Preview
FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
LAVERN McKENZIE, KAREN OCHIENG, SASHA
VILLALONA, VALRIE BROUGHTON, LORY JEROME,
SHAYNA McKENZIE, BYA BAH, CINDY ROBINSON,
YVETTE DUNCAN and SHERNAT STEWART,
Plaintiff(s),
-against-
Index No.: 035608/2023
KIM CHAMPION, KAREFUL, STANLEY LORMESTIL,
DEBORAH FRANCIS, ZAKIYYAH SALEEM, RACHEL
BELIZAIRE, MARCIA TAYLOR AND KAREFUL AND
KAREFREE TRAINING SCHOOL IN NEW YORK CITY
INC.
Defendant(s).
PLAINTIFFS'
MEMORANDUM OF LAW IN OPPOSITION TO
DEFENDANTS'
MOTION TO DISMISS PURSUANT TO C.P.L.R. § 3211
Defendants'
Plaintiff submits the within Memorandum of Law in Opposition to the
Motion to Dismiss.
STATEMENT OF FACTS
defendants'
Here, Plaintiffs, all victims of the scheme, allege that the Defendants
devised a scheme to run a fraudulent nursing school through a shell company, owned by
Defendant Kim Champion, called Karefree Training School in New York City Inc. (Hereinafter
"Karefree") (Ex. 1, ¶ 19). The defendants charged tuition to people in the nursing profession
who were looking to further their education and become a registered nurse, even though
Champion and the other defendants were not certified and lacked any credentials which would
allow them to offer education that qualified any students to become eligible to take the nursing
boards and become a registered nurse. (Ex. 1, ¶ 19). Plaintiffs further allege that the Defendants,
to enrich themselves, conspired with each other to operate an unaccredited fraudulent nursing
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school to cheat, swindle and charge their victims that were not entitled to. (Ex. 20-
fees, they 1, ¶
24). Plaintiffs consistently assert that they were all misled by the following misrepresentations
made by Defendant Kim Champion; (i) that Karefree Training School in New York City Inc.,
offered an accredited nursing program at a Brooklyn location which was an offsite affiliate of
Defendants'
Kaiser University, (ii) that the Plaintiffs upon completion of program would receive
nursing degrees from Kaiser University and (iii) that Plaintiff would be eligible to sit for the
nursing board examination(s). (Ex. 1, ¶ 25, 26, 32, 38, 44, 50, 56, 62, 68, 74, 80). Defendants
charged each Plaintiff, and each student in their fraudulent program, $26,650. (Ex. 1, ¶ 28, 34,
payments"
49, 58, 61, 70, 82). Each defendant received a share of the "tuition and directly
participated in the fraudulent scheme, by posing as officials and teachers and conducting mock
classes, in the fake school, by collecting tuition payments, by utilizing their affiliations with
legitimate hospital institutions to provide a false façade of legitimacy to the program and by
reinforcing and reiterating Defendant Champion's misrepresentations. (Ex. 1, ¶ 86-95). From
these Plaintiffs alone, Defendants have obtained $232,900 through their fraudulent scheme, not
including the funds that they obtained from their other victims. (Ex. 1, ¶ 28, 34, 40, 46, 52, 58,
64, 70, 76, 82).
Plaintiffs have proffered substantial documentary evidence, including a recorded
conversation¹, between Plaintiff, Villalona and Defendant Champion in which Defendant
Champion represents that she is running a Registered Nurse course, which will take up to a year,
students'
that all of the paperwork and applications are processed in Florida, but that they can sit
for the New York State nursing examination. (Villalona Aff, Exs. 2, 3, p. 2-4). Champion further
represented that the Plaintiffs will be participating in a program with an accredited Florida
Defendants'
1The audio recording is represented by Exhibit 2, and will be provided directly to the Court and
counsel, however, the undersigned had the recording transcribed by a Court reporting agency, and the transcript
of same is attached as exhibit 3.
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University, and that the classes will occur in New York, but that the Plaintiffs will receive a RN
degree from the Florida University. (Villalona Exs. 2- 4).
Aff, 2, 3, p. Champion further
represented that the school is processing applications for their students to take the New York
State Nursing Boards. (Villalona Aff, Exs. 2, 3, ¶ 2-4). Defendant also discussed in length, what
the Plaintiffs needed to become licensed, in addition to graduation from their program. (Villalona
Aff, Exs. 2, 3, p. 8, 9, 15). Champion further represented that Defendants would arrange a review
course for the Nursing licensing tests. (Villalona Aff, Exs. 2, 3, p. 8). In response to a specific
question, Champion represented that her course would allow the Plaintiffs to become a registered
nurse. (Ex., 3, p. 15).
Defendants also issued the Plaintiffs a syllabus for the program, which plainly included a
Defendants'
review for the licensing tests, which reinforced the representations that the Plaintiffs
Defendants'
would be eligible to take the examinations as a result of graduating from the class.
(Jerome, Aff Ex. 10).
Additionally, in furtherance of their scheme, the Defendants provided Plaintiff Laverne
McKenzie with a fake diploma from Keiser University, which attests that Plaintiff obtained an
Associates Degree in Nursing Sciences. (McKenzie, Aff, Ex. 5). Also attached as exhibit 6, is a
fake transcript that the Defendants issued to Plaintiff Laverne McKenzie from Keiser University.
(McKenzie, Aff, Ex. 6). Also attached as exhibit 7, are texts between Laverne McKenzie and
Kim Champion, concerning taking the nursing licensing boards, and doing practice tests to
prepare for the nursing boards, which the Defendants misled Plaintiff to believe that she was
eligible to take based upon the fake degree that they issued to her. (McKenzie, Aff, Ex. 7). Also
attached as Exhibit 8, are messages from a group chat between Plaintiff Karen Ochieng, Kim
Champion and other students who were defrauded by the Defendants, including the Plaintiffs.
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(Ochieng Aff, Ex. 8). As shown in exhibit 8, Kim Champion misrepresented to all of the
Plaintiffs that they would obtain a nursing degree from a Florida University, and would be
eligible for a New York nursing license. (Ochieng Aff, Ex. 8). These texts also show that the
Defendant Champion repeatedly discussed graduation and coursework. (Ochieng Aff, Ex. 8)
DISCUSSION
The Defendant's motion should be denied in all respects because the signed enrollment
forms, which the defendants proffer, do not conclusively refute Plaintiff's claims, are at best
ambiguous and in fact, are internally contradictory. Moreover, there is undeniable corroborating
evidence, that the defendant did in fact make the representations, as such, to the extent that there
defendants'
is a discrepancy between the documents and representations, that is for a jury to
resolve.
In determining whether a complaint is sufficient to withstand a motion to dismiss
pursuant to C.P.L.R. § 3211, the sole criterion is whether the pleading states a cause of
action. Cooper v 620 Prop. Assoc., 242 AD2d 359 [N.Y.A.D. 2d Dept 1997], citing Weiss v
Cuddy & Feder, 200 AD2d 665 [N.Y.A.D. 2d Dept 1994]. If from the four corners of the
complaint factual allegations are discerned which, taken together, manifest any cause of action
cognizable at law, a motion to dismiss will fail. 511 West 232nd Owners Corp. v Jennifer Realty
Co., 98 NY2d 144, 152 [2002]; Cooper, supra, 242 AD2d at 360. The court's function is to
accept each and every allegation forwarded by the plaintiff without expressing any opinion as to
the plaintiffs ability ultimately to establish the truth of these averments before the trier of the
facts. Id., quoting 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 [1979]. The
pleading is to be liberally construed and the pleader afforded the benefit of every possible
favorable inference. 511 West 232nd Owners Corp., supra.
