Document for SHEPPARD VS BROWN

Case Number: 22STCV25879 Hearing Date: July 26, 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 26, 2024 CASE NUMBER : 22STCV25879 MOTIONS : Motion to Compel Plaintiff to Appear for a Physical Examination MOVING PARTY: Defendant Cludo K. Georgiadis OPPOSING PARTY: Plaintiff Aaron Patzan BACKGROUND This case involves alleged injuries from a fall. Defendant Cludo K. Georgiadis (Defendant) now moves to compel Plaintiff Aaron Patzans (Plaintiff) appearance at a physical examination. Defendant also seeks monetary sanctions. Plaintiff opposes. LEGAL STANDARD In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).)¿¿ Code of Civil Procedure section 2032.410 provides: If a party is required to submit to a physical or mental examination under Articles 2 (commencing with Section 2032.210) or 3 (commencing with Section 2032.310), or under Section 2016.030, but fails to do so, the court, on motion of the party entitled to the examination, may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may, on motion of the party, impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). DISCUSSION Defendant brings this motion solely under Code of Civil Procedure section 2032.410, which provides the authority to impose sanctions, but not to compel an appearance. Code of Civil Procedure § 2032.250, which does provide that a defendant may move for an order compelling compliance, also requires that the motion be accompanied by a meet and confer declaration. No meet and confer efforts are described in the declaration attached to the motion. Accordingly, the motion is denied. The Court finds that the imposition of sanctions as to either party would be unjust and declines to award monetary sanctions. CONCLUSION AND ORDER Accordingly, Defendants motion to compel Plaintiffs physical examination is denied. Defendant shall provide notice of the Courts order and file a proof of service of such.

FCS059298 PORTUGAL’s Motion for Summary Judgment TENTATIVE RULING Defendant RUTH PORTUGAL, R.N. (“PORTUGAL”) moves for summary judgment on Plaintiff FELICIA THOMPSON’s cause of action for wrongful death via medical negligence. Summarized, Plaintiff alleges that PORTUGAL’s failure to observe the standard of care applicable to a nurse caused the death of Plaintiff’s father (“Decedent”) on September 2, 2017. Objections to Evidence. In ruling on a motion for summary adjudication the court need only rule on those evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) PORTUGAL’s Objections #1-10. PORTUGAL’s objections #1-10 are overruled. PORTUGAL’s Objections #11-22. PORTUGAL’s objections to Plaintiff’s declarations from Melvin Smith, Michael Burrus, Cole Bienek, Earl Miller, James Cross, John Lawyer, Herman Davis, Clarence Myers, Shelvert Dyer, Lamar Minor, and Michael Davis, as well as the second supplemental declaration of Dr. Dan Field, on the basis of failure to comply with Code of Civil Procedure section 2015.5 are sustained. Though the declarations are not hearsay they do not meet Code of Civil Procedure section 2015.5 requirements. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609 [declarations of personal knowledge admissible on summary judgment].) All declarations but Dr. Field’s fail to state the date and place of execution of the declarations. Dr. Field’s second supplemental declaration does not state the place. PORTUGAL’s Objections #23-24. PORTUGAL’s objections to all proffered evidence from Dr. Field, being his two declarations, a rebuttal declaration to defense expert opinions, and deposition excerpts, are sustained. A doctor may speak to the standard of care for a nurse if he possesses relevant qualifications or knowledge. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 970 (Lattimore).) However, Dr. Field’s qualifications and knowledge are solely set forth in his second supplemental declaration, which fails to meet Code of Civil Procedure section 2015.5 requirements. Accordingly Plaintiff does not establish with admissible evidence that Dr. Field can speak to the standard of care applicable to PORTUGAL. Similarly, Dr. Fields’ opinions as a medical doctor are also lacking in foundation. Neither the Record Review Report dated 12/11/2020 or the Rebuttal Report dated 1/14/2021 state Dr. Fields’ qualifications. The Second Supplemental Declaration, which does state the doctor’s qualifications, does not cure the problem as the declaration is procedurally defective under CCP 2015.5. The court does not consider PORTUGAL’s remaining objections material to the disposition of the motion. Requests for Judicial Notice. Matters subject to judicial notice may support a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (b)(1).) The court takes judicial notice of all items proffered by PORTUGAL, being documents from Plaintiff’s federal case preceding this one on the same facts, as records of a court of the United States per Evidence Code section 452, subdivision (d). Legal Standard. A defendant may move for summary judgment on the basis that the plaintiff cannot establish an element of his cause of action. (Code Civ. Proc., § 437c, subd. (o)(1).) A summary judgment motion is properly granted where the evidence in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not show facts sufficient to present a triable issue of fact. (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion is not to be granted where any triable issue of material fact exists. (Ibid.) The affidavits of the moving party are strictly construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (Ibid.) Reasonable inferences from the evidence must be drawn in the light most favorable to the opposing party. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155.) Affidavits, declarations, admissions, answers to interrogatories, depositions, and matters judicially noticed may all support a motion for summary judgment, provided they contain admissible evidence. (Code Civ. Proc., §§ 437c, subds. (b)(1), (d).) Allegations in a party’s own pleadings may not satisfy deficiencies in evidence. (Code Civ. Proc., § 437c, subd. (p).) Allegations in an opposing party’s pleadings may be considered evidence, however. (Parker, supra, 3 Cal.3d at p. 181.) Additionally, a defendant does not meet its burden of showing a plaintiff cannot establish an element merely by pointing out the absence of evidence; the defendant must show that the plaintiff both does not possess and cannot reasonably obtain evidence. (Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1286-1287.) Wrongful Death via Medical Negligence. Wrongful death is a statutory cause of action, the elements of which are simply a tort resulting in death and damages. (Lattimore, supra, 239 Cal.App.4th at p. 968.) In this case Plaintiff alleges the wrongful death of Decedent due to the underlying tort of medical malpractice or negligence. (First Amended Complaint at ¶¶ 38-44.) Medical negligence is a form of negligence, to which general principles of negligence apply. (Massey v. Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 695.) Thus a medical practitioner is negligent if he fails to use the standard of care that a reasonably careful practitioner would use in similar circumstances, but what the standard of care is for a medical practitioner is a matter peculiarly within the knowledge of experts. (Ibid.) The standard of care for a medical practitioner may therefore only be proven by the testimony of experts unless the conduct required in the circumstances is something within the common knowledge of laymen. (Ibid.) In other words, a plaintiff usually may only prove that a medical practitioner failed to meet the standard of care via expert testimony. (Ibid.) The foregoing rules of analysis apply whether the practitioner is a doctor or a nurse; a nurse’s conduct is not measured by the same standard of care as a doctor’s but likewise must be assessed by expert testimony from one qualified to speak to the appropriate profession’s standard of care. (Lattimore at p. 969.) On moving for summary judgment a medical practitioner will accordingly have the initial burden to present evidence, supported by expert testimony where necessary, that his/her acts met the applicable standard of care, else the motion must be denied. PORTUGAL carries her initial burden as to the standard of care issue. The Declaration of Nancy Booth in Support of PORTUGAL’s Motion for Summary Judgment (Booth) states that PORTUGAL observed the relevant standard of care (Booth at ¶ 17.) Ms. Booth declares she is qualified to speak to the standard of care for a nurse in PORTUGAL’s circumstances because she is a licensed registered nurse with almost fifty years’ experience who has been a certified correctional setting health care professional since 2013 and worked in a correctional health care setting from 2006 to 2021. (Id. at ¶¶ 1, 3.) Ms. Booth reviewed Decedent’s general medical records, the records from September 2, 2017, and numerous documents generated in the course of this litigation. (Id. at ¶ 5.) Ms. Booth explains that in the context of the unusually hot day on September 2, 2017 it was reasonable for PORTUGAL to believe Decedent suffered heat-related problems and perform associated assessments and treatment. (Id. at ¶ 18.) Ms. Booth states that Decedent was able to answer questions and obey commands and so it was reasonable for PORTUGAL to not explore a possible altered mental state. (Id. at ¶ 17.) Ms. Booth states that it was reasonable to believe Decedent’s problems had resolved because he displayed improved vital signs after treatment. (Id. at ¶ 18.) Additional tests such as rectal thermometer and orthostatic blood pressure readings were not necessary to meet the standard of care because Decedent was a conscious adult male whose vital signs were able to be accessed in other ways. (Id. at ¶¶ 20-21.) Ms. Booth connects