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Filing # 189900508 E-Filed 01/17/2024 10:43:02 AM
GOLDEN GATE CHIROPRACTIC I N THE COUNTY COURT IN AND FOR
CENTER, INC HILLSBOROUGH COUNTY, FLORIDA
a/a/o Mr Edner Deli
Plaintiff, CASE NO.:
vs.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
Defendant,
______________________________/
PLAINTIFF’S REQUEST FOR PRODUCTION
COMES NOW, Plaintiff, by and through the undersigned attorneys, and pursuant to
Florida Rule of Civil Procedure 1.350, and requests Defendant to produce for inspection and
copying at the office of the undersigned attorney within thirty (30) days after service of this
request on Defendant the following:
1. A complete copy of the insurance policy that was in effect and provided
coverage to claimant on the date of accident in question, including all applications and
accompanying forms signed by the named insured.
2. All complete copy of any prior applications or policies issued by Defendant to
the named insured.
3. A complete copy of any subsequent or renewal policies including applications
and declaration pages issued by Defendant to the named insured.
4. A complete copy of the entire Special Investigations Unit file for the claimant
and the named insured including but not limited to any computer notes reflecting any
conversations between the adjuster, the named insured, any physicians or health care providers,
and attorneys representing the insured; Any and all Examination Under Oath (EUO) request
forms; computer notes from the EUO Department; a copy of the original sign in sheet or log
for any dates in which examinations under oath were requested.
1/17/2024 10:43 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
5. A copy of any correspondence to the patient and the patient’s attorney notifying
them of any denials of coverage for material misrepresentation, failure to comply with
conditions or any other reason.
6. Copies of the front and back of each and every bill for medical services
submitted to Defendant by anyone at any time from the date the PIP claim file in this case was
first opened to the present directly from the PIP claim file so that the date each bill was
received can be ascertained from the copy as well as copies of any and all envelopes in which
such bills were submitted.
7. Copies of all correspondence to and from any medical provider concerning
submission for payment or documentation of any bill submitted for payment.
8. Copies of the printout of all adjuster notes from the commencement of the file
to the present time, excluding or redacting those notes that reflect conversations between any
adjuster and the Defendant’s attorney(s).
9. Any and all reservation of rights sent to the insured or to Plaintiff or other
documentation of conditional acceptance of payment.
10. A copy of your most up to date PIP payout sheet/payment log showing all bills
that have been submitted for payment whether showing bills paid in full or paid at reduced
rates.
11. The complete insurance policy booklet for which benefits were demanded upon
in this action for claimant’s claim for benefits and any and all documents containing the terms
and provisions which you contend were or are a part of such policy applicable to Plaintiff’s
claim.
12. Any and all correspondence relating to payment and non-payment of claimant’s
medical bills and/or lost wages.
13. Your entire claim file from cover to cover relating to claimant including, but not
limited to, Patient’s No-Fault benefits application(s), loss of wages or benefits verification
forms, as well as any and all documents relating to claimant’s claim for benefits.
14. The telephone intake or first report of claim with regards to the claim file for
claimant or any other insured or claimant who was involved in the accident at issue.
1/17/2024 10:43 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2
15. Any and all correspondence between you, your agents and/or attorneys and the
Plaintiff herein, Plaintiff’s agents and attorneys concerning Plaintiff’s claim for benefits.
16. Any photographs and/or repair estimates to any of the vehicles involved in the
incident which gave rise to this lawsuit.
17. If the policy has been cancelled at any time a copy of all notices of cancellation,
correspondence, notifications, return of premium checks.
18. Any and all Reports of Medical Examinations and/or Record/Peer Reviews
requested by you directly or through any third parties (IME VENDORS SUCH AS Florida
Medical Specialists, Prime etc.) with regard to claimant in possession or available to
Defendants.
19. A copy of any HCFA forms from any provider, redacting the name of the
patient, that reflect charges for the same procedures billed by Plaintiff whose price for the same
procedures falls within Defendant’s range of reasonable and customary fees.
