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1 Carl A. McMahan, Esq. (CSB# 108551)
Richard D. Carroll, Esq. (CSB# 116913)
2 Sheila J. Starvish, Esq. (CSB# 193106)
McMAHAN & CARROLL PC
3
11755 Wilshire Blvd. Suite 2370
4 Los Angeles, CA 90025
Telephone: (310) 479-8827
5 Facsimile: (310) 479-7226
Email: mail@mcmahancarroll.com
6
7 Attorney for Plaintiffs Leland Hayashi, by and
through his Successors in Interest, Brian Hayashi
8 and Kristen Hayashi, and Brian Hayashi and
Kristen Hayashi, as individuals
9
SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
10
PASADENA COURTHOUSE
11
12
Leland Hayashi, by and through his Successors in ) Case No.:
13 Interest, Brian Hayashi and Kristen Hayashi, and ) Complaint Filed:
Brian Hayashi and Kristen Hayashi, as individuals, ) Department:
14 ) Honorable Judge:
Plaintiffs, )
15
) COMPLAINT FOR DAMAGES
16 v. )
) 1. Elder and Dependent Adult Abuse, Neglect
17 Olympic Senior Care, LLC, dba MorningStar of ) and Abandonment (Welfare and Institutions
Pasadena, a limited liability corporation, Olympic ) Code § 15600 et seq.)
18 Senior Care, LLC, a limited liability corporation, )
MorningStar Senior Management, LLC, a limited ) 2. Negligence
19
liability corporation, Ken Jaeger, an individual, )
20 Matthew Turner, an individual, Steve H. Martin, an ) 3. Wrongful Death
individual, and DOES 1 to 50, )
21 Defendants, ) Trial Date: None
__________________________________________ )
22
23
COMES NOW, Plaintiffs, who allege as follows:
24
THE PARTIES
25
1. Plaintiff, Leland Hayashi (hereinafter “PLAINTIFF” or “HAYASHI”) is an individual who, at all
26
times relevant to this action, was domiciled in the County of Los Angeles, State of California. HAYASHI
27
was, at all relevant times, over the age of 65 and admitted as a resident at a 24-hour facility, and thus was
28
1
COMPLAINT FOR DAMAGES
1 an Elder Adult pursuant to Welfare and Institutions Code section 15610.27.
2 2. HAYASHI died on July 22, 2023. His children and Successors in Interest, Brian Hayashi and
3 Kristen Hayashi bring this action for Elder and Dependent Adult Abuse, Neglect, and Abandonment
4 pursuant to Welfare and Institutions Code § 15600 et seq., and for Negligence on HAYASHI’s behalf.
5 Pursuant to Code of Civil Procedure § 377.32 and Welfare and Institutions Code § 15657.3, the
6 Successors in Interest’s declaration is filed concurrently herewith. (Hereinafter, all references to
7 “PLAINTIFFS” are in collective reference to HAYASHI, Brian Hayashi and Kristen Hayashi, unless
8 otherwise specified.)
9 3. Brian Hayashi and Kristen Hayashi are the adult children of HAYASHI; they are the lawful heirs
10 of HAYASHI. Brian Hayashi and Kristen Hayashi bring this action for Wrongful Death in their
11 individual capacities pursuant to Code of Civil Procedure section 377.60.
12 4. Defendants Olympic Senior Care, LLC, dba MorningStar of Pasadena, a limited liability
13 corporation, Olympic Senior Care, LLC, a limited liability corporation, MorningStar Senior
14 Management, LLC, a limited liability corporation, Ken Jaeger, an individual, Matthew Turner, an
15 individual, and Steve H. Martin, an individual (“MORNINGSTAR” or “FACILITY” or
16 “DEFENDANTS”) were the licensees, managers, consultants, administrators, employers, owners, and
17 operators of, and actively participated in the business of providing custodial care and services to residents
18 of, and otherwise did business as, a residential care facility for elderly (“RCFE”), physically located at
19 951 S. Fair Oaks Avenue, Pasadena, CA 91105.
20 5. MORNINGSTAR and DOES 1 through 50 were licensed through the California Department of
21 Social Services (hereinafter “DSS”) and were therefore subject to the requirements of laws and
22 regulations regarding the operation of a RCFE.
23 6. MORNINGSTAR and DOES 1 through 50 authorized, ratified and/or directed the day-to-day
24 operation of the FACILITY, and the conduct of its agents and employees through the employment,
25 training, and supervision of Administrators and other employees at the FACILITY.
26 7. PLAINTIFFS are informed and believe, and therefore allege, that at all times relevant to this
27 Complaint, MORNINGSTAR and DOES 1 through 50 were individuals, entities, agents and/or alter egos
28 of each other who rendered care and services to HAYASHI and whose conduct caused the injuries and
2
COMPLAINT FOR DAMAGES
1 damages alleged herein. PLAINTIFFS are ignorant of the true names and capacities of those Defendants
2 sued herein as DOES 1 through 50, and for that reason has sued such Defendants by fictitious names.
3 PLAINTIFFS will seek leave of Court, as needed, to amend this Complaint to identify said Defendants
4 upon their discovery.
5 8. PLAINTIFFS are informed and believe, and therefore allege, that each Defendant designated as a
6 DOE was responsible in any actionable manner for the events and happenings herein referred to, which
7 proximately caused the injuries and damages to PLAINTIFFS as alleged infra.
8 JURISDICTION AND VENUE
9 9. PLAINTIFFS hereby incorporate by reference the allegations set forth supra.
10 10. This Court has personal jurisdiction over DEFENDANTS because DEFENDANTS were, at all
11 times relevant herein, doing business in the County of Los Angeles, State of California. DEFENDANTS
12 are business entities or individuals licensed through the DSS to run the FACILITY, which is physically
13 located in Pasadena, California. While engaged in such business, DEFENDANTS’ conduct caused injury
14 to HAYASHI in the County of Los Angeles, State of California.
15 11. Venue is proper in this judicial district because DEFENDANTS conducted business within this
16 district, and because DEFENDANTS’ conduct caused PLAINTIFFS’ injuries in this district, as set forth
17 more fully infra.
18 FACTUAL ALLEGATIONS
19 12. HAYASHI moved into MORNINGSTAR (formerly Fair Oaks) in December 2017. His
20 admitting diagnoses were vascular dementia and short-term memory loss. He was later diagnosed with
21 hypoglycemia, hypertension, Alzheimer’s disease, type 2 diabetes and renal disease which required
22 dialysis. In the pertinent time frame, he received dialysis three times a week at Liberty Dialysis II in
23 Pasadena from approximately 10am to 2pm. MORNINGSTAR staff would transport HAYASHI in a
24 MORNINGSTAR van to and from his dialysis treatments. HAYASHI was wheelchair bound and was
25 required to be secured in the wheelchair at all times. HAYASHI needed supervision and assistance with
26 all activities of daily living, and in fact, he paid MORNINGSTAR an additional sum for extra one-on-
27 one care including an escort service related to transportation needs.
28 13. Upon accepting HAYASHI for admission, MORNINGSTAR agreed to provide HAYASHI with
3
COMPLAINT FOR DAMAGES
1 custodial care and more. The provision of basic custodial care concerns an individual’s activities of daily
2 living (“ADL”) such as nutrition, hydration, hygiene, bodily movements, rising from, returning to, and
3 repositioning in bed and wheelchair. All of these ADLs are basic necessities needed to maintain human
4 health.
