Document for Brown, Donald L vs. Microsoft, Corp.

EDWARDS VS. TYRRELL RESOURCES, INC., ET AL. Case Number: 23CV-0202609 This matter is on calendar for review regarding status of the case. The matter is at issue. The Court designates this matter as a Plan II case and intends on setting it for trial no later than December 17, 2024. Defendants have posted jury fees. Plaintiff has not. Plaintiff is granted ten days leave in which to post jury fees. A failure to post jury fees in that time will be deemed a waiver of the right to a jury. The parties are ordered to meet and confer prior to the hearing regarding proposed dates for trial. An appearance is necessary on today’s calendar.

C22-00943 CASE NAME: JOHN DOE 7031 VS. WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT *HEARING ON MOTION IN RE: MOTION FOR JUDGMENT ON THE PLEADINGS FILED BY WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT FILED BY: *TENTATIVE RULING:* West Contra Costa Unified School District’s motion on the pleadings is denied, as discussed below. The District shall file and serve its answer by August 1, 2024. Background This matter pertains to claims related to the alleged sexual abuse of Plaintiff in 2005-2006 by Marcos Uribe, who was a bilingual teaching aide, translator, and after-school tutor at Pinole Middle School at the time. Plaintiff did not file any sort of government claim or lawsuit until this one, on May 6, 2022. The filing, though nearly two decades after the assaults took place, was nonetheless permitted by California Assembly Bill 218 (“AB 218”), which was signed into law in 2019 and took effect on January 1, 2020. AB 218 changed the procedural requirements for bringing a claim for childhood sexual assault. Essentially, it ‘revived’ barred claims for three years. In its moving papers, the District argues each cause of action against it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. §§ 438(b)(1) and 438(c)(1)(B)(ii).) The argument is based on the premise that the Legislature could not, as it attempted in Assembly Bill No. 218 (2019–2020 Reg. Sess.) (“AB 218”), retroactively lift the claim presentation element for pre-2009 claims (2009 is when the claim presentation requirement was eliminated prospectively for childhood sexual assault claims). One of AB 218’s stated purposes was to do just that—make California Government Code section 905(m) retroactive to include claims that accrued prior to 2009. The District contends this amendment violated the prohibition on gifts of public funds in the California Constitution, Article XVI § 6. The District argues such retroactive lifting of a “substantive element” impermissibly imposes liability where no enforceable claim previously existed. Plaintiff opposes the demurrer, arguing that AB 218 was not a gift because plaintiffs must still plead and prove their cases and because the sexual assault of children would have subjected the District to liability even at the time of the acts here. Plaintiff distinguishes authorities the District’s authorities supporting the substantive nature of government claims, when compared with statutes of limitations. Finally, plaintiff argues that even if the passage of AB 218 could be construed as a gift pursuant to the California Constitution, it was made for a valid public purpose. Prior to the initial hearing date set for this motion (May 6, 2024), District attempted to file reply papers. The hearing was continued to June 10th to permit adequate meet and confer efforts. On May 8, 2024, counsel for the District filed a declaration concerning parties’ additional meet and confer efforts. Still, as disclosed in the tentative ruling published on June 7, 2024, the Court had never received any reply papers from the District. Prior to the June 10th hearing, the District belatedly filed its reply and a second request for judicial notice. At the hearing, the District requested, and plaintiff did not object to, a continuance to allow the Court to review the District’s reply papers. The Court now proceeds with its ruling. Standard Code of Civil Procedure § 438 permits a defendant to move for judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action against the defendant, the ground relied on by District here. (Code Civ. Proc. §§ 438(b)(1) and 438(c)(1)(B)(ii).) The basis for judgment on the pleadings "shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (Code Civ. Proc. § 438(d).) The legal standards for determination of a motion for judgment on the pleadings are similar to the standards for determination of a demurrer. (Eckler v. Neutrogena Corp. (2015) 238 Cal.App.4th 433, 439.) As in the case of a demurrer, the Court accepts all factual allegations of the complaint and "gives them a liberal construction." (Gerawan Farming, Inc. v. Lyon (2000) 24 Cal.4th 468, 515-16.) "If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Where a motion for judgment on the pleadings is granted, and the defect can be cured by amendment, leave to amend must be granted. (Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392, 408.) Judicial Notice Both plaintiff and the District request judicial notice. The exhibits to District’s RJN include Exhibit (A), the California Assembly's Floor Analysis of AB 218 as amended August 30, 2019; Exhibit (B) and (C), which are orders by another Judge of this Court, the Honorable Danielle Douglas, in cases similarly brought pursuant to the change in law effected by AB 218, and (D) an order by a judge in Monterey County Superior Court in a case also brought pursuant to the same change in law. The District’s unopposed request is granted. In opposition to the motion, plaintiff requests judicial notice of the Senate Floor Analysis for A.B 218, Third Reading, prepared September 3, 2019. The unopposed request is granted. The District’s second request for judicial notice of another trial court’s ruling on similar issues, filed with the reply brief, is also granted. The plaintiff has not had an opportunity to respond, but as noted at the June 10th hearing, the decisions of other trial courts are not binding and have no significant persuasive value given the sheer number of cases raising these same issues. Analysis Whether an appropriation of public funds is to be considered a gift depends on whether the funds are to be used for a "public" or "private" purpose. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 745-746.) What constitutes a “public” purpose is primarily a matter for the Legislature, and its discretion will not be disturbed by the courts so long as that determination has a reasonable basis. (Ibid.) Here, in its passage of AB 218 the Legislature’s intent appears to have been, at least in part, to help prevent future assaults by raising the costs for this abuse, as well as compensation of victims. (See RJN in Support of Motion, Ex. A, p. 2; see also RJN in Support of Opposition, Exhibit 1, p. 6 [“This bill provides another chance for victims, who are currently barred from pursing claims based solely on the passage of time, to seek justice.”].) This is sufficient. District has not met its burden to demonstrate that this was not a public purpose. It is this Court’s view that the presentation of a Government Code claim does not necessarily create a “liability” that would otherwise not exist, nor does the retroactive removal of the requirement create such liability. Even if removal does create such liability, then this Court concludes the Legislature had a sufficient public purpose for its decision to do so. Plaintiffs proceeding pursuant to the change in the law must still prove their entitlement to recovery. The District’s reply highlights the historical immunity public entities (like the District) enjoy under the Government Claims Act. The District also distinguishes Coats v. New Haven Unified School Dist. (2020) 46 Cal.App.5th 415, cited in plaintiff’s opposition brief, and argues the Legislature’s cited purposes are not sufficient to overcome the constitutional prohibition on gifts of public funds. None of these arguments overcome this Court’s duty to defer to the Legislature’s determination of what constitutes a public purpose.

