Preview
1 JENNIFER T. SANCHEZ (191548)
MURPHY SANCHEZ PLLC
2 4040 Civic Center Drive, Suite 200
San Rafael, California 94903
3
Telephone: (628) 386-1805
4 Facsimile: (215) 799-9349
Email: jsanchez@murphysanchez.com
5
Attorneys for Plaintiff,
6 USAA CASUALTY INSURANCE COMPANY
a/s/o ALLESANDRA CADMAN and KYLE CADMAN
7
8
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF LOS ANGELES
10
11 (UNLIMITED JURISDICTION)
12 USAA CASUALTY INSURANCE Case No. ________________
COMPANY a/s/o ALLESANDRA CADMAN
13 and KYLE CADMAN,
COMPLAINT
14 Plaintiff,
15 [$64,197.05]
v.
16 ALLOY CONSTRUCTION &
17 RESTORATION, an unknown business entity;
JUSTIN RODRIGUEZ, an individual; and
18 DOES 1 – 20, Inclusive, Complaint filed:
Trial Date:
19 Defendants.
20
21 Plaintiff USAA CASUALTY INSURANCE COMPANY a/s/o ALLESANDRA
22 CADMAN and KYLE CADMAN (“USAA”) hereby complains and alleges against Defendants
23 ALLOY CONSTRUCTION & RESTORATION, JUSTIN RODRIGUEZ, and DOES 1 through
24 20 as follows:
25 PARTIES
26 1. Plaintiff USAA is now and at materials times was authorized to do business in
27 California, and at all material times was the insurer of Kyle and Allesandra Cadman (collectively
28 “Cadmans”).
COMPLAINT
Case No. __________________________
1 2. At all relevant times, the Cadmans owned the residential property located at 1253
2 and 1255 S Rimpau Blvd., Los Angeles, CA 90019 (“Property”).
3 3. Plaintiff is informed, believes, and alleges that defendant ALLOY
4 CONSTRUCTION & RESTORATION (“ACR”) is an unknown business entity and is doing
5 business as a general contractor in Los Angeles County. ACR acted as the general contractor at the
6 Property with Contractor License Number 1054043.
7 4. Plaintiff is informed, believes and alleges that defendant JUSTIN RODRIGUEZ at
8 all relevant times was the owner and sole operator of ACR and who is an individual residing
9 and/or doing business in Los Angeles County.
10 5. The true names of Does 1 through 20 are unknown to Plaintiff. Plaintiff is informed
11 and believe that each of the Defendants are in some way responsible for the events alleged in this
12 Complaint and for causing or contributing to damage to Plaintiff. Plaintiff will amend this
13 Complaint and insert the correct names and capacities of these Defendants when they are
14 discovered.
15 5. At all relevant times, Defendants, and each of them were the employees, agents,
16 ostensible agents and/or contractors of each of the remaining Defendants, and were at all relevant
17 times acting within the purpose and scope of that employment, agency and/or contract. Each
18 Defendant had also given prior approval and subsequent ratification for the conduct, acts, and/or
19 omissions of each of the other Defendants referred to herein.
20 GENERAL ALLEGATIONS
21 6. At all relevant times Defendants were in the business of providing home
22 construction, repair, remodeling, and/or maintenance work.
23 7. On or about June 5, 2020, the Cadmans and Defendants entered into a Home
24 Improvement Contract for remodel and construction work at the Property, which included among
25 other things, to waterproof doors and windows.
26 8. On or about December 20, 2021, the Cadmans suffered damage to the Property
27 when rain water leaked through the windows and doors at the Property causing substantial
28 damage.
COMPLAINT
Case No. __________________________ 2
1 9. Prior to the damage described in this Complaint, Plaintiff USAA issued its policy
2 of insurance whereby it agreed to indemnify the Cadmans against loss of or damage to their
3 property.
4 10. Because of the damage to the Property, Plaintiff USAA’s insureds made a claim
5 under their insurance policy with USAA for repairs, loss, and damage, water remediation services,
6 and other losses. Plaintiff USAA has paid to or on behalf of its insureds at least sixty-four
7 thousand, one hundred ninety-seven dollars, and five cents ($64,197.05). USAA’s payments were
8 required by the terms of the insurance policy and USAA did not make such payments as a
9 volunteer. Neither USAA nor its insureds were responsible for causing the damage. USAA has a
10 right of subrogation against Defendants for its payments.
11 FIRST CAUSE OF ACTION
12 Negligence Against All Defendant
13 11. Plaintiff incorporates here with like force and effect as though set forth fully here
14 each and every allegation of paragraphs 1 through 10 above.
15 12. Defendants had a duty to exercise reasonable care and to perform their work in a
16 professional and skilled manner and to undertake work that was not defected and that was in
17 compliance with all applicable building codes and regulations and compliant with manufacturer
18 guidelines and regulations.
19 13. Defendants breached their duty by performing work that was defective, was not
20 performed in a professional and skilled manner, and failed to comply with applicable codes,
21 regulations, and manufacturer guidelines and recommendations. Defendants improperly installed
22 doors and windows, incorrectly installed unpermitted roofing, improperly repaired stucco and
23 plaster that caused cracking and damage, and performed other improper and defective work.
24 Defendants’ improper defective work was the proximate cause of water intrusion which caused
25 damage to the Property.
26 14. As a direct result of Defendants’ negligence, Plaintiff was damaged in the amount
27 of at least $64,197.05.