5 14. Despite defendants’ knowledge of HAYASHI’s need for supervision, particularly related to his
6 wheelchair bound status, defendants withheld the custodial care they knew he required and permitted him
7 to be abandoned alone in MORNINGSTAR’s vehicle for six hours from approximately 3 p.m. to 9 p.m.,
8 well after nightfall, on May 2, 2023. He was eventually discovered lying facedown on the floor of the
9 MORNINGSTAR vehicle. No explanation has been provided to explain how or why DEFENDANTS
10 were able to abandon HAYASHI for so many hours, especially when he paid extra for escort services
11 specifically intended to prohibit such a situation. This clearly shows ratification of DEFENDANTS’
12 abuse, neglect and abandonment of HAYASHI.
13 15. HAYASHI was transferred to Glendale Adventist Medical Center Emergency Department. He
14 was treated and released back to MORNINGSTAR on May 3, 2023. On May 4, 2023, HAYASHI was
15 found unresponsive in his room and was transported to Huntington Hospital. He was diagnosed as
16 suffering from pneumonia which was caused by aspirating while facedown on the MORNINGSTAR
17 vehicle floor on May 2, 2023. This became a two-week admission. During this admission, he became
18 unable to swallow and a feeding tube was placed.
19 16. Due to the neglect, abuse and abandonment HAYASHI suffered at MORNINGSTAR, he did not
20 return there, but was instead transferred to Mission Care Center, a critical care facility, because he
21 required a higher level of care at that point. HAYASHI’s condition continued to worsen while at a
22 Mission Care Center and he was transferred to other higher level of care facilities. On July 22, 2023, a
23 little over two months after his abandonment at MORNINGSTAR, HAYASHI died at Rose Valley
24 Garfias Boarding Care due to respiratory failure and pneumonia. Of note, HAYASHI did not suffer from
25 these fatal conditions prior to May 2, 2023.
26 17. Despite DEFENDANTS’ awareness that HAYASHI was at a high risk of suffering harm and
27 injury and that he required consistent monitoring, supervision, and assistance, the DEFENDANTS failed
28 to create and/or implement adequate care plans to ensure that HAYASHI did not suffer harm and
4
COMPLAINT FOR DAMAGES
1 injury. Moreover, due in part to MORNINGSTAR’s inadequate staffing, supervision and training, and its
2 placement of too many patients that needed increased or one-on-one supervision, DEFENDANTS
3 withheld vital custodial care that HAYASHI required to prevent injury and death due to abuse, neglect,
4 abandonment, and health and safety hazards.
5 18. As a direct and proximate result of DEFENDANTS’ conduct, HAYASHI suffered unnecessary
6 and horrific pain, injury, emotional distress, and death.
7 FIRST CAUSE OF ACTION
8 ELDER ABUSE AND NEGLECT
9 (Pursuant to Welfare and Institutions Code § 15600 et. seq)
10 [By HAYASHI, by and through his Successors in Interest, Brian Hayashi and Kristen
11 Hayashi, against all DEFENDANTS]
12 19. PLAINTIFFS hereby incorporate by reference the allegations set forth supra.
13 20. At all relevant times, HAYASHI was admitted to a 24-hour facility and was an Elder Adult as
14 defined by Welfare and Institutions Code section 15610.27. At all relevant times, HAYASHI was a
15 resident of the County of Los Angeles in the State of California. Further, HAYASHI suffered from
16 physical limitations which restricted his ability to carry out normal activities and to protect his rights, as
17 set forth more fully supra.
18 21. DEFENDANTS were required to provide custodial care, room and board, 24-hour supervision,
19 and personal care and assistance to their residents. DEFENDANTS were aware of HAYASHI’s physical
20 limitations that rendered him dependent on DEFENDANTS to meet his care needs. DEFENDANTS
21 willingly agreed to provide the care and services HAYASHI required by assuming his custodial care
22 upon admission. Accordingly, at all times relevant, DEFENDANTS served as the care custodians of
23 HAYASHI and voluntarily and intentionally assumed responsibility for his care and custody, as well as
24 for providing for all of his custodial needs while ensuring his health, safety, and well-being. Therefore, at
25 all relevant times, DEFENDANTS owed statutory, regulatory, and custodial duties to HAYASHI to
26 provide for his custodial needs, health, safety, and well-being.
27 22. Despite these duties, DEFENDANTS consciously disregarded the substantially high risk that
28 HAYASHI would suffer serious physical injuries if DEFENDANTS denied or withheld basic custodial
5
COMPLAINT FOR DAMAGES
1 care, such as providing sufficient supervision and care plans, monitoring and observing him, and
2 providing assistance as needed. DEFENDANTS willfully, intentionally, and recklessly caused or
3 permitted HAYASHI to be injured by their abandonment of him in their own vehicle placing him in a
4 situation such that his life, health and safety was in danger when he was insufficiently monitored and
5 supervised despite DEFENDANTS’ knowledge that HAYASHI was at a high risk for injury. As a direct
6 and proximate result of DEFENDANTS’ conduct, HAYASHI suffered pain, injury and ultimately death.
7 23. Even with the knowledge of HAYASHI’s special care needs, the FACILITY failed to adequately
8 provide the proper custodial care that HAYASHI required for his well-being. The FACILITY knew or
9 should have known that it could not meet HAYASHI’s needs, and therefore had a duty to transfer him to
10 a facility which could ensure his health and safety. Yet, the FACILITY failed to promptly transfer
11 HAYASHI to a facility which could meet his needs, thus causing him to suffer the injuries detailed supra.
12 24. The injuries that HAYASHI suffered were due to DEFENDANTS’ failure to provide basic
13 custodial services to him, such as sufficient supervision, development and/or implementation of care
14 plans, monitoring and observing him, providing assistance as needed, and the failure to provide the extra
15 services HAYAHI contracted for with the FACILITY including providing escort services wherein, for
16 HAYAHI’s safety and well-being, FACILITY staff were to personally escort HAYASHI to and from
17 meals, activities and transportation for medical appointments. As demonstrated by the complaints filed
18 against the FACILITY with the DSS since at least 2021, several of which pertain to DEFENDANTS’
19 failure to provide appropriate monitoring, supervision, care plans, training, and a safe environment, as
20 well as prior instances of DEFENDANTS’ failures resulting in HAYASHI sustaining fall injuries,
21 DEFENDANTS’ failure to provide for the contracted escort service, DEFENDANTS’ neglect of
22 HAYASHI was not a one-time mistake; rather, HAYASHI’s injuries were such that they resulted from a
23 pattern of reckless neglect by DEFENDANTS.
24 25. Despite the DEFENDANTS’ knowledge of its past failures to provide appropriate monitoring,
25 supervision, care plans, training, and a safe environment, they recklessly failed to remedy these
26 deficiencies and continued to violate the law by withholding necessary goods and services in the care of
27 its residents.
28 26. “Abuse,” as it relates to elders, is defined at Welfare and Institutions Code section 15610.07 as
6
COMPLAINT FOR DAMAGES
1 either: “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting
2 physical harm or pain or mental suffering”; or “the deprivation by a care custodian of goods or services
3 that are necessary to avoid physical harm or mental suffering.” “Abandonment” is defined as the
4 desertion or willful forsaking of an elder by anyone having care or custody of that person under
5 circumstances in which a reasonable person would continue to provide care and custody. Welfare and
6 Institutions Code section 15610.05.
7 27. “Neglect,” as it relates to elders, is defined at Welfare and Institutions Code section 15610.57 as
8 “[t]he negligent failure of any person having the care and custody of an elder or a dependent adult to
9 exercise that degree of care that a reasonable person in a like position would exercise,” and includes but
10 is not limited to the: “[f]ailure to protect from health and safety hazards”; “failure to assist in personal
11 hygiene, or in the provision of food, clothing, or shelter”; and “failure to provide medical care for
12 physical and mental health needs.” (Welf. & Inst. Code, § 15610.57, subds. (b)(1)-(4).) Failure to
13 exercise the degree of care that a reasonable person in a like position would exercise with respect to
14 caring for elders, then, can constitute neglect and therefore abuse of an elder.
