Preview
FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017
NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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COUNTY OF SUFFOLK,
Index No. 604661/2017
Plaintiff,
-against-
IRONSHORE INDEMNITY, INC.,
LEXINGTON INSURANCE COMPANY,
STARR INDEMNITY AND LIABILITY COMPANY,
and EDF RENEWAL DEVELOPMENT, INC.,
Defendants.
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LEXINGTON INSURANCE COMPANY'S MEMORANDUM OF LAW IN OPPOSITION
TO THE COUNTY OF SUFFOLK'S MOTION FOR SUMMARY JUDGMENT
CARLTON FIELDS JORDEN BURT, P.A.
Robert W. DiUbaldo, Esq.
Nora A. Valenza-Frost, Esq.
36'
405 Lexington Ave., 36 Floor
New York, NY 10174
(212) 785-2577
Attorneys for Defendant Lexington Insurance
Company
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TABLEOFCONTENTS
Page
PRELIMINARY STATEMENT 1
....................................................................................................
FACTUAL ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1
BACKGROUND.........................................................................................................
ARGUMENT..................................................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3
I. The County Has Not Met its Burden of Proving Coverage Under the
Applicable Insuring Agreements of the Lexington Policy .....................................
3
II. The Fortuity Doctrine Bars the Relief Sought by the County's Motion.................
6
III. The Lexington Policy's Breach of Contract Exclusion Bars Coverage for the
Underlying Action and the Relief Sought by the County.......................................
7
IV. The County's Arguments Pertaining to Lexington's Disclaimer are Belied
by the Record and Unavailing Under New York Law............................................
9
A. Lexington Disclaimed Coverage for the Underlying Action and the
County Cannot Establish Otherwise...........................................................
...........................................................
9
B. New York Law Does Not Support the County's Legal Arguments
and Demonstrates That Summary Judgment in Lexington's Favor is
Warranted..................................................................................................
13
CONCLUSION.............................................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 17
.
1
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TABLE OF AUTHORITIES
Cases Page
333 Fifth Ave. Assocs., LLC v. Utica First Ins. Co.,
107 A.D.3d 568 (1st Dep't 2013).............................................................................................
.............................................................................................
16
40 Gardenville, LLC v. Travelers Prop. . Cas. of Am.,
387 F. Supp. 2d 205 (W.D.N.Y. 2005)......................................................................................
......................................................................................
7
525 Fulton St. Holding Corp. . v.Mission Nat'l Ins. Co.,
256 A.D.2d 243 (1st Dep't 1998)...............................................................................................
...............................................................................................
7
80 Broad St. Co. v. United States Fire Ins. Co.,
88 Misc. 2d 706 (Sup. Ct. N.Y. County Dec. 17, 1975).............................................................
7
Albert J. Schiff Assoc., Inc. v. Flack,
417 N.E.2d
~ ~ 84 (1980) .........................................................................................................
16, 17
Apell v. State Farm Ins. Co.,
292 A.D.2d 407 (2d Dep't 2002).................................................................................................
9
City of N.Y. v. Granite State Ins. Co.,
136 A.D.3d 523 (1st Dep't 2016), leave to appeal denied, 29 N.Y.3d 915 (2017)...................
16
Consol. Edison Co. of New York, Inc. v. Allstate Ins. Co.,
98 N.Y.2d
~ ~ 208 6-7
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
(2002)..........................................................................................................3,
Cummins v. Schouten,
160 A.D.2d 1165 (3d Dep't 1990)..............................................................................................
..............................................................................................
5
De Santis Enters. Inc. v. Am. and Foreign Ins. Co.,
241 A.D.2d 859 (3d Dep't 1997)................................................................................................
................................................................................................
6
Dunn v. Brown,
261 A.D.2d 432 (2d Dep't 1999)................................................................................................
................................................................................................
5
Empire Group Allcity Ins. Co. v. Cicciaro,
240 A.D.2d 362 (2d Dep't 1997)..............................................................................................
..............................................................................................
16
Fairmont Funding, Ltd. v. Utica Mut. Ins. Co.,
264 A.D.2d 581 (1st Dep't 14
1999).............................................................................................
.............................................................................................
Hettinger v. Kleinman,
733 F. Supp. 2d 421 (S.D.N.Y. 2010) ........................................................................................
5
Highland Cap. . Mgmt., L.P. v. Global Aerospace Underwriting Managers Ltd.,
488 F. App'x 473 (2d Cir. 2012)................................................................................................
................................................................................................
7
Inc. Village of Pleasantville v. Calvert Ins. Co.,
204 A.D.2d 689 (2d Dep't 14
1994)..............................................................................................
..............................................................................................
Joseph v. New York Racing Assn.,
28 A.D.3d 105 (2d Dep't 2006).................................................................................................
10
.
1
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Liberty Mut. Ins. Co. v. McDonald,
6 A.D.3d
~ ~ 614 (2d Dep't 16
2004)..................................................................................................
..................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Markevics v. Liberty Mut. Ins. Co.,
97 N.Y.2d
~ ~ 646 (2001)...............................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 15
Matter of U.S. Specialty Ins. Co. (Denardo),
151 A.D.3d 1520 (3d Dep't 2017)............................................................................................
16
............................................................................................
Mid City Construction Co. v. Sirius Am. Ins. Co.,,
70 A.D.3d
~ ~ 789 (2d Dep't 13-14
2010)...........................................................................................
...........................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Mount Vernon Fire Ins. Co. v. Creative Housing Ltd.,
668 N.E.2d
~ ~ 404 (1996) ...............................................................................................................
9
Natural Organics, Inc. v. OneBeacon Am. Ins. Co.,
102 A.D.3d 756 (2d Dep't 2013), leave to appeal denied, 22 N.Y.3d 989 (2013).....................
8
New York State Electric & Gas Corp. . v.Lexington Ins. Co.,
204 A.D.2d 226 (1st Dep't 1994)...............................................................................................
7
...............................................................................................
Penn Millers Ins. Co. v. C.W. Cold Stor., Inc.,
L va/
103 4
A.D.3d L L a/cr (4th
ao~ ~a/%k1132 y ~LLLDep't
~vy i~v L a/J ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 14
L ~
2013)...........................................................................................
Prunty v. Keltie's Bum Steer,
163 A.D.2d
~ ~ 595 (2d ly1990).................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 9
'
av. Friedman,
272 A.D.2d
~ ~ 461 (2d Dep't 2000).................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 9
Sportsfield Specialties, Inc. v. Twin City Fire Ins. Co.,
45 Misc. 3d 1201(A) (Sup. Ct. Nov. 2, 2012)............................................................................
3
............................................................................
Stancil v. Supermarkets General,
16 A.D.3d
~ ~ 402 (2d Dep't 2005)...................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 9
State Farm Mut. Auto. Ins. Co. v. Kankam,
(1st
3 A.D.3d 418 (1 Dep't 2004)..................................................................................................
15
..................................................................................................
Swanson v. Allstate Ins. Co.,
150 A.D.3d 1299 (2d Dep't 2017)......................................................................................
17
......................................................................................
14,
Westchester Med. Center v. Liberty Mut. Ins. Co.,
40 A.D.3d
~ ~ 981 (2d Dep't 2007)................................................................................................
15
................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Worchester Ins. Co. v. Bettenhauser,
95 N.Y.2d
~ ~ 185 (2000)...............................................................................................................
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 15
Yoda, LLC v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA,
88 A.D.3d 506 (1st Dep't 2011)...............................................................................................
16
...............................................................................................
Zappone v. Home Ins. Co.,
55 N.Y.2d
~ ~ 131 (1982).........................................................................................................
16
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 15,
Statutes
New York Insurance Law § 14
3420.................................................................................................
.................................................................................................
..
11
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("Lexington"
Defendant Lexington Insurance Company ("Lexington") respectfully submits this
"County"
memorandum of law in opposition to the County of Suffolk's (the "County") motion for
summary judgment.
PRELIMINARY STATEMENT
As outlined in Lexington's brief in support of its motion for summary judgment (Doc.
No. 46), the allegations in the Underlying Action, which stem from the County's knowing and
deliberate breach of a contract with EDF, fall outside the scope of coverage afforded by the
Insuring Agreements of the Lexington Policy, such that Lexington has no duty to pay for the
it.1
County's defense costs or damages awarded against it. The Underlying Action also does not
involve a fortuitous loss, as required to obtain coverage under settled New York insurance law
and policy, and is likewise barred from coverage by the Breach of Contract exclusion
incorporated into the Lexington Policy. Each of these reasons is fatal to the County's motion,
not refuted therein, and warrant summary judgment in Lexington's favor.
Moreover, Lexington issued a valid disclaimer of coverage for the Underlying Action, as
reflected by the record before the Court and in the admissions made by the County in its motion.
But even assuming arguendo that Lexington had not, the County's motion would stillbe futile,
and Lexington would stillbe entitled to summary judgment, based on long established New York
law which holds that coverage cannot be created through waiver or estoppel under the
circumstances of this case. For the foregoing reasons, the County's motion should be denied.
FACTUALBACKGROUND
The majority of the facts relevant to this dispute are contained in Lexington's Brief,
incorporated by reference herein so as not to belabor the Court by repeating them. See Doc. No.