28 / / /
COMPLAINT
Case No. __________________________ 3
1 SECOND CAUSE OF ACTION
2 Breach of Contract Against All Defendants
3 15. Plaintiff incorporates here with like force and effect as though set forth fully here
4 each and every allegation of paragraphs 1 through 14 above.
5 16. Plaintiffs’ insureds entered into a Contract with Defendants, a copy of which is
6 attached as Exhibit “A”.
7 17. Defendants breached the Contract by failing to perform construction and remodel
8 work at the Property in a skilled and professional manner and, as stated in the contract at
9 paragraph 16(b) in a “workman-like manner and in compliance with all building codes and
10 applicable laws.”
11 18. Defendants performed work at the Property that was improper, defective, and
12 faulty.
13 19. As a direct and proximate result of Defendants breach of the Contract, Plaintiff was
14 damaged in the amount of at least $64,197.05.
15 THIRD CAUSE OF ACTION
16 Negligence Per Se Against All Defendants
17 20. Plaintiff incorporates here with like force and effect as though set forth fully here
18 each and every allegation of paragraphs 1 through 19 above.
19 21. Defendants’ work at the Property violated the Business and Profession Code, the
20 Building Code, the Los Angeles County Building Codes, and the Los Angeles Department of
21 Building and Safety Regulations by failing to obtain permits as required.
22 22. As a direct and proximate result of Defendants’ breach of applicable codes and
23 regulations, Plaintiff was damaged in the amount of at least $64,197.05.
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
COMPLAINT
Case No. __________________________ 4
1 PRAYER FOR RELIEF
2 WHEREFORE, Plaintiff prays for judgment against the Defendants, as follows:
3 1. For Plaintiff’s damages in the amount of at least $64,197.05, according to proof;
4 2. For prejudgment interest pursuant to California Civil Code § 3287 or § 3288;
5 3. Attorneys’ fees to the extent allowed under California law;
6 4. For Plaintiff’s costs of suit herein; and
7 6. For such other and further relief as to the Court may deem just and proper.
8 Respectfully submitted,
9 Dated: July 3, 2024 MURPHY SANCHEZ PLLC
10
________________________________________
11 Jennifer Tomlin Sanchez
Attorneys for Plaintiff,
12 USAA CASUALTY INSURANCE COMPANY
a/s/o ALLESANDRA CADMAN and KYLE
13 CADMAN
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT
Case No. __________________________ 5
Related Content
in Los Angeles County
Case
S. G., VS COUNTY OF LOS ANGELES
Jul 23, 2024 |
Claims Involving Mass Tort (General Jurisdiction) |
Claims Involving Mass Tort (General Jurisdiction) |
24STCV18236
Ruling
JOSE LUIS GONZALEZ CASTILLO, ET AL. VS FRANCISCO CADENA, ET AL.
Jul 30, 2024 |
21STCV18162
Case Number:
21STCV18162
Hearing Date:
July 30, 2024
Dept:
56
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
JOSE LUIS GONZALEZ CASTILLO,
et al.
,
Plaintiffs,
vs.
FRANCISCO CADENA,
et al.
,
Defendants.
CASE NO.: 21SCTV18162
[TENTATIVE] ORDER RE:
PLAINTIFFS MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT
Date: July 30, 2024
Time: 8:30 a.m.
Dept. 56
Jury Trial: January 27, 2025
AND RELATED CROSS-ACTIONS
MOVING PARTY: Plaintiffs
RESPONDING PARTY: Defendants Hyundai Motor Company and Hyundai Motor America (collectively, Hyundai or Defendants)
The Court has considered the moving, opposition and reply papers.
BACKGROUND
This action was filed on May 13, 2021 and arises out of an automobile accident in which a Hyundai automobile (the Vehicle) driven by Defendant Francisco Cadena, struck Plaintiff Jose Castillo and decedent Maria Perez.
The currently operative second amended complaint (the SAC) alleges claims against Defendants for: (1) negligence; (2) product liability; and (3) wrongful death and survival action, arising, among other things, from alleged defects in the Vehicle.
On June 20, 2024, Plaintiffs filed the instant motion (the Motion) for leave to file Third Amended Complaint (the TAC). On July 10, 2024, Hyundai filed its opposition papers to the Motion and on July 15, 2024, Plaintiffs filed their reply.
DISCUSSION
Legal Standard
California
Code of Civil Procedure
(CCP) section 473 permits the trial court in its discretion to allow amendments to pleadings in the furtherance of justice.
(
See
CCP § 473, subd. (a).)
CCP section 576 provides that any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.
(CCP § 576.)
There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.
(
Berman v. Bromberg
(1997) 56 Cal.App.4th 936, 945.)
An application to amend a pleading is addressed to the trial judges sound discretion.
(
Id
.)
If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.
(
Morgan v. Superior Court of Cal. In and For Los Angeles County
(1959) 172 Cal.App.2d 527, 530.)
Where no prejudice is shown to the adverse party, the liberal rule of allowance prevails.
(
Higgins v. Del Faro
(1981) 123 Cal.App.3d 558, 564.)
Under California Rules of Court (CRC) rule 3.1324, a motion for leave to amend a pleading must be accompanied by a declaration that sets forth: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made sooner.
(CRC, r. 3.1324(b).)
Plaintiffs have met these requirements.
In support of the Motion, Plaintiffs counsel declares that Plaintiffs obtained the facts underlying the proposed additional allegations of defects from discovery responses and test results received by Plaintiffs since his retention as co-counsel to Plaintiffs on February 13, 2024.
