Preview
FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
_____________________________----___-_______________________Ç
DASSA ORTHOPEDIC MEDICAL SERVICES, P.C.
INDEX NO. 801006/2023E
and GABRIEL LOUIS DASSA, M.D.,
AFFIRMATION IN
Plaintiffs, OPPOSITION TO
DEFENDANTS'
MOTION TO
-against-
DISMISS
SKAZKA LLC, SERGEY DENEVICH, YELENA
SHUBINA M.D., ELITE ORTHOPEDICS PARTNERS
LLC, ELITE ORTHOPEDICS AND REHABILITATION
P.A., STUART IRA SPRINGER M.D., GRIGORY
GOLDBERG M.D., EDWARD FELICIANO M.D.,
LI SUN, D.O., KISHORE KONDURI, ARTHUR
KOSTANIAN and ALEXANDER URBANOVICH,
Defendants.
_______________________________,-----------___________________________Ç
WALTER F. CIACCI, ESQ., an attorney duly admitted to practice law in the State of New York
affinns the truth of the following under the penalty of perjury:
1. Your affirmant, fully familiar with the facts and circumstances submits this affirmation in
in Opposition to Defendant YELENA SHUBINA M.D., STUART IRA SPRINGER M.D.,
D.O.s'
GRIGORY GOLDBERG M.D., EDWARD FELICIANO M.D., and LI SUN, (herein
"Moving Defendants) Motion to Dismiss.
Defendants'
2. For the reasons discussed below, The Motion to Dismiss should be denied in
Plaintiffs'
its entirety, and alternatively, Cross-Motion for Leave to File an Amended Complaint
and to Amend the Caption should be granted.
BACKGROUND
3. On January 19, 2023, Plaintiffs filed their Summons & Complaint, based upon, Breach of
Contract, Tortious Interference with Contractual Relations, Breach of Fiduciary Duty, Unjust
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Enrichment, Accounting, and Constructive Trust. See Plaintiff's Exhibit "1", Summons &
Complaint.
4. The sworn affidavit of Plaintiff Dr. Gabriel L. Dassa for additional background facts not
Plaintiffs'
alleged in the complaint is annexed hereto as Exhibit "2".
5. The facts and additional allegations contained within Dr. Dassa's affidavit have been
Plaintiffs'
incorporated into Proposed Amended Complaint, which is annexed hereto as
Plaintiffs'
Exhibit "3".
Plaintiffs' "4"
6. Annexed hereto as Exhibit are printouts from Elite Orthopedics and
Rehabilitation's website.
Plaintiffs' "S"
7. Annexed hereto as Exhibit is the contract between Plaintiffs and Defendant
Skazka LLC.
A. The Complaint
8. Specifically, Plaintiffs allege that on November 1, 2011, Defendant Skazka (through its
principal, Defendant Sergey Denevich), entered into a license and administrative services
agreement with Plaintiffs, whereby Defendants Skazka and Denevich would provide necessary
equipment, supplies, and non-professional personnel services to the Plaintiffs so that the
Plaintiffs could provide medical orthopedic and related services at various locations covered by
Plaintiffs' "1" "16"
the agreement. Exhibit at paragraphs and "17".
9. In 2013, this agreement was verbally extended to include a facility in Poughkeepsie, New
York. Id. at paragraph "19".
10. In 2015, this agreement was again verbally extended to include a facility in Newburgh,
New York. I_d. at paragraph "20".
11. Pursuant to the Agreement, the role of Skazka was strictly management and Skazka had
absolutely no right or responsibility with respect to medical care and treatment of patients, nor
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did Skazka have any right or responsibility involving the patients of Dassa Orthopedics. M. at
paragraph "18".
12. Pursuant to the agreement, the Plaintiffs retained all authority to direct all of the medical,
professional, clinical, and ethical aspects of the practice. Ld. at paragraph "33".
13. Defendant Skazka and Denevich did not have the authority to exercise any control over
nor interfere with the physician-patient relationships of the Plaintiffs which was to be maintained
strictly between the physicians of the Plaintiffs and their patients. Defendants Skazka and
Denevich had no authority, directly or indirectly, to perform or supervise and could not perform
or supervise any medical function. Further, Defendants Skazka and Denevich were not
authorized to engage in any activity which may be construed or deemed under any existing or
future law or regulation, to constitute the practice of medicine, the ownership or operation of a
medical practice, or the operation of a health care facility. Ld.
14. Plaintiffs alleged that Defendants Skazka and Denevich breached this contract by
engaging in the milawful practice of medicine by exercising control over and interfering with the
physician-patient relationships of Dassa Orthopedic and Dr. Gabriel Louis Dassa by poaching,
steering and referring Dr. Dassa's own patients, without Dassa's consent or knowledge, to the
Moving Defendants. Id. at paragraph 34.
15. Plaintiffs further alleged that the Moving Defendants, who are also medical professionals,
intentionally induced Defendant Skazka and Denevich to steer the Plaintiff's patients to them, for
their own personal and fmancial benefit. id. at paragraph "34".
16. Defendant Shubina is the principal of the Elite Orthopedics entities and the sister of
Plaintiffs' "3"
Defendant Sergey Denevech. Exhibit at paragraph 13.
"67" "69"
17. Specifically, paragraphs through of the Complaint state,
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67. "There was a contract in the form of a written agreement between Dassa
Orthopedic Medical Services, P.C. and Skazka made as of November 1, 2011.
