the California Supreme Court held that sexual assault committed by a public school teacher was not within the scope of employment because the act was in no way incidental to any duties that the teacher was engaged to perform and could not fairly be said to be a foreseeable risk inherent in the teacher’s activities. (See also John Y. v. Chaparral Treatment Ctr., Inc. (2002) 101 Cal.App.4th 565, 575-576 [no respondeat superior liability for sexual misconduct by counselor at a residential facility for emotionally disturbed children]; Juarez vs. Boy Scouts of America (2000) 81 Cal.App.4th 377, 397-395 [no respondeat superior liability against church and organization for sexual assault of boy scout by troop leader]. See also Mary M. vs. City of Los Angeles (1991) 54 Cal.3d 202, 214-216 [city vicariously liable for a sexual assault by an off-duty police officer following a traffic stop: the officer who detains an individual is acting as the official representative of the state, with all its coercive power, and it is neither startling nor unexpected that on occasion an officer will misuse that authority by engaging in assaultive conduct].) In the present case, the Complaint sets forth sufficient facts from which the trier of fact could conclude that Defendants are liable for Terredanio’s conduct under a respondeat superior theory of liability. The assault took place while Terredanio was massaging Plaintiff within the scope of his employment duties, and it cannot be said that his actions were wholly unrelated to his employment duties or that they did not arise from the conduct of Defendants’ business. The risk of tortious injury could be deemed to be inherent in the working environment, or typical of or broadly incidental to the enterprise the employers have undertaken. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003-04.) Further, Terredanio’s alleged sexual assault is arguably a foreseeable consequence of the business activity. (See Lisa M., supra, 12 Cal.4th at 301-02, quoting Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.2d 608, 619 [“An intentional tort is foreseeable, for purposes of respondeat superior, only if in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business”] [emphasis in the original] [internal quotation marks omitted]. The determination whether Terredanio was acting within the scope of his employment presents a question of fact. (Lisa M., supra, 12 Cal.4th at 299; Farmers Ins. Group, supra, 11 Cal.4th at 1019.) In sum, in their first cause of action for negligence, Plaintiffs allege a direct cause of action against Defendants and includes allegations that Defendants negligently hired, trained, supervised and/or retained Terredanio. (Complaint, ¶¶ 69-73.) In their second cause of action, Plaintiffs similarly seeks to hold Defendants directly liable for their own actions, although they also include allegations based upon their ratification –that is, they allege that Defendants are vicariously liable for Terredanio’s negligent actions. (Complaint, ¶¶ 63-69.) While the claims contain some redundancies, Plaintiffs have set forth two separate theories of recovery. OVERRULED. 3rd Cause of Action – Intentional Infliction of Emotional Distress (IIED) A cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageous conduct with the intent of causing, or reckless disregard of the probability of causing, emotional distress; (2) suffering of sever or extreme emotional distress; and (3) actual and proximate cause resulting from the conduct. (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050-51). “A defendant’s conduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at 1050 [quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001] [internal quotation marks omitted]). In order to avoid a demurrer, the plaintiff must allege with “great specificity” the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) Importantly, a court is not required to accept blindly as true the conclusory allegation that a defendant’s conduct was extreme and outrageous; rather, it may decide it does not suffice as a matter of law. (Bock, supra, 225 Cal.App.4th at 235; Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 781; McClintock v. West (2013) 219 Cal.App.4th 540, 556; Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.) In the present case, Defendants argues that Plaintiffs have not set forth any factual allegations of extreme or outrageous conduct. The argument is not well taken. Indeed, the Complaint includes detailed allegations Terredanio’s unauthorized and offensive touching of Plaintiff Jane Doe #1 (Comp. ¶¶ 30-35, 86) and Jane Doe #2 (Comp. ¶¶ 43-51, 87). There is no legitimate dispute that Plaintiff’s allegations set forth extreme and outrageous actions that exceed all bounds of that usually tolerated in a civilized community under these circumstances. Further, Plaintiffs alleges that they have suffered severe emotional distress and has experienced physical manifestations of distress and disgrace, humiliation, loss of enjoyment of life and has incurred and will continue to incur expenses for medical expenses. (Comp., ¶¶ 89-90.) Plaintiffs allegations of severe emotional distress, especially given the factual circumstances, are sufficient at the pleading stage. (Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 476-77.) OVERRULED. 4TH Cause of Action – Sexual Battery Under Civ. Code § 1708.5(a), a person commits sexual battery if he does any of the following: (1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another, and a sexually offensive contact with that person directly or indirectly results. (2) Acts with the intent to cause a harmful or offensive contact with another by use of his or her intimate part, and a sexually offensive contact with that person directly or indirectly results. (3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensive contact with that person directly or indirectly results. A cause of action for sexual battery requires that the batterer intend to cause a harmful or offensive contact and that the victim suffer a sexually offensive contact. (Jacqueline R. v. Household of Faith Family Church, Inc. (2002) 97 Cal.App.4th 198, 208; Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1225.) Defendants argue that Plaintiffs attempt to plead the claim as a negligence per se tort. Defendants