her opinions to facts and offers competent expert testimony that PORTUGAL met the standard of care. Plaintiff’s admissible evidence suffices to raise triable issues of material fact on the issue of the standard of care. In paragraph 13 of the Ron Lopez declaration he states that PORTUGAL observed that Decedent was dehydrated yet performed no evaluation of urine specific gravity, orthostatic blood pressure, or fluid intake and output. This directly counters Ms. Booth’s assertion that there was no need to examine Decedent’s orthostatic blood pressure and raises a triable issue of material fact on the standard of care given that the defense position hinges on the idea that PORTUGAL responded appropriately to presented dehydration. In paragraph 14 Mr. Lopez states that PORTUGAL observed “10/10” pain from Decedent for two and a half hours but did not perform a PQRST pain assessment or document the effect of the analgesics provided. This too raises an issue as to the standard of care in the circumstances Decedent presented. On the issue of causation, however, PORTUGAL fails to meet her initial burden. In a medical negligence case, causation must be proven with expert testimony. (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498; Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984- 985.) In the context of a motion for summary judgment, it stands to reason that expert testimony is needed to negate causation. PORTUGAL offers no expert evidence to negate causation. She uses only a layperson’s analysis based on the disputed facts surrounding Decedent’s cause of death to conclude that there is no evidence that responding differently to Decedent’s initial presentation would have changed his treatment outcome. Conclusion. PORTUGAL’s motion for summary judgment is denied. Department 7 is inviting you to a scheduled ZoomGov meeting. Join ZoomGov Meeting https://solano-courts-ca- gov.zoomgov.com/j/1611554664?pwd=T3U4QlBGWWNWaGlieXJTcGxIVHRXZz09 Meeting ID: 161 155 4664 Passcode: 818575 One tap mobile +16692545252,,1611554664#,,,,*818575# US (San Jose) +14154494000,,1611554664#,,,,*818575# US (US Spanish Line)

PARKER VS JAMAL DENTAL MOTION TO BE RELIEVED AS CVSW2401629 CORPORATION COUNSEL FOR KIMBERLY A. PARKER Tentative Ruling: GRANT and Approve the Proposed Order.

Defendant’s Motion for Summary Judgment is GRANTED. Mandatory Settlement Conference and Trial Setting are VACATED. Summary judgment must be granted if all the papers and affidavits submitted, together with “all inferences reasonably deducible from the evidence” and uncontradicted by other inferences or evidence, show ‘there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).)” (Property California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1161- 1162.) The party moving for summary judgment carries both the burden of persuasion and the burden of production of evidence. (Evid. Code §500; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) A defendant moving for summary judgment “bears the burden of persuasion that ‘one or more elements of the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a complete defense’ thereto.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Alternatively, a defendant meets its burden by submitting evidence ‘that the plaintiff does not possess, and cannot reasonably obtain, needed evidence’ supporting an essential element of its claim.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Plaintiff’s complaint alleges a single cause of action of medical negligence against Defendant Osemwingie, LVN. To establish a prima facie case of professional malpractice, a Plaintiff must prove by a preponderance of the evidence each of the following four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 482). In medical malpractice actions, expert testimony is required to prove each of the four prima facie elements. (Lawless v. Calloway, (1944) 24 Cal.2d 81, 90; Willard v. Hagemeister, (1981) 121 Cal.App.3d 406 412). A Plaintiff opposing a motion for summary judgment on a medical malpractice claim must present competent expert testimony that the Defendants' delivery of medical services fell below the standard of care, and the breach of the duty of care proximately caused the injury. (Rutherford v. Owens- Illinois, Inc., (1997) 16 Cal.4th 953, 957-58; Jameson v. Desta, (2013) 215 Cal.App.4th 1144, 1166; Johnson v. Superior Court, (2006) 143 Cal.App.4th 297, 305. Defendant Osemwingie, LVN offers into evidence the declaration of Dr. J. Jackson, Plaintiff’s physician who treated Plaintiff after the injection of Estradiol. Dr. Jackson reviewed Plaintiff’s medical records as well as medical literature regarding the potential side effects of a single injection of Estradiol. (Decl. Jackson ¶¶ 2-3.) Dr. Jackson was unable to find any clinical or statistical information to suggest that a single injection of Estradiol might have any significant effects, or even any adverse