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Filing # 104149271 E-Filed 03/02/2020 10:30:38 AM
IN THE CIRCUIT COURT OF THE
19 JUDICIAL CIRCUIT IN AND
FOR MARTIN COUNTY, FLORIDA
FREDERIC CHARLES GREER, III, and
MELISSA ANNE GREER, as Husband and CASE NO: 2019-CA-000015
Wife, and FREDERIC CHARLES GREER, III
and MELISSA ANNE GREER, individually,
Plaintiffs,
vs.
MARTIN MEMORIAL MEDICAL CENTER,
INC. d/b/a MARTIN MEDICAL CENTER, a
Florida Corporation, KUNAL CHAUDHRY, M.D.;
and CARDIOLOGY ASSOCIATES OF STUART,
P.A., a Florida profit corporation,
Defendants.
/
MARTIN MEMORIAL MEDICAL CENTER, INC.’S NOTICE OF FILING
TRANSCRIPT OF DEPOSITION OF ANDREW P. SELWYN, M.D.
MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a MARTIN MEDICAL
CENTER, a Florida Corporation, hereby gives notice of filing the deposition transcript of Andrew
P. Selwyn, which took place on November 25, 2019, and which has been redacted pursuant to
Florida Rules of Judicial Administration 2.420 and 2.425.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 2"? day of March, 2020, a copy of the foregoing was
served via the Florida E-Filing Portal to the parties on the attached service list.
STEARNS WEAVER MILLER
WEISSLER ALHADEFF & SITTERSON, P.A.
Attorneys for Martin Memorial Medical Center, Inc.
200 East Las Olas Blvd., Suite 2100
Fort Lauderdale, FL 33301
Phone: (954) 462-9500
Fax: (954) 462-9567
By:
THOMASG7 AGBIN, ESQUIRE
FBN: 008060
taubin@stearnsweaver.com
MATTHEW S. PODOLNICK, ESQUIRE
FBN: 112126
mpodolnick@stearnsweaver.com
Electronically Filed Martin 03/02/2020 10:30 AM
SERVICE LIST
Peter J. Somera Jr., Esq. Keith J. Puya, Esq.
Paul M. Silva, M.D., Esq. Hector R. Buigas, Esq.
Somera & Silva, LLP Law Offices of Keith J. Puya, P.A.
2255 Glades Road, Suite 232W 4880 Donald Ross Road, Suite 225
Boca Raton, FL 33431 Palm Beach Gardens, FL 33418
Phone: (561) 981-8881 Phone: (561) 408-3772
Fax: (561) 981-8887 Fax: (561) 408-3759
pleadings@somerasilva.com service@puyalaw.com
litigation@somerasilva.com Attorneys for Defendants Kunal Chaudhry,
Attorneys for Plaintiffs M.D. and Cardiology Associates of Stuart,
PA,
Dinah Stein, Esq. Adam Richardson, Esq.
Hicks, Poerter, Ebenfeld & Stein Burlington & Rockenbach, P.A.
799 Brickell Plaza, 9" Floor 444 West Railroad Avenue
Miami, FL 33131 West Palm Beach, FL 33401
Phone: (305) 375-8171 Tel: 561-721-0400
Attorneys for Defendants Kunal Chaudhry, jr@FLAppellateLaw.com
M.D. and Cardiology Associates of Stuart, fa@FLAppellateLaw.com
PA. Appellate attorneys for Plaintiffs
#8205802 vi
In the Matter Of:
GREER vs MARTIN MEMORIAL MEDICAL CENTER
2019CA00001SCAAXMX,
ANDREW P. SELWYN, M.D.
November 25, 2019
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DEPOSITION SOLUTIONS
ANDREW P. SELWYN, M.D. November 25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER —
=
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT IN AND FOR MARTIN COUNTY, FL
Civil Action No. 2019CA000015CAAXMX
FRO RO FOR IRI IO II I I FO I dak Ok
FREDERIC CHARLES GREER, celeste ca Tacl
MELISSA ANNE GREER, as Husband
and Wife and FREDERIC CHARLES
GREER, TII and MELISSA ANNE
GREER, Individually
Plaintiffs
v
10
MARTIN MEMORIAL MEDICAL CENTER,
11 ENCE d/b/a MARTIN MEDICAL
CENTER, a Florida Corporation,
a2 KUNAL CHAUDHRY, M.D. and
CARDIOLOGY ASSOCIATES OF STUART,
13 P.A., a Florida Profit
Corporation,
14
Defendants
15 FORO FOR RO FO RO IR ROR RO IO II I I Ik oe
16
Ay, VIDEOCONFERENCE DEPOSITION OF:
18 ANDREW PETER SELWYN, M.D.
ao CATUOGNO COURT REPORTING SERVICES, INC.
