Ruling
FIDEL HERNANDEZ MEDINA, ET AL. VS TOYOTA MOTOR SALES, U.S.A., INC.
Jul 10, 2024 |
22STCV11303
Case Number:
22STCV11303
Hearing Date:
July 10, 2024
Dept:
40
Superior Court of California
County of Los Angeles
Department 40
FIDEL HERNANDEZ MEDINA, an individual and PATRICIA HERNANDEZ, an individual,
Plaintiff,
v.
TOYOTA MOTOR SALES, U.S.A., INC., a California Corporation, and DOES 1 through 10, inclusive,
Defendants
.
Case No.:
22STCV11303
Hearing Date:
7/10/24
Trial Date:
N/A
[TENTATIVE] RULING RE:
Plaintiffs Fidel Hernandez Medina and Patricia Hernandezs Motion to Tax Costs
Background
Pleadings
Plaintiffs Fidel Hernandez Medina and Patricia Hernandez (Plaintiffs) sue Defendant Toyota Motor Sales, U.S.A., Inc. (Toyota USA) pursuant to an October 14, 2022 Third Amended Complaint (TAC) alleging claims of (1) Violation of Song-Beverly Act Breach of Express Warranty, (2) Violation of Song-Beverly Act Breach of Implied Warranty, and (3) Violation of the Song-Beverly Act Section 1793.2(b).
The claims arise from allegations that Toyota USA has breached express and implied warranties in favor of Plaintiffs by failing to repair, replace, or repurchase a used Toyota vehicle purchased by the Hernandez Plaintiffs subject to express warranties through which Toyota USA undertook to preserve or maintain the utility or performance of Plaintiffs vehicle or to provide compensation if there was a failure in such utility or performance.
Relevant Procedural History
On February 20, 2024, trial commenced in this action before concluding on February 26, 2024.
On February 24, 2024, the jury issued its verdict in favor of Toyota USA.
On March 8, 2024, judgment was entered in Toyota USAs favor.
On March 21, 2024, Toyota USA filed its Memorandum of Costs, seeking to recover $22,309.48 in costs.
On April 9, 2024, Plaintiffs filed the instant Motion to Tax Costs.
On June 26, 2024, Toyota USA filed its opposition to the instant motion.
On July 2, 2024, Plaintiffs filed their reply papers.
Motion to Tax Costs
Legal Standard
:
In general, the prevailing party is entitled as a matter of right to recover costs for suit in any action or proceeding. (Code Civ. Proc., § 1032, subd. (b);
Santisas v. Goodin
(1998) 17 Cal.4th 599, 606;
Scott Co. Of Calif. v. Blount, Inc.
(1999) 20 Cal.4th 1103, 1108.) Assuming the prevailing party requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (
Michell v. Olick
(1996) 49 Cal.App.4th 1194, 1198;
Nelson v. Anderson
(1999) 72 Cal.App.4th 111, 129.) The term prevailing party for costs purposes is defined by statute to include: ¿
(1) The party with a net monetary recovery; ¿
(2) A defendant who is dismissed from the action; ¿
(3) A defendant where neither plaintiff nor defendant recovers anything; and ¿
(4) A defendant as against those plaintiffs who do not recover any relief against that defendant.
(Code Civ. Proc., § 1032, subd. (a)(4).)
If the party does not fall within one of these four express categories, the court may exercise its discretion to award or deny costs. (See
Lincoln v. Schurgin
(1995) 39 Cal.App.4th 100, 105.)
If any party recovers other than monetary relief and in situations other than as specified, the prevailing party shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034. (Code Civ. Proc., § 1032, subd. (a)(4).) For example, even if a plaintiff maintains a net monetary recovery, in determining the prevailing party in the litigation, the trial court should also consider, if applicable, the defendants success on its declaratory relief claims and exercise its discretion to allow costs or not and, if allowed, to apportion them as appropriate. (
Wolf v. Walt Disney Pictures & Television
(2008) 162 Cal.App.4th 1107, 1142; see, e.g.,
Lincoln v. Schurgin
,
supra
, 39 Cal.App.4th at pp. 104-105 [when plaintiff wins net monetary recovery but defendant prevails in its cross-action for declaratory relief, case presents circumstance not otherwise specified; in that case, determination of prevailing party is matter within courts discretion].)
¿Allowable costs under Code of Civil Procedure section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (
Ladas v. California State Automotive Assoc.
(1993) 19 Cal.App.4th 761, 773-774.)
A verified memorandum of costs is prima facie evidence that the costs, expenses, and services therein listed were necessarily incurred. (
Rappenecker v. Sea-Land Serv., Inc
. (1979) 93 Cal.App.3d 256, 266.) A party seeking to tax costs must provide evidence to rebut this prima facie showing. (
Jones v. Dumrichob
(1998) 63 Cal.App.4th 1258, 1266, superseded by statute on other grounds in Code Civ. Proc., § 998, subd. (c)(1) [whether costs permissible from filing of complaint or from date of 998 offer].) Mere statements unsupported by facts are insufficient to rebut the prima facie showing that costs were necessarily incurred. (
Jones v. Dumrichob
,
supra
, at p. 1266.)¿On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (
Ibid
.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (
Ladas v. California State Automotive Assoc.
,
supra
, 19 Cal.App.4th at p. 774.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (
Ibid
.) Discretion is abused only when, in its exercise, the court exceeds the bounds of reason, all of the circumstances being considered. (
Lincoln v. Schurgin
,
supra
, 39 Cal.App.4th at p. 105.)¿
Order Striking or Taxing Costs
: GRANTED IN PART
As a preliminary matter, it is undisputed that Toyota USA is not seeking to recover costs pursuant to Code of Civil Procedure § 1794(d) because that statute is limited to buyers of consumer goods. Rather, as the prevailing party in this action, Toyota USA is entitled to recover costs pursuant to Code of Civil Procedure § 1032(a)(4) and 1033.5. Nevertheless, Plaintiffs appear to argue the opposite. (See Reply at pp. 3-4, relying on
Wohlgemuth v. Caterpillar, Inc.
(2012) 207 Cal.App.4th 1252, 1264.) However, this argument is not persuasive. Code of Civil Procedure § 1794(d) does not explicitly preclude a seller of consumer goods from recovering their costs under Code of Civil Procedure § 1032. Indeed, in
Murillo v. Fleetwood Enterprises, Inc.
(1998) 17 Cal.4th 985, the Court rejected this argument. (
Id.
at p. 988 [In this case, plaintiff filed suit under the Song-Beverly Act, but defendants prevailed. Defendants sought to recover their costs and expert witness fees under sections 1032, subdivision (b) and 998, subdivision (c), whereas plaintiff argued the more specific provisions of the Act prohibited prevailing defendants from any such recovery.
We conclude defendants are entitled to their costs and expert witness
fees].) Thus, in determining whether an award of costs should be issued, the Court will rely on the guideline set forth under Code of Civil Procedure § 1033.5(c).
Here, Toyota USA seeks $22,309.48 pursuant to Code of Civil Procedure §§ 1032 and 1033.5. By way of its motion, Plaintiffs seek to tax these costs in the following categories: (1) motion and filing fees in its entirety or alternatively $181.08; (2) deposition costs in the amount of $4,351.70; (3) court reporter fees in their entirety; and (4) other costs and fees in the amount of $2,338.49.
First, Plaintiffs argue that Toyota USAs requested costs of $1,447.72 for motion and filing fees should be stricken because they include attorney service fees, and Toyota USA has failed to correctly identify the actual court motion and filing fees incurred. (Motion at pg. 5.) However, this ignores the numerous invoices enclosed and referenced by Toyota USAs Memorandum of Costs at Attachment 1g that identify the court motion and filing fees incurred.
Furthermore, [i]f the items in a cost memorandum appear proper, the verified memorandum is prima facie evidence the expenses were necessarily incurred by the prevailing party. (Citation.) To controvert this evidence, the burden is on the objecting party to present evidence showing the contrary. (Citation) (
Whatley-Miller v. Cooper
(2013) 212 Cal.App.4th 1103, 1115.) Filing fees and electronic filing fees are recoverable costs (See Code Civ. Proc. § 1033.5(a)(1), (14).) Thus, it is Plaintiffs burden to present evidence to show why these costs should not be awarded. In this regard, Plaintiffs identify $181.08 worth of filing fee costs that should be taxed. (Motion at pp. 6-7.) Of these costs, the Court finds that the filing fees associated with Toyota USAs Motions in Limine were not reasonably necessary to the conduct of the litigation because they had been untimely filed. Therefore, these costs are taxed in the amount of $65.34. As to the costs associated with unsuccessful motions, the Court finds that these costs were not prepared merely out of convenience and are recoverable as a result. (Code Civ. Proc. § 1033.5(c).)
Second, Plaintiffs argues the claimed deposition costs should be taxed in the amount of $4,351.70 because the amounts are excessive and unnecessary. Recovery of deposition costs is allowed.