The Agreement was verbally made applicable upon the same terms to medical
offices located in Newburgh NY (2015) and in Poughkeepsie NY (2013).
Defendants Sergey Denevich, Yelena Shubina, M.D., Elite Orthopedics Partners,
LLC, Elite Orthopedics and Rehabilitation, P.A., Stuart Ira Springer, M.D.,
Grigory Goldberg, M.D., Edward Feliciano, M.D., Li Sun, D.O., Kishore
Konduri, Arthur Kostanian and Alexander Urbanovich, had knowledge of the
agreement and the applicable locations covered by the agreement.
"67"
68. Specifically, the defendants enumerated in paragraph above knew the
scope of the agreement, the type of services to be provided by Dassa Orthopedic
Medical Services, P.C. pursuant to the agreement and that Dr. Gabriel Louis
Dassa and professionals under his employ and/or control were specifically
authorized to be the sole providers of orthopedic medical services at the locations
covered by the agreement.
"67"
69. The defendants enumerated in paragraph above intentionally induced
patients to breach the agreement and/or otherwise rendered performance of the
agreement between Skazka and the plaintiffs impossible due to the paragraph
"67" defendants'
willful and deliberate poaching of Dr. Dassa's patients for their
own financial benefit without Dr. Dassa's knowledge or consent and while the
Agreement was in effect, and by steering those patients and treating those patients
to various entities in which the enumerated defendants had a financial interest
and/or for the direct financial benefit of the paragraph "67"defendants,
70. As a result, plaintiffs have sustained monetary damages in an amount to be
determined at trial but in no event less than $1,000,000.00.
Exhibit "1". at paragraphs 67 through 70.
18. The specific cause of action against the Moving Defendants, i.e., Yelena Shubina, M.D.,
Stuart Ira Springer, M.D., Grigory Goldberg, M.D., Edward Feliciano, M.D., and Li Sun, D.O.,
is for Tortious Interference with Contractual Relations.
OPPOSITION TO MOTION TO DISMISS
19. A motion to dismiss based on documentary evidence pursuant to CPLR §3211(a)(1) may
be appropriately granted only where the documentary evidence utterly refutes the plaintiff s
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factual allegations, conclusively establishing a defense as a matter of law. Rabos v. R&R Bagels
& Bakery, Inc., 100 AD3d 849, 849 (2nd Dep't 2012).
20. In order to be considered documentary evidence within the meaning of CPLR
§3211(a)(1), the evidence must be unambiguous and of undisputed authenticity, that is, it must
be "essentially unassailable. Id.
21. On a pre-answer motion to dismiss pursuant to CPLR §3211, the pleading is to be
afforded a liberal construction and the plaintiffs allegations are accepted as true and accorded the
benefit of every possible favorable inference. Granada Condominium III Assn. v. Palomino, 78
AD3d 996, 996 (2010). See Anderson v. Armentano, 139 AD3d 769, 770 (2nd Dep't 2016).
CPLR §3211(a)(1)
Defendants' Plaintiffs'
22. Moving motion is for dismissal of complaint based upon CPLR
§3211(a)(1).
23. Dismissal under CPLR §3211(a)(1) requires the moving defendants to establish a defense
founded upon documentary evidence.
24. Motions to dismiss on the ground that the action is barred by documentary evidence may
be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual
allegations, conclusively establishing a defense as a matter of law. Goshen v. Mut. Life Ins. Co.,
98 N.Y.2d 314, 326 (2002).
25. On a motion to dismiss pursuant to CPLR §3211(a)(1), the court is obliged "to accept the
complaints factual allegations as true, according to plaintiff the benefit of every possible
favorable inference, and determining only whether the facts as alleged fit within any cognizable
legal theory". Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d
267, 270-271 (1st Dept 2004).
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26. Moreover, dismissal pursuant to CPLR §3211(a)(1) is warranted only if the documentaly
evidence submitted "utterly refutes plaintiffs factual allegations". Goshen v. Mutual Life Ins. Co.
of N.Y., 98 NY2d 314, 326, (2002); see Greenapple v. Capital One, N.A., 92 AD3d 548, 550,
(1st Dept 2012), and "conclusively establishes a defense to the asserted claims as a matter of
law". Weil, Gotshal & Manges, LLP, 10 AD3d at 270-271).
27. If the documentary proof disproves an essential allegation of the complaint, dismissal
pursuant to CPLR §3211(a)(1) is warranted even if the allegations, standing alone, could
withstand a motion to dismiss for failure to state a cause of action. See McGuire v. Sterling
Doubleday Enters., L.P., 19 AD3d 660, 661-662, (1st Dept 2005).
28. Moving Defendants point to the Agreement, provided by Plaintiff as an exhibit to their
original Complaint, asserting that the contract does not involve an agreement between the
Plaintiffs and their patients and does not involve a contract related to patient care and referrals.
Defendants'
29. This portion of the Moving argument does not address that Plaintiffs allege
the Moving Defendants involvement in the case is not about whether Plaintiffs had a contract
with their own patients, rather, the Complaint alleges that Moving Defendants induced
Plaintiffs' Plaintiffs'
Defendant Skazka to interfere with practice of medicine, by directing
Plaintiffs'
patients to the Moving Defendants, in direct violation of the agreement. See Exhibit
"5", page 3, section 4.2(a).