also argue that the Complaint fails to set forth harmful or offensive contact and does not set forth a basis for liability against Defendants. Contrary to Defendants arguments, Plaintiffs allegations here sufficiently set forth a claim for sexual battery. As discussed above, Plaintiffs sets forth allegations of harmful and offensive contact in great detail. Further, Plaintiffs adequately set forth allegations of ratification to support liability against Defendants. Importantly, principles of ratification apply to a claims for sexual battery, and an employer may be liable for an employee’s act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. (See C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110-11; see also Andrade v. Arby's Restaurant Group, Inc. (N.D. Cal. 2016) 225 F.Supp.3d 1115, 1129-31.) Notably, the California Supreme Court has explained: Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. A purported agent’s act may be adopted expressly or it may be adopted by implication based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it. (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73 [emphasis supplied].) “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (C.R., supra, 169 Cal.App.4th at 1110.) Importantly, retention of an employee after knowledge of the employee’s conduct or an adequate opportunity to learn of the conduct may support an inference of ratification. (See Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 852. See also Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169-70 [“Whether an employer has ratified an employee’s conduct is generally a factual question”].) Here, Plaintiffs alleges that she informed the Resort’s manager of Terredanio’s conduct and that Defendants took no disciplinary action against Terredanio continue to employ him as a massage therapist. (Complaint, ¶¶ 36, 51, 63, 96.) Plaintiffs allegations are sufficient at the pleading stage. OVERRULED. 5th Cause of Action – Gender Violence Civ. Code § 52.4(a) provides that “[a]ny person who has been subjected to gender violence may bring a civil action for damages against any responsible party.” Importantly, § 52.4(c) defines “gender violence” as: (1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. (2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. While Plaintiffs allegations would easily set forth a cause of action for gender violence against Terredanio (who is not a party to the action), their allegations are insufficient to state a claim against Defendants. Importantly, Civ. Code § 52.4(e) provides: Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender violence. Defendants correctly argue that the Complaint does not set forth any allegation that it personally committed an act of gender violence and that under the explicit terms of the statute, it cannot be held vicariously liable. (See Doe v. Pasadena Hospital Association, Ltd. (C.D. Cal., Mar. 16, 2020) No. 2:18-CV-08710-ODW (MAAx), 2020 WL 1244357 at *8 [Civ. Code § 52.4(e) exempts employers from liability on a claim of gender violence for the acts of their employees].) SUSTAINED WITHOUT LEAVE TO AMEND. 6TH Cause of Action – Violation of the Ralph Act Under the Ralph Act, all persons within the state have the right to be free from violence, or intimidation by threat of violence, committed against their persons or property because of protected characteristics, including sex/gender. (Civ. Code § 51.7(a); see also Civ. Code § 51(b) and (e) [enumerating protected characteristics].) To state a claim under the act, a plaintiff must show that (1) the defendant threatened or committed violent acts against the plaintiff; (2) the defendant was motivated by his perception of plaintiff’s protected characteristic (here, Plaintiffs’ sex/gender); (3) the plaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 881 [quoting CACI 3023]; see also Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291 [“Under the Ralph Act, a plaintiff must establish the defendant threatened or committed violent acts against the plaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive, or that the defendant aided, incited, or conspired in the denial of a protected right”].) Civ. Code § 51.7 is a “hate crime” statute and requires actual threats of violence to a person or their property. (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486.) Further, under Civ. Code § 52(b), “[w]hoever denies the right provided by Section 51.7 …, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right.” Courts have construed the statute to create liability on the part of an employer for a § 51.7 violation committed by an employee. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1457-58; Winarto v. Toshiba Am. Elec. Components (9th Cir. 2001) 274 F.3d 1276, 1290, 1292-93; Beliveau v. Caras (C.D. Cal. 1995) 873 F.Supp. 1393, 1400-01; see also Links, Robert D., Cal. Civ. Prac. Civil Rights Litigation (Thomson Reuters 2022) § 3:6.) In the present case, Defendants argue that the Complaint does not set forth an act of violence. The argument lacks merit. As discussed above, the Complaint sets forth detailed allegations of sexual assault/battery, and Plaintiffs further alleges that perception of their sex was a motivating reason for Terredanio’s conduct and that his conduct was a substantial factor in causing their harm. (Comp., ¶¶ 30-35, 43-51, 86-87, 109, 112.) Sexual assault constitutes violence under the Ralph Act, regardless of the level of force. (See Roe v. California Department of Developmental Services (N.D. Cal., May 26, 2017) No. 16-CV-03745-WHO, 2017 WL 2311303 at *9; see also Winarto, supra, 274 F.3d at 1289 [“[T]here is no requirement that the violence be extreme.... If the California legislature wanted to limit the reach of the statute to extreme, criminal acts of violence, it could have explicitly said so”].) Plaintiff’s allegations are sufficient at the pleading stage. OVERRULED. 