(Code Civ. Proc. § 1033.5(a)(3).) Defendants point out that multiple deposition dates for the plaintiffs had to be scheduled and rescheduled. In this instance, Plaintiffs have failed to meet their burden to undermine the prima facie evidence that the expenses were necessarily incurred by Toyota USA. (
Whatley-Miller, supra,
212 Cal.App.4th at 1115.)
Third, Plaintiffs contend that Toyota USAs claimed court reporter fees should be taxed because they are not recoverable pursuant to Code of Civil Procedure § 1033 subd. (b)(5). (Motion at pg. 8.) This argument is not persuasive. The Court has discretion to allow additional costs that are reasonable in amount. (Code Civ. Proc. § 1033.5 subd. (c)(4). Based on the invoices submitted with its Memorandum of Costs, Toyota USA has shown that these claimed costs were for court reporting fees during the trial. Such expenses are reasonable in light of the understandable prudence of preserving a record for appeal. Notably, Plaintiff has failed to submit any evidence to suggest that the amount of these fees is unreasonable. Therefore, the Court declines to tax this category of costs.
Fourth, Plaintiffs argue that the claim for other costs and expenses that include meals, copying charges, travel, and lodging. (Motion at pp. 8-12.) The Court largely agrees that many of these costs are either not allowed or not reasonably necessary to the conduct of the litigation. For instance, Toyota USA seeks to recover $50.37 in FedEx charges of trial documents and the final status conference. Courier and messenger fees are recoverable, at the discretion of the trial court, if they are reasonably necessary to the conduct of the litigation. (
Dept. of Children & Family Services
(2019) 37 Cal.App.5th 675, 696, as modified (July 18, 2019), rehg denied (Aug. 9, 2019), review denied (Oct. 23, 2019).) Because these costs are not expressly allowed under Code of Civil Procedure § 1033.5, it is Toyota USAs burden to establish why these costs were necessary. (
Ladas v. California State Auto. Assn.
(1993) 19 Cal.App.4th 761, 774.) However, the opposition fails to articulate such a necessity. Thus, the Court taxes these courier costs as not reasonable.
Also, Toyota USA seeks to recover $19.98 associated with a CARFAX report for trial, but Code of Civil Procedure § 1033.5(b)(2) excludes investigation costs. Moreover, Toyota USA seeks to recover a combined amount of $2,095.49 for meals, lodging, and travel. While it is in the Courts discretion to award these costs pursuant to Code of Civil Procedure § 1033.5(c)(4), they have been properly objected to, and Toyota USA has failed to meet its burden in establishing why these costs were not merely convenient and reasonable in amount.
In terms of the $196.90 in costs spent for additional copies of trial exhibits, these costs are allowed under Code of Civil Procedure § 1033.5(a)(13) and appear to be reasonable in amount. Thus, the Court declines to tax these amounts.
Based on the foregoing, Plaintiffs motion to tax costs is granted in part in the amount of $2,231.18. Consequently, Toyota USA shall be entitled to recover $20,078.30 in costs.
Conclusion
Plaintiffs Fidel Hernandez Medina and Patricia Hernandezs Motion to Tax Costs is GRANTED in part in the amount of $2,231.18. Consequently, Toyota USA shall be entitled to recover $20,078.30 in costs.
Ruling
CAROLYN TRACIE LOVE VS LOS ANGELES COUNTY, ET AL.
Jul 12, 2024 |
22STCV33580
Case Number:
22STCV33580
Hearing Date:
July 12, 2024
Dept:
50
CAROLYN TRACIE LOVE, individually and as trustee for Trashawn Tillet
,
Plaintiff,
vs.
LOS ANGELES COUNTY, DEPARTMENT OF THE CORONER
,
et al.
Defendants.
Case No.:
22STCV33580
Hearing Date:
July 12, 2024
Hearing Time:
2:00 p.m.
[TENTATIVE] ORDER RE:
DEFENDANT COUNTY OF LOS ANGELES DEMURRERS TO PLAINTIFFS FOURTH AMENDED COMPLAINT;
DEFENDANT CITY OF LOS ANGELES DEMURRER TO PLAINTIFFS FOURTH AMENDED COMPLAINT
Background
Plaintiff Carolyn Tracie Love,
individually and as trustee for Trashawn Tillett filed this action on October 14, 2022 against Defendants Los Angeles County, Department of the Coroner; Los Angeles City; Los Angeles Police Department; and Los Angeles Fire Department.
On May 23, 2023, Defendant City of Los Angeles filed a notice of removal of the action to federal court.
On November 15, 2023, the United States District Court, Central District of California issued an Order Granting in Part Defendants Motions to Dismiss [DKT Nos. 70, 71] And Remanding Case in the matter
Carolyn Tracie Love v. Los Angeles County
,
et al
., Case No. 2:23-cv-03851-SB-PVC (herein, the Federal Action). The November 15, 2023 Order in the Federal Action provides,
inter alia
, as follows:
After Defendants moved to dismiss her Second Amended Complaint (SAC), Plaintiff, now proceeding pro se, filed an untimely Third Amended Complaint (TAC) nearly two weeks after her opposition deadline had passed. Dkt. No.
65
. The TAC significantly expands on her earlier pleadings, spanning 68 pages and alleging 24 causes of action&including 13 federal claims.
Id
. The Court allowed the filing of the TAC and denied as moot the motions to dismiss the SAC. Dkt. No. 67. The City and County now move to dismiss Plaintiffs TAC for failure to state a claim. Dkt. Nos.
70
,
71
. The Court finds this matter suitable for decision without oral argument and vacates the December 1, 2023 motion hearing.
Fed. R. Civ. P.
78
; L.R.
7-15
. Because Plaintiff has not alleged any plausible federal claims, the Court dismisses her federal causes of action and remands the remaining claims to state court. (November 15, 2023 Order, p. 2.)
The November 15, 2023 Order in the Federal Action concludes that [a]ccordingly, the Court GRANTS IN PART Defendants motions to dismiss, and Plaintiffs federal claims in Counts 7, 11, 14, and 16-25 are DISMISSED on the merits with prejudice. The Court does not reach the rest of Defendants arguments, but instead declines to exercise supplemental jurisdiction over Plaintiffs remaining state-law claims. The case is therefore REMANDED to the state court from which it was removed. (November 15, 2023 Order, p. 8.)
On November 20, 2023, a notice from the United States District Court, Central District of California was filed in this action indicating,
inter alia
, that [p]ursuant to this Courts ORDER OF REMAND issued on 11/15/2023, the above-referenced case is hereby remanded to your jurisdiction.
Defendants County of Los Angeles (the County) and City of Los Angeles (the City) demurred to the Third Amended Complaint for Damages (TAC). As noted in the Countys request for judicial notice in support of the Countys Demurrer to the TAC, filed on December 20, 2023, the subject TAC was filed in the Federal Action on September 28, 2023. (Countys RJN, ¶ 1, Ex. A.)
[1]
The County demurred to the TACs third cause of action for negligent investigation and failure to render aid, fifth cause of action for negligent hiring, sixth cause of action for violation of California constitutional rights, eighth cause of action for intentional and negligent infliction of emotional distress, ninth cause of action (untitled), and tenth cause of action for constructive fraud-intentional misrepresentation concealment. (
See
May 1, 2024 Order; Countys 12/20/2023 RJN, ¶ 1, Ex. A.) On May 1, 2024, the Court issued an Order sustaining the Countys demurrer to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the TAC as to the County and the Department of the Coroner, with leave to amend.
In addition, the City demurred to the TACs first cause of action for failure to conduct a homicide investigation and wellness check, second cause of action for negligent investigation, third cause of action for negligent investigation and failure to render aid, fifth cause of action for negligent hiring, sixth cause of action for violation of California constitutional rights, eighth cause of action for intentional and negligent infliction of emotional distress, ninth cause of action (untitled), tenth cause of action for constructive fraud-intentional misrepresentation concealment, twelfth cause of action for violation of Californias Unruh Civil Rights Act, thirteenth cause of action for violation of Californias Unruh Civil Rights Act, and fifteenth cause of action for violation of
Government Code section 11135
. (
See
May 1, 2024 Order; Countys 12/20/2023 RJN, ¶ 1, Ex. A.) On May 1, 2024, the Court issued an Order sustaining the Citys demurrer to the first, second, third, fifth, sixth, eighth, ninth, tenth, twelfth, and thirteenth causes of action of the TAC, with leave to amend. The Court overruled the Citys demurrer to the fifteenth cause of action of the TAC.
On May 17, 2024, Carolyn Tracie Love, an individual, and on behalf of Trashawn Alton Tillet (Plaintiff) filed a Fourth Amended Complaint (FAC).
[2]
The FAC alleges causes of action for
[3]
(1) failure to conduct a homicide investigation and wellness check, (2) negligent investigation, (3) negligent investigation and failure to render aid, (5) negligent hiring, (6) violation of California constitutional rights, (7) violation of
42 U.S.C. § 1983, (8)
intentional and negligent infliction of emotional distress, (9) [untitled], (10) constructive fraud intentional misrepresentation concealment, (11) negligent investigation and failure to perform welfare check, (13) violation of Californias Unruh Civil Rights Act, (14) 42. U.
S.C. - 1083
Monell Claim failure to train, and (15) violation of
Government Code § 11135
.
[4]
The County now demurs to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the FAC. In addition, the City now demurs to the first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fourteenth, and fifteenth causes of action of the FAC.
Carolyn Tracie Love (herein, Love) opposes both.