20. A complete copy of the entire underwriting file, but not limited to applications,
photos of the insured vehicle, financing payments, underwriting evaluations, renewal offers for
every policy ever sold by Defendant or its agents to the named insured under whose policy
benefits are sought for this claim. This request includes both prior and subsequent policies to
the policy at issue in this case.
21. A copy of any correspondence(s) and/or e-mail(s), letter(s), etc., between
Defendant and the IME vendor company utilized in this case.
22. A copy of any correspondence(s) and/or e-mail(s), letter(s), etc., between
Defendant and the scheduled IME Doctor in this case.
23. A copy of any Examinations Under Oath of the patient, insured, agent, and/or
any other EUO(s) taken in the underlying claim.
24. A copy of any and all Explanations of Review and/or Explanations of Benefits
for any and all providers who billed Defendant in the underlying claim.
25. Any and all documentation supporting the allegations made in Defendant’s
affirmative defenses.
1/17/2024 10:43 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3
26. Any and all demand letters pursuant to Fla. Stat. §627.736(10) received in
regard to the treatment rendered to the Claimant as a result of the subject accident.
27. Any and all requests for documentation or information under this claim pursuant
to Fla. Stat. §627.736(6)(b) sent to any person within 30 days of receiving notice of the
covered loss.
28. Any and all documentation supporting the Defendant’s allegation that the
Plaintiff’s bills were reimbursed correctly pursuant to Fla. Stat. §627.736(5)(a)(1).
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon
Defendant, along with the Summons and Complaint filed in this cause.
LANDAU & ASSOCIATES, P.A.
1619 NW 136th Avenue, Suite 2C
Sunrise, FL 33323
Telephone (954) 744-8383
Facsimile (954) 391-7805
Email: efilings@pip-lawyers.com
By: /S/ Matthew Emanuel, Esq.___
MATTHEW EMANUEL, ESQ.
Florida Bar No. 98392
1/17/2024 10:43 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4
Related Content
in Hillsborough County
Ruling
CHINA LIVE VENTURES LIMITED, L.P. VS. 644 BROADWAY LLC ET AL
Jul 18, 2024 |
CGC21590574
Matter on the Law & Motion Calendar for Thursday, July 18, 2024, Line 11. PLAINTIFF CHINA LIVE VENTURES LIMITED, L.P. A CALIFORNIA LIMITED PARTNERSHIP, CHINA LIVE, LLC, A CALIFORNIA LIMITED LIABILITY, CHINA LIVE, LLC AND GEORGE CHEN's MOTION TO STRIKE ANSWER to Amended COMPLAINT. Off calendar. An amended notice of motion was filed that properly set this motion in department 501 per SF Local Rule 8.10A1. =(302/CK)
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
Mason vs. Contech Engineered Solutions LLC, et al.
Jul 18, 2024 |
22CV-0201012
AL.
Case Number: 22CV-0201012
This matter is on calendar for review regarding status of judgment/dismissal. A Notice of
Settlement was filed on April 15, 2024 which indicates that the case would be dismissed within 45
days. No dismissal is on file. The Court intends to dismiss this case pursuant to California Rule
of Court 3.1385(b) unless the parties appear at today’s hearing and show good cause why the case
should not be dismissed.
Ruling
MARK WILLIAMS VS DOES 1 - 50 INCLUSIVE
Jul 16, 2024 |
21STCV29645
Case Number:
21STCV29645
Hearing Date:
July 16, 2024
Dept:
B
Mark williams
V. DOES
MOTION
to Deem the Truth of Matters in the Request for Admissions Set 1 Admitted
Date of Hearing:
July 16, 2024
Trial Date:
None Set
Department:
B
Case No.:
21STCV29645
Moving Party:
Defendants Maria Ewest and Cristopher Ewest
Responding Party:
Plaintiff Mark Williams
BACKGROUND
Factual and Procedural Background
Mark Williams (Plaintiff) filed a Complaint on September 27, 2023 against Maria Ewest and Cristopher Ewest (Defendants) after Cristopher Ewest allegedly shouted racial epithets at Plaintiff before intentionally colliding with Plaintiffs vehicle. (See Complaint, ¶¶ 10-15.) The motion now before the Court is Defendants Motion to Deem the Truth of Matters in the Request for Admissions Set 1 Admitted (the Motion). Plaintiff opposes the Motion; Defendants filed a reply.