30. Defendant Skazka plainly agreed to have no authority, directly, or indirectly, to perform
or supervise. and will not perform or supervise any medical function. Id.
31. Plaintiffs allege Skazka breached the contract by steering and scheduling Dassa's patients
by diverting them to the Moving Defendants and even scheduling surgeries of Dassa's with the
Moving Defendants.
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Defendants'
32. The Moving involvement is the intentional and deliberate inducernent of
Skazka to breach the contract.
33. As such, the documentary evidence Moving Defendants rely upon and cite is wholly
insufficient for dismissal upon these grounds.
34. Therefore, this branch of the motion must be denied.
CPLR 3211(a)(7)
35. The test on a motion to dismiss for insufficiency of the pleadings is not whether the
plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege
whatever can be reasonably implied from its statements, a cause of action can be sustained. Jones
Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 A.D.2d 168, 176.
36. On a motion to dismiss a complaint pursuant to CPLR §3211(a)(7), all allegations in the
complaint are deemed to be true. Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414
(2001); Cron v. Hargro Fabrics, 91 NY2d 362, 366 (1998).
37. All reasonable inferences which can be drawn from the complaint and the allegations
therein stated shall be resolved in favor of the plaintiff. Cron at 366.
38. In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the
complaint. Id.
39. If an affidavit is submitted for that purpose, it shall be given its most favorable
intendment. bL
40. The court's role when analyzing the complaint in the context of a motion to dismiss,
pursuant to CPLR §3211(a)(7) is to determine whether the facts as alleged fit within any
cognizable legal theory. Sokoloff at 414.
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41. In fact, the law mandates that the court's inquiry be not limited solely to deciding whether
plaintiff has pled the cause of action intended, but instead, the court must determine whether the
plaintiff has pled any cognizable cause of action. Leon v. Martinez, 84 NY2d 83, 88 (1994)
42. The criterion is whether the proponent of the pleading has a cause of action, not whether
he has stated one. However, when evidentiary material in support of dismissal is considered the
criterion is whether the proponent of the pleading has a cause of action not whether he has stated
one. August Constr. Group v. Degroat, 2023 NYLJ LEXIS 1537; See Guggenheimer v.
Ginzburg, 43 NY2d 268, 275 (1977).
43. In order to establish a cause of action for tortious interference with his contractual
defendants'
relations plaintiff is required to allege: (1) the existence of a valid contract; (2)
defendants'
knowledge of that contract; (3) intentional procuring of the breach of that contract;
and (4) damages. See Click Model Mgt. v. Williams, 167 AD2d 279, 280 (1990).
44. Plaintiffs not only have a valid claim for tortious interference with contractual relations
against the moving defendant, but have also properly plead this cause of action.
45. Plaintiffs allege the existence of a contract - "There was a contract in the form of a
written agreement between Dassa Orthopedic Medical Services, P.C. and Skazka made as of
Plaintiffs' "1"
November 1, 2011. See Exhibit at paragraph "67".
46. This fact is not disputed.
47. Plaintiffs allege the defendants had knowledge of the contact - "Defendants
moving
Sergey Denevich, Yelena Shubina, M.D., Elite Orthopedics Partners, LLC, Elite Orthopedics
and Rehabilitation, P.A., Stuart Ira Springer, M.D., Grigory Goldberg, M.D., Edward
Feliciano, M.D., Li Sun, D.O., Kishore Konduri, Arthur Kostanian and Alexander Urbanovich,
had knowledge of the agreement and the applicable locations covered by the agreement.
Specifically, [these defendants] knew the scope of the agreement, the type of services to be
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provided by Dassa Orthopedic Medical Services, P.C. pursuant to the agreement and that
Dr. Gabriel Louis Dassa and professionals under his employ and/or control were specifically
authorized to be the sole providers of orthopedic medical services at the locations covered by the
agreement."
Id. at paragraphs 67 and 68. Emphasis added.
48. Plaintiffs alleged the moving defendants intentional procurement of Skazka's breach of
the contract - "[these induced patients to breach the agreement and/or
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REASONING
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Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Where the witness whose deposition is sought is not a party, a subpoena must be served to compel his or her attendance, testimony, or production of documents. (Code Civ. Proc., § 2020.010, subd. (a).) If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (Code Civ. Proc., § 2025.480, subds. (a)-(b).) Where the deposition subpoena requires a witness to appear for the taking of a deposition, the Court may make an order directing compliance with the subpoena. (Code Civ. Proc., § 1987.1, subd. (a).)
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Tentative Ruling
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CASE NO.:
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MOTION FOR SANCTIONS PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 128.5
MOVING PARTY
: Defendant La-Doris McClaney, Trustee of the La-Doris McClaney Family Trust
RESPONDING PARTY(S)
: Plaintiffs Junkers2Jewels, LLC and Matthew Pelanne.
CASE HISTORY
:
·
03/11/24: Complaint filed.
·
03/25/24: Cross-Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of contract. Plaintiffs allege that Defendants breached a purchase agreement for a parcel of real property by unilaterally cancelling escrow.
Defendant moves for sanctions against Plaintiffs and their counsel pursuant to Code of Civil Procedure section 128.5 for the filing of Plaintiffs Motion for Specific Performance.
TENTATIVE RULING:
Defendants Motion for Sanctions is DENIED.
DISCUSSION:
Defendant moves for sanctions against Plaintiffs and their counsel pursuant to Code of Civil Procedure section 128.5 for the filing of Plaintiffs Motion for Specific Performance.
