Preview
FILED: KINGS COUNTY CLERK 06/13/2024 11:26 AM INDEX NO. 518707/2023
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/13/2024
SUPREMECOURTOFTHESTATEOF NEWYORK
COUNTYOFKINGS
__________________________________-_______Ç
KAMISHAHOUSTON, Index No.: 518707/2023
Plaintiff, VERIFIED ANSWER
-against-
FOOTMANAGEMENT
LLC,
Defendant.
____-----__________________________x
Defendant FOOTMANAGEMENT
LLC, by Their Attorneys THEGOLDLAWFIRM,
P.C., for Its Verified Answer to the Complaint, alleges as follows:
1. Denies knowledge and information sufficient to form a belief as to the truth of the
Allegations of Paragraphs "1" and "14".
2. Denies the Allegations of Paragraphs "2", "10", "11", "12", "13", "16", "17", "19",
"21" and "22" and
"20", refers all questions of law to the Court.
3. Admits the Allegations of Paragraphs "3" and "4".
"8"
4. Denies the Allegations of Paragraphs "5", "6", "7", and "9" because the terms
"maintained"
"operated", "managed", and "controlled" as used therein are vague, ambiguous and
over broad when applied to a property owned by an absentee property owner, and their use
herein.
5. Denies the Allegations of Paragraphs "15" and "18".
AS ANDFORA FIRST AFFIRMATIVE DEFENSE
6. If Plaintiff sustained any injury or incurred any loss or damages as alleged in the
Verified Complaint, the samewas caused or contributed to by reason of her own negligence,
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carelessness or want of care, and if it is determined that plaintiff is entitled to a recovery herein
against the defendant, such recovery should be apportioned between Plaintiff and the Answering
Defendant according to their relative responsibility.
AS ANDFORA SECOND
AFFIRMATIVE DEFENSE
7. That Plaintiff's complaint and all claims therein are controlled by and subject to
Article 16 of the CPLR, including but not limited to Sections 1600, 1601, 1602 and 1603. And
the liability of the defendants, if any, to the Plaintiff, for non economic loss is limited to its
equitable share, determined in accordance with the relative culpability of all persons or entities
contributing to the total liability for non economic loss, including named parties and others over
whomPlaintiff could have obtained jurisdiction with due diligence.
AS ANDFORA THIRD AFFIRMATIVE DEFENSE
8. Plaintiff's claims are barred in whole or in part as Defendant FOOT
MANAGEMENT
LLC lacked actual or constructive notice of the purported defect.
AS ANDFORA FOURTH
AFFIRMATIVE DEFENSE
9. Plaintiff's claims are barred inasmuch as, upon infonnation and belief, any purported
condition which allegedly caused the matter complained of was so trivial as to be non-actionable.
AS ANDFORA FIFTH AFFIRMATIVE DEFENSE
10, Defendant's liability, if any, is limited to their proportionate share of fault pursuant
to Article 16 of the CPLR.
AS ANDFORA SIXTH AFFIRMATIVE DEFENSE
11. Plaintiff's claims are barred inasmuch as Defendant FOOTMANAGEMENT
LLC
lacked knowledge of any condition which may have caused the matter complained of and
Defendant FOOTMANAGEMENT
LLC did not create any such condition,
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AS ANDFORA SEVENTHAFFIRMATIVE DEFENSE
12. Pursuant to CPLR§ 4545, any recovery by Plaintiff must be diminished to the
extent that they obtain reimbursement and/or other benefits from collateral sources.
AS ANDFORA EIGHTHAFFIRMATIVE DEFENSE
13. Plaintiff's recovery must be barred in whole or in part due to Plaintiff's own
contributory negligence or other culpable conduct.
AS ANDFORA NINTH AFFIRMATIVE DEFENSE
14. Plaintiff failed to properly mitigate her damages so as to prevent or reduce the
extent of injuries she allegedly sustained.
AS ANDFORA TENTHAFFIRMATIVE DEFENSE
15. If the Plaintiff sustained injuries as alleged in the verified complaint, said injuries
were proximately caused by independent, intervening and superseding causes which could not
have been reasonably foreseen and for which the Answering Defendant is not liable or
responsible.
AS ANDFORA ELEVENTHAFFIRMATIVE DEFENSE
16. That whatever injuries and/or damages that were sustained by the Plaintiff, at the
time and place alleged, were the result of the Plaintiff's assumption of risk, in realizing and
knowing the hazards thereof, and that Plaintiff assumed all risks necessarily incidental to such an
undertaking.