1
All defined terms set forth in Lexington's Memorandum of Law in Support of itsMotion for Summary
Judgment ("Lexington's Brief') are incorporated herein by reference. See Doc No. 46.
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46, at pp. 1-14. Additional facts pertinent to Lexington's opposition to the County's summary
judgment motion are as follows.
On June 20, 2013, Lexington received notice of the complaint filed by EDF in the
Underlying Action. See Doc. No. 52, at ¶ 39; Doc. No. 59. By letter dated November 14, 2014
Letter"
(the "Disclaimer Letter"), Lexington denied coverage for the Underlying Action on the grounds
that the allegations in EDF's complaint against the County did not implicate the relevant Insuring
Agreements incorporated into the Lexington Policy and, even if any of the Insuring Agreements
were implicated, the Breach of Contract exclusion would operate to bar coverage for the
Underlying Action in its entirety. See Doc. No. 60.
The Disclaimer Letter was sent by certified mail to the County, Arthur J. Gallagher Risk
Management (itsinsurance broker), and Blank Rome (counsel for the claimant EDF), on January
7, 2015. See the Affirmation of Robert W. DiUbaldo ("DiUbaldo Aff."), dated January 9, 2018,
at Ex. 2 & 3. The January 7, 2015 email from Lori Bradshaw, the individual who physically
mailed the Disclaimer Letter on behalf of Lexington, stated:
This is to confirm that the mailing request, Coverage letter Final, Lex Policy and
Ironshore Policy, received on 12/2/14 has been dispatched via certified mail on
1/7/2015 tracking number 7014 2120 0001 7545 3037 to County of Suffolk Law
Department, tracking number 7014 2120 0001 7545 3051 to Arthur J. Gallagher
Risk Management and tracking number 7014 2120 0001 7545 3044 to Blank and
Rome.
See Affidavit of Lori Bradshaw ("Bradshaw Aff."), dated January 9, 2018, at Ex. 1. Attached to
the January 7, 2015 email was the Disclaimer Letter, the Lexington Policy and the Ironshore
Policy. Id. The tracking number 7014 2120 0001 7545 3037, identified in the email as the
tracking number for the Certified Mail sent to the County, matches the tracking number on the
signed Certified Mail Return Receipt. Compare id. with Doc. No. 60. The County received the
Disclaimer Letter on or before January 22, 2015, as the Certified Mail Return Receipt which
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accompanied the Disclaimer Letter was signed by the County and returned to Lexington on or
about January 22, 2015. See Doc. No. 60. The signed Certified Mail Return Receipt was
executed by Liston England, who signed in his capacity as agent of the County. Id.
The Disclaimer Letter was again sent to the County by email on December 20, 2016. See
Doc. No. 63. Therein, Daniel Broker, Lexington's claims handler, informed Assistant County
Attorney Susan Flynn:
Please see a copy of the coverage letter that we issued to the County last year in
regard to the above captioned case. If you would like to discuss this matter,
please feel free to contact me at the number below.
Id. (emphasis added). Lexington received no response from the County with regard to the
Disclaimer Letter. The instant action was filed on March 13, 2017. See Doc. No. 1. The
Complaint is silentwith respect to Lexington's Disclaimer Letter. Id.
ARGUMENT
L The County Has Not Met its Burden of Proving Coverage Under the
Applicable Insuring Agreements of the Lexington Policy
It is well-settled that the County bears the burden of establishing coverage for the
Underlying Action under the Insuring Agreements of the Lexington Policy. See, e.g., Consol.
Edison Co. of New York, Inc. v. Allstate Ins. Co., 98 N.Y.2d 208, 218 (2002) (holding it isthe
insured's burden to establish coverage under a policy's insuring agreement); Sportsfield
Twin at *
Specialties, Inc. v. City Fire Ins. Co., 45 Misc. 3d 1201(A), 10 (Sup. Ct. Nov. 2, 2012)
("
("It is for the insured to establish coverage, not the insurer. The Court finds that [the insured] is
unable to prove coverage or that the allegations in the underlying complaint trigger [the
insurer's] duty to defend.") (citing Consol. Edison). The County's motion does not challenge
this fundamental precept of insurance coverage or even attempt to establish that the claims
alleged by EDF in the Underlying Action, and damages awarded against the County, fallwithin
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the scope of any of the Insuring Agreements. Instead, the County's 19 page brief contains two
sentences on the blanket premise that the allegations in the Underlying Action somehow
implicate the Errors and Omissions Liability coverage afforded by the Lexington Policy
(Insuring Agreement B), without citing to any facts or law that support this assertion. This does
not come close to satisfying the County's burden to prove coverage under New York law, and its
alone.2
motion should be denied on this basis alone.
Moreover, as outlined in Lexington's Brief (Doc. No. 46, at pp. 17-20), the allegations in
the Underlying Action, and damages awarded against the County, are not covered by the express
terms of Insuring Agreement B. To wit, the Errors and Omissions Liability Insuring Agreement
Act"
is only implicated by a "Wrongful committed by the County, defined as "any actual or
alleged negligent act, error or misstatement, omission, or breach of duty, including misfeasance,
malfeasance, and nonfeasance by an Insured". Doc No. 54, at Section V.RR (emphasis added).
The Underlying Action did not allege or involve any negligent conduct that constitutes a
Act"
"Wrongful within the meaning of this provision, nor does the County's motion demonstrate
otherwise. In fact, the District Court's detailed findings of fact and conclusions of law in the
Underlying Action uniformly reflect that the conduct for which the County was held liable to
EDF was anything but negligent. See Lexington's Brief, Doc. No. 46, at pp. 3-5. The District
Court found that the County knowingly, intentionally, and deliberately breached its contractual
obligations under the Ronkonkoma Lease with EDF, so that it would not be able to install solar
2
The County's motion does not attempt to argue that the allegations of the Underlying Action implicate
the Bodily Injury, Property Damage, Personal Injury or Advertising Injury Liability Insuring Agreement,
the Employment Practices Liability Insuring Agreement and the Employee Benefit Liability Insuring
Agreement incorporated into the Lexington Policy. For this reason, Lexington will not repeat the
arguments set forth in its moving brief concerning these provisions and why there is no coverage
thereunder for the allegations in the Underlying Action (at pp. 15-17, 20-21). Lexington respectfully
refers the Court to the relevant pages in its initialbrief, if necessary, addressing these specific Insuring
Agreements.
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carport facilities at the site. Id. (detailing citations to the record). In the words of the District
open"
Court, the County did so with "eyes wide because it wanted to use the Ronkonkoma Site
for a different purpose. See Doc. No. 49, Findings of Fact No. 124, Conclusions of Law Nos.
duty"
25-26. Simply put, there was no "negligent act, error, omission or breach of associated
with the County's conduct in the Underlying Action for which it was deemed liable. It
unilaterally cancelled the Ronkonkoma Lease knowing full well that doing so would breach the
lease agreement with EDF and violate the County's obligations thereunder. Id. The damages
ultimately awarded to EDF were the direct consequence of that breach, as recognized by the
District Court and Second Circuit. Therefore, Insuring Agreement B is not implicated by the
Underlying Action, and the County cannot meet its burden of proving otherwise, even if it
attempted to do so.
New York law supports Lexington's position. Numerous decisions have held that there
Act"
can be no "Wrongful within the meaning of Insuring Agreement B, and thus no coverage
under an Errors and Omissions Liability insuring clause, where an insured acts in an intended
manner and intends the result of those actions. See, e.g., Dunn v. Brown, 261 A.D.2d 432, 433
(2d Dep't 1999) ("[A]llegations of intentional conduct cannot form the basis of a claim founded
negligence"
in negligence"); Hettinger v. Kleinman, 733 F. Supp. 2d 421, 477-78 (S.D.N.Y. 2010) ("A
careless"
party's conduct cannot simultaneously be intentional and careless"); Cummins v. Schouten, 160
("
A.D.2d 1165 (3d Dep't 1990) ("The record clearly demonstrates that defendant's actions were
negligence"
intentional and therefore cannot form the basis of an action sounding in negligence"). That was
the precise scenario at issue in the Underlying Action; the County knew it was breaching the
Ronkonkoma Lease, that EDF would not be able to perform under the lease, and that EDF would
incur damages as a result. See Doc. No. 49, Findings of Fact No. 124, Conclusions of Law Nos.
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25-26. The District Court found that the County's deliberate actions with respect to the lease
agreement and itscontractual obligations to EDF had the desired effect of unilaterally cancelling
the Ronkonkoma carport project, which was the County's intended goal. Id., Findings of Fact
Nos. 86, 88, 90-91, 124. EDF was awarded damages in the Underlying Action because of such
breach - and not because of negligent conduct the - amounts which the
any by County County
now seeks to pass off to Lexington and the other insurer-defendants. Id.,Findings of Law Nos.