(Declaration of John F. Medlar, Jr. (Medlar Decl.).
In opposition to the Motion, Hyundai takes the position that Plaintiffs purportedly recently-obtained evidence in support of the amendment was or should have been known to Plaintiffs at least ten months before the Motion was filed and that therefore the Motion was not timely filed.
Hyundais primary argument, however, is that the Motion is only being filed as a delaying tactic to avoid Defendants Motion for Summary Judgment (the MSJ), which is set for hearing on August 21, 2024.
If the Motion is granted, the MSJ, which is directed to the SAC, will become moot and will be taken off-calendar.
The MSJ was filed on February 7, 2024 and set for hearing on April 24, 2024.
On March 25, 2024, Plaintiffs filed an Ex Parte Application to continue the hearing on the MSJ (the Ex Parte), on the ground that they needed to obtain further discovery upon which to oppose the MSJ.
Although Hyundai opposed the continuance, the Court granted the Ex Parte as it is required to do under CCP section 437c(h). which provides:
If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order that may be just.
The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.
The Court granted the Ex Parte and continued the MSJ hearing to the current date of August 21, 2024.
The Court notes that Plaintiffs did file opposition papers to the MSJ on June 20, 2024 the same date that the Motion was filed.
Plaintiffs assert that they have discovered new facts relating to a condition known as brake pedal drift, which they have determined to be the cause of the accident underlying this lawsuit, and that the pleadings need to be amended to allege these new facts.
Hyundai contends that Plaintiffs either knew or should have known of these additional claimed facts at least ten months before the Motion was filed, and that therefore the Motion should be denied as untimely.
The Court disagrees.
The Court finds that Plaintiffs have provided sufficient credible evidence that amendment of the SAC and filing of the proposed TAC are warranted under the law.
The Court therefore GRANTS the Motion and orders Plaintiffs to file the TAC within five (5) court days of the date of this order.
If the TAC is filed, it will be the operative pleading in the case and the current MSJ will be MOOT.
Moving party is ordered to give notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.
If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 30th day of April 2024
Hon. Holly J. Fujie
Judge of the Superior Court
Ruling
REBECCA CASTILLO VS BIG ALS LLC, A CALIFORNIA LIMITED LIABILITY COMPANY
Jul 25, 2024 |
23PSCV03859
Case Number:
23PSCV03859
Hearing Date:
July 25, 2024
Dept:
6
Plaintiff Rebecca Castillos Request for Entry of Default Judgment
Defendant: Big Als LLC
TENTATIVE RULING
Plaintiffs request for entry of default judgment is DENIED without prejudice.
BACKGROUND
This is an ADA/Unruh case. On December 13, 2023, plaintiff Rebecca Castillo (Plaintiff) filed this action against defendant Big Als LLC (Defendant) and Does 1 to 10, alleging one cause of action for violations of the Unruh Civil Rights Act. On February 6, 2024, default was entered against Defendant. On June 26, 2024, Plaintiff filed a request for entry of default judgment.
LEGAL STANDARD
Code of Civil Procedure section 585 permits entry of a default judgment after a party has failed to timely respond or appear. (Code Civ. Proc., § 585.) A party seeking judgment on the default by the court must file a Request for Court Judgment, and: (1) a brief summary of the case; (2) declarations or other admissible evidence in support of the judgment requested; (3) interest computations as necessary; (4) a memorandum of costs and disbursements; (5) declaration of nonmilitary status; (6) a proposed form of judgment; (7) a dismissal of all parties against whom judgment is not sought or an application for separate judgment under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) exhibits as necessary; and (9) a request for attorneys fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800.)
ANALYSIS
Plaintiff seeks default judgment against Defendants in the total amount of $9,074.00, including $8,000.00 in damages, $570.00 in attorney fees, and $504.00 in costs. The Court finds Plaintiffs damage request is excessive.
Plaintiff cites the case of
Johnson v. Guedoir
(E.D. Cal. 2016) 218 F.Supp.3d 1096 (
Johnson
)
as the basis for requesting $4,000.00 in deterrence damages plus $4,000.00 for encountering the barriers, for a total demand of $8,000.00. (Compl., Prayer for Relief, ¶¶ 5-6; Summary of the Case, 2:1-8.)
Johnson
does not support this outcome. The court in
Johnson
found $8,000.00 in statutory damages was warranted based on two incidents wherein the plaintiff was deterred on one date and then personally encountered the barriers on a different date. (
Johnson, supra,
218 F.Supp.3d at p. 1100.)
Here, Plaintiff states that she attempted to access Defendants goods and services on November 8, 2023. (Castillo Decl., ¶ 5, Ex. 1.) Plaintiff then confusingly states that she was deterred from visiting Defendants brick-and-mortar location in Ontario on November 2, 2023 and November 8, 2023. (Castillo Decl., ¶ 14.) It is unclear how Plaintiff was deterred on November 2, 2023 before she visited the website on November 8, 2023. (See Castillo Decl., ¶¶ 5, 14, Ex. 1.) Additionally, Plaintiffs browsing history only shows her having attempted to visit Defendants website on November 8, 2023. (Castillo Decl., Ex. 1.) At most, the Court finds evidence of one violation on November 8, 2023, which adds up to $4,000.00, not $8,000.00.
The Court also finds that, based on the reduced damage calculation, Plaintiffs request for attorney fees must also be reduced. (Local Rule 3.214.) The Court finds the correct amount of attorney fees that Plaintiff can recover here is $330.00.