2021-3415 Nunez Motion to Compel Second Medical Exam 7/26/2024 Defendant brings a Motion to Compel a Second Medical Examination of Plaintiff. Having read the moving papers, the opposition papers, and the reply papers, the court issues the following tentative ruling: Appearances required. The parties to attend the hearing remotely via the Dept. 11B Bridge Line. To attend the hearing remotely dial (209) 992-5590 and follow the prompts entering Bridge No. 6941 and Passcode 5564. This personal injury action arises from an incident that occurred on April 20, 2019. In September 2023, defendant noticed and plaintiff submitted to a physical examination by Dr. Stephen Forner, a neurologist. Defense selected a neurologist to conduct a physical examination to evaluate plaintiff's alleged injury of a traumatic brain injury. After the examination by Dr. Forner, defense learned that plaintiff also alleged that the injuries impacted his vision. In June 2024, defense counsel contacted plaintiff's counsel to see if plaintiff would submit to a physical examination by an ophthalmologist, Dr. August Reader. Plaintiff's counsel initially agreed to produce plaintiff for this physical examination which would take place on July 26, 2024. A timely and proper notice of Physical Examination was served. As a courtesy defense agreed to pay plaintiff milage to travel to the examination. Later, plaintiff's counsel decided to not produce plaintiff to the Dr. Reader physical exam absent court order. According to the opposition, "[the attorney at the law firm that] agreed to the second DME . . . was under the impression that this was the first request." However, the opposition only offers hearsay that lacks foundation to establish this fact. In addition, after the Dr. Forner evaluation and at present it appears that plaintiff suffered a stroke although this information was not provided to defendant in responses to Supplemental Discovery served by plaintiff. A motion for a physical examination shall be granted upon a showing of good cause. (CCP 2032.320(a).) "Good cause" exists when the moving party establishes "specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to led to the discovery of admissible evidence." (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) When "the truth of [a plaintiff's] claim is relevant to plaintiff's cause of action and justifying facts have been shown with specificity, good cause as to these assertions has been demonstrated. (Id. at 840-841.) This good cause requirement "serves as a barrier to excessive and unwarranted intrusions," however it "does not limit the number of examinations, but cumulative discovery is prohibited." (Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 428.) Dr. Reader's physical evaluation is not "cumulative". Dr. Reader's examination will address the alleged vision issues. These alleged injuries were not evaluated by Dr. Forner. In fact, Dr. Forner, specifically stated in his report he defers to an ophthalmologist. Certainly, Dr. Reader's examination is reasonably calculated to lead to the discovery of admissible evidence, i.e. plaintiff's alleged injuries. In fact, plaintiff's counsel initially agreed that the physical examination was reasonably calculated to lead to the discovery of admissible evidence, hence the initial agreement to produce plaintiff for the Dr. Reader examination. Further, the prejudice to plaintiff is minimal. The physical examination by Dr. Reader will be limited to evaluating plaintiff's claimed vision injuries and therefore the evaluation will not be prolonged. Plaintiff may record the examination. Further, plaintiff is being compensated at the federal rate for travel. The court GRANTS defendant's Motion to Compel Physical Examination of Plaintiff Lazaro Nunez. Appearances required for any argument and if none to determine the date time and location for Dr. Reader's evaluation. WATERS 7/25/2024 Directions for Contesting or Arguing the Tentative Ruling: 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, Case number, Case Name, and party’s name 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 conduct a remote appearance, if applicable, follow the instructions below. There is a dedicated conference bridge lines for Dept. 11B. Call into dedicated conference bridge line at the time set for the hearing. To attend the remote hearing in Dept. 11B: Call into (209) 992-5590, then follow the prompts and use the Bridge # 6941 and Pin # 5564. The courtroom clerk will make announcements and the Judge will call the calendar. Please mute your phones when you are not speaking, and remember to unmute your phone when you are speaking. At this time, we are not able to provide information over the phone. To communicate with the Courtroom Clerk of Dept. 11B, please email questions to civilcourtclerks@sjcourts.org, indicating in the title of the email the Department, Case number, Case Name, and party’s name. A Courtroom Clerk will return your email. To ensure the Court has your most recent contact information, if you have not already done so, please register your email address and mobile number on the Court’s website under Online Services, Attorney Registration. (You do not have to be an attorney to register.) We thank you for your cooperation, assistance, patience and flexibility