AS ANDFORA TWELFTH
AFFIRMATIVE DEFENSE
17. Upon information and belief, all hazards and risks incident to the circumstances
set forth in the Verified Complaint were open, obvious and apparent, and were readily assumed
by the Plaintiff.
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AS ANDFORA THIRTEENTHAFFIRMATIVE DEFENSE
18. The liability of the Answering Defendant, if any, is limited to the percentage of
culpability found against it, and the Answering Defendant shall not be responsible for any
percentage of culpability attributed to other individuals and/or entities whether named or
unnamed, over whomthe Plaintiff could have obtained personal jurisdiction by use of due
diligence pursuant to the CPLR,
AS ANDFORA FOURTEENTH
AFFIRMATIVE DEFENSE
19. Defendant FOOTMANAGEMENT
LLC had no duty with respect to the location
where Plaintiff claims to have fallen.
AS ANDFORA FIFTEENTHAFFIRMATIVE DEFENSE
20. Plaintiff's action may not be maintained because the Plaintiff has failed to join
necessary and essential parties with whomthis court should not proceed.
AS ANDFORA SIXTEENTHAFFIRMATIVE DEFENSE
21. Plaintiff's injuries, if any, were caused by third-parties.
AS ANDFORA SEVENTEENTH
AFFIRMATIVE DEFENSE
22. Defendant FOOTMANAGEMENT
LLC reserves his right to amend this answer
and to assert additional defenses or to supplement, alter or change this answer and assert
additional cross-claims or counterclaims upon ascertaining more definite facts upon completion
of discovery and inspection.
AS ANDFORA EIGHTEENTHAFFIRMATIVE DEFENSE
23. That the Defendant FOOTMANAGEMENT
LLC hereby gives notice that they
intend to rely upon such other defenses as may come available or apparent during discovery
proceedings, or as may be raised or asserted by other defendants in this case.
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Defendants FOOTMANAGEMENT
WHEREFORE, LLC respectfully request that this
Honorable Court dismiss the Complaint with Prejudice.
Dated: Bellmore, NewYork
June 12, 2024
Yours, etc.
S/
M. Nyear, Esq.
Jodi
THE GOLDLAWFIRM, P.C.
Attorneys for Defendant
FOOTMANAGEMENT
LLC
1666 Newbridge Road, Second Floor
Bellmore, NewYork 11710
(516) 512-6333
To: Oleg Levit, Esq.
Attorney for Plaintiff
KAMISHAHOUSTON
1804 Jerome Avenue
Brooklyn, NewYork 11235
(718) 769-1512
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ATTORNEY
VERIFICATION
STATEOFNEWYORK)
) ss.:
COUNTYOFNASSAU)
The undersigned, an attorney admitted to practice in the Courts of the State of NewYork,
states, under the penalties of perjury:
That I am associated with the firm THEGOLDLAWFIRM, P.C., the attorneys for the
Defendant FOOTMANAGEMENT
LLC. I have read the foregoing Verified Answer and know
the contents thereof, the same is true to my own knowledge, except as to the matters stated to be
alleged on information and belief, and that as to those matters I believe to be true.
The reason for the attorney verification in lieu of a verification by the Defendant is due to
the Defendant not residing in a County within NewYork State in which the offices of this
attorney resides.
Dated: Bellmore, NewYork
June 12, 2024
S/
Jodi M. Nyear, Esq.
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SUPREMECOURTSTATEOFNEWYORK
COUNTYOFKINGS
_____________________________________________________________________Ç
KAMISHAHOUSTON, Index No.: 518707/2023
Plaintiff,
-against-
FOOTMANAGEMENT
LLC,
Defendants.
______--_________________________________________________________Ç
VERIFIED ANSWER
THEGOLDLAWFIRM, P.C.
Attorneys for Defendants
1666 Newbridge Road, Second Floor
Bellmore, NewYork 11710
(516) 512-6333
Fax: (516) 512-6334
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Wolfpack Wood Recycling, Inc. vs. Winterburn
Jul 10, 2024 |
23CV-0203080
WOLFPACK WOOD RECYCLING, INC. VS. WINTERBURN
Case Number: 23CV-0203080
Tentative Ruling on Order to Show Cause Re: Sanctions: An Order to Show Cause Re: Sanctions issued on
May 21, 2024 to Plaintiff Wolfpack Wood Recycling, Inc. and counsel Carr, Kennedy, Peterson & Forst for
failure to timely serve Defendant in compliance with CRC 3.110(b). The same day the Order to Show Cause
issued, Plaintiff filed an Application to Serve by Publication which the Court granted. While Plaintiff did not file
a written response to the Order to Show Cause, the declarations filed in support of the Application provide
sufficient excuse for the delay. The Order to Show Cause is DISCHARGED.