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POINT I: PLAINTIFFS CLAIMS ARE NOT REFUTED BY DOCUMENTARY
EVIDENCE
Defendants'
Here, the enrollment forms, do not utterly refute the Plaintiff's claims,
because (i) they do notdirectly contradict the substance of the Defendant's misrepresentations,
(ii) the language in the forms is unintelligible gibberish, (iii) the forms are ambiguous and in fact
internally inconsistent, and (iv) Plaintiffs have proffered undeniable corroborating evidence that
the Defendant repeatedly made the fraudulent misrepresentations. A motion to dismiss a
complaint based on documentary evidence pursuant to C.P.L.R. § 3211(a)(1) may be granted
ody if the documentary evidence submitted by the moving party utterly refutes the factual
allegations of the complaint and conclusively establishes a defense to the claims as a matter of
law. Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002] ; Harris v Barbera, 96
AD3d 904, 905 [2012]; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520
[2010]); Air & Power Transmission, Inc. v. Weingast, 120 A.D.3d 524, 524-25, 992 N.Y.S.2d 46
plaintiffs'
(2014). Where the writing proffered does not utterly refute the factual allegations, the
Court may not dismiss the complaint. Piccoli v. Cerra, Inc., 174 A.D.3d 754, 757 (2019). To
succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1),
the documentary evidence must utterly refute the plaintiffs factual allegations, conclusively
establishing a defense as a matter of law. Wilson v. Poughkeepsie City Sch. Dist., 147 A.D.3d
1112, 1113 (2 Dep't 2017); see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746
N.Y.S.2d 858 (2002). A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if
the documentary evidence resolves all factual issues as a matter of law, and conclusively
disposes of the plaintiffs claim. Cives Corp. v. George A. Fuller Co., 97 A.D.3d 713, 714,
(2012). To be considered documentary that is sufficient to rebut a Plaintiff's claim, the proffered
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evidence must be unambiguous; consequently a motion to dismiss based upon documentary
evidence, must be denied where the proffered documents are ambiguous because ambiguous
documents are insufficient to utterly refute a Plaintiff s claims. Parekh v. Cain, 96 A.D.3d 812,
815 (2 Dep't 2012); Piccoli v. Cerra, Inc., 174 A.D.3d 754, 756 (2019); Dabidat v. Sandoval,
No. 653861/2012, 2013 WL 2356298, at *5 (N.Y. Sup. Ct. May 28, 2013). Where the purported
documentary evidence does not contain express language that directly refutes the Plaintiff s
contentions, the documents do not utterly refute the Plaintiff s allegations or conclusively
establish a defense. Trask v. Tremper Prop. AssI, Inc., 122 A.D.3d 1206, 1207, 997 N.Y.S.2d
805, 807 (3 Dep't 2014); see also Harris v. Barbera, 96 A.D.3d 904, 905, 947 N.Y.S.2d 548, 550
(2012) [Retainer agreement, which stated that there was "no assurance or guarantee of the
outcome"
and that the agreement "does not include representation for ... legal services after the
Judgment of Trial Court ...or the Appeal of any Trial decision did not utterly refute Plaintiff s
affidavit that the defendants failed to pursue a motion for leave to reargue or other application to
modify a decision in the underlying action, submitted deficient or inappropriate proposed
findings of fact and conclusions of law, and failed to adequately address various necessary issues
during the trial] ; see also DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 814, 936 N.Y.S.2d
51).
defendants'
First, the enrollment forms are insufficient, in and of themselves to utterly
Plaintiffs'
refute claims because they do not directly contradict the representations that the
Defendant made to the Plaintiffs. No where in the forms, does it state that Karefree is not
affiliated with Kaiser University in Florida, nor do the forms state that the Plaintiff s will not be
eligible to take the nursing examinations. These are the representations that caused Plaintiff to
Defendants'
enroll in the program.
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Defendants'
Further, the language in the forms are unintelligible gibberish, which is at
Defendants'
best ambiguous, hence insufficient to utterly refute Plaintiff's claims. Here, forms
state in pertinent part that Karefree "does not operate a credit bearing institution as authorized by
in New A-
Title VIII York State". (Def Exs. J, NYSCEF Does 10-19). First, an ordinary
consumer would not understand that the language that the Defendant is not operating a 'credit
institution'
bearing negates Defendant's representations, that completion of the course, would
enable the participant to take a licensing examination. Moreover, the language that the course if
not a credit bearing institution as authorized by Title VIII in New York State, does not refute
Plaintiff's claims because the Defendant misrepresented that the program was affiliated with
Kaiser University, a Florida University. Moreover, this language is negated by language in the
very same document which states that Karefree will instruct the participant in the format review
in accordance with Education Law and Commissioner's recommendations. The document further
incorporates oral statements made during orientation, which includes the oral representations in
Ex 3, that the program is affiliated with an accredited Florida University and that upon
completion of the course, the Plaintiffs will be eligible to sit for the nursing examination.
Further, the language which seeks to disclaim that the program is a nursing program, is
belied by and rendered ambiguous, by the language on the very same forms, which asks the
applicant to select a course of either LPN, (Licensed Practical Nurse) or RN (Registered Nurse).
Defendants'
Finally, given the other documentary evidence of the misrepresentations and
fraudulent scheme, which is now before the Court, the enrollment forms alone are insufficient to
conclusively resolve Plaintiff's claims as a matter of law. These proofs include a recording in
which the Defendant misrepresents to the Plaintiff(s) that her program is through a Florida
University and that they would be eligible to sit for the Nursing Examinations and obtain a New
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York Nursing license, (ii) Fake diplomas and Fake Transcripts which the Defendants gave the
Plaintiffs from Keiser University, (iii) Syllabus which outlines a nursing course and has a week
to prepare for the nursing licensing examination, (iv) numerous text messages in which the
Defendant reiterates to all of the Plaintiffs in a group chat that they will receive a nursing degree
from a Florida University and a New York nursing license, as well as representations that they
will be graduating, along with reminders to study for the licensing exam. In light of this
Defendants'
overwhelming proof of the fraudulent scheme and fraudulent representations, the
Defendants'
ambiguous, contradictory, vague gibberish language in the enrollment forms does
not conclusively demonstrate that there was no fraudulent misrepresentation by the defendants.
In fact, in light of the enormity of the fraudulent representations, the language in the enrollment
form can only be viewed as an ill conceived and half hearted attempt by Defendant to shield
herself from liability for her massive fraudulent scheme.
Based upon the foregoing, there is adequate proof that the Plaintiffs relied upon the
Defendants misrepresentations, in paying her collectively over $232,000 for a degree and a
qualification to take the nursing boards, all of which the Defendants could not. Simply stated the
ambiguous, vague and gibberish language in the enrollment forms, do not negate Plaintiff's
reliance, especially when considered cumulatively with the undisputable evidence of the
Defendants'
rampant and brazen misrepresentations.
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POINT II: THE PURPORTED PROSPECTIVE RELEASE LANGUAGE, WHICH
SEEKS TO AVOID LIABILITY FOR FRAUD IS VOID AND OF NO
EFFECT
The language in the enrollment form, that generally disclaimed prospective liability, is no
barrier to the Plaintiff's instant case, because the Plaintiffs complain of willful tortious behavior.
Exculpatory provisions in a contract, purporting to insulate one of the parties from liability are
disfavored by the law and closely scrutinized by the courts, and such an agreement will be
viewed as wholly void where it purports to grant exemption from liability for willful acts or
where a special relationship exists between the parties such that an overriding public interest
demands that such a contract provision be rendered ineffectual. Lago v. Krollage, 78 N.Y.2d 95,
99-100 (1991); Gross v Sweet, 49 NY2d 102, (1979). Here, the Plaintiffs complain of willful
misconduct, as such, the disclaimer of liability or prospective release has no application to this
case.
PLAINTIFFS'
POINT III: COMPLAINT MEETS AND EXCEEDS THE PLEADING
REQUIREMENTS TO STATE A FRAUD CAUSE OF ACTION
Plaintiffs'
complaint is more than sufficient state a cause of action for fraud. The
elements of fraud action, are a misrepresentation or a material omission of fact which was false
and known to be false by defendant, made for the purpose of inducing the other party to rely
upon it, the other party's justifiable reliance on the misrepresentation
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Jul 11, 2024 |
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034054/2024
Ruling
JACQUELINE GARCIA VS MANUEL GUANA PRADO, ET AL.
Jul 09, 2024 |
23STCV01539
Case Number:
23STCV01539
Hearing Date:
July 9, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 9, 2024
CASE NUMBER
:
23STCV01539
MOTIONS
:
Motion to Quash Service of Summons and Complaint
MOVING PARTY:
Defendant Ramon Gauna
OPPOSING PARTY:
Plaintiff Jacqueline Garcia
BACKGROUND
On January 24, 2023, Plaintiff
Jacqueline Garcia
(Plaintiff) filed a complaint against
Defendants Manuel Guana Prado, Rosa Trujillo, Christopher Martinez, Ramon Guana, Richard Guana, Rosa Guana, Giovanny Martinez, Sara Trujillo, and Does 1 to 25 for injuries related to a dog bite.
