Preview
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
E= 21Y
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
1
1
2 SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
3 -----------------------------------------x
WELLINGTON DE LA CRUZ,
4 Index No.
Plaintiff, 811119/2021E
5
- vs -
6
1150 REALTY LLC,
7
Defendant.
8 -----------------------------------------x
9
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12
13
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15
16
17
18 VIDEOCONFERENCE DEPOSITION of
19 HUGO LEONEL LOPEZ LINARES, a Nonparty Witness
20 herein, taken by the Defendant, pursuant to
21 Subpoena, held remotely via Zoom, on Friday,
22 June 2, 2023, commencing at 10:05 A.M., before
23 Jason Wagner, a Shorthand Reporter and Notary
24 Public within and for the State of New York.
25
Wagner Reporting, Inc.
(516)8404074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
2
2 A P P E A R A N C E S:
3
BURDZY RYBAK LAW
4 Attorneys for Plaintiff
300 Cadman Plaza West
5 12th Floor
Brooklyn, New York 11201
6
BY: RAPHAEL RYBAK, ESQ.
7 (Appearing Remotely)
8
9 SOKOLOFF STERN LLP
Attorneys for Defendant
10 VILLAGE OF HEMPSTEAD HOUSING AUTHORITY
179 Westbury Avenue
11 Carle Place, New York 11514
12 BY: STUART DIAMOND, ESQ., of Counsel
(Appearing Remotely)
13
14
ALSO PRESENT:
15
JOSE GONZALEZ, Spanish Interpreter
16 Languages R Us
17
18
19
20
21
22
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25
Wagner Reporting, Inc.
(516) 840-4074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
3
1 Hugo Leonel Lopez Linares
2 JOSE GONZALEZ, called as
3 the official interpreter in this matter, was
4 duly sworn by Jason Wagner, a Notary Public
5 of the State of New York, to translate
6 accurately and faithfully the questions
7 propounded to the witness from English into
8 Spanish and the answers given by the witness
9 from Spanish into English.
10
11 HUGO LEONEL LOPEZ LINARES, having
12 been first duly sworn by Jason Wagner, a
13 Notary Public within and for the State of
14 New York, was examined and testified as
15 follows:
16 EXAMINATION
17 BY MR. DIAMOND:
18 Q State your name and address for the
19 record, please.
20 A Hugo Leonel Lopez Linares,
21 1150 Anderson Avenue, Apartment A54, Bronx, New
22 York 10452.
23 Q Good morning, Mr. Lopez. My name
24 is Stuart Diamond. I'm an attorney with
25 Sokoloff Stern. My office represents
Wagner Reporting, Inc.
(516)840-4074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
4
1 Hugo Leonel Lopez Linares
2 1150 Realty LLC in this case.
3 A Okay.
4 Q I'm going to be asking you some
5 questions about a claim brought against
6 1150 Realty LLC by Wellington De La Cruz.
7 A Agreed.
8 Q If I ask you any questions that you
9 don't understand, please tell me, and I will
10 rephrase the question. Okay?
11 A Correct.
12 Q Also, if during the course of your
13 deposition you wish to go back to change an
14 answer that you gave previously, just tell me,
15 and I will give you the opportunity to do so.
16 How long have you lived at
17 1150 Anderson Avenue in the Bronx?
18 A Specifically since 2006. Let me
19 see how long it is.
20 Q Is it since 2006?
21 A 2006, yes.
22 Q That's fine.
23 Have you lived in apartment A54
24 that entire time?
25 A Correct.
Wagner Reporting, Inc.
(516)840-4074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
5
1 Hugo Leonel Lopez Linares
2 Q Is that an apartment house?
3 A Yes, an apartment building.
4 Q On what floor of that building is
5 apartment A54?
6 A Fifth floor.
7 Q Do you currently live at that
8 address with anyone else?
9 A Karina.
10 Q Anyone else?
11 A And the owner of the apartment,
12 Maria Sued. Pichardo Sued.
13 Q How do you spell Sued?
14 A S-U-E-D.
15 Q Were you living there in
16 apartment 54 at 1150 Anderson Avenue on May 6th,
17 2021?
18 A Yes.
19 Q Who else lived in that apartment
20 back in May 2021 besides you?
21 A It was Karina Maria Sued and
22 Wellington De La Cruz.
23 Q When you moved into that apartment
24 in 2006 was there anyone already living there?
25 A Just Maria.
Wagner Reporting, Inc.
(516)8404074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
6
1 Hugo Leonel Lopez Linares
2 Q When did Karina move into that
3 apartment?
4 A She's been living there for about
5 eight years.
6 Q When did Mr. De La Cruz move into
7 that apartment?
8 A I think he had been there for a
9 year I think from about 2018.
10 Q How many bedrooms were there in
11 that apartment in May 2021?
12 A Three.
13 Q Back in May of 2021 did
14 Mr. De La Cruz have a bedroom of his own in that
15 apartment?
16 A Yes.
17 Q Did you have a bedroom?
18 A As well.
19 Q Did you share that room with anyone
20 else?
21 A Yes, because Maria Sued, she's my
22 girlfriend.
23 Q Back in May 2021 did Karina reside
24 in the third bedroom?
25 A Yes.
Wagner Reporting, Inc.
(516)8404074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
7
1 Hugo Leonel Lopez Linares
2 Q With anyone else?
3 A Her small daughter.
4 Q Did Mr. De La Cruz have a bedroom
5 to himself back in May of 2021?
6 A Yes.
7 Q Are you aware that Mr. De La Cruz
8 has made a claim of having been injured in
9 apartment A54 back in May 2021?
10 A We found out when we received the
11 letters and we got the phone calls from his
12 attorney.
13 Q Whose attorney?
14 A Mr. De La Cruz's attorney.
15 Q Do you recall when you received the
16 letters and phene calls from his attorney?
17 A I don't remember exactly.
18 MR. RYBAK: I just want to note for
19 the record that my office never contacted
20 the defendant or Mr. Lopez directly.
21 THE WITNESS: Can I say something?
22 MR. DIAMOND: Yes.
23 THE WITNESS: They did call me.
24 Q Do you recall approximately when
25 that was?
Wagner Reporting, Inc.
(516)840-4074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
8
1 Hugo Leonel Lopez Linares
2 A I wouldn't be able to specify the
3 date nor the time because at the moment I really
4 don't remember.
5 Q The person who called you, was that
6 a man or a woman?
7 A I spoke to a man and a female
8 interpreter.
9 Q Are you aware that Mr. De La Cruz
10 is claiming that he was injured in that
11 apartment when pieces of bathroom ceiling came
12 down on him?
13 A We found out because we asked him
14 at the beginning, he denied it, and at the end
15 he ended up saying yes.
16 Q Was there one bathroom in that
17 apartment back in May 2021 or more than one
18 bathroom?
19 A Just one bathroom.
20 Q During the time that you resided in
21 that apartment, has there ever been any instance
22 when any part of the ceiling in that bathroom
23 fell down from the ceiling?
24 A That was the first time it
25 happened.
Wagner Reporting, Inc.
(516)8404L074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
9
1 Hugo Leonel Lopez Linares
2 Q Did that happen in May of 2021?
3 A Yes.
4 Q Do you recall the specific date?
5 A I don't remember the specific date.
6 Q Were you in your apartment when
7 that happened in May of 2021?
8 A Yes.
9 Q Were you in a particular part of
10 the apartment at the moment that the pieces of
11 the ceiling came down?
12 A In my room.
13 Q Was anyone in your room with you at
14 the time that the pieces of the ceiling came
15 down?
16 A Karina and her daughter were in the
17 other room.
18 Q Which room?
19 A Their room.
20 Q Their bedroom?
21 A Yes.
22 Q Besides you and Karina and Karina's
23 daughter, was there anyone else in the apartment
24 at the time that the pieces of the ceiling came
25 down in the bathroom in May of 2021?
Wagner Reporting, Inc.
(516)8404074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
10
1 Hugo Leonel Lopez Linares
2 A No one else.
3 Q Do you know where Maria was at that
4 time?
5 A I don't know exactly, but she had
6 gone out due to personal issues. I don't know
7 exactly where she was.
8 Q Do you know where Mr. De La Cruz
9 was at the time that the pieces of the ceiling
10 came down in the bathroom?
11 A I have no idea where he was.
12 Q How did you learn that pieces of
13 the ceiling had come down in the bathroom?
14 A Because I heard it and I came out
15 to see at the moment they fell.
16 Q What did you hear?
17 A I heard a boom.
18 Q After you heard the boom did you
19 walk from your bedroom to the bathroom in that
20 apartment?
21 A Correct.
22 Q How much time passed between when
23 you heard the boom and when you reached the
24 bathroom?