20 50 Federal Street, 8th Floor
21 Boston, Massachusetts
22 November 25, 2019 10:06 a.m.
23
24 Ellen M. Muir
25 Court Reporter
Z ESQUIRE oFPosition soLuTiONns
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ANDREW P. SELWYN, M.D. November 25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER 2
-
APPEARANCES:
Representing Frederic Charles Greer, III and Melissa
Anne Greer (via videoconference)
SOMERA & SILVA, LLP
One Boca Place
2255 Glades Road, Suite 232W
Boca Raton, FL 33431
BY: PAUL M. Sass VAL Me ESQ.
561.981.8881 PAX Gre Oodle soon,
paul@somerasilva.com
Representing Martin Memorial Medical Center, eric
d/b/a Martin Medical Center (via videoconference)
10 MICHAUD, MITTELMARK & ASRANT, PLLC
621 NW 53rd Street, Suite 395
11 Boca Raton, GL 33387
eyes MICHAEL K. MITTELMARK, ESQ.
12 561.886.3390 FAX 561.331.5894
mmittelmark@michaudlaw.com
13
14
Representing Kunal Chaudhry, M.D. and Cardiology
15 Associates of Stuart, P.A. (via videoconference) :
LAW OFFICE OF KEITH J. PUYA, P.A.
16 4880 Donald Ross Road, Suite 225
Palm Beach Gardens, FL 33418
17 BY: HECTOR BUIGAS, ESO.
561.408.3772 FAX 561.408.3759
18 hbuigas@puyalaw.com
19
20
2Al
22
23)
24
25
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ANDREW P. SELWYN, M.D. November 25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER 3
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ae Ds
WITNESS: ANDREW PETER SELWYN, M.D.
EXAMINATION BY: PAGE:
Mr. Mittelmark
Mr. Buigas 62
Mr. Silva 105
FURTHER EXAMINATION BY PAGE:
Mr. Buigas 135
Miter Mittelmark 136
10
Mr. Silva 138
ali
12 EXHIBIT DESCRIPTION: PAGE:
13 Exhibit List created by Dr. Selwyn
14 Exhibit Flash Drive
15 Exhibit A list of documents reviewed
by Dr. Selwyn from
16 Attorney Silva
17 Exhibit Five pages of handwritten 13
notes by Dr. Selwyn
18
PLAINTIFFS! EXHIBITS: PAGE:
19
Exhibit 1 Curriculum Vitae of Ory
20 Dr. Selwyn
21 csoclaetel
iste 2 Five-page document of 108
Dr. Selwyn's opinions
22
22)
24 (Exhibit 3 retained by Attorney Mittelmark)
25 (Plaintiffs' Bechiodbs) lh) oae On teleost | cia ive)
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ANDREW P. SELWYN, M.D. November 25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER 4
ANDREW PETER SELWYN, M.D., Deponent, having
first been satisfactorily identified and duly sworn,
deposes and states as follows:
EXAMINATION BY MR. MITTELMARK:
_ Please state your name and address, sir?
A Andrew Peter Selwyn, S-E-L-W-Y-N, Brigham
and Women's Hospital, 75 Francis Street, Boston, MA
02115.
10 Q And you're» essentiality in medicine?
11 A Cardiovascular medicine.
12 Q Is that the same as interventional
13 cardiology?
14 A Interventional cardiology is a section of
AS a broader subject of cardiovascular medicine.
16 Q But interventional cardiovascular is
17 something that you're very familiar with, correct?
18 A Yes, it is.
19 Q And I see that you're licensed only in
20 Massachusetts, is that accurate?
apr A That is correct.
22 Q And that you're board-certified in what
ar) specialty?
24 A Internal medicine and cardiovascular
25 medicine.
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ANDREW P. SELWYN, M.D. November
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GREER vs MARTIN MEMORIAL MEDICAL CENTER 5
Q And both of those board certifications
are from the United Kingdom?