effects. (Decl. Jackson ¶ 4.) Based on the review of the medical literature, Plaintiff’s medical file, as well as Dr. Jackson’s own examinations of Plaintiff, it is the doctor’s professional medical opinion that the injection of Estradiol did not cause any side effects or lasting effects of any kind. (Decl. Jackson ¶ 5.) Here, Defendant presents admissible evidence showing that Plaintiff does not possess and cannot obtain evidence supporting demonstrable damages, or that the conduct of Defendant caused any such damages. Burden Shifts to Opposing Party Once the moving party has met their initial burden, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to the cause of action or a defense. “The defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP § 437c(p)(1); emphasis added.) “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions', or mere possibilities’” (Myricks v. Lynwood Unified School District (1999) 74 Cal.App.4th 231, 237.) ‘Thus, while the court in determining a motion for summary judgment does not “try” the case, the court is bound to consider the competency of the evidence presented.’ (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525-526.) Defendant’s Motion for Summary Judgment is unopposed. Plaintiff offers no relevant, admissible evidence as to the cause of action for medical negligence against Defendant Osemwingie, LVN. In light of the court’s ruling granting Defendant’s Motion for Summary Judgment, the Mandatory Settlement Conference and Trial Setting are vacated. Moving party is ordered to prepare a judgment and dismissal conforming to the court’s order within ten (10) days of the hearing date. Plaintiff is incarcerated at Mule Creek State Prison. As per Amador Local Rules of Court, rule 4.03, subdivision F, the tentative ruling procedures do not apply in any case in which a self-represented party in the custody of the California Department of Corrections and Rehabilitation. Plaintiff may appear telephonically for hearing; orders will be made at time of hearing.

CV-23-003513 – LOPEZ, JOSE vs SILVA, ANTHONY JOHN LEWIS – Defendant’s Motion to Strike Portions of the Complaint – GRANTED. Plaintiffs’  complaint fails to allege facts demonstrating any negligence on the part of moving Defendants and fails to allege facts that demonstrate malice; a conscious disregard of the safety of others such as the decedent, or that demonstrate despicable conduct by the moving Defendants; “conduct that is so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people”,  that would support a claim for punitive damages. (Cal. Civ. Code §§ 436 and 3294(c)(1); College Hospital Inc. v. Superior Court (1994), 8 Cal.4th 704, as modified; King v. U.S. Bank Nat'l Ass'n, (2020), 53 Cal. App. 5th 675, as modified on denial of reh'g (Aug. 24, 2020); (Am. Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, (2002) 96 Cal. App. 4th 1017). Overall, as currently pled, this is not a case in which a jury could determine by clear and convincing evidence that punitive damages are warranted. Accordingly, Defendant’s motion to strike is hereby granted, with leave to amend. Plaintiff’s request for attorney fees and costs is denied.

23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et al. 07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR LABORATORIES, INC (Defendant) in Department 18 specifications required these products to meet certain requirements, the subcontractor had some flexibility in determining what specific products to use and routinely incorporated provision of these products into its subcontracting bids. The Court of Appeal stated that the key issue was whether defendant subcontractor was “in a position to enhance product safety or exert pressure on the manufacturer to promote that end, and bear the costs of compensating for injuries.” (243 Cal.App.4th 249, 262.) Endicott is the case most favorable to Defendant. In Endicott, plaintiff alleged that the seatbelt on his 1967 Nissan 411 broke or ruptured during a vehicle crash thereby worsening his injuries. The plaintiff sued both the car manufacturer Nissan Motor Corp. (“Nissan” or “Datsun”) and the independent contractor (“Installer”) who installed the seatbelts into Nissan vehicles. The seatbelts were manufactured by Nissan, were delivered to Installer in the trunks of the vehicles into which Installer was to install the seatbelts at locations marked by Nissan “according to [Nissan’s] directions,” and Nissan “supplied all materials for attaching the belts.” There was no evidence at trial to support a finding that Installer had reason to know the seatbelts supplied by Nissan might be defective. (73 Cal.App.3d 917, 925.) In upholding a trial verdict against plaintiff, the Endicott Court of Appeal stated in relevant part: “[W]e find no evidence that Installer was an integral part of the overall marketing enterprise that produces Datsun automobiles or that it played any significant role in placing