Request for Judicial Notice
Concurrently filed with their moving papers, Defendants file a Request for Judicial Notice (RJN) which requests that the Court take judicial notice of six separate matters pertaining to California State Bar Court Disciplinary proceedings related to Plaintiff who, according to Defendants, holds State Bar number 220341. Although such matters may be judicially recognizable under Evid. Code §451, There is, however, a precondition to the taking of judicial notice in either its mandatory or permissive formany matter to be judicially noticed must be relevant to a material issue. (
People ex rel. Lockyer v. Shamrock Foods Co.
(2000) 24 Cal.4
th
415, 422 fn. 2.) Defendants fail to explain the relevance of the matter to be judicially noticed, therefore, the request is denied.
Tentative Ruling
Defendants Motion to Deem the Truth of Matters in the Request for Admissions Set 1 Admitted is
GRANTED
.
The Court will impose monetary sanctions on Plaintiff and award them to Defendants in the amount of
$880.00
. Both sanctions and responses are to be delivered to Defendants within 15 days of this order.
DISCUSSION
Legal Standard
Code of Civil Procedure § 2033.250, provides, in pertinent part, that [w]ithin 30 days after service of the request for admissions . . . the party to whom the requests are directed shall serve the original of the response to them on the requesting party. A motion to deem admitted requests for admissions lies based upon a showing of failure to respond timely. (CCP §2033.280(b);
Demyer v. Costa Mesa Mobile Home Estates
(1995) 36 Cal.App.4th 393, 395, disapproved on other grounds by
Wilcox v. Birtwhistle
(1999) 21 Cal.4th 973, 983.) Requests for admissions must be deemed admitted where no responses in substantial compliance was served before the hearing. (CCP §2033.280(c).) As to motions to deem matters admitted, no meet and confer is required. (
Demyer v. Costa Mesa Mobile Home Estates
(1995) 36 Cal. App. 4th 393, 395, overruled on other grounds by
Wilcox v. Birtwhistle
(1999) 21 Cal. 4th 973, 983. Also see
Leach v. Superior Court
(1980) 111 Cal.App.3d 902, 904906, 169 Cal.Rptr. 42 [
rejecting
argument that state rule of court requiring informal meet and confer applied to motion where no response at all had been made to interrogatory requests, reasoning that because objections had been waived for failure to timely answer, there was nothing to resolve with the meaning of the rule)].)
Analysis
Attached to the moving papers, Defendants include the Declaration of Michael D. Rohfeld (Rohfeld Decl.) which states that Request for Admissions, Set 1 was served on Plaintiff on March 27, 2024. (Rohfeld Decl., ¶5.) Responses were served on April 27, 2024 but only contained objections and lacked any
substantial compliance
. (
Rohfeld Decl., Exh. C.) As no responses in substantial compliance have been received, the Motion is granted, and sanctions are warranted.
Sanctions
Defense counsel provides the following calculations.
·
Counsels hourly rate is $205.00
·
Counsel spent 2 hours drafting moving papers, 1 hour drafting the reply, and anticipates 1 hour at the hearing.
·
Counsel also incurred a $60.00 filing fee.
·
Counsel requests $880.00 in total to be imposed against Plaintiff.
The Court finds the amount reasonable and will impose monetary sanctions on Plaintiff and grant them to Defendants in the amount of
$880.00.
CONCLUSION
Defendants Motion to Deem the Truth of Matters in the Request for Admissions Set 1 Admitted is
GRANTED
.