Compliance with the Safe Harbor Provisions of Code of Civil Procedure §
128.5(f)(1)(B)
Defendant seeks sanctions under Code of Civil Procedure section 128.5. The safe-harbor provision of section 128.5 provides:
If the alleged action or tactic is the
making or opposing of a written motion
or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.
(Code Civ. Proc. § 128.5(f)(1)(B) (bold emphasis added).)
Defendants moving papers did not address the safe-harbor provision, and Plaintiffs object to the motion as improper for failure to comply with this requirement. In reply, Defendant argues that the safe harbor provision is not applicable in this instance because compliance with the 21-day requirement was not possible. Defendant principally relies on
Changsha Metro Group Co. Ltd. v. Peng Xufeng
(2020) 57 Cal.App.5th 1, in support of her position. In
Changsha
, the Court of Appeal confronted the issue of whether the safe harbor provision of section 128.5 applies to a request for attorneys fees based on the contention that a special motion to strike under Code of Civil Procedure section 425.16 is frivolous. (
Changsha, supra,
57 Cal.App.5th at 6-7.) The
Changsha
court attempted to reconcile the safe harbor provision with subdivisions (a) and (c) of section 128.5, which state that a party may seek attorneys fees under this section only after a court order awarding expenses for actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. (Code Civ. Proc. § 128.5 (a), (c), (f);
Changsha, supra,
57 Cal.App.5th at 7-11.) After reviewing the plain language and legislative history, the Court of Appeal concluded that it was not possible to reconcile all three subdivisions of the statute as written. (
Changsha, supra,
57 Cal. App.5th at 11-18.) The Court of Appeal found that it was not possible to reconcile the statute as written, and, upon reviewing the legislative history, determined that the intent of the Legislature was if one is attempting to obtain attorneys fees under section 128.5, then one should use the procedures of subdivision (f) (minus the prerequisite for an order under subdivision (a)) if at all possible. (
Id.
at 18.) Applying this construction to section 425.16, the Court of Appeal concluded that compliance with the safe harbor and separate motion requirements was not possible in the context of the strict filing and hearing deadlines for a special motion to strike under subdivision (f) of section 425.16. (
Changsha, supra,
57 Cal.App.5th at 19-21.)
Defendant analogizes this case to
Changsha
, asserting that compliance with the safe harbor provision was not possible because Plaintiffs set the Motion for Specific Performance to be heard 22 days after service of the motion. This analogy is not well-taken. In
Changsha
, the Court of Appeal reasoned that the safe harbor provision was not workable in the context of a special motion to strike because its enforcement would either require continuance of the motion to strike, which is contrary to the express purpose of section 425.16 or would require a party to seek an order shortening the safe-harbor period any time they sought to pursue sanctions. (
Changsha, supra,
57 Cal.App.5th at 19-21.) Here, however, the motion at issue was a regularly noticed motion pursuant to Code of Civil Procedure section 1005(b) which cited no specific authorizing provision and thus was not subject to any abbreviated briefing and hearing schedule. Moreover, Defendants approach essentially renders the safe-harbor provision a dead letter, since any party who seeks sanctions for a motion filed within the ordinary notice period could equally argue that it is not practical to provide a 21-day safe harbor to withdraw a motion within the 16 court days plus time for service allotted by section 1005. The Court declines to read
Changsha
s holding so broadly, and, indeed,
Changsha
expressly states that the safe harbor provision should be enforced if at all possible. (
Changsha, supra,
57 Cal.App.5th at 18.) The Court is therefore not persuaded that
Changsha
s exception to the safe harbor provision is applicable in the context of Plaintiffs motion.
Because Defendant freely concedes that she did not comply with the safe harbor requirements of Code of Civil Procedure section 128.5, the Court declines to award sanctions against Plaintiffs and their counsel for their Motion for Specific Performance.
CONCLUSION:
Accordingly,
Defendants Motion for Sanctions is DENIED.
Moving Party to give notice.
IT IS SO ORDERED.
Dated: July 17, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
SONNY'S CAR WASH SERVICES OF CALIFORNIA, LLC., A CALIFORNIA LIMITED LIABILITY COMPANY VS MICHAEL MCGUINNESS, ET AL.
Jul 16, 2024 |
22STCV15997
Case Number:
22STCV15997
Hearing Date:
July 16, 2024
Dept:
19
RULING
After consideration of the briefing filed and oral argument at the hearing, Plaintiff Sonnys Car Wash Services of California, LLCs unopposed Motion for Leave to File Second Amended Complaint is GRANTED.
Although the Court grants Plaintiffs motion for leave to file the [Proposed] Second Amended Complaint, the Court denies Plaintiffs motion for an order that the [Proposed] Second Amended Complaint be deemed filed.
The Court signs the proposed order filed on May 7, 2024 as modified
Counsel for Plaintiff to give notice.
STATEMENT OF FACTS
This case arises out of alleged breach of contract and fraud. Plaintiff Sonnys Car Wash Services of California, LLC (Plaintiff) brings suit against Defendants Michael McGuinness, MC Group, LLC, McGuinness VWS, and MEP Services, Inc. (collectively, Defendants) alleging the following causes of action in the First Amended Complaint (FAC):
1.
Breach of Contract;
2.
Fraud;
3.
Unjust Enrichment; and
4.
Misappropriation of Trade Secrets.