Datsun’s product in the stream of commerce that could render Installer liable in tort for defects in Datsun's automobiles. As a mere provider of services Installer is not liable for defects in the product. Nor is there anything in this record to indicate that Installer should have recognized the possibilities of misadventure that might arise from proximity of seat belt and metal L-bracket,” a posited cause of the seatbelt rupture. (73 Cal.App.3d at 930.) Defendant presents evidence from the deposition of its employee, Ronald Yakupcin, who worked for Defendant throughout the period of Mr. Sorum’s alleged use of Defendant’s products. (DIOE Exh. 10.) He testified that throughout the relevant period Defendant was in the business of “contract manufacturing” colored cosmetics for other cosmetics companies. He further testified that: “we would take our customer's formula, manufacture that formula, fill it into their packaging and ship it to where they wanted us to ship it. Or, the customer purchased our formula which was then filled into their packaging and shipped to their points of distribution.” (Id. at p. 266:15-25.) Mr. Yakupcin further testified that Defendant did not sell any of its products under its own labels or brand names. He also testified that typically customers would provide Defendant with the product formula, the manufacturing instructions, the packaging, filling and packaging instructions and the shipment instructions. (Id. at pp. 267:3-269:6; compare to p. 266:15-25 quoted above.) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et al. 07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR LABORATORIES, INC (Defendant) in Department 18 Defendant does not provide testimony from Mr. Yakupcin regarding whether customers supplied all of the ingredients Defendant used to make the customer’s cosmetics, whether the customers specified the specific talcs to be used in each product or if Defendant could choose among similar talcs that met the customer’s specifications. Mr. Yakupcin testified that in some instances customers bought Defendant’s formulas, with respect to which Defendant was implicitly choosing what talcs or other ingredients should go into the formulas. He also testified that Defendant shipped the finished products to customers’ “points of distribution,” indicating Defendant was in the chain of distribution for the finished products eventually reaching consumers like Mr. Sorum. Further, unlike Endicott, where the third-party contractor INSTALLER was merely installing a single discreet part of a Nissan automobile furnished to it by Nissan, here Defendant was apparently assembling, manufacturing or blending the entire, at- issue scented cosmetic talc products. If Defendant played any role in deciding what cosmetic talcs went into any cosmetic talc formula it sold to a customer, then this case would fall under the rule of Hernandezcueva, rather than Endicott. The Court finds that Defendant’s moving evidence does not create undisputed material facts pursuant to which Defendant is entitled to summary adjudication of Plaintiffs’ Strict Liability Cause of Action as a matter of law. Wherefore, the Court DENIES Defendant’s MSA of Plaintiffs’ First Cause of Action for Strict Liability. 4. MSA of Plaintiffs’ Punitive Damages Claim. To be entitled to an award of punitive damages, a plaintiff must show by clear and convincing evidence that the defendant is guilty of malice, oppression or fraud. (Cal. Civ. Code § 3294(a).) The definition of “malice” includes “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (§ 3294(c).) “Despicable conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (See CACI 3946.) A finding of malice does not require an actual intent to cause harm. “Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.” (Pfiefer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) Further, a defendant’s “prolonged failure” to take adequate measures to protect people who worked with its products against a known hazard to their health and safety may justify a conclusion that the conduct was malicious, fraudulent, or oppressive. (Bankhead v. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et al. 07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR LABORATORIES, INC (Defendant) in Department 18 ArvinMeritor, Inc.) (2012) 205 Cal.App.4th 68, 86.) However, the Cal. Supreme Court has stated that by addition of the word “despicable” to Civ. Code § 3294(c), “the statute plainly indicates that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious” disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc. v. Sup.Ct. (1994) 8 Cal.4th 704, 725.) A clear and convincing evidentiary standard applies to evidence presented by a plaintiff in opposition to a motion for summary adjudication of punitive damages claims. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1118-1119.) However, the clear and convincing evidentiary standard “does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary [adjudication].” (Pacific Gas and Electric Co. v. Sup.Ct. (2018) 24 Cal.App.5th 1150, 1158-1159.) “Summary ... adjudication ‘on the issue of punitive damages is proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.’” (Ibid.) Further, a defendant moving for summary adjudication must still make an initial prima facie showing that no disputed issues of material fact exist such that defendant is entitled to summary adjudication as a matter of law in order to shift the burden of production to plaintiff to present clear and convincing evidence of malice, oppression or fraud. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) Defendant seeks to meet its initial burden of production as to Plaintiffs’ punitive damages claim by pointing to Plaintiffs’ assertedly “factually devoid” responses to Defendant’s sufficiently comprehensive written and deposition discovery. (Andrews, supra.) Here, Defendant cites to its SROG No. 4 seeking all facts supporting Plaintiffs’ punitive damages claim. (DIOE Exh. 5.) Plaintiffs’ Response to SROG No. 4 incorporates by reference their prior Response to SROG No. 3, seeking all facts supporting Plaintiffs’ claims that Defendant is liable for Plaintiffs’ injuries and damages generally. Plaintiffs’ Response to SROG No. 3 is “factually devoid” as to Plaintiffs’ punitive damages claim because it contains no specific facts to support a punitive damages claim. Instead, the Response states that Plaintiffs “contend” Defendant was aware of the asbestos-related hazards of its products but did not provide warnings. The Response also cites to historical documents supporting a claim that Defendant should have known about possible asbestos contamination of talc and the hazards of respirable asbestos, facts supporting a negligence theory, rather than stating any specific facts regarding what exactly Defendant knew at any specific time. (Ibid.) Although Defendant did not serve any SROG seeking identification of either all witnesses or all documents, Defendant did serve Request for Production of Documents (“RFPD”) No. 4 seeking production of all documents supporting Plaintiffs’ punitive damages claim. Plaintiffs’ Response to RFPD No. 4 incorporates by reference Plaintiffs’ Response to RFPD No. 1, seeking production of all documents supporting Plaintiffs’ Strict Liability Cause of Action. Plaintiffs’ SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et al. 07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR LABORATORIES, INC (Defendant) in Department 18 Response to RFPD No. 1, instead of providing a response complying with CCP § 2031.210(a), provides a list of responsive documents, specifically, Mr. Sorum’s deposition testimony transcript and exhibits thereto, Plaintiffs’ Responses to Joint Defense Interrogatories and Mr. Sorum’s medical and billing records. (DIOE Exh. 6.) Because none of the identified documents is reasonably likely to contain information to support a punitive damages claim, the Court finds Plaintiffs’ Response to RFPD Nos. 1 and 4, functionally equivalent to a factually devoid response to an SROG seeking identification of all documents supporting Plaintiffs’ punitive damages claim. The Court finds that Defendant has met its initial burden of production on summary adjudication of Plaintiffs’ punitive damages claim. Because asbestos torts plaintiffs always prove their punitive damages claims by means of the defendant’s corporate records or the deposition testimony of the corporate defendant’s persons most qualified (“PMQ”), officers or employees, Plaintiffs’ inability to state any specific facts in response to SROG No. 4 or to identify any specific documents in response to RFPD No. 4 is sufficient to create an inference that Plaintiffs do not have and cannot reasonably obtain any evidence to support their punitive damages claim. Thus, the burden shifts to Plaintiffs to present evidence in support of their punitive damages claim sufficient to create triable issues of material fact under a clear and convincing evidentiary standard. Plaintiffs present no evidence in Opposition to support Plaintiffs’ punitive damages claim. Instead, Plaintiffs request a CCP § 437c(h) continuance to complete the depositions of defendants Calvin Klein, Conopco and Gucci, assumably customers of Defendant. The Court DENIES Plaintiffs’ request for a CCP § 437c(h) continuance with respect to Plaintiffs’ punitive damages claim against Defendant. Plaintiff’s counsel’s declaration fails to explain how the depositions of other defendants is reasonably calculated to lead to the discovery of admissible evidence of Defendant’s senior executives’ malice, oppression or fraud. Plaintiffs present no evidence that they have not had a full and fair opportunity to depose Defendant’s corporate witnesses pursuant to the express terms of the Court’s 3/12/2024 Order granting Plaintiffs’ Motion for Trial Preference. Instead, in