25 A I would say less than a minute
Wagner Reporting, Inc.
(516)8404074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
11
1 Hugo Leonel Lopez Linares
2 because it's not far.
3 Q Do you recall at approximately what
4 time this occurred when you heard the boom from
5 the bathroom?
6 A It was like 11, 11:30.
7 Q A.M. or P.M.?
8 A P.M.
9 Q What did you see when you arrived
10 in the bathroom?
11 A I only saw debris. Nothing else.
12 Q Did you look up at the ceiling in
13 the bathroom?
14 A Yes.
15 Q When you looked up at the ceiling
16 did you see anything unusual?
17 A No. Just the hole where it had
18 become loose.
19 MR. DIAMOND: He said hole,
20 correct?
21 THE WITNESS: Yes, the hole.
22 Q Was that a hole in the bathroom
23 ceiling?
24 A Yes, when it fell.
25 Q The debris that you mentioned, was
Wagner Reporting, Inc.
(516) 840-4074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
12
1 Hugo Leonel Lopez Linares
2 it mostly on the floor of the bathroom?
3 A Parts in the bathtub, parts on the
4 floor.
5 Q As best you could tell, did the
6 debris that you saw in the bathtub and on the
7 floor come from where you saw that hole in the
8 ceiling?
9 A Yes, correct.
10 Q Was there anyone in the bathroom
11 when you arrived less than a minute after
12 hearing that boom?
13 A Nobody else.
14 Q At any time after you heard that
15 boom and went to the bathroom, did
16 Mr. De La Cruz arrive at home in the apartment?
17 A At no point. I saw him like three
18 days later.
19 Q Was that the first time you saw him
20 in the apartment after you heard the boom from
21 the bathroom?
22 A Correct.
23 Q Have you ever had any discussion
24 with Mr. De La Cruz about the pieces of the
25 ceiling that came down from the bathroom ceiling
Wagner Reporting, Inc.
(516)840-4074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
13
1 Hugo Leonel Lopez Linares
2 in May of 2021?
3 A We spoke to him because clearly he
4 is a liar about something that doesn't exist.
him,"
5 Q When you say, "We spoke to
6 are you referring to you and someone else?
7 A Yes. Maria Sued.
8 Q How many times in total have you
9 spoken to Mr. De La Cruz about the pieces of the
10 bathroom ceiling coming down?
11 A I think it was twice.
12 Q When was the first time?
13 A After we found out that he had
14 started a lawsuit.
15 Q Is that after you received the
16 letters and the phone calls that you mentioned
17 earlier?
18 A Correct.
19 Q Where did that first conversation
20 take place?
21 A On the phone.
22 Q Were you on that call?
23 A Maria was talking to him and I was
24 listening.
25 Q Were you with Maria during that
Wagner Reporting, Inc.
(516)840-4074
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E
NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023
14
1 Hugo Leonel Lopez Linares
2 call?
3 A Yes.
4 Q Were you listening in on another
5 phone, or were you standing next to Maria
6 overhearing her end of the conversation, or
7 something else?
8 A Next to Maria.
9 Q Were you able to hear what Maria
10 was saying to Mr. De La Cruz?
11 A Yes.
12 Q Were you able to hear what
13 Mr. De La Cruz was saying on that phone call?
14 A Yes.
15 Q Was that through the telephone
16 receiver, you were able to hear his end of the
17 conversation through the phone?
18 A Yes, because at that moment they
19 were sending audio messages through WhatsApp.
20 Q Was that on Maria's phone?
21 A Yes.
22 Q Was the speaker on on Maria's phone
23 during this conversation?
24 A
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Lykkeberg vs. Wilburn, et al.
Jul 17, 2024 |
23CV-0202789
LYKKEBERG VS. WILBURN, ET AL.
Case Number: 23CV-0202789
This matter is on calendar for review regarding status of arbitration. This matter was stayed by
the Court’s Order dated January 23, 2024 pending conclusion of a FINRA arbitration between the
parties. No status report has been filed. An appearance is necessary on today’s calendar.
Ruling
CLAIRE STANFORD VS THE PALISADES ASSOCIATION, INC., A CALIFORNIA CORPORATION, ET AL.
Jul 18, 2024 |
22LBCV00894
Case Number:
22LBCV00894
Hearing Date:
July 18, 2024
Dept:
S27
1.
Background Facts
Plaintiff, Claire Stanford filed this action against Defendants, The Palisades Association, Inc., Long Beach Home Solutions, Inc., Boris Bogomolny, and Renee Bogomolny for damages arising out of a fall down a staircase at her apartment complex.
2.
Motion for New Trial
a.
Trial
This case was tried to a jury from 4/16/24 to 4/22/24.
At the conclusion of the trial, Plaintiff made a motion for a mistrial, which was denied.
The jury found in favor of Defendants and against Plaintiff.
On 5/13/24, the Court entered judgment in favor of Defendants.
b.
Grounds for Motion
Plaintiff moves for a new trial based on:
(1) Irregularity in the proceedings of the Court (CCP § 657(1));
(2) Irregularity in the proceedings of the jury (CCP § 657(1));
(3) Irregularity in the proceedings caused by (adverse party) (CCP § 657(1));
(4) Improper orders of the Court (CCP § 657(1));
(5) Abuse of discretion by the Court (CCP § 657(1));
(6) Accident or surprise, which ordinary prudence could not have guarded against (CCP § 657(3)); and
(7) Error in law occurring at the trial and objected to by the moving party (CCP § 657(7)
Substantively, Plaintiff argues a new trial is necessary because:
(1)
The Court did not allow her to demonstrate how she fell;
(2)
The Court did not allow Plaintiffs expert to use demonstrative evidence to show the severity of the condition on which she fell; and
(3)
The Court did not allow Plaintiff to submit testimony showing the reasonableness of her medical bills.
c.
Initial Note
While Plaintiffs notice of motion indicates she is moving for a new trial on seven delineated grounds, her points and authorities are not clear concerning what ground she is moving on.
§III(A) of her brief purports to brief irregularities in the proceedings under §657(1).
Her very short argument thereafter incorporates other aspects of §657(1).
The Court notes that the full text of §657(1) provides for a new trial when there is: Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
The Court will do its best to rule on the motion based on all of the asserted grounds, but is doing so without the benefit of meaningful briefing from Plaintiff concerning which grounds she contends support which substantive argument in her moving papers.
d.
Law Governing Motion for New Trial Under §657(1)
A new trial may be granted for:
1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
CCP §657(1).
As will be seen, irregularity is broadly interpreted to encompass many forms of misconduct and error that would also be ground for mistrial or reversal on appeal.
Irregularity in the proceedings of the court: This phrase refers to conduct other than orders and rulings and reaches matters that may have to be proved by affidavit rather than by exceptions on the record during trial.
It includes personal misconduct by the trial judge or any departure by the court from the due and orderly method of disposition of an action by which the substantial rights of a party have been materially affected.
Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1226, 1229-1230.
CCP § 657(1) also authorizes new trials based on any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
CCP § 657(1).
Evidentiary rulings by which relevant evidence was erroneously excluded (or conversely, irrelevant evidence erroneously admitted) may be ground for a new trial if prejudicial to the moving party's right to a fair trial.
Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294.
This may include the erroneous exclusion of expert testimony.
People ex rel. Dept. of Transp. v. Clauser/Wells Partnership (2002) 95 Cal.App.4th 1066, 1084-1086.
e.
Demonstrative Evidence
Plaintiffs first argument is that the Court erred in refusing to permit her expert to use demonstrative evidence to show the severity of the condition on which she fell.
Plaintiff contends she offered to present the dog, the leash, and the laundry basket for the purpose of showing the weight of each object and to show she could not have been tripped by the leash, which was retractable.
Plaintiff cites various cases from more than fifty years ago that collectively establish the trial court has the discretion to permit introduction of demonstrative evidence when it will clarify a witnesss testimony.
As an initial note, Defendants correctly establish, in their opposition, that Plaintiff failed to provide evidence sufficient to support her position in this regard.
The sole evidence is her attorneys declaration, which conclusively states that she was not allowed to introduce this evidence.
Counsel does not state whether and when the evidence was proffered, whether it was proffered in a procedurally proper manner, or what ruling the Court made on any such proffer.
While Defendants address this issue in opposition, Plaintiff fails to address it in reply, effectively conceding the deficiency of the moving papers.
Even if the Court were to find the evidence sufficient, the Court finds any ruling it made in this regard was correct.
Evidence Code §352 permits the Court to exclude any evidence that would be more prejudicial than probative.
Permitting a plaintiff to bring a dog into a courtroom would be highly disruptive and unusual.