3. Motion to Strike Plaintiff’s Complaint by CVPS2400961 DOE #1 (C.S.) vs DHSL, LLC DHSO, INC., DHSL, LLC, and DHSE, INC. Tentative Ruling: Denied. Plaintiff to provide notice pursuant to CCP § 1019.5. Plaintiffs Jane Doe #1 (CS) and Jane Doe #2 (NH) (“Plaintiff”) filed the complaint (the “Complaint”) in the present action on February 15, 2023 against defendants DHSO, Inc.; DHSL LLC; and DHSE, Inc. (together, “Defendants”). Plaintiffs allege they separately went for massages at Miracle Springs Resort and Spa (the “Resort”), which is alleged to be owned and operated by Defendants. The assigned massage therapist, Francisco Terredanio III (“Terredanio”), engaged in unwanted and offensive sexual touching of Plaintiffs during the massages, which they describes in detail in the Complaint. They reported Terredanio’s inappropriate conduct; however, the manager of the Resort indicated she would provide a refund to one and speak with Terredanio about the complaints. Plaintiffs allege Defendants took no action against and continued to employ Terredanio. The Complaint sets forth six causes of action: (1) negligence; (2) negligent infliction of emotional distress (“NIED”); (3) intentional infliction of emotional distress (“IIED”); (4) sexual battery (Civ. Code § 1708.5); (5) gender violence (Civ. Code § 52.4); and (6) Ralph Act violation (Civ. Code § 51.7). Defendants move to strike the demand for punitive damages on the ground that Plaintiff has not set forth facts supporting the demand against them. Defendants further argue that Plaintiff’s allegations of ratification should be stricken because there is no indication that Plaintiff reported Terredanio’s conduct to Defendants. Lastly, Defendants argues that the demand for attorney fees should be stricken as the Complaint fails to set forth a statutory basis for an award of fees. In opposition, Plaintiffs argue that the Complaint sets forth sufficient facts to demonstrate ratification and to support the demand for punitive damages. Plaintiffs further argue that the Complaint properly demands attorney fees in accordance with Civ. Code §§ 51.7, 52.4 and 1708.5. Punitive Damages To support a demand for punitive damages under Civ. Code § 3294, a plaintiff must plead and prove facts demonstrating malice, oppression or fraud as defined in (Civ. Code § 3294(c).) As defined in the statute, malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others,” while oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(1)- (2).) Despicable conduct is conduct that is base, vile or contemptible. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The mere allegation that an intentional tort was committed is not sufficient to warrant an award of punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) “There must be circumstances of aggravation or outrage, such as spite or malice or a fraudulent or evil motive on the part of defendant, or such conscious and deliberate disregard for the interests of others that his conduct may be called willful or wonton.” (Id. at 894-95 [citation and internal quotation marks omitted].) However, “[i]t has long been the rule that conduct classified only as unintentional carelessness, while it may constitute negligence or even gross negligence, will not support an award of punitive damages.” (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-86.) In the present case, Defendants argues that Plaintiffs fails to plead specific facts to demonstrate malice, oppression or fraud to support the demand for punitive damages. However, as discussed above, Plaintiff sets forth detailed allegations of Terredanio’s alleged sexual assault, actions which are indisputably base, vile and contemptible. The allegations, if proven, are sufficient to support an award of punitive damages. Notwithstanding, Defendant argues that Plaintiff fails to allege that the acts constituting malice, oppression and/or fraud were ratified by an officer, director or managing agent of the Resort in accordance with Civ. Code § 3294(b). Civ. Code § 3294(b) sets forth the circumstances under which an employer may be held liable for punitive damages based upon acts of an employee. They include the employer’s (1) advance knowledge of the employee’s unfitness; (2) authorization or ratification of the wrongful conduct; and (3) personal culpability. (See Grieves v. Superior Court, 157 Cal.App.3d 159, 167.) Moreover, a corporate employer may be liable only if the knowledge, authorization, ratification or act itself was on the part of an officer, director or managing agent of the corporation. (Civ. Code § 3294(b); Grieves, 157 Cal.App.3d at 167-68.) Thus, when the defendant is a corporation, an award of punitive damages against that corporation must rest on the malice of the corporation’s employees. (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164.) That is, the law does not simply impute every employee’s malice to a corporation; rather, the punitive damages statute requires proof of malice among corporate leaders: that the corporation’s officers, directors or managing agents had knowledge of the employee’s unfitness, authorized or ratified the wrongful conduct, or had personal culpability. (Civ. Code § 3294(b); Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) Here, the Complaint contains broad allegations that officers and/or directors knew of Terredanio’s unfitness. (Complaint, ¶¶ 21-28.) Further, Plaintiffs allege that they directly advised the manager of the Resort of Terredanio’s conduct but that Defendants thereafter did not take any disciplinary action and that they continued to employ Terredanio as a massage therapist. (Complaint, ¶¶ 35-38, 42, 51- 53.) While the allegations of corporate authorization/ratification are set forth in conclusory terms, it is a general canon of pleading that less specificity is required where the facts lie more in the knowledge of the defendant. (Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217.) Pleading in the language of the statute is not objectionable when sufficient facts are alleged; nor is it proper to strike punitive damages simply because the averments of the complaint are mostly conclusory and subject to being stricken. (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) Plaintiffs allegations are sufficient at the pleading stage to support the demand for punitive damages as against Defendants. DENIED. Attorney Fees A prevailing party may recover attorney fees only when a statute or contract provides for fee shifting. (Kirby v. Immoos Fire Protection (2012) 53 Cal. 4th 1244, 1248.) Here, as discussed in the accompanying demurrer, Plaintiff has set forth a viable cause of action under the Ralph Act, which provides for an award of attorney fees. (Civ. Code § 52(b)(3).) DENIED.