Additionally, Plaintiff did not complete items 4, 5, or 6 of Judicial Council Form CIV-100. (Code Civ. Proc., §§ 585.5, 587; Bus. & Prof. Code, § 6400 et seq.)
CONCLUSION
Based on the foregoing, Plaintiffs request for entry of default judgment is DENIED without prejudice.
Ruling
LODIE POLLARD ET AL VS HAIG M BAZOIAN ET AL
Jul 26, 2024 |
BC718464
Case Number:
BC718464
Hearing Date:
July 26, 2024
Dept:
A LOS ANGELES SUPERIOR COURT
NORTH CENTRAL DISTRICT - BURBANK
DEPARTMENT A
CONTINUANCE
JULY 26, 2024
MOTION FOR SUMMARY JUDGMENT
Los Angeles Superior Court Case # BC718464
MP:
The City of Los Angeles (Defendant)
RP:
Lodie Pollard, Luna Skyy Pollard, Jayden Devaughn Carter, and Pink Selkin (Plaintiffs)
NOTICE:
The Court is not requesting oral argument on this matter. The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested. Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the partys intention to appear and argue. The tentative ruling will become the ruling of the court if no argument is received.
Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.
ANALYSIS:
On July 19, 2024 the Los Angeles Superior Court suffered a cyber security attack which resulted in the significant impairment of most Court systems. Due to this complication, additional time is required for the Court to review these motions and issue a tentative ruling. The Court, on its own motion, thus continues the motions for summary judgment brought by the City of Los Angeles to August 14, 2024 at 9:00 a.m.
---
RULING
:
In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the courts records.
ORDER
The City of Los Angeless Motions for Summary Judgment
came on regularly for hearing on Jukly 26, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:
THE MOTIONS FOR SUMMARY JUDGMENT ARE CONTINUED TO AUGUST 14, 2024 AT 9:00 AM.
ALL OTHER DATES REMAIN.
DEFENDANT CITY OF LOS ANGELES TO GIVE NOTICE.
IT IS SO ORDERED.
DATE: July 26, 2024 _______________________________
F.M. TAVELMAN, Judge
Superior Court of California
County of Los Angeles
Ruling
DEBORAH CARSON, ET AL. VS RED LINE COURIER SERVICE, A BUSINESS ENTITY FORM UNKNOWN, ET AL.
Jul 26, 2024 |
21STCV27576
Case Number:
21STCV27576
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
:
21STCV27576
MOTIONS
:
Petition for Minors Compromise
MOVING PARTY:
Petitioner Deborah Carson
OPPOSING PARTY:
Unopposed
The Court has reviewed the petition filed on July 3, 2024 by Petitioner Deborah Carson (Petitioner) on behalf of Claimant Chase Carson, age 11.
The Court denies the petition without prejudice for the following reason:
The Court previously instructed Petitioner to complete item 10c describing the terms of the settlement. (See Min. Order, 7/1/24.) In this revised petition, item 10c is not complete.
Petitioner has cured all other defects identified in the previous petition.
Accordingly, the Court denies the petition without prejudice.
Petitioner shall give notice and file a proof of service of such.
Ruling
ENGELVER ALEJANDRO RODRIGUEZ CATALAN VS STEVEN MAURICE KANE, ET AL.
Jul 25, 2024 |
23TRCV03725
Case Number:
23TRCV03725
Hearing Date:
July 25, 2024
Dept:
8
Tentative Ruling
HEARING DATE: July 25, 2024
CASE NUMBER: 23TRCV03725
CASE NAME: Engelver Alejandro Rodriguez Catalan v. Steven Maurice Kane, et al.
MOVING PARTY: Plaintiff, Engelver Alejandro Rodriguez Catalan
RESPONDING PARTY: Defendant, Steven Maurice Kane
TRIAL DATE: Not Set.