15 28. Additionally, regulations such as those set forth infra demonstrate the care and services that
16 RCFE’s are required to provide pursuant to state regulations. Said regulations are appropriate in
17 determining that DEFENDANTS’ conduct amounted to physical abuse, neglect and abandonment per se,
18 as well as recklessness, oppression, or malice. DEFENDANTS were required to provide care and
19 services as detailed supra to HAYASHI yet failed to operate and provide services in compliance with all
20 applicable codes and regulations, and with accepted standards and principles that apply to those
21 providing services to residents of RCFE’s.
22 29. The conduct of DEFENDANTS, as alleged herein, constitutes “neglect of an elder or dependent
23 adult” as defined in Welfare and Institutions Code section 15610.57 in ways which include but are not
24 limited to:
25 a. Failure to protect from health and safety hazards such that HAYASHI suffered serious injuries
26 from being abandoned on the floor of MORNINGSTAR’s vehicle for several hours;
27 b. Failure to provide sufficient assessments; and
28 c. Failure to provide contracted services, including personal escort services; and
7
COMPLAINT FOR DAMAGES
1 d. Failure to develop and implement adequate care plans.
2 30. By engaging in the conduct, neglect, abandonment and abuse, as alleged herein, despite the
3 known risks, DEFENDANTS and its managing agents’ actions were malicious, oppressive, fraudulent,
4 and/or reckless. DEFENDANTS were aware or should have been aware that HAYASHI was at risk of
5 the aforementioned injuries upon his admission to the FACILITY. Despite knowledge of the risks of
6 harm to HAYASHI, DEFENDANTS and its managing agents neglected, abandoned, and denied or
7 withheld the necessary services, or authorized or ratified these actions, with knowledge that injury was
8 substantially certain to result, or at a minimum with conscious disregard of the high probability that
9 injury would result.
10 31. By engaging in the conduct, neglect, abuse and abandonment, as alleged supra, due in part to a
11 profit scheme by which the DEFENDANTS and its managing agents undercapitalized, understaffed, and
12 undertrained its employees despite the known risks, while at the same seeking to increase residency rates
13 to increase revenue, DEFENDANTS’ actions were despicable, malicious, oppressive, fraudulent, and/or
14 reckless. Abandoning HAYASHI, an elder and dependent adult, in the FACILITY’s van for
15 approximately 6 (six) hours with no food, water or means to call for assistance is inexcusable and
16 deplorable conduct constituting neglect, abuse and abandonment. Further, DEFENDANTS failure to
17 have policies and procedures in place to ensure residents, such as HAYASHI, were actually returned
18 safely to the FACILITY and appropriately monitored following being transported by DEFENDANTS to
19 medical appointments despite knowledge of the risks of harm to residents, such as HAYASHI,
20 DEFENDANTS and its managing agents neglected, abandoned, and denied or withheld the necessary
21 services, or authorized or ratified these actions, with knowledge that injury was substantially certain to
22 result, or at a minimum with conscious disregard of the high probability that injury would result.
23 Moreover, DEFENDANTS’ repeated failure to provide the extra services it contracted to provide to
24 HAYASHI, such as to provide personal escort services to meals, activities and medical transportation,
25 was a pattern of reckless neglect by DEFENDANTS resulting in HAYASHI being abandoned, face down
26 on the floor of DEFENDANTS’ van for approximately 6 (six) hours and causing HAYASHI’s injuries.
27 32. DEFENDANTS and its managing agents each willfully, intentionally, and/or recklessly caused or
28 permitted HAYASHI to be injured and/or placed in a situation such that his health was in danger, as set
8
COMPLAINT FOR DAMAGES
1 forth supra. DEFENDANTS’ actions as alleged supra created circumstances or conditions likely to cause
2 great bodily harm, and as such DEFENDANTS’ willfully caused HAYASHI to suffer unjustifiable
3 physical and emotional pain, injuries, damages, indignity and ultimately death.
4 33. Because of the despicable, malicious, oppressive, fraudulent, and/or reckless nature of
5 DEFENDANTS’ and its managing agents’ conduct or authorization or ratification, an award of punitive
6 damages and attorney fees and costs in a sum according to proof at trial is therefore justified and
7 appropriate.
8 SECOND CAUSE OF ACTION
9 NEGLIGENCE
10 [By HAYASHI, by and through his Successors in Interest, Brian Hayashi and Kristen
11 Hayashi, against all DEFENDANTS]
12 34. PLAINTIFFS hereby incorporate by reference the allegations set forth supra.
13 35. By accepting HAYASHI as a resident, DEFENDANTS voluntarily and intentionally assumed
14 responsibility for providing supervisory and custodial care and services to HAYASHI and protecting him
15 from health and safety hazards during his residency at the FACILITY. DEFENDANTS were required to
16 provide care and services in a manner consistent with RCFE statutes and regulations. DEFENDANTS
17 were required to exercise the degree of care that a reasonable facility in a like position would exercise
18 with respect to ensuring that HAYASHI did not suffer injury. However, DEFENDANTS breached those
19 duties by failing to prevent him from being abandoned and left unattended in DEFENDANTS’ vehicle
20 for many hours and failed to make sure that appropriate interventions, supervision, training, safety
21 procedures, and care plans were adequate and actually implemented. Such failures caused HAYASHI to
22 suffer from the injuries and death described herein.
23 36. DEFENDANTS were required to provide care and services to HAYASHI in accordance with
24 state statutes and regulations. As an RCFE, its agent, owner, operator, alter ego, DEFENDANTS were
25 required to abide by their statutory and regulatory obligations that included but are not limited to
26 ensuring that their residents, including HAYASHI, received proper care, supervision, and assistance, as
27 detailed supra. DEFENDANTS failed to abide by such regulations. These statutes and regulations were
28 designed in order to prevent residents of RCFE’s like HAYASHI from experiencing the type of harm and
9
COMPLAINT FOR DAMAGES
1 injuries that HAYASHI suffered. As such, DEFENDANTS’ conduct constitutes negligence per se, as the
2 breaches of DEFENDANTS’ statutory and regulatory obligations, including but not limited to California
3 Code of Regulations section 87468.2(a)(4), caused severe injury and death to HAYASHI.
4 37. DEFENDANTS’ acts and omissions as alleged supra were the direct, actual, legal, and proximate
5 cause of HAYASHI’s injuries and death.
6 38. The injuries that HAYASHI suffered were foreseeable, as DEFENDANTS knew or should have
7 known that its failure to provide him with the proper care and assistance as ordered was likely to lead to
8 exactly the type of harm and injury that he suffered as a result of their acts and omissions. Therefore,
9 DEFENDANTS had actual notice that the failure to provide the proper care as required was substantially
10 likely to result in serious harm and death to HAYASHI.
11 39. But for DEFENDANTS’ conduct and breaches of duty as detailed supra, HAYASHI would not
12 have suffered illness, injury, and death.
13 40. Furthermore, DEFENDANTS are liable for the negligent and tortious acts of their agents,
14 employees, and alter egos through the legal doctrines of direct and vicarious liability. DEFENDANTS’
15 employees and agents breached the standards of care as detailed herein in the scope of their employment
16 and agency, and such acts and omissions were the direct, actual, legal, and proximate cause of
17 HAYASHI’s injuries. As such, DEFENDANTS are vicariously liable for the acts and omissions of each
18 other.
19 41. As a result of DEFENDANTS’ acts and omissions as detailed supra, HAYASHI suffered
20 damages in an amount according to proof at trial, including damages for HAYASHI’s pre-death pain and
21 suffering pursuant to Code of Civil Procedure section 377.34, subdivision (b).
