Preview
FILED: NEW YORK COUNTY CLERK 10/04/2019
11/07/2022 10:00
04:35 AM
PM INDEX NO. 157185/2019
NYSCEF DOC. NO. 9
78 RECEIVED NYSCEF: 10/04/2019
11/07/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
GREG ROHLES, :
Index No.: 157185/2019
Plaintiff, :
-against- :
VERIFIED ANSWER
METROPOLITAN TRANSPORTATION AUTHORITY, :
THE NEW YORK CITY TRANSIT AUTHORITY,
METROPOLITAN TRANSIT AUTHORITY (CAPITAL :
CONSTRUCTION COMPANY) and JUDLAU
CONTRACTING/TC ELECTRIC, A JOINT VENTURE, :
Defendants.
__------------_____ ____ --------..... ¬_ ------- X
Defendants, METROPOLITAN TRANSPORATION AUTHORITY, THE
NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT
AUTHOIRTY (CAPITAL CONSTRUCTION COMPANY) and JUDLAU
CONTRACTING/TC ELECTRIC, A JOINT VENTURE, by its attorneys, WILSON,
ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, as and for their Answer to the
plaintiffs Verified Complaint herein, upon information and belief, alleges:
AS AND FOR A FIRST CAUSE OF ACTION
1. Defendants deny knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations contained Within paragraphs "FIRST", "SIXTH",
"FIFTEENTH" "SIXTEENTH"
"FOURTEENTH", and of plaintiffs Verified Complaint.
2. Defendants admit the allegations contained within paragraphs "SECOND",
"FOURTH" "ELEVENTH"
and of plaintiffs Verified Complaint.
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3. Defendants deny knowledge or information sufficient to form a belief as to
the truth or falsity of the allegations contained within paragraphs "THIRD", "FIFTH",
"NINTH" "TENTH"
"SEVENTH", "EIGHTH", and of plaintiff's Verified Complaint and
refers all questions of law to be determined by the Court and questions of fact for the trier
thereof.
4. Defendants deny each and every allegation contained within paragraphs
"SEVENTEENTH" "TWENTY-FIRST"
"TWELFTH", "THIRTEENTH", and of plaintiff's
Verified Complaint and refers all questions of law to be determined by the Court and
questions of fact for the trier thereof.
5. Defendants deny each and every allegation contained within paragraphs
"NINTEENTH" "TWENTIETH"
"EIGHTEENTH", and of plaintiff's Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
6. Plaintiff's own culpable conduct was the sole proximate cause of the
happening of the accident, and as such is a bar to this action.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
7. Upon information and belief, that whatever damages the plaintiff may have
sustained at the time and place mentioned in the Verified Complaint were caused in whole
or in part the culpable conduct of said plaintiff. The amount of d amages recovered, if
by
any, shall therefore be diminished in the proportion to which said culpable conduct,
attributable to plaintiff bears to the culpable conduct which caused said injuries.
2
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AS AND FOR A THIRD AFFIRMATIVE DEFENSE
8. Upon information and belief, that injuries and damages alleged were caused
by the culpable conduct of some third unknown person or persons over whom answering
defendant neither had nor exercised control.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
9. Plaintiff was a recalcitrant worker and cannot sustain a claim against the
defendant as a matter of law.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
remedy" Workers'
10. Plaintiff claim is barred by the "exclusive provisions of
Compensation Law §§ 11 and 29.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
11. If and in the event answering defendant is found to be liable to the plaintiffs,
defendant'
answering liability is limited by the provisions of Article 16 of the CPLR.
AS AND FOR A SEVEN_TH AFFIRMATIVE DEFENSE
12. Upon information and belief, plaintiff's economic loss, if any, as specified in
§4545 of the CPLR, was or will be replaced or indemnified, in whole or in part, from
collateral sources, and the defendant is entitled to have the Court consider the same in
determining such special damages as provided in §4545 of the CPLR.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE
13. That the Complaint herein or a part thereof fails to state a cause of action
upon which relief may be granted.