25-27. See also Doc. No. 51 (the Second Circuit's affirmance, holding that "the District Court
obligations"
properly found that the County breached its contractual and that "EDF was entitled
to damages resulting from the breach."). Therefore, the conduct for which the County was held
Act"
liable in the Underlying Action does not constitute a "Wrongful within the meaning of
Insuring Agreement B under New York law, and there is no defense or indemnity coverage owed
to the County under this provision. See, e.g.,De Santis Enters. Inc. v. Am. and Foreign Ins. Co.,
241 A.D.2d 859, 860-61 (3d Dep't 1997) (finding that there was no defense and indemnity
coverage owed to an insured under an employee benefits errors and omissions insuring
agreement because the insured's conduct at issue in the lawsuit - the and intentional
knowing
- omission"
termination of an employee benefit plan was not a "negligent act, error or of the
insured, as required to implicate coverage under that provision). For this reason as well, the
County's motion should be denied.
H. The Fortuity Doctrine Bars the Relief Sought by the County's Motion
The Underlying Action also did not involve a fortuitous loss, as required for coverage to
potentially exist under the Lexington Policy. New York insurance law and policy requires the
County to establish that the damages awarded against itin the Underlying Action were the result
"accident" "occurrence"
of an or an for which it was found liable to EDF. See, e.g., Consol.
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("
Edison, 98 N.Y.2d at 220 ("The insured has the initial burden of proving that the damage was the
'accident' 'occurrence'
result of an or to establish coverage"); Highland Cap. . Mgmt., L.P. v.
Related Content
in Suffolk County
Ruling
ZAFAR NEYMATOV VS HANNAH MARGARET EVA PERLSTEIN
Jul 09, 2024 |
23CHCV02264
Case Number:
23CHCV02264
Hearing Date:
July 9, 2024
Dept:
F47 Dept. F47
Date: 7/9/24
Case #23CHCV02264
MOTION FOR LEAVE TO FILE CROSS-COMPLAINT
Motion filed on 2/26/24.
MOVING PARTY:
Defendant Hanna Margaret Eva Perlstein
RESPONDING PARTY:
Plaintiff Zafar Neymatov
NOTICE: ok
RELIEF REQUESTED
: An order granting Defendant Hanna Margaret Eva Perlstein leave
to file a cross-complaint against Cadillac of Beverly Hills for: (1) Indemnification, (2) Apportionment of Fault and (3) Declaratory Relief.
RULING
:
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of a rear-end collision that occurred on 10/13/21 on the northbound Interstate 5 involving vehicles driven by Plaintiff Zafar Neymatov (Plaintiff) and Defendant Hanna Margaret Eva Perlstein (Defendant).
On 7/31/23, Plaintiff filed this action against Defendant for: (1) Motor Vehicle and (2) General Negligence.
On 12/29/23, Defendant filed her answer to the complaint.
At the time Defendant filed the answer, Defendant was unaware of facts on which to base a cross-complaint.
After the answer to the complaint was filed, Defendant became aware that at the time off the accident, Plaintiff was driving a courtesy vehicle loaned to her by Cadillac of Beverly Hills (Cadillac) which had come to a complete and sudden stop in the middle of the interstate moments before the accident.
Based on the foregoing, Defendant seeks an order granting her leave to file a cross-complaint against Cadillac (currently not a party to the action) for: (1) Indemnification, (2) Apportionment of Fault and (3) Declaratory Relief.
Plaintiff has not opposed or otherwise responded to the motion.
ANALYSIS
CCP 428.50 provides:
(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.
(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.
(c)
A party shall obtain leave of court to file any cross-complaint except one filed
within
the time
specified in subdivision (a)
or
(b)
.
L
eave may be granted in the interest of justice at any time during the course of the action.
Since the proposed cross-complaint is not alleged against Plaintiff and a trial date has not been set, Defendant was not required to obtain leave of court to file the cross-complaint.
See
CCP 428.50(b).
Defendants citation to CCP 426.50 is misplaced.
The subject cross-complaint is not compulsory because the related cause of action is not being alleged against Plaintiff.
See
CCP 426.30(a).
CONCLUSION
To the extent necessary, the motion is granted.
Defendant must separately file the cross-complaint.
Ruling
COSSUTO VS. ESTATE OF MICHAELGARRETT, ET
Jul 10, 2024 |
CVPO21-0196776
COSSUTO VS. ESTATE OF MICHAEL GARRETT, ET AL
Case Number: CVPO21-0196776
Tentative Ruling on Motion to Consolidate: Plaintiff Denise Cossuto moves to consolidate Case No. 196776
with Case No. 200449. Denise Cossuto is the Plaintiff in both matters and represented by the same counsel in
both matters. Despite being properly noticed, none of the other parties in this action have filed an opposition.
Motions to consolidate have certain pleading requirements that are described in CRC 3.350. Plaintiff has complied
with the requirements set forth in CRC 3.350.
(a) When actions involving a common question of law or fact are pending before the court, it may
order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the
actions consolidated and it may make such orders concerning proceedings therein as may tend to
avoid unnecessary costs or delay.
CCP § 1048(a).
The Court has discretion to order actions consolidated when they involve common questions of law or fact. CCP
§ 1048. Consolidation is appropriate where economy and convenience would be served by having the matters
consolidated. The purpose of uniting separate lawsuits is to enhance trial court efficiency (i.e., to avoid
unnecessary duplication of evidence and procedures); and to avoid the substantial danger of inconsistent
adjudications (i.e., different results because tried before different juries, or a judge and jury, etc.). See Todd-
Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal. App. 4th 976, 978-979.
Consolidation is an extension of the liberal rules regarding joinder of parties and claims. The “common question”
which justifies consolidation is usually one that would have justified joining the various parties in the same lawsuit
at the outset. Where separate lawsuits have been filed, consolidation in effect permits a “joinder” at a later stage
of the proceedings. See Petersen v. Bank of America (2014) 232 Cal. App. 4th 238, 252-253. Under the statute
and the case law, there are two types of consolidation: a consolidation for purposes of trial only, where the two
actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two
actions are merged into a single proceeding under one case number and result in only one verdict or set of findings
and one judgment. See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal. 4th 1127. In these matters, Plaintiffs
seek to consolidate the cases for all purposes, i.e., complete consolidation.
The decision to either grant or deny a motion to consolidate is within the trial court’s sound discretion and will
not be reversed except upon a clear showing of abuse of discretion. Fellner v. Steinbaum (1955) 132 Cal. App.
2d 509, 511. In determining whether to order consolidation, courts generally consider the following:
1. Timeliness: Whether consolidation would delay the trial of any of the cases involved, or whether discovery
in one or more of the cases has proceeded without all parties present;
2. Complexity: Whether joining the actions involved would make the trial too confusing or complex for a jury;
and
3. Prejudice: Whether consolidation would adversely affect the rights of any party.
See Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018), Ch.
12(I)-E. Consolidation is not proper if a party to the action is prejudiced by virtue of the consolidation. State Farm
Mut. Auto Ins. Co. v. Superior Court (1956) 47 Cal. 2d 428, 431-432.
The two matters at issue here involve the same parties and the same set of facts. Neither of these matters are
currently set for trial. There is no allegation that one is further along in discovery than the other or that discovery
has proceeded without all parties present. Regarding complexity or confusion to a jury, it does not appear that
consolidation would result in confusion for the jury. There also does not appear to be prejudice to any Defendant.
The Motion to consolidate is GRANTED. Case No. 200449 is consolidated into Case No. 196776 for all
purposes. Al future filings will be in Case No. 196776. Plaintiff provided a proposed Order for Case No.196776
but did not provide a proposed Order for 200449. Plaintiff is to prepare the Order for Case No. 200449. The
Court confirms the review hearing on Monday, July 22, 2024 at 9:00 a.m. in Department 63. Plaintiff is to
provide notice of the review hearing to all parties. The parties are ORDERED to meet and confer prior to the
hearing regarding proposed dates for trial.
Ruling
CECILIA TAPIA DE ULLOA, ET AL. VS MICHAEL K. NEWMAN, M.D., ET AL.
Jul 10, 2024 |
23TRCV00346
Case Number:
23TRCV00346
Hearing Date:
July 10, 2024
Dept:
8
Tentative Ruling
HEARING DATE:
July 10, 2024
CASE NUMBER:
23TRCV00346
CASE NAME:
Cecilia Tapia De Ulloa, et al. v. Michael K. Newman, M.D., et al.
MOVING PARTY:
(1)
Defendants, Michael K. Newman, M.D. and Association of South Bay Plastic Surgeons Medical Group
(2)
Defendants, Michael K. Newman, M.D. and Association of South Bay Plastic Surgeons Medical Group
RESPONDING PARTY:
(1) Plaintiff, Cecilia Tapia De Ulloa (No opposition)
(2) Plaintiffs, Cecilia Tapia De Ulloa and Edwin Ulloa
TRIAL DATE:
April 28, 2025
MOTION:
(1) Motion to Compel the Depositions of Plaintiffs, Cecilia Tapia de Ulloa and Edwin J. Ulloa
(2) Motion to Deem Admissions as to both Plaintiffs
Tentative Rulings:
(1) GRANTED, and the Court awards monetary sanctions of
$2,255.40.
The date and times for the depositions will be discussed at the hearing on the motions and made part of the Courts order
(2) MOOTED by service of verified denials of each RFA on July 1, 2024, but monetary sanctions of an additional $855 are GRANTED
The monetary sanctions are payable by Plaintiffs and/or by their counsel to the offices of defense counsel on or before July 30, 2024.