Notably, Plaintiff failed to show that she could not simply testify as to the weight of the dog, the weight of the laundry basket, and the retractable quality of the leash, and that this would not be sufficient for the jury to deliberate on the issue.
f.
Dangerousness of Stairs
Plaintiffs next argument is that the Court erred in refusing her to introduce demonstrative evidence showing the dangerousness of the stairs.
Specifically, she contends the Court refused to permit her expert to write the measurements of each individual stair on the photo of the stairs, which would have shown the substantial deviations from the building code.
Plaintiffs second argument suffers from the same evidentiary deficiency as her first argument.
She fails to show that she attempted to introduce this evidence, how she attempted to do so, or what ruling was made concerning this evidence.
Additionally, the Court finds Plaintiff was welcome to introduce testimony about any deviations from the building code, and Plaintiff failed to show any order precluding her from writing this testimony on a photograph was not prejudicial.
g.
Reasonableness of Medical Bills
Plaintiffs third argument is that the Court erred in refusing to permit her expert, Dr. Ghodadra, to testify concerning the reasonableness of her medical bills.
Plaintiff argues, in her moving papers, that this error was prejudicial because she was not allowed to show the severity of her damages or the necessity of her treatment.
This argument fails for the same reason stated above; again, Plaintiff did not provide any evidence showing what testimony she attempted to introduce, how she attempted to do so, or what court order was issued precluding her from doing so.
Additionally, the jury verdict was rendered based on a finding that there was no dangerous condition, and therefore any evidence of medical damages was not relevant to the verdict.
Plaintiff, in reply, argues this evidence was necessary for credibility reasons.
She did not make this argument in her moving papers, and cannot raise it for the first time in reply.
h.
Conclusion
Plaintiffs motion for a new trial is denied on both procedural and also substantive grounds, as discussed fully above.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at
gdcdepts27@lacourt.org
indicating intention to submit on the tentative as directed by the instructions provided on the court website at
www.lacourt.org
.
If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar
.
If a party submits on the tentative, the partys email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.
Ruling
STEPHANIE HUGHES VS CULVER SALAR FAMILY INVESTMENT, LLC
Jul 17, 2024 |
6/18/2022 |
23SMCV01089
Case Number:
23SMCV01089
Hearing Date:
July 17, 2024
Dept:
I The demurrer is OVERRULED.
While defendants statement of law is correct in that it is hard to see who the individual is that is alleged to be specifically responsible, there is enough here for pleading purposes.
The specifics can be fleshed out in discovery and for now there are allegations, albeit general, as to the defendants acting together.
In short, these issues are better raised by way of a summary judgment motion or at trial.
The court is also having trouble understanding how the demurrer is timely.
The court notes three discovery motions on file.
That does not bode well this early in the case.
The court has not worked up those motions, but for the parties aid, the court appends its guidelines on discovery responses, meet and confers, and IDCs.
The court encourages IDCs where both parties would like to resolve the matter informally and in good faith, and often the failure to participate in an IDC can have an impact on the recovery or propriety of any sanctions request.
DISCOVERY RELATED GUIDELINES FOR DEPARTMENT I
The guidelines below are not rules and they are not universally applicable in all cases.
Rather, they are guidelines as to the courts general views.
Each case, of course, will be decided on its own facts and circumstances, and some of the guidelines below may not apply to particular circumstances.
That said, the court does take these views seriously.
Discovery Responses
The Court provides the following guidance concerning its general views on some common issues regarding responses to written objections.
The Court has noticed that many attorneys view objections and the manner of making them in a way different than does the Court.
To avoid these common pitfalls, the Court offers the following in addition to the provisions of the Litigation Guidelines appended to the Los Angeles County Superior Court Local Rules.
First
, General Objections are not permitted.
The Code of Civil Procedure does not provide for them, and therefore they are disregarded by the Court.
Any response that incorporates the General Objections is improper by definition.
Second
, the Court often views boilerplate objections as being in bad faith.
A bad faith response is no response at all in the Courts view.
Therefore, making boilerplate objections does not preserve those objections nor does it constitute a good faith response to written discovery.
A bad faith response is viewed by the Court for what it is: bad faith.
The objections will be stricken and deemed waived.
In the context of a Request for Admission, such objections may lead to a finding that the request is deemed admitted, although that will depend on the facts of the particular case and the specific discovery at hand.
Objections should be tailored to each specific request.
If a request truly is overbroad, then an objection to that effect is proper.
But such an objection is best accompanied by some reasonable limitation by the responding party that will narrow the request appropriately and (as narrowed) provide a substantive response rather than a mere statement that the request is overbroad.
The same is true as to an objection that a request is unduly burdensome.
The Court also notes that the party asserting that a request is unduly burdensome has the obligation at some point to provide an evidentiary basis for the objection, including evidence as to what the burden of compliance would be.
(
West Pico Furniture Co. v. Superior Court
(1961) 56 Cal.2d 407.)
Often such an objection will include a statement by the responding party as to a narrower request that would not be unduly burdensome and provide substantive responses as so limited.
Objections that a request is vague and ambiguous must set forth the vague and ambiguous term as well as the responding partys reasonable interpretation of that term as well as a statement that, so interpreted, the response will provide the discovery requested.
If there is no reasonable interpretation possible (which is a rare situation), then the responding party must so state.
Objections as to privilege must set forth the basis explaining why the information sought is in fact privileged.
Where a privilege is asserted in the context of a document request, a privilege log must accompany the answer or be provided within a short and reasonable time after the answer.
Where the objection is made in the context of an interrogatory, it must be clear from the objection the scope of the information being withheld.
If there is no log, there should be no privilege objection to a document request (meaning that a prophylactic privilege objection is the equivalent of no objection; it preserves nothing).
There are some rare exceptions, such as where the entire point of the discovery is to get allegedly privileged information or where compliance would require a log that is in essence an index of counsels file.
In that situation, the log is unnecessary, but the assertion should be made that the request is in that rare context.
Third
, if an objection is made to the discovery but a response is being given, it must be clear whether information or documents are in fact being withheld on the basis of the objections.
If the objections are clear and done in the manner set forth above, with statements in the objection as to a narrowing that will make the request proper, this is usually a simple task.
The objections themselves state the limit and the response will be full and complete as limited.
But where the objections are not so clear, the response must clearly state whether any information or document is being withheld on the basis of the objection and, if so, the extent of the withholding.
Accordingly, in those situations, phrases like Notwithstanding and subject to the foregoing objections, responding party states as follows are improper.
Those sorts of phrases make the verification useless, as the verifier can always fall back on the objections as the reason why a document was not produced or information was not disclosed.
On the other hand, where the line of demarcation is clear, the verification will still serve its purpose.
Fourth
, for document requests, the substantive response must conform to the Code.
There are relatively tight rules as to what the response must say, and the response must say it.
For example, where a responding party is not producing documents because they are not in the partys possession, custody, or control, the responding party must verify that a diligent search has been made and must further provide the information set forth in the Code of Civil Procedure in such cases.
In the case of interrogatories, the responses must also conform to the Code of Civil Procedure and must be made after diligent inquiry.
It is not proper to refuse to respond because the responding party has no personal knowledge.
If the knowledge is hearsay, it must still be disclosed, although it can be qualified to make it clear that it is not based on the verifiers personal knowledge.
Fifth
, the Court frowns on responses that do not conform to the foregoing rules being served with the view that the responses will moot themselves out in the meet and confer process.
That is not how the process works.
A good faith response is required before the meet and confer process begins.
The meet and confer process will (hopefully) bridge the gaps between the parties respective positions.
Further, where a response to a request for documents is made and documents are to be produced subject to certain objections (with the documents withheld properly delineated), the documents should be turned over irrespective of the meet and confer.
The documents are to be produced with alacrity to the extent that there is no objection to them.
What this means is that the response to a discovery request is not a trivial undertaking.
Nabbing the response from the form file is a generally bad idea and can lead to all objections being waived.
The point is that the boilerplate often renders the remainder of the response useless.
The only exception is where it is clear that the substantive response is not in any way limited by the objections.
In that case, the objections do no harm, although they also do no good.
Meet and Confer
The Code of Civil Procedure requires that before a motion to compel further responses or a motion for a protective order is filed, the parties engage in a good faith attempt to resolve their differences.
They are to meet and confer for that purpose.
Only if that effort fails can a motion be brought.
Sadly, many litigants view the meet and confer process as just another procedural hoop through which they must jump in order to bring the motion, similar to the need to include an actual demurrer with the demurrer papers.
The Code requires it, so they do it, but no ones heart is really in it.
That is not sufficient.
Given that, the Court believes it appropriate to set forth how the Court views the meet and confer requirement.