******************************************************************************************
9:00 a.m. – Review Hearings
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Ruling
FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)
Jul 12, 2024 |
FCS057573
FCS057573
Motions for Contempt
TENTATIVE RULING:
Petitioner’s “motions” for contempt are denied.
No affidavit of the facts constituting any contempt has been presented to the
court. The filing of a sufficient affidavit is a jurisdictional prerequisite to a
contempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court
(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court
(1951) 103 Cal.App.2d 512, 541.)
Page 1 of 1
Ruling
MARTIN RUIZ, ET AL. VS FRANK COLARUOTOLO CONSULTING, INC., ET AL.
Jul 11, 2024 |
23LBCV01593
Case Number:
23LBCV01593
Hearing Date:
July 11, 2024
Dept:
S25 Procedural Background On August 23, 2023, Plaintiff Martin and Graciela Ruiz filed a complaint against Defendants Frank Colaruotolo Consulting, Inc. (FCC), Pacific Crane Maintenance Company, LLC (PCMC), and Does 1-10. On April 11, 2024, Plaintiffs filed a first amended complaint (FAC), alleging two causes of action: (1) Negligence against Defendants FCC, Frank Colaruotolo, and Does 2 through 10; and (2) Negligence against Defendants PCMC and Does 2 through 10. On June 11, 2024, Plaintiffs filed a second amended complaint (SAC), adding CSI Services as a Defendant. Plaintiffs Martin Ruiz and Graciela Ruiz are the surviving biological father and mother of the decedent, respectively. (SAC ¶¶ 1, 2.) Plaintiffs are suing for the loss of their adult son, decedent Edgar Ruiz. Decedent was killed during a forklift incident on January 18, 2022. (See SAC ¶¶ 16-23.) Since the filing of Plaintiffs original complaint, Nico Ruiz filed a separate action against Defendants FCC and CSI Services, Inc., LASC No. 24LBCV00081. LASC Case No. 23LBCV01593 and LASC Case No. 24LBCV00081 (hereinafter collectively referred to as Related Cases) were deemed related by this Court. (See March 14, 2024 Notice of Ruling Re: Related Cases and Upcoming Hearing Dates in Case No. 24LBCV00081; Forouzan Decl., ¶ 6.) On May 7, 2024, Plaintiffs filed the instant motion to consolidate the Related Cases. Legal Standard CCP § 1048 provides: (a) When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States. The purpose of consolidation is to avoid unnecessary costs or delay, avoid duplication of procedure, particularly in the proof of issues common to both actions, and avoid inconsistent results by hearing and deciding common issues together. (See Estate of Baker (1982) 131 Cal.App.3d 471, 484-485.) Further, the granting or denial of a motion to consolidate rests in the trial court's sound discretion and will not be reversed except upon a clear showing of abuse of discretion. (Feliner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.) Ruling The Court agrees the two related matters should be consolidated for the following reasons: (1) both involve the same incident and (2) include nearly identical Defendants, (3) involve identical questions of law and fact, (4) identical burdens of proof, and (5) similar if not identical witnesses. However, there appears no record of Plaintiffs filing a notice of motion to consolidate in LASC Case No. 24LBCV00081 (the Nico Ruiz case) as required by Cal. Rules of Court, rule 3.350(1)(C). If the parties in 24LBCV00081 waive the requirement of a noticed motion, the Court will grant the Motion to Consolidate. If there is no waiver, the Motion to Consolidate is denied without prejudice for Plaintiffs to correct the procedural defects.
Ruling
ROMMEL NAVARRO, AN INDIVIDUAL VS KELLY HARREL, AN INDIVIDUAL, ET AL.