The awarded sanctions are expressly discovery sanctions, for purposes of State Bar reporting concerns
I. BACKGROUND
A. Factual
On February 7, 2023, Plaintiffs, Cecilia Tapia De Ulloa and Edwin J. Ulloa, as individuals and as successors in interest to Natalia C. Ulloa filed a Complaint against Defendants, Michael K. Newman, M.D., South Bay Plastic Surgeons, Inc., Jason K. Ho, M.D., Michael Mercado, M.D., Providence Medical Institute Manhattan Beach Urgent Care, and DOES 1 through 100. The Complaint alleges a cause of action for Medical Malpractice/Wrongful Death and Survival Action.
Defendants,
Michael K. Newman, M.D. and Association of South Bay Plastic Surgeons Medical Group (erroneously sued as South Bay Plastic Surgeons, Inc.) now file a Motion to Compel the Depositions of Cecilia Tapia De Ulloa and Edwin J. Ulloa. Moving Defendants note that the initially noticed the depositions of Plaintiffs on July 12, 2023, to occur on October 12, 2023. However, Moving Defendants indicate the depositions were taken off calendar by moving defendants counsel on October 5, 2023, because Plaintiffs responses to discovery on July 12, 2023, had still not been received.
Moving Defendants contend that the Plaintiffs depositions were again noticed on February 23, 2024, to occur on April 24, 2024. Moving Defendants note that on April 15, 2024 and April 18, 2024, Moving Defendants litigation assistant sent emails to both of Plaintiffs counsels to confirm the depositions of them noticed for April 24, 2024. On April 19, 2024, at 3:43 pm, Moving Defendants assert that one of Plaintiffs counsel, Sonia Chaisson, sent an email to Ms. Plotkin asking to meet and confer regarding dates for the subject depositions. On April 19, 2024, Ms. Plotkin sent an email to Ms. Chaisson stating she had just left a voicemail and asked for available dates for Plaintiffs deposition and that of a percipient witness who Plaintiffs counsel had agreed to produce. Ms. Plotkin notes she sent another email to both of Plaintiffs counsel on April 22, 2024, and that an email was received from Plaintiffs other counsel, Ralph Rogari, on Monday, April 22, 2024, stating that he and Ms. Chaisson would be in court for the next few days, but that Ms. Chaisson would provide deposition dates by Friday, April 26, 2024. Moving Defendants also note that Mr. Rogari also requested dates for Dr. Newmans deposition and that of Defendants expert, although experts had not yet been designated.
Moving Defendants counsel indicates that an email was sent to Mr. Rogari on April 23, 2024, stating the deposition could not be deferred indefinitely, and that if firm dates were not received by Friday, the depositions would be noticed unilaterally, and would not be taken off calendar again. Moving Defendants counsel indicates no response was sent and no deposition availability was communicated by Plaintiffs counsel. Accordingly, Moving Defendants indicate that on May 6, 2024, Defense counsel noticed the depositions of Plaintiffs to occur on May 29, 2024. Defense counsel notes that no response and no deposition availability was communicated to defense counsels office. On May 22, 2024, Moving Defendants counsel notes that she reached out to Plaintiffs counsel to confirm the depositions of Plaintiffs set for May 29, 2024, but that there was no response. On May 24, 2024, Defense counsel notes she received from Plaintiffs counsel a Notice of Deposition of Dr. Newman.
On May 29, 2024, Defense counsel notes that the court reporter and videographer appeared for depositions of Plaintiffs pursuant to the noticed depositions, at 10:00 am and 2:00 pm. However, Defense counsel notes that there was no appearance by Plaintiffs or their counsels, nor was there a call. Defense counsel asserts that certificates of non-appearance were obtained.
Further, on February 23, 2024, Moving Defendants also note that the propounded Requests for Admission, Set One, on each of the Plaintiffs through their counsel of record. Responses were due on or before March 27, 2024. On May 6, 2024, Defense counsel notes that she sent a letter to Plaintiffs counsel requesting Plaintiffs outstanding responses to the Requests for Admission, Set One, without objections, within ten (10) days of the letter. Moving Defendants contended as of the time the motion was filed that no responses were served. Thus, they have brought this motion to deem requests for admission as admitted.
B. Procedural
On June 5, 2024, Moving Defendants filed this Motion to Compel the Deposition of Plaintiffs. To date, no opposition has been filed.
On June 12, 2024, Moving Defendants filed a Motion to have Requests for Admission Deemed Admitted and Requests for Sanction. On July 1, 2024, Plaintiffs filed an opposition brief attaching verified denials of the subject RFAs. On July 2, 2024, Moving Defendants filed a reply brief.
II. ANALYSIS
A.
Motions to Compel the Deposition of Plaintiffs
Legal Standard
A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿
A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿
Pursuant to Code of Civil Procedure section 2025.450, subdivision (a) states, [i]f after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under section 2025.230, without having served a valid objection under section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450(a).)
California Code of Civil Procedure section 1987.1, subdivision (a) states, [i]f a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the courts own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.
[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas. (
Lee v. Swansboro Country Property Owners Ass'n
(2007) 151 Cal.App.4th 575, 582-583.)
Discussion
Here, Moving Defendants have filed a motion for an order compelling the depositions of both Plaintiffs, Cecilia Tapia De Ulloa and Edwin J. Ulloa. Moving Defendants argue that it is essential that the Plaintiffs be deposed to ascertain any information they have regarding liability and damages, which Moving Defendants will likely be presented by them at the time of trial to support their case. Moving Defendants contend that without these depositions, they will not be able to accurately project Plaintiffs claimed damages, assess the strengths and weaknesses of plaintiffs case, to retain the appropriate experts, to prepare for trial, or to consider pre-trial resolution by settlement.
Further, this Court notes that Moving Defendants have complied with the requirements of making this said motion under Code of Civil Procedure section 2025.450,
et seq
. For example, Moving Defendants have: (1) set forth in their motion, specific facts showing good cause for justifying the ordering of Plaintiffs depositions pursuant to the subpoenas; (2) the motion is also accompanied by a meet and confer declaration. (Code Civ. Proc., §
2024.450(b)(1)-(2).) Without an opposition brief, the Court assumes that Plaintiffs do not have an opposition to the motion. As such, the Court finds good cause to GRANT the motions to order compliance with the deposition subpoenas of Plaintiffs.
The Court will discuss the scheduling for the depositions at the hearing on this motion so that the compelled depositions will be scheduled per court order.
Sanctions
Pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1), [i]f a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(Code Civ. Proc., § 2025.450(g)(1).)
Here, counsel for Moving Defendants, Betsey J. Jeffery, Esq., notes in her declaration (Jeffery Decl.) that Moving Defendants have accrued sanctions in the amount of $3,447.90 in connection with this motion. The total amount is based on her declaration where she asserts she spent at least 0.4 hours of attorney hours on meet and confer efforts, 3 hours in drafting the subject motion, 0.7 hours appearing for the no-show depositions and doing certificates of non-appearance, with an additional 3 hours of anticipated attorney work in reviewing and relying to the opposition, appearing at the zoom hearing, a $60 filing fee, $1,506.40 in court reporter fees and with an hourly rate of $265.
This Court notes that no opposition was filed and no reply brief or notice of non-opposition was filed by Moving Defendants counsel, and thus, that amount will not be accounted for. This Court also notes that 3 hours to prepare a general discovery motion is an excessive amount of time for the current case. As such, the Court GRANTS Moving Defendants request for sanctions, but in the lowered amount of $2,255.40 because there was no opposition to review and no reply to prepare.
The monetary sanctions are payable by Plaintiffs and/or by their counsel to the offices of defense counsel on or before July 30, 2024.
B.
Motion to Deem Requests for Admission as Admitted
Legal Standard
A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290;
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 411
Further,
where there has been no timely response to a Code of Civil Procedure § 2031.010 demand, the demanding party must seek an order compelling a response. (CCP § 2031.300.) Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required.
Discussion
Here, the Court notes that Plaintiffs opposition brief indicates that they have subsequently served verified responses to the Moving Defendants Requests for Admission, and this Court further notes that it finds those responses to be in substantial compliance. If Moving Defendants take issue with Form Interrogatory No. 17.1 as it relates to the Requests for Admission, they may file a Motion to Compel Further Responses to the form interrogatory 17.1.
Because the untimely, but substantially Code-compliant admissions and denial were served prior to the hearing of this motion, the substantive motion to deem the RFAs admitted is mooted. (
Code Civ. Proc., § 2033.280(a).) However, this does not moot the Moving Defendants request for sanctions. Moving Defendants have requested monetary sanctions be imposed on Plaintiffs and/or their respective counsels in the amount of $1,120. This amount is supported by Betsey J. Jefferys declaration (Jeffery Decl.) as well. She asserts that she has spent 2.5 attorney hours drafting the motion, an additional 1.5 hours of anticipated work in reviewing and replying to the opposition ,and appearing at the zoom hearing, a $60 filing fee, and at a rate of $265 per hour.
Sanctions are mandatory in connection with motions to deem RFAs admitted if, as here, the Court finds that the responding party has submitted a response to the RFAs that is in substantial compliance with Section 2033.220.
It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.
(Code Civ. Proc., § 2033.280(c).)