The Court grants the request for monetary sanctions on Plaintiff and awards them to Defendants in the amount of
$880.00
. Both sanctions and responses are to be delivered to Defendants within 15 days of this order.
Moving party to give notice.
Ruling
ANDREW CRUZ ALDACO VS RICHARD R. VAZQUEZ, ET AL.
Jul 18, 2024 |
24NWCV00190
Case Number:
24NWCV00190
Hearing Date:
July 18, 2024
Dept:
C
ALDACO v. VAZQUEZ
CASE NO.: 24NWCV00190
HEARING: 07/18/24
#10
I.
Cross-Defendant ANDREW CRUZ ALDACOs Demurrer to Cross-Complainants RICHARD R. VAZQUEZ and STEPHANIE MONTEZs Cross-Complaint is
OFF-CALENDAR as MOOT
.
II.
Cross-Defendant ANDREW CRUZ ALDACOs Motion to Strike Portions of Cross-Complainants RICHARD R. VAZQUEZ and STEPHANIE MONTEZs Cross-Complaint is
OFF-CALENDAR as MOOT
.
Opposing Party to give notice.
This action was filed on January 18, 2024 by Plaintiff/Cross-Defendant ANDREW CRUZ ALDACO (Cross-Defendant).
On March 12, 2024, Defendants/Cross-Complainants RICHARD R. VASQUEZ and STEPHANIE MONTEZ (collectively Cross-Complainants) filed the subject Cross-Complaint.
A party may amend its pleading once without leave of court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard
if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike
. (emphasis added.) (CCP §472.)
The hearing on this Demurrer and Motion to Strike is set for July 18, 2024. The Opposition was due no later than July 5, 2024. (CCP §1005(b).)
The First Amended Cross-Complaint was timely filed on July 5, 2024the date the Opposition was due.
The Demurrer and Motion to Strike are placed OFF-CALENDAR as MOOT.
Ruling
JOHN KNOX, ET AL. VS THE CITY OF LOS ANGELES, A MUNICIPALITY, AND ITS FIRE DEPARTMENT, ET AL.
Jul 17, 2024 |
23STCV13328
Case Number:
23STCV13328
Hearing Date:
July 17, 2024
Dept:
19
After consideration of the briefing filed and oral argument at the hearing, the Court rules as follows:
The Court grants Defendant City of Los Angeles request for a stay of proceedings. (Code of Civ. Proc. section 128).
The Court will not issue its final ruling on the Demurrer by Defendant City of Los Angeles until the pending proceedings on the Petitions For Writ of Mandate filed by Plaintiffs Mathhew Mammone (Case No. 23STCP02876) and Timmothy Hamson (Case No. 23STCP03315), and any other writ petitions by named Plaintiffs, are completed.
The Court sets a Status Conference Re: Petitions For Writ of Mandate for November 7, 2024, at 8:30. The parties are ordered to file and serve Status Reports by November 1, 2024.
The hearing on Demurrer is CONTINUED TO November 18, 2024, at 8:30 a.m.
On the Courts own motion, the Case Management Conference is CONTINUED TO November 18, 2024, at 8:30 a.m.
Counsel for Defendant City of Los Angeles to give notice.
STATEMENT OF THE CASE
This action arises out of alleged civil rights violations. Plaintiffs John Knox, Adin Waldrip, Jeffery Ochoa, Michael Hayes, Nicholas Collins, Morgan Bradley, Shane Nelson, Nathaniel Helton, Nicholas Watkins, Ian Tarango, Matthew Mammone, Timothy Hamson, Chris Curtis, Eliott Jones, Gabriela Mendo, Richard Tanguay, Edward Brockschmidt, and Armando Carranza (collectively, Plaintiffs) bring suit against Defendants The City of Los Angeles, a municipality, and its Fire Department (the City), Ralph Terrazas, Kristin Crowley, Alfred Poirier, John Drake, Armando Hogan, Graham Everett, David Perez, Kristina Kepner, Carlos Calvillo, Kairi Brown, Eric Talamantes, Amir Caspian, Albert Valle, Timothy Wuerfel, Glenn Baham, and Michael Henderson (collectively, Defendants) alleging the following causes of action:
1.