On March 13, 2023, Plaintiff filed a proof of service of the complaint and summons on Defendant Ramon Gauna (Defendant erroneously sued as Ramon Guana) by personal service on February 12, 2023. On July 5, 2023, Plaintiff filed another proof of service of the complaint and summons on Defendant, by substitute service, also on February 12, 2023. On October 31, 2023, Plaintiff filed a final proof of service of the complaint and summons on Defendant by substitute service on September 11, 2023.
On October 31, 2023, default was entered against Defendant. The Court has not yet granted defaulted judgment.
On April 30, 2024, Defendant filed the instant motion to quash service of the summons and complaint and set aside entry of default under Code of Civil Procedure section 418.10(a)(1), or alternatively to set aside the default under section 473.5. Plaintiff opposes and Defendant replies.
ANALYSIS
Quash Service of Summons
A defendant . . . may serve and file a notice of motion for one or more of the following purposes:¿ (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . . .¿(Code Civ. Proc., § 418.10(a).)¿The motion must be filed on or before the last day on which the defendant must plead or within any further time that the court may for good cause allow. (Id.)
A motion to set aside default under Code Civ. Proc., section 473.5 is not a general appearance when filed concurrently with a motion to quash service of summons under Code of Civil Procedure section 418.10. (Code Civ. Proc., section 418.10, subd. (d).)
[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.]¿(
Dill v. Berquist Construction Co.
(1994) 24 Cal.App.4th 1426, 1444.)¿[T]he filing of a proof of service creates a rebuttable presumption that the service was proper but only if it complies with the statutory requirements regarding such proofs.¿(
Id.
at 1441-1442.) ¿On a motion to quash service of summons, the plaintiff has the burden of establishing by a preponderance of the evidence the prima facie facts entitling the court to assume jurisdiction, including whether service was in compliance with statutory requirements. (
Lebel v Mai
(2012) 210 Cal.App.4th 1154, 1160.) A court may rely upon the verified declarations of the parties and other competent witnesses. (
Buchanan v. Soto
(2015) 241 Cal.App.4th 1353, 1362.) A court lacks jurisdiction over a party if there has not been proper service of process.¿(
Ruttenberg v. Ruttenberg
(1997) 53 Cal.App.4th 801, 808.)
If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Service post office box, in the presence of a competent member of the household or a person apparently in charge of his or her office, place of business, or usual mailing address other than a United States Postal Service post office box, at least 18 years of age, who shall be informed of the contents thereof, and by thereafter mailing a copy of the summons and of the complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left. (Code Civ. Proc. § 415.20(b).)
Here, Defendant first seeks to discredit Plaintiffs process server, showing that the proof of service filed
March 13, 2023 attempted to show personal service at 9334 Coachman Ave., Whittier on Defendant and two other defendants who were deceased at the time.
[1]
(See Motion, 4; Gauna Decl. ¶ 6.) Therefore, Defendant questions the truthfulness of the process server.
On July 5, 2023, Plaintiff later filed a new proof of service on July 5, 2023, showing this time, substitute service on Defendant on February 12, 2023the same date as the original proof of service. This proof of service contains a declaration by the process server Daniel Aragon, who declares that on February 12, 2023, there appeared to be a Super Bowl party at the address. (Proof of Service, 7/5/23, Aragon Decl. ¶ 4.) Aragon handed the papers to a man who answered the door who was about 30 to 40 years old, 5'9" to 6' tall and about 200 lbs. (
Id.
, Aragon ¶ 5.)
However, this declaration does not show that Aragon confirmed that the person accepting the papers was a member of the household and not merely a guest at the purported Super Bowl party. In the instant motion, Defendant contends there was no Super Bowl viewing party on the day of service. (Gauna Decl. ¶ 6.)
Pertaining to the September 11, 2023 service, Defendant argues that substitute service never occurred. The proof of service shows that substitute service took place at 9334 Coachman Ave. Whittier, at 8:20 p.m. The papers were served on John Doe (Refused Name) co-occupant; Asian American Male, 70s, 170 lbs., 57, White Hair, Brown Eyes. The proof of service also includes a declaration of diligence and mailing. The declaration of diligence states: Substituted Service on John Doe he refused name, he was in the garage area with lights on when I called Ramon Guana. He started walking into the house and would not talk to me, Asian American Male, 70s 170 lbs., 57, White Hair, Brown Eyes.
Defendant argues that he is Hispanic and no one in his household appears to be Asian; he further states no one would have opened the door for a stranger at 8:20 at night. (Gauna Decl. ¶ 4.) Defendant also argues that he never received the summons and complaint in the mail.
Since Defendant is asserting that the Court lacks personal jurisdiction, Plaintiff has the burden to show by a preponderance of the evidence, that service was proper.
In opposition, Plaintiff contends that Defendant was personally served on February 12, 2023 because when Aragon asked for Defendant and the two deceased Defendants, three men came to the door and accepted the packages. Plaintiff argues no one stated that two were deceased. Therefore, they led Aragon to believe they were the named defendants. Plaintiff argues that even if these were not the named defendants, by accepting them, substitute service was effectuated. Finally, Plaintiff argues that the substitute service on September 11, 2023 was proper. Plaintiff sets forth evidence that Plaintiffs counsel conducted a search of Defendant on Been.Verified.com. Counsel asserts the report confirmed Defendants address and that he is 77 years old. (Rosa Decl. ¶15.)
In reply, Defendant does not dispute that he resides at 9334 Coachman Avenue. But further disputes that the purported service took place. Defendant files a second declaration in reply, addressing the opposition. In it, Defendant states under penalty of perjury that [t]here is no Asian person who lives at my residence or who has visited my residence in the last few years. There is no one living at my residence or even has visited my residence (especially who would have been in the garage in the last year with white hair. It would have been impossible for someone to hand papers to anyone (or even throw papers at anyone) in the garage of my residence because there is a locked, wrought iron and metal mesh gate about twenty-five feet in front of the area which prevents entry to the back of the driveway and garage area. (Gauna Decl. ¶ 45.)
Plaintiff provides no support that service can be effectuated if the process server is led to believe that they served the proper person. Plaintiff also provides no evidence that on February 12, 2023, any person explicitly stated they were the named defendants. As for the September 11, 2023 substitute service, while Plaintiff provides evidence of Defendants address, and the fact that his age matches the description in the proof of service, Plaintiff provides no further evidence to show that the person served was a member of the household. There are no further descriptions of Defendants characteristics to determine whether service occurred. The declaration by Elias Elhayek, who purportedly effectuated service on September 11, 2023, does not contain specific facts of the service and only authenticates the declaration of diligence attached to the proof of service. (Elhayek Decl. ¶ 2, Exh. C.)
Therefore, Plaintiff has not shown by a preponderance of the evidence, that service was proper. Therefore, the motion to quash is granted and the default entered on October 31, 2023 against Defendant is set aside.
CONCLUSION AND ORDER
Therefore, the Court GRANTS Defendants motion to quash service of summons and complaint.
The matter is set for an Order to Show Cause Re: Dismissal or Monetary Sanctions for Failure to Serve for September 16, 2024 at 8:30 a.m.
Defendant to provide notice and file a proof of service of such.
[1]
Defendant also appears to move to dismiss the two deceased Defendants: Manuel Gauna and Richard Gauna. However, it appears Plaintiff dismissed these two parties on June 18, 2024. Therefore, the Court will not address this argument as it appears moot.
Ruling
DWIGHT DARNELL HAYNES, JR. VS CALL-THE-CAR, ET AL.
Jul 10, 2024 |
23TRCV02029
Case Number:
23TRCV02029
Hearing Date:
July 10, 2024
Dept:
8
Tentative Ruling
HEARING DATE:
June 10, 2024
CASE NUMBER:
23TRCV02029
CASE NAME:
Dwight Darnell Haynes, Jr. v. Call-The-Car, et al.
TRIAL DATE:
Not Set.
MOTION:
(1) Motion to be Relieved as Counsel
Tentative Rulings:
(1) GRANTED.
I.
Background
On June 22, 2023, Plaintiff, Dwight Darnell Haynes, Jr. (Plaintiff) filed a Complaint against Defendant, Call-The-Car, and DOES 1 through 25. The Complaint alleges causes of action for: (1) General Negligence; and (2) Medical Malpractice. Plaintiff alleges that he is a wheelchair-bound individual who was at his residence when the defendants came to pick him up in order to transport him to the hospital. Plaintiff contends that he was being carried by the defendants on their stretcher when Defendants negligently dropped the Plaintiff from the stretcher and the Plaintiff landed on a hard concrete floor sustaining injuries.