Failure to abide by the guidelines below may well justify denial of the motion or a continuance of it to allow the process to take place.
If one party but not the other refuses to participate as set forth, more likely than not the party refusing to participate will find itself on the losing end of the motion.
The following quotation fairly sums up the Courts own view.
[W]e feel compelled to observe that resort to the courts easily could have been avoided here had
both
parties actually taken to heart Justice Stone's admonitions in
Townsend
that the statute requires that there be a serious effort at negotiation and informal resolution. (
Townsend, supra,
61 Cal.App.4th at p. 1438.) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that [a]
rgument
is not the same as informal negotiation (
id
at p. 1437); that attempting informal resolution means more than the mere attempt by the discovery proponent to persuade the objector of the error of his ways (
id.
at p. 1435); and that a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel....
Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate. (
Id.
at p. 1439.) (
Clement v. Alegre
(2009) 177 Cal.App.4th 1277, 1294, emphasis in original, parallel citations omitted.)
In practical terms, it means as follows.
It is entirely appropriate to begin the process with a letter or other correspondence.
The letter should not include a demand in the form of an ultimatum, but it can certainly include the relief that is being sought with an invitation to meet and confer.
It is also entirely appropriate for the other party to respond with a letter or other correspondence to set forth its position on the issues.
Such an initial exchange can often be helpful to narrow the dispute.
Whether further exchanges make sense will depend on each case and each dispute.
However, at some point, before impasse is reached the process must include an actual meet.
The letters might well suffice to confer, but an exchange of correspondence is not a meeting.
In the COVID-19 era, the meeting can be virtual or telephonic, but a meeting there must be.
The meeting must be attended by a person from each side with the authority to agree to the other sides position without getting further permission from anyone, including the client.
If only the client can give the needed authority, then the client must be available instantaneously at all times during the meeting.
This does not mean that one side or the other must concede, but it does mean that the people meeting have the ability in real and practical terms to strike a deal then and there.
The parties should approach the meet and confer process as a problem-solving exercise.
The purpose of the meet and confer is not to convince the other side of the bankruptcy of its position; rather the purpose is to reach an agreement by which the party seeking discovery is able to obtain the information that it reasonably needs and the party providing discovery is not put to an undue burden or forced to provide unnecessary information that might infringe on a privacy interest or disclose a competitive trade secret or the like.
At the conclusion of the meet and confer, the parties should have an agreed statement as to the outcome.
If the outcome is a total impasse, then they should agree on that.
If they have resolved some or all of their differences, then they should statein writingwhat that agreement is so that there will be no confusion later.
Often, an agreement will be without prejudice to a further request by the propounding party for more information after that party receives the responses.
If a motion is still required, the declaration in support should describe with some detail the meet and confer process.
While the Court is not interested in the back and forth, the court is interested in when the meeting took place, who was there, and how long it lasted.
All communicationsin writing or oralmust be civil, polite, and professional.
Name-calling and accusations are devices that undermine the process; they do not further it.
A party engaging in such activity generally is not acting in a good faith effort to reach an agreement.
Informal Discovery Conferences
The court generally will encourage an Informal Discovery Conference (IDC) before any party files a motion to compel further responses.
The goal of the IDC is to get to yes.
To achieve that goal, the court adopts the following.
Five Court days before the IDC, the parties will submit a JOINT statement no more than eight pages total (on pleading paper) setting forth their respective positions.
Where a similar issue is raised that will resolve many requests, it can be dealt with as a single issue.
The IDC follows the good faith meet and confer.
It is not a substitute for the meet and confer.
The courts time is to be spent only on issues after the parties have tried to narrow the dispute as much as possible.
As stated above, the goal is to get to yes.
This means a few things.
One is that each party must be represented by a person who has the authority to agree to the other sides position without getting further permission.
It need not be lead counsel and that authority need not be exercised.
But the people at the conference must have that authority.
If only the client has that authority, then the client will be present physically with counsel in an adjacent room without distraction after initial introductions are made.
All IDCs are off the record.
That means that whatever anyone says at the IDC will not be binding or quoted back at the party unless an agreement is struck.
It is very bad form to quote the courts comments at an IDC during a later hearing unless the comments were part of a stipulated order.
All parties have the right to change position if no deal is reached.
The court, for example, might strongly indicate that it believes one side or the other has the better position but rule in a completely different way if there is a formal motion.
Partial agreements that are contingent upon a full resolution are not binding unless a full resolution is reached.
Partial resolutions that are not contingent on a full resolution are binding.
Parties who are suggesting a resolution should make it clear whether their proposal depends upon other resolutions.
Parties should be especially willing to give up sanctions at an IDC if it will resolve the dispute.
That is not a requirement, but the courts experience is such that if a party is really going to insist on a sanction, the likelihood of a resolution is very low.
It is likely that no party will get everything that it wants.
The goal is to abide the Code, but at the same time make sure that the party seeking discovery is not creating busy-work or demanding a lot of work for no benefit (or virtually no benefit).
The responding party might well have the right (should it come to motion practice) to avoid some aspect of the discovery, but in order to get to a resolution it might be in the responding partys interest to be willing to offer something.
Conversely, the propounding party might have the right (should it come to motion practice) to get some aspect of discovery, but in order to get to a resolution it might be in the propounding partys interest to forego aspects of the discovery that are not really needed, perhaps reserving the right to seek that information at a later time should it prove necessary.
The point is not to have the Court simply hammer away at the opponent.
That might happen at a motion, but it is not the goal of the IDC.
No orders will be made except on stipulation.
However, if there is an agreement, the court may well want to make an appropriate order or ask the parties to confirm it in writing.
Parties should take careful notes on any agreements.
Because there are no Court Reporters, it is hard to put an agreement on the record.
However, unless the agreement is confirmed quickly, people have a tendency to forget or to have buyers remorse.
Therefore, it is best to have one party send an immediate confirming email to the other and obtain an agreement.
The court would prefer not to get into the specific wording of the agreement during the IDC unless absolutely necessary.
The IDC process does not work if people view it as just a necessary step to filing a motion.
The court does not see it that wayif it did, then the court would abandon the IDC as a waste of time.
Rather, this is an off-ramp to avoid motion practice and the attendant costs and time.
Hopefully, it is also a way to get discovery more quickly than through formal motion practice.
At the IDC, no matter how hot tempers have run in the past, the court expects all counsel to be polite and civil in tone to one another.
The court will not tolerate rudeness or unnecessary accusations.
They do not move the ball forward and they make it nigh impossible to reach an agreement.
Ruling
Mac Leod VS Singh
Jul 16, 2024 |
Civil Unlimited (Motor Vehicle - Personal Inju...) |
RG20080278
RG20080278: Mac Leod VS Singh
07/16/2024 Hearing on Motion for Protective Order filed by Tesla, Inc (Defendant) in
Department 512
Tentative Ruling - 07/12/2024 Elizabeth Riles
The Motion for Protective Order filed by Tesla, Inc on 05/02/2024 is Granted in Part.
This Tentative Ruling addresses both (1) plaintiffs Norman and Dianna Mac Leod’s
(“Plaintiffs”) Motion to Compel the further deposition of defendant Tesla Inc. (the “Motion to
Compel; and (2) Tesla’s Motion Protective Order re: further deposition of Tesla (the “MPO”).
The Motion to Compel and the MPO are both GRANTED IN PART and DENIED IN PART as
set forth below.
As an initial matter, neither party met their respective obligations to present admissible evidence
in a form that would expedite the Court’s review of the relevant issues in dispute. Tesla’s MPO
and its Opposition to the Motion to Compel make various representations regarding plaintiff
Norman Mac Leod’s and Tesla’s person most qualified (“PMQ”) Vamsi Naraharisetty’s prior
deposition testimony in this action. However, instead of providing relevant portions of these
deposition transcripts for the Court to review and consider, Plaintiff’s counsel makes a hearsay
declaration as to the substance of their respective testimonies.
Similarly, Plaintiffs in their Reply on the Motion to Compel assert that Mr./Ms. Naraharisetty
was unable to provide testimony in connection with Tesla’s shipping operations at the subject
premises where Plaintiffs allege Mr. Mac Leod was injured. (Reply at pp. 2:24-3:2.) However,
the Reply does not provide specific citations to any asserted relevant testimony, nor has Plaintiff
marked the relevant deposition testimony as expressly required by CRC Rule 3.1116(c). Because
the propounding party has not met their obligation to provide specific citations to relevant
evidence or to mark relevant deposition testimony as required by the CRC, and the Court has
limited judicial resources, the Court has not considered any portion of Exh. 8 to the Thompson
Reply Declaration.
Having reviewed all the parties’ respective briefing, the Court ORDERS as follows.