22 THIRD CAUSE OF ACTION
23 WRONGFUL DEATH
24 [By Brian Hayashi and Kristen Hayashi, as individuals, against all DEFENDANTS]
25 42. PLAINTIFFS hereby incorporate by reference the allegations set forth supra.
26 43. As a result of DEFENDANTS’ acts and omissions as detailed supra, HAYASHI died on July 22,
27 2023.
28 44. DEFENDANTS were obligated to protect HAYASHI from the abuse, neglect, abandonment and
10
COMPLAINT FOR DAMAGES
1 negligence alleged supra, which ultimately caused and/or hastened HAYASHI’s death. DEFENDANTS
2 breached those duties by failing to prevent HAYASHI from suffering abandonment, the ensuing life-
3 threatening injuries, and ultimately death.
4 45. The breaches of DEFENDANTS’ duties caused injury and death to HAYASHI.
5 46. DEFENDANTS’ acts and omissions as alleged supra were the direct, actual, legal, and proximate
6 causes of HAYASHI’s injuries and death.
7 47. Prior to HAYASHI’s death, Brian Hayashi and Kristen Hayashi enjoyed the love, society,
8 comfort, and attention of their loving father, HAYASHI.
9 48. As a proximate result of the acts and omissions alleged herein of DEFENDANTS, Brian Hayashi
10 and Kristen Hayashi sustained the loss of love, society, comfort, and attention of their loving father,
11 HAYASHI, for which they seek general damages.
12 49. As a further result of the acts and omissions of DEFENDANTS as alleged supra, Brian Hayashi
13 and Kristen Hayashi incurred other expenses for the funeral and burial of HAYASHI, for which they
14 seek special damages.
15 PRAYER FOR RELIEF
16 WHEREFORE, PLAINTIFFS pray for judgment and damages as follows:
17 1. For pre-death pain and suffering pursuant to Code of Civil Procedure section 377.34, subdivision
18 (b), and Welfare and Institutions Code section 15657 against DEFENDANTS
19 2. For general damages according to proof against DEFENDANTS;
20 3. For special damages according to proof against DEFENDANTS;
21 4. For attorney’s fees against DEFENDANTS;
22 5. For punitive and exemplary damages against DEFENDANTS;
23 6. For costs of suit against DEFENDANTS;
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11
COMPLAINT FOR DAMAGES
1 7. For pre-judgment and post-judgment interest, according to law, against DEFENDANTS;
2 8. For such other and further relief as the Court deems just and proper.
3
4
5 Dated: July 8, 2024 McMAHAN & CARROLL PC
6
7 By: ______________________________
8 CARL A. McMAHAN, ESQ.
RICHARD D. CARROLL, ESQ.
9 SHEILA J. STARVISH, ESQ.
Attorneys for Plaintiffs
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COMPLAINT FOR DAMAGES
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Dept:
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Hearing Date:
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Hearing Time:
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[TENTATIVE] ORDER RE:
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(Counsel) moves to be relieved as counsel of record for Defendant
Brett Hyman.
While Counsel has provided sufficient reason for withdrawal, Items 5, 6, and 7 of the proposed order
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MARTIN HUTTO VS CITY OF TORRANCE, A MUNICIPAL CORPORATION, ET AL.
Jul 26, 2024 |
23TRCV01212
Case Number:
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Hearing Date:
July 26, 2024
Dept:
B
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California
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Plaintiff,
Case No.:
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[TENTATIVE] RULING
CITY OF TORRANCE,
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Moving Parties:
Defendant City of Torrance
Responding Party:
Plaintiff Martin Hutto
(1)
Motion to Compel Further Responses to Special Interrogatories, Set One
(2)
Motion to Compel Further Responses to Requests for Production of Documents, Set One
The Court considered the moving, opposition, and reply papers.
RULING
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
BACKGROUND
On April 19, 2023, plaintiff Martin Hutto filed a complaint against City of Torrance and Torrance Police Department for (1) violation of POBRA, (2) declaratory relief, and (3) Labor Code §1102.5.
On April 25, 2023, the court (Judge Frank) issued a TRO on April 25, 2023.
On September 15, 2023, the court issued a preliminary injunction.
LEGAL AUTHORITY
45-Day Rule
:
This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP §1013); otherwise, the demanding party waives the right to compel any further response to the CCP §2031.010 demand.
CCP §§2031.310(c), 2016.050; see
Sperber v. Robinson
(1994) 26 Cal. App. 4th 736, 745.
The 45-day time limit is mandatory and jurisdictional.
Sexton v. Superior Court
(1997) 58 Cal. App. 4th 1403, 1410.
The parties, however, can also agree in writing on a specific later date by which to file the motion to compel.
CCP §2031.310(c).
Meet-and-Confer Requirement
:
The motion to compel further responses must be accompanied by a declaration showing a reasonable and good faith attempt to resolve the issues outside of court (so-called meet and confer).
CCP §§2016.040, 2031.310(b)(2).
Separate Statement
:
Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement.
This includes a motion to compel further responses to demand for inspection of documents or tangible things.
CRC Rule 3.1020(a)(3).
Interrogatories
CCP §2030.300 states:
(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply:
(1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general.
(b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .
CCP §2030.220 states:
(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.
(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.
(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.
CCP §2030.230 states:
If the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to specify the writings from which the answer may be derived or ascertained. . . .
CCP §2030.010(b) provides:
An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based.
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on
information obtained or legal theories developed in anticipation of litigation or in preparation for
trial.
Request for Production of Documents
On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply:
(1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general.
CCP § 2031.310(a).
A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.
CCP § 2031.220.
A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand.
This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.
This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.
CCP § 2031.230.
A motion to compel further response to requests for production shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.
CCP § 2031.310(b)(1).
To establish good cause, the burden is on the moving party to show both:
[1]
Relevance to the subject matter
(e.g., how the information in the documents would tend to prove or disprove some issue in the case);
and
[2]
Specific facts justifying discovery
(e.g., why such information is necessary for trial preparation or to prevent surprise at trial).
The fact that there is
no alternative source
for the information sought is an important factor in establishing good cause for inspection.
But it is
not
essential in every case.
Weil & Brown,
Civil Procedure Before Trial
, 8:1495.6 (citations omitted).
Declarations are generally used to show the requisite good cause for an order to compel inspection.
The declarations must contain specific facts rather than mere conclusions.
Id.
at 8:1495.7 (citation omitted).
The declarations may be on information and belief, if necessary.
However, in such cases, the specific facts supporting such information and belief (the sources of the information) must also be alleged.
Id.
at 8:1495.8 (citation omitted).
Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and specific facts constituting good cause for inspection.
Id.
at 8:1495.9.
If good cause is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).
Id.
at 8:1496 (citation omitted).
DISCUSSION
Defendant City of Torrance requests that the Court compel plaintiff to respond further to Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60.
The Court notes only the requests that remain at issue based on the reply.
In the reply, the City withdrew its motion as to Special Interrogatories, Nos. 1-46, 48, 50-53, 55, 57, 59-59, 61, 63, 65-66, 68-72, 74, 83, 85, 87-89, and 91-102 and Requests for Production of Documents, Nos. 3-4, 8-13, 26, 38, 41, 44, 50, and 54-57 based on plaintiff providing supplemental responses.
On December 19, 2023, defendant served its discovery requests.
On February 12, 2024, plaintiff served responses and objections.
On July 1, 2024, pursuant to joint stipulation and order, the hearing on the motions was continued to allow the parties to reach a stipulation regarding the discovery and use in the litigation of plaintiffs confidential police officer personnel records and information, and protective order, without the need for a noticed Pitchess motion.
The complaint alleges that that plaintiff was investigated and given educational reminders in connection with two arrests he made.