In the Third Amended Cross-Complaint (the TACC), Cross-Complainants Michael McGuinness, McGuinness VWS (VWS), and McGroup, LLC (McG) (hereafter, Cross-Complainants) bring suit against Plaintiff (hereafter, Cross-Defendant) alleging the following causes of action:
1.
Breach Of Contract;
2.
Third-Party Breach of Contract;
3.
Fraudulent Inducement;
4.
Business And Professions Code 17200;
5.
Breach Of Covenant of Good Faith and Fair Dealing;
6.
Conversion; and
7.
Labor Code Violations.
Plaintiff filed the instant
Motion for Leave to File Second Amended Complaint (the Motion).
GROUNDS FOR MOTION
Pursuant to Code of Civil Procedure sections 473 and 576, Plaintiff moves for an order granting leave to file the [Proposed] Second Amended Complaint that makes the following amendments: (1)
¿
adds claims for Fraud in the Contract Formation based on Concealment, Intentional Misrepresentation, and Negligent Misrepresentation; (2) separates the claim for Breach of Contract into separate claims for each of the
¿
separate breaches, and (3) adds a claim for interference with a contractual relationship against MEP Services, Inc., and Doe Defendants Shannon McLaughlin and MOM Investments.
DISCUSSION
As an initial matter, Defendants do not oppose the instant Motion, effectively consenting to the Court granting it. (See Cal. R. Ct., 8.54(c) [A failure to oppose a motion may be deemed a consent to the granting of the motion.].)
A.
Procedural Requirements
Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall:
(1)
Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;
(2)
State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and
(3)
State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.
(Cal. Rules Ct., rule 3.1324(a).)
Under California Rule of Court, rule 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify:
(1)
The effect of the amendment;
(2)
Why the amendment is necessary and proper;
(3)
When the facts giving rise to the amended allegations were discovered; and
(4)
The reasons why the request for amendment was not made earlier.
(Cal. Rules Ct., rule 3.1324(b).)
The Court finds that Plaintiff complies with California Rules of Court Rule, rule 3.1324, subdivisions (a) and (b). (See Brandon D.B. Howard Decl., ¶¶ 3, 5-33, Exs. A-B.)
B.
Analysis
The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., §
473(a)(1).) Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Code Civ. Proc., § 576.)
The policy in California is that leave to amend is to be granted liberally, to accomplish substantial justice for both parties. (
Hirsa v. Superior
Court (1981) 118 Cal.App.3d 486, 488-89.) If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend. (
Morgan v. Sup. Ct.
(1959) 172 Cal.App.2d 527, 531.) Generally, leave to amend must be liberally granted provided there is no statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (
Solit v. Tokai Bank, Ltd. New York Branch
(1999) 68 Cal.App.4th 1435, 1448.)
Here,
Plaintiff moves for leave to file the [Proposed] Second Amended Complaint on the grounds that, since the Court sustained Defendants demurrer to the Second Cause of Action [Fraud] and Third Cause of Action [Unjust Enrichment] without leave to amend on the basis of the economic loss rule, Plaintiff has conducted discovery and determined
¿
numerous factual issues and violations that were unknown to Sonnys at the time that relate back to the allegations and claims set forth in the FAC. (Motion, p. 2.)
Plaintiff contends that the case has progressed very little. Defendants have not served written discovery on Plaintiff or taken any deposition, and the Third Amended Cross-Complaint is still not at issue. (
Id
.)
The Court does not find that granting Plaintiff leave to file the [Proposed] Second Amended Complaint would prejudice Defendants, particularly in light of Defendants lack of opposition. The Court agrees with Plaintiff that Cross-Complainants TACC, which was just filed on July 8, 2024, is not yet at issue.
Thus, the Motion is GRANTED.
Ruling
TOVAR, ARMANDO vs GENERAL MOTORS LLC
Jul 17, 2024 |
CV-23-000051
CV-23-000051 – TOVAR, ARMANDO vs GENERAL MOTORS LLC – Plaintiff’s Motion for Attorney Fees, Costs, and Expenses – GRANTED, in the reduced total amount of $39,389.69.
Judicial Notice is DENIED on all state court cases cited. The Court is uncertain if state court judgments are permitted in this context; they are generally not permitted to be cited, but this is primarily for a factual rather than legal purpose. Assuming they are permitted, for probative value, the Court would need to know what percentage of fee requests were denied, which is not information which was provided to the Court.
The Court has concerns about Defendant’s claim that Ms. Anvar was a paralegal. The Court does not view that as careful pleading.
The Court makes the following fee reductions:
Two hours at $350 for the discovery request. ($700.)
Ten hours at $350 for the Motion to Compel Further RFP responses ($3,500)
The Court reduces fees for the instant motion to $2,300.
The Court further reduces attorney Julian Moore’s fees to $475 per hour based on prevailing rates in Stanislaus County. This results in a $940 reduction in fees.
Plaintiff argues that $350 per hour is reasonable for attorneys Kowalski and Kornely, but some billing for Kornely was above that rate. The Court accepts Plaintiff’s implied concession that the amount above $350 is excessive.
Unfortunately, Defendant’s calculations as to the compensable fees is incorrect - $350 x 10.5 is not under $3,000. Further, the ability to calculate this excess is limited either by the failure of the Court to find a summary page or the failure of either party to include such. The Court reduces the total amount by $500.