No appearances necessary. After review of the parties’ CMC statements, the matter is continued for further case management and trial setting to January 22, 2025 at 1:30 p.m. in Department 3. Updated CMC Statements must be filed and served at least 15 days prior to the CMC.

DEMURRER ON 1ST AMENDED COMPLAINT FOR OTHER PERSONAL INJURY/PROPERTY GRISSOM VS PARKVIEW DAMAGE/WRONGFUL DEATH TORT CVRI2306299 COMMUNITY HOSPITAL (OVER $25,000) OF GINA GRISSOM MEDICAL CENTER BY PARKVIEW COMMUNITY HOSPITAL MEDICAL CENTER, AHMC HEALTHCARE INC., DOCTORS HOSPITAL OF RIVERSIDE LLC Tentative Ruling: SUSTAIN, with 30 days leave to amend. 5. MOTION TO STRIKE COMPLAINT ON 1ST AMENDED COMPLAINT FOR OTHER PERSONAL INJURY/PROPERTY GRISSOM VS PARKVIEW DAMAGE/WRONGFUL DEATH TORT CVRI2306299 COMMUNITY HOSPITAL (OVER $25,000) OF GINA GRISSOM MEDICAL CENTER BY PARKVIEW COMMUNITY HOSPITAL MEDICAL CENTER, AHMC HEALTHCARE INC., DOCTORS HOSPITAL OF RIVERSIDE LLC Tentative Ruling: GRANT, with 30 days leave to amend.

C24-00022 CASE NAME: BINGHUI LIU VS. COLLECT ACCESS, LLC DEFAULT HEARING IN RE: DEFAULTED DEFENDANT COLLECT ACCESS AND OFFER/ACCEPTANCE TO COMPROMISE FOR ALL OTHER DEFENDANTS FILED BY: *TENTATIVE RULING:* Appearance required.

