Related Content
in Gwinnett County
Case
BYRD VS PRYOR et al
Jul 22, 2024 |
Dove, Erica K. |
Tort - Auto Tort* |
Tort - Auto Tort* |
24-C-06702-S5
Ruling
AARON PATZAN VS CLUDO K. GEORGIADIS
Jul 26, 2024 |
22STCV25879
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.
Ruling
FCS059298 - THOMPSON, FELICIA V. SAUKHLA, M.D., NARINDER (DMS)
Jul 26, 2024 |
FCS059298
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.
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Ruling
PARKER vs SAHARA DENTAL
Jul 22, 2024 |
CVSW2401629
PARKER VS JAMAL DENTAL MOTION TO BE RELIEVED AS
CVSW2401629
CORPORATION COUNSEL FOR KIMBERLY A. PARKER
Tentative Ruling: GRANT and Approve the Proposed Order.
Ruling
OLIVER LEROY VANN vs. OSAROBO OSEMWINGIE LVN
Jul 29, 2024 |
19-CVC-11488
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.
Ruling
LOPEZ, JOSE vs SILVA, ANTHONY JOHN LEWIS
Jul 26, 2024 |
CV-23-003513
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.
Ruling
SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et...
Jul 26, 2024 |
Civil Unlimited (Asbestos) |
23CV031203
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
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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.
Ruling
Stephen Siefke vs Jimmy Dutra, Jr
Jul 26, 2024 |
22CV02174
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