Denial Of Due Process (FBOR, Skelly, and §1060);
2.
Denial Of Equal Protection;
3.
Denial Of Right To Privacy;
4.
Denial Of Right To Refuse Medical Treatment;
5.
Redress Of Perceived Disability Discrimination;
6.
Redress Of Religious Discrimination;
7.
Redress Of Genetic Testing Discrimination;
8.
Redress Discrimination Due To Association;
9.
Lack Of Good Faith Interactive;
10.
Failure To Accommodate;
11.
Redress Harassment;
12.
Redress Unlawful Retaliation;
13.
Redress Failure To Prevent Discrimination, Harassment And Retaliation; And
14.
Declaratory Relief.
Defendant City of Los Angeles filed the instant Demurrer to Plaintiffs Complaint.
GROUNDS FOR DEMURRER
Pursuant to Code of Civil Procedure section 430.10, subdivisions (d), (e), and (f), Defendant City demurs to each cause of action on the grounds that (1) there is a defect or misjoinder of parties; (2) uncertainty; and (3) failure to allege facts sufficient to constitute a cause of action.
MEET/CONFER
The Court finds that Defendant City substantially complied with the meet and confer requirements. (See M. Aaron Neishlos Decl., ¶¶ 2-3.)
REQUESTS FOR JUDICIAL NOTICE
The Court GRANTS Defendant Citys request to take judicial notice of Exhibits 1 through 7. (Evid. Code, § 452(d), (h).) The Court also GRANTS Plaintiffs request to take judicial notice of Exhibits A and B. (Evid. Code, § 452(d), (h);
see Fremont Indem. Co. v. Fremont General Corp.
(2007) 148 Cal.App.4th 97, 113-14];
StorMedia Inc. v. Sup. Ct.
(1999) 20 Cal.4th 449, 457 n. 9; see also
Cruz v. County of Los Angeles
(1985) 173 Cal.App.3d 1131, 1134).
DISCUSSION
I.
DEMURRER
Misjoinder of Parties
Defendant City demurs to the entire Complaint on the ground that
[t]he 18 Plaintiffs claims do not arise out of the same transaction(s) or occurrence(s) and nothing in the Complaint indicates that their respective disciplinary proceedings were sufficiently related so as to constitute a single series of occurrences or a common plan pursuant to Code of Civil Procedure section 378.
The Court does not rule on the arguments regarding misjoinder under section 378 at this time.
However, Defendant City alternatively demurs on the ground that the inclusion of Plaintiffs Hamson and Mammone, who have pending petitions for writ of mandate and must first succeed in overturning the determination of the Board of Rights before proceeding with the instant action, would create the risk of inconsistent rulings and would waste judicial resources.
Defendant City requests that the Court stay the action pending resolution of Plaintiffs Hamson and Mammones writ of mandates.
Plaintiffs fail to address this alternative request for a stay. Defendant highlights this in its Reply brief. The Court notes that in the Opposition, Plaintiff state that another Writ by Plaintiff Chris Curtis will soon be filed. (Opposition at pp. 7-8.)
The Court agrees with the Defendant Citys argument that because Plaintiffs Hamson and Mammone both have pending Petitions for Writ of Mandate (Defendants RJN, Exhibits 2 and 3), and another soon to be filed by Plaintiff Chris Curtis, this action should be stayed. (Code of Civ. Proc. section 128). The Court finds that this is warranted in the interest of justice. (
Frieberg v. City of Mission Viejo
(1995) 33 Cal. App. 4
th
1484, 1489).