Now, Samuel Ogbogu, Counsel for Plaintiff, Dwight Darnell Haynes, Jr. files a Motion to be Relieved as Counsel.
II.
Legal Standard & Discussion
Code of Civil Procedure § 284 states that the attorney in an action&may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney&; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other. (Code Civ. Proc. § 284; CRC 3.1362.) The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably. (See
Mandell v. Superior
(1977) 67 Cal.App.3d 1, 4;
Lempert
¿v. Superior Court
(2003) 112 Cal.App.4th 1161, 1173.)
In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court 3.1362. The motion must be made using mandatory forms: Notice of Motion and Motion to be Relieved as Counsel directed to the client Civil (MC-051); Declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship reasons the motion was brought (MC-052); and a Proposed Order (MC-053). (
Ibid.
) The forms must be filed and served on all parties who have appeared in the case. (
Ibid.
)
Here, Plaintiffs counsel,
Samuel Ogbogu (Ogbogu),
moves the Court to relieve him as attorney of record for Plaintiff.
Ogbogu
properly filed a Notice of Motion, Motion to be Relieved as Counsel, Declaration, and Proposed Order in accordance with Cal. Rules of Court 3.1362. On June 5, 2024, all forms for the pending motion were served on Plaintiffs last known address via mail. Ogbogu contends that the clients last known address was confirmed within the past 30 days via conversation. On June 5, 2024 proof of service for said documents was filed with the Court.
In his declaration, Ogbogu notes that he has filed this motion as a result of irreconcilable differences.
Since Plaintiffs counsel has complied with all procedural requirements in filing a motion to be relieved as counsel and because the withdrawal would not cause an injustice or undue delay in proceedings, the Court finds that withdrawal of, Samuel Ogbogu, as attorney of record for Plaintiff can be accomplished without undue prejudice to the Plaintiffs interests.
III.
Conclusion & Order
For the foregoing reasons, Samuel Ogbogus Motion to Be Relieved As Counsel is GRANTED and the Order will be signed at the hearing. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective until proof of service of a copy of the signed order on Plaintiff and Defendant has been filed with the court. (Id.)
Moving party is ordered to give notice.
Ruling
Eric Amadei vs Timothy Morgan, ESQ, et al
Jul 11, 2024 |
23CV00719
23CV00719
AMADEI v. MORGAN
(UNOPPOSED) MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED
IN PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE AND FOR
MONETARY SANCTIONS
The unopposed motion is granted.
Plaintiff seeks an order deeming the truth of all matters specified in his requests for
admissions, set one, propounded on defendant Morgan. Plaintiff also seeks monetary sanctions in
the amount of $2,145.00.
I. Legal Authority
Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), if a party fails to
serve a timely response to requests for admission, the requesting party may move for an order
that the genuineness of any documents and the truth of any matter specified in the request be
deemed admitted, as well as for monetary sanctions.
Code of Civil Procedure section 2033.280, subdivision (c) requires the court to make this
order “unless it finds that the party to whom the requests for admission have been directed has
served, before the hearing on the motion, a proposed response to the requests for admission that
is in substantial compliance with Section 2033.220. It is mandatory that the court impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or
attorney, or both, whose failure to serve a timely response to requests for admission necessitated
this motion.”
II. Discussion
Page 2 of 3
Pursuant to the Discovery Act, the court shall order the requests for admission as
admitted unless code-compliant responses are served before the hearing. (Code of Civ. Proc. §
2033.280, subd. (c).)
Plaintiff served requests for admissions, set one on April 5, 2024, via electronic service,
on defendant. (Ex. 2 to Dec. of U. Singh.) Defendant failed to respond to the requests and has not
communicated with plaintiff’s counsel regarding the requests. (Dec. of U. Singh at ¶ 8.)
The court deems admitted all matters specified in requests for admissions, set one,
attached to the Declaration of Mr. Singh as Ex. 2. (Code Civ. Proc. § 2033.280, subd. (b).) This
will be the order of the court unless defendant serves, before the hearing on the motion, a
proposed response to the requests for admissions that is in substantial compliance with Code of
Civil Procedure section 2033.220.
The court imposes monetary sanctions against defendant Morgan in the amount of
$1,195.00, payable no later than July 31, 2024.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
MARIA RINCON VS EVANGELINA RIVERA
Jul 09, 2024 |
23CHCV02983
Case Number:
23CHCV02983
Hearing Date:
July 9, 2024
Dept:
F49
Dept. F49
Date: 7/9/24
Case Name:
Maria Rincon v. Evangelina Rivera; and Does 1-50
Case No. 23CHCV02983
LOS ANGELES SUPERIOR COURT
NORTH VALLEY DISTRICT
DEPARTMENT F49
JULY 9, 2024
MOTION FOR ORDER COMPELLING PLAINTIFF TO RESPOND TO REQUESTS FOR PRODUCTION OF DOCUMENTS; REQUEST FOR SANCTIONS
Los Angeles Superior Court Case No. 23CHCV02983
Motion filed:
4/12/24
MOVING PARTY:
Defendant Evangelina Rivera (Rivera or Plaintiff)
RESPONDING PARTY:
None
NOTICE:
OK
RELIEF REQUESTED:
An order compelling Plaintiff Maria Rincons (Rincon or Plaintiff) responses to Defendants Requests for Production of Documents, Set One, and imposing monetary sanctions, against Plaintiff and her attorney of record, in the amount of $561.65.
TENTATIVE RULING:
The motion
is GRANTED. The request for monetary sanctions is GRANTED.
BACKGROUND
This action arises from alleged personal injuries and property damages sustained by Plaintiff as a result of an automotive collision that occurred on October 15, 2021. The Complaint alleges that Defendant ignored a solid red stop light, striking Plaintiff in a t-bone accident. (Compl. ¶¶ 7-8.)
On October 4, 2023, Plaintiff filed her Complaint against Defendant and Does 150, alleging the following causes of action: (1) Negligence, and (2) Motor Vehicle Negligence. Subsequently, on January 3, 2024, Defendant filed an Answer to the Complaint.
On April 12, 2024, Defendant filed the instant Motion to Compel Responses to Requests for Production of Documents and Request for Monetary Sanctions (the Motion).
No Opposition or Reply papers have been received by the Court.
ANALYSIS
If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc., § 2031.300, subd. (b).) Unlike a motion to compel further responses, a motion to compel responses in not subject to a 45-day time limit, and the propounding party does not have to demonstrate either good cause or that it satisfied a meet and confer requirement. (
Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants
(2007) 148 Cal.App.4th 390, 404 [internal citations omitted].)
A.
Motion to Compel Responses to Requests for Production of Documents, Set One
Defendant counsel attests that on January 2, 2024, Defendant propounded the first set of Request for Production of Documents on Plaintiff, to which the responses were due on February 5, 2024. (Cadena Decl. ¶ 3.) However, no responses were received from Plaintiff by the due date. (
Id
. ¶ 4.) Subsequently, on March 8, 2024, Defendants counsel sent a meet and confer letter regarding the late discovery responses and requested Plaintiffs counsel to provides responses, without objection, by March 18, 2024. (
Id
. ¶ 5.) Despite the effort, no responses were received by March 18, 2024, and no extensions were requested by Plaintiff. (
Id
. ¶ 6.) Furthermore, Defendants counsel called and left a voicemail to Plaintiffs counsel on April 12, 2024. (
Id
. ¶ 8.) To date, Plaintiff has not responded to Defendants Requests for Production of Documents, Set One. (
Id
. ¶ 7.)
Based on the records above, and given that no Opposition has been filed by Plaintiff, the Court finds that Plaintiff has failed to serve a timely response, thereby waiving any objection to the Demand for Inspection and Production of Documents, including those based on privilege or the protection for work product, pursuant to Code of Civil Procedure section 2031.300, subdivision (a).
Therefore, the Court GRANTS the Motion to Compel Plaintiffs Responses to Defendants Requests for Production of Documents, Set One.
B.
Request for Monetary Sanctions
Code of Civil Procedure section 2031.300, subdivision (c) provides, in part, Except as provided in subdivision (d), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
As the Court has previously granted the Motion, it concludes that the mandatory monetary sanctions under Code of Civil Procedure section 2031.300, subdivision (c) are applicable here.
Accordingly, in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorneys fees and costs incurred for the work in preparing the Motion is $561.65, calculated at a reasonable hourly rate of $250 for two hours reasonably spent plus $61.65 for filing fees.
Therefore, Defendants Request for Monetary Sanctions is GRANTED.