[5]
Allegations of the FAC
In the FAC, Plaintiff alleges,
inter alia
, that on October 20, 2021, Plaintiff arrived at the home of her son, Trashawn Alton Tillet (herein, the Decedent). (FAC, ¶ 1.) Plaintiff alleges that the Decedents eyes were closed and that he did not respond to his name. (FAC, ¶ 8.) Plaintiff alleges the Decedent had contusions on the right-side temple above his ear& (FAC, ¶ 10.) Plaintiff alleges that [m]ultiple bottles of alcohol were everywhere in his living room as if there had been a party, and that Plaintiff believes that the alcohol bottles were staged and planted by a violent perpetrator to district attention from a crime and crime scene. (FAC, ¶¶ 5, 14.) Plaintiff alleges that paramedics arrived at the apartment. (FAC, p. 7:5.) Plaintiff alleges that she never observed either paramedic deploy life saving measures. (FAC, ¶ 48.) Plaintiff further alleges that one paramedic said, sorry he been dead for maybe a few days. (FAC, ¶ 56.) Plaintiff further alleges,
inter alia
, that LAPD officers&never thoroughly investigated&whether [the Decedent] was the victim of a homicide. (FAC, ¶ 185.)
In addition, Plaintiff alleges that there is substantial evidence that the coroner mixed up the findings of a different deceased. (FAC, ¶ 322.) Plaintiff further alleges that [it] appears that [the Decedents] body may have been cremated. Upon information and belief, the coroner gave the funeral possession of the wrong body. (FAC, ¶ 386.)
The Countys Demurrer
A.
Legal Standard
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are
judicially noticeable
. (
Blank v. Kirwan
(1985) 39 Cal.3d 311, 318
.) To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiffs proof need not be alleged. (
C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 872
.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all
material facts properly pleaded
. (
Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 966-967
.) A demurrer does not admit contentions, deductions or conclusions of fact or law. (
Daar v. Yellow Cab Co.
(1967) 67 Cal.2d 695, 713
.)
B.
Third, Fifth, Sixth, Eighth, Ninth, and Tenth Causes of Action as to Plaintiffs Claims on Behalf of the Decedent
The County asserts that the claims that Plaintiff is asserting (presumably) on behalf of Decedent fail because there are no allegations against the County relating to conduct occurring before Decedents death, and Plaintiff, proceeding in pro se, cannot represent the Decedent. (Demurrer at p. 12:9-12.) As set forth above, the FAC alleges,
inter alia
, that Plaintiff CAROLYN TRACIE LOVE, an individual, and on behalf of TRASHAWN ALTON TILLETT, her deceased son by and her attorney alleges as follows against Defendants Los Angeles County Coroners, Los Angeles City Fire Dept, Los Angeles City Police Dept does 1 to 10. (FAC, p. 1.)
The County cites to
People v. Runyan
(2012) 54 Cal.4th 849, 861-862
, where the California Supreme Court noted that
[n]o civil claim can be asserted, on a decedents personal behalf, for injury or damage to the decedent that occurs, or accrues, after the decedent has died. The governing statutes recognize two, and only two, mutually exclusive types of actions that may be brought, or maintained, in consequence of a persons death. First, a cause of action in favor of a person survives the persons death, and may be commenced, or continued, by the decedents personal representative, or, if none, by the decedents successor in interest. However, the damages recoverable in such an action are limited to the loss or damage that the decedent sustained or incurred
before death
& (Internal quotations and citations omitted.)
The County asserts that
[h]ere, the factual basis of the Countys wrongdoing, as alleged in the Fourth Amended Complaint, relates solely to conduct occurring after Decedents death namely, the purported negligent investigation of Decedents cause of death and the mishandling of his remains& (Demurrer at p. 12:17-20, emphasis omitted, citing FAC, ¶¶ 196-208.)
The County asserts that [b]ecause there are no allegations against the County relating to conduct occurring before Decedents death, no claim accrued as to Decedent against the County before his death and each of the claims asserted on his behalf as to the County are properly dismissed. (Demurrer at p. 12:21-24, emphasis omitted.) Love does not appear to dispute this point in the opposition.
[6]
The County also asserts that Plaintiff, who is not an attorney, cannot represent the interests of Decedents estate proceeding pro se. (Demurrer at p. 13:3-4.) The caption page of the FAC lists Carolyn Tracie Love above Attorneys for CAROLYN TRACIE LOVE, (pro per) Individually. (FAC, p. 2.) However, as discussed, the FAC also alleges,
inter alia
, that Plaintiff CAROLYN TRACIE LOVE, an individual,
and on behalf of TRASHAWN ALTON
TILLETT, her deceased son
by and her attorney alleges as follows against Defendants Los Angeles County Coroners, Los Angeles City Fire Dept, Los Angeles City Police Dept does 1 to 10. (FAC, p. 1, emphasis added.) Love does not appear to dispute that she has not obtained an attorney.
The County cites to
Hansen v. Hansen
(2003) 114 Cal.App.4th 618, 621
, where the Court of Appeal noted that
[a] person who is unlicensed to practice law and who represents a decedents estate cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings.
Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar. (Internal citations omitted.)
Accordingly,
in light of the foregoing, the Court sustains the Countys demurrer to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the FAC, to the extent these causes of action are alleged by Plaintiff on behalf of the Decedent.
C.
Third, Fifth, and Eighth Causes of Action
Next, the County asserts that Plaintiffs third, fifth, and eighth causes of action fail to plead the requisite statutory provision imposing a mandatory duty on the County for liability under
California Government Code § 815.6
. (Demurrer at p. 13:6-8.) Plaintiffs third cause of action is for negligent investigation and failure to render aid, the fifth cause of action is for negligent hiring, and the eighth cause of action is for intentional and negligent infliction of emotional distress.
The County notes that
[a] public entity is not liable for an injury, [e]xcept as otherwise provided by statute. (
Gov. Code, § 815.)&
In
other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care&
(
Eastburn v. Regional Fire Protection Authority
(2003) 31 Cal.4th 1175, 1183
.) In Plaintiffs third and fifth causes of action, she alleges that Defendants owed her a duty pursuant to
Government Code section 815.6&
(FAC, ¶¶ 398, 401.) In the eighth cause of action, Plaintiff alleges that Defendant Los Angeles Coroners Department owed her a duty pursuant to
Government Code section 815.6&
(FAC, ¶ 419.)
Government Code section 815.6
provides that
[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.
The County notes that
[a] plaintiff seeking to hold a public entity liable under
Government Code section 815.6
must specifically identify the statute or regulation alleged to create a mandatory duty.
(
In re Groundwater Cases
(2007) 154 Cal.App.4th 659, 689
.) As noted by the County,
Plaintiffs third, fifth, and eighth causes of action do not appear to identify any specific statute, enactment, or provision that Plaintiff claims imposed a mandatory duty on the County.
In light of the foregoing, the Court sustains the Countys demurrer to the
third, fifth, and eighth causes of action of the FAC.
D.
Sixth Cause of Action
The sixth cause of action of the FAC is for violation of California Constitutional rights.
This cause of action alleges that Defendants actions violated, and continue to violate, Plaintiffs rights under
Article I, Sections 1, 2, 3, 7, 13 and 15 of the California Constitution
. (FAC, ¶ 408.) Plaintiff alleges that Defendants violate[d] her due process right to a governmental investigation, violate[d] her due process right to an unbiased governmental investigation, and violate[d] her equal protection and/or due process right not to be singled out for irrational and/or arbitrary discriminatory treatment. (FAC, ¶ 407.)
The County cites to authority supporting its assertion that
Sections 1, 2, and 7 of Article I of the California Constitution
do not provide for a private right of action for damages. The County cites to
Clausing v. San Francisco Unified School Dist.
(1990) 221 Cal.App.3d 1224, 1237, footnote 6
, where the Court of Appeal noted that
article
I, section 1, of the California Constitution
&states: All people are by nature free and independent and have inalienable rights.
Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy. Clearly, although safety and happiness are inalienable rights, this provision of the Constitution does not establish the means whereby they may be enjoyed. No case has ever held that this provision enunciating the inalienable right to obtain safety and happiness is self-executing in the sense that it gives rise, in and of itself, to a private right of action for damages or an affirmative duty on the part of the state to take particular steps to guarantee the enjoyment of safety or happiness by all citizens.
The County also cites to
Degrassi v. Cook
(2002) 29 Cal.4th 333, 342
, where the California Supreme Court
conclude[d] that there is no indication in the language of
article I, section 2(a)
, nor any evidence in the history of that provision, from which we may find, within that provision, an implied right to seek damages for a violation of the free speech right set out therein.
In addition, the County cites to
Katzberg v. Regents of University of California
(2002) 29 Cal.4th 300, 324
, where the California Supreme Court
conclude[d] that there is no indication in the language of
article I, section 7(a)
, nor any evidence in the history of that section, from which we may find, within that provision, an implied right to seek damages for a violation of the due process liberty interest.
The Court notes that Loves opposition to the Countys demurrer does not appear to address this legal authority.
As to
Article I, Sections 3, 13 and 15
, the County asserts that
[n]one of these provisions of the California Constitution provide Plaintiff a due process right to a governmental investigation by the Countys DMEC as to the cause of Decedents death. (Demurrer at p. 15:17-19.) Indeed, as noted by the County,
Section 3
concerns [a]ssembly, petition, open meetings,
Section 13
concerns search and seizure, and
Section 15
concerns safeguards in criminal prosecutions.
(
Cal. Const., art. I, § 3
;
Cal. Const., art. I, § 13
;
Cal. Const., art. I, § 15
.) Thus, the Court does not see how these provisions are relevant to Plaintiffs claims in the FAC.