A Yes, they are.
Q And tell me what your current position
is?
A At Brigham and Women's Hospital I'ma --
Q That's a bad question. What are you
urrently doing? How's that?
A You want my titles or my functions?
10 Q I want both. But you broke up --
11 unfortunately, we missed the very beginning of that
Ale answer. So let me.ask it this way: What are you
13 currently doing at Brigham and Women's Hospital?
14 A I practice there as a cardiovascular
15 physician. From 1984 until the beginning of 2017, Ts
16 was a full-time interventional cardiologist doing
17 invasive procedures and caring for patients in the
18 variety of settings. From the beginning of leo
19 the present day, I'm a practicing cardiovascular
20 specialist with inpatient and office practice in that
21 hospital. I also do research, teaching and
22 administration.
23 _ What was the last time you authored any
24 publications?
25 A I don't know the date, probably eight or
a
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ANDREW P. SELWYN, M.D. November
25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER 6
ten years ago.
Q And when was the last time you performed
an interventional cardiology procedure such as the
one we're here to discuss today performed by
Di Chaudhry on Mr. Greer?
A At the time end of 2016.
7 Do you remember when you were first
contacted in this case?
A I don't remember the date. Tm goung sco
10 assume it was 2017 or 2018.
al Q Well, we know the cardiac catheterization
12 procedure was performed on September 1, 20s Would
13 that refresh your recollection at all as to when you
14 were first contacted in this case?
15 A No, I don't recall the date.
16 Q DO you. cecal whortimse time, contacted
17 you?
ae) A I don't remember. It could have been any
19 one of three people.
20 Q Okay. Could you identify those three
21 people, please?
22 A I don't have a computer to put up the
23 information, put up the files that I've brought with
24 me so I'm not going to guess.
25 _ All right. Do you remember what you were
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ANDREW P. SELWYN, M.D. Sota aes
GREER vs MARTIN MEMORIAL MEDICAL CENTER
asked to do when you were first contacted in this
case?
A I was asked to exam the records of a
Frederic Greer with regard to standard of care,
damages and causation.
Q And what did you review after you were
asked to examine the medical records, which records
did you review?
A I have a list which includes =
10 MR. SILVA: This is Paul Silva. I have
11 just handedMn. MilétePmark a list of the
12 records and items. Selwyn was provided with in
13 this matter.
14 Q If you could pull out that list,
15 Dr. Selwyn. I'm looking at a list that was provided
16 by counsel for Mr. Greer, and at the very top it's
ley entitled, "Documents Reviewed by Andrew Selywn, M.D."
18 Do you have that in front of you?
19 A No. I have a list that I have created
20 myself in writing. And I also have all of the files
21 that I've received and reviewed on a USB thumb drive.
22 Q Okay. So let's do this, Madam Court
23 Reporter. Let's mark the notes sorry, the list
24 that was created by Dr. Selwyn as Defendants' Exhibit
2) No. 1
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ANDREW P. SELWYN, M.D. Sear
GREER vs MARTIN MEMORIAL MEDICAL CENTER
(Exhibit 1, marked)
Q We're going to mark the flash drive as
Defendant's Exhibit No. 2
(Exhibit 2, marked)
Q ‘SO; Dr. Selwyn, what | I have in front of
me is a list provided by counsel for Mr. Greer, which
10 at the very top states» documents reviewed by Andrew
11 Selwyn, M.D. And, Madam Court Reporter, I'm going to
12 go ahead and Qerk gna@™Defendants' Exhibit No. 3, and
13 I'll make sure that I get a copy of that to you.
14
15 GED ate 7, marked)
16
17 Q Dr. Selwyn, could you now read the list
18 that you created of documents that you reviewed.
19 A Notice of Deposition, Cath Report Log,
20 Florida Hospital record, Medical Records starting 9/1
21 and angio pictures and frames, Gelgand exhibits, my
22 opinions, sheriff's office, Sylvestire Consult note,
23 medical records by Tee, Hal Pineless, Florida; Martin
24 Medical record and images. Followed by depositions
25 by Tilly, Wakonsen, Grace, Chaudhry, Crouch, Greer,
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GREER vs MARTIN MEMORIAL MEDICAL CENTER
=
Fred; Greer, Melissa, Gelgand, Selwyn and Toles.