CONCLUSION
Defendants Motion to Compel Responses to Requests for Production of Documents, Set One, is GRANTED.
Plaintiff is ordered to serve responses to Defendants Requests for Production of Documents, Set One, without objection, within 20 days of this order.
Defendants Request for Monetary Sanctions is GRANTED.
Plaintiff and her attorney or record are ordered to pay $561.65, jointly and severally to Defendant within 20 days.
Moving party to give notice.
Ruling
MARIA LUZ NIEVES VS KEVIN GEORGE AZIZ RIAD, ET AL.
Jul 10, 2024 |
20STCV08423
Case Number:
20STCV08423
Hearing Date:
July 10, 2024
Dept:
M
LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka
Wednesday, July 10, 2024
Department M
Calendar No. 16
PROCEEDINGS
Maria Luz Nieves, et al. v. Kevin George Aziz Riad, et al.
20STCV08423
1.
K&K Limousine Services, Inc., et al.s Motion for Summary Judgment, or in the Alternative, Summary Adjudication
TENTATIVE RULING
K&K Limousine Services, Inc.s Motion for Summary Judgment is granted.
KMK Properties, LLC (KMK) and AVA Mina Properties, LLCs (AVA) Motion for Summary Judgment, or in the Alternative, Summary Adjudication is deemed moot. These Defendants were dismissed on June 28, 2024.
Background
Plaintiffs filed their Complaint on February 28, 2020. Plaintiffs First Amended Complaint was filed on June 11, 2020. Plaintiffs allege the following facts. Plaintiffs decedent was killed in an automobile accident. Defendants were operating a 2016 Tesla Model S which purportedly suffered from defects. Plaintiffs allege the following causes of action: 1) Wrongful Death-General Negligence 2) Wrongful Death-Negligent Hiring, Training, and Supervision 3) Negligent Entrustment of Motor Vehicle 4) Products Liability-Negligence 5) Products Liability- Design Defect 6) Products Liability- Manufacturing Defect 7) Products Liability- Failure to Warn 8) Negligence- Manufacturer or Supplier-Duty to Warn 9) Negligence- Recall/Retrofit.
Motion for Summary Judgment or Summary Adjudication
The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.
(
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.)
Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
(
Adler v. Manor Healthcare Corp
. (1992) 7 Cal. App. 4th 1110, 1119.)
On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.
(
Scalf v. D. B. Log Homes, Inc.
(2005) 128 Cal. App. 4th 1510, 1519.)
A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.
CCP § 437c(p)(2).
Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. CCP § 437c(p)(2).
If the plaintiff cannot do so, summary judgment should be granted.
Avivi v. Centro Medico Urgente Medical Center
(2008) 159 Cal. App. 4th 463, 467.
A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc., § 437c(p)(1).
When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.
(
Avivi
, 159 Cal.App.4th at 467; CCP § 437c(c).)
Defendants move this Court pursuant to Code of Civil Procedure Section 437c for entry of summary judgment, or alternatively summary adjudication, in Defendants favor and against Plaintiffs Maria Luz Nieves, individually and as a successor-in-interest of Maria Guadalupe Nieves, deceased; Lorena Ochoa individually and as successor in interest to Gilberto Lopez, Deceased; Ulises Alcazar through Guardian Ad Litem, Rosalia Lopez, individually, Hector Rafael Alcazar through Guardian Ad Litem, Rosalia Lopez, Marilee Cristina Alcazar through Guardian Ad Litem and Rosalia Lopez. Issues 1 to 3 seek summary adjudication of the first through third causes of action.
At the time of the accident, Defendant Kevin George Aziz Riad was driving a 2016 Tesla Model S.
Plaintiffs named as Defendants Kevin Riad, as well as the registered owners of the Tesla George Salib and K&K Limousine Services, Inc. (K&K Limousine).
Plaintiffs also named KMK and AVA Mina as Defendants. However, as mentioned above, these Defendants were dismissed.
To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.
Lueras v. BAC Home Loans Servicing, LP
(2013) 221 Cal.App.4th 49, 62.
Negligent entrustment is a common law liability doctrine, which arises in numerous factual contexts. [Citation.] In cases involving negligent entrustment of a vehicle, liability is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver. [Citations.] Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner. [Citation]; accord, Rest.2nd Torts, § 308 [It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others].) [¶] California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [¶] A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver. (See Judicial Council of Cal., Civ. Jury Instns. (2010) CACI No. 426.) That same awareness underlies a claim for negligent entrustment. (See CACI No. 724.) In a typical case ... the two claims are functionally identical.
McKenna v. Beesley
(2021) 67 Cal.App.5th 552, 565567 (internal citations and quotations omitted).
The following statutory authority applies in this action: Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner. Veh. Code, § 17150.
Defendant K&K Limousine has met its initial burden to show that an essential element or elements of Plaintiffs causes of action cannot be established and/or that there is a complete defense to the causes of action. Plaintiffs have not met their burden to provide specific facts to show the existence of a triable issue of material fact as to the causes of action.
CCP § 437c(p)(2).
Plaintiffs failed to dispute any of the separate statement of facts submitted by Defendants. Most significantly, Plaintiffs did not dispute fact number 5 which stated that Defendant K&K Limousine did not give permission for Defendant Riad to operate the vehicle and that permission to operate the vehicle had only been granted by George Salib. Thus, Plaintiffs submitted no facts or evidence to support the proposition that K&K Limousine gave permission, express or implied, to operate the vehicle. With no evidence of permission, liability as the owner pursuant to Veh. Code § 17150 cannot be established. The Court notes that George Salib is not a moving party on this motion. In addition, Plaintiffs submitted no evidence that Riad was employed by K&K Limousine to support the theories of negligent entrustment and negligent hiring, training, and supervision.
Therefore, for the foregoing reasons, K&K Limousines Motion for Summary Judgment is granted.
Defendant is
ordered to give notice of this ruling.
Ruling
TONIA ANDRUS FLORES, ET AL. VS SAFECO INSURANCE, A LIBERTY MUTUAL COMPANY
Jul 10, 2024 |
23NWCV03289
Case Number:
23NWCV03289
Hearing Date:
July 10, 2024
Dept:
C
TONIA FLORES, ET AL. v. SAFECO INSURANCE COMPANY OF AMERICA
CASE NO.:
23NWCV03289
HEARING
: 7/10/24 @ 9:30 A.M.
#8
TENTATIVE RULING
Plaintiffs Tonia and Allen Floress motion to compel arbitration is GRANTED.
Moving Party to give NOTICE.
On September 28, 2022, DOE defendants 1 through 25 allegedly collided with the vehicle driven by plaintiff Allen Burton Flores, causing it to collide with another vehicle driven by plaintiff Tonia Andrus Flores. DOE defendants 1 through 25 allegedly did not stop and identify themselves. Plaintiffs submitted the claim to defendant Safeco Insurance Company of America.
Plaintiffs move to compel arbitration with Safeco Insurance Company of America. On June 5, 2024, the Court continued the motion to compel arbitration because Defendant filed its opposition late.
Discussion
Insurance Code section 11580.2
requires insurers to provide coverage for bodily injury or wrongful death caused by uninsured motorists. Uninsured motorist coverage requires the driver to have been injured by a vehicle with no available liability coverage, which includes when the identity of the owner or operator of the vehicle is unknown. (Ins. Code, § 11580.2, subd. (b).)
Subdivision (f) states that if the insurer and the insured cannot agree whether the insured is legally entitled to recover damages from an uninsured motorist and the amount of such damages, arbitration will determine these issues. (
Ins. Code, § 11580.2, subd. (f)
.)
The parties dispute liability and nature and extent of the damages. (Opp., pg. 2.) Thus, the parties dispute is subject to arbitration.
Defendant states it will participate in arbitration once discovery is complete. However, Defendant can also conduct discovery in arbitration.
Thus, the Court grants the motion.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 10, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Page 1 of 1
Ruling
H. N. vs Scotts Valley Unified School District, et al
Jul 10, 2024 |
22CV01828
22CV01828
H.N. v. SCOTTS VALLEY UNIFIED SCHOOL DISTRICT, et al.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
SUMMARY OF RULING:
Defendants’ motion for summary judgment/adjudication is granted on the grounds that
defendants District, Krause and Wahl have established a complete defense to the action since
they are immune pursuant to Government Code §§ 820.2, 815.2, and 855.4.