The County also asserts that
[n]or has Plaintiff alleged any facts to support her allegation that she was singled out for irrational and/or arbitrary discriminatory treatment by the County. (Demurrer at p. 15:19-21;
see
FAC, ¶ 407.) Loves opposition to the Countys demurrer does not appear to address this point.
In light of the foregoing, the Court sustains the Countys demurrer to the sixth cause of action of the FAC.
E.
Ninth Cause of Action
As noted by the County, the ninth cause of action of the FAC is untitled, but alleges that Plaintiff, as DECEDENTS successor in interest, seek [sic] all damages accruing to DECEDENT in a survival action, pursuant to
Code of Civil Procedure section 377.34
. (FAC, ¶ 425.) The County asserts that
there are no recoverable damages on behalf of Decedent against the County given that he was already deceased when the Countys DMEC responded
. (Demurrer at p. 17:15-17.)
As noted by the County,
Code of Civil Procedure section 377.34, subdivision (a)
provides that
[i]n an action or proceeding by a decedents personal representative or successor in interest on the decedents cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.
In the opposition, Love does not appear to address the Countys assertion that there are no recoverable damages under the ninth cause of action given that the Decedent
was already deceased when the Countys DMEC responded. (Demurrer at p. 17:16-17.)
Based on the foregoing, the Court sustains the Countys demurrer to the ninth cause of action of the FAC.
F.
Tenth Cause of Action
Plaintiffs tenth cause of action is for constructive fraud intentional misrepresentation concealment. In the tenth cause of action, Plaintiff alleges,
inter alia
, that Defendants&intentionally misrepresented the status of decedents medical exam and the location of his remains& (FAC, ¶ 427.) The County asserts that the tenth cause of action fails because
Plaintiff fails to identify any statutory basis for imposing direct liability as to the County for this claim. (Demurrer at p. 17:25-26.) As discussed, pursuant to
Government Code section 815
,
[e]xcept as otherwise provided by statute:
(a)
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 or any other person&
Indeed, the tenth cause of action does not allege any statutory basis for imposing liability on the County as to this cause of action.
In light of the foregoing, the Court sustains the Countys demurrer to the tenth cause of action of the FAC.
G.
Claims Against the Department of the Coroner
Lastly, the County asserts that [i]n the Fourth Amended Complaint, it is unclear whether Plaintiff is separately naming the Department of the Coroner as a defendant. (Demurrer at p. 18:23-24.) The Court agrees that this is unclear, as the caption page of the FAC lists,
inter alia
, Los Angeles County, Department of the Coroner.
The County asserts that to the extent the Department of Medical Examiner-Coroner is separately named, it should be dismissed as a duplicative defendant. (Demurrer at p. 19:11-12.) The County cites to
City of Tracy v. Cohen
(2016) 3 Cal.App.5th 852, footnote 1
, where the Court of Appeal noted that
[w]e again adjust the appellate title in one of these appeals, putting the official capacity cart (Successor Agency, etc.) back behind the party name horse (City of Tracy), and deleting the Department of Finance as a party, a redundant defendant.
The Countys counsel also states in his supporting declaration that Plaintiff agreed&that she did not intend to separately name the Department of Coroner as a Defendant. (Bustos Decl., ¶ 5.) This does not appear to be disputed by Love in her opposition to the Countys demurrer.
In light of the foregoing, the Court
sustains the Countys demurrer to
the third, fifth, sixth, eighth, ninth, and tenth causes of action of the FAC against the Department of the Coroner, to the extent these causes of action are alleged against any purported separate entity named Department of the Coroner.
The Citys Demurrer
A.
Legal Standard
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are
judicially noticeable
. (
Blank v. Kirwan
,
supra
, 39 Cal.3d at p. 318
.) To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiffs proof need not be alleged. (
C.A. v. William S. Hart Union High School Dist.
,
supra
, 53 Cal.4th at p. 872
.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all
material facts properly pleaded
. (
Aubry v.
Tri-City Hospital Dist
.,
supra
, 2 Cal.4th at pp. 966-967
.) A demurrer does not admit contentions, deductions or conclusions of fact or law. (
Daar v. Yellow Cab Co.
,
supra
, 67 Cal.2d at p. 713
.)
B.
First, Second, Third, Fifth, Sixth, Seventh Eighth, Ninth, Tenth, Eleventh, Thirteenth, Fourteenth, and Fifteenth Causes of Action
as to Plaintiffs Claims on Behalf of the Decedent
The City
demurs to the first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fourteenth, and fifteenth causes of action of the FAC. As discussed, the FAC alleges,
inter alia
, that Plaintiff CAROLYN TRACIE LOVE, an individual,
and on behalf of TRASHAWN ALTON TILLETT, her deceased son
by and her attorney alleges as follows against Defendants Los Angeles County Coroners, Los Angeles City Fire Dept, Los Angeles City Police Dept does 1 to 10. (FAC, p. 1, emphasis added.)
The City argues that Plaintiff cannot assert any causes of action or seek any damages on behalf of the Decedent, as Plaintiffs alleged status as a trustee does not alter the fact that Plaintiff is prohibited from bringing these claims as a
pro per
. (Demurrer at p. 9:18-19.) As discussed,
[a] person who is unlicensed to practice law and who represents a decedents estate cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings.
Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar. (
Hansen v.
Hansen
,
supra
, 114 Cal.App.4th at p. 621
[internal citations omitted]
.)
In light of the foregoing, the Court sustains the Citys demurrer to first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fourteenth, and fifteenth causes of action of the FAC, to the extent these causes of action are alleged by Plaintiff on behalf of the Decedent.
C.
Federal Causes of Action
Next, the City asserts that the federal causes of action are barred by res judicata& (Demurrer at p. 10:8-9.) It appears the federal causes of action the City is referring to are the seventh and fourteenth causes of action of the FAC, as the City asserts that [i]n meet and confer communications with Plaintiff, it was informed that the Seventh and Fourteenth causes of action were being withdrawn. (Demurer at p. 10:24-25.) The seventh cause of action of the FAC is for violation of
42 U.S.C. § 1983
. The fourteenth cause of action is for
42 U.S.C
. 1983 Monell Claim Failure to Train.
The City cites to
Mycogen Corp. v. Monsanto Co.
(2002) 28 Cal.4th 888, 896
, where the California Supreme Court notes that
Res judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. The
Mycogen
Court noted that
[a] clear and predictable res judicata doctrine promotes judicial economy. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. (
Id.
at p. 897 [internal quotations omitted]
.)
As set forth above,
the November 15, 2023 Order in the subject Federal Action provides,
inter alia
, as follows:
After Defendants moved to dismiss her Second Amended Complaint (SAC), Plaintiff, now proceeding pro se, filed an untimely Third Amended Complaint (TAC) nearly two weeks after her opposition deadline had passed. Dkt. No.
65
. The TAC significantly expands on her earlier pleadings, spanning 68 pages and alleging 24 causes of action&including 13 federal claims.
Id
.
The Court allowed the filing of the TAC and denied as moot the motions to dismiss the SAC. Dkt. No. 67. The City and County now move to dismiss Plaintiffs TAC for failure to state a claim. Dkt. Nos.
70
,
71
. The Court finds this matter suitable for decision without oral argument and vacates the December 1, 2023 motion hearing.
Fed. R. Civ. P.
78
; L.R.
7-15
. Because Plaintiff has not alleged any plausible federal claims, the Court dismisses her federal causes of action and remands the remaining claims to state court. (November 15, 2023 Order, p. 2.)
As also discussed, the November 15, 2023 Order in the Federal Action concludes that [a]ccordingly, the Court GRANTS IN PART Defendants motions to dismiss, and Plaintiffs federal claims in Counts 7, 11, 14, and 16-25 are DISMISSED on the merits with prejudice... (November 15, 2023 Order, p. 8.) The Court notes that Plaintiffs TAC contained,
inter alia
, a seventh cause of action for violation of
42 U.S.C. § 1983, and a
fourteenth cause of action for
42 U.S.C
. 1983 Monell Claim Failure to Train. (Countys 12/20/23 Request for Judicial Notice, ¶ 1, Ex. A.) In the opposition, Love does not appear to dispute that the seventh and fourteenth causes of action in her FAC are barred.
The Citys counsel also indicates in her supporting declaration that Plaintiff represented that she would be withdrawing/removing federal causes of action and identified the Seventh&and Fourteenth causes of action. (Hunter Decl., ¶ 5.) This does not appear to be disputed by Love in her opposition.
Based on the foregoing, the Court sustains the Citys demurrer to the seventh and fourteenth causes of action of the FAC.
D.
Second, Third, Fifth, and Eighth Causes of Action
Next, the City asserts that the FAC does not allege any statutory authority on which to bring any state law claims against the City, any of its departments or any of its employees. (Demurrer at p. 12:4-5.) As discussed,
[a] public entity is not liable for an injury, [e]xcept as otherwise provided by statute. (
Gov. Code, § 815.)&
In
other words, direct tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care&
(
Eastburn v.
Regional Fire Protection Authority
,
supra
, 31 Cal.4th at p. 1183
.)
Plaintiffs second cause of action for negligent investigation, third cause of action for negligent investigation and failure to render aid, and fifth cause of action for negligent hiring allege that Plaintiff&contends that Defendants owed her a duty pursuant to
Government Code section 815.6&
(FAC, ¶¶ 392, 398, 401.) In addition, Plaintiffs eighth cause of action for intentional and negligent infliction of emotional distress alleges that Plaintiff contends that the Defendant Los Angeles Coroners Department owed her a duty pursuant to
Government Code section 815.6&
(FAC, ¶ 419.) As set forth above,
[a] plaintiff seeking to hold a public entity liable under
Government Code section 815.6
must specifically identify the statute or regulation alleged to create a mandatory duty.