Jul 11, 2024 |
22CHCV01216
Case Number:
22CHCV01216
Hearing Date:
July 11, 2024
Dept:
F51
JULY 10, 2024
MOTIONS TO COMPEL DISCOVERY RESPONSES
(Form Interrogatories, Requests for Production of Documents, Special Interrogatories,
and Requests for Admission, Set One)
Los Angeles Superior Court Case #
22CHCV01216
Motions Filed:
3/12/24
MOVING PARTY:
Defendant Kelly Harrel (Moving Defendant)
RESPONDING PARTY:
Plaintiff Rommel Navarro (Plaintiff)
NOTICE:
OK
RELIEF REQUESTED:
Orders compelling Plaintiffs responses to Moving Defendants first set of Requests for Production of Documents (RFPs); Form Interrogatories; Requests for Admission (RFAs); and Special Interrogatories. Moving Defendant further requests monetary sanctions against Plaintiff in the combined amount of $4,264.00.
TENTATIVE RULING:
The unopposed motions are granted. Plaintiff is ordered to provide objection-free responses to Moving Defendants first set of discovery requests within 20 days. Moving Defendants Requests for Admission, Set One, are deemed admitted. The Court imposes sanctions against Plaintiff in the amount of $500.00.
Ruling
CARTER JOHN THOMAS HASBROOK VS MONICA CIONNE HASBROOK
Jul 10, 2024 |
23AHCV00370
Case Number:
23AHCV00370
Hearing Date:
July 10, 2024
Dept:
P
[TENTATIVE] ORDER GRANTING MOTION TO COMPEL COMPLIANCE WITH SUBPOENA OF NON-PARTY CAROLINE BERNSTEIN
I.
BACKGROUND
On February 21, 2023, Plaintiff Carter John Thomas Hasbrook (Plaintiff) initiated this lawsuit against his former wife, Defendant Monica Cione Hasbrook (Defendant) for physical injury damages incurred during a physical attack arising out of the dissolution of their marriage. On July 14, 2023, Defendant filed a cross-complaint against Plaintiff alleging that Plaintiff drugged her as she recovered at Huntington Hospital following being struck by a bus. (Gillick Decl., Exh. 1, ¶ 9.) Discovery has revealed records that Defendants sister Caroline Bernstein, a non-party to this action, called the hospital alleging that the parties were using heroin prior to the bus accident and that Plaintiff was the source of the drugs. (Gillick Decl., Exh. 3.)
Plaintiff now moves to compel non-party Bernstein to provide responses to Plaintiffs deposition subpoena and request for production of records to corroborate the allegations that he supplied heroin to Defendant.
Plaintiff argues that he served Bernstein with a valid subpoena on April 2, 2024, that required Bernstein to produce records by April 18, 2024. Plaintiff argues that no response was received, leading to Plaintiffs process server, Titan Legal Service to mail follow up letters to Bernstein demanding compliance. (Motion, p. 4.)
The motion is unopposed.
II.
MOTION TO COMPEL NON-PARTY COMPLIANCE WITH SUBPOENA
A.
Legal Standard
A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.
(Code Civ. Proc., § 2020.010.)
A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.
(Code Civ. Proc., § 2020.020.)
A service of a deposition subpoena shall be effected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.
(Code Civ. Proc., § 2020.220, subd. (a).)
Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.
(Code Civ. Proc., § 2020.220, subd. (c).)
A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.
(Code Civ. Proc., § 2020.240.)
A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.
(Cal. Rules of Court, Rule 3.1346.)
B.
Discussion
Plaintiff asserts that Bernstein has apparent knowledge of the situation and made claims to a hospital employee that incriminate him against Defendant. Plaintiff asserts that a licensed social worker at Huntington Hospital spoke with Bernstein over the phone on July 27, 2021, and Bernstein stated that Defendant used heroin before the accident and her ex-husband (Plaintiff) brought it to her. (Mot., p. 3.) Defendant provides proof of service showing personal service upon Bernstein with the deposition subpoena on April 2, 2024. (Gillick Decl., ¶ 5; Exh. 4.) There has been no objection filed to the subpoena for Bernsteins deposition, nor has any opposition or motion to quash been filed.
III.
CONCLUSION
Based on the foregoing, the motion is granted.
Third party Caroline Bernstein is ordered to comply with the subpoena served on her on April 2, 2024.
Moving party is ordered to give notice.
Dated this 10
th
day of July 2024
Hon. Jared D. Moses
Judge of the Superior Court
Ruling
MARIANA ACOSTA VS HECTOR EDUARDO GALBUSERA
Jul 09, 2024 |
20STCV33737
Case Number:
20STCV33737
Hearing Date:
July 9, 2024
Dept:
T Motion to Change Venue
Moving Party:
Plaintiff Mariana Accosta Responding Party:
Defendant Hector Galbusera Tentative Ruling:
Denied.