The Court thus awards monetary sanctions in the lowered amount of $855 in monetary sanctions against Plaintiffs and/or Plaintiffs counsel, payable to defense counsel on or before July 30, 2024.
III. CONCLUSION
For the foregoing reasons,
Moving Defendants Motion for an Order Compelling the Depositions of Plaintiffs, Cecilia Tapia De Ullo and Edwin J. Ulloa is GRANTED and sanctions are awarded in the amount of
$2,255.40.
Further, Moving Defendants Motion to Deem Requests for Admission as Admitted is MOOTED. However, mandatory sanctions are awarded in the amount of $855.
Moving Defendants are ordered to give notice.
Ruling
BRENDA OWEN, AN INDIVIDUAL, ET AL. VS 365 CALIFORNIA BLVD, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
24STCV01173
Case Number:
24STCV01173
Hearing Date:
July 9, 2024
Dept:
72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE RULING
BRENDA OWEN,
Plaintiff,
v.
365 CALIFORNIA BLVD, LLC, et al.,
Defendants.
Case No:
24STCV01173
Hearing Date:
July 9, 2024
Calendar Number:
13
Plaintiff Brenda Owen (Plaintiff) moves for an order setting this case for trial preference.
The Court GRANTS Plaintiffs motion.
Background
This is a landlord-tenant case.
Plaintiff, Jeff Owen (Owen), and Lawrence OBrien (collectively, Plaintiffs) filed this action non January 17, 2024, raising claims for (1) harassment in violation of Pasadena Municipal Code, section 1806, subd. (g); (2) retaliation in violation of Pasadena Municipal Code, section 1806, subd. (h); (3) negligence; (4) negligent hiring and supervision; (5) breach of implied warranty of habitability; (6) tortious breach of implied warranty of habitability; (7) breach of implied covenant of quiet enjoyment; (8) elder abuse; (9) retaliation under Civil Code, section 1942.5; (10) willful interruption of services under Civil Code, section 789.3; (11) violation of Civil Code, section 1940.2; (12) intentional infliction of emotional distress (IIED); and (13) unfair business practices.
Owen and OBrien have resolved their claims and will be dismissing their claims, leaving Plaintiff Brenda Owen as the only remaining Plaintiff.
Plaintiff moved for trial preference on May 31, 2024. No party filed an opposition.
Legal Standard
Actions can be set for trial preference under several circumstances.
First, [a] party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:
(1) The party has a substantial interest in the action as a whole.
(2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.
(Code Civ. Proc., § 36, subd. (a).)
Second, [a] civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision. (Code Civ. Proc., § 36, subd. (b).)
Third, [i]n its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., § 36, subd. (d).)
Fourth, [n]otwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (Code Civ. Proc., § 36, subd. (e).)
When a court grants a request for a preference, the court shall set the matter for trial not more than 120 days from the date and there shall be no continuance beyond 120 days, barring specified circumstances.
(Code Civ. Proc. § 36, subd. (f).)
Discussion
Plaintiff seeks a setting of preference under the first statutory ground.
Plaintiff is over 70 years of age. (Owen Decl. ¶ 2.) As the remaining Plaintiff, she has a substantial interest in the case as a whole. Plaintiff alleges that she has been injured by Defendants alleged failure to maintain Plaintiffs unit at a property that is owned and managed by Defendants and by Defendants alleged ongoing harassment of Plaintiff.
Plaintiffs health has declined significantly over the past year and a half. Plaintiff has experienced a sustained increase in her blood pressure as well as blood pressure spikes. (Owen Decl. ¶ 13; Reid Decl. ¶¶ 13, 16.) Plaintiffs consistently elevated blood pressure has led to Plaintiffs hospitalization in February 2023. (Owen Decl. ¶¶ 7, 13.) These health changes have been debilitating due to Plaintiffs age and have led to an overall decline in health. (Owen Decl. ¶¶ 14-15.) The Court therefore finds that Plaintiffs health is such that a setting of trial preference is necessary in order to protect her interest in this litigation.
Every Defendant has appeared and answered.
Having found that the statutory requirements are met, the Court grants Plaintiffs request for a setting of trial preference.
Ruling
Bailey vs. Shasta Union High School District, et al.
Jul 11, 2024 |
23CV-0203011
BAILEY VS. SHASTA UNION HIGH SCHOOL DISTRICT, ET AL.
Case Number: 23CV-0203011
This matter is on calendar for review. The matter was stayed following a stipulation of the parties due to a related
Federal Action. Nothing has been filed informing the Court of the status of the Federal Action. An appearance
is necessary on today’s calendar.
Ruling
DONNA DEE ARAMBULA VS LAURA MARY CABRERA, ET AL.
Jul 11, 2024 |
23NWCV00596
Case Number:
23NWCV00596
Hearing Date:
July 11, 2024
Dept:
C
ARAMBULA v. CABRERA
CASE NO.:
23NWCV00596
HEARING:
07/11/24
#8
Defendants Motion to Strike Portions of Plaintiffs Complaint is
GRANTED with 30 days leave to amend
.
Moving Party to give notice.
This negligence action was filed by Plaintiff DONNA DEE ARAMBULA (Plaintiff on February 25, 2023.
Plaintiff alleges that on February 28, 2021, Defendant VINCENT MICHAEL MATAMOROZ (
Matamoroz
) was driving carelessly and was under the influence of alcohol. [Matamoroz] blatantly and dangerously disregarded the surrounding traffic conditions, failed to yield to Plaintiffs vehicle and being unable to stop in time violently broad-sided Plaintiffs vehicle to hit the left center divider, spun around and hit the right center divider that resulted in serious injuries and damages to Plaintiff. (Complaint ¶9.)
In addition to claim of negligence, Plaintiffs Complaint also includes a cause of action for wanton and reckless misconduct and includes a prayer for punitive damages.
Defendants move to strike Plaintiffs allegations pertaining to and seeking punitive damages from the Complaint. The prayer for punitive damages in this case is premised on the contention that Defendant Matamoroz was driving while intoxicated at the time of the Subject Accident.
A motion to strike lies either when (1) there is irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP §436.)
Punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that the defendants conduct was oppressive, fraudulent, or malicious. (
Smith v. Sup. Ct
. (1992) 10 Cal.App.4th 1033, 1041-42.)
Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. (
Taylor v. Sup. Ct
. (1979) 24 Cal.3d 890, 895-896.) The act of operating a motor vehicle while intoxicated may constitute an act of malice under CCP §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences. One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental facilities with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. (
Id
. at 897.) According to
Taylor
, driving while intoxicated, absent additional facts, does not always support a claim for punitive damages. There must be pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred. (
Dawes v. Sup. Ct
. (1980) 111 Cal.App.3d 82, 90.)
Here, the Complaint alleges, among other things, that while intoxicated Matamoroz began driving and racing his vehicle (¶17(B)) at an unsafe speed and drove erratically on the freeway (¶17(F)). Matamoroz began weaving in and out of his lane & and lost control of his vehicle (¶17(G)). Further, Matamoroz allowed his vehicle to veer to the right, across the right shoulder, causing the right side of his vehicle to impact the sound wall and veer across lanes to the left before striking Plaintiffs vehicle (¶17(H)). Matamoroz had a blood alcohol level of 0.17% (¶17(21)).
The Court determines that the allegations lack the specificity required to demonstrate conscious disregard of probable injury to others.
The Motion to Strike is GRANTED with 30 days leave to amend.
Ruling
IRMA LETICIA NILA, AN INDIVIDUAL VS COUNTY OF LOS ANGELES, A GOVERNMENTAL ENTITY, ET AL.
Jul 11, 2024 |
22CHCV01127
Case Number:
22CHCV01127
Hearing Date:
July 11, 2024
Dept:
F51
JULY 10, 2024
MOTIONS FOR PROTECTIVE ORDERS
(Requests for Admission, Set One)
Los Angeles Superior Court Case # 22CHCV01127
Motions filed:
1/22/24
MOVING PARTY:
Defendants Ramon Lopez and Yolanda Cruz (collectively, Moving Defendants)
RESPONDING PARTY:
Plaintiff Irma Leticia Nila (Plaintiff)
NOTICE:
ok
RELIEF REQUESTED:
A protective order finding that (1) Plaintiffs Requests for Admission (RFAs), Set One, propounded on each Moving Defendant, need not be responded to; or, alternatively, (2) that the number of RFAs be appropriately limited, with each Moving Defendant provided at least 30 days after the Courts ruling to provide responses to the same. Moving Defendants also seek monetary sanctions to be imposed against Plaintiff and her counsel in the total amount of $2,878.22.
TENTATIVE RULING:
The motions are granted in part. Moving Defendants to serve code-compliant responses to Plaintiffs RFAs, Set One, Nos. 3951, within 30 days. The Court declines imposing monetary sanctions against either party.
BACKGROUND
This is a personal injury action in which Plaintiff alleges that on 2/18/22, she was injured while exiting an apartment complex located at 11850 Gladstone Ave., Sylmar California 91342, when she tripped over a sidewalk elevated by a tree root and fell onto the concrete. (Compl.