the unlikely event that the depositions of Calvin Klein’s, Conopco’s or Gucci’s PMQs produces evidence that Defendant’s senior executives acted with malice, oppression or fraud toward Mr. Sorum or persons similarly situated, the Court GRANTS Plaintiffs leave to seek reconsideration of the Court’s ruling on Defendant’s MSA of the punitive damages claim based on later-discovered evidence. Wherefore, the Court GRANTS Defendant’s MSA of Plaintiffs’ punitive damages claim. The Court OVERRULES Defendant’s Opposition Objection No. 1 that Defendant’s expert medical causation witness is not qualified to render an expert opinion regarding whether his exposures to allegedly asbestos-contaminated talc could cause Mr. Sorum’s mesothelioma. However, the Court disallows consideration of the Burns Declaration (Defendant’s Index of SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et al. 07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR LABORATORIES, INC (Defendant) in Department 18 Exhibits (“DIOE”) Exh. 1) solely as to the present dispositive motion because the moving Separate Statement does not comply with the requirements of CRC Rule 3.1350(d)(3). Specifically, Defendant’s Separate Statement does not cite to the Burns Declaration by “reference to exhibit, title, page, and line numbers.” Instead, the Burns Declaration incorporates by reference all of her 65-page, single-spaced expert witness report with no citation to any specific portions that are relevant to the disposition of this motion. The Court lacks the judicial resources to review a document of this length. Further, the Court’s limited review of the Burns expert witness report indicates that much of the content is not directly relevant to the disposition of this Motion, for example, recitation of Mr. Sorum’s alleged exposures to products other than talcum powder products, Burns’ rates for deposition testimony, Mr. Sorum’s use of talcum powder products not alleged to be attributable to Defendant, and the history of smoking in his family. The Court cannot expeditiously determine whether there is an adequate foundation for expert Burns’ opinions relevant to this Motion, specifically, whether Mr. Sorum’s alleged exposures to Defendant’s cosmetic talc products could have been a substantial factor in causing his malignant mesothelioma. Pages 41-43 of the Burns expert report constitute three pages of assumptions made by Defendant’s expert, but none of the actual source materials upon which she bases her assumptions are attached to the report for the Court to consider. On this basis, the Court SUSTAINS Plaintiff’s Objection No. 1 on the grounds that the Burns Declaration is too speculative solely with respect to the present motion. The Court OVERRULES Plaintiffs’ Objection No. 2 on the grounds of hearsay. The Court may consider deposition transcripts on summary judgment/adjudication. (CCP § 437c(b)(1). The Court SUSTAINS Plaintiffs’ Objection No. 3. Verified Interrogatory Responses may only be offered in evidence against the responding party. (CCP § 2030.410.) The Court OVERRULES Defendant’s Reply Objection Nos. 1-5. The Court reminds Defendant that paper courtesy copies of motion papers must be provided to Dept. 18 pursuant to Local Rule 3.30(c) not later than the day after timely filing. CONTESTING TENTATIVE ORDERS Notify the Court and all other parties no later than 4:00 pm the day before the scheduled hearing and identify the issues you wish to argue through the following steps: 1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov 2. Case Search 3. Enter the Case Number and select Search 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select Click to Contest this Ruling SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et al. 07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR LABORATORIES, INC (Defendant) in Department 18 7. Enter your Name and Reason for Contesting 8. Select Proceed.

Defendant's unopposed Motion for Leave to File Cross-Complaint is Granted. Hon. George J. Abdallah, Jr., Judge of the Superior Court

22CV02174 SIEFKE v. DUTRA DEFENDANT DUTRA’S MOTION TO COMPEL PLAINTIFF’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET THREE; FORM INTERROGATORIES, SET ONE; AND SPECIAL INTERROGATORIES, SET FOUR This case involves allegations of child sexual abuse by defendant. According to the complaint, in the summer of 2005, plaintiff, then 12 years old, vacationed with defendant, then 30 years old, and his parents, in Southern California. It was during this trip that plaintiff alleges he was molested by defendant. Trial is set to begin on September 3, 2024. These motions were set on shortened time. The motion is granted in part and denied in part, as discussed in detail below. Defendant seeks to compel further responses to request for production of documents, set three; special interrogatories, set four; and form interrogatories, set one. Request for production, set three