Ruling

BINTI-MICHAL DECOHEN-MILLER, BY AND THROUGH HER GUARDIAN AD LITEM JEZREEL PATRICIA DECOHEN, ET AL. VS RC STREET SHOP, LLC, ET AL.
Jul 10, 2024 | 20STCV36314
Case Number: 20STCV36314 Hearing Date: July 10, 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 DEPT : 32 HEARING DATE : July 10, 2024 CASE NUMBER : 20STCV36314 MOTIONS : Petition for Minors Compromise MOVING PARTY: Petitioner Jezreel Patricia Decohen OPPOSING PARTY: Unopposed The Court has reviewed the petition filed on July 1, 2024 by Petitioner Jezreel Patricia Decohen (Petitioner) on behalf of Claimant Binti-Michal Decohen-Miller, age 6. The Court denies the petition without prejudice for the following reasons: Petitioner must use the most updated MC-350, 351, 355 forms (Rev. Jan. 1, 2021) in future petitions. Note: the item/attachment numbers in this order may vary from the numbers in the updated forms. Claimant was injured after a foldable security gate at a store fell on her hand. Petitioner contends Claimant has recovered completely and there are no permanent injuries. However, this is contradicted in item 6: As a result, Claimant suffered severe and permanent injuries. Item 6 also states that the gate landed on Claimants right hand and fingers, however item 7 only asserts injuries to the left-hand fingers. The medical records in attachment 8 show that Claimant suffered from injuries to her right hand. Petitioner must correct these inconsistencies. Petitioner must provide attachment 12b(6) describing reasons for the apportionment between Claimants and Marcus Millers settlements. Petitioner requests $48,333.33 in attorney fees which represents 33.33% of the gross settlement. The attorney declaration in attachment 14a must be signed. Petitioner must include in attachment 15, a declaration attesting to the medical expenses paid for and the amounts incurred. The declaration must also contain exhibits with proof of the medical expenses and payments made, totaling $4,084.82. Petitioner must include the medical expenses she seeks to get reimbursed in item 17b instead of 17d. It appears Petitioners attorney is representing another plaintiff in this matter. Item 18e and the applicable attachment must be provided. Petitioner must provide attachment 19b(2). In the proposed order (MC-351), item 7c(1)(b) appears to improperly include the medical liens. Also, the Medi-Cal lien is not reflected in the order. If Petitioner did not pay this, then the Medi-Cal lien must be reflected in 7c(1)(c). Accordingly, the Court denies the petition without prejudice. Petitioner shall give notice and file a proof of service of such.

Ruling

JANE DOE L.P., ET AL. VS DOWNEY UNIFIED SCHOOL DISTRICT
Jul 11, 2024 | 20STCV30564
Case Number: 20STCV30564 Hearing Date: July 11, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT JANE DOE L.P., Plaintiff, vs. DOWNEY UNIFIED SCHOOL DISTRICT, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 20STCV30564 [TENTATIVE] ORDER GRANTING IN PART MOTION TO COMPEL FURTHER RESPONSES Dept. 48 8:30 a.m. July 11, 2024 On December 11, 2023, Plaintiff Jane Doe L.P. served a Notice of Taking Deposition of Defendant Downey Unified School Districts Person Most Knowledgeable and Fact Witness Principal Tom Houts and Request for Production of Documents (RFPs) on Defendant Downey Unified School District. On February 22, 2024, Plaintiff filed a motion to compel further responses to RFP No. 4. At the March 19, 2024, hearing, the Court found that some information about K.G., such as that related to Defendants knowledge of his prior similar misconduct and need for supervision, may be relevant. However, the Court found that RFP No. 4 was overbroad. The Court also noted that the request infringed on K.G.s privacy rights without giving him notice before the disclosure. Accordingly, the Court continued the hearing, ordered the parties to meet and confer about the scope of RFP No. 4, and ordered Defendant to provide K.G.s guardians last known address and phone number to Plaintiff so that Plaintiff could provide notice of the motion and the continued hearing date. On May 3, 2024, Plaintiffs counsel filed a supplemental declaration. Plaintiff has served K.G.s guardian with notice of the motion via U.S. mail and email. (Baldermann Suppl. Decl. ¶ 13 & Ex. 13.) Since the last hearing, Plaintiff and Defendant have been discussing the scope of RFP No. 4. (Baldermann Suppl. Decl. ¶¶ 6-10.) However, from April 18, 2024 through May 1, 2024, Defendants counsel stopped responding to Plaintiffs counsel. (Baldermann Suppl. Decl. ¶ 11.) At the June 4, 2024 hearing, the Court ordered supplemental briefing and continued the hearing. Defendant timely filed a supplemental brief with exhibits. One of these exhibits is an email from K.Gs guardian in response to a conversation with Defendants counsel, which states, I do not Authorize Downey Unified School District to release [K.G.s] school records. And also [K.G.] will be pleading the Fifth Amendment. (Evenstad Decl., Ex. D.) As propounded, RFP No. 4 requests Any and all SCHOOL RECORDS in YOUR possession, custody or control for K.G. SCHOOL RECORDS is defined as any and all written notes, memos, reports, or