In those writ petitions, Plaintiffs Hamson and Mammone generally name the same Defendants as in this case, complain about the City of Los Angeles COVID-19 Ordinance and its vaccination requirements for all employees, and allege, among other things, that they were placed on suspension without pay, the actions by the City were unlawful, including violations of the federal and state labor and employment laws, violations of State and Federal Constitutions, as well as violations of the due process requirements under the Firefighters Bill of Rights, section 1060 of the City Charter, and
Skelly v. State of California
(1975) 15 Cal. 3d. 194.
The Court finds that a stay of proceedings is proper at this time for the above reasons.
After the writ proceedings are completed, the Court will proceed to finalize its ruling on the demurrer.
If the parties request time for additional briefing, they may request such in their respective Status Reports.
Ruling
MARY ERICKSON VS INTERCITY FELLOWSHIP HALL, A CALIFORNIA CORPORATION
Jul 15, 2024 |
23STCV07980
Case Number:
23STCV07980
Hearing Date:
July 15, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
mary erickson
;
Plaintiff
,
vs.
intercity fellowship hall
, et al.;
Defendants
.
Case No.:
23STCV07980
Hearing Date:
July 15, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
order to show cause re why defendants answer should not be stricken because it is a corporation not represented by counsel
Order to Show Cause re Why Defendant Intercity Fellowship Halls Answer Should Not be Stricken Because it is a Corporation Not Represented by Counsel
On March 22, 2024, the motion to be relieved as counsel for defendant Intercity Fellowship Hall (Defendant), filed by attorney Zachary McCready, came before the court.
The court issued an order on that date (1) noting that Defendant filed, on March 6, 2024, a Substitution of Attorney Civil form, stating that Defendant is substituting in as counsel to represent itself in this action in place of counsel, (2) finding that the motion to be relieved as counsel was therefore moot, and (3) setting an Order to Show Cause re why Defendants answer should not be stricken because it is a corporation not represented by counsel for hearing on June 10, 2024.
(Mar. 22, 2024 Order, pp. 1:20-28, 2:5-8.)
The court further ordered plaintiff Mary Erickson (Plaintiff) to give notice of that ruling.
On June 10, 2024, the court issued an order finding that Plaintiff did not serve a notice of the courts March 22, 2024 ruling on Defendant.
(June 10, 2024 Order, p. 2:5-8.)
The court therefore exercised its discretion to continue the hearing on the Order to Show Cause to July 15, 2024.
(
Id.
at p. 2:9-13.)
The court further ordered that any response to the Order to Show Cause shall be filed no later than nine court days before the hearing.
(
Id
. at p. 2:14-15.)
First, the court finds that Plaintiff has given Defendant notice of the pending Order to Show Cause re why Defendants answer should not be stricken as a corporation unrepresented by counsel.
(June 10, 2024 Notice of Ruling, p. 7 [proof of service by certified mail to Defendant at 5881 Cherry Avenue, Long Beach, California]; March 6, 2024 Substitution of Attorney, MC-050, ¶ 2 [listing Defendants address to be 5881 Cherry Avenue, Long Beach, California].)
Second, the court finds that Defendant is improperly representing itself in this action.
[U]nder a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney.¿ It must be represented by licensed counsel in proceedings before courts of record.¿ (
CLD Construction, Inc. v. City of San Ramon
(2004) 120 Cal.App.4th 1141, 1145.)¿¿
Defendant is a corporation.
(Mot. to be Relieved as Counsel, MC-051, ¶ 4, subd. (b) [Defendant is a corporation]; Def. Answer, ¶ 5 [Admitted that INTERCITY FELLOWSHIP HALL, is a California corporation].)
Thus, Defendant is required to be represented by counsel in this action.
(
CLD Construction, Inc.
,
supra
, 120 Cal.App.4th at p. 1145.)
However, on March 6, 2024, Defendant filed a Substitution of Attorney form (Judicial Council form MC-050), stating that it was substituting in to represent itself in this action in place of attorney Zachary McCready.
(Def. March 6, 2024 Sub. of Attorney, MC-050, ¶¶ 1-2.)