BACKGROUND
On September 03, 2020, Plaintiff Mariana Acosta (Plaintiff) filed a Complaint alleging motor vehicle action against Defendant Hector Eduardo Galbusera (Defendant) and DOES 1 through 30, inclusive. Defendant filed his Answer to the Complaint on October 20, 2020.
On May 31, 2024, Plaintiff filed the instant Motion to Transfer. Defendant filed his opposition to the motion on June 13, 2024. Plaintiff has filed a reply.
DISCUSSION
Applicable Law
Venue is determined based on the complaint on file at the time the motion to change venue is made. [Citations.] [Citation.] (Dow AgroSciences, LLC v. Superior Court (2017) 16 Cal.App.5th 1067, 1076.)¿¿
[I]f an action or proceeding is commenced in a court having jurisdiction over the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced& (Code Civ. Proc., § 396b(a).) The burden is on the moving party to establish facts justifying the transfer. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 928.) Absent an affirmative showing to the contrary, the presumption is that the county in which the title of the action shows that it is brought is, prima facie, the proper county for the commencement and trial of the action. (Id.; Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.)
Analysis
The Complaint alleges a negligence cause of action against the Defendant for a motor = vehicle accident that occurred on the ramp of SR-60 E/B to the I-710 N/B, Los Angeles, CA 90022. (Compl.) Plaintiff alleges that Defendant fell asleep while driving, causing the crash with Plaintiff, and was cited for violating California Vehicle Code section 22350 - Unsafe Speed by the California Highway Patrol. (Id. p. 5.)
Plaintiff seeks to transfer the action to a trial department in Downtown Los Angeles. (Mot. p. 2) Plaintiff argues that the lawsuit has no connection to Alhambra since the subject incident occurred downtown, neither party lives in Alhambra, and all witnesses, including first responders and Plaintiffs medical provider, live in/near or work in/near downtown Los Angeles. Plaintiff asserts that the venue is proper in the central district because the case was initially filed there and had remained there for nearly four years before being transferred to this Court.
In opposition, Defendant argues that Plaintiff fails to provide any statutory authority to support the motion. The Court disagrees. First, Defendant mistakes the motion for a motion for forum non-convenes. That is not the case as Plaintiff rests the motion under Code of Civil Procedure Sections 395(a), 397(c).
However, Plaintiff has not carried her burden in showing that a change in venue back to downtown is justifiable. Here, the standard is not so much about focusing on convenience but rather on the inconvenience of the venue for the action. The plaintiffs contention that witnesses are in or around downtown is simply not enough to carry her burden under the statute. While one courthouse may be more convenient to some witnesses, the level of inconvenience is not substantial and a transfer is not necessary to further the interests of justice. Further, Plaintiff argues that she would be prejudiced by a trial continuance. Because the matter is set for trial on October 14 in Department T and it is extremely unlikely that the case would be set any earlier in a downtown courthouse, denial of this motion protects Plaintiff from the perceived prejudice resulting from a trial continuance.
CONCLUSION
Based on the foregoing, Plaintiffs Motion to Change Venue is DENIED.
Ruling
Jane Doe vs Doe 1 - School et al.
Jul 09, 2024 |
STK-CV-UNPI-2022-0010913
TENTATIVE RULING NOTICE Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department and Case Number must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To attend the remote hearing with Judge Kronlund in Dept. 10-D: Call into (209) 992-5590, then follow the prompts and use the Bridge # and Pin # as follows: Bridge # 6940 Pin # 3782 Court is issuing one tentative ruling for both motions on calendar this date Tentative Rulings Defendant TUSD's motion to stay action is Denied, without prejudice. A court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141.) The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cause on its docket with the economy of time and effort for itself, for counsel and for litigants. (Ibid.) Trial courts generally have inherent power to stay proceedings in the interest of justice and to promote judicial efficiency. (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-79; Code Civ. Proc. §§ 128(a)(3) ["Every court shall have the power to do all of the following: To provide for the orderly conduct of proceedings before it, or its officers."] and (a)(5) ["Every court shall have the power to do all of the following: To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto."]. Both parties acknowledge this Court’s discretion in considering this Motion. However, the parties differ about the applicable standards that should govern this discretion. This case was filed in November of 2022, and we have only had one CMC so far, and Defendant TUSD is only now filing an answer. The Court has until November of 2027 to get this case to trial. Defendant TUSD's 2 requests for judicial notice (RFJN) are denied, except as to the fact of a Writ Petition being filed with the 6th DCA on another similar case from Monterey regarding the constitutionality of AB 218, and the filing in the 1st DCA of an appeal on the same issue in yet another case. None of the rest of the documents included in the RFJNs are relevant to this motion. Defendants object to Plaintiff's Counsel's declaration which essentially seeks judicial notice of numerous other cases' orders and filings; these are not relevant and have no precedential value in this case. Likewise, these authorities are not properly subject to judicial notice. The Court can not say that a stay in this action, of unknown duration, would serve the interests of justice or judicial efficiency or economy under all of the circumstances. Defendant City's motion for joinder is Granted. Barbara A. Kronlund
Ruling
JENNIFER BRUSICK, ET AL. VS LOS ANGELES DODGERS, ET AL.