The motion is granted as to defendant Gelter since plaintiff’s evidence fails to establish
she is liable for false imprisonment, negligence, intentional infliction of emotional distress, any
Bane Act violation, or civil rights violations.
I. BACKGROUND
Plaintiff is a minor who was enrolled in first grade at Brook Knoll Elementary School in
2022. Through his parental guardian he alleges a variety of harm, all related to actions by school
employees related to COVID-19 protocols and their impact on him. His causes of action are false
imprisonment, negligence, intentional infliction of emotional distress, violations of Civil Code
§52 (Bane Act), and civil rights violations (First and Fourteenth Amendments of the US
Constitution; Cal. Constitution, Art. I, section 2(a); and Education Code § 48907(a)).
Defendants Scotts Valley Unified School District (“District”), Tanya Krause
(superintendent), Joshua Wahl (principal), and Meghann Gelter (teacher) move for summary
judgment or summary adjudication on the grounds they are immune from liability based upon
Government Code §§ 820.2, 855.4, 818.2, and 820.4; that no false imprisonment occurred due to
H.N.’s parental consent; negligence and intentional infliction of emotional distress fail since the
District’s and its employees’ measures were within a school’s customary supervisory duties and
were reasonable; and the Bane Act and civil rights claims fail since plaintiff had no
constitutional right to enter school unmasked or without participating in COVID-19 testing,
defendants’ measures were reasonable, and the District is permitted to exclude students who
refuse to comply with public health and safety measures related to communicable disease.1
Plaintiff’s allegations deal with the school’s implementation of COVID-19 protocols
related to his unvaccinated status and refusal to test over a two-month period in early 2022 –
such as requiring him to remain home for 10 days despite no exposure, allegedly berating him to
1
An additional defendant, Nadia Oskolkoff (Director of Student Services), was not included in defendants’ answer
to the FAC and there is no default or dismissal in the court record. Defendants fail to mention her in their briefing
and plaintiff identifies her only in his Bane Act claim arguing she called the police on him. (Opp. at 14.)
Page 2 of 18
wear a mask outdoors at recess, sequestering him from his peers with a 1:1 aide (even when he
earned Student of the Week), sending him to the nurse when he refused to use hand sanitizer and
asked to wash his hands instead, sending him to the principal’s office when he refused to wear a
mask (nearly every day), taking him aside and telling him not to discuss his family’s decisions in
front of his peers, refusing to allow him to hold a sign at recess he made that said, “END THIS
NONSENSE,” and accusing him of disrupting class. (First Amended Complaint (“FAC”) ¶¶14-
59)
II. MOTION
A. Moving papers
Defendants’ motion is based primarily on applicable governmental immunities:
• Government Code §§ 820.2, 815.22 – public employees immune for discretionary
acts, and where a public employee is immune, the entity is as well. Defendants
argue that all of their acts dealing with plaintiff and his unvaccinated status and
refusal to mask or stay home required the exercise of discretion (making a
conscious policy decision, balancing risks and advantages). (UMF 3, 4.)
• § 855.4 – decisions to perform or not to perform acts promoting public health by
preventing disease that is the result of discretion vested with the public entity; the
district and its staff’s decisions as to how to protect plaintiff’s, and others’, health
and provide plaintiff instruction when he refused to vaccinate, mask or stay home.
(UMF 6, 7.)
• § 818.2 – public entity not liable for adopting or failing to adopt an enactment or
failing to enforce any law; here, the adoption of the Cal. Dept. of Public Health’s
(“CDPH”) masking and quarantining policies for schools. (UMF 9, 10.)
• § 820.4, Education Code § 44805 – immunity for acts or omissions, exercising
due care, in the execution or enforcement of any law; district’s and staff’s
enforcement of CDPH’s mandates and district policies and protocols for testing,
masking and quarantining. (UMF 12-15.)
As for false imprisonment (first cause of action), the district argues none of its conduct in
separating plaintiff from his classmates in the principal’s office or an unused classroom was
unlawful and therefore this claim fails. Since the district is required to supervise students at all
times and to enforce rules and regulations for their protection, and students are required to be in
their classroom participating in a non-disruptive manner, defendants argue that their acts to
2
All future statutory references are to the Government Code, unless otherwise stated.
Page 3 of 18
separate plaintiff and provide him instruction apart from his classmates was lawful. (UMF 17-
24.)
Defendants contend negligence (second cause of action) also fails since there is no
evidence they breached their duty in supervising plaintiff while he was on school grounds. They
exercised reasonable care in plaintiff’s supervision and did not breach their standard of care,
which is that of a person of ordinary prudence, charged with comparable duties. (Hoyem v.
Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513; C.A. v. Wm. S. Hart Union High
Sch. Dist. (2012) 53 Cal.4th 861, 869.) While he was separated from others, defendants
accommodated him by giving him a one-on-one substitute, schoolwork to complete, breaks,
recess, and the ability to participate in his student of the week award presentation (conducted
outside). (UMF 25-29.)
The intentional infliction of emotional distress (“IIED”) claim (third cause of action)
allegedly fails since there is no evidence that defendants acted with extreme and outrageous
conduct with the intention of causing emotional distress or realization that harm would result.
Instead, they accommodated plaintiff’s refusal to comply with the COVID-19 protocols while he
was at school. (UMF 30-32.)
Defendants argue the Bane Act claim (fourth cause of action) fails because there is no
evidence that by threats or coercion, defendants intended to deprive plaintiff of his rights secured
by federal or state law. They argue plaintiff’s conduct was not protected free speech since his
and his parents’ conduct were unquestionably disruptive to the orderly operation of the school, in
violation of Education Code § 48907. They contend plaintiff did not have any right to defy the
COVID-19 protocols and remain in school with his classmates. Further, plaintiff did not believe
any defendant would commit violence against him and no defendant threatened or committed
violence against him. Even if plaintiff and his parents were offended by the COVID-19 protocols
and resulting measures to protect plaintiff and others, courts permit the exclusion of students
who refuse to comply with public health and safety measures designed to prevent the spread of
communicable disease. (Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, 990; Brown
v. Smith (2018) 24 Cal.App.5th 1135, 1146.) (UMFs 33-36.)
The civil rights violations alleged in the fifth cause of action must fail, defendants argue,
because they were required to comply with and enforce the CDPH school mandates, and those
mandates were lawfully adopted via the governor’s emergency executive orders. (640 Tenth LP
v. Newsom (2022) 78 Cal.App.5th 840, 855.) Defendants complied with those mandates and their
obligation to provide an alternative educational setting to plaintiff when he refused to comply
with them. There is no evidence their actions constituted civil rights violations. (UMF 37-39.)
B. Opposition
Page 4 of 18
Plaintiff argues there are disputed material facts related to all his causes of action. He
alleges defendants would not allow him on campus despite him not being sick and not needing to
quarantine, and choosing to not use masks, tests or vaccines. In response to these choices,
plaintiff says he was “punished, humiliated, ostracized, falsely imprisoned, and bullied by
educators,” that he was emotionally traumatized and requires therapy, and that he no longer
trusts adults. He goes on to argue that defendants weaponized local government agencies – local
police, the county superintendent, and president of the school board – against him and his family.
He contends that his father’s interaction with a local police officer during a traffic stop, the
county superintendent’s offer to involve the police regarding the family’s disruptive behavior,
and the board member’s consideration of making a CPS report, support his weaponization
theory.
He argues immunity does not apply because defendants merely regurgitated CDPH
protocols and did not actually make any policy decisions; that defendants’ acts have nothing to
do with public health but are instead tortious conduct; that they do not enjoy immunity for their
adoption of the enactment (CDPH mandates) since they are not law enforcement and there was
no “law” to enforce; and they were not exercising due care in the execution of a law since there
was no “law.”
Plaintiff insists neither he nor his parents consented to his confinement and separation
from his classmates, so his false imprisonment claim survives. He argues there are disputed
material facts as to whether defendants had any lawful privilege to separate plaintiff. He
contends that defendants breached their duty to him in failing to use ordinary care by segregating
and discrimination against him, that there is evidence defendants’ conduct was extreme and
outrageous, and that threats of violence are not required to establish a Bane Act claim. Plaintiff
then argues that defendants punitively enforced the COVID-19 recommendations, which were
not approved through any due process requirements of the APA and had no force and effect of
law.
C. Reply
On reply, defendants restate their arguments on immunity and clarify that discretionary
acts are those that require personal deliberation, decision and judgment and not merely the
performance of an act in which the actor is left without choice. (Johnson v. State of California
(1968) 69 Cal.2d 782, 788.) Defendants argue they were faced with decision-making when
plaintiff refused to wear a mask, and that the CDPH mandates did not actually describe specific
actions for how to respond to students who failed to comply. (Defendants’ RJN nos. 5-7.)