The Court does note that fees are to be commensurate with the local standards in Stanislaus County, which has lower fees than Los Angeles, but is also not a very small county. $350 per hour for somewhat experienced attorneys is reasonable.
The Court makes no reduction in costs. Under these circumstances, the Court declines to find any portion of the litigation was so unnecessary as to obviate the need for costs.
Therefore, the total fees outside of this motion are: $32,219.50, plus $4,870.14 in costs and $2,300 for the fee motion, for a total of $39,389.69.
Ruling
VANCITY TRADE LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS DONJIE LIN, ET AL.
Jul 17, 2024 |
23STCV00347
Case Number:
23STCV00347
Hearing Date:
July 17, 2024
Dept:
74
Vancity Trade LLC v. Lin et al.
Plaintiffs Motion to Continue Trial and Related Dates
The court denies plaintiffs motion to continue trial without prejudice to plaintiffs renewing its request to continue trial when plaintiff files and serves a timely motion for summary judgment. The court is mindful of its obligation to hear timely motions for summary judgment despite a congested court calendar. (
Cole v. Superior Court
(2022) 87 Cal.App.5
th
84, 88;
Sentry Ins. Co. v. Superior Court
(1989) 207 Cal.App.3d 526, 529-530.) No impediment existed to plaintiff filing and serving a motion for summary judgment. When plaintiff files and serves a
timely
motion for summary judgment, the court will satisfy the courts obligation under
Cole
and
Sentry
by continuing trial.
Ruling
Elijah Bass vs Auto Toyz, Inc. et al.
Jul 18, 2024 |
STK-CV-UOCT-2023-0005483
This matter is on for hearing on Plaintiff's Motion to Lift Arbitration Stay and Impose Sanctions filed June 3, 2024. However, Plaintiff has not filed a Proof of Service of such Motion upon Defendants. Therefore, hearing on Plaintiff's Motion is continued to August 20, 2024 at 9:00am in Department 10A to allow Plaintiff an opportunity to serve and file with the court a proof of service upon Defendants. Hon. George J. Abdallah, Jr. Judge of the Superior Court
Preview
FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX _____________________________----___-_______________________Ç DASSA ORTHOPEDIC MEDICAL SERVICES, P.C. INDEX NO. 801006/2023E and GABRIEL LOUIS DASSA, M.D., AFFIRMATION IN Plaintiffs, OPPOSITION TO DEFENDANTS' MOTION TO -against- DISMISS SKAZKA LLC, SERGEY DENEVICH, YELENA SHUBINA M.D., ELITE ORTHOPEDICS PARTNERS LLC, ELITE ORTHOPEDICS AND REHABILITATION P.A., STUART IRA SPRINGER M.D., GRIGORY GOLDBERG M.D., EDWARD FELICIANO M.D., LI SUN, D.O., KISHORE KONDURI, ARTHUR KOSTANIAN and ALEXANDER URBANOVICH, Defendants. _______________________________,-----------___________________________Ç WALTER F. CIACCI, ESQ., an attorney duly admitted to practice law in the State of New York affinns the truth of the following under the penalty of perjury: 1. Your affirmant, fully familiar with the facts and circumstances submits this affirmation in in Opposition to Defendant YELENA SHUBINA M.D., STUART IRA SPRINGER M.D., D.O.s' GRIGORY GOLDBERG M.D., EDWARD FELICIANO M.D., and LI SUN, (herein "Moving Defendants) Motion to Dismiss. Defendants' 2. For the reasons discussed below, The Motion to Dismiss should be denied in Plaintiffs' its entirety, and alternatively, Cross-Motion for Leave to File an Amended Complaint and to Amend the Caption should be granted. BACKGROUND 3. On January 19, 2023, Plaintiffs filed their Summons & Complaint, based upon, Breach of Contract, Tortious Interference with Contractual Relations, Breach of Fiduciary Duty, Unjust 1 of 16 FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 Enrichment, Accounting, and Constructive Trust. See Plaintiff's Exhibit "1", Summons & Complaint. 4. The sworn affidavit of Plaintiff Dr. Gabriel L. Dassa for additional background facts not Plaintiffs' alleged in the complaint is annexed hereto as Exhibit "2". 5. The facts and additional allegations contained within Dr. Dassa's affidavit have been Plaintiffs' incorporated into Proposed Amended Complaint, which is annexed hereto as Plaintiffs' Exhibit "3". Plaintiffs' "4" 6. Annexed hereto as Exhibit are printouts from Elite Orthopedics and Rehabilitation's website. Plaintiffs' "S" 7. Annexed hereto as Exhibit is the contract between Plaintiffs and Defendant Skazka LLC. A. The Complaint 8. Specifically, Plaintiffs allege that on November 1, 2011, Defendant Skazka (through its principal, Defendant Sergey Denevich), entered into a license and administrative services agreement with Plaintiffs, whereby Defendants Skazka and Denevich would provide necessary equipment, supplies, and non-professional personnel services to the Plaintiffs so that the Plaintiffs could provide medical orthopedic and related services at various locations covered by Plaintiffs' "1" "16" the agreement. Exhibit at paragraphs and "17". 9. In 2013, this agreement was verbally extended to include a facility in Poughkeepsie, New York. Id. at paragraph "19". 10. In 2015, this agreement was again verbally extended to include a facility in Newburgh, New York. I_d. at paragraph "20". 11. Pursuant to the Agreement, the role of Skazka was strictly management and Skazka had absolutely no right or responsibility with respect to medical care and treatment of patients, nor 2 2 of 16 FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 did Skazka have any right or responsibility involving the patients of Dassa Orthopedics. M. at paragraph "18". 12. Pursuant to the agreement, the Plaintiffs retained all authority to direct all of the medical, professional, clinical, and ethical aspects of the practice. Ld. at paragraph "33". 