Plaintiff apprehended suspects in a catalytic converter theft on May 17, 2021 and commented to one of the arrestees, Welcome to Torrance.
Plaintiff was investigated for the comment and invoked his rights under the Public Safety Officers Procedural Bill of Rights Act (POBRA) and/or the Meyers-Milias Brown Act, including use of a representative of his choice.
Defendants ultimately concluded the investigation and gave plaintiff an educational reminder for misconduct based on the Welcome to Torrance comment.
Plaintiff arrested a suspect who was disturbing the peace on March 4, 2022.
During the arrest,
plaintiff used force against the suspect, who ultimately stabbed plaintiffs partner in the clavicle
area with a pen and struck plaintiff in the head.
Plaintiff was administratively investigated for his use of force during the arrest.
Defendant ultimately concluded that plaintiff should be given an educational reminder to be more thorough in his reports of use of force.
Plaintiff filed a personnel complaint against Chief Hart for inappropriate comments and social media posts on November 2, 2022.
Plaintiff alleges Torrance Police Department revived the Internal Affairs investigation against him after his complaint.
Plaintiff alleges defendants violated his rights under POBRA, including by failing to provide proper notice of the nature of the investigations, subjecting plaintiff to punitive action and/or threatening him with punitive action for exercising his rights under POBRA and placing comments adverse to his interest in his personnel file. Plaintiff also alleges that defendants committed whistleblower retaliation in response to his complaints about Chief Harts inappropriate comments and social media posts.
Special interrogatories
Defendant contends that Special Interrogatories, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 remain at issue because they do not implicate confidential peace officer personnel information and that plaintiffs Pitchess objections are without merit.
Defendant also argues that plaintiffs response to Nos. 60, 62, 64, 73, 84, 86, and 90 directing defendant to other documents is improper under CCP §2030.230 because the interrogatories do not necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from.
In the opposition, plaintiff contends that the discovery requests were improperly served because they were sent via email although the parties had not stipulated to email service.
Plaintiff also argues that the motion was filed untimely on April 2, 2024.
In reply, defendant contends that its discovery requests were properly electronically served pursuant to CRC Rule 2.251(c).
Moreover, defendant argues, the motion was timely filed on April 2, 2024 because April 1 was a court holiday.
The Court finds that the request was properly served and that the motion was timely filed. The Court also finds that plaintiffs objections lack merit, including based on Pitchess.
The remaining special interrogatories at issue do not implicate Pitchess for the reasons argued by defendant.
Further, plaintiffs responses under CCP §2030.230 are improper.
The motion is thus GRANTED.
Requests for production of documents
Defendant asserts that Request for Production of Documents, Set One, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 remain at issue.
Defendant argues that as to the remaining requests, plaintiff has failed to state whether plaintiff possesses additional documents that do not constitute protected police officer personnel records and information and has failed to produce any such non-Pitchess record documents, in compliance with CCP §2031.240.
Under CCP §2031.240, (a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.
Defendant argues that even if Pitchess applies to any responsive peace officer personnel records, plaintiff still has the ability to either identify and produce any non-personnel records and information, or state he cannot comply because he has no records.
Further, defendant asserts, the City is entitled to obtain documents within plaintiffs possession, custody, or control, irrespective of whether the City may already possess or have access to them, citing to CCP §2031.010.
Defendant further argues that plaintiffs objections that certain defined terms (communication, relate, and refer) are overly broad and ambiguous are without merit because none of the Citys requests utilize the defined term communication and only Request Nos. 54-60 include refer or relate, and such requests are limited in scope.
In opposition, plaintiff argues that a Pitchess motion was and is required as the requests seek personnel files.
Plaintiff also argues that the requests were improperly served via email and that the motion was untimely filed.
The Court finds that the requests were properly served, and the motion was timely filed.
The Court also finds that plaintiffs responses do not comply with CCP §2031.240 and that plaintiffs objections lack merit as to non-Pitchess documents.
The motion is GRANTED.
Sanctions
Under CCP § 2023.030(a), [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
Under CCP § 2023.010, an example of the misuse of the discovery process is (d) Failing to respond or to submit to an authorized method of discovery.
Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel 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.
CCP § §2030.300(d), 2031.310(h).
Cal. Rules of Court, Rule 3.1348(a) states:
The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.
The Court denies each partys request for sanctions.
ORDER
The motions are GRANTED.
Plaintiff Martin Hutto is ordered to serve further responses to defendants Special Interrogatories, Set One, Nos. 47, 49, 54, 56, 58, 60, 62, 64, 67, 73, 84, 86, and 90 and to defendants Request for Production of Documents, Nos. 1-2, 5-7, 14-25, 27-37, 39-40, 42-43, 45-49, 51-53, 58, and 60 within twenty days.
Defendant is ordered to give notice of ruling.
Ruling
DAVIS TIVAS, ET AL. VS FRANK RODRIGUEZ GARCIA
Case Number:
21STCV05696
Hearing Date:
July 29, 2024
Dept:
29
Motions to Compel the Deposition of Plaintiffs filed by Defendant Frank Rodriguez Garcia.
Tentative
The motions are denied without prejudice.
Background
On February 16, 2021, Davis Tivas and Santos Tivas (collectively Plaintiffs) filed a complaint against Frank Rodriguez Garcia (Defendant) for negligence arising out of an automobile accident occurring on February 15, 2019.
On March 29, 2023, Defendant filed his answer.
On June 26, 2024, Defendant filed these motions to compel the deposition of Plaintiffs. 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 Plaintiffs with notices of their depositions, with both scheduled for June 18, 2024. (Holly Decls., ¶ 3 & Exhs. A.)
Defendant reached out prior to the deposition to confirm, but Plaintiff did not serve any objection and did not appear. (Id., ¶¶ 4-6.)
Defendant now moves for an order compelling Plaintiffs to attend their depositions. Defendant is certainly entitled to take Plaintiffs deposition under the Civil Discovery act, but to obtain a court order compelling the depositions, Defendant must comply with all statutory requirements. Here, Defendant has not done so. Specifically, Defendant presents no evidence that, following the nonappearances, he 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 Plaintiffs without prejudice.
Moving party to give notice.
Ruling
WILLIAM FARMER, ET AL. VS LISA THELMA LONG
Jul 26, 2024 |
19BBCV00384
Case Number:
19BBCV00384
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central
District
Department B
william farmer
,
et al.
,
Plaintiffs,
v.
lisa thelma long,
Defendant.
Case No.:
19BBCV00384
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion for an order assigning defendants interest in earnings
BACKGROUND
A.
Allegations
Plaintiffs William Farmer and Jennifer Farmer (Plaintiffs) allege that on April 4, 2018, they entered into a written Promissory Note agreement with Defendant Lisa Thelma Long (Defendant).
Plaintiffs allege that on April 20, 2018, Defendant failed to repay the loan.
Plaintiffs allege that they suffered $50,000 plus interest at the legal rate of $10% since April 4, 2018.
The complaint, filed May 9, 2019, alleges causes of action for: (1) breach of contract; (2) common counts; and (3) fraud.
B.
Relevant Background
On September 10, 2019, the default of Defendant was entered.
On August 11, 2020, default judgment was entered against Defendant in the amount of $109,073.00.
On August 13, 2020, Plaintiffs filed a writ of execution (money judgment) for the amount of $109,157.76, which was returned and filed on August 14, 2020.
On January 7, 2021, Plaintiffs filed a writ of execution (money judgment) for the amount of $113,008.64.
On March 30, 2021, Plaintiffs filed an Abstract of Judgment.
On June 4, 2024, Plaintiffs filed a writ of execution (money judgment) for the amount of $150,267.46.
C.