The Court authorizes Plaintiffs to take up to four (4) additional hours of deposition of Tesla’s
PMQ, exclusive of breaks, regarding Tesla’s shipping operations and/or activities at the subject
premises alleged in the Complaint. The Court ORDERS THE PARTIES TO MEET AND
CONFER IN GOOD FAITH regarding a mutually agreeable date for Tesla’s PMQ’s further
deposition to occur no later than Wednesday, August 7, 2024.
The Court DENIES Plaintiffs’ request for any further continuance of the hearing on Tesla’s
dispositive motion, which is presently set for hearing on 9/10/2024.
The Court DENIES Plaintiffs’ request for monetary sanctions in any amount. Plaintiffs did not
serve a Notice of Motion containing a request for monetary sanctions in a specific amount or
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
RG20080278: Mac Leod VS Singh
07/16/2024 Hearing on Motion for Protective Order filed by Tesla, Inc (Defendant) in
Department 512
setting forth the legal basis for the award of sanctions. Even if Plaintiffs had served such a Notice
of Motion, the moving Thompson Declaration declares no facts as to Plaintiffs’ reasonable legal
fees and costs incurred in bringing the present Motion to Compel. Similarly, the Opp. Thompson
Declaration on the MPO contains no evidence regarding Plaintiffs’ fees and costs in opposing the
MPO.
CONTESTING TENTATIVE RULINGS
PLEASE NOTE: If any party contests the tentative ruling, the hearing on the motion will occur
remotely via the court’s own video-conferencing system.
Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become
the order of the Court unless it is contested before 4:00 PM on the court day preceding the
noticed hearing date.
To contest a tentative ruling, a party should do the following:
First, the party must notify Department 512, by email at Dept512@alameda.courts.ca.gov and
copy all counsel of record and self-represented parties. The contesting party must state in the
subject line of the email the case name, case number and motion.
Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case
number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this
Ruling" button, enter the party's name and a brief statement of the party's reason for contesting
the tentative, and click "Proceed."
Parties may appear via videoconference, using the Zoom.com website or application.
TO CONNECT TO ZOOM:
Join the meeting using the following link: https://www.zoomgov.com/j/16057661931
Join the meeting by Phone:
Meeting ID: 160 5766 1931
1 669 254 5252, 16057661931# US (San Jose)
1 669 216 1590, 16057661931# US (San Jose)
833 568 8864 US Toll-free
Ruling
MEREDITH CHERRY, ET AL. VS LOS ANGELES UNIFIED SCHOOL DISTRICT, ET AL.
Jul 19, 2024 |
23BBCV01846
Case Number:
23BBCV01846
Hearing Date:
July 19, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central District
Department B
emerson mikasa
, a minor individual, by and through his Guardian ad Litem, MEREDITH CHERRY,
Plaintiff,
v.
los angeles unified school district,
et al
.,
Defendants.
Case No.:
23BBCV01846
Hearing Date:
July 19, 2024
[
TENTATIVE] order RE:
motion for an order compelling mental examination of Plaintiff
BACKGROUND
A.
Allegations
Plaintiff minor Emerson Mikasa (Plaintiff) alleges that he sustained physical, emotional, and psychological injuries on August 18, 2022
[1]
when he was brutally attacked, assaulted, and bullied by another student H.A.D1 (Assailant) at Dixie Canyon Community Charter, an elementary school under the control, operation, management, and supervision of Defendant Los Angeles Unified School District (LAUSD).
Plaintiff alleges that during school hours, he entered the restroom at or near the schools lunch area and was approached by Assailant, who suddenly and without provocation attacked Plaintiff from behind.
Plaintiff alleges that Assailant grabbed him by the collar, threw him to the floor, and struck his head repeatedly.
Plaintiff alleges 4 other students witnessed the event and ran to get help.
Plaintiff alleges that the event was promptly reported to LAUSD and Defendant Silvia Lopez (LAUSD employee, Lopez) that same day.
Plaintiff alleges that on August 19, 2022, he reported the assault to the Los Angeles Police Department.
On August 21, 2022, Plaintiffs mother, Meredith Cherry, emailed Defendants Lopez, Pamela Damonte (Damonte), and Margery Weller (Weller), as well as several other LAUSD employees/representatives regarding the incident.
The complaint, filed August 10, 2023, alleges causes of action for: (1) negligence; and (2) negligent hiring, retention, supervision, and training.
On September 15, 2023, Plaintiff amended the name for Pamela Demonte to Pamela Damonte.
B.
Motion on Calendar
On May 17, 2024, Defendants LAUSD, Lopez, Damonte, and Weller filed a motion to compel Plaintiff Emerson Mikasa to attend a mental examination conducted by Dr. April Thames on July 22, 2024 at 10:00 a.m. or on a mutually agreeable date and time.
On July 3, 2024, Plaintiff filed an opposition brief.
On July 12, 2024, Defendants filed reply papers.
DISCUSSION
Defendants move to compel Plaintiff to attend a mental examination conducted by Defendants retained psychological expert, Dr. April Thames, Ph.D.
On February 23, 2024, defense counsel sent a letter to Plaintiffs counsel requesting that Plaintiff stipulate to an independent medical examination (mental) of Plaintiff, and Plaintiffs counsel responded by asking defense counsel to clarify the scope of the test and requested that Defendants agree to produce the raw data to Plaintiffs counsel.
On March 1, 2024, defense counsel sent a draft stipulation for an order on Plaintiffs mental examination, but declined to provide the raw data to Plaintiffs counsel.
The parties thereafter met and conferred about the mental examination, whereby the parties agreed that Plaintiff would submit to a physical and mental IME, but the parties still disputed whether the raw data from the IME would be provided to Plaintiffs counsel.
Defendants argue that their counsel followed up with Plaintiffs counsel numerous times regarding the draft stipulation, but did not hear back from Plaintiffs counsel until May 13, 2024 when Plaintiffs counsel again requested that raw data be shared.
Despite meet and confer efforts, the parties were unable to agree upon a stipulation, such that Defendants filed this motion.
The parties do not dispute that Plaintiff will submit to a mental IME.
The only issue between the parties regarding the mental IME is whether Plaintiffs counsel is entitled to the raw data from the examination.
In opposition, Plaintiff relies on
Randys Trucking, Inc. v. Superior Court of Kern County
(2023) 91 Cal.App.5th 818, arguing that the disclosure of raw test data falls within the broad discretion of the superior court.
The Court will consider several relevant cases.
In
Carpenter v. Superior Court
(2006) 141 Cal.App.4th 249, Carpenter argued that he should be provided a copy of test questions and answers after his mental examination.
(
Carpenter
, supra, 141 Cal.App.4th at 271.)
The Court stated that [w]
hile there is no express statutory authority for Carpenter's position, neither is there statutory authority precluding a trial court, in its discretion, from ordering the disclosure of the written test questions and answers.
(
Id.
)
The Court discussed whether copyright protections and ethical issues barred production of the test questions and answers.
With regard to copyright protection, the Court acknowledged that components of the MMPI test have been held protected by copyright law.
(
Id.
at 272.)
Based on the evidence provided, the Court found the evidence was insufficient to support a finding that providing a copy of the test would be a copyright infringement.
(
Id.
at 273.)
The publisher of the MMPI tests is Pearson, Inc. and the publisher of the WAIS tests, CVLT-II, and the Ravens Standard Progressive Matrices is Harcourt Assessment, Inc.
(
Id.
)
The Court found that Pearson and Harcourt both suggested satisfactory means by which the test can be provided after a mental examination, whereby the
test questions and answers may be given to plaintiff's counsel or a designated psychologist, subject to a protective order strictly limiting the use and further disclosure of the material, and providing for other safeguards against access that would compromise the integrity and validity of the tests.
(
Id.
at 274.)
Next, the Court discussed the examiners ethical and professional duties.
(
Id.
at 275.)
Under the Standards for Educational and Psychological Testing, examiners are responsible for protecting the security of test materials and psychologists have an obligation not to reproduce copyrighted materials (i.e., test items, ancillary forms, scoring templates, conversion tables of raw scores, and tables of norms) for routine test use without consent of the copyright holder.
(
Id.
)
The Court of Appeal remanded this latter issue to the trial court.
In
Roe v. Superior Court
(2015) 243 Cal.App.4th 138
, the plaintiff sought copies of the written questions and her responses from her mental examination.
In the trial court proceedings, the defendant argued that the examiner objected to the production of testing materials because they were subject to copyright law and defendant sought a protective order in the event the trial court ordered disclosure of the materials.
(
Roe
, supra, 243 Cal.App.4th at 146.)