13. Defendant Skazka and Denevich did not have the authority to exercise any control over nor interfere with the physician-patient relationships of the Plaintiffs which was to be maintained strictly between the physicians of the Plaintiffs and their patients. Defendants Skazka and Denevich had no authority, directly or indirectly, to perform or supervise and could not perform or supervise any medical function. Further, Defendants Skazka and Denevich were not authorized to engage in any activity which may be construed or deemed under any existing or future law or regulation, to constitute the practice of medicine, the ownership or operation of a medical practice, or the operation of a health care facility. Ld. 14. Plaintiffs alleged that Defendants Skazka and Denevich breached this contract by engaging in the milawful practice of medicine by exercising control over and interfering with the physician-patient relationships of Dassa Orthopedic and Dr. Gabriel Louis Dassa by poaching, steering and referring Dr. Dassa's own patients, without Dassa's consent or knowledge, to the Moving Defendants. Id. at paragraph 34. 15. Plaintiffs further alleged that the Moving Defendants, who are also medical professionals, intentionally induced Defendant Skazka and Denevich to steer the Plaintiff's patients to them, for their own personal and fmancial benefit. id. at paragraph "34". 16. Defendant Shubina is the principal of the Elite Orthopedics entities and the sister of Plaintiffs' "3" Defendant Sergey Denevech. Exhibit at paragraph 13. "67" "69" 17. Specifically, paragraphs through of the Complaint state, 3 3 of 16 FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 67. "There was a contract in the form of a written agreement between Dassa Orthopedic Medical Services, P.C. and Skazka made as of November 1, 2011. The Agreement was verbally made applicable upon the same terms to medical offices located in Newburgh NY (2015) and in Poughkeepsie NY (2013). Defendants Sergey Denevich, Yelena Shubina, M.D., Elite Orthopedics Partners, LLC, Elite Orthopedics and Rehabilitation, P.A., Stuart Ira Springer, M.D., Grigory Goldberg, M.D., Edward Feliciano, M.D., Li Sun, D.O., Kishore Konduri, Arthur Kostanian and Alexander Urbanovich, had knowledge of the agreement and the applicable locations covered by the agreement. "67" 68. Specifically, the defendants enumerated in paragraph above knew the scope of the agreement, the type of services to be provided by Dassa Orthopedic Medical Services, P.C. pursuant to the agreement and that Dr. Gabriel Louis Dassa and professionals under his employ and/or control were specifically authorized to be the sole providers of orthopedic medical services at the locations covered by the agreement. "67" 69. The defendants enumerated in paragraph above intentionally induced patients to breach the agreement and/or otherwise rendered performance of the agreement between Skazka and the plaintiffs impossible due to the paragraph "67" defendants' willful and deliberate poaching of Dr. Dassa's patients for their own financial benefit without Dr. Dassa's knowledge or consent and while the Agreement was in effect, and by steering those patients and treating those patients to various entities in which the enumerated defendants had a financial interest and/or for the direct financial benefit of the paragraph "67"defendants, 70. As a result, plaintiffs have sustained monetary damages in an amount to be determined at trial but in no event less than $1,000,000.00. Exhibit "1". at paragraphs 67 through 70. 18. The specific cause of action against the Moving Defendants, i.e., Yelena Shubina, M.D., Stuart Ira Springer, M.D., Grigory Goldberg, M.D., Edward Feliciano, M.D., and Li Sun, D.O., is for Tortious Interference with Contractual Relations. OPPOSITION TO MOTION TO DISMISS 19. A motion to dismiss based on documentary evidence pursuant to CPLR §3211(a)(1) may be appropriately granted only where the documentary evidence utterly refutes the plaintiff s 4 4 of 16 FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 factual allegations, conclusively establishing a defense as a matter of law. Rabos v. R&R Bagels & Bakery, Inc., 100 AD3d 849, 849 (2nd Dep't 2012). 20. In order to be considered documentary evidence within the meaning of CPLR §3211(a)(1), the evidence must be unambiguous and of undisputed authenticity, that is, it must be "essentially unassailable. Id. 21. On a pre-answer motion to dismiss pursuant to CPLR §3211, the pleading is to be afforded a liberal construction and the plaintiffs allegations are accepted as true and accorded the benefit of every possible favorable inference. Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 996 (2010). See Anderson v. Armentano, 139 AD3d 769, 770 (2nd Dep't 2016). CPLR §3211(a)(1) Defendants' Plaintiffs' 22. Moving motion is for dismissal of complaint based upon CPLR §3211(a)(1). 23. Dismissal under CPLR §3211(a)(1) requires the moving defendants to establish a defense founded upon documentary evidence. 24. Motions to dismiss on the ground that the action is barred by documentary evidence may be appropriately granted only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law. Goshen v. Mut. Life Ins. Co., 98 N.Y.2d 314, 326 (2002). 25. On a motion to dismiss pursuant to CPLR §3211(a)(1), the court is obliged "to accept the complaints factual allegations as true, according to plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory". Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 270-271 (1st Dept 2004). 5 5 of 16 FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 26. Moreover, dismissal pursuant to CPLR §3211(a)(1) is warranted only if the documentaly evidence submitted "utterly refutes plaintiffs factual allegations". Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326, (2002); see Greenapple v. Capital One, N.A., 92 AD3d 548, 550, (1st Dept 2012), and "conclusively establishes a defense to the asserted claims as a matter of law". Weil, Gotshal & Manges, LLP, 10 AD3d at 270-271). 27. If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR §3211(a)(1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action. See McGuire v. Sterling Doubleday Enters., L.P., 19 AD3d 660, 661-662, (1st Dept 2005). 28. Moving Defendants point to the Agreement, provided by Plaintiff as an exhibit to their original Complaint, asserting that the contract does not involve an agreement between the Plaintiffs and their patients and does not involve a contract related to patient care and referrals. Defendants' 29. This portion of the Moving argument does not address that Plaintiffs allege the Moving Defendants involvement in the case is not about whether Plaintiffs had a contract with their own patients, rather, the Complaint alleges that Moving Defendants induced Plaintiffs' Plaintiffs' Defendant Skazka to interfere with practice of medicine, by directing Plaintiffs' patients to the Moving Defendants, in direct violation of the agreement. See Exhibit "5", page 3, section 4.2(a). 30. Defendant Skazka plainly agreed to have no authority, directly, or indirectly, to perform or supervise. and will not perform or supervise any medical function. Id. 31. Plaintiffs allege Skazka breached the contract by steering and scheduling Dassa's patients by diverting them to the Moving Defendants and even scheduling surgeries of Dassa's with the Moving Defendants. 6 6 of 16 FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 Defendants' 32. The Moving involvement is the intentional and deliberate inducernent of Skazka to breach the contract. 33. As such, the documentary evidence Moving Defendants rely upon and cite is wholly insufficient for dismissal upon these grounds. 34. Therefore, this branch of the motion must be denied. CPLR 3211(a)(7) 35. The test on a motion to dismiss for insufficiency of the pleadings is not whether the plaintiff has artfully drafted the complaint but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained. Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 A.D.2d 168, 176. 36. On a motion to dismiss a complaint pursuant to CPLR §3211(a)(7), all allegations in the complaint are deemed to be true. Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409, 414 (2001); Cron v. Hargro Fabrics, 91 NY2d 362, 366 (1998). 37. All reasonable inferences which can be drawn from the complaint and the allegations therein stated shall be resolved in favor of the plaintiff. Cron at 366. 38. In opposition to such a motion a plaintiff may submit affidavits to remedy defects in the complaint. Id. 39. If an affidavit is submitted for that purpose, it shall be given its most favorable intendment. bL 40. The court's role when analyzing the complaint in the context of a motion to dismiss, pursuant to CPLR §3211(a)(7) is to determine whether the facts as alleged fit within any cognizable legal theory. Sokoloff at 414. 7 7 of 16 FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 41. In fact, the law mandates that the court's inquiry be not limited solely to deciding whether plaintiff has pled the cause of action intended, but instead, the court must determine whether the plaintiff has pled any cognizable cause of action. Leon v. Martinez, 84 NY2d 83, 88 (1994) 42. The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one. However, when evidentiary material in support of dismissal is considered the criterion is whether the proponent of the pleading has a cause of action not whether he has stated one. August Constr. Group v. Degroat, 2023 NYLJ LEXIS 1537; See Guggenheimer v. Ginzburg, 43 NY2d 268, 275 (1977). 43. In order to establish a cause of action for tortious interference with his contractual defendants' relations plaintiff is required to allege: (1) the existence of a valid contract; (2) defendants' knowledge of that contract; (3) intentional procuring of the breach of that contract; and (4) damages. See Click Model Mgt. v. Williams, 167 AD2d 279, 280 (1990). 44. Plaintiffs not only have a valid claim for tortious interference with contractual relations against the moving defendant, but have also properly plead this cause of action. 45. Plaintiffs allege the existence of a contract - "There was a contract in the form of a written agreement between Dassa Orthopedic Medical Services, P.C. and Skazka made as of Plaintiffs' "1" November 1, 2011. See Exhibit at paragraph "67". 46. This fact is not disputed. 47. Plaintiffs allege the defendants had knowledge of the contact - "Defendants moving Sergey Denevich, Yelena Shubina, M.D., Elite Orthopedics Partners, LLC, Elite Orthopedics and Rehabilitation, P.A., Stuart Ira Springer, M.D., Grigory Goldberg, M.D., Edward Feliciano, M.D., Li Sun, D.O., Kishore Konduri, Arthur Kostanian and Alexander Urbanovich, had knowledge of the agreement and the applicable locations covered by the agreement. Specifically, [these defendants] knew the scope of the agreement, the type of services to be 8 8 of 16 FILED: BRONX COUNTY CLERK 10/11/2023 04:06 PM INDEX NO. 801006/2023E NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 10/11/2023 provided by Dassa Orthopedic Medical Services, P.C. pursuant to the agreement and that Dr. Gabriel Louis Dassa and professionals under his employ and/or control were specifically authorized to be the sole providers of orthopedic medical services at the locations covered by the agreement." Id. at paragraphs 67 and 68. Emphasis added. 48. Plaintiffs alleged the moving defendants intentional procurement of Skazka's breach of the contract - "[these induced patients to breach the agreement and/or