3
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AS AND FOR A NINTH AFFIRMATIVE DEFENSE
14. Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or
reduce the injuries, damages and disabilities as alleged in the Verified Complaint.
AS___AND FOR A TENTH AFFIRMATIVE DEFENSE
15. Any and all risks, hazards, defects or dangers alleged were open, obvious
and apparent, natural and inherent and known, or should have been known to the plaintiff
herein, and the plaintiff voluntarily assumed all such risks, hazards, defects and dangers.
AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE
16. While the answering defendants deny the plaintiff's allegations of
negligence, liability, statutory liability, strict liability, injury and damages, if proven, they
were the result of intervening and/or interceding acts of superseding negligence, liability,
statutory liability, strict liability on the part of parties over which the answering
defendants neither controls nor has the right to control, and for which acts or omissions
these answering defendants are not legally responsible.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE
17. Defendants are immune from suit for their exercise of discretion in the
performance of a governmental function and/or their exercise of professional judgment.
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE
18. Upon information and belief, that all risks and danger of loss or danger
connected with the situation alleged in the Complaint were at the time and place
mentioned obvious and apparent and were known by the plaintiff and voluntarily
assumed by him.
4
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AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE
19. Plaintiff failed to satisfy all conditions precedent prior to commencing the
instant lawsuit and therefore is barred from maintaining this action.
WHEREFORE defendants METROPOLITAN TRANSPORATION
AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY,
METROPOLITAN TRANSIT AUTHOIRTY (CAPITAL CONSTRUCTION
COMPANY) and JUDLAU CONTRACTING/TC ELECTRIC, A JOINT
VENTURE, by and through their attorneys, WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP, respectfully demand judgment dismissing the plaintiff's
Verified Complaint, herein together with the costs and disbursements of this action; and
for such other and further relief as to this Honorable Court may seem just, proper and
equitable.
Dated: New York, New York
October 3, 2019
Yours, etc.,
WILSON, ELSER, MOSKOWITZ, EDELMAN &
DIC LLP
By:
Daniel .Mo se, Esq.
Attorneys for Defendants
Metropolitan Transportation Authority
The New York City Transit Authority
Metropolitan Transit Authority (Capital
Construction Company and Judlau
Contracting/TC Electric, A. Joint
Venture
150 East 42nd Street
New York, New York 10017-5639
(212) 490-3000
File No.: 20168.00010
5
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TO:
SACKS & SACKS, LLP
Attorneys for Plaintiff
150 Broadway
4th FlOOT
New York, New York 10038
(212) 964-5570
6
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ATTORNEY'S VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
I,Daniel J. Morse, the undersigned, being an attorney duly admitted to practice before
the Courts of the State of New York and fully aware of the penalties of perjury, hereby affirms as
follows:
Affirmant is a member of the law firm of WILSON, ELSER, MOSKOWITZ, EDELMAN &
DICKER, LLP, attorneys for Defendants, METROPOLITAN TRANSPORATION
AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN
TRANSIT AUTHOIRTY (CAPITAL CONSTRUCTION COMPANY) and JUDLAU
CONTRACTING/TC ELECTRIC, A JOINT VENTURE, in the within action, and is fully
familiar with the facts and circumstances involved in this matter from reviewing the fileregarding
the same maintained in the offices of said law firm.
Affirmant has read the foregoing Answer, knows the contents thereof, and the same are
true to Affirmant's own knowledge, except as to those matters therein stated to be alleged upon
information and belief, and as to those matters Affirmant believes them to be true.
The grounds of Affirmant's belief as to allmatters not stated to be Affirmant's knowledge
are investigative and other information contained in the fileof the said law firm.