Instead, district employees were left to figure out how to respond and how to accommodate using
their judgment. They argue these judgments and decisions were based on the goal of protecting
the school community by reducing the risk of threat of contagious and infection disease, thereby
Page 5 of 18
invoking immunity under § 855.4. (See Schmidt v. City of Pasadena (C.D. Cal. Mar. 21, 2024,
Document
Lorraine Wilson v. Gbr Middletown Road Limited Liability Company, Pearl River Shop-Rite Associates, Inc., Inserra Supermarkets, Inc., Shop-Rite Supermarkets, Inc., Pearl River Mjt, Llc, Glass Gardens Inc., Pedrick'S Glass Gardens, Inc., Gibraltar Management Co. Inc., Gbr Tarrytown Llc, John Doe Corporation Said Company Being Fictitious As True Corporate Entity Is Unknown
Jul 11, 2024 |
Torts - Other (Slip & Fall) |
Torts - Other (Slip & Fall) |
034054/2024
Document
Lavern Mckenzie, Karen Ochieng, Sasha Villalona, Valrie Broughton, Lory Jerome, Shayna Mckenzie, Bya Bah, Cindy Robinson, Yvette Duncan, Shernat Stewart v. Kim Champion, Stanley Lormestil, Deborah Francis, Zakiyyah Saleem, Rachel Belizaire, Marcia Taylor, Kareful And Karefree Training School In New York City Inc
Nov 07, 2023 |
Keith Cornell
|
Torts - Other (intentional tort fraud) |
Torts - Other (intentional tort fraud) |
035608/2023
Preview
FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND LAVERN McKENZIE, KAREN OCHIENG, SASHA VILLALONA, VALRIE BROUGHTON, LORY JEROME, SHAYNA McKENZIE, BYA BAH, CINDY ROBINSON, YVETTE DUNCAN and SHERNAT STEWART, Plaintiff(s), -against- Index No.: 035608/2023 KIM CHAMPION, KAREFUL, STANLEY LORMESTIL, DEBORAH FRANCIS, ZAKIYYAH SALEEM, RACHEL BELIZAIRE, MARCIA TAYLOR AND KAREFUL AND KAREFREE TRAINING SCHOOL IN NEW YORK CITY INC. Defendant(s). PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS PURSUANT TO C.P.L.R. § 3211 Defendants' Plaintiff submits the within Memorandum of Law in Opposition to the Motion to Dismiss. STATEMENT OF FACTS defendants' Here, Plaintiffs, all victims of the scheme, allege that the Defendants devised a scheme to run a fraudulent nursing school through a shell company, owned by Defendant Kim Champion, called Karefree Training School in New York City Inc. (Hereinafter "Karefree") (Ex. 1, ¶ 19). The defendants charged tuition to people in the nursing profession who were looking to further their education and become a registered nurse, even though Champion and the other defendants were not certified and lacked any credentials which would allow them to offer education that qualified any students to become eligible to take the nursing boards and become a registered nurse. (Ex. 1, ¶ 19). Plaintiffs further allege that the Defendants, to enrich themselves, conspired with each other to operate an unaccredited fraudulent nursing 1 1 of 13 FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 school to cheat, swindle and charge their victims that were not entitled to. (Ex. 20- fees, they 1, ¶ 24). Plaintiffs consistently assert that they were all misled by the following misrepresentations made by Defendant Kim Champion; (i) that Karefree Training School in New York City Inc., offered an accredited nursing program at a Brooklyn location which was an offsite affiliate of Defendants' Kaiser University, (ii) that the Plaintiffs upon completion of program would receive nursing degrees from Kaiser University and (iii) that Plaintiff would be eligible to sit for the nursing board examination(s). (Ex. 1, ¶ 25, 26, 32, 38, 44, 50, 56, 62, 68, 74, 80). Defendants charged each Plaintiff, and each student in their fraudulent program, $26,650. (Ex. 1, ¶ 28, 34, payments" 49, 58, 61, 70, 82). Each defendant received a share of the "tuition and directly participated in the fraudulent scheme, by posing as officials and teachers and conducting mock classes, in the fake school, by collecting tuition payments, by utilizing their affiliations with legitimate hospital institutions to provide a false façade of legitimacy to the program and by reinforcing and reiterating Defendant Champion's misrepresentations. (Ex. 1, ¶ 86-95). From these Plaintiffs alone, Defendants have obtained $232,900 through their fraudulent scheme, not including the funds that they obtained from their other victims. (Ex. 1, ¶ 28, 34, 40, 46, 52, 58, 64, 70, 76, 82). Plaintiffs have proffered substantial documentary evidence, including a recorded conversation¹, between Plaintiff, Villalona and Defendant Champion in which Defendant Champion represents that she is running a Registered Nurse course, which will take up to a year, students' that all of the paperwork and applications are processed in Florida, but that they can sit for the New York State nursing examination. (Villalona Aff, Exs. 2, 3, p. 2-4). Champion further represented that the Plaintiffs will be participating in a program with an accredited Florida Defendants' 1The audio recording is represented by Exhibit 2, and will be provided directly to the Court and counsel, however, the undersigned had the recording transcribed by a Court reporting agency, and the transcript of same is attached as exhibit 3. 2 2 of 13 FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 University, and that the classes will occur in New York, but that the Plaintiffs will receive a RN degree from the Florida University. (Villalona Exs. 2- 4). Aff, 2, 3, p. Champion further represented that the school is processing applications for their students to take the New York State Nursing Boards. (Villalona Aff, Exs. 2, 3, ¶ 2-4). Defendant also discussed in length, what the Plaintiffs needed to become licensed, in addition to graduation from their program. (Villalona Aff, Exs. 2, 3, p. 8, 9, 15). Champion further represented that Defendants would arrange a review course for the Nursing licensing tests. (Villalona Aff, Exs. 2, 3, p. 8). In response to a specific question, Champion represented that her course would allow the Plaintiffs to become a registered nurse. (Ex., 3, p. 15). Defendants also issued the Plaintiffs a syllabus for the program, which plainly included a Defendants' review for the licensing tests, which reinforced the representations that the Plaintiffs Defendants' would be eligible to take the examinations as a result of graduating from the class. (Jerome, Aff Ex. 10). Additionally, in furtherance of their scheme, the Defendants provided Plaintiff Laverne McKenzie with a fake diploma from Keiser University, which attests that Plaintiff obtained an Associates Degree in Nursing Sciences. (McKenzie, Aff, Ex. 5). Also attached as exhibit 6, is a fake transcript that the Defendants issued to Plaintiff Laverne McKenzie from Keiser University. (McKenzie, Aff, Ex. 6). Also attached as exhibit 7, are texts between Laverne McKenzie and Kim Champion, concerning taking the nursing licensing boards, and doing practice tests to prepare for the nursing boards, which the Defendants misled Plaintiff to believe that she was eligible to take based upon the fake degree that they issued to her. (McKenzie, Aff, Ex. 7). Also attached as Exhibit 8, are messages from a group chat between Plaintiff Karen Ochieng, Kim Champion and other students who were defrauded by the Defendants, including the Plaintiffs. 3 3 of 13 FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 (Ochieng Aff, Ex. 8). As shown in exhibit 8, Kim Champion misrepresented to all of the Plaintiffs that they would obtain a nursing degree from a Florida University, and would be eligible for a New York nursing license. (Ochieng Aff, Ex. 8). These texts also show that the Defendant Champion repeatedly discussed graduation and coursework. (Ochieng Aff, Ex. 8) DISCUSSION The Defendant's motion should be denied in all respects because the signed enrollment forms, which the defendants proffer, do not conclusively refute Plaintiff's claims, are at best ambiguous and in fact, are internally contradictory. Moreover, there is undeniable corroborating evidence, that the defendant did in fact make the representations, as such, to the extent that there defendants' is a discrepancy between the documents and representations, that is for a jury to resolve. In determining whether a complaint is sufficient to withstand a motion to dismiss pursuant to C.P.L.R. § 3211, the sole criterion is whether the pleading states a cause of action. Cooper v 620 Prop. Assoc., 242 AD2d 359 [N.Y.A.D. 2d Dept 1997], citing Weiss v Cuddy & Feder, 200 AD2d 665 [N.Y.A.D. 2d Dept 1994]. If from the four corners of the complaint factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail. 511 West 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002]; Cooper, supra, 242 AD2d at 360. The court's function is to accept each and every allegation forwarded by the plaintiff without expressing any opinion as to the plaintiffs ability ultimately to establish the truth of these averments before the trier of the facts. Id., quoting 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 [1979]. The pleading is to be liberally construed and the pleader afforded the benefit of every possible favorable inference. 511 West 232nd Owners Corp., supra. 