other writings regarding a student including but not limited to report cards, progress reports, letters, notes, nurses notes, attendance records, health records, incident reports, IEP reports, correspondence, class schedules, or any other written material having anything whatsoever to do with the student in YOUR possession, custody or control. Defendants last specific offer (March 26, 2024) was for K.G.s student profile, enrollment history, attendance history, entry into the special education program dates, and the September 2019 IEP outlining the supervision/services that his IEP called for at the time of the incident. (Baldermann Suppl. Decl. ¶ 6 & Ex. 7.) On April 23, 2024, Defendants counsel communicated that she think[s] the production should be limited to the IEP in place at the time of the incident, which is really the only thing that would meet the directly relevant standard. (Evenstad Supple Decl., Ex. C.) Plaintiffs last request (April 25, 2024) was for K.G.s student profile, enrollment history, class schedule for the 2019-2020 school year, entry into the special education program dates, IEP/504 Triennial Plans for the time period of August 1, 2012 - December 6, 2019, behavioral and psychosocial reports up until December 6, 2019, Disciplinary Records from August 1, 2012 - December 6, 2019, if any, which shall include written/recording verbal warnings, written warnings, incident reports, suspensions, detentions, complaints regarding behavioral issues and incidents, reprimands, and any similar admonishments of inappropriate behavior demonstrated by K.G. (Baldermann Suppl. Decl. ¶ 10 & Ex. 11.) In its supplemental opposition, Defendant now asks the Court to limit the production to K.G.s student profile with his demographic information and enrollment history and special education program information, which includes the special education programs and dates from 2011 through the time of the incident; K.G.s September 2019 IEP; and K.G.s discipline history from the start of summer school 2019 until the incident, which is the only time that plaintiff and K.G. attended Downey High School. (Suppl. Opposition at p. 4.) Defendant contends that it cannot offer more or less supervision of a student where it is not called for in an IEP and agreed to by the parent, and a school cannot implement any special education program or provide services to a child if the parent doesnt agree to them. (Suppl. Opposition at pp. 6-7.) However, Defendant focuses only on the IEPs requirement of parental consent to the provision of special education and related services, not Defendants general duty to supervise and protect against foreseeable harms for all students. (See id. at pp. 6-8 [citing Education Code sections 56340, 56341, 56341.1, 56345].) California courts have long recognized that a student may recover for injuries proximately caused by a breach of [a schools] duty to supervise. ( M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 518.) The existence of a duty of care of a school district toward a student depends, in part, on whether the particular harm to the student is reasonably foreseeable. ( Ibid. ) The harm may be foreseeable when the alleged perpetrator was repeatedly disciplined for grave acts of defiance and inappropriate and violent behavior. ( Id. at p. 520.) Plaintiff alleges that on December 6, 2019, her one-on-one aide abandoned her, resulting in Plaintiff being assaulted by K.G. (Complaint ¶ 22.) Plaintiff alleges that Defendant negligently failed to carry out its duties to properly and adequately supervise Plaintiff L.P. and failed to discipline, investigate, warn, appropriately supervise, or suspend [K.G.] despite having actual or constructive knowledge that he had engaged in inappropriate conduct with other minor student. (Complaint ¶¶ 23, 46.) Accordingly, Defendants limitation to K.Gs student profile, September 2019 IEP, and discipline history from summer 2019 is too narrow. The limitation for K.G.s discipline history for the only time that plaintiff and K.G. attended Downey High School is particularly too narrow if Defendant had additional knowledge of K.G.s behavior from prior attendance at other schools in Defendants district. The motion to compel further is GRANTED IN PART. Defendant is ordered to respond to RFP No. 4 by producing the following documents to Plaintiff within 30 days: K.G.s student profile; enrollment history; class schedule for the 2019-2020 school year; dates of entry into the special education program; IEP/504 Triennial Plans for the time period of August 1, 2012 to December 6, 2019; behavioral and psychosocial reports up until December 6, 2019; and Disciplinary Records from August 1, 2012 to December 6, 2019, if any, including written/recording verbal warnings, written warnings, incident reports, suspensions, detentions, complaints regarding behavioral issues and incidents, reprimands, and any similar admonishments of inappropriate behavior demonstrated by K.G. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 11th day of July 2024 Hon. Thomas D. Long Judge of the Superior Court

Ruling

DOUGLAS DA SILVA MCGLEW VS FATAMEH SHAMIE, ET AL.