(
In re
Groundwater Cases
,
supra
, 154 Cal.App.4th at p. 689
.) Plaintiffs second, third, fifth, and eighth causes of action do not appear to
identify any specific statute or regulation purportedly imposing a mandatory duty on the City.
Based on the foregoing, the Court sustains the Citys demurrer to the second, third, fifth, and eighth causes of action of the FAC.
E.
First and Eleventh Causes of Action
The City also appears to assert that certain causes of action, including the first and eleventh causes of action of the FAC, fail because there is no right to police services, a police investigation or a particular type of investigation under
Section 845
, and because
Section 820.2&affords
immunity for the discretionary manner in which an investigation is conducted. (Demurrer at p. 11:21-23.)
Government Code section
845
provides in part that
[n]either a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.
Government Code section 820.2
provides that
[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
Plaintiffs first cause of action for failure to conduct a homicide investigation and wellness check alleges that Defendants owed her a duty pursuant to
Government Code section 815.6
, and that Defendant breached that duty. (FAC, ¶¶ 388-389.)
[7]
Plaintiffs eleventh cause of action is for negligent investigation and failure to perform welfare check. In this cause of action, Plaintiff alleges that [o]n October 21, 2021, Defendant LAPD breached the mandated duty to perform a competent and thorough welfare check and investigation of the circumstances surroundings Trashawan[s] death. (FAC, ¶ 436.) Plaintiff further alleges that Trashawn was left to die without medical treatment from the defendant during a time of crisis. (FAC, ¶ 438.)
In the opposition, Love does not appear to dispute that her first and eleventh causes of action are barred by
Government Code section 845
or Government Code section 820.2
.
Based on the foregoing, the Court sustains the Citys demurrer to the first and eleventh causes of action of the FAC.
[8]
F.
Sixth Cause of Action
As set forth above, Plaintiffs sixth cause of action alleges that Defendants actions violated, and continue to violate, Plaintiffs rights under
Article I, Sections 1, 2, 3, 7, 13 and 15 of the California Constitution
. (FAC, ¶ 408.) Plaintiff alleges that Defendants violate[d] her due process right to a governmental investigation, violate[d] her due process right to an unbiased governmental investigation, and violate[d] her equal protection and/or due process right not to be singled out for irrational and/or arbitrary discriminatory treatment. (FAC, ¶ 407)
Article I, Section 1 of the California Constitution
provides that
[a]ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
(
Cal. Const., art. I § 1
.) The City asserts that
Plaintiff has not pled sufficient facts to support her claim for violation of her state constitutional right to privacy. (Demurrer at p. 16:8-9.) Love does not appear to specifically address this point in her opposition to the Citys demurrer.
The City also cites to
Julian v. Mission Community Hospital
(2017) 11 Cal.App.5th 360, 391
, where the Court of Appeal found that
[t]here is no cause of action for damages for alleged violations of
California Constitution, article I, section 2, subdivision (a)
(freedom of speech),
article I, section 3, subdivision (a)
(right to petition the government)&or
article I, section 7, subdivision (a)
(due process and equal protection), when such an action is not tied to an established common law or statutory action, and
Julian
alleges no such cause of action.
Here, Loves opposition to the Citys demurrer does not appear to demonstrate how she may allege a cause of action for damages for a violation of
Article I, Sections 2, 3
, or 7 of the California Constitution.
As to
Article I, Sections 13 and 15 of the California Constitution
, the City asserts that these sections are not applicable to the facts of this case. Indeed, as discussed,
Section 13
concerns search and seizure, and
Section 15
concerns safeguards in criminal prosecutions.
(
Cal. Const., art. I, § 13
;
Cal. Const., art. I, § 15
.)
In light of the foregoing, the Court sustains the Citys demurrer to the sixth cause of action of the FAC.
G.
Ninth Cause of Action
As discussed, the ninth cause of action of the FAC is untitled, but alleges that Plaintiff, as DECEDENTS successor in interest, seek [sic] all damages accruing to DECEDENT in a survival action, pursuant to
Code of Civil Procedure section 377.34
. (FAC, ¶ 425.)
In the demurrer, the City asserts that
Plaintiffs Ninth claim for damages fails as a matter of law, as it is essentially a survival action, which is a claim personal to Tillet and not to Plaintiff. Plaintiff, who is pro per, cannot bring any claims on behalf of Tillet, and there is no legally cognizable right to bring this claim. (Demurrer at p. iii:3-6.)
As discussed, the caption page of the FAC states Carolyn Tracie Love above
Attorneys for CAROLYN TRACIE LOVE, (pro per). (FAC, p. 1.)
Plaintiff does not appear to state that she obtained counsel.
As set forth above, [a
] person who is unlicensed to practice law and who represents a decedents estate cannot appear in propria persona on behalf of the estate in matters outside the probate proceedings.
Since the passage of the State Bar Act in 1927, persons may represent their own interests in legal proceedings, but may not represent the interests of another unless they are active members of the State Bar. (
Hansen v.
Hansen
,
supra
, 114 Cal.App.4th at p. 621
[internal citations omitted]
.)
In light of the foregoing, the Court sustains the Citys demurrer to the ninth cause of action of the FAC.
H.
Tenth Cause of Action
Plaintiffs tenth cause of action is for constructive fraud intentional misrepresentation concealment. In the tenth cause of action, Plaintiff alleges,
inter alia
, that Defendants&intentionally misrepresented the status of decedents medical exam and the location of his remains& (FAC, ¶ 427.) Plaintiff further alleges that
Defendants&knowingly failed to disclose to Plaintiff important fact(s) known to them about DECEDENT to with the [sic] fact that DECEDENTS records were misidentified with those of Lance Edward Williams& (FAC, ¶ 428.)
In the demurrer, the City asserts that the tenth cause of action
appears to be directed to conduct allegedly committed by the County defendants. (Demurrer at p. 17:26.) The City asserts that [t]here are no factual allegations as to anything that the City, its departments or its employees did or did not do. As such, this claim is uncertain and fails as to the City defendants. (Demurrer at pp. 17:27-18:2.) Love does not appear to respond to or dispute this point in the opposition. Indeed, the tenth cause of action does not appear to reference the City specifically.
In light of the foregoing, the Court sustains the Citys demurrer to the tenth cause of action of the FAC.
I.
Thirteenth Cause of Action
The City also asserts that Plaintiffs Unruh Civil Rights Act cause of action fails as a matter of law. (Demurrer at p. 14:20.)
Plaintiffs thirteenth cause of action for violation of Californias Unruh Civil Rights Act alleges,
inter alia
, that
Trashawn is a gay black man with HIV which constitutes a disability that limits a major life activity. (FAC, ¶ 444.) Plaintiff alleges that Defendants conduct violated the Unruh Civil Rights Act by denying (or aiding or inciting the denial of) Trashawns rights to full and equal use of the accommodations, advantages, facilities, privileges, or services Defendants [sic] offers to patients by denying Trashawn adequate care based on his disability. (FAC, ¶ 445.)
In the demurrer, the City asserts,
inter alia
, that [t]he allegations in this claim also are conclusory at best, which does not satisfy the specific pleading standard as to public entities and public employees. (Demurrer at p. 14:23-25.)
Indeed, Plaintiff does not appear to specify in the thirteenth cause of action how the City allegedly
[denied] Trashawn adequate care based on his disability. (FAC, ¶ 445.) In
Gates v. Superior Court
(1995) 32 Cal.App.4th 481, 493-494
, cited by the City, the Court of Appeal noted that
because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. (
Internal quotations omitted
.) Love does not appear to respond to this point in the opposition.
In light of the foregoing, the Court sustains the Citys demurrer to the thirteenth cause of action of the FAC.
J.
Fifteenth Cause of Action
Plaintiffs fifteenth cause of action is for violation of
Government Code section 11135
.
Government Code section
11135, subdivision (a)
provides that
[n]o person in the State of California shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. Notwithstanding
Section 11000
, this section applies to the California State University.
In the FAC, Plaintiff alleges that
Defendants conduct denied Trashawn full and equal access to the services, programs, and activities offered by Defendant to patients at Defendants [sic] in violation of
Cal. Govt Code Section 11135
. (FAC, ¶ 456.) Plaintiff further alleges that Defendants conduct also denied Carolyn, who is associated with Trashawn under the meaning of the statute by virtue of the fact that she is the mother of Trashawn, a qualified individual with a disability within the meaning of
Section 11135(c)(1)
, full and equal access to the services, programs, and activities offered by Defendant in violation of
Section 11135
. (FAC, ¶ 457.)
In the demurrer,
the City notes that
[t]his claim contains no factual allegations as to which state funded programs and services Plaintiff was denied access or how she was denied access by virtue of Defendant Citys alleged conduct in this incident.
(Demurrer at p. 18:11-13.) Loves does not appear to respond to or dispute this point in the opposition.
The City also notes that
Government Code section 11135
is contained within Chapter 1 concerning State Agencies. The City asserts that
Section 11135
accordingly does not pertain to the City. Love also does not appear to respond to this point in the opposition.
Based on the foregoing, the Court sustains the Citys demurrer to the fifteenth cause of action of the FAC.