Q Okay. So if you could -- I may have
missed some of the records, and ie Vou cola Hee me
know if you reviewed them -- the physical. Is that
something that you reviewed?
A Could you say that again.
Q Sure. Did you review the County
Sheriff's Office Preemployment Physical?
A I do have notes»from the Sheriff's
10 Oficer It doesn't dist if it's a physical. But I
11 do have notes from the sheriff's office.
a2 Q How about records from Lake Worth
leo) Diagnostic Testing?
14 A I don't have that on my list.
15 Q And how about Martin Health Physician
16 Group.
ale A I have Martin Medical, all records. I
18 haven't specified it as you've just read it.
oS) Q How about Publix Pharmacy?
20 A I don't have that on my list.
21 How about Walgreens Pharmacy?
22 I don't have that on my list.
23 How about Jerome Obed, M.D.?
24 I don't have that.
Zi) Do you have an excerpt of
—
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ANDREW P. SELWYN, M.D. November
25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER dl
Dia Silvestire's deposition?
A Yes.
Q When did you receive that?
I don't recall the date.
Do you recall reviewing that excerpt?
I do.
Q Was that within the last week?
A I read it in the last week as I read the
whole chart in this last Jug@h.
10 Q Okay. And»can you recall, as you sit
11 here, what portion of Dr. Silvestire's deposition you
a2 read?
13 A Well, I can't name the page or the lines,
ae andl f cant paraphrase: tt: Lol your It dealt with
15 estimates of ejection fraction.
16 Q Okay. So sorry to keep jumping around
17 like this, but when you were first asked to review
18 the records on standard of care, do you recall having
alo) any opinions against Martin Memorial Medical Center,
20 which is my client?
21 A I don't know if the nurse that was
22 responsible for pointing out the wife's presence in
23 the waiting room represents the hospital as you've
24 just named it.
25) Q Correct. But when you were first
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ANDREW P. SELWYN, M.D. November 25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER 11
contacted in this case and you spoke to somebody from
Mr. Silva's office about this case, would you agree
that you had no opinions about the hospital and
whether any of their employees deviated from the
standard of care?
MR. SILVA: Object to the form. Leading.
A donc) heave I hadn't seen the medical
record so I had no opinions at all.
Q Well, what medical records did you need
10 to look at to determine that somebody from the
alae hospital deviated from the standard of care?
12 A I need.to see all the records from
13 Tradition to Martin to the end of that admission to
14 Martin in order to offer an opinion.
15 Q Well, when did you get those records?
16 MR. SILVA: Gbilece the torn: Asked and
17 answered. Go ahead.
18 A I don't recall the date but when I
19 finished reviewing most of -- all of what's on this
20 list, I was able to offer opinions.
21 Q Would you agree that Jt wasnwi Uncdl: vou
22 read the deposition of Catelyn Tilly that you first
23 had opinions that someone from the hospital, whether
24 a nurse or one of it's employees deviated from the
25 standard of care?
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ANDREW P. SELWYN, M.D. November 25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER 2
MR. SILVA: Object to the form.
A No, I don't recall that at all.
Q How did you learn that Ms. Tilly did not
tell Dr. Chaudhry that Mrs. Greer was in the waiting
room.
A Well, first of all, by reading the chart
and then by speaking with Mr. Silva and his
colleagues.
Q What in the chart would lead you to
10 believe that Catelyn Tilly did not tell Dr. Chaudhry
alae that Mrs. Greer was in the waiting room?
12 A Well, the chart contained the first
13 evidence that this patient had received morphine and
14 Zofran that they had progressed to the Martin cath
15 lab and somehow signed consent and that led me to ask
16 how the consent was taken, where was the family at
17 the time and who were the nurses, the floor nurses,
18 or clerical staff responsible for noting that the
19 family was present.
20 Q Were there floor nurses involved in this
21 case?
22 A I don't know the total number of nurses
23 involved.
24 Q My question was, was there floor nurses
25 involved in this case?
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ANDREW P. SELWYN, M.D. November
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GREER vs MARTIN MEMORIAL MEDICAL CENTER 13
~
MR. SILVA: Object to the form.
A Nurses working in the cath lab and
around, yes.
Q Do you consider nurses in the cath lab to
be floor nurses?
A Weal the munses: On che tlooG aeethe site
where care was being delivered.