Motion on Calendar
On June 21, 2024, Plaintiff filed a motion for an order assigning Defendants interest in earnings.
The Court is not in receipt of an opposition brief.
LEGAL STANDARD
CCP § 695.010(a) states:
Except as otherwise provided by law, all property of the judgment debtor is subject to enforcement of a money judgment.
CCP § 708.510 provides in relevant part:
(a) Except as otherwise provided by law, upon application of the judgment creditor on noticed motion, the court may order the
judgment debtor to assign to the judgment creditor
or to a receiver appointed pursuant to Article 7 (commencing with Section 708.610) all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments, including but not limited to the following types of payments:
(1) Wages due from the federal government that are not subject to withholding under an earnings withholding order.
(2) Rents.
(3) Commissions.
(4) Royalties.
(5) Payments due from a patent or copyright.
(6) Insurance policy loan value.
(b) The
notice
of the motion shall be served on the judgment debtor. Service shall be made personally or by mail.
(c) Subject to subdivisions (d), (e), and (f), in determining whether to order an assignment or the amount of an assignment pursuant to subdivision (a), the court may take into consideratio
n all relevant factors
, including the following:
(1) The reasonable requirements of a judgment debtor who is a natural person and of persons supported in whole or in part by the judgment debtor.
(2) Payments the judgment debtor is required to make or that are deducted in satisfaction of other judgments and wage assignments
, including earnings assignment orders for support
.
(3) The amount remaining due on the money judgment.
(4) The amount being or to be received in satisfaction of the right to payment that may be assigned.
(d) A right to payment may be assigned pursuant to this article
only to the extent necessary to satisfy the money judgment.
(CCP § 708.510(a)-(d).)
When an application is made pursuant to Section 708.510 or thereafter, the judgment creditor may apply to the court for an order restraining the judgment debtor from assigning or otherwise disposing of the right to payment that is sought to be assigned. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.
(CCP § 708.520(a).)
The court may issue an order pursuant to this section upon a showing of need for the order. The court, in its discretion, may require the judgment creditor to provide an undertaking.
(CCP § 708.520(b).)
The court may modify or vacate the order at any time with or without a hearing on such terms as are just.
(CCP § 708.520(c).)
DISCUSSION
Plaintiffs/Judgment Creditors move for an assignment order against Defendant, assigning
Defendants interest in any earnings for acting and/or directing in any performance, whether television, movies, commercials, plays, or other forms of media and all payment thereunder, to Plaintiffs to the extent necessary to pay the judgment in full, including interest thereon.
Plaintiffs also seek an order restraining Defendant, any agent, employee, or attorney of Defendant, whether alone or in concert, from encumbering, assigning, disposing or spending her interest in the right to be assigned listed above.
In support of the motion, Plaintiffs provide the declaration of counsel Derek L. Tabone. Mr. Tabone states that nothing has been collected on the default judgment entered on August 14, 2020.
(Tabone Decl., ¶¶4-5.)
He states that the most recent writ of execution issued on June 4, 2024 is for the amount
of $150,267.46.
(
Id.
, ¶6.)
Counsel states that Defendant is, among other things, an actress who does work in commercials, movies, and television shows and her IMDB website shows that she has worked in multiple movies or television shows every year, as well as doing voice overs in over 170 commercials.
(
Id.
, ¶¶7-8, Ex. C.)
The website states that Defendant has 3 theatrical agents: Stewart Talent, Elev8, and Taylor Talent Services.
(
Id.
, ¶9.)
Plaintiffs seek an order assigning all of Defendants right to payment for her movie, television, and commercial work until Defendants judgment has been paid.
(
Id.
, ¶10.)
The Court considers the factors under CCP § 708.510(c).
First, Defendant is a natural person.
There is no information on whether she is supporting any other persons. As the motion is unopposed, Defendant has not provided any statements that she is supporting any other persons.
Second, it does not appear that Defendant has made any effort to make payments towards the judgment.
According to Mr. Tabone (Plaintiffs counsel), the judgment is still unpaid.
Plaintiffs have not indicated whether there are any other assignment orders or wage assignments, etc. and Defendant has not filed an opposition to provide such information.
Third, Plaintiffs argue that Defendant owes $150,267.46, based on the June 4, 2024 writ of execution.
Fourth, Plaintiffs seek an assignment of Defendants right to payment for her movie, television, and commercial work until Defendants judgment has been paid.
The approximate amount of how much Defendant is paid for her acting work is not provided.
Since the judgment has not been satisfied and the motion is not opposed, there are grounds to issue an assignment order pursuant to CCP § 708.510.
The Court hereby grants Plaintiffs request for assignment orders.
CONCLUSION AND ORDER
Plaintiffs William Farmer and Jennifer Farmers
motion for an order assigning
Defendant Lisa Thelma Longs interest in her earnings from her
movie, television, and commercial work is granted.
Defendant, as well as
any agent, employee, or attorney of Defendant, whether alone or in concert, shall be restrained from encumbering, assigning, disposing or spending her interest in the aforementioned earnings.
Plaintiffs shall give notice of this order.
DATED: July 26, 2024
___________________________
John Kralik
Judge of the Superior Court
Ruling
DAVID ODAY, ET AL. VS 118 WADSWORTH AVENUE HOMEOWNERS ASSOCIATION, ET AL.
Jul 29, 2024 |
23STCV24766
Case Number:
23STCV24766
Hearing Date:
July 29, 2024
Dept:
47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE:
July 29, 2024
TRIAL DATE:
NOT SET
CASE:
David Oday, et al. v. 118 Wadsworth Avenue Homeowners Association, et al.
CASE NO.:
23STCV24766
MOTION TO DISSOLVE PRELIMINARY INJUNCTION
MOVING PARTY
: Defendant 118 Wadsworth Avenue Homeowners Association
RESPONDING PARTY(S)
: Plaintiffs David Oday and Lakota Patrick Ford
CASE HISTORY
:
·
10/11/23: Complaint filed.
·
01/10/24: First Amended Complaint filed.
·
03/01/24: Cross-Complaint filed.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a breach of contract and habitability defect action. Plaintiffs allege that Defendants refused to replace the roof of Plaintiffs condominium, causing extensive water damage and mold throughout the unit. Plaintiffs allege that Defendants improperly issued special assessments in violation of the operative covenants, conditions, and restrictions on the property, and retaliated against Plaintiffs for raising these issues.
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
TENTATIVE RULING:
Defendants Motion to Dissolve Preliminary Injunction is DENIED, as Plaintiff David Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
DISCUSSION:
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 because of Plaintiffs failure to post the bond required.
Legal Standard
Code of Civil Procedure section 533 states:
In any action, the court may on notice modify or dissolve an injunction or temporary restraining order upon a showing that there has been a material change in the facts upon which the injunction or temporary restraining order was granted, that the law upon which the injunction or temporary restraining order was granted has changed, or that the ends of justice would be served by the modification or dissolution of the injunction or temporary restraining order.
(Code Civ. Proc. § 533.) Modification of a preliminary injunction rests in the sound discretion of the trial court upon a consideration of all the particular circumstances of each individual case. (
Union Interchange, Inc. v. Savage
(1959) 52 Cal.2d 601, 606.) The party seeking modification has the burden of proving that the request is justified. (See
Loeffler v. Medina
(2009) 174 Cal.App.4th 1495, 1504.)
Analysis
Defendant 118 Wadsworth Avenue Homeowners Association moves to dissolve the preliminary injunction entered on February 22, 2024 on the grounds that Plaintiffs failed to post the undertaking of $70,416.09 ordered by the Court. (See February 22, 2024 Minute Order.)