Conclusion
Based on the foregoing, the Court
sustains the Countys demurrer to the third, fifth, sixth, eighth, ninth, and tenth causes of action of the FAC as to the County and the Department of the Coroner, without leave to amend. As discussed, the Court sustained the Countys previous demurrer to the TAC in its entirety. (
See
May 1, 2024 Order.)
In addition, Love has not
proffered any basis for any amendment to
cure
the foregoing deficiencies. Accordingly, the Court finds that it is appropriate to sustain the Countys instant demurrer without leave to amend.¿
In addition, based on the foregoing, the Court sustains the Citys demurrer to the first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, thirteenth, fourteenth, and fifteenth causes of action of the FAC. As discussed, the Court sustained the Citys previous demurrer to the TAC, except for the Citys demurrer to the fifteenth cause of action of the TAC. (
See
May 1, 2024 Order.)
In addition, Love has not
proffered any basis for any amendment to
cure
the foregoing deficiencies. Accordingly, the Court finds that it is appropriate to sustain the Citys instant demurrer without leave to amend.¿
In light of the foregoing, t
he Court orders the City to file and serve a proposed judgment of dismissal within 30 days of the date of this order. (¿
Donald
v. Cafe Royale, Inc
. (1990) 218 Cal.App.3d 168, 186
[An order sustaining a demurrer without leave to amend is not a final judgment; a judgment of dismissal follows such an order as a matter of course.]¿.)¿¿
As to the County, the Court notes that the seventh cause of action of the FAC is alleged against all Defendants. However, the County did not demur to this cause of action. In his supporting declaration, the Countys counsel states that
[d]uring the meet and confer, Plaintiff agreed to the dismissal of the Seventh Cause of Action& (Bustos Decl., ¶ 5.) However, it does not appear that any request for dismissal has been filed as to the seventh cause of action of the FAC. The Court also notes that the first, thirteenth, and fifteenth causes of action of the FAC do not appear to specify which defendant(s) such causes of action are alleged against. The County does not demur to these causes of action, and the Countys demurrer does not appear to discuss them.
In light of the foregoing, the Court orders the County to
file and serve its answer to the FAC within 10 days of the date of this Order.¿¿
The City is ordered to give notice of this Order.
DATED:
July 12, 2024
________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
[1]
On May 1, 2024, the Court issued an Order pertaining to the Countys and the Citys respective demurrers to the TAC. The Courts May 1, 2024 Order provides,
inter alia
, that the Court grants the Countys request for judicial notice filed in support of the Countys demurrer.
[2]
The Court notes that on June 20, 2024, a Fifth Amended Complaint was submitted in this action. The Fifth Amended Complaint was electronically received on such date but was not filed. The docket for this action does not show that Plaintiff was authorized to file any Fifth Amended Complaint.
[3]
The FAC does not appear to allege any fourth or twelfth causes of action.
[4]
The Court notes that the first, thirteenth, and fifteenth causes of action do not appear to specify which defendant(s) such causes of action are alleged against. The second cause of action is alleged against LAPD. The third cause of action is alleged against the Los Angeles Police Department, Los Angeles Fire Department, County of Los Angeles, Department of Coroner. The fifth cause of action is alleged against County of Los Angeles, Department of Coroner, City of Los Angeles Police Department, Los Angeles Fire Department. The sixth, seventh, eighth, ninth, and tenth causes of action are alleged against All Defendants. The eleventh cause of action is alleged against Police Department. The fourteenth cause of action is alleged against Los Angeles City Police Department, Los Angeles Fire Department, Los Angeles Fire department EMT.
[5]
In the opposition, Love states that she is proceeding solely as Carolyn Love, an individual. (Oppn at p. 2:8.)
[6]
The Court also notes that Loves opposition asserts,
inter alia
, that Plaintiffs Fifth Amended Complaint contains detailed factual allegations that, if proven true, constitute valid causes of action against Defendants. (Oppn at p. 23:12-13.) However, as discussed, the Fourth Amended Complaint is the operative pleading in this case. Plaintiffs Fifth Amended Complaint was not filed, and the Court did not authorize Plaintiff to file a Fifth Amended Complaint.
[7]
As discussed,
Government Code section 815.6
provides that
[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.
Plaintiffs first cause of action also does not appear to
identify any specific statute or regulation purportedly imposing a mandatory duty on the City.
[8]
The City also asserts that [t]he Eleventh claim is an added claim which also violates the Courts previous order not to add any additional claims. (Demurrer at p. 11:25-26.) Indeed, the TAC does not appear to specifically allege a cause of action for negligent investigation and failure to perform welfare check. (Countys 12/20/23 RJN, ¶ 1, Ex. A.) The Court notes that
[f]ollowing an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the courts order.¿The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the
scope of the
order granting leave to amend. (
Harris v. Wachovia Mortgage, FSB
(2010) 185 Cal.App.4th 1018, 1023,
[internal citation omitted].) The Courts May 1, 2024 Order did not authorize Plaintiff to allege an additional cause of action for
negligent investigation and failure to perform welfare check. The Court finds that this is an additional ground to sustain the Citys demurrer to the eleventh cause of action of the FAC.
Preview
FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 EXHIBIT A FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 OPERATING AGREEMENT 25'1' THIS OPERATING AGREEMENT (the "ARicemcat") is made this day of November, 2014, by and among the Members listed herein, and listed on Exhibit A attached hereto. WITNESSETH: WHEREAS, the parties desire to form a professional services limited liability carspany known as Saftler & Bacher, PLLC (the "Company") pursuañt to the New York Limited Liability Company Law; and WHEREAS, the parties desire to establish their respective rights and obligations pürsüant to the New York Limited Liability Company Law in connection with forming the Company. NOW, THEREFORE, in consideration of the covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows: ARTICLE I Definitions 1,1 Definitions. As used in this Agreement, the following terms shallhave the meanings set forth below: Contribution" "Capital shall mean any contribution by a Member to the capital of the Company in cash, property or a promissory note or other binding obligation, Partner" "MâñâEiñE shallmean the Managing Partner and natural person known as Lawreñce B. Saftler, who shall manage the Company inacccidance with the terms of this Agreement. "Partners" (e) shall mean the Partners to this agoomom, who are Lawrence B. Settler and James W. Bacher. "Distribution" shall mean any cash and other property paid to a Member by Saftler & Bacher, PLLC from Net Cash Available for Distributions (as hereinafter defined), Year" "Fiscal shall mean the fiscal year of Saftler & Bacher, PLLC, which shall be the year ending December 31, "Member" (D shall mean each Person who executes and delivers a counterpart of this Agreement as a member of Saftler & Bacher, PLLC and each Person who may hereafter become a party to this Agreement. "Code" (g) shall mean the Internal Revenue Code of 1986, as amended, or any superseding federal revenue statute. "Company" (hl shall mean Saftler & Bacher, PLLC. Interest" fj} "Membership shallmean with respect to any Member such Member's aggregate rights in Saftler & Bacher, PLLC, including, without limitation, such Member's right to receive Distributions, have Net Profits (as hereinafter defined) and Net Losses (as hereinafter defined) allocated to such Member, and the right to vote. Distributions" "Net Cash Available for shall mean (i)that amount of cash which is available forDistribution from operations of Saftler & Bacher, PLLC; less FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 (ii)reserves as established by Lawrence B. Saftier and James W. Bacher in accordance with the terms of this Agreement. "Person" (k) shall mean any naturalperson, corporation, governmental authority, limited liabilitycompany, partnership, trust, estate,joint venture, unincorporated association or other individual or entity. Losses" (1) "Net shallmean the net losses of Saftler & Bacher, PLLC, if any, determined in accordance with generally accepted principles. Profits" (m) "Net shall mean the net income of Saftler & Bacher, PLLC, if any, determined in accordance with generally accepted accounting principles. Act" in) "New York shall mean the New York Limited Liability Company Law. (a) Lawrence B. Saltier, whose residence address is20 Tintern Lane, Searsdale, NY 10583, is a member as further defined herein. 65* (I)) James W. Bacher, whose residence address is412 East Street, Apt IA, New York, NY 10065, is a member as further defined herein. ARTICLE II Organization 2.1 Fonnation. One (1) or more Persons has acted as an organizer or organizers to form Saltier & Bacher, PLLC by preparing, executing and filing with the New York Secretary of State the Articles. of Organivanon pursuant to the New York Act. 2:2 Name. The name of the Company is Saftler & Bacher, PLLC. 2.3 Duration. The duration of Saltier & Bacher, PLLC shallbe perpetual; provided, however, that Saltier & Bacher, PLLC.may be dissolved sooner pursuant to this Agreement or the New York Act. 2.4 Purposes. The purpose for which Saftler & Bacher, PLLC isformed isto provide professional legal services. 2.5 Place of Business. The partnership shall be located at 275 Madison Ave., Suite 1605, New York, NY 10016 and remain there until the end ofthe lease,which is set to expire on April 30, 2017, subject to renewal. Itis agreed that Ben Saftler of Capstone firms' Realty shall be the law real estate agent for the purpose of acquiring new space, or renewing thd current lease, atthe end of the lease. To the extent that Ben Saltier is no longer employed at. Capstone Realty atthe conclusion of the current lease, the members will agree upon who to retain for the purpose of acquiring new space or rcñewing the current lease, 2 FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 ARTICLE III Members 3.01 Names; Addresses: Units. The name and address of each Member, as well as the perceñtage of partnership issued to such Member, are as setforth herein and included in this Agrccment, as may be amended from time to time in connection with the transfers of Membership Interests and the admission of new Members in accordance with the provisions of this Agreement. 3.02 Additional Members. No person shall be admitted as a Partner of the Partnership except with the written consent of allPartners who shall determine the terms and conditions upon which such admission isto be effective. 