¶
11.) Plaintiff alleges that nonmoving defendants County of Los Angeles (the County) and City of Los Angeles (the City) owned and maintained the public sidewalk, and that Moving Defendants owned and maintained the surrounding property and curtilage. (
Id.
at
¶¶
89.)
On 11/10/22, Plaintiff filed the instant action, alleging against Defendants Negligence and Statutory Liability. On 12/16/22, the County filed its answer. On 12/27/22, Moving Defendants filed their answer. On 1/17/23, the City filed its answer and cross-complaint against Moving Defendants, alleging the following causes of action: (1) Indemnification; (2) Apportionment of Fault; and (3) Declaratory Relief. On 3/22/23, Moving Defendants filed their answer to the Citys cross-complaint. On 4/13/23, Plaintiff dismissed the County from the instant action without prejudice.
On 12/21/23, Plaintiff served Moving Defendants with her first set of RFAs. (Ex. A to Decl. of Mineh Eisaeian.) On 1/22/24, Moving Defendants filed the instant motions for protective orders. On 6/26/24 and 6/27/24, Plaintiff filed her oppositions. On 7/1/24, Moving Defendants filed their replies.
ANALYSIS
A.
Meet and Confer
A motion for protective order must be accompanied by a meet and confer declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc. §§ 2030.090, subd. (a); 2016.040.)
Here, Moving Defendants counsel declares that beginning on 1/3/24, she met and conferred with Plaintiffs counsel regarding the issues raised in the instant motion, but the parties were unable to come to a resolution. (Eisaeian Decl.
¶¶
78.) While Plaintiff disputes the sufficiency of the meet and confer process, the Court finds that counsel has satisfied the meet and confer requirements of Code of Civil Procedure section 2030.090.
B.
Protective Order
When RFAs have been propounded, the responding party, may promptly move for a protective order. (Code Civ. Proc.
§ 2033.080, subd. (a).)
The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (
Id.
at
subd. (b).)
Here, Plaintiffs RFAs, Set One, propounded to each Moving Defendant, consists of 54 requests, seeking, inter alia, admissions concerning the condition of the subject sidewalk resulting from the subject tree and tree well, and Moving Defendants control over the same. (Ex. A to Eisaeian Decl.) Moving Defendants argue that no circumstances exist in this straightforward trip and fall incident case that justify Plaintiff and her counsels serving both Defendants with 54 identical RFAs, which are excessive in number, not appropriately tailored, and are not warranted in this non-complex case. (Def.s Mot. 5:1619.)
1.
Supporting Declaration
The discovery statute requires a propounding party to attach a supporting declaration to RFAs exceeding the statutory limit of 35 requests if the greater number is warranted by the complexity or the quantity of the existing and potential issues in the particular case. (Code Civ. Proc.
§
2033.040, subd. (a).) In the supporting declaration, the propounding party is required to state the reasons why the complexity or the quantity of issues in the instant lawsuit warrant this number of requests for admission. (Code Civ. Proc.
§
2033.050.) If the responding party seeks a protective order on the ground that the number of requests for admission is unwarranted, the propounding party shall have the burden of justifying the number of requests for admission. (Code Civ. Proc.
§
2033.040, subd. (b).)
Here, in support of Plaintiffs RFAs, Set One, Plaintiffs counsel declares that this number of request [sic] for admissions is warranted under Section 2034.030(b), 2033.040(a) because of the complexity and/or the quantity of the existing potential issues in this particular case. (Ex. B to Eisaeian Decl.,
¶
8.) In bringing the instant motion, Moving Defendants argue that there are no facts included in the declarations supporting the conclusory assertions that additional RFAs are warranted because of the complexity and/or the quantity of the existing potential issues in this particular case. To the contrary, as demonstrated by the allegations in Plaintiffs complaint, the issues presented are not complex and there are few issues in this common place trip and fall incident case with a single cause of action for general negligence/premises liability. (Def.s Mot. 7:16.)
In opposition, Plaintiff mistakenly asserts that the burden of proof belongs to Moving Defendants, as the responding parties, to establish the undue burden of responding to Plaintiffs RFAs. (Pl.s Opp. 6:1720, citing
Williams v. Superior Court
(2017) 3 Cal.5th 539, 549.) While this may be the usual rule for protective orders, here, the statute explicitly provides that the filing of the instant motion challenging Plaintiffs supporting declaration shifts the burden to Plaintiff as the propounding party to justify the number of RFAs. (Code Civ. Proc.
§
2033.040, subd. (b).) To meet that burden of proof, the propounding party must establish facts that specifically support the reasons given in the declaration. (Cal. Judges Benchbook Civ. Proc. Discovery § 18.14.)
Here, the Court agrees with Moving Defendants that the conclusory assertion in Plaintiffs declaration for additional discovery that number of requests is warranted because of the complexity and the quantity of the existing and potential issues in this particular case does not suffice because it does not articulate why the alleged complexity or quantity of issues warrant the excessive number of RFAs. (Def.s Reply 3:912.) Plaintiff merely argues that pursuant to the Courts ruling in
Rifkind
, the subject written requests are the more appropriate and expedient method for Plaintiff to obtain information relating to those legal contentions and defenses contained within Defendants Answer to the Complaint and Defendants Answer to the Cross-complaint. Such responses will permit Plaintiff and its counsel to take an informed and thorough deposition of Defendant in order to obtain that information which is necessary for this matter to be tried on its merits. (Pl.s Opp. 7:1419.)
In
Rifkind v. Superior Court
(1994) 22 Cal.App.4th 1255, the Court of Appeal held that deposition questions may ask a deponent about the basis for, or information about, factual conclusions or assertions, but not the basis for a legal conclusion. If a deponent says that a certain event happened at a particular time or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her knowledge about it, and for similar information of a factual nature. (
Rifkind
, 22 Cal.App.4th at 1259.) However, in contrast, deposition questions that call for a witness legal contentions are improper because legal contention questions require the party interrogated to make a law-to-fact application that is beyond the competence of most lay persons. & Even if such questions may be characterized as not calling for a legal opinion & or as presenting a mixed question of law and fact & their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise. If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. (
Id.
at 1262.)
Here, the Court notes that only RFA Nos. 3951 ask for each Moving Defendants legal contentions, which
Rifkind
limits to written discovery requests as opposed to oral deposition questions. As to the remaining 41 requests, Plaintiff has not made a sufficient factual showing that the number of RFAs is warranted based on the complexity and/or quantity of the existing and potential issues in the case. (Code Civ. Proc.
§
2033.040, subd. (a).) Based on the foregoing, the Court limits the number of Plaintiffs RFAs, Set One, to RFA Nos. 3951. The Court notes the parties arguments concerning the substance of the subject RFAs but declines to reach them in light of the foregoing, and because these issues were not raised during the meet and confer process.
C.
Sanctions
The court shall impose a monetary sanction & against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc.
§
§ 2025.420, subd. (h), 2033.080, subd. (d), 2031.060, subd. (h).) Additionally, the court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Code Civ. Proc. § 2023.030, subd. (a).)
Here, Moving Defendants request monetary sanctions in the amount of $1,439.11 per motion to be imposed on Plaintiff and her counsel, totaling $2,878.22. This amount includes: (1) 8.6 hours of Moving Defendants attorneys time spent preparing each motion and appearing at the hearing, at counsels hourly rate of $160.17 per hour; and (2) $61.65 in filing fees per motion. (Eisaeian Decl.
¶¶ 1011.)
In opposition, Plaintiff requests monetary sanctions in the total amount of $1,500.00 to be imposed on each Moving Defendant and their counsel, totaling $3,000.00, which encompasses (1) 5 hours of Plaintiffs counsels time preparing each opposition; and (2) 1 hour attending each hearing, at counsels hourly rate of $250.00 per hour. (Decl. of Andrew J. Lopez, ¶ 10.)
Based on the foregoing, the Court finds that monetary sanctions are not warranted in this instance because neither party was completely successful in making or opposing the motion.
//
//
//
//
CONCLUSION
The motions are granted in part. Moving Defendants to serve code-compliant responses to Plaintiffs RFAs, Set One, Nos. 3951, within 30 days. The Court declines imposing monetary sanctions against either party.