Plaintiffs, in opposition, state that payment in the amount specified by the Courts order was deposited with the Court on June 26, 2024, with notice given to Defendant the next day. (Declaration of Scott J. Kalter ISO Opp. Exhs. 1-2.) In reply, Defendant contends that Plaintiffs deposit of the funds to the Court is effective as a posting of a bond under Code of Civil Procedure section 995.710, but only if the deposit is accompanied by an agreement executed by the principal authorizing the officer to collect, sell, or otherwise apply the deposit to enforce the liability of the principal on the deposit. (Code Civ. Proc. § 995.710(c).) Defendant contends that Plaintiffs have not executed such an agreement, and, therefore, that the injunction should be dissolved.
The Court concurs with Defendant that an authorization to dispose of the funds to satisfy liability is required for Plaintiffs deposit to be considered posting of the bond under section 995.710. In response to the Courts prior tentative ruling, Plaintiff David Patrick Oday has submitted an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c). Accordingly, the Court will deny the motion to dissolve the preliminary injunction.
CONCLUSION
:
Accordingly, Defendants Motion to Dissolve Preliminary Injunction is DENIED given that Plaintiff David Patrick Oday has served and filed an agreement authorizing the deposit to be applied to enforce the liability of the principal, pursuant to Code of Civil Procedure section 995.710(c).
Moving party to give notice.
IT IS SO ORDERED.
Dated: July 29, 2024 ___________________________________
Theresa M. Traber
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at
Smcdept47@lacourt.org
by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
SIRANUSH AKLYAN, ET AL. VS STATE OF CALIFORNIA, ET AL.
Jul 26, 2024 |
23BBCV01986
Case Number:
23BBCV01986
Hearing Date:
July 26, 2024
Dept:
NCB
Superior Court of California
County of Los Angeles
North Central
District
Department B
siranush aklyan
,
et al.
,
Plaintiffs,
v.
state of california,
et al.
,
Defendants.
Case No.:
23BBCV01986
Hearing Date:
July 26, 2024
[
TENTATIVE] order RE:
motion to strike
BACKGROUND
A.
Allegations
Plaintiffs Siranush Aklyan, Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan (Plaintiffs) allege that on February 25, 2023 at approximately 1:30 a.m., Siranush Aklyan was operating her vehicle in the number 1 of 5 lanes on the I-5 northbound freeway.
Aper G. Agakhanian, Grigor Choginyan, and Lena Ananyan were passengers int the vehicle.
Plaintiffs allege that they became trapped underwater following a heavy rainfall on the Golden State I-5 freeway.
Plaintiffs allege that a vehicle
maneuvering the number two (2) lane initiated the passage adjacent to their vehicle, precipitating the generation of a wave, thereby inducing a hydrodynamic disturbance. This perturbation induced an unintended rotational motion of the Plaintiffs' vehicle in a counter-directional manner, leading to its eventual submersion. In a bid to evacuate the vehicle, the Plaintiffs made several unsuccessful attempts to unlatch the doors due to the exerted hydrostatic pressure, rendering them inoperable. Subsequently, the Plaintiffs successfully extricated themselves from the vehicle by manipulating one of the windows and effecting their exit through said window.
(Compl., ¶7.)
Plaintiffs allege that the roadway was dangerous for drivers as the surface had insufficient traction and friction, had improper grooving and treatment of the pavement, used improper materials in the design/construction/maintenance/repair of the roadway, etc.
Plaintiffs allege that Defendants State of California and Caltrans District 7 owned, occupied, leased, used, regulated, controlled, managed, maintained, operated, supervised, repaired, and possessed the portion of the freeway at issue.
The complaint, filed August 25, 2023, alleges causes of action for: (1) statutory liability/dangerous condition of public property; and (2) negligence.
B.
Motion on Calendar
On June 14, 2024, Defendant the People of the State of California, acting by and through the Department of Transportation (Defendant) (erroneously named as State of California and Caltrans District 7) filed a motion to strike portions of the complaint.
On July 15, 2024, Plaintiffs filed an opposition brief.
On July 24, 2024, Defendant filed a reply brief.
DISCUSSION
Defendant moves to strike portions of the complaint at paragraph 24 (page 9, line 5).
The specific language includes references to Government Code, §§ 815.2(a), 820(a), and 840.2.
They argue that they do not dispute that Plaintiffs properly plead a cause of action for dangerous condition of public property, but that the allegations for vicarious liability and negligence by referencing the aforementioned sections is improper.
(Reply at p.5.)
First, Defendant argues that sections 815.2(a) and 820(a) regarding vicarious liability are improper.
Government Code, § 815.2(a) states:
A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
Government Code, § 820(a) states:
Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
Defendant argues that Plaintiffs have not specifically identified any employee of Defendant for which Defendant could be vicariously liable and that, even if Plaintiffs were able to identify employees, its employees are immune such that Defendant cannot be vicariously liable.
Defendant cites to
Yee v. Superior Court
(2019) 31 Cal.App.5th 26, 40:
A public entity cannot be held vicariously liable for actions of its employees that are actually acts of the entity itself, albeit performed by necessity by employees or agents. Vicarious liability depends on the employee being independently liable for the act, the entity becoming liable because the employee's act was taken within the scope of his or her employment.
(
Yee
, supra, 31 Cal.App.5th at 40.)
Defendant argues that a claim for dangerous condition of public property can only lie pursuant to Government Code, §§ 830 to 835.4.
Second,
Defendant argues that section 840.2 for direct employee liability does not govern dangerous conditions of public property actions.
Government Code, § 840.2 states:
An employee of a public entity is liable for injury caused by a dangerous condition of public property if the plaintiff establishes that the property of the public entity was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
(a) The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee and the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition; or
(b) The employee had the authority and it was his responsibility to take adequate measures to protect against the dangerous condition at the expense of the public entity and the funds and other means for doing so were immediately available to him, and he had actual or constructive notice of the dangerous condition under Section 840.4 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.
(Govt Code, § 840.2.)
Again, Defendant argues that Plaintiffs have not identified any specific individual against whom a section 840.2 claim could be brought.
Plaintiffs argue that they are not required to plead the name of the specific individuals prior to undergoing discovery.
Plaintiffs rely on
C.A. v. William S. Hart Union High School Dist.
(2012) 53 Cal.4th 861, 872, wherein
the California Supreme Court stated:
The complaint, it is true, does not identify by name or position the District's employees, administrators and/or agents who allegedly failed to properly hire, train and supervise Hubbell. But the District cites no statute or decision requiring a plaintiff to specify
at the pleading stage
which of the defendant's employees committed the negligent acts or omissions for which a public entity is allegedly liable under section 815.2. To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. [Citation.]
(
C.A.
, supra, 53 Cal.4th at 872; see
Perez v. City of Huntington Park
(1992) 7 Cal.App.4th 817, 820821 [
The plaintiff may be unable to identify which employee committed the wrongful act, but this is not fatal to the employer's liability, if the evidence establishes that some employee in the scope of employment committed the wrongful act.].)
Although the complaint does not name specific individuals who were employed by Defendant, the complaint alleges that Defendant and Does 1-100 knew of the dangerous and defective conditions of the roadway, knew that the plan or design of the roadway had become dangerous due to the change in the conditions of the roadway, failed to warn drivers or take other actions, etc.
(Compl., ¶¶14-19.)
Plaintiffs allege that the dangerous conditions and acts/omissions of Defendant and Does 1-100 and their management, administrators, designers, planners, engineers, maintenance personnel, inspectors, and/or other employees, staff, agents, or contractors were done within the course and scope of their duties.
(
Id.
, ¶21.)
At this time, the Court will not preemptively strike references to section 815.2(a) and 820 for vicarious liability as there may be a basis for independent liability against Defendants employee(s) and their actions that were undertaken during the scope of their employment.
The Court finds that the allegations are sufficiently particular for the cause of action to go forward.
