Last Will Of: Michael Joseph Brandt

Demurrer on 1st Amended Complaint for Other Personal Injury/Property CHIANG vs PARKING CVRI2305474 Damage/Wrongful Death Tort (Over CONCEPTS, INC. $25,000) of HUIHSIEN CHIANG by CITY OF RIVERSIDE Tentative Ruling: This is a premises liability case. On February 8, 2023, Plaintiff Huihsien Chiang (“Plaintiff”) parked her vehicle at a garage owned and operated by Defendant Parking Concepts, Inc. (“Garage”) where she had a monthly parking space. While walking down the stairs in the Garage, Plaintiff slipped on a greasy pizza box and fell at least six stairs causing serious injuries. On October 10, 2023, Plaintiff filed her Complaint against the Garage and the City of Riverside (“City”). She asserts two cause of action for: (1) Negligence—Premises Liability; and (2) Acts and Omission of Public Employees within the Scope of Employment. The City now demurs to the second cause of action against it. The City argues that a pizza box is not a dangerous condition of public property and Plaintiff has not sufficiently alleged that the characteristics of the stairway were dangerous in connection with the pizza box. The City argues that the dangerous condition was caused by a third party rather than a City employee. The City argues that Plaintiff has not stated any facts showing actual or constructive notice of the pizza box. The City argues that it is not liable for obvious dangers. The City argues that it is immune from liability for failure to enforce litter laws. Plaintiff argues that she addressed the issues identified by the Court in sustaining the Demurrer to the initial Complaint. Plaintiff argues that she was not required to name any City employees because she alleges that third-party negligence increased the risk of danger constituting the dangerous condition. Plaintiff argues that the characteristics of the stairway created a dangerous condition in that the stairway was steep and deteriorated and adjacent to a food court. Plaintiff argues that the pizza box on the stairway constitutes a dangerous condition. Plaintiff argues that the City had actual or constructive notice of the pizza box. Plaintiff argues that the defect was not trivial. Plaintiff argues that the failure to enforce litter law is not relevant to whether the litter created a dangerous condition. In its Reply, the City argues that the Complaint does not allege any physical defect in the stairway that was a cause of Plaintiff’s injuries. The City argues that the pizza box is not a physical characteristic of the stairwell. Analysis Meet and Confer: Pursuant to Cal. Code Civ. Proc. § 430.41(a), “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The demurring party must file and serve with the demurrer a declaration stating the means by which the demurring party met and conferred, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (Cal. Code Civ. Proc. § 430.41(a)(3).) On May 23, 2024, counsel for the City sent Plaintiff’s counsel a meet and confer letter. (Rivera Dec., ¶ 2.) The parties met and conferred telephonically on May 24, 2024, but were unable to resolve the issues. (Id at ¶3.) This satisfies the meet and confer requirements under section 430.41. Demurrer: A party may object by demurrer to a complaint on grounds that the pleading does not state facts sufficient to constitute a cause of action. (Cal. Code Civ. Pro. §430.10(e).) For the purposes of a demurrer, the allegations in the complaint must be accepted as true no matter how unlikely or improbable. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) 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.) To survive a demurrer or motion for judgment on the pleadings, a complaint need only state ultimate facts. (Doe v. City of Los Angeles (2007) 42 Cal. 4th 531, 550.) Each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal. 4th 861, 872.) In granting a demurrer, courts must only consider properly pleaded or implied factual allegations as well as judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) The specific statute must be alleged in the complaint. (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896.) Here, the second cause of action is entitled Acts or Omissions of Public Employees Within Scope of Employment. However, the only statutory basis referenced in the FAC is Govt. Code § 835, which provides for liability of a public entity caused by a dangerous condition of public property. Dangerous Condition of Public Property: Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee. (Cal. Govt. Code §815(a).) Thus, in California, “all government tort liability must be based on statute.” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, n. 2; see also See Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) “[T]o state a cause of action [against a government entity,] every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy, supra, 177 Cal.App.3d at 802.) Here, liability is based on Govt. Code §835, pursuant to which a public entity is liable for injuries caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. “Dangerous condition” means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. (Cal Gov Code § 830.) Plaintiff alleges that on February 8, 2023, Plaintiff slipped and fell in parking garage located at 3601 Market Street in Riverside, California (“Parking Garage”) after stepping on a greasy pizza box left in a stairway adjacent to the Parking Garage (“Stairway”), which created a dangerous condition. (FAC, ¶12.) Plaintiff alleges that the Parking Garage and Stairway were owned, operated and/or controlled by the City and Parking Concepts. (Id at ¶ 15.) Plaintiff alleges that pizza box had been left in the Stairway due to the negligent maintenance of Defendants. (Id at ¶ 20.) This allegation of negligence is not sufficiently specific to show a wrongful act or omission of an employee of the City. A public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff’s injury is a third party’s negligent or illegal act, if some physical characteristic of the property exposes its users to increased danger from third party negligence. (Song X. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1187.) A dangerous condition exists when public property “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,” or possess physical characteristics in its design, location, features or relationship to its surroundings that endanger users. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal. 4th 139, 149.) Plaintiff asserts that the Stairway was dangerous because it is steep and inclined and unlevel, and therefore causes an increased risk of falling than would be caused by a pizza box left on flat ground. (FAC, ¶¶40, 41.) This assertion would render every stairway dangerous since stairways are, by their nature, inclined and unlevel, and therefore more dangerous than flat surfaces. Plaintiff also alleges that the Stairway was in a state of disrepair and deterioration, as not only was there a greasy pizza box that Plaintiff slipped on, but there was also additional food trash and cups left on the Stairway. (Id at ¶ 42.) This allegation is somewhat vague as it still appears to be based on third-party litter rather than actual deterioration of the Stairway itself. Additionally, Plaintiff alleges that the location next to the food court is also adjacent to a food court, which encourages customers to discard trash in the Stairway. (Id at ¶ 43.) Finally, Plaintiff asserts that the Stairway lacks warning signs and barriers. (Id at ¶ 29.) While there are some additional facts alleging deterioration and lack barrier that involve the physical characteristics of the Stairway, the allegations are still vague and insufficient. The City argues that Plaintiff has not established that the City had actual or constructive notice of the dangerous condition. To prevail on a claim against a public entity for dangerous condition, the plaintiff must show that the entity either created the condition or had actual notice or constructive notice of its existence and sufficient time before the injury for it to have taken remedial action. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1485.) In this case, there are no allegations or specific facts, showing that the City caused any dangerous condition. Plaintiff vaguely alleges that the City had actual and/or constructive notice of the dangerous condition created by the greasy pizza box and knew or should have known that that this dangerous condition could cause injury to Plaintiff or other patrons. (FAC, ¶14.) However, as stated above, the pizza box itself is not a dangerous condition without a connection to physical characteristics of the Stairway. Plaintiff does not allege that the City had actual or constructive notice of the characteristics that, in connection with the third-party litter, created the dangerous condition. Because Plaintiff has not sufficiently alleged all elements of the dangerous condition cause of action, the Demurrer is sustained as to the Second Cause of Action without leave to amend. 4. Notice of Motion and Application for CVRI2306889 DOE vs HELLENIKON, INC. Order for Counsel to Appear Pro Hac Vice Tentative Ruling: Application to Appear Pro Hac Vice is granted. Proposed ordered submitted has been signed by the Court.