Q Okay. All right. So I know you read to
me a list of notations or records you reviewed. Did
10 you take any notes om any of the materials that you
11 reviewed?
12 A I did.
13 Q And where would that be contained?
14 A Here in front of me.
15 Q And can you identify the notes that you
16 have in front of you? How many pages are they?
17 A Five.
18 MR. MITTELMARK: Madam Court Reporter,
19 we're going to mark the five pages of
20 Dr. Selwyn's notes as Exhibit No. 4
21
22 (Exhibit 4, marked)
23
24 Q Dt Selywn, can you tell me what's on
25 those notes and if you need to read them verbatim,
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ANDREW P. SELWYN, M.D. November
25, 2019
GREER vs MARTIN MEMORIAL MEDICAL CENTER 14
then feel. free bo do so.
A I don't need to read them verbatim. They
are a list of the facts and the findings in the
various records that I studied that I thought were
important in order to appreciate the chronology of
events and from that be able to take standard of
care, causation and damages.
Q Tell me about -- let's talk about your
medical-legal background. When did you first start
G) doing medical-legal work?
ele A 1986».
12 Q And how much do you charge for review of
13 records?
14 A $500 an hour.
5) Q How much do you charge for deposition?
16 A A single fee of $2,500.
17 Q And if you came bo ;teseiny, ny tial sin
18 Stuart, which is in Martin County, Florida, how much
19 would that be?
20 A That would be a single fee of $5,000 plus
a1 expenses.
22 Q How many hours have you incurred, or do
23 you have any invoices of bills that you've sent to
24 Mr. Saelivcls| Orrices
25 A I have sent bills to Mr. Silva's office.
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ANDREW P. SELWYN, M.D. November
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GREER vs MARTIN MEMORIAL MEDICAL CENTER 15
I do not have them on me. Mr. Silva has all of them.
I don't know the exact number of hours. I would say
it's somewhere in the region of eight hours up to
now.
MR. SILVA: Yeah. Claas lst Mia Silva.
Timejuse cellang: Mien Miteelmaria that wes ll
provide him with all the invoices and bills
that we received from Dr. Selywn.
Q And can you tellme since the last
10 invoice you sent about how many hours you put in, was
11 eight total up to today?
12 A No, the eight is not total. And I've
13 spent at least another five hours looking through
14 various documents, various images, and creating these
15 notes and talking to Mr. Silva.
16 Q Do you have a list of cases that you
17 testified in?
18 A I don't have an up-to-date list, but I
19 have created lists when asked when I give testimony
20 in bederal. counter That was at least three or four
21 years ago, perhaps more tS Ob hed rely, Up co
22 date, Dit ites) @he best I have.
23 7 If I was to ask you to provide that to
24 counsel for Mr. Greer, would you be able to do so?
25 A I am able. Yes.
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No demurrer opposition filed.
Demurrer
In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a
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The elements of an action for fraud and deceit based on concealment are: (1) the defendant
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Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A defendant does not have to owe the plaintiff a
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Cal.3d 285, 294.) When a fiduciary duty does not exist, a claim for fraudulent concealment can arise
in three instances: “(1) the defendant makes representations but does not disclose facts which
materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are
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Where the defendant has exclusive knowledge, the duty to disclose may arise from a transactional
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showing how, when and by what means something did not happen. (Alfaro v. Community Housing
Improvement System Planning Assn. (2009) 171 Cal.App.4th 1356, 1384.) However, if the
concealment is based on providing false or incomplete statements, the pleading must at least set forth
the substance of the statements at issue. (Id.) Additionally, the specificity requirement of fraud is
“relaxed when it is apparent from the allegations that the defendant necessarily possesses knowledge
of the facts.” (Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 27.)
Stargardt contends that this cause of action fails because of lack of specificity. However, O’Neill has
sufficiently alleged Stargardt failed to disclose his dogs were not well-behaved and would attack and
used said information to induce O’Neill to lease her property to him. These allegations are sufficient.
Any other information would be more within Stargardt’s knowledge than O’Neill’s which would allow
for the relaxing of the specificity requirements for fraud. (Quelimane Co., supra, 19 Cal.4th at 27.)
OVERRULED.
2nd Cause of Action – Breach of Contract
“The elements of breach of contract are ‘(1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’” (Kumaraperu v.