MOTION: (1) Plaintiffs Motion to Compel Further Responses to Form Interrogatories (2) Plaintiffs Motion to Compel Further Responses to Special Interrogatories (3) Plaintiffs Motion to Compel Further Responses to Request for Production of Documents (4) Plaintiffs Motion to Compel Further Responses to Requests for Admission (5) Request for Sanctions Tentative Rulings: (1) GRANTED if not already mooted (2) MOOTED (3) GRANTED in part and DENIED in part (4) GRANTED if not mooted (5) $2,000 to be awarded to Plaintiff. I. BACKGROUND
A. Factual
On November 9, 2023, Plaintiff, Engelver Alejandro Rodriguez Catalan (Plaintiff) filed a complaint against Defendants, Steven Maurice Kane, Richard I Kane, Darlene Ryan, and DOES 1 through 100. The complaint alleges causes of action for: (1) Motor Vehicle Negligence; and (2) General Negligence. The parties meet and confer process and background of requests, responses, and such were outlined in the Courts June tentative ruling. B. Procedural
On April 17, 2024, Plaintiffs filed these motions to compel further. On May 30, 2024, Defendant Kane filed an opposition briefs. On June 5, 2024, Plaintiff filed a reply briefs. On June 11, 2024, these motions along with the IDC were continued to June 26, 2024. On June 26, 2024, this Court conducted an IDC in light of the Courts posted tentative rulings, and CONTINUED the hearing on the motions to July 25, 2024 if any lingering issues remained after the IDC. II. ANALYSIS
A. Motion to Compel Further The Court provided a discussion of the legal standards to be applied for discovery and sanctions motions in its June 2024 tentative ruling. Plaintiffs Motion to Compel Further Responses to Form Interrogatories Form Interrogatory No. 16.9: Form Interrogatory No. 16.9 asks whether Defendant Kane or anyone acting on Defendant Kanes behalf have any document concerning claims for personal injuries made before or after the incident by a plaintiff in this case, and asks the responder, that if s, for each plaintiff, states: (a) the source of each document; (b) the date each claim arose; (c) the nature of each claim; and (d) the name, address, and telephone number of the person who has each document. Plaintiff seeks further responses to Form Interrogatory No. 16.9 on the grounds that Plaintiff argues he is entitled to know what Defendants contentions are and where he stands on each issue related the case. The Court discussed its agreement with the principal thrust of the motion as to prior claims evidence at the IDC. At oral argument, the parties should be prepared to discuss whether the Courts tentative ruling was followed by a further verified response and whether that further response moots this motion. Plaintiffs Motion to Compel Further Responses to Special Interrogatories Special Interrogatory No. 55: Special Interrogatory No. 55 asks Defendant Kane to identify any automobile collisions he had been involved in during the three (3) years prior to the incident. Although Defendant Kane originally responded with numerous objections, it appears that he is submitting to further responses as no opposition brief was filed, and in his response to Request for an IDC, he noted that he will serve further responses to this interrogatory. At oral argument, the parties should be prepared to discuss whether Defendant has served the offered further verified response and whether that further response moots this motion. Plaintiffs Motion to Compel Further Responses to Request for Production of Documents RFP No. 4: RFP No. 4 asks for Defendant Kane to produce all documents related to all cellular and telephone records, including billing statements of his, on the day of the incident. Defendant Kane objected to this request indicating that such would violate his privacy rights. The Court discussed the request and objection at the IDC. At oral argument, the parties should be prepared to discuss whether the Courts tentative ruling was followed by a further verified response and whether that further response moots this motion. RFP No. 12: RFP No. 12 asks Defendant Kane to produce all documents involving ISO claim searches conducted with regard to Plaintiff. Plaintiff seeks further discovery responses because he argues that if Defendant Kane conducted an ISO search on Plaintiff, he must produce said documents as they are not work product by the attorney. The Court disagrees. At the IDC the Court discussed this RFP as well. At oral argument, the parties should be prepared to discuss whether the Courts tentative ruling was followed by a further verified response and whether that further response moots this motion. RFP No. 13, 17, and 18: RFP No. 13 asks Defendant Kane to produce all documents relating to his sub rosa surveillance on Plaintiff including photos, videos and reports. RFP No. 17 asks Defendant Kane to produce any and all film and/or video footage in his possession, custody, or control (or in the possession, custody, or control of his agents) of Plaintiff at any time. Lastly, RFP NO. 18 asks Defendant Kane to produce any and all audio recordings in his possession, custody, or control (or in the possession, custody, or control of his agents) of Plaintiff at any time. Defendant Kane objected to this information on the grounds that the request was in violation of Evidence Code section 785 and that it sought information protected by the attorney work product doctrine and attorney client privilege. The Court discussed this issue at the IDC and defense counsel was to inquire as to whether any surveillance videos would be approved by defendants principal to be disclosed in the spirit of attempting to resolve the case. At oral argument, the parties should be prepared to discuss whether the principal agreed and whether further argument on this issue is required. RFP No. 16: RFP No. 16 seeks documents from Defendant Kane pertaining to claims made by any other person against him, pertaining to any motor vehicle accidents, prior to the incident. Plaintiff argues that Defendant Kanes prior driving history and claims made against him prior to the incident are relevant to the underlying incident and reasonably calculated to lead to discoverable evidence. At the IDC the COurt discussed the potential for narrowing the time perido for this RFP and the potential relevancy of the same. At oral argument, the parties should be prepared to discuss whether Defendant provided a further verified response and whether that further response moots this motion. Plaintiffs Motion to Compel Further Responses to Requests for Admission RFA No. 6: RFA No. 6 asks Defendant Kane to admit he has conducted an ISO search on Plaintiff. Defendant Kane objected to this arguing it is vague, ambiguous, and violates the applicable code of procedure section 2034.010, et seq. pertaining to the timing of expert witness discovery. The Court disagreed as discussed at the IDC, so at oral argument, the parties should be prepared to discuss whether the Courts tentative ruling was followed by a further verified response and whether that further response moots this motion. RFA No. 7 and 8: RFA No. 7 asks Defendant Kane to admit he has sub rosa photos, videos, and reports on Plaintiff. RFA No. 8 asks Defendant Kne to admit he has conducted sub rose surveillance of Plaintiff. Defendant Kane objected to this arguing it is vague, ambiguous, and violates the applicable code of procedure section 2034.010, et seq. pertaining to the timing of expert witness discovery. Defendant Kane also objected noting that the request is in violation of Evidence Code section 785. The Court disagreed as discussed at the IDC, so at oral argument, the parties should be prepared to discuss whether the Courts tentative ruling was followed by a further verified response and whether that further response moots this motion. B. Sanctions Additionally, Plaintiff has requested monetary sanctions in connection with each of its four motions to compel further responses. For the Motion to Compel Further Responses to Form Interrogatories and Motion to Compel Further Responses to Special Interrogatories, Plaintiff has requested monetary sanctions as imposed on Defendant Kane and/or his counsel of record in the amount of $1,260 as to each motion ($2,520 total for the two.) At the IDC, the Court discussed the reasonableness of the claimed hours as well as the claimed justifications for several of the objections. At oral argument, the parties should be prepared to discuss the Courts tentative ruling that the Court might award $1,000 per motion ($2,000 total for the two motions), to be paid to Plaintiffs counsel on or before August 7, 2024. Plaintiff is ordered to provide notice.