The trial court ordered the doctor to comply with the statutory language of CCP § 2032.610, stated that the parties should wait and see how the examiner would comply, and told the parties to bring a subsequent motion if they believed she failed to comply with section 2032.610; the order did not mention copyright law.
(
Id.
at 147.)
Plaintiff argued that section 2032.610 implied the production of written testing materials and her answers by analogizing the section to Penal Code, § 1054.3(a)(1), which provides for the results of physical or mental examinations, which defendant intends to offer in evidence at trial. (
Id.
)
However, the Court held that there was no legislative history supporting any finding that this would include raw data.
(
Id.
)
The Court of Appeal found that plaintiffs undeveloped analyses that results of all tests made as stated in CCP § 2032.610 required defendants to deliver the written testing materials and plaintiffs raw answers.
(
Id.
at 149.)
In
Randys Trucking
, the trial court had granted the defendants motion to compel the mental examination of plaintiff and ordered defendants neuropsychologist to transfer raw data and an audio recording of the examination to plaintiffs counsel subject to a protective order.
(
Randys Trucking
, supra, 91 Cal.App.5th at 824.)
The Court of Appeal acknowledged that while there was no statutory authority precluding a trial court from ordering the disclosure of test materials or data when ordering a mental IME, there was also not authority precluding a trial court from exercising its discretion to bar the disclosure of the written test questions and answers.
(
Id.
at 834 [
citing
Carpenter
].)
While
Carpenter
did not decide whether the examiner's ethical and professional obligations precluded disclosing the test questions and the examinee's answers to the examinee, the appellate court recognized the trial court has discretion to order the disclosure of such materials even if no statute authorizes itand this discretion was based on the trial courts broad discretion in discovery matters.
(
Id.
at 835.)
The Court of Appeal discussed both
Carpenter
and
Roe
and found:
At best,
Roe
stands for the proposition that a trial court is not
required
to order the production of test materials or test data under section 2032.610. Under
Carpenter
, however, given the trial court's broad discretion in discovery matters, it retains the discretion to order the production of such materials.
Moreover, although not developed by either party, since section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording.
Where, as here, the trial court ordered the examiner to record the examination, the trial court had discretion to order the examiner to provide a copy to the examinee. Therefore, we conclude the trial court here had the discretion to order the production of the raw data and audio recording, as stated in its order.
(
Id.
at 837.)
The Court of Appeal considered the doctors concerns about producing raw data, but noted that the doctor had not explained why a protective order would not ameliorate those dangers.
(
Id.
)
The Court weighed this against plaintiffs right to take discovery and cross-examine defendants expert witnesses and determined that [w]ithout the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the
neuropsychologist's opinion.
(
Id.
at 838.)
Standards 9.04 and 9.11 of the APA Ethical Standards state:
9.04 RELEASE OF TEST DATA
(a) The term test
data
refers to raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination. Those portions of test materials that include client/patient responses are included in the definition of
test data
. Pursuant to a client/patient release, psychologists provide test data to the client/patient or other persons identified in the release. Psychologists may refrain from releasing test data to protect a client/patient or others from substantial harm or misuse or misrepresentation of the data or the test, recognizing that in many instances release of confidential information under these circumstances is regulated by law. (See also Standard 9.11, "Maintaining Test Security.")
(b) In the absence of a client/patient release, psychologists provide test data only as required by law or court order.
9.11 MAINTAINING TEST SECURITY
The term
test materials
refers to manuals, instruments, protocols, and test questions or stimuli and does not include
test data
as defined in Standard 9.04, Release of Test Data. Psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations, and in a manner that permits adherence to this Ethics Code.
(APA Ethical Standards, Standards 9.04 and 9.11.)
As summarized by the Court in
Randys Trucking
:
Standard 9.04 of the APA Ethical Standards provides that a patient may authorize the release of raw test data to the patient or other persons identified in the release, and Standard 9.11 of the APA Ethical Standards only requires that psychologists make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law and contractual obligations.
(
Randys Trucking
, supra, 91 Cal.App.5th at 827.)
Based on
Carpenter, Roe
, and
Randys Trucking
, the Court declines to grant the motion outright, and thus it will not order the production of the raw data to Plaintiffs counsel without a protective order.
The motion will be granted subject to the parties entering into a protective order.
As indicated by
Carpenter
, the parties to this litigation are not the copyright holders of the administered tests.
Rather, the copyright holders are the publishers of the tests themselves.
According to
Carpenter
, every effort should be made to restrict access to the materials and testimony regarding the materials to the most limited audience possible, and preferably only to those individuals who are professionally qualified to use and interpret the tests; restrict copying of the test materials; restrict use of the test materials to only to that required for the resolution of the lawsuit; require prompt return and destruction of any copies made of the material at the conclusion of the proceedings, and sealing the record to the extent any portion of the materials are disclosed in pleadings, testimony, exhibit, or any other documents available for public inspection.
(See
Carpenter
, supra, 141 Cal.App.4th at 274.)
Here, entering into a protective order to protect against the public dissemination of the information should sufficiently guard against any copyright concerns.
In her declaration, Dr. Thames states that psychologists do not release raw test data forms, audio recordings of testing, or narrative reports and score summaries to non-psychologists and that she would be willing to exchange raw data to Plaintiffs psychological expert only, who is bound by the same ethical and legal duties as her.
(Thames Decl., ¶7.)
Dr. Thames expresses her concerns that the maintenance of test security will be compromised and would negatively affect the scientific value of psychological evaluations if they are disseminated.
(
Id.
, ¶¶9-10.)
She also opines that Plaintiffs counsel do not need raw data to cross-examine a psychological expert and that a protective order would not afford sufficient protection as counsel could later use the information learned in this case to coach current and future clients.
(
Id.
, ¶¶13-14.)
Dr. Thames states that attorneys lack the professional training and experience to evaluate raw testing and audio recording data and thus she will not agree to releasing raw test data or audio recording of Plaintiff.
(
Id.
, ¶¶18-19.)
Dr. Thames states that if the Court is inclined to order that raw testing and audio recording be transmitted to Plaintiffs counsel, she will recuse herself from the case.
(
Id.
, ¶20.)
Defendants argue that they will be prejudiced if Dr. Thames is forced to recuse herself, as they would not have an expert prior to the preferentially set September 16, 2024 trial date.
(Reply at p.2.)
As discussed above, trial courts have discretion to allow the production of raw test data and audio recordings of mental IMEs.
While Dr. Thames has particular concerns about test security, the Court finds that a protective order will adequately protect against such concerns.
Further, the
Randy Trucking
court recognized Dr. Thames similar concerns that counsel cannot evaluate test materials: W
hile defendants assert plaintiffs' attorneys could not interpret the test materials, they would not necessarily be required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination.
(
Id.
at 838.)
Thus, the Court will grant the motion such that the data should be produced subject to a protective order.
The protective order shall include the following terms:
(1)
Confidential test materials shall be released only to professionally qualified individuals who are able to obtain, use, and interpret them, as well as counsel in this matter
for the purposes of cross-examination of Defendants retained experts
.
(2)
The parties and counsel are prohibited from making copies of proprietary test materials in order to protect the copyright holders rights in the material.
(3)
Copyrighted test materials shall not be made public or distributed to any other persons, other than qualified experts.
(4)
The record shall be sealed to the extent any portion of the test materials are disclosed in pleadings,
testimony, exhibit, or any other documents available for public inspection.
(5)
Any copy of the material shall be promptly returned to Defendants and destroyed at the conclusion of the proceedings.
The Court finds that entering into a protective order and sealing documents will prevent the unlawful disclosure of test materials and protect Dr. Thames (or any other retained defense examiner) from engaging in any unethical practice.
Defendants request sanctions in the amount of $2,700 against Plaintiff and his counsel of record.
In light of the ruling on the motion, the Court declines to award sanctions on this motion.
CONCLUSION AND ORDER
Defendants motion to compel Plaintiff Emerson Mikasa to attend a mental examination conducted by Dr. April Thames on July 22, 2024 at 10:00 a.m. or on a mutually agreeable date and time is granted, subject to the parties entering a protective order.
Defendants mental examiner shall be ordered to produce
all test materials, the raw data of Plaintiffs administered tests, and documents, medical records, and audio recordings relied upon by the mental examiner in reaching his conclusions in the report subject to a protective order.
The protective order shall be entered as follows:
(1)
Confidential test materials shall be released only to professionally qualified individuals who are able to obtain, use, and interpret them, as well as counsel in this matter for the purposes of cross-examination of Defendants retained experts.
(2)
The parties and counsel are prohibited from making copies of proprietary test materials in order to protect the copyright holders rights in the material.
(3)
Copyrighted test materials shall not be made public or distributed to any other persons, other than qualified experts.