Feldsted (2015) 237 Cal.App.4th 60, 70 [quoting Careau & Co. v. Sec. Pac. Business Credit, Inc.
(1990) 222 Cal.App.3d 1371, 1388].) “If the action is based on alleged breach of a written contract,
the terms must be set out verbatim in the body of the complaint or a copy of the written agreement
must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74
Cal.App.4th 299, 307.) O’Neill has sufficiently alleged the terms of the contract. OVERRULED.
3rd Cause of Action – Elder Abuse
Abuse of an elder or a dependent adult means any of the following: (a) physical abuse, neglect,
financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or
pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are
necessary to avoid physical harm or mental suffering. (c) Financial Abuse….” (Welf. & Inst. §
15610.07.) Section 15610.30 provides in pertinent part:
(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any
of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property
of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting,
appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult
by undue influence, as defined in Section 15610.70.
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or
retained property for a wrongful use if, among other things, the person or entity takes,
secretes, appropriates, obtains, or retains the property and the person or entity knew or should
have known that this conduct is likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or
retains real or personal property when an elder or dependent adult is deprived of any property
right, including by means of an agreement, donative transfer, or testamentary bequest,
regardless of whether the property is held directly or by a representative of an elder or
dependent adult.
Here, O’Neill has alleged a variety of actions by Stargardt, including that he has rekeyed the home,
installed a wall to prevent access, and refused O’Neill any access. (FAXC,¶ 34.) This is sufficient to
constitute a taking or appropriation of her property depriving her of any property right. OVERRULED.
Ruling
ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT MEDICAL...
Jul 18, 2024 |
Civil Unlimited (Civil Rights/Discrimination) |
22CV007747
22CV007747: ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT
MEDICAL CENTER, A CALIFORNIA CORPORATION, et al.
07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by
ELIZABETH ENRIGHT (Plaintiff) in Department 20
Tentative Ruling - 07/15/2024 Karin Schwartz
The Motion to Compel the Deposition of Daniel Baer is DROPPED because no motion is on file.
Plaintiff filed an ex parte application but did not file a motion. The Court's intention, when it
granted the ex parte on 7/8/24, was to advance the hearing date on an already filed and scheduled
motion. However, it appears that no motion with respect to Daniel Baer had been filed (i.e., only
the ex parte).
Separately, the Court, through a misunderstanding, advanced the hearing date on a separately
pending motion to compel (i.e., CCP 1987 notice) to 7/18/24. However, per the Court's order of
7/12/24, any matters relating to that motion will be heard at the pretrial on 8/2/24. Accordingly,
the Court is continuing the hearing on this motion, which the Court inadvertently advanced to
7/18/24, to the date before the the pretrial, which is an ordinary law and motion day for the
Court.
The Hearing on Motion to Compel Discovery (not "Further Discovery") filed by ELIZABETH
ENRIGHT (Plaintiff) scheduled for 07/18/2024 is continued to 08/01/2024 at 03:00 PM in
Department 20 at Rene C. Davidson Courthouse .
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV007747: ENRIGHT vs SUTTER BAY HOSPITALS DBA ALTA BATES SUMMIT
MEDICAL CENTER, A CALIFORNIA CORPORATION, et al.
07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by
ELIZABETH ENRIGHT (Plaintiff) in Department 20
BOTH ECOURT AND EMAIL notices are required.
Ruling
Daniel Perez vs. Eleno Arreola
Jul 10, 2024 |
C22-01568
C22-01568
CASE NAME: DANIEL PEREZ VS. ELENO ARREOLA
*HEARING ON MOTION FOR DISCOVERY FOR ORDER COMPELLING RESPONSES TO DISCOVERY
FILED BY: PEREZ, DANIEL
*TENTATIVE RULING:*
Plaintiff’s motion to compel responses to discovery filed on April 3, 2024, is granted. The request for
sanction is denied as to this motion.
On August 9, 2020, plaintiff Daniel Perez was walking past the defendant’s house with his two Huskies
on leash. A pit bull in the front yard of the residence broke free and attacked the plaintiff and he
sustained injuries. The plaintiff propounded Form and Special Interrogatories on the defendant on
December 27, 2023. No responses to either had been served within the thirty days specified under
Code of Civil Procedure section 2030.260, and, indeed, none had been served by the date the motion
was filed.