HEARING RE: MOTION TO BE AGUILAR VS WINCO CVRI2302916 RELIEVED AS COUNSEL FOR ROSA FOODS HERLINDA AGUILAR Tentative Ruling: The Court grants Plaintiff counsel’s motion to be relieved, effective upon the filing of the proof of service of a signed order upon the client.

Case Number: 21SMCV01627 Hearing Date: July 26, 2024 Dept: I The matter is here for two reasons. The first is the lien sought by judgment creditors. They allege that they hold a judgment against Vivera and would like an order that any money paid by the defaulted defendants be paid to them as a credit against the judgment rather than to Vivera. The second reason the case is here today is for the default prove-up. The court is taking the somewhat unusual step of requiring a live prove up because the judgment seeks $7.5 million in damages against Girardi. (The other defendants have settled.) According to the supporting declaration from Viveras CEO, Edalat, Cervantes is a former advisor to Vivera. He introduced Vivera to Salimour and Girardi for a potential business opportunity in 2017. He also introduced the declarant to former Mayor Villaraigosa. Villaraigosa allegedly said he could assist Vivera in getting a contract with Los Angeles for COVID-19 testing. Edalat says that he became friends with Salimpour, who was to be an advisor. But the relationship soured and the two parted ways in 2018. Edalat claims that Girardi and Salimpour made a number of defamatory comments about him, Vivera, and Karpinski to various people and that Edalat learned of them in June 2020. The statements were conveyed to Edalat by Cervantes. Edalat reached out to Salimpour to ask about them, but he denied making them and denied Girardi had either. Salimpour and Girardi then allegedly filed a frivolous complaint against Vivera (Girardi, the court thinks, as counsel) alleging employment related claims. Edalat says that he kept hearing about defamatory statements allegedly made by Girardi continuing into 2020 and even early 2021. In January 2021, Edalat says that he learned that Girardi continued to say defamatory things. He thinks Girardi did that to get a favorable settlement in the other case. The statements allegedly made by Girardi are that Edalat is a crook and in trouble with the feds; that there were demeaning sexual statements about Karpinski and that she was only employed due to her looks, and that Vivera was going nowhere. Edalat claims that he learned from Villaraigosa that the statements were having a negative effect on prospective business relationships. For example, Villaraigosa allegedly said he could not submit a bid to the City due to those statements. Edalat says that the way government contracts work, they need to have political backing and that if Villaraigosa backed it, it was virtually guaranteed to succeed. But, he claims, Girardis influence doomed that to failure. Edalat claims that the entity that ultimately got the contract was paid $7.5 million according to a web site. Edalat says that Girardi had a close relationship with Bluestonethe entity that got the contract. Edalat also claims that Girardi was aware of another relationship Vivera had involving the Coushetta Tribe of Louisiana. But that relationship went sour when the prospective client heard about the derogatory comments. Edalat says that Cervantes said Girardi confirmed he made the defamatory statements. There was a similar pattern with the San Manuel Band of Mission Indians. Edalat has submitted a declaration stating that plaintiffs have dismissed all of the other defendants. No money changed hands in any of those agreements, although there seems to have been some kind of consideration in the settlement with Pedram Salimpour and PPS Health (but the terms of that agreement are confidential). The court has a number of problems with this. First, the court is not inclined to believe, without more, that Los Angeles will simply award contracts to whomever former Mayor Villaraigosa endorses. While the court is well aware that city government is not always pristine, the court is not prepared to say that it is wholly in Villaraigosas palm. The same is true of the two Native American nations. The evidence of the defamatory comments is not well established. The court is not sure that there is any actual admissible evidence that the statements even were made. The court is aware that the default essentially admits the truth of the accusations, but even so, the court takes this with a box of salt. Finally, the alleged damages are not proven. The fact that a contracts face value is $7.5 million does not mean (a) that Vivera would have received the same contract or (b) that the face value of the contract is the profit. The contract was to provide COVID-19 testing. The court has to presume that there would have been some costs incurred to perform, not only to develop the tests, but also to manufacture them and provide them to the City. The fact is that the complaint smacks of piling on, at least as to the damages here. Having said that, this is here for a prove-up. If the matter is proven up, the court will award damages as appropriate. The lien sought is proper, and when the prove-up occurs, the motion will be GRANTED.