Ruling
MUGIHIKO MORIJIRI, AN INDIVIDUAL, ET AL. VS 24 CMN LLC, A BUSINESS ENTITY, EXACT FORM UNKNOWN, ET AL.
Jul 29, 2024 |
23STCV20959
Case Number:
23STCV20959
Hearing Date:
July 29, 2024
Dept:
53
Superior Court of California
County of Los Angeles Central District
Department 53
mugihiko morijiri
, et al.;
Plaintiffs
,
vs.
24 cmn llc
, et al.;
Defendants
.
Case No.:
23STCV20959
Hearing Date:
July 29, 2024
Time:
10:00 a.m.
[tentative] Order
RE:
defendants motion to strike portions of complaint
MOVING PARTIES:
Defendants 24 CMN, LLC and CYN, LLC
RESPONDING PARTIES:
Plaintiffs
Mugihiko Morijiri, Keiko Morijiri, and Zion Morijiri and Ewan Morijiri, by and through their guardian ad litem, Keiko Morijiri
Motion to Strike Portions of Complaint
The court considered the moving, opposition, and reply papers filed in connection with this motion.
DISCUSSION
Defendants 24 CMN, LLC and CYN, LLC (Defendants) move the court for an order striking the prayer for punitive damages (Compl., Prayer, p. 23:20) and related allegations (Compl., ¶¶ 117, 161, 172
[1]
) in the Complaint filed by plaintiffs Mugihiko Morijiri, Keiko Morijiri, and Zion Morijiri and Ewan Morijiri, by and through their guardian ad litem, Keiko Morijiri (Plaintiffs).
The court grants Defendants motion to strike the prayer for punitive damages and related allegations because Plaintiffs have not alleged facts establishing (1) Defendants are guilty of oppression, fraud, or malice, and (2) advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice on the part of an officer, director, or managing agent of Defendants.
(Code Civ. Proc., § 436; Civ. Code, § 3294, subds. (a), (b).)
The court finds that the allegations that Ariana Javaheri, the property supervisor and managing agent of Defendants, informed Plaintiffs that the dark staining on their wall was not mold but mildew and advised Plaintiffs that they would have to pay for the mold test if the results were negative (Compl., ¶¶ 21-23) do not show that Defendants (1) engaged in conduct intended to cause injury to Plaintiffs or despicable conduct carried on with a willful and conscious disregard of the rights or safety of Plaintiffs, or (2) engaged in despicable conduct subjecting Plaintiffs to cruel and unjust hardship in conscious disregard of their rights.
(Civ. Code, § 3294, subds. (c)(1) [defining malice], (c)(2) [defining oppression].)
Moreover, while the court acknowledges that Plaintiffs have also alleged that plaintiff Ewan Morijiri was diagnosed with leukemia, is immunocompromised, and was advised not to reside in a premises with mold because it would be injurious and possibly fatal (Compl., ¶ 23), Plaintiffs did not allege facts establishing that Defendants knew of this risk, such that Ariana Javaheris conduct may be considered malicious or oppressive.
ORDER
The court grants defendants CMN, LLC and CYN, LLCs motion to strike the prayer for punitive damages and paragraphs 117, 161, and 172 of plaintiffs Mugihiko Morijiri, Keiko Morijiri, and Zion Morijiri and Ewan Morijiri, by and through their guardian ad litem, Keiko Morijiris Complaint in this action.
The court grants plaintiffs Mugihiko Morijiri, Keiko Morijiri, and Zion Morijiri and Ewan Morijiri, by and through their guardian ad litem, Keiko Morijiri 20 days leave to file a First Amended Complaint that cures the defects set forth in this ruling.
The court orders defendants CMN, LLC and CYN, LLC to give notice of this ruling.
IT IS SO ORDERED.
DATED:
July 29, 2024
_____________________________
Robert B. Broadbelt III
Judge of the Superior Court
[1]
The court notes that the notice of motion erroneously states this allegation is in paragraph 171.
(Notice of Mot., p. 2, ¶ 3.)
Ruling
DANA URICK, ET AL. VS ELKINS KALT WEINTRAUB REUBEN GARTSIDE, LLP, A CALIFORNIA LIMITED LIABILITY PARTNERSHIP, ET AL.
Jul 31, 2024 |
20STCV17462
Case Number:
20STCV17462
Hearing Date:
July 31, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
July 31, 2024
Case Name:
Urick, et al. v. Elkins Kalt Weintraub Reuben Gartside LLP, et al.
Case No.:
20STCV17462
Matter:
Motion to Compel Deposition
Moving Party:
Defendant Elkins Kalt Weintraub Reuben Gartside LLP
Responding Party:
Unopposed
Notice:
OK
Ruling:
The Motion is granted.
Moving party to give notice.
If counsel do not submit on the tentative, they are strongly
encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Defendant Elkins Kalt Weintraub Reuben Gartside LLP seeks to compel the deposition of Plaintiff Trentyn M. Urick-Stasa.
Because there is no opposition, the Motion to Compel is granted. The deposition is to take place within 30 days. The Court awards reduced sanctions in the amount of $1,000.