The plaintiff’s motion to compel discovery responses is granted. The request for monetary sanctions
is denied as to this motion.
Ruling
Patricia F. vs. Westcare California, Inc.
Jul 18, 2024 |
24CECG00632
Re: Patricia F. v. Westcare California, Inc.
Superior Court Case No. 24CECG00632
Hearing Date: July 18, 2024 (Dept. 503)
Motion: Defendants Westcare California, Inc. and Westcare
Foundation, Inc.’s Demurrer to the Complaint
Tentative Ruling:
To overrule. Demurring defendants shall file their responsive pleadings within ten
(10) days from the date of this order.
Explanation:
A demurrer challenges defects apparent from the face of the complaint and
matters subject to judicial notice. (Blank v. Kirwan (1985) 30 Cal.3d 311, 318.) A general
demurrer is sustained where the pleading is insufficient to state a cause of action or is
incomplete. (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th
521, 535.) In considering a demurrer, the court assumes the truth of the facts properly
plead. (Hoyem v. Manhattan Beach City Sch. DIst. (1978) 22 Cal.3d 508, 517; Serrano v.
Priest (1971) 5 Cal.3d 584, 591.)
Demurring defendants contend plaintiff’s first cause of action for negligence is
insufficiently plead because demurring defendants owed plaintiff no duty under the
auspices of Beauchene v. Synanon Foundation, Inc.(1979) 88 Cal.App.3d 342, 348
(Beauchene). Beauchene involved a convicted person’s “eloping” from a private
rehabilitation institution and subsequent “‘crime spree.’” (Id. at p. 345.) In particular, the
First District considered a negligence claim brought by a victim shot in the arm by the
defendant 13 days after he left the program. (Ibid.)
Beauchene and its progeny have consistently held that private rehabilitation
institutions do not owe a duty to the general public for the injurious acts of escaped
residents because to do so would “detrimental[ly] effect prisoner release and
rehabilitation programs.” (Beauchene, supra, 88 Cal.App.3d at p. 348; accord, Rice v.
Center Point, Inc. (2007) 154 Cal.App.4th 949, 956; Cardenas v. Eggleston Youth Center
(1987) 193 Cal.App.3d 331, 335-336.) In essence, the same policy underlying absolute
immunity for public entities in relation to escaped prisoners, escaped persons, or persons
resisting arrest (Gov. Code, § 845.8), also applies to private institutions. (Beauchene,
supra, 88 Cal.App.3d at p. 348.)
However, unlike the acts by an escapee in Beauchene, plaintiff here alleges injury
by an adjoining resident who shared a bathroom with plaintiff. (Complaint, ¶ 15.) The
absence of door locks or other security devices between the adjoining rooms allowed
the alleged perpetrator undetected access to plaintiff and an opportunity to commit
the alleged assault. (Id. at ¶¶ 22 - 24.) Demurring defendants rely on Beauchene and its
progeny, yet, offer no authority applying that reasoning to assaults by co-residents.
Plaintiff, on the other hand, notes the settled principle that, in relation to harm committed
by co-prisoners, “there is a special relationship between jailer and prisoner which imposes
a duty of care on the jailer on the prisoner.” (Giraldo v. Department of Corrections &
Rehabilitation (2008) 168 Cal.App.4th 231, 252-253.)
Considering plaintiff’s allegation that she was harmed by a co-resident, not an
escapee, demurring defendants’ contention that a duty does not exist does not appear
supported by their asserted authorities. Furthermore, plaintiff’s allegations (which must
be accepted as true) tend to show unrestricted and undetected access between
adjoining residents such that the alleged assault could reasonably be found to be
foreseeable. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434-435
[“The most important of [the] considerations in establishing duty is forseeability.”].)
Therefore, the demurrer is overruled.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: __ jyh on 7/10/24 .
(Judge’s initials) (Date)
Ruling
WILLIAMS vs MODIVCARE SOLUTIONS, LLC, et al.
Jul 18, 2024 |
Civil Unlimited (Motor Vehicle - Personal Inju...) |
23CV034015
23CV034015: WILLIAMS vs MODIVCARE SOLUTIONS, LLC, et al.
07/18/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by
Modivcare Solutions, LLC (Defendant) in Department 17
Tentative Ruling - 07/16/2024 Frank Roesch
The Motion to Compel Discovery (not Further Discovery) - 1 moving party, 1 motion filed by
Modivcare Solutions, LLC on 06/12/2024 is Granted.