(4)
The record shall be sealed to the extent any portion of the test materials are disclosed in pleadings,
testimony, exhibit, or any other documents available for public inspection.
(5)
Any copy of the material shall be promptly returned to Defendant and destroyed at the conclusion of the proceedings.
No sanctions will be awarded.
Defendant shall give notice of this order.
DATED:
July 19, 2024
___________________________
John J. Kralik
Judge of the Superior Court
[1]
Paragraph 13 alleges that the incident occurred on August 18, 2023.
However, different parts of the complaint alleges that the incident occurred on August 18, 2022.
The Court will consider the 2022 date as the date of injury as the complaint was filed on August 10, 2023 (which was before the alleged August 18, 2023 incident date).
Ruling
Adkison, et al. vs. Maughs, et al.
Jul 16, 2024 |
22CV-0201172
ADKISON, ET AL. VS. MAUGHS, ET AL.
Case Number: 22CV-0201172
Tentative Ruling on Order to Show Cause Re: Dismissal: An Order to Show Cause Re: Dismissal (“OSC”)
issued on May 29, 2024 to Plaintiffs Angela Adkison and Elizabeth Boren and counsel J&M Legal Group for
failure to prosecute the action and for their failure to timely enter default. No response has been filed to the OSC.
Plaintiffs have now obtained the defaults of both Defendants. Plaintiffs have also requested a default Court
Judgment but failed to file a supporting declaration pursuant to CCP § 585(d). Plaintiffs request to enter a default
Court Judgment is DENIED. Based on the efforts of Plaintiff, the Court finds that dismissal of this matter would
not be in the interests of justice. The OSC is DISCHARGED. The Court continues today’s review hearing set
for 9:00 a.m. to Monday, October 14, 2024, at 9:00 a.m. in Department 63 for review regarding status of
default judgment. The Court will issue an Order to Show Cause Re: Monetary Sanctions at the continued hearing
date if Plaintiffs have not obtained a default judgment by the continued hearing date. The clerk is instructed to
mail a copy of today’s minute order to Plaintiffs. No appearance is necessary on today’s calendar.
Ruling
CYNTHIA DURAZO ET AL VS. D.R. PATEL INVESTMENTS, LLC, ET AL
Jul 17, 2024 |
CGC22602616
Matter on calendar for Wednesday, July 17, 2024, Line 2, PLAINTIFF CYNTHIA DURAZO, DANIEL MORENO's Motion To Compel Eco Terra Pest Managements Production Of Business Records And Notice Of Hearing. The matter is continued to August 1, 2024 on the court's motion. =(302/JPT).
Ruling
GERALD WACHEL, ET AL. VS TY LABBE, ET AL.
Jul 17, 2024 |
21STCV47525
Case Number:
21STCV47525
Hearing Date:
July 17, 2024
Dept:
3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT
GERALD WACHEL, et al.
,
Plaintiff(s),
vs.
TY LABBE, et al.
,
Defendant(s).
)
)
)
)
)
)
)
)
)
)
)
CASE NO.:
21STCV47525
[TENTATIVE] ORDER RE:
DEFENDANTS MOTION TO COMPEL PLAINTIFF GERALD WACHELS RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS SET THREE
Dept. 3
8:30 a.m.
July 17
, 2024
)
On March 20, 2024, the Court continued trial from May 20, 2024, to January 27, 2025, pursuant to an ex parte application filed by defendants Ty Labbe and Liza Gonzalez (collectively, Defendants). The discovery and motion cut-off dates did not track the new trial date, but on June 5, 2024, the parties stipulated to have the instant motion heard on July 17, 2024.
This motion was filed on April 12, 2024. Defendants move for an order compelling plaintiff Gerald Wachels (Plaintiff) to serve verified responses to Request for Production of Documents Set Three without objections within 7 days of the hearing after Plaintiff served unverified hybrid responses containing statements of compliance and objections on April 10, 2024.
The objections are preserved because the portion of the responses containing objections did not need to be verified and were timely filed. (
Food 4 Less Supermarkets, Inc. v. Superior Court
(1995) 40 Cal.App.4th 651, 656.) Furthermore, on July 12, 2024, Plaintiffs counsel, Sacha V. Emanuel, filed a declaration attaching a verification by Plaintiff that was served the same day.
Accordingly, Defendants motion is DENIED as moot.
Moving party to give notice.
Dated this
17th
day of
July
, 2024
William A. Crowfoot
Judge of the Superior Court
Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Document
Lorpue Sampson v. Manuel De Jesus Erroa M.D., Judy Ruiz R.N., Ma Luz Tamoy Locquiao R.N., Muhammed Adagbada R.N., Violetta Vallejo Chunsim L.P.N., Davita Inc. A/K/A Davita Healthcare Partners Inc. D/B/A South Bronx Dialysis Center, Morgan Chen M.D., Thomas Parry M.D., New York City Health And Hospitals Corporaton, Lincoln Medical And Mental Health Center, Beth Israel Medical Center,
Jun 25, 2014 |
George J. Silver
|
Medical Malpractice |
Medical Malpractice |
22930/2014E
Preview
FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 E= 21Y FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 1 1 2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX 3 -----------------------------------------x WELLINGTON DE LA CRUZ, 4 Index No. Plaintiff, 811119/2021E 5 - vs - 6 1150 REALTY LLC, 7 Defendant. 8 -----------------------------------------x 9 10 11 12 13 14 15 16 17 18 VIDEOCONFERENCE DEPOSITION of 19 HUGO LEONEL LOPEZ LINARES, a Nonparty Witness 20 herein, taken by the Defendant, pursuant to 21 Subpoena, held remotely via Zoom, on Friday, 22 June 2, 2023, commencing at 10:05 A.M., before 23 Jason Wagner, a Shorthand Reporter and Notary 24 Public within and for the State of New York. 25 Wagner Reporting, Inc. (516)8404074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 2 2 A P P E A R A N C E S: 3 BURDZY RYBAK LAW 4 Attorneys for Plaintiff 300 Cadman Plaza West 5 12th Floor Brooklyn, New York 11201 6 BY: RAPHAEL RYBAK, ESQ. 7 (Appearing Remotely) 8 9 SOKOLOFF STERN LLP Attorneys for Defendant 10 VILLAGE OF HEMPSTEAD HOUSING AUTHORITY 179 Westbury Avenue 11 Carle Place, New York 11514 12 BY: STUART DIAMOND, ESQ., of Counsel (Appearing Remotely) 13 14 ALSO PRESENT: 15 JOSE GONZALEZ, Spanish Interpreter 16 Languages R Us 17 18 19 20 21 22 23 24 25 Wagner Reporting, Inc. (516) 840-4074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 3 1 Hugo Leonel Lopez Linares 2 JOSE GONZALEZ, called as 3 the official interpreter in this matter, was 4 duly sworn by Jason Wagner, a Notary Public 5 of the State of New York, to translate 6 accurately and faithfully the questions 7 propounded to the witness from English into 8 Spanish and the answers given by the witness 9 from Spanish into English. 10 11 HUGO LEONEL LOPEZ LINARES, having 12 been first duly sworn by Jason Wagner, a 13 Notary Public within and for the State of 14 New York, was examined and testified as 15 follows: 16 EXAMINATION 17 BY MR. DIAMOND: 18 Q State your name and address for the 19 record, please. 20 A Hugo Leonel Lopez Linares, 21 1150 Anderson Avenue, Apartment A54, Bronx, New 22 York 10452. 23 Q Good morning, Mr. Lopez. My name 24 is Stuart Diamond. I'm an attorney with 25 Sokoloff Stern. My office represents Wagner Reporting, Inc. (516)840-4074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 4 1 Hugo Leonel Lopez Linares 2 1150 Realty LLC in this case. 3 A Okay. 4 Q I'm going to be asking you some 5 questions about a claim brought against 6 1150 Realty LLC by Wellington De La Cruz. 7 A Agreed. 8 Q If I ask you any questions that you 9 don't understand, please tell me, and I will 10 rephrase the question. Okay? 11 A Correct. 12 Q Also, if during the course of your 13 deposition you wish to go back to change an 14 answer that you gave previously, just tell me, 15 and I will give you the opportunity to do so. 16 How long have you lived at 17 1150 Anderson Avenue in the Bronx? 18 A Specifically since 2006. Let me 19 see how long it is. 20 Q Is it since 2006? 21 A 2006, yes. 22 Q That's fine. 23 Have you lived in apartment A54 24 that entire time? 25 A Correct. Wagner Reporting, Inc. (516)840-4074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 5 1 Hugo Leonel Lopez Linares 2 Q Is that an apartment house? 3 A Yes, an apartment building. 4 Q On what floor of that building is 5 apartment A54? 6 A Fifth floor. 7 Q Do you currently live at that 8 address with anyone else? 9 A Karina. 