4 of 13 FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 POINT I: PLAINTIFFS CLAIMS ARE NOT REFUTED BY DOCUMENTARY EVIDENCE Defendants' Here, the enrollment forms, do not utterly refute the Plaintiff's claims, because (i) they do notdirectly contradict the substance of the Defendant's misrepresentations, (ii) the language in the forms is unintelligible gibberish, (iii) the forms are ambiguous and in fact internally inconsistent, and (iv) Plaintiffs have proffered undeniable corroborating evidence that the Defendant repeatedly made the fraudulent misrepresentations. A motion to dismiss a complaint based on documentary evidence pursuant to C.P.L.R. § 3211(a)(1) may be granted ody if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law. Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002] ; Harris v Barbera, 96 AD3d 904, 905 [2012]; Paramount Transp. Sys., Inc. v Lasertone Corp., 76 AD3d 519, 520 [2010]); Air & Power Transmission, Inc. v. Weingast, 120 A.D.3d 524, 524-25, 992 N.Y.S.2d 46 plaintiffs' (2014). Where the writing proffered does not utterly refute the factual allegations, the Court may not dismiss the complaint. Piccoli v. Cerra, Inc., 174 A.D.3d 754, 757 (2019). To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiffs factual allegations, conclusively establishing a defense as a matter of law. Wilson v. Poughkeepsie City Sch. Dist., 147 A.D.3d 1112, 1113 (2 Dep't 2017); see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858 (2002). A motion to dismiss pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence resolves all factual issues as a matter of law, and conclusively disposes of the plaintiffs claim. Cives Corp. v. George A. Fuller Co., 97 A.D.3d 713, 714, (2012). To be considered documentary that is sufficient to rebut a Plaintiff's claim, the proffered 5 5 of 13 FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 evidence must be unambiguous; consequently a motion to dismiss based upon documentary evidence, must be denied where the proffered documents are ambiguous because ambiguous documents are insufficient to utterly refute a Plaintiff s claims. Parekh v. Cain, 96 A.D.3d 812, 815 (2 Dep't 2012); Piccoli v. Cerra, Inc., 174 A.D.3d 754, 756 (2019); Dabidat v. Sandoval, No. 653861/2012, 2013 WL 2356298, at *5 (N.Y. Sup. Ct. May 28, 2013). Where the purported documentary evidence does not contain express language that directly refutes the Plaintiff s contentions, the documents do not utterly refute the Plaintiff s allegations or conclusively establish a defense. Trask v. Tremper Prop. AssI, Inc., 122 A.D.3d 1206, 1207, 997 N.Y.S.2d 805, 807 (3 Dep't 2014); see also Harris v. Barbera, 96 A.D.3d 904, 905, 947 N.Y.S.2d 548, 550 (2012) [Retainer agreement, which stated that there was "no assurance or guarantee of the outcome" and that the agreement "does not include representation for ... legal services after the Judgment of Trial Court ...or the Appeal of any Trial decision did not utterly refute Plaintiff s affidavit that the defendants failed to pursue a motion for leave to reargue or other application to modify a decision in the underlying action, submitted deficient or inappropriate proposed findings of fact and conclusions of law, and failed to adequately address various necessary issues during the trial] ; see also DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 814, 936 N.Y.S.2d 51). defendants' First, the enrollment forms are insufficient, in and of themselves to utterly Plaintiffs' refute claims because they do not directly contradict the representations that the Defendant made to the Plaintiffs. No where in the forms, does it state that Karefree is not affiliated with Kaiser University in Florida, nor do the forms state that the Plaintiff s will not be eligible to take the nursing examinations. These are the representations that caused Plaintiff to Defendants' enroll in the program. 6 6 of 13 FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 Defendants' Further, the language in the forms are unintelligible gibberish, which is at Defendants' best ambiguous, hence insufficient to utterly refute Plaintiff's claims. Here, forms state in pertinent part that Karefree "does not operate a credit bearing institution as authorized by in New A- Title VIII York State". (Def Exs. J, NYSCEF Does 10-19). First, an ordinary consumer would not understand that the language that the Defendant is not operating a 'credit institution' bearing negates Defendant's representations, that completion of the course, would enable the participant to take a licensing examination. Moreover, the language that the course if not a credit bearing institution as authorized by Title VIII in New York State, does not refute Plaintiff's claims because the Defendant misrepresented that the program was affiliated with Kaiser University, a Florida University. Moreover, this language is negated by language in the very same document which states that Karefree will instruct the participant in the format review in accordance with Education Law and Commissioner's recommendations. The document further incorporates oral statements made during orientation, which includes the oral representations in Ex 3, that the program is affiliated with an accredited Florida University and that upon completion of the course, the Plaintiffs will be eligible to sit for the nursing examination. Further, the language which seeks to disclaim that the program is a nursing program, is belied by and rendered ambiguous, by the language on the very same forms, which asks the applicant to select a course of either LPN, (Licensed Practical Nurse) or RN (Registered Nurse). Defendants' Finally, given the other documentary evidence of the misrepresentations and fraudulent scheme, which is now before the Court, the enrollment forms alone are insufficient to conclusively resolve Plaintiff's claims as a matter of law. These proofs include a recording in which the Defendant misrepresents to the Plaintiff(s) that her program is through a Florida University and that they would be eligible to sit for the Nursing Examinations and obtain a New 7 7 of 13 FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 York Nursing license, (ii) Fake diplomas and Fake Transcripts which the Defendants gave the Plaintiffs from Keiser University, (iii) Syllabus which outlines a nursing course and has a week to prepare for the nursing licensing examination, (iv) numerous text messages in which the Defendant reiterates to all of the Plaintiffs in a group chat that they will receive a nursing degree from a Florida University and a New York nursing license, as well as representations that they will be graduating, along with reminders to study for the licensing exam. In light of this Defendants' overwhelming proof of the fraudulent scheme and fraudulent representations, the Defendants' ambiguous, contradictory, vague gibberish language in the enrollment forms does not conclusively demonstrate that there was no fraudulent misrepresentation by the defendants. In fact, in light of the enormity of the fraudulent representations, the language in the enrollment form can only be viewed as an ill conceived and half hearted attempt by Defendant to shield herself from liability for her massive fraudulent scheme. Based upon the foregoing, there is adequate proof that the Plaintiffs relied upon the Defendants misrepresentations, in paying her collectively over $232,000 for a degree and a qualification to take the nursing boards, all of which the Defendants could not. Simply stated the ambiguous, vague and gibberish language in the enrollment forms, do not negate Plaintiff's reliance, especially when considered cumulatively with the undisputable evidence of the Defendants' rampant and brazen misrepresentations. 8 8 of 13 FILED: ROCKLAND COUNTY CLERK 01/12/2024 04:55 PM INDEX NO. 035608/2023 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/12/2024 POINT II: THE PURPORTED PROSPECTIVE RELEASE LANGUAGE, WHICH SEEKS TO AVOID LIABILITY FOR FRAUD IS VOID AND OF NO EFFECT The language in the enrollment form, that generally disclaimed prospective liability, is no barrier to the Plaintiff's instant case, because the Plaintiffs complain of willful tortious behavior. Exculpatory provisions in a contract, purporting to insulate one of the parties from liability are disfavored by the law and closely scrutinized by the courts, and such an agreement will be viewed as wholly void where it purports to grant exemption from liability for willful acts or where a special relationship exists between the parties such that an overriding public interest demands that such a contract provision be rendered ineffectual. Lago v. Krollage, 78 N.Y.2d 95, 99-100 (1991); Gross v Sweet, 49 NY2d 102, (1979). Here, the Plaintiffs complain of willful misconduct, as such, the disclaimer of liability or prospective release has no application to this case. PLAINTIFFS' POINT III: COMPLAINT MEETS AND EXCEEDS THE PLEADING REQUIREMENTS TO STATE A FRAUD CAUSE OF ACTION Plaintiffs' complaint is more than sufficient state a cause of action for fraud. The elements of fraud action, are a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, the other party's justifiable reliance on the misrepresentation