Jul 09, 2024 |
21STCV26757
Case Number:
21STCV26757
Hearing Date:
July 9, 2024
Dept:
28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On July 21, 2021, Plaintiffs Jennifer Brusick, Richard Brusick, individually and as guardian ad litem for Peyton Brusick, and Jake Brusick filed this action against Defendants Los Angeles Dodgers, Los Angeles Dodgers, LLC, Los Angeles Dodgers Holding Company LLC, Guggenheim Baseball Group, Frank McCourt, and Does 1-50 for negligence, negligence-premises liability, negligent infliction of emotional distress, and loss of consortium.
On July 29, 2021, the Court appointed Richard Brusick to serve as guardian ad litem for Plaintiff Peyton Brusick.
On January 12, 2022, Defendants Los Angeles Dodgers LLC and Los Angeles Dodgers Holding Company LLC filed an answer.
On June 7, 2024, Defendant
Los Angeles Dodgers LLC
(Defendant) filed a motion to compel Plaintiffs depositions and for sanctions, to be heard on July 9, 2024.
Plaintiffs did not file an opposition.
Trial is currently scheduled for July 15, 2024.
PARTY'S REQUESTS
Defendant asks the Court to compel Plaintiffs to appear for depositions and to impose sanctions on Plaintiffs.
LEGAL STANDARD
Code of Civil Procedure section 2025.450 provides in part:
(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
(b) A motion under subdivision (a) shall comply with both of the following:
(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
* * *
(g) (1) If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
(2) On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponents testimony would be taken, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. . . .
(Code Civ. Proc., § 2025.450, subds. (a), (b), (g).)
DISCUSSION
Code of Civil Procedure section 2024.020, subdivision (a), provides:
(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.
(Code Civ. Proc., § 2024.020, subd. (a).)
On January 12, 2024, the Court continued the trial from February 28, 2024 to July 15, 2024 based on the parties stipulation.
The Court ordered that all deadlines and cut-off dates would be governed by the new trial date.
Based on Code of Civil Procedure section 2024.020, subdivision (a), and the Courts January 12, 2024 order, the last day for the Court to hear a motion concerning discovery was 15 days before July 15, 2024.
Defendants motion to compel Plaintiffs depositions is set for hearing 6 days before July 15, 2024.
Therefore, the Court cannot hear Defendants motion.
The Court denies the motion.
CONCLUSION
The Court DENIES Defendant
Los Angeles Dodgers LLCs motion to compel Plaintiffs depositions and for sanctions.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.