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).)

CHAVEZ VS CORONA CVRI2205135 REGIONAL MEDICAL MOTION FOR RECONSIDERATION CENTER Tentative Ruling: Plaintiff’s Motion for Reconsideration is denied. CMC and OSC is continued to 8/15/24. A motion for reconsideration under CCP § 1008, is the exclusive means to modify, amend, or revoke a court order. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) A motion for reconsideration must be filed within 10 days after service of the written notice of ruling on the order at issue. (CCP § 1008(a).) (Dr. French’s ex parte application was heard on 5/14/24. The motion for reconsideration was filed three days later on 5/17/24.) A party’s motion for reconsideration must be based on new or different facts or circumstances of law. (Ibid.) A motion for reconsideration must be accompanied by an affidavit stating what application was made before, what judge heard the matter, what orders were made, and what new or different facts, circumstances, or law are claimed to be shown. (Ibid.) When a party seeks reconsideration, he or she must show a “satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) Facts known by the party seeking reconsideration when the original ruling was made are not considered “new or different.” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.) Notably, the legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The burden is comparable to that of a party seeking a new trial on the ground of newly discovered evidence; that is, the information must be such that the moving party could not with reasonable diligence have discovered or produced it at trial. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.) Here, Plaintiffs are seeking reconsideration of the Court’s 5/14/24 ruling granting Dr. French’s ex parte application for an order of dismissal of the SAC based on new or different facts or circumstances, or law. Plaintiffs argue that new case authority (Mantel v. South Nassau Communities Hospital dba Mount Sinai South Nassau, Supreme Court of the State of New York, County of Nassau, Index No. 607604/23) published on 5/17/24 allows for reconsideration of the ex parte application. Plaintiffs assert that this new law is directly on point with the claim against Dr. French as well as other Defendants in this case as to their respective affirmative defenses based on the PREP Act immunity. They argue that this new law requires the ex parte application for an order dismissing the SAC as to Dr. French, with prejudice, be reconsidered, and granted. To the contrary, Dr. French argues that this motion actually seeks reconsideration of the Court’s ruling on Dr. French’s demurrer to the SAC, which was heard on 3/11/24, and is therefore, untimely. (CCP § 1008.) The Court issued a tentative ruling on the demurrer on 3/8/24 sustaining the demurrer with 20 days leave to amend. (Dec. Hummasti ¶ 5.) No request for oral argument was made, the tentative ruling was adopted, and became the final ruling on 3/11/24. (Id. ¶ 6, Ex. “A”.) The deadline for Plaintiffs’ to amend their Complaint was 4/1/24, but Plaintiffs failed to file and serve an amended Complaint. (Id. ¶ 7.) Plaintiffs did not file a motion for reconsideration of the Court’s 3/11/24 ruling on the demurrer, which would nonetheless, have been untimely. Plaintiffs do not assert that they are challenging the prior demurrer. Nonetheless, the “new law” presented by them addresses the merits of Dr. French’s demurrer, which relied on an affirmative defense concerning the PREP Act immunity. But, when the Court subsequently granted Dr. French’s ex parte application, it explicitly dismissed the case against Dr. French based on Plaintiffs’ failure to timely file a SAC. Plaintiffs do not address this point in their motion. Moreover, there is no dispute that the new law (Mantel, supra.) was not decided under California law, it was decided under New York law, which is not binding authority on this Court. As such, Plaintiff’s motion fails to present a proper basis for the Court to reconsider the ex parte application. Plaintiffs have not offered the Court any new or different facts or circumstances or law not previously considered. Thus, Plaintiffs have not established that they are entitled to have the Court reconsider the prior ex parte application.

MOTION FOR SUMMARY JUDGMENT ON COMPLAINT FOR OTHER LOMELI VS T.J. MAXX OF CVRI2202376 PERSONAL INJURY/PROPERTY CA, LLC DAMAGE/WRONGFUL DEATH TORT (OVER $25,000) OF JOSE LOMELI Tentative Ruling: Defendant’s lodged evidence was rejected by the clerk. Therefore, the hearing is continued to July 26, 2024, at 8:30AM so that Defendant can properly file it.

Motion to Strike Answer on Complaint for CVPS2402121 CHROMIAK vs WILTSE Quiet Title of GEORGE THOMAS CHROMIAK Tentative Ruling: No tentative ruling. A hearing will be conducted.

CITY OF TEMECULA VS MOTION FOR LEAVE TO AMEND BY CVSW2401037 CHALKER MATTHEW BRENT CHALKER Tentative Ruling: Leave to Amend is GRANTED with leave of 10 days.

MOTION TO VACATE NOTICE OF COTTONWOOD CANYON SETTLEMENT OF ENTIRE CASE HILLS COMMUNITY TEC1204451 FILED ON JUNE 2, 2020, BY ASSOCIATION VS COTTONWOOD CANYON HILLS ARMENTA COMMUNITY ASSOCIATION Tentative Ruling: No tentative will be given, appearances are required. Counsel should be prepared to address why this matter should not be dismissed pursuant to the CCP 664.6 provision in the settlement agreement.

DEMURRER ON 1ST AMENDED CROSS-COMPLAINT OF MICHAEL BLACK PEARL, LLC VS CVRI2305486 SCOTT MAXEY AS TO CAUSE(S) OF MAXEY ACTION TWO AND THREE BY MICHAEL V. HESSE Tentative Ruling: SUSTAIN without leave to amend. Cross-Complainant’s Opposition was not timely filed under CCP § 1005(b) and was not considered by the court. On the merits, the Demurrer is well taken as Cross-Complainant has not and cannot sufficiently alleged facts to support causes of action two (Grand Theft) and three (Making a False Report) of the Amended Verified Cross-Complaint.