10 Q Anyone else? 11 A And the owner of the apartment, 12 Maria Sued. Pichardo Sued. 13 Q How do you spell Sued? 14 A S-U-E-D. 15 Q Were you living there in 16 apartment 54 at 1150 Anderson Avenue on May 6th, 17 2021? 18 A Yes. 19 Q Who else lived in that apartment 20 back in May 2021 besides you? 21 A It was Karina Maria Sued and 22 Wellington De La Cruz. 23 Q When you moved into that apartment 24 in 2006 was there anyone already living there? 25 A Just Maria. Wagner Reporting, Inc. (516)8404074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 6 1 Hugo Leonel Lopez Linares 2 Q When did Karina move into that 3 apartment? 4 A She's been living there for about 5 eight years. 6 Q When did Mr. De La Cruz move into 7 that apartment? 8 A I think he had been there for a 9 year I think from about 2018. 10 Q How many bedrooms were there in 11 that apartment in May 2021? 12 A Three. 13 Q Back in May of 2021 did 14 Mr. De La Cruz have a bedroom of his own in that 15 apartment? 16 A Yes. 17 Q Did you have a bedroom? 18 A As well. 19 Q Did you share that room with anyone 20 else? 21 A Yes, because Maria Sued, she's my 22 girlfriend. 23 Q Back in May 2021 did Karina reside 24 in the third bedroom? 25 A Yes. Wagner Reporting, Inc. (516)8404074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 7 1 Hugo Leonel Lopez Linares 2 Q With anyone else? 3 A Her small daughter. 4 Q Did Mr. De La Cruz have a bedroom 5 to himself back in May of 2021? 6 A Yes. 7 Q Are you aware that Mr. De La Cruz 8 has made a claim of having been injured in 9 apartment A54 back in May 2021? 10 A We found out when we received the 11 letters and we got the phone calls from his 12 attorney. 13 Q Whose attorney? 14 A Mr. De La Cruz's attorney. 15 Q Do you recall when you received the 16 letters and phene calls from his attorney? 17 A I don't remember exactly. 18 MR. RYBAK: I just want to note for 19 the record that my office never contacted 20 the defendant or Mr. Lopez directly. 21 THE WITNESS: Can I say something? 22 MR. DIAMOND: Yes. 23 THE WITNESS: They did call me. 24 Q Do you recall approximately when 25 that was? Wagner Reporting, Inc. (516)840-4074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 8 1 Hugo Leonel Lopez Linares 2 A I wouldn't be able to specify the 3 date nor the time because at the moment I really 4 don't remember. 5 Q The person who called you, was that 6 a man or a woman? 7 A I spoke to a man and a female 8 interpreter. 9 Q Are you aware that Mr. De La Cruz 10 is claiming that he was injured in that 11 apartment when pieces of bathroom ceiling came 12 down on him? 13 A We found out because we asked him 14 at the beginning, he denied it, and at the end 15 he ended up saying yes. 16 Q Was there one bathroom in that 17 apartment back in May 2021 or more than one 18 bathroom? 19 A Just one bathroom. 20 Q During the time that you resided in 21 that apartment, has there ever been any instance 22 when any part of the ceiling in that bathroom 23 fell down from the ceiling? 24 A That was the first time it 25 happened. Wagner Reporting, Inc. (516)8404L074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 9 1 Hugo Leonel Lopez Linares 2 Q Did that happen in May of 2021? 3 A Yes. 4 Q Do you recall the specific date? 5 A I don't remember the specific date. 6 Q Were you in your apartment when 7 that happened in May of 2021? 8 A Yes. 9 Q Were you in a particular part of 10 the apartment at the moment that the pieces of 11 the ceiling came down? 12 A In my room. 13 Q Was anyone in your room with you at 14 the time that the pieces of the ceiling came 15 down? 16 A Karina and her daughter were in the 17 other room. 18 Q Which room? 19 A Their room. 20 Q Their bedroom? 21 A Yes. 22 Q Besides you and Karina and Karina's 23 daughter, was there anyone else in the apartment 24 at the time that the pieces of the ceiling came 25 down in the bathroom in May of 2021? Wagner Reporting, Inc. (516)8404074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 10 1 Hugo Leonel Lopez Linares 2 A No one else. 3 Q Do you know where Maria was at that 4 time? 5 A I don't know exactly, but she had 6 gone out due to personal issues. I don't know 7 exactly where she was. 8 Q Do you know where Mr. De La Cruz 9 was at the time that the pieces of the ceiling 10 came down in the bathroom? 11 A I have no idea where he was. 12 Q How did you learn that pieces of 13 the ceiling had come down in the bathroom? 14 A Because I heard it and I came out 15 to see at the moment they fell. 16 Q What did you hear? 17 A I heard a boom. 18 Q After you heard the boom did you 19 walk from your bedroom to the bathroom in that 20 apartment? 21 A Correct. 22 Q How much time passed between when 23 you heard the boom and when you reached the 24 bathroom? 25 A I would say less than a minute Wagner Reporting, Inc. (516)8404074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 11 1 Hugo Leonel Lopez Linares 2 because it's not far. 3 Q Do you recall at approximately what 4 time this occurred when you heard the boom from 5 the bathroom? 6 A It was like 11, 11:30. 7 Q A.M. or P.M.? 8 A P.M. 9 Q What did you see when you arrived 10 in the bathroom? 11 A I only saw debris. Nothing else. 12 Q Did you look up at the ceiling in 13 the bathroom? 14 A Yes. 15 Q When you looked up at the ceiling 16 did you see anything unusual? 17 A No. Just the hole where it had 18 become loose. 19 MR. DIAMOND: He said hole, 20 correct? 21 THE WITNESS: Yes, the hole. 22 Q Was that a hole in the bathroom 23 ceiling? 24 A Yes, when it fell. 25 Q The debris that you mentioned, was Wagner Reporting, Inc. (516) 840-4074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 12 1 Hugo Leonel Lopez Linares 2 it mostly on the floor of the bathroom? 3 A Parts in the bathtub, parts on the 4 floor. 5 Q As best you could tell, did the 6 debris that you saw in the bathtub and on the 7 floor come from where you saw that hole in the 8 ceiling? 9 A Yes, correct. 10 Q Was there anyone in the bathroom 11 when you arrived less than a minute after 12 hearing that boom? 13 A Nobody else. 14 Q At any time after you heard that 15 boom and went to the bathroom, did 16 Mr. De La Cruz arrive at home in the apartment? 17 A At no point. I saw him like three 18 days later. 19 Q Was that the first time you saw him 20 in the apartment after you heard the boom from 21 the bathroom? 22 A Correct. 23 Q Have you ever had any discussion 24 with Mr. De La Cruz about the pieces of the 25 ceiling that came down from the bathroom ceiling Wagner Reporting, Inc. (516)840-4074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 13 1 Hugo Leonel Lopez Linares 2 in May of 2021? 3 A We spoke to him because clearly he 4 is a liar about something that doesn't exist. him," 5 Q When you say, "We spoke to 6 are you referring to you and someone else? 7 A Yes. Maria Sued. 8 Q How many times in total have you 9 spoken to Mr. De La Cruz about the pieces of the 10 bathroom ceiling coming down? 11 A I think it was twice. 12 Q When was the first time? 13 A After we found out that he had 14 started a lawsuit. 15 Q Is that after you received the 16 letters and the phone calls that you mentioned 17 earlier? 18 A Correct. 19 Q Where did that first conversation 20 take place? 21 A On the phone. 22 Q Were you on that call? 23 A Maria was talking to him and I was 24 listening. 25 Q Were you with Maria during that Wagner Reporting, Inc. (516)840-4074 FILED: BRONX COUNTY CLERK 11/13/2023 03:30 PM INDEX NO. 811119/2021E NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 11/13/2023 14 1 Hugo Leonel Lopez Linares 2 call? 3 A Yes. 4 Q Were you listening in on another 5 phone, or were you standing next to Maria 6 overhearing her end of the conversation, or 7 something else? 8 A Next to Maria. 9 Q Were you able to hear what Maria 10 was saying to Mr. De La Cruz? 11 A Yes. 12 Q Were you able to hear what 13 Mr. De La Cruz was saying on that phone call? 14 A Yes. 15 Q Was that through the telephone 16 receiver, you were able to hear his end of the 17 conversation through the phone? 18 A Yes, because at that moment they 19 were sending audio messages through WhatsApp. 20 Q Was that on Maria's phone? 21 A Yes. 22 Q Was the speaker on on Maria's phone 23 during this conversation? 24 A