Moving parties to give notice.
If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
MARCUS SIREGAR VS MICHAEL ARDERN, ET AL.
Case Number:
21STCV04494
Hearing Date:
July 29, 2024
Dept:
29
Motion to Compel the Deposition of Plaintiff filed by Defendant Avis Rent A Car System, LLC on behalf of Michael Arden.
Tentative
The motion is denied without prejudice.
Background
On February 4, 2021, Marcus Siregar (Plaintiff) filed a complaint against Michael Ardern and Avis Rent A Car System, LLC for negligence cause of action arising out of an automobile accident occurring on February 16, 2019.
On August 22, 2023, Avis Rent A Car System, LLC on behalf of Michael Arden (Defendant) filed an answer.
On June 18, 2024, Defendant filed this motion to compel the deposition of Plaintiff.
Defendant also seeks sanctions.
No opposition has been filed.
Legal Standard
Any party may obtain discovery & by taking in California the oral deposition of any person, including any party to the action.
(Code Civ. Proc., § 2025.010.)
Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served.
The service of a deposition notice & is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.
(
Id.
, § 2025.280, subd. (a).)
Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.
Section 2025.450, subdivision (a), provides:
If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party,
or a person designated by an organization that is a party under Section 2025.230,
without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order
compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.
Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.
(
Id.
, subd. (b).)
When a motion to compel is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (
Id.
, § 2025.450, subd. (g)(1).)
Discussion
Defendant served Plaintiff with a notice of deposition scheduled for May 8, 2024. (Rubin Decl., ¶ 6 & Exh. B.) The parties exchanged some correspondence prior to the deposition date, but the bottom line is that Plaintiff did not serve any objection and did not appear.
(Id., ¶¶ 7-10 & Exhs. C-F.)
Defendant now moves for an order compelling Plaintiff to attend a deposition.
Defendant is certainly entitled to take Plaintiffs deposition under the Civil Discovery act, but to obtain a court order compelling the deposition, Defendant must comply with all statutory requirements.
Here, Defendant has not done so.
Specifically, Defendant presents no evidence that, following the nonappearance, it reached out to Plaintiff
to inquire about the nonappearance.
(Code Civ. Proc., § 2025.450, subd. (b).)
Accordingly, the motion is denied without prejudice.
Conclusion
The Court DENIES Defendants motion to compel the deposition of Plaintiff Marcus Siregar without prejudice.
Moving party to give notice.
Document
ANDY GARCIA VS NORMA ALICIA ESCOBEDO
Feb 21, 2020 |
Audra M. Mori
|
Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |
Motor Vehicle - Personal Injury/Property Damage/Wrongful Death (General Jurisdiction) |
20STCV07167
Document
VALARIE ZAYAS VS CITY OF LOS ANGELES, ET AL.
Feb 03, 2023 |
Kerry R. Bensinger
|
Premise Liability (e.g., dangerous conditions of property, slip/trip and fall, dog attack, etc.) (General Jurisdiction) |
Premise Liability (e.g., dangerous conditions of property, slip/trip and fall, dog attack, etc.) (General Jurisdiction) |
23STCV02454
Preview
1 JENNIFER T. SANCHEZ (191548) MURPHY SANCHEZ PLLC 2 4040 Civic Center Drive, Suite 200 San Rafael, California 94903 3 Telephone: (628) 386-1805 4 Facsimile: (215) 799-9349 Email: jsanchez@murphysanchez.com 5 Attorneys for Plaintiff, 6 USAA CASUALTY INSURANCE COMPANY a/s/o ALLESANDRA CADMAN and KYLE CADMAN 7 8 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF LOS ANGELES 10 11 (UNLIMITED JURISDICTION) 12 USAA CASUALTY INSURANCE Case No. ________________ COMPANY a/s/o ALLESANDRA CADMAN 13 and KYLE CADMAN, COMPLAINT 14 Plaintiff, 15 [$64,197.05] v. 16 ALLOY CONSTRUCTION & 17 RESTORATION, an unknown business entity; JUSTIN RODRIGUEZ, an individual; and 18 DOES 1 – 20, Inclusive, Complaint filed: Trial Date: 19 Defendants. 20 21 Plaintiff USAA CASUALTY INSURANCE COMPANY a/s/o ALLESANDRA 22 CADMAN and KYLE CADMAN (“USAA”) hereby complains and alleges against Defendants 23 ALLOY CONSTRUCTION & RESTORATION, JUSTIN RODRIGUEZ, and DOES 1 through 24 20 as follows: 25 PARTIES 26 1. Plaintiff USAA is now and at materials times was authorized to do business in 27 California, and at all material times was the insurer of Kyle and Allesandra Cadman (collectively 28 “Cadmans”). COMPLAINT Case No. __________________________ 1 2. At all relevant times, the Cadmans owned the residential property located at 1253 2 and 1255 S Rimpau Blvd., Los Angeles, CA 90019 (“Property”). 3 3. Plaintiff is informed, believes, and alleges that defendant ALLOY 4 CONSTRUCTION & RESTORATION (“ACR”) is an unknown business entity and is doing 5 business as a general contractor in Los Angeles County. ACR acted as the general contractor at the 6 Property with Contractor License Number 1054043. 7 4. Plaintiff is informed, believes and alleges that defendant JUSTIN RODRIGUEZ at 8 all relevant times was the owner and sole operator of ACR and who is an individual residing 9 and/or doing business in Los Angeles County. 10 5. The true names of Does 1 through 20 are unknown to Plaintiff. Plaintiff is informed 11 and believe that each of the Defendants are in some way responsible for the events alleged in this 12 Complaint and for causing or contributing to damage to Plaintiff. Plaintiff will amend this 13 Complaint and insert the correct names and capacities of these Defendants when they are 14 discovered. 