3.03 Disqualification of Members, Managin g Partners and Employees. Ifany Member, Managing Partner or employee of the Company who has been rendering professional service to the public becomes legally disqualified to practice his, her or its profession within New York State, he, she or itshall sever allemployment with and financial interests (other than interests as a creditor or vested rights under a bona fide retiremeñt program) in the Company forthwith or as otherwise provided in thisAgreement. Such legal disqualification to practice such profession within New York State shall be deemed to constitute an irrevocable offer by the disqualified Member to sellhis, her or its Membership Interest to the Company, pursuant to the provisions of this Agreement. 3.04 Dissolution of Members. The partnership may be dissolved by the partners at such time and under such condition as eitherpartner desires at will, but subject to the terms of thisagreement. If a partner wants to dissolve the partnership agreement, such may be accomplished by written notice of the party intending the dissolution allowing not less than 90 days to dissolve and distribute such filesand funds as necessary toterminate the partnership. Any monies to which the other isentitled pursuant to this agreement must be paid prior to the termination of this agreement. Monies will be owed on cases that are marked settled and waiting for settlement checks, or other legal fees owed to the firm. All cases revelt to the partner who brought said case into the partnership upon dissolution. Those cases brought into the partnership where origination is unknown or in dispute will be resolved by agreement between the partners and where agreement cannot be reached, resolved by arbitration, to be decided by the partners. Regardless of time of year, no partner shallhave entitlement to any percentage of fees for files afterdissolution, unless as set forth herein. Whatever work was performed on a fileprior to dissolution will inure to the fileand the partner who isentitled to retain it,regardless of any and allwork performed prior thereto, At the time of execution of this agreement, Schedule A attached hereto identifiesthose files in the firm at the inception of the partnership, to be revised yearly, and who would retain said fileifthe firm dissolves. Any bank loan outstanding must be reconciled by the partnership prior to dissolution tothe extent of said partner percentage at the time of dissolution. Any debt, open bill or liabilitymust be paid and/or resolved prior to dissolution or be carried over untilsuch debt isresolved. The partner remains responsible for his share notwithstanding dissolution. All prior debt is carried 3 FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 over to the extent of the profit sharing percentage at the time of dissolution, not the inception of the debt. All matters that are assigned to whatever partner brought in said matter shallbe entitled to said fileat dissolution regardless of who works on said file.If said fileremains in the hands of a non-vesting partner, the partner who brought in said case shall be entitled to 113 of the legal fee atthe conclusion of said legal matter. 3.05 Death of Members. The death of a partner shall vest such income to the estate of the partner deceased to the point of his death with the profits vested to be forwarded to his estate untilallmatters brought in by said partner are resolved. All cases that come in shall be assigned a partner who brought said matter in and thereby vest for the purpose of this clause to the partner who brought itin and forthe purposes of dissolution. Upon death, the estate of the attorney isentitled to 1/3 of the fee assigned to thatcase upon completion of the case. 3.06 Illness of Members. Itis understood that ifa partner becomes illor disabled to the extent of being unable to perform his duties for a period of 6 months during the partnership, the remaining partner shall carryon allduties of the firm to the extent he is able. To the extent that he is unable to handle such function, the remaining party may hire such other legal help as isnecessary and charge the cost to the partnership. If the ill partner remains disabled for greater than one month, the cost of legal help incurred to replace him may be charged against the profits attributable to the illpartner, 3.07 Information..Eaeh Member may inspect during ordinary business hours and atthe principal place of business of the Company the Articles of Organization, this Agreement, any amendments to thisAgreement, the minutes of any meeting ofthe Members, and tax returns of the Compañy for the immediately preceding three (3) Fiscal Years. 3.08 Limitation of Liability. Each Member's shall liability be limited as set forth in thisAgreement, the New York Act and other applicable law. Except as otherwise provided herein, a Member shall not be personally liable forany indebtedness, liabilityor obligation of the Company. 3.09 Liability o f Members. To the fullestextent now. or hereafter permitted under the New York Act or other applicable law, no Member shall be liable to the Company or any other Member for damages for any breach of duty by such Member in his/her/its capacity as such. To. the fullest extent now or hereafter permitted under the New York Act or other applicable law, no Member shall be liable for any of the debts, obligations or liabilitiesof the Company, 3.10 Indemnification. The Company shall indemnify and hold harmless, and advance expenses to, each Member (in his/her/itscapacity as a Member) from and against, and in conñêction with, allclaims and demends whatsoever to the maximum extent now or hereafter permitted under the New York Act or other applicable law. 4 FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 3.11 Obli ations to the Com an . Except as otherwise permitted by the Company, each Member shall devote his/her/itsbest efforts and. substantially aH of his/her/ifs professional time to serving the Company and itsclients and customers, ARTICLE IV Management 4. i M~tana ament. M -a—,—,.entof the Company shall be vested in the (" Saltier" Managing Partner Lawrence B. ).Subject to the terms and conditions of this Agreement, the Managing Panner shall direct, manage and control the business of the Company. Subject to the terms and conditions of this Agreement, the Managing Pat tnei shaH have fulland complete authority, power and discretion to manage and control the business, affairs and properties of the Company, to make all decisions regarding such matters and toperform any and allother acts or activities customary or incident to the management of the Company's business, All costs and expenses of the partnership shall be borne by both partners tothe extent of his partnership interest,including rent, health insurance, liabilityinsurance and other coverage pertinent and necessary for carrying on the costs of the business, court costs, fees and expenses of cases, including experts, file expenses, depositions and other pertinent costs attendant to the law practice. To the extent that there are no profits at such times, the partners shaH contribute such cash as is necessary to maintain the partnership business and shallbe responsible at the end ofthe term year to satisfy allobligations to the extent of their partnership interest atthe same rate as theirpartnership interest at the time funds are needed. Saltier will have sole discretion as to when funds will be needed for the purpose of carrying on the business and can eitheraccess the credit line or call on each partner 4.2 Tenure and uglification of Mana in Partner. The Managing Partner may be changed from time to time by consent of allMembers. Lawrence B. Seller will serve as the Managing Partner for the duration of thisagreement, unless by amendment agreed to by all Members, 4.3 Powers of Mana in Partner. Without limiting the generality of Section 4.1 and subject to the provisions stated herein, the Mansaging Partner shaH have fullright, power and authority, on behalf of the Company to: (a) open bank accounts and otherwise invest the funds and assets of the Company; (b) purchase insurance on the outst»~~s and assets of the Coitnpat.y (at allthnes the Cosmtp~.y shall have malpractice coverage of at proceedings„' least$1,000,000.00); (0) commence lawsuits and other (d) execute and deliver any agreement, contract, dont!men<, instrument or other writing; (e) retain accountants, attorneys or other agents and advisors; (f) to adveitise or othset~ise promote the business activitiesof the Company through media and advertising (allmedia and advertising of any nature shall take place only upon mutual agreement by both parties to thisAgreement); and (g) take any other lawful action thatthe Managing Partner considers necessary, convenient or advisable in connection with any business of the Company. 5 FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 4.4 Employees. All decisions regarding employees at the Company, including hiring, firing,and allCompany related employment decisions will be made by both Partners. 4.5 Binding Authority, Unless otherwise expressly authorized to do so by this Agreement or in writing by allMembers, no Member, other than the Managing Partner, shall participate in the management or control of the Company's business and no Person shall have any power or authority to bind the Company, other than the Managing Partner. 4.6 Liability of Members. To the fullestextent now or hereafter permitted by applicable law, no Members shall be liableto the Company or any of itsMembers for damages for any breach of duty by such Members in his/her capacity as such. No Member shall be personally liable for any indebtedness, liabilityor obligation of the Company. 4.7 Management Fee: Reimbursement of Expenses. No Managing Partner shallreceive any management fee or salary inconnection with his/her duties as a M«ñaging Partner of the Company hereunder. Each Managing Partner shall be reimbursed for his/her reasonable expenses incurred on behalf of the Company. ARTICLE V Books and Records 5,1 Books of Account. The Company shall keep accurate books and records of accounts and minutes of allmeetings of the Members. The Company shall maintain its books and records and shall determine all items of Net Profits, Net Losses and Distributions on a Cash basis of accounting in accordance with principles applicable in determining taxable income or loss for federal income tax purposes for partnerships under the Code and consistent with accounting methods used by the Company in determining taxable income or loss for federal income tax purposes. The Company shall also keep all other records sufficient to record the Company's business and affairs and sufficient to record the determination and allocation of all items of Net Profits, Net Losses, and Distributions and other amounts as may be provided for herein and to meet the requirements of any lender to the Company orto meet any reporting requirements imposed on any Member, including keeping (if required) an additional set of records on a full accrual basis of accounting in accordance with generally âccepted accounting principles using tax depreciation methods. 5.2 Reports. Within (90) days after• the end of each Fiscal Year, there ninety shall be made available to each Member for such Fiscal Year (i)a balance sheet, (ii)an income statement, and a (iii) computation of Net Profits or Net Losses. In addition, within ninety (90) days after the end of each Fiscal Year, the Company shall prepare and deliver to each Member a report setting forth in sufficient detail allsuch information and data with respect to the business transactions effected by or involving the Company during such Fiscal Year as shall enable each Member to prepare allitstax returns in accordance with the laws, rules and regulations then prevailing. The Company shall also 6 FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 prepare alltax or information returns required of the Company. 