Jul 10, 2024 | 20STCV48002
Case Number: 20STCV48002 Hearing Date: July 10, 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 10, 2024 CASE NUMBER 20STCV48002 MOTIONS Consolidate MOVING PARTY Defendants Fatameh Shamie and Mohammed Shamie OPPOSING PARTY None BACKGROUND On February 21, 2024, Defendants Fatameh Shamie and Mohammed Shamie (Defendants) moved the Court to consolidate this case with the following for all purposes: McGlew v. Carriger (Case No. 20STCV48811) ( Carriger ) and McGlew v. Coxwell (Case No. 21STCV16214) ( Coxwell ). The Court denied the motion. On May 23, 2024, Defendants again moved to consolidate. No opposition has been filed. LEGAL STANDARD California Code of Civil Procedure section 1048 states: When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Under California Rules of Court, rule 3.350, subdivision (a)(1), a notice of motion to consolidate must: (A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and (C) Be filed in each case sought to be consolidated. (2) The motion to consolidate: (A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case; (B) Must be served on all attorneys of record and all non-represented parties in all of the cases sought to be consolidated; and (C) Must have a proof of service filed as part of the motion. ¿Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different department, have been¿related¿into a single department, or if the cases were already assigned to that department. (LASC Local Court Rules, Rule 3.3(g)(1).) The purpose of consolidation is to avoid unnecessary costs or delay, avoid duplication of procedure, particularly in the proof of issues common to both action, and avoid inconsistent results by hearing and deciding common issues together. (See Estate of Baker (1982) 131 Cal.App.3d 471, 485.) The granting or denial of a motion to consolidate rests in the trial court's sound discretion, and will not be reversed except upon a clear showing of abuse of discretion. ( Feliner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.) Each case presents its own facts and circumstances, but the court generally considers the following: (1) timeliness of the motion: i.e., whether granting consolidation would delay the trial of any of the cases involved; (2) complexity: i.e., whether joining the actions involved would make the trial too confusing or complex for a jury; and (3) prejudice: i.e, whether consolidation would adversely affect the rights of any party. (See State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 430431.) DISCUSSION As an initial matter, the three cases have not been deemed related. A Notice of Related Actions was filed on June 3, 2024 (after this motion was filed), which the Court denied. Defendants argue that these cases involve motor vehicle accidents that occurred from December 18, 2018 to May 2019, involving the same Plaintiff but different defendants. Defendants contend that Plaintiff was treated by the same medical providers and is represented by the same counsel in all cases. Although Defendants seek to consolidate on the basis of purportedly similar issues involving damages, as Defendants acknowledge, all three cases involve separate automobile accidents. (Motion at p. 8.) Because the cases have not been deemed related and are not pending in this department, the motion to consolidate is denied. (LASC Local Court Rules, Rule 3.3(g)(1).) CONCLUSION AND ORDER Accordingly, Defendants Motion to Consolidate is DENIED. Defendants shall provide notice of this order and file a proof of service of such.

Ruling

PAULA YORK HERRIOTT VS LOS ANGELES COUNTY SHERIFF'S DEPARTMENT
Jul 10, 2024 | 21STCV36711
Case Number: 21STCV36711 Hearing Date: July 10, 2024 Dept: 51 Tentative Ruling Judge Upinder S. Kalra, Department 51 HEARING DATE: July 10, 2024 CASE NAME: Paula York Herriott v. Los Angeles County Sheriffs Department CASE NO .: 21STCV36711 (1) MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; (2) MOTION FOR ENTRY OF JUDGMENT PURSUANT TO CCP § 438(i)(1)(B) MOVING PARTY : (1) Plaintiff Paula York Herriott (2) Defendant County of Los Angeles erroneously sued as Los Angeles County Sheriffs Department RESPONDING PARTY(S): None to either motion as of July 5, 2024. REQUESTED RELIEF: Motion for Leave: 1. An Order granting leave for Plaintiff to file an Amended Complaint attaching a new Exhibit. Motion for Entry of Judgment: 1. An Order entering judgment against Plaintiff in Defendants favor. TENTATIVE RULING: 1. Motion for Leave to Amend is DENIED; 2. Motion for Entry of Judgment is GRANTED. STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: On October 5, 2021, Plaintiff Paula York Herriott (Plaintiff) filed a Complaint against Defendant Los Angeles County Sheriffs Department (Defendant) with three causes of action for: (1) General Negligence Civil Rights Violation, (2) General Negligence Defamation, and (3) General Negligence Emotional Distress. That same date, Plaintiff filed a second Complaint against Defendant Catalina Island Company (Catalina) bearing Case No. 21STCV36719 for the same alleged incident. According to the Complaint, Defendant arrested Plaintiff on October 5, 2019 resulting from an altercation where Plaintiff was attacked by a third party. Plaintiff alleges that Defendant wrongfully arrested her, added her information to their criminal databank, and exposed her private area to the public during the arrest. On January 6, 2022, Defendant filed an Answer. On January 18, 2022, Defendant filed a Notie of Related Case which was granted. On March 16, 2022, Catalina filed an Answer. On April 28, 2023, the parties filed a Stipulation to Continue FSC, Trial and All Related Pre-Trial Motion/Discovery Deadlines which the court GRANTED. On February 22, 2024, Defendant filed a Motion for Judgment on the Pleadings which the court GRANTED with leave to amend as to Government Claim Act section 915, only. On May 8, 2024, Plaintiff filed a Motion for Leave to file First Amended Complaint. On May 20, 2024, Defendant filed a Motion for Entry of Judgment in its Favor Pursuant to CCP § 438(i)(1)(B) for failure to amend. Neither party filed oppositions to these motions. LEGAL STANDARD: Leave to Amend California Code of Civil Procedure (CCP) section 473, subdivision (a)(1) provides, in relevant part: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer.¿ The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.¿¿¿ ¿¿ This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.¿ ( Kittredge Sports Co. v. Superior Court ¿(1989) 213 Cal.App.3d 1045, 1047.)¿ Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature.¿ The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment.¿ (See¿ California Casualty General Ins. Co. v. Superior Court¿ (1985) 173 Cal.App.3d 274, 281 (overruled on other grounds by¿ Kransco¿v. American Empire Surplus Lines Ins. Co. ¿(2000) 23 Cal.4th 390).)¿¿¿ ¿¿ Under California Rules of Court Rule (CRC), rule 3.1324, subdivision (a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.¿¿ ¿¿ Under California Rule of Court, rule 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.¿¿¿ Entry of Judgment Pursuant to CCP § 438(i)(1)(B) Where a motion for judgment on the pleadings is granted with leave to amend, the court shall not enter a judgment in favor of a party until the following proceedings are had: (A) If an amended pleading is filed and the moving party contends that pleading is filed after the time to file an amended pleading has expired or that the pleading is in violation of the courts prior ruling on the motion, then that party shall move to strike the pleading and enter judgment in its favor. (B) If no amended pleading is filed, then the party shall move for entry of judgment in its favor. (CCP § 438(i)(1)(A) & (B).) ANALYSIS : Leave to Amend Plaintiff contends leave to amend is warranted because the amendment will not prejudice Defendant and the failure to attach the claim was excusable mistake. Defendant did not file an opposition. [1] Here, Plaintiff did not comply with CRC rule 3.1324. Notably, the motion does not include the proposed First Amended Complaint. Instead, Plaintiff indicates the Complaint remains unchanged except for attaching a new exhibit. (Mot. for Leave to Amend 3:18-23.) Additionally, Plaintiffs declaration does not comport to the requirements of CRC rule 3.1324(b). [2] However, the court notes that Plaintiff previously had leave of court to amend her Complaint. [3] Therefore, Plaintiffs request to attach the proposed exhibit is in line with the scope of the courts leave to amend and so leave was not required. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) Still, Plaintiffs proposed amendment is incomplete. (See State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 [concluding that failing to allege facts demonstrating or excusing compliance with the claim presentation requirement subjects a claim against a public entity to a demurrer for failure to state a cause of action.]). In sum, the court cannot accept a proposed amended complaint that contains no proposed factual amendments. Accordingly, the court DENIES Plaintiffs motion for leave to amend. Entry of Judgment Pursuant to CCP § 438(i)(1)(B) Defendant contends that Judgment should be entered in its favor because Plaintiff did not amend the Complaint within 30 days from the courts ruling on its motion for judgment on the pleadings. Defendant further contends that Plaintiffs motion for leave to amend is an attempt to relitigate the courts prior ruling granting its Motion for Judgment on the Pleadings. Plaintiff did not file an opposition. Where a motion is granted pursuant to this section with leave to file an amended complaint or answer, as the case may be, then the court shall grant 30 days to the party against whom the motion was granted to file an amended complaint or answer, as the case may be. (CCP § 438(h)(2).) If an amended complaint is filed after the time to file an amended complaint has expired, then the court may strike the complaint pursuant to Section 436 and enter judgment in favor of that defendant against that plaintiff or a plaintiff. ( Id. at subd.(h)(4).) Here, dismissal is warranted. As noted above, Plaintiff intended to amend the Complaint to include an attachment that she appears to claim supports compliance with the Government Claims Act. Defendant has not provided authority that a pro se litigant who has indicated an intent to file an amended complaint is subject to dismissal pursuant to CCP § 438(i)(1)(B). [4] However, the statute is clear. [If] the motion is granted with respect to the entire complaint . . . with leave to file an amended complaint but one is not filed, then after the time to file an amended complaint . . . has expired, judgment shall be entered forthwith in favor of the moving party. (CCP § 438(h)(4)(C).) When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. ( Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) A pro se litigant is held to the same restrictive rules of procedure as an attorney. ( Ibid. ) Here, the court granted Defendants Motion for Judgment on the Pleadings on April 9, 2024. (Declaration of Anita Susan Brenner (Brenner Decl.) ¶3-4, Exhibit A.) Defendant served notice of ruling via e-mail on April 9, 2024. (Brenner Decl. ¶6.) Plaintiffs thirty-day plus two court day deadline to file an amended complaint was Monday, May 13, 2024. (CCP §438(h)(2) [30 days from granting motion for judgment on the pleadings with leave to amend]; § 1010.6(4)(A) [two court days attached to deadline].) Plaintiff did not file an amended complaint. Accordingly, the court GRANTS Defendants Motion for Entry of Judgment. The court refers to the proposed judgment submitted by Defendant. CONCLUSION: For the foregoing reasons, the Court decides the pending motion as follows: 3. Motion for Leave to Amend is DENIED; 4. Motion for Entry of Judgment is GRANTED. Defendant is to give notice. IT IS SO ORDERED. Dated: July 10, 2024 __________________________________ Upinder S. Kalra Judge of the Superior Court [1] Defendants concurrent motion for entry of judgment indicates that the proposed amendment is what Plaintiff proposed in opposition to the Motion for Judgment on the Pleadings. (Mot. for Entry of Judgment, 6:14-17.) [2] Plaintiffs declaration hints to these items but does not unequivocally do so. [3] Consistent with the law, the court uses its discretion to take reasonable steps to enable Plaintiff as a pro se litigant to be heard. (Cal. Code Jud. Ethics, canon 3B(8).) [4] Defendants argument pertaining to substantial compliance is premature and more appropriately included in opposition to Plaintiffs motion for leave to amend.