Dated: New York, New York
October 3, 2019
aniel J. 1Óorse, Esq,
7
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CGC24611734
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Ruling
ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
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20CV-02521
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Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
FILED: NEW YORK COUNTY CLERK 10/04/2019 11/07/2022 10:00 04:35 AM PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 9 78 RECEIVED NYSCEF: 10/04/2019 11/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK GREG ROHLES, : Index No.: 157185/2019 Plaintiff, : -against- : VERIFIED ANSWER METROPOLITAN TRANSPORTATION AUTHORITY, : THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHORITY (CAPITAL : CONSTRUCTION COMPANY) and JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, : Defendants. __------------_____ ____ --------..... ¬_ ------- X Defendants, METROPOLITAN TRANSPORATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHOIRTY (CAPITAL CONSTRUCTION COMPANY) and JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, by its attorneys, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, as and for their Answer to the plaintiffs Verified Complaint herein, upon information and belief, alleges: AS AND FOR A FIRST CAUSE OF ACTION 1. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained Within paragraphs "FIRST", "SIXTH", "FIFTEENTH" "SIXTEENTH" "FOURTEENTH", and of plaintiffs Verified Complaint. 2. Defendants admit the allegations contained within paragraphs "SECOND", "FOURTH" "ELEVENTH" and of plaintiffs Verified Complaint. 10168875v,1 1 of 7 FILED: NEW YORK COUNTY CLERK 10/04/2019 11/07/2022 10:00 04:35 AM PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 9 78 RECEIVED NYSCEF: 10/04/2019 11/07/2022 3. Defendants deny knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained within paragraphs "THIRD", "FIFTH", "NINTH" "TENTH" "SEVENTH", "EIGHTH", and of plaintiff's Verified Complaint and refers all questions of law to be determined by the Court and questions of fact for the trier thereof. 4. Defendants deny each and every allegation contained within paragraphs "SEVENTEENTH" "TWENTY-FIRST" "TWELFTH", "THIRTEENTH", and of plaintiff's Verified Complaint and refers all questions of law to be determined by the Court and questions of fact for the trier thereof. 5. Defendants deny each and every allegation contained within paragraphs "NINTEENTH" "TWENTIETH" "EIGHTEENTH", and of plaintiff's Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 6. Plaintiff's own culpable conduct was the sole proximate cause of the happening of the accident, and as such is a bar to this action. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 7. Upon information and belief, that whatever damages the plaintiff may have sustained at the time and place mentioned in the Verified Complaint were caused in whole or in part the culpable conduct of said plaintiff. The amount of d amages recovered, if by any, shall therefore be diminished in the proportion to which said culpable conduct, attributable to plaintiff bears to the culpable conduct which caused said injuries. 2 10168875v.1 2 of 7 FILED: NEW YORK COUNTY CLERK 10/04/2019 11/07/2022 10:00 04:35 AM PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 9 78 RECEIVED NYSCEF: 10/04/2019 11/07/2022 AS AND FOR A THIRD AFFIRMATIVE DEFENSE 8. Upon information and belief, that injuries and damages alleged were caused by the culpable conduct of some third unknown person or persons over whom answering defendant neither had nor exercised control. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 9. Plaintiff was a recalcitrant worker and cannot sustain a claim against the defendant as a matter of law. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE remedy" Workers' 10. Plaintiff claim is barred by the "exclusive provisions of Compensation Law §§ 11 and 29. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 11. If and in the event answering defendant is found to be liable to the plaintiffs, defendant' answering liability is limited by the provisions of Article 16 of the CPLR. AS AND FOR A SEVEN_TH AFFIRMATIVE DEFENSE 12. Upon information and belief, plaintiff's economic loss, if any, as specified in §4545 of the CPLR, was or will be replaced or indemnified, in whole or in part, from collateral sources, and the defendant is entitled to have the Court consider the same in determining such special damages as provided in §4545 of the CPLR. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE 13. That the Complaint herein or a part thereof fails to state a cause of action upon which relief may be granted. 