Defendant has not (1) filed another Substitution of Attorney form stating that it is now represented by counsel, or (2) filed a response to the Order to Show Cause or other evidence with the court establishing that it has since retained counsel.
Thus, the court finds that Defendant is improperly representing itself in propria persona and therefore grants its own motion to strike Defendants answer to Plaintiffs Complaint.
(Code Civ. Proc., § 436, subd. (b) [court may, at any time in its discretion, strike a pleading not drawn or filed in conformity with the laws of this state].)
The court orders that Defendant Intercity Fellowship Halls Answer to Plaintiff Mary Ericksons Initial Complaint; Jury Trial Demanded, filed by defendant Intercity Fellowship Hall on June 2, 2023, is stricken.
The court orders plaintiff Mary Erickson to file a Request for Entry of Default (Judicial Council form CIV-100) as to defendant Intercity Fellowship Hall no later than 10 days from the date of this order.
The court orders that trial, set for April 16, 2025, is vacated.
The court orders that the final status conference, set for April 4, 2025, is vacated.
The court sets an Order to Show Cause re entry of default and default judgment for hearing on November 4, 2024, at 8:30 a.m., in Department 53.
The court orders plaintiff Mary Erickson to file default judgment documents required by California Rules of Court, rule 3.1800 (including a proposed judgment on JUD-100) no later than September 26, 2024.
The court orders plaintiff Mary Erickson to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 15, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
Ruling
LADIANA vs THE CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION
Jul 15, 2024 |
CVRI2302344
LADIANA VS THE
MOTION TO SET ASIDE ON
CALIFORNIA DEPARTMENT
CVRI2302344 COMPLAINT FOR AUTO (OVER
OF CORRECTIONS AND
$25,000) OF MALLORY LADIANA
REHABILITATION
Tentative Ruling: Plaintiff’s UNOPPOSED Motion to Set Aside Dismissal is granted. Order to
Show Cause is set for 9/10/24 AGAINST GARY LOFTIS and MALLORY LADIANA, as to why
sanctions not to exceed $1,500.00 or dismissal should not be imposed for Failure to file request
for entry of default of ALL defendants on complaint pursuant to CRC 3.110(g).
Preview
Filing # 189900508 E-Filed 01/17/2024 10:43:02 AM GOLDEN GATE CHIROPRACTIC I N THE COUNTY COURT IN AND FOR CENTER, INC HILLSBOROUGH COUNTY, FLORIDA a/a/o Mr Edner Deli Plaintiff, CASE NO.: vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY Defendant, ______________________________/ PLAINTIFF’S REQUEST FOR PRODUCTION COMES NOW, Plaintiff, by and through the undersigned attorneys, and pursuant to Florida Rule of Civil Procedure 1.350, and requests Defendant to produce for inspection and copying at the office of the undersigned attorney within thirty (30) days after service of this request on Defendant the following: 1. A complete copy of the insurance policy that was in effect and provided coverage to claimant on the date of accident in question, including all applications and accompanying forms signed by the named insured. 2. All complete copy of any prior applications or policies issued by Defendant to the named insured. 3. A complete copy of any subsequent or renewal policies including applications and declaration pages issued by Defendant to the named insured. 4. A complete copy of the entire Special Investigations Unit file for the claimant and the named insured including but not limited to any computer notes reflecting any conversations between the adjuster, the named insured, any physicians or health care providers, and attorneys representing the insured; Any and all Examination Under Oath (EUO) request forms; computer notes from the EUO Department; a copy of the original sign in sheet or log for any dates in which examinations under oath were requested. 1/17/2024 10:43 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 5. A copy of any correspondence to the patient and the patient’s attorney notifying them of any denials of coverage for material misrepresentation, failure to comply with conditions or any other reason. 6. Copies of the front and back of each and every bill for medical services submitted to Defendant by anyone at any time from the date the PIP claim file in this case was first opened to the present directly from the PIP claim file so that the date each bill was received can be ascertained from the copy as well as copies of any and all envelopes in which such bills were submitted. 