5.3 Access to Books. The books and records of the Company shall be available to each Member or itsrepresentatives for inspection and audit (at such Member's expense) during normal business hours at the principal office of the Company. 5.4 Bank Accounts. The operating bank accounts of the Company shall be mahtaked in such bank or banks as may be designated by the Managing Partner and withdrawals from said accounts shall be made as the Managing Partner may determine. There shall be no commingling of the moneys or funds of the Company with moneys or funds of any Member or any other entity.The Company shall retain and have the finn of Schneider, Sehecter and Yoss forthe Company's accounting services, and the partners hereby waive any conflict relating to the same firm being the accountant for Saftler personally, however the Company shall only pay said accounting firm for the actual cost of the Company's accounting services and not for any personal services borne by Saftler. Bacher may not employ Schneider, Sehecter and Yoss as his personal accountant. 5.5 Financial Checking Accounts. Itis agreed that there shall be two checking accounts. The main account ("Account 1)shall be maintained and handled by the Managing Partner, with a second account ("Account 2") maintained by the non-managing partner. Both accounts will be used for firm related activities and expenses only. Funds and draw necessary toaccomplish firm business will be accomplished through Account 1, unless the Managing Partner is otherwise unavailable at which point Account 2, which is maintained by the non-managing partner shall be utilized. ARTICLE VI Capital Contributions 6.1 Capital Contributions. Each Member shall initially contribute the following amounts as the initial Capital Contribution to be made by him/her/it: (a) Lawrence B. Saltier shall contribute $64,000; and (b) James W. Bather shall contribute $16,000. Itis agreed that each shall be responsible toplace an amount equal to $80,000 into the Saftler & Bacher accounts relativeto their respective partnership amounts for the year 2015. 6.2 Additional Contributions. (a) No Member shall be obligated to make any additional Capital Contribution; provided, however, in the event the Managing Partner shall determine that such additional Capital Contributions are necessary or appropriate under the circumstances, they shall furnish notice to the Members requesting that such additional Capital Contributions be made on a pro rata basis,which notice shall specify (i) the total amount of such additional Capital Contributions being required and the reason therefor; (ii)each Member's pro rata share of the total additional Capital Contribution being sought; and (iii)the date such additional Capital Contributions by the Members are due and payable. Said additional Capital Contributions by the Members shall increase the initialCapital Contribution amount and shall be deposited intothe Saftler & Bacher accounts as soon as practicable. 7 FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 ARTICLE VII Compensation, Allocations Distributions and Draw 7.1 Offset, The Company may offset allamounts owing to the Company by Member against any Distribution to be made to such Member. 7,2 Draw. Bather shall have an agreed draw of$1500.00 per week. Saftler may draw funds at will, but will not take any defined draw on a weekly basis. The amount that each partner is entitled to shall be resolved by accounting at year end or within 90 days thereafter. To the extent that either partner has overdrawn his percentage, that said amount shall be repaid to the firm within 90 days of the shortfall. Each partner shall be entitled to a percentage share of profit,meaning net profit after costs and expenses of the law practice. 7.3 Ownership Interest. The respective ownership interests in the Company is as follows: (a) For the year 2015, Bacher shall have a 20 interest and Saftler shall have an 80 interest in the Company's profit; (b) For the year 2016, Bather shall have a 30 interest and Saftler shall have a 70 interestin the Company; (c) For the year 2017, Bacher shall have a 40 interest in the Company and Saftlershall have a 60 interest in the Company's profit; and (d) For the year 2018, Bather shall have a 50 interest and Saltier shall have a 50 interest in the Company. Thereafter, until otherwise agreed upon in writing, the 50/50 ownership interest shall continue in perpetuity subject to the other provisions contained in thisAgreement. Itis understood and agreed that unless otherwise agreed upon in writing, Lawrence B. Saftler will maintain the controlling interest as Managing Partner, which will reside and be retained by Saftler until such time as itis otherwise agreed to in writing. 7.4 Credit. For allincome tax purposes, credits of the Company claimed for a Fiscal Year shall be allocated among the Members in the same manner as Net Losses are allocated among the Members. 7.5 Allocations and Distributions with Respect to Transferred Interest, Profits, gains, losses, deductions and credits allocated to a Membership Interest assigned during a Fiscal Year of the Company and distributions with respect thereto shall be allocated or distributed, as the case may be, to the person who was the holder of such Membership Interest during such Fiscal Year on the basis of an interim closing or closings of the Company's books or in any other proportion determined by the Managing Partner. 7.6 Distributions. To the extent Net Cash Available for Distributions is available for distribution, the Managing Partner shall cause the Company to make Distributions of all Net Cash Available for Distributions to the Members in their proportionate share. Such Distribution, shall be made at the sole discretion of the Members. 8 FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 7.7 Reserves. The Managing Partner shall have the right to set aside from Net Cash Available for Distributions such reserves as itin itsreasonable discretion determines to be prudent for the operation of the Company's business. 7.8 Year-End Adjustments. The amount of allDistributions paid by the Company to any Member shall be based upon good faith estimates for the year made by the Managing Partner with due regard toall information available as an interim advance against finaldetermination. Within one hundred twenty (120) days after the end of each Fiscal Year, the Managing Partner shall determine the amount of funds available for Distributions (taking into account, among other things, the Company's working capital requirciiicras and all Company obligations then due), the restrictions on Distributions set forth herein and the Distributions due to each Member with respect to such Fiscal Year. Subject to the provisions of this Agreement, any excess of the amount so determined for a Member over the amount of interim advances received by such Member shall be distributed to such Member as soon as reasonably practicable after the amount of its Distributions with respect to such Fiscal Year has been determined, but in no event more than one hundred fifty (150) days after the end of such Fiscal Year and in no event later than the time any other Member receives itsyear-end amount under this Section, 7.9 Accounting Period. The accounting period of the Company shall be the Fiscal Year. ARTICLE VIII Transferability/Dissociation 8.1 Prohibition on Transfer. A partner shallnot, and shall have no right, to sell,assign, pledge or mortgage his interest in the Partnership, orthe Partnership property or assets, except with the written consent of both partners, and any such prohibition transfer, ifattempted, shall be void and without force and effect. 8.2 Dissociation. A Member's Membership Interest shall terminate, and the Member shall be dissociated from the Company, upon the firstto occur of the following: (a) The Member's death or disqualification pursuant to thisAgreement, or dissolution; (b) The effective date of the Member's retirement as determined 'by the Members and Section 9.5 below; or (c) The effective date of the Member's withdrawal in accordance with Section 9.5. 8.3 Retirement. A Member shall be deemed to be retired when such Member ceases the practice of law. 8.4 Violative Transfers, transfer of allore any part of a Membership Any Interest contrary to the provisions of this Article shallbe null and void. 8.5 Release from Guaranty. Upon the dissociation of a Member pursuant to thisAgreement, the Company shall use good faithefforts to obtain the release of any personal guaranty executed by such dissociated Member in connection with any Company financing. 9 FILED: NEW YORK COUNTY CLERK 11/07/2019 03:24 PM INDEX NO. 654334/2019 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 11/07/2019 ARTICLE IX Dissolution 9.1 Dissolution. Subject to the tenns and conditions of this Agreement, the Company shall be dissolved and itsaffairs shall be wound up upon the firstto occur of the following: (a) The latestdate, if any, on which the Company is to dissolve as set forth in the Articles of Organization; or (b) Written notice thatany Member wished to dissolve the partnership made not less than 90 days prior to the dissolution date as outlined in this Agreement. 9.2 No Dissolution. The death, bankruptcy, dissolution or legal incapacity of any Member shall not cause a dissolution of the Company and in all such events the Company shall continue. The rights of the Member to share in the Net Profits and Net Losses of the Company, to receive Distributions and to assign a Membership Interest shall, on the happening of such an event, devolve on itssuccessors and assigns, subject to the terms and conditions of thisAgreement; provided, however, in no event shall any of such successors or assigns become a substituted Member, except with the vote or consent of the remaining Members holding a Majority in Interest. 9.3 Winding Up. Upon the dissolution of the Company, the Managing Partner shall, in the name of and for and on behalf of the Company, prosecute and defend suits, whether civil,criminal or administrative, selland close the Company's business, dispose of and convey the Company's property, discharge the Company's liabilitiesand distribute to the Members any remaining assets of the Company, all without affecting the liability of Members. Upon winding up of the Company, the assets shall, subject to Section 1104, be distributed in the following order and priority: (a) First to creditors, including any Member who isa creditor, to the extent permitted by law, in satisfaction of liabilities ofthe Company, whether by payment or by establishment of adequate reserves, other than liabilitiesfor distributions to Members under Section 507 or Section 509 of the New York Act; (b) Second to Members and former Members in satisfaction of liabilitiesfor Distributions under Section 507 or Section 509 of the New York Act; and (e) The balance to Members in proportion to their remaining ownership interest. 9.4 Articles of Dissolution. Within ninety (90) days following the dissolution and the commencement of winding up of the Company, orat any other time there are no Members, articlesof dissolution shall be filed by the Managing Partner with the New York Secretary o