Defendant Modivcare Solutions, LLC’s (“Defendant”) Unopposed Motion to Compel Discovery
Responses from Plaintiff Gale Williams (“Plaintiff”) is GRANTED. (Code Civ. Proc., §§
2030.290, subd. (a); 2031.300, subds. (a); (b).)
Plaintiff is ordered to serve verified code-compliant discovery responses to Form Interrogatories
(Set One) and Request for Production of Documents (Set One) without objections on Defendant
within twenty-one (21) days of the date of this Order.
As this motion was unopposed, no sanctions are issued.
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
BOTH ECOURT AND EMAIL notices are required.
Ruling
SASCHA LYNCH VS GERSON JACTON MORENO
Jul 18, 2024 |
20STCV47990
Case Number:
20STCV47990
Hearing Date:
July 18, 2024
Dept:
68
Dept. 68
Date: 7-18-24
Case 20STCV47990
Trial Date: N/A
REOPEN DISCOVERY
MOVING PARTY: Plaintiff, Sascha Lynch, pro per
RESPONDING PARTY: Unopposed/Defendant, Gerson Moreno
RELIEF REQUESTED
Motion to Reopen Discovery
SUMMARY OF ACTION
On January 2, 2019, plaintiff Sascha Lynch was involved in an automobile collision with defendant Gerson Jacton Moreno (Defendant) on the northbound 110 Freeway in Los Angeles. On December 15, 2020, Plaintiff filed a complaint against for motor vehicle negligence.
On January 18, 2024, the court vacated the March 25, 2024, trial date. On February 21, 2024, the court dismissed the case at the request of Plaintiff Sascha Lynch without prejudice. The court also retained jurisdiction to make orders to enforce any and all terms of settlement pursuant to Code of Civil Procedure section 664.6.
RULING
: Moot/Off-Calendar.
Request for Judicial Notice: Denied.
Plaintiff Sascha Lynch moves for the court to reopen discovery in order for Plaintiff to verify the accuracy of the responses to discovery from respondent, defendant
Gerson Jacton Moreno aka Gerson Jacton Moreno Garcia.
The entire action was dismissed on February 21, 2024. While the motion was filed after the dismissal, the court finds nothing in the motion supporting a basis for relief given the dismissal of the entire action, or even a threshold argument for an arguable enforcement of the settlement agreement. The court declines to address the extensive arguments in the motion, opposition, and reply given the lack of address of the dismissal itself under Code of Civil Procedure section 664.6
The motion is therefore moot and taken off-calendar.
Plaintiff to provide notice.
Ruling
ARACELI SANCHEZ, AN INDIVIDUAL VS ALICIA RIVERA, AN INDIVIDUAL
Jul 16, 2024 |
19STCV34893
Case Number:
19STCV34893
Hearing Date:
July 16, 2024
Dept:
B
Araceli sanchez V. alicia rivera
motion to Compel Discovery (x2)
Date of Hearing:
July 16, 2024
Trial Date:
July 23, 2023
Department:
B
Case No.:
19STCV34893
Moving Party:
Defendant Alicia Rivera
Responding Party:
None
BACKGROUND
On October 1, 2019, Plaintiff, Araceli Sanchez (Plaintiff), filed this action against Defendant, Alicia Rivera (Defendant) for damages arising from a motor vehicle accident.
Defendant now moves for the Court to compel Plaintiff to provide responses to Requests for Production of Documents (Set Five) and Special Interrogatories (Set Three). In connection with each motion, Defendant requests the Court to impose $3,288 in monetary sanction against Plaintiff and/or her counsel of record. Defendant also requests the Court to impose evidentiary and issue sanctions.
Trial is set for July 23, 2024.
[Tentative] Ruling
As a preliminary matter, the court finds that the instant motions are untimely. Pursuant to Code of Civil Procedure § 2024.020, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. In this instance, trial is set for July 23, 2024. Therefore, any motion concerning discovery had to have been heard on or before July 8, 2024.
Defendant could have either sought to have the instant motions advanced or permitted to be heard closer to trial pursuant to Code of Civil Procedure § 2024.050, but Defendant chose to do neither. Accordingly, because the instant motions are untimely, the motions are denied.
Moving party to give notice.