7. Copies of all correspondence to and from any medical provider concerning submission for payment or documentation of any bill submitted for payment. 8. Copies of the printout of all adjuster notes from the commencement of the file to the present time, excluding or redacting those notes that reflect conversations between any adjuster and the Defendant’s attorney(s). 9. Any and all reservation of rights sent to the insured or to Plaintiff or other documentation of conditional acceptance of payment. 10. A copy of your most up to date PIP payout sheet/payment log showing all bills that have been submitted for payment whether showing bills paid in full or paid at reduced rates. 11. The complete insurance policy booklet for which benefits were demanded upon in this action for claimant’s claim for benefits and any and all documents containing the terms and provisions which you contend were or are a part of such policy applicable to Plaintiff’s claim. 12. Any and all correspondence relating to payment and non-payment of claimant’s medical bills and/or lost wages. 13. Your entire claim file from cover to cover relating to claimant including, but not limited to, Patient’s No-Fault benefits application(s), loss of wages or benefits verification forms, as well as any and all documents relating to claimant’s claim for benefits. 14. The telephone intake or first report of claim with regards to the claim file for claimant or any other insured or claimant who was involved in the accident at issue. 1/17/2024 10:43 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 15. Any and all correspondence between you, your agents and/or attorneys and the Plaintiff herein, Plaintiff’s agents and attorneys concerning Plaintiff’s claim for benefits. 16. Any photographs and/or repair estimates to any of the vehicles involved in the incident which gave rise to this lawsuit. 17. If the policy has been cancelled at any time a copy of all notices of cancellation, correspondence, notifications, return of premium checks. 18. Any and all Reports of Medical Examinations and/or Record/Peer Reviews requested by you directly or through any third parties (IME VENDORS SUCH AS Florida Medical Specialists, Prime etc.) with regard to claimant in possession or available to Defendants. 19. A copy of any HCFA forms from any provider, redacting the name of the patient, that reflect charges for the same procedures billed by Plaintiff whose price for the same procedures falls within Defendant’s range of reasonable and customary fees. 20. A complete copy of the entire underwriting file, but not limited to applications, photos of the insured vehicle, financing payments, underwriting evaluations, renewal offers for every policy ever sold by Defendant or its agents to the named insured under whose policy benefits are sought for this claim. This request includes both prior and subsequent policies to the policy at issue in this case. 21. A copy of any correspondence(s) and/or e-mail(s), letter(s), etc., between Defendant and the IME vendor company utilized in this case. 22. A copy of any correspondence(s) and/or e-mail(s), letter(s), etc., between Defendant and the scheduled IME Doctor in this case. 23. A copy of any Examinations Under Oath of the patient, insured, agent, and/or any other EUO(s) taken in the underlying claim. 24. A copy of any and all Explanations of Review and/or Explanations of Benefits for any and all providers who billed Defendant in the underlying claim. 25. Any and all documentation supporting the allegations made in Defendant’s affirmative defenses. 1/17/2024 10:43 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 26. Any and all demand letters pursuant to Fla. Stat. §627.736(10) received in regard to the treatment rendered to the Claimant as a result of the subject accident. 27. Any and all requests for documentation or information under this claim pursuant to Fla. Stat. §627.736(6)(b) sent to any person within 30 days of receiving notice of the covered loss. 28. Any and all documentation supporting the Defendant’s allegation that the Plaintiff’s bills were reimbursed correctly pursuant to Fla. Stat. §627.736(5)(a)(1). CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served upon Defendant, along with the Summons and Complaint filed in this cause. LANDAU & ASSOCIATES, P.A. 1619 NW 136th Avenue, Suite 2C Sunrise, FL 33323 Telephone (954) 744-8383 Facsimile (954) 391-7805 Email: efilings@pip-lawyers.com By: /S/ Matthew Emanuel, Esq.___ MATTHEW EMANUEL, ESQ. Florida Bar No. 98392 1/17/2024 10:43 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4