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
Preview
FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------- X COUNTY OF SUFFOLK, Index No. 604661/2017 Plaintiff, -against- IRONSHORE INDEMNITY, INC., LEXINGTON INSURANCE COMPANY, STARR INDEMNITY AND LIABILITY COMPANY, and EDF RENEWAL DEVELOPMENT, INC., Defendants. -------------------------------------------------------------------- X LEXINGTON INSURANCE COMPANY'S MEMORANDUM OF LAW IN OPPOSITION TO THE COUNTY OF SUFFOLK'S MOTION FOR SUMMARY JUDGMENT CARLTON FIELDS JORDEN BURT, P.A. Robert W. DiUbaldo, Esq. Nora A. Valenza-Frost, Esq. 36' 405 Lexington Ave., 36 Floor New York, NY 10174 (212) 785-2577 Attorneys for Defendant Lexington Insurance Company 1 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 TABLEOFCONTENTS Page PRELIMINARY STATEMENT 1 .................................................................................................... FACTUAL ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 1 BACKGROUND......................................................................................................... ARGUMENT.................................................................................................................................. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 3 I. The County Has Not Met its Burden of Proving Coverage Under the Applicable Insuring Agreements of the Lexington Policy ..................................... 3 II. The Fortuity Doctrine Bars the Relief Sought by the County's Motion................. 6 III. The Lexington Policy's Breach of Contract Exclusion Bars Coverage for the Underlying Action and the Relief Sought by the County....................................... 7 IV. The County's Arguments Pertaining to Lexington's Disclaimer are Belied by the Record and Unavailing Under New York Law............................................ 9 A. Lexington Disclaimed Coverage for the Underlying Action and the County Cannot Establish Otherwise........................................................... ........................................................... 9 B. New York Law Does Not Support the County's Legal Arguments and Demonstrates That Summary Judgment in Lexington's Favor is Warranted.................................................................................................. 13 CONCLUSION............................................................................................................................. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 17 . 1 2 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 TABLE OF AUTHORITIES Cases Page 333 Fifth Ave. Assocs., LLC v. Utica First Ins. Co., 107 A.D.3d 568 (1st Dep't 2013)............................................................................................. ............................................................................................. 16 40 Gardenville, LLC v. Travelers Prop. . Cas. of Am., 387 F. Supp. 2d 205 (W.D.N.Y. 2005)...................................................................................... ...................................................................................... 7 525 Fulton St. Holding Corp. . v.Mission Nat'l Ins. Co., 256 A.D.2d 243 (1st Dep't 1998)............................................................................................... ............................................................................................... 7 80 Broad St. Co. v. United States Fire Ins. Co., 88 Misc. 2d 706 (Sup. Ct. N.Y. County Dec. 17, 1975)............................................................. 7 Albert J. Schiff Assoc., Inc. v. Flack, 417 N.E.2d ~ ~ 84 (1980) ......................................................................................................... 16, 17 Apell v. State Farm Ins. Co., 292 A.D.2d 407 (2d Dep't 2002)................................................................................................. 9 City of N.Y. v. Granite State Ins. Co., 136 A.D.3d 523 (1st Dep't 2016), leave to appeal denied, 29 N.Y.3d 915 (2017)................... 16 Consol. Edison Co. of New York, Inc. v. Allstate Ins. Co., 98 N.Y.2d ~ ~ 208 6-7 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ (2002)..........................................................................................................3, Cummins v. Schouten, 160 A.D.2d 1165 (3d Dep't 1990).............................................................................................. .............................................................................................. 5 De Santis Enters. Inc. v. Am. and Foreign Ins. Co., 241 A.D.2d 859 (3d Dep't 1997)................................................................................................ ................................................................................................ 6 Dunn v. Brown, 261 A.D.2d 432 (2d Dep't 1999)................................................................................................ ................................................................................................ 5 Empire Group Allcity Ins. Co. v. Cicciaro, 240 A.D.2d 362 (2d Dep't 1997).............................................................................................. .............................................................................................. 16 Fairmont Funding, Ltd. v. Utica Mut. Ins. Co., 264 A.D.2d 581 (1st Dep't 14 1999)............................................................................................. ............................................................................................. Hettinger v. Kleinman, 733 F. Supp. 2d 421 (S.D.N.Y. 2010) ........................................................................................ 5 Highland Cap. . Mgmt., L.P. v. Global Aerospace Underwriting Managers Ltd., 488 F. App'x 473 (2d Cir. 2012)................................................................................................ ................................................................................................ 7 Inc. Village of Pleasantville v. Calvert Ins. Co., 204 A.D.2d 689 (2d Dep't 14 1994).............................................................................................. .............................................................................................. Joseph v. New York Racing Assn., 28 A.D.3d 105 (2d Dep't 2006)................................................................................................. 10 . 1 3 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 Liberty Mut. Ins. Co. v. McDonald, 6 A.D.3d ~ ~ 614 (2d Dep't 16 2004).................................................................................................. .................................................................................................. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Markevics v. Liberty Mut. Ins. Co., 97 N.Y.2d ~ ~ 646 (2001)............................................................................................................... ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 15 Matter of U.S. Specialty Ins. Co. (Denardo), 151 A.D.3d 1520 (3d Dep't 2017)............................................................................................ 16 ............................................................................................ Mid City Construction Co. v. Sirius Am. Ins. Co.,, 70 A.D.3d ~ ~ 789 (2d Dep't 13-14 2010)........................................................................................... ........................................................................................... ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Mount Vernon Fire Ins. Co. v. Creative Housing Ltd., 668 N.E.2d ~ ~ 404 (1996) ............................................................................................................... 9 Natural Organics, Inc. v. OneBeacon Am. Ins. Co., 102 A.D.3d 756 (2d Dep't 2013), leave to appeal denied, 22 N.Y.3d 989 (2013)..................... 8 New York State Electric & Gas Corp. . v.Lexington Ins. Co., 204 A.D.2d 226 (1st Dep't 1994)............................................................................................... 7 ............................................................................................... Penn Millers Ins. Co. v. C.W. Cold Stor., Inc., L va/ 103 4 A.D.3d L L a/cr (4th ao~ ~a/%k1132 y ~LLLDep't ~vy i~v L a/J ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 14 L ~ 2013)........................................................................................... Prunty v. Keltie's Bum Steer, 163 A.D.2d ~ ~ 595 (2d ly1990)................................................................................................. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 9 ' av. Friedman, 272 A.D.2d ~ ~ 461 (2d Dep't 2000)................................................................................................. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 9 Sportsfield Specialties, Inc. v. Twin City Fire Ins. Co., 45 Misc. 3d 1201(A) (Sup. Ct. Nov. 2, 2012)............................................................................ 3 ............................................................................ Stancil v. Supermarkets General, 16 A.D.3d ~ ~ 402 (2d Dep't 2005)................................................................................................... ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 9 State Farm Mut. Auto. Ins. Co. v. Kankam, (1st 3 A.D.3d 418 (1 Dep't 2004).................................................................................................. 15 .................................................................................................. Swanson v. Allstate Ins. Co., 150 A.D.3d 1299 (2d Dep't 2017)...................................................................................... 17 ...................................................................................... 14, Westchester Med. Center v. Liberty Mut. Ins. Co., 40 A.D.3d ~ ~ 981 (2d Dep't 2007)................................................................................................ 15 ................................................................................................ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Worchester Ins. Co. v. Bettenhauser, 95 N.Y.2d ~ ~ 185 (2000)............................................................................................................... ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 15 Yoda, LLC v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 88 A.D.3d 506 (1st Dep't 2011)............................................................................................... 16 ............................................................................................... Zappone v. Home Ins. Co., 55 N.Y.2d ~ ~ 131 (1982)......................................................................................................... 16 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 15, Statutes New York Insurance Law § 14 3420................................................................................................. ................................................................................................. .. 