15 5. At all relevant times, Defendants, and each of them were the employees, agents, 16 ostensible agents and/or contractors of each of the remaining Defendants, and were at all relevant 17 times acting within the purpose and scope of that employment, agency and/or contract. Each 18 Defendant had also given prior approval and subsequent ratification for the conduct, acts, and/or 19 omissions of each of the other Defendants referred to herein. 20 GENERAL ALLEGATIONS 21 6. At all relevant times Defendants were in the business of providing home 22 construction, repair, remodeling, and/or maintenance work. 23 7. On or about June 5, 2020, the Cadmans and Defendants entered into a Home 24 Improvement Contract for remodel and construction work at the Property, which included among 25 other things, to waterproof doors and windows. 26 8. On or about December 20, 2021, the Cadmans suffered damage to the Property 27 when rain water leaked through the windows and doors at the Property causing substantial 28 damage. COMPLAINT Case No. __________________________ 2 1 9. Prior to the damage described in this Complaint, Plaintiff USAA issued its policy 2 of insurance whereby it agreed to indemnify the Cadmans against loss of or damage to their 3 property. 4 10. Because of the damage to the Property, Plaintiff USAA’s insureds made a claim 5 under their insurance policy with USAA for repairs, loss, and damage, water remediation services, 6 and other losses. Plaintiff USAA has paid to or on behalf of its insureds at least sixty-four 7 thousand, one hundred ninety-seven dollars, and five cents ($64,197.05). USAA’s payments were 8 required by the terms of the insurance policy and USAA did not make such payments as a 9 volunteer. Neither USAA nor its insureds were responsible for causing the damage. USAA has a 10 right of subrogation against Defendants for its payments. 11 FIRST CAUSE OF ACTION 12 Negligence Against All Defendant 13 11. Plaintiff incorporates here with like force and effect as though set forth fully here 14 each and every allegation of paragraphs 1 through 10 above. 15 12. Defendants had a duty to exercise reasonable care and to perform their work in a 16 professional and skilled manner and to undertake work that was not defected and that was in 17 compliance with all applicable building codes and regulations and compliant with manufacturer 18 guidelines and regulations. 19 13. Defendants breached their duty by performing work that was defective, was not 20 performed in a professional and skilled manner, and failed to comply with applicable codes, 21 regulations, and manufacturer guidelines and recommendations. Defendants improperly installed 22 doors and windows, incorrectly installed unpermitted roofing, improperly repaired stucco and 23 plaster that caused cracking and damage, and performed other improper and defective work. 24 Defendants’ improper defective work was the proximate cause of water intrusion which caused 25 damage to the Property. 26 14. As a direct result of Defendants’ negligence, Plaintiff was damaged in the amount 27 of at least $64,197.05. 28 / / / COMPLAINT Case No. __________________________ 3 1 SECOND CAUSE OF ACTION 2 Breach of Contract Against All Defendants 3 15. Plaintiff incorporates here with like force and effect as though set forth fully here 4 each and every allegation of paragraphs 1 through 14 above. 5 16. Plaintiffs’ insureds entered into a Contract with Defendants, a copy of which is 6 attached as Exhibit “A”. 7 17. Defendants breached the Contract by failing to perform construction and remodel 8 work at the Property in a skilled and professional manner and, as stated in the contract at 9 paragraph 16(b) in a “workman-like manner and in compliance with all building codes and 10 applicable laws.” 11 18. Defendants performed work at the Property that was improper, defective, and 12 faulty. 13 19. As a direct and proximate result of Defendants breach of the Contract, Plaintiff was 14 damaged in the amount of at least $64,197.05. 15 THIRD CAUSE OF ACTION 16 Negligence Per Se Against All Defendants 17 20. Plaintiff incorporates here with like force and effect as though set forth fully here 18 each and every allegation of paragraphs 1 through 19 above. 19 21. Defendants’ work at the Property violated the Business and Profession Code, the 20 Building Code, the Los Angeles County Building Codes, and the Los Angeles Department of 21 Building and Safety Regulations by failing to obtain permits as required. 22 22. As a direct and proximate result of Defendants’ breach of applicable codes and 23 regulations, Plaintiff was damaged in the amount of at least $64,197.05. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / COMPLAINT Case No. __________________________ 4 1 PRAYER FOR RELIEF 2 WHEREFORE, Plaintiff prays for judgment against the Defendants, as follows: 3 1. For Plaintiff’s damages in the amount of at least $64,197.05, according to proof; 4 2. For prejudgment interest pursuant to California Civil Code § 3287 or § 3288; 5 3. Attorneys’ fees to the extent allowed under California law; 6 4. For Plaintiff’s costs of suit herein; and 7 6. For such other and further relief as to the Court may deem just and proper. 8 Respectfully submitted, 9 Dated: July 3, 2024 MURPHY SANCHEZ PLLC 10 ________________________________________ 11 Jennifer Tomlin Sanchez Attorneys for Plaintiff, 12 USAA CASUALTY INSURANCE COMPANY a/s/o ALLESANDRA CADMAN and KYLE 13 CADMAN 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT Case No. __________________________ 5