Ruling

Eric Amadei vs Timothy Morgan, ESQ, et al
Jul 11, 2024 | 23CV00719
23CV00719 AMADEI v. MORGAN (UNOPPOSED) MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE AND FOR MONETARY SANCTIONS The unopposed motion is granted. Plaintiff seeks an order deeming the truth of all matters specified in his requests for admissions, set one, propounded on defendant Morgan. Plaintiff also seeks monetary sanctions in the amount of $2,145.00. I. Legal Authority Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), if a party fails to serve a timely response to requests for admission, the requesting party may move for an order that the genuineness of any documents and the truth of any matter specified in the request be deemed admitted, as well as for monetary sanctions. Code of Civil Procedure section 2033.280, subdivision (c) requires the court to make this order “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” II. Discussion Page 2 of 3 Pursuant to the Discovery Act, the court shall order the requests for admission as admitted unless code-compliant responses are served before the hearing. (Code of Civ. Proc. § 2033.280, subd. (c).) Plaintiff served requests for admissions, set one on April 5, 2024, via electronic service, on defendant. (Ex. 2 to Dec. of U. Singh.) Defendant failed to respond to the requests and has not communicated with plaintiff’s counsel regarding the requests. (Dec. of U. Singh at ¶ 8.) The court deems admitted all matters specified in requests for admissions, set one, attached to the Declaration of Mr. Singh as Ex. 2. (Code Civ. Proc. § 2033.280, subd. (b).) This will be the order of the court unless defendant serves, before the hearing on the motion, a proposed response to the requests for admissions that is in substantial compliance with Code of Civil Procedure section 2033.220. The court imposes monetary sanctions against defendant Morgan in the amount of $1,195.00, payable no later than July 31, 2024. Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing (unless the tentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

JONATHAN ALVAREZ VS DANIEL J. MCGUIRE
Jul 11, 2024 | 23VECV01049
Case Number: 23VECV01049 Hearing Date: July 11, 2024 Dept: T Alvarez v McGuire 23VECV01049 Tentative ruling: Motion for Summary Judgment and Request for Adjudication of Issues The plaintiffs motion for summary judgment is denied. If a plaintiff moves for summary judgment, he must establish by admissible facts that there are no triable issues to be tried to the jury. Here, plaintiff would have to show that there is no triable issue of fact on the First Amended Complaint which includes causes of action for Conversion, Assault, Violation of Civil Code section 51.7, Violation of Civil Code section 52.1, Intentional Infliction of Emotional Distress, and Negligence. The motion is denied because plaintiffs have failed to establish that there is no triable issue as to the amount of damages suffered by the plaintiffs. A plaintiff can win a case on summary judgment. Section 437c makes summary judgment available when it is shown that an action has no merit or that there is no defense to the action. So, a plaintiff who could show that the defendant had no defense to the claim would be entitled to summary judgment. But this would mean proving every element of the plaintiffs case including the amount of damages and defeating all the defendants affirmative defenses as a matter of law. Plaintiffs have failed to meet this standard for summary judgment. The motion for summary adjudication is also denied. Summary adjudication motions allow a court to adjudicate a limited set of issues specified in Californias summary judgment statute, section 437c, subdivision of the Code of Civil Procedure. Summary adjudication is authorized to adjudicate one or more causes of action within the action; one or more affirmative defenses within the action; that there is no valid claim for punitive damages; or that the defendant did, or did not, owe the plaintiff a duty. (Code Civ. Proc., § 437c, subd.(f)(1).) Thats it. Moreover, A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for [punitive] damages, or an issue of duty. (Code Civ. Proc. § 437c, subd. (f)(1), emphasis added.) What this means is that a plaintiff cannot generally obtain summary adjudication on the issue of the defendants liability, while having the amount of damages determined by a jury. (See Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 238.) California Rules of Court, Rule 3.1350(b) requires that if summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. The Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. Plaintiffs separate statement fails to comply with CRC 3.1350(b) for summary adjudication. There is no specific "cause of action, or claim of damages, or issue of duty, of affirmative defense which is the subject of the motion stated verbatim in the separate statement. Because the motion for summary judgment fails to show, as a matter of law, that there are no triable issues of fact, and because the separate statement fails to meet the requirements of CRC 3.1350(b) for motions for summary adjudication, the motion is denied in its entirety. Clerk to give notice.

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