11 4 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 ("Lexington" Defendant Lexington Insurance Company ("Lexington") respectfully submits this "County" memorandum of law in opposition to the County of Suffolk's (the "County") motion for summary judgment. PRELIMINARY STATEMENT As outlined in Lexington's brief in support of its motion for summary judgment (Doc. No. 46), the allegations in the Underlying Action, which stem from the County's knowing and deliberate breach of a contract with EDF, fall outside the scope of coverage afforded by the Insuring Agreements of the Lexington Policy, such that Lexington has no duty to pay for the it.1 County's defense costs or damages awarded against it. The Underlying Action also does not involve a fortuitous loss, as required to obtain coverage under settled New York insurance law and policy, and is likewise barred from coverage by the Breach of Contract exclusion incorporated into the Lexington Policy. Each of these reasons is fatal to the County's motion, not refuted therein, and warrant summary judgment in Lexington's favor. Moreover, Lexington issued a valid disclaimer of coverage for the Underlying Action, as reflected by the record before the Court and in the admissions made by the County in its motion. But even assuming arguendo that Lexington had not, the County's motion would stillbe futile, and Lexington would stillbe entitled to summary judgment, based on long established New York law which holds that coverage cannot be created through waiver or estoppel under the circumstances of this case. For the foregoing reasons, the County's motion should be denied. FACTUALBACKGROUND The majority of the facts relevant to this dispute are contained in Lexington's Brief, incorporated by reference herein so as not to belabor the Court by repeating them. See Doc. No. 1 All defined terms set forth in Lexington's Memorandum of Law in Support of itsMotion for Summary Judgment ("Lexington's Brief') are incorporated herein by reference. See Doc No. 46. 5 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 46, at pp. 1-14. Additional facts pertinent to Lexington's opposition to the County's summary judgment motion are as follows. On June 20, 2013, Lexington received notice of the complaint filed by EDF in the Underlying Action. See Doc. No. 52, at ¶ 39; Doc. No. 59. By letter dated November 14, 2014 Letter" (the "Disclaimer Letter"), Lexington denied coverage for the Underlying Action on the grounds that the allegations in EDF's complaint against the County did not implicate the relevant Insuring Agreements incorporated into the Lexington Policy and, even if any of the Insuring Agreements were implicated, the Breach of Contract exclusion would operate to bar coverage for the Underlying Action in its entirety. See Doc. No. 60. The Disclaimer Letter was sent by certified mail to the County, Arthur J. Gallagher Risk Management (itsinsurance broker), and Blank Rome (counsel for the claimant EDF), on January 7, 2015. See the Affirmation of Robert W. DiUbaldo ("DiUbaldo Aff."), dated January 9, 2018, at Ex. 2 & 3. The January 7, 2015 email from Lori Bradshaw, the individual who physically mailed the Disclaimer Letter on behalf of Lexington, stated: This is to confirm that the mailing request, Coverage letter Final, Lex Policy and Ironshore Policy, received on 12/2/14 has been dispatched via certified mail on 1/7/2015 tracking number 7014 2120 0001 7545 3037 to County of Suffolk Law Department, tracking number 7014 2120 0001 7545 3051 to Arthur J. Gallagher Risk Management and tracking number 7014 2120 0001 7545 3044 to Blank and Rome. See Affidavit of Lori Bradshaw ("Bradshaw Aff."), dated January 9, 2018, at Ex. 1. Attached to the January 7, 2015 email was the Disclaimer Letter, the Lexington Policy and the Ironshore Policy. Id. The tracking number 7014 2120 0001 7545 3037, identified in the email as the tracking number for the Certified Mail sent to the County, matches the tracking number on the signed Certified Mail Return Receipt. Compare id. with Doc. No. 60. The County received the Disclaimer Letter on or before January 22, 2015, as the Certified Mail Return Receipt which 6 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 accompanied the Disclaimer Letter was signed by the County and returned to Lexington on or about January 22, 2015. See Doc. No. 60. The signed Certified Mail Return Receipt was executed by Liston England, who signed in his capacity as agent of the County. Id. The Disclaimer Letter was again sent to the County by email on December 20, 2016. See Doc. No. 63. Therein, Daniel Broker, Lexington's claims handler, informed Assistant County Attorney Susan Flynn: Please see a copy of the coverage letter that we issued to the County last year in regard to the above captioned case. If you would like to discuss this matter, please feel free to contact me at the number below. Id. (emphasis added). Lexington received no response from the County with regard to the Disclaimer Letter. The instant action was filed on March 13, 2017. See Doc. No. 1. The Complaint is silentwith respect to Lexington's Disclaimer Letter. Id. ARGUMENT L The County Has Not Met its Burden of Proving Coverage Under the Applicable Insuring Agreements of the Lexington Policy It is well-settled that the County bears the burden of establishing coverage for the Underlying Action under the Insuring Agreements of the Lexington Policy. See, e.g., Consol. Edison Co. of New York, Inc. v. Allstate Ins. Co., 98 N.Y.2d 208, 218 (2002) (holding it isthe insured's burden to establish coverage under a policy's insuring agreement); Sportsfield Twin at * Specialties, Inc. v. City Fire Ins. Co., 45 Misc. 3d 1201(A), 10 (Sup. Ct. Nov. 2, 2012) (" ("It is for the insured to establish coverage, not the insurer. The Court finds that [the insured] is unable to prove coverage or that the allegations in the underlying complaint trigger [the insurer's] duty to defend.") (citing Consol. Edison). The County's motion does not challenge this fundamental precept of insurance coverage or even attempt to establish that the claims alleged by EDF in the Underlying Action, and damages awarded against the County, fallwithin 7 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 the scope of any of the Insuring Agreements. Instead, the County's 19 page brief contains two sentences on the blanket premise that the allegations in the Underlying Action somehow implicate the Errors and Omissions Liability coverage afforded by the Lexington Policy (Insuring Agreement B), without citing to any facts or law that support this assertion. This does not come close to satisfying the County's burden to prove coverage under New York law, and its alone.2 motion should be denied on this basis alone. Moreover, as outlined in Lexington's Brief (Doc. No. 46, at pp. 17-20), the allegations in the Underlying Action, and damages awarded against the County, are not covered by the express terms of Insuring Agreement B. To wit, the Errors and Omissions Liability Insuring Agreement Act" is only implicated by a "Wrongful committed by the County, defined as "any actual or alleged negligent act, error or misstatement, omission, or breach of duty, including misfeasance, malfeasance, and nonfeasance by an Insured". Doc No. 54, at Section V.RR (emphasis added). The Underlying Action did not allege or involve any negligent conduct that constitutes a Act" "Wrongful within the meaning of this provision, nor does the County's motion demonstrate otherwise. In fact, the District Court's detailed findings of fact and conclusions of law in the Underlying Action uniformly reflect that the conduct for which the County was held liable to EDF was anything but negligent. See Lexington's Brief, Doc. No. 46, at pp. 3-5. The District Court found that the County knowingly, intentionally, and deliberately breached its contractual obligations under the Ronkonkoma Lease with EDF, so that it would not be able to install solar 2 The County's motion does not attempt to argue that the allegations of the Underlying Action implicate the Bodily Injury, Property Damage, Personal Injury or Advertising Injury Liability Insuring Agreement, the Employment Practices Liability Insuring Agreement and the Employee Benefit Liability Insuring Agreement incorporated into the Lexington Policy. For this reason, Lexington will not repeat the arguments set forth in its moving brief concerning these provisions and why there is no coverage thereunder for the allegations in the Underlying Action (at pp. 15-17, 20-21). Lexington respectfully refers the Court to the relevant pages in its initialbrief, if necessary, addressing these specific Insuring Agreements. 8 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 carport facilities at the site. Id. (detailing citations to the record). In the words of the District open" Court, the County did so with "eyes wide because it wanted to use the Ronkonkoma Site for a different purpose. See Doc. No. 49, Findings of Fact No. 124, Conclusions of Law Nos. duty" 25-26. Simply put, there was no "negligent act, error, omission or breach of associated with the County's conduct in the Underlying Action for which it was deemed liable. It unilaterally cancelled the Ronkonkoma Lease knowing full well that doing so would breach the lease agreement with EDF and violate the County's obligations thereunder. Id. The damages ultimately awarded to EDF were the direct consequence of that breach, as recognized by the District Court and Second Circuit. Therefore, Insuring Agreement B is not implicated by the Underlying Action, and the County cannot meet its burden of proving otherwise, even if it attempted to do so. New York law supports Lexington's position. Numerous decisions have held that there Act" can be no "Wrongful within the meaning of Insuring Agreement B, and thus no coverage under an Errors and Omissions Liability insuring clause, where an insured acts in an intended manner and intends the result of those actions. See, e.g., Dunn v. Brown, 261 A.D.2d 432, 433 (2d Dep't 1999) ("[A]llegations of intentional conduct cannot form the basis of a claim founded negligence" in negligence"); Hettinger v. Kleinman, 733 F. Supp. 2d 421, 477-78 (S.D.N.Y. 2010) ("A careless" party's conduct cannot simultaneously be intentional and careless"); Cummins v. Schouten, 160 (" A.D.2d 1165 (3d Dep't 1990) ("The record clearly demonstrates that defendant's actions were negligence" intentional and therefore cannot form the basis of an action sounding in negligence"). That was the precise scenario at issue in the Underlying Action; the County knew it was breaching the Ronkonkoma Lease, that EDF would not be able to perform under the lease, and that EDF would incur damages as a result. See Doc. No. 49, Findings of Fact No. 124, Conclusions of Law Nos. 9 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 25-26. The District Court found that the County's deliberate actions with respect to the lease agreement and itscontractual obligations to EDF had the desired effect of unilaterally cancelling the Ronkonkoma carport project, which was the County's intended goal. Id., Findings of Fact Nos. 86, 88, 90-91, 124. EDF was awarded damages in the Underlying Action because of such breach - and not because of negligent conduct the - amounts which the any by County County now seeks to pass off to Lexington and the other insurer-defendants. Id.,Findings of Law Nos. 25-27. See also Doc. No. 51 (the Second Circuit's affirmance, holding that "the District Court obligations" properly found that the County breached its contractual and that "EDF was entitled to damages resulting from the breach."). Therefore, the conduct for which the County was held Act" liable in the Underlying Action does not constitute a "Wrongful within the meaning of Insuring Agreement B under New York law, and there is no defense or indemnity coverage owed to the County under this provision. See, e.g.,De Santis Enters. Inc. v. Am. and Foreign Ins. Co., 241 A.D.2d 859, 860-61 (3d Dep't 1997) (finding that there was no defense and indemnity coverage owed to an insured under an employee benefits errors and omissions insuring agreement because the insured's conduct at issue in the lawsuit - the and intentional knowing - omission" termination of an employee benefit plan was not a "negligent act, error or of the insured, as required to implicate coverage under that provision). For this reason as well, the County's motion should be denied. H. The Fortuity Doctrine Bars the Relief Sought by the County's Motion The Underlying Action also did not involve a fortuitous loss, as required for coverage to potentially exist under the Lexington Policy. New York insurance law and policy requires the County to establish that the damages awarded against itin the Underlying Action were the result "accident" "occurrence" of an or an for which it was found liable to EDF. See, e.g., Consol. 10 of 21 FILED: SUFFOLK COUNTY CLERK 01/09/2018 03:00 PM INDEX NO. 604661/2017 NYSCEF DOC. NO. 84 RECEIVED NYSCEF: 01/09/2018 (" Edison, 98 N.Y.2d at 220 ("The insured has the initial burden of proving that the damage was the 'accident' 'occurrence' result of an or to establish coverage"); Highland Cap. . Mgmt., L.P. v.