3 10168875v.1 3 of 7 FILED: NEW YORK COUNTY CLERK 10/04/2019 11/07/2022 10:00 04:35 AM PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 9 78 RECEIVED NYSCEF: 10/04/2019 11/07/2022 AS AND FOR A NINTH AFFIRMATIVE DEFENSE 14. Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages and disabilities as alleged in the Verified Complaint. AS___AND FOR A TENTH AFFIRMATIVE DEFENSE 15. Any and all risks, hazards, defects or dangers alleged were open, obvious and apparent, natural and inherent and known, or should have been known to the plaintiff herein, and the plaintiff voluntarily assumed all such risks, hazards, defects and dangers. AS AND FOR A ELEVENTH AFFIRMATIVE DEFENSE 16. While the answering defendants deny the plaintiff's allegations of negligence, liability, statutory liability, strict liability, injury and damages, if proven, they were the result of intervening and/or interceding acts of superseding negligence, liability, statutory liability, strict liability on the part of parties over which the answering defendants neither controls nor has the right to control, and for which acts or omissions these answering defendants are not legally responsible. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE 17. Defendants are immune from suit for their exercise of discretion in the performance of a governmental function and/or their exercise of professional judgment. AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE 18. Upon information and belief, that all risks and danger of loss or danger connected with the situation alleged in the Complaint were at the time and place mentioned obvious and apparent and were known by the plaintiff and voluntarily assumed by him. 4 10168875v.1 4 of 7 FILED: NEW YORK COUNTY CLERK 10/04/2019 11/07/2022 10:00 04:35 AM PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 9 78 RECEIVED NYSCEF: 10/04/2019 11/07/2022 AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE 19. Plaintiff failed to satisfy all conditions precedent prior to commencing the instant lawsuit and therefore is barred from maintaining this action. WHEREFORE defendants METROPOLITAN TRANSPORATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHOIRTY (CAPITAL CONSTRUCTION COMPANY) and JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, by and through their attorneys, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, respectfully demand judgment dismissing the plaintiff's Verified Complaint, herein together with the costs and disbursements of this action; and for such other and further relief as to this Honorable Court may seem just, proper and equitable. Dated: New York, New York October 3, 2019 Yours, etc., WILSON, ELSER, MOSKOWITZ, EDELMAN & DIC LLP By: Daniel .Mo se, Esq. Attorneys for Defendants Metropolitan Transportation Authority The New York City Transit Authority Metropolitan Transit Authority (Capital Construction Company and Judlau Contracting/TC Electric, A. Joint Venture 150 East 42nd Street New York, New York 10017-5639 (212) 490-3000 File No.: 20168.00010 5 10168875v.1 5 of 7 FILED: NEW YORK COUNTY CLERK 10/04/2019 11/07/2022 10:00 04:35 AM PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 9 78 RECEIVED NYSCEF: 10/04/2019 11/07/2022 TO: SACKS & SACKS, LLP Attorneys for Plaintiff 150 Broadway 4th FlOOT New York, New York 10038 (212) 964-5570 6 10168875v.1 6 of 7 FILED: NEW YORK COUNTY CLERK 10/04/2019 11/07/2022 10:00 04:35 AM PM INDEX NO. 157185/2019 NYSCEF DOC. NO. 9 78 RECEIVED NYSCEF: 10/04/2019 11/07/2022 ATTORNEY'S VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) I,Daniel J. Morse, the undersigned, being an attorney duly admitted to practice before the Courts of the State of New York and fully aware of the penalties of perjury, hereby affirms as follows: Affirmant is a member of the law firm of WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, attorneys for Defendants, METROPOLITAN TRANSPORATION AUTHORITY, THE NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSIT AUTHOIRTY (CAPITAL CONSTRUCTION COMPANY) and JUDLAU CONTRACTING/TC ELECTRIC, A JOINT VENTURE, in the within action, and is fully familiar with the facts and circumstances involved in this matter from reviewing the fileregarding the same maintained in the offices of said law firm. Affirmant has read the foregoing Answer, knows the contents thereof, and the same are true to Affirmant's own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters Affirmant believes them to be true. The grounds of Affirmant's belief as to allmatters not stated to be Affirmant's knowledge are investigative and other information contained in the fileof the said law firm. Dated: New York, New York October 3, 2019 aniel J. 1Óorse, Esq, 7 10168875v.1 7 of 7