Document
Anna Gallina AS THE ADMINISTRATRIX OF THE ESTATE OF GASPARE GALLINA, DECEASED v. Adam Landskowsky M.D., Yan Lupyan M.D., Mark Tsinker M.D., Bay Ridge Medical Imaging, P.C, New York Methodist Hospital
Sep 04, 2007 |
Veronica G. Hummel
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
506327/2016
Document
Alberta Rehberg, As Executor Of The Estate Of Vincent Varvaro, Deceased v. Nyu Langone Health System, Nyu Langone Hospitals, Sea Crest Acquisition 1, Llc D/B/A Sea Crest Nursing And Rehabilitation Center
Oct 19, 2021 |
Heela Capell
|
Torts - Other (Neg.,PHL2801d,WD,Med Mal) |
Torts - Other (Neg.,PHL2801d,WD,Med Mal) |
526619/2021
Preview
FILED: KINGS COUNTY CLERK 06/13/2024 11:26 AM INDEX NO. 518707/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/13/2024 SUPREMECOURTOFTHESTATEOF NEWYORK COUNTYOFKINGS __________________________________-_______Ç KAMISHAHOUSTON, Index No.: 518707/2023 Plaintiff, VERIFIED ANSWER -against- FOOTMANAGEMENT LLC, Defendant. ____-----__________________________x Defendant FOOTMANAGEMENT LLC, by Their Attorneys THEGOLDLAWFIRM, P.C., for Its Verified Answer to the Complaint, alleges as follows: 1. Denies knowledge and information sufficient to form a belief as to the truth of the Allegations of Paragraphs "1" and "14". 2. Denies the Allegations of Paragraphs "2", "10", "11", "12", "13", "16", "17", "19", "21" and "22" and "20", refers all questions of law to the Court. 3. Admits the Allegations of Paragraphs "3" and "4". "8" 4. Denies the Allegations of Paragraphs "5", "6", "7", and "9" because the terms "maintained" "operated", "managed", and "controlled" as used therein are vague, ambiguous and over broad when applied to a property owned by an absentee property owner, and their use herein. 5. Denies the Allegations of Paragraphs "15" and "18". AS ANDFORA FIRST AFFIRMATIVE DEFENSE 6. If Plaintiff sustained any injury or incurred any loss or damages as alleged in the Verified Complaint, the samewas caused or contributed to by reason of her own negligence, 1 of 7 FILED: KINGS COUNTY CLERK 06/13/2024 11:26 AM INDEX NO. 518707/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/13/2024 carelessness or want of care, and if it is determined that plaintiff is entitled to a recovery herein against the defendant, such recovery should be apportioned between Plaintiff and the Answering Defendant according to their relative responsibility. AS ANDFORA SECOND AFFIRMATIVE DEFENSE 7. That Plaintiff's complaint and all claims therein are controlled by and subject to Article 16 of the CPLR, including but not limited to Sections 1600, 1601, 1602 and 1603. And the liability of the defendants, if any, to the Plaintiff, for non economic loss is limited to its equitable share, determined in accordance with the relative culpability of all persons or entities contributing to the total liability for non economic loss, including named parties and others over whomPlaintiff could have obtained jurisdiction with due diligence. AS ANDFORA THIRD AFFIRMATIVE DEFENSE 8. Plaintiff's claims are barred in whole or in part as Defendant FOOT MANAGEMENT LLC lacked actual or constructive notice of the purported defect. AS ANDFORA FOURTH AFFIRMATIVE DEFENSE 9. Plaintiff's claims are barred inasmuch as, upon infonnation and belief, any purported condition which allegedly caused the matter complained of was so trivial as to be non-actionable. AS ANDFORA FIFTH AFFIRMATIVE DEFENSE 10, Defendant's liability, if any, is limited to their proportionate share of fault pursuant to Article 16 of the CPLR. AS ANDFORA SIXTH AFFIRMATIVE DEFENSE 11. Plaintiff's claims are barred inasmuch as Defendant FOOTMANAGEMENT LLC lacked knowledge of any condition which may have caused the matter complained of and Defendant FOOTMANAGEMENT LLC did not create any such condition, 2 of 7 FILED: KINGS COUNTY CLERK 06/13/2024 11:26 AM INDEX NO. 518707/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/13/2024 AS ANDFORA SEVENTHAFFIRMATIVE DEFENSE 12. Pursuant to CPLR§ 4545, any recovery by Plaintiff must be diminished to the extent that they obtain reimbursement and/or other benefits from collateral sources. AS ANDFORA EIGHTHAFFIRMATIVE DEFENSE 13. Plaintiff's recovery must be barred in whole or in part due to Plaintiff's own contributory negligence or other culpable conduct. AS ANDFORA NINTH AFFIRMATIVE DEFENSE 14. Plaintiff failed to properly mitigate her damages so as to prevent or reduce the extent of injuries she allegedly sustained. AS ANDFORA TENTHAFFIRMATIVE DEFENSE 15. If the Plaintiff sustained injuries as alleged in the verified complaint, said injuries were proximately caused by independent, intervening and superseding causes which could not have been reasonably foreseen and for which the Answering Defendant is not liable or responsible. AS ANDFORA ELEVENTHAFFIRMATIVE DEFENSE 16. That whatever injuries and/or damages that were sustained by the Plaintiff, at the time and place alleged, were the result of the Plaintiff's assumption of risk, in realizing and knowing the hazards thereof, and that Plaintiff assumed all risks necessarily incidental to such an undertaking. AS ANDFORA TWELFTH AFFIRMATIVE DEFENSE 17. Upon information and belief, all hazards and risks incident to the circumstances set forth in the Verified Complaint were open, obvious and apparent, and were readily assumed by the Plaintiff. 3 of 7 FILED: KINGS COUNTY CLERK 06/13/2024 11:26 AM INDEX NO. 518707/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/13/2024 AS ANDFORA THIRTEENTHAFFIRMATIVE DEFENSE 18. The liability of the Answering Defendant, if any, is limited to the percentage of culpability found against it, and the Answering Defendant shall not be responsible for any percentage of culpability attributed to other individuals and/or entities whether named or unnamed, over whomthe Plaintiff could have obtained personal jurisdiction by use of due diligence pursuant to the CPLR, AS ANDFORA FOURTEENTH AFFIRMATIVE DEFENSE 19. Defendant FOOTMANAGEMENT LLC had no duty with respect to the location where Plaintiff claims to have fallen. AS ANDFORA FIFTEENTHAFFIRMATIVE DEFENSE 20. Plaintiff's action may not be maintained because the Plaintiff has failed to join necessary and essential parties with whomthis court should not proceed. AS ANDFORA SIXTEENTHAFFIRMATIVE DEFENSE 21. Plaintiff's injuries, if any, were caused by third-parties. AS ANDFORA SEVENTEENTH AFFIRMATIVE DEFENSE 22. Defendant FOOTMANAGEMENT LLC reserves his right to amend this answer and to assert additional defenses or to supplement, alter or change this answer and assert additional cross-claims or counterclaims upon ascertaining more definite facts upon completion of discovery and inspection. AS ANDFORA EIGHTEENTHAFFIRMATIVE DEFENSE 23. That the Defendant FOOTMANAGEMENT LLC hereby gives notice that they intend to rely upon such other defenses as may come available or apparent during discovery proceedings, or as may be raised or asserted by other defendants in this case. 4 of 7 FILED: KINGS COUNTY CLERK 06/13/2024 11:26 AM INDEX NO. 518707/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/13/2024 Defendants FOOTMANAGEMENT WHEREFORE, LLC respectfully request that this Honorable Court dismiss the Complaint with Prejudice. Dated: Bellmore, NewYork June 12, 2024 Yours, etc. S/ M. Nyear, Esq. Jodi THE GOLDLAWFIRM, P.C. Attorneys for Defendant FOOTMANAGEMENT LLC 1666 Newbridge Road, Second Floor Bellmore, NewYork 11710 (516) 512-6333 To: Oleg Levit, Esq. Attorney for Plaintiff KAMISHAHOUSTON 1804 Jerome Avenue Brooklyn, NewYork 11235 (718) 769-1512 5 of 7 FILED: KINGS COUNTY CLERK 06/13/2024 11:26 AM INDEX NO. 518707/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/13/2024 ATTORNEY VERIFICATION STATEOFNEWYORK) ) ss.: COUNTYOFNASSAU) The undersigned, an attorney admitted to practice in the Courts of the State of NewYork, states, under the penalties of perjury: That I am associated with the firm THEGOLDLAWFIRM, P.C., the attorneys for the Defendant FOOTMANAGEMENT LLC. I have read the foregoing Verified Answer and know the contents thereof, the same is true to my own knowledge, except as to the matters stated to be alleged on information and belief, and that as to those matters I believe to be true. The reason for the attorney verification in lieu of a verification by the Defendant is due to the Defendant not residing in a County within NewYork State in which the offices of this attorney resides. Dated: Bellmore, NewYork June 12, 2024 S/ Jodi M. Nyear, Esq. 6 of 7 FILED: KINGS COUNTY CLERK 06/13/2024 11:26 AM INDEX NO. 518707/2023 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 06/13/2024 SUPREMECOURTSTATEOFNEWYORK COUNTYOFKINGS _____________________________________________________________________Ç KAMISHAHOUSTON, Index No.: 518707/2023 Plaintiff, -against- FOOTMANAGEMENT LLC, Defendants. ______--_________________________________________________________Ç VERIFIED ANSWER THEGOLDLAWFIRM, P.C. Attorneys for Defendants 1666 Newbridge Road, Second Floor Bellmore, NewYork 11710 (516) 512-6333 Fax: (516) 512-6334 7 of 7