Similarly, section 840.2 is for direct liability against an employee of a public entity for a dangerous condition of public property.
Whether Plaintiff is able to discover the names of such employees later, amend the Doe designations, and prove this will have to be determined beyond the pleading stage.
As currently alleged, Plaintiffs have alleged sufficient facts against Defendant and specifically alleged the code sections that are at issue in this action; the identity of the particular individuals employed by Defendant is better left to be determined during the discovery process.
Finally, Defendant argues that public employees are immune from discretionary acts under Government Code, § 820.2, such that it cannot be vicariously liable for the actions or inactions of its employees.
Section 820.2 states:
Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
While such an exception may exist, at this time, the Court will not prematurely determine if the exception applies to the facts of this case based on the pleadings alone.
Again, this is better addressed upon the consideration of evidence at the motion for summary judgment or trial stage.
The motion to strike is overruled.
CONCLUSION AND ORDER
Defendant the People of the State of California, acting by and through the Department of Transportations motion to strike is overruled.
Defendant is ordered to answer.
Defendant shall give notice of this order.
DATED: July 26, 2024
___________________________
John Kralik
Judge of the Superior Court
Ruling
24SMCP00171
Jul 25, 2024 |
24SMCP00171
Case Number:
24SMCP00171
Hearing Date:
July 25, 2024
Dept:
207 TENTATIVE RULING
DEPARTMENT
207
HEARING DATE
June 13, 2024, continued to July 25, 2024
CASE NUMBER
24SMCP00171
MOTION
Motion to Compel Arbitration
MOVING
PARTY
Petitioner Wasser, Cooper & Mandles P.C.
OPPOSING PARTY
(none)
BACKGROUND
Petitioner Wasser, Cooperman & Mandles P.C. (Petitioner) moves to compel Respondent Shazeen Shah (Respondent) to arbitration regarding a dispute over legal fees incurred in connection with Petitioners provision of legal services to Respondent in the matter, Marriage of Shah/Aschinger.
(Verified Petition at ¶ 1; Ex. A.)
The petition is unopposed.
MOTION TO COMPEL ARBITRATION LEGAL STANDARDS
[T]he advantages of arbitration include a presumptively less costly, more expeditious manner of resolving disputes.
It follows a party to a valid arbitration agreement has a contractual right to have its dispute with another party to the contract resolved quickly and inexpensively.
(
Henry v. Alcove Investment, Inc
. (1991) 233 Cal.App.3d 94, 99100 [cleaned up].)
Thus, on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists.
(Code Civ. Proc., § 1281.2; see also
EFund Capital Partners v. Pless
(2007) 150 Cal.App.4th 1311, 1320 [the language in section 1281.2 compelling arbitration is mandatory].)
The right to compel arbitration exists unless the court finds that the right has been waived by a partys conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.
(Code Civ. Proc., § 1281.2, subds. (a)-(c).)
On a petition to compel arbitration, the trial court must first determine whether an agreement to arbitrate the controversy exists.
Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence.
The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent's signature.
(
Bannister v. Marinidence Opco, LLC
(2021) 64 Cal.App.5th 541, 543-544 [cleaned up].)
The party seeking to compel arbitration must also plead and prove a prior demand for arbitration and a refusal to arbitrate under the agreement.
(
Mansouri v. Superior Court
(2010) 181 Cal.App.4th 633, 640-641.)
And while the moving party on a motion to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, [a] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.
(
Ruiz v. Moss Bros. Auto Group, Inc.
(2014) 232 Cal.App.4th 836, 842 [cleaned up]; see also
Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC
(2012) 55 Cal.4th 223, 236 [The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability].)
ANALYSIS
As a threshold matter, [a] petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract.
(
Frog Creek Partners, LLC v. Vance Brown, Inc.
(2012) 206 Cal.App.4th 515, 532.)
As such, a courts personal jurisdiction over the respondent requires compliance with the same service rules that apply for service of a summons and complaint in any other lawsuit.
(
Frey & Hogan Corp. v. Superior Court in and for City and County of San Francisco
(1936) 5 Cal.2d. 401, 403-404.)
Moreover, due process requires that a respondent be given written notice of the moving and supporting papers at least sixteen court days before the hearing.
(Code Civ. Proc., § 1005, subd. (b).)
Here, there is no proof of service indicating that the original Petition to Compel arbitration was ever served on Respondent in a manner that would give the Court personal jurisdiction to hear the matter.
Further, there is no proof of service indicating that the notice of the hearing was ever served on Respondent.
The Court continued the hearing to allow Petitioner to file a proof of service, but no proof of service has yet been filed.
The Court acknowledges that a Notice of Continuance was filed on June 14, 2024, but no proof of service attached to that notice.
CONCLUSION AND ORDER
Because the Court finds no proof of service demonstrating that Respondent was notified about this lawsuit or was given proper notice of the hearing, the Court denies without prejudice the Petition to Compel Arbitration.
Further, the Court continues that Case Management Conference to January 23, 2025 at 8:30 A.M. in Department 207.
Petitioner shall provide notice of the Courts order and file the notice with a proof of service forthwith.
DATED:
July 25, 2024
___________________________
Michael E. Whitaker
Judge of the Superior Court
Ruling
JERRY JAMGOTCHIAN, ET AL. VS COASTAL LAUNDROMAT, INC., ET AL.
Aug 01, 2024 |
23STCV31285
Case Number:
23STCV31285
Hearing Date:
August 1, 2024
Dept:
20
Tentative Ruling
Judge Kevin C. Brazile
Department 20
Hearing Date:
August 1, 2024
Case Name:
Jamgotchian, et al. v. Coastal Laundromat, Inc., et al.
Case No.:
23STCV31285
Matter:
Anti-SLAPP Motion
Moving Party:
Defendants Coastal, Bruce Nye, and Sonja Nye
Responding Party:
Unopposed
Notice:
OK
Ruling:
The Anti-SLAPP Motion is granted.
Coastal 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.
In case no. BC674357, on February 7, 2023, a jury entered verdicts in favor of Plaintiffs DONE! Ventures, LLC (Done!) and Coastal Laundromat, Inc. (Coastal), and against Defendants Jerry Jamgotchian, El Segundo Plaza Associates L.P. (ESPA), and Theta Holding IV, Inc. (Theta) for Plaintiffs claims for interference with contract, negligent interference with prospective economic advantage, and breach of contract.
On May 8, 2023, the Court entered a judgment on the verdict.
On July 12, 2023, the Court ruled on a motion for new trial/JNOV, stating that the amount of punitive damages awarded by the jury was improper and that Coastal was either to stipulate to $525,000 or else the Court would grant a new trial only as to the amount of punitive damages. Coastal stipulated to taking less punitive damages.
On September 5, 2023, the Court ruled on Coastals motion for attorneys fees and prejudgment interest. Prejudgment interest was rejected, but the Court awarded
$357,673 in fees.
On February 6, 2024, the Court entered a final ruling denying Defendants motion to tax costs with respect to Done!. That ruling also rejected prejudgment interest for Done!.
On February 27, 2024, the Court entered an amended judgment, which reduced the amount of punitive damages to be obtained by Done! and indicated the amount of fees, costs, and prejudgment interest to be awarded as discussed above.
On March 27, 2024, the Court denied Defendants request to amend the February 27, 2024, judgment as follows: (1) amend title of the Courts February 27, 2024, judgment to read Final Judgment and not its current incorrect and misleading title, Amended Judgment, (2) Amend the date of the Courts award of post-judgment interest from May 8, 2023 (date of the Courts interim, non-final jury verdict judgment) to the date of final judgment, or February 27, 2024 (the date the Court signed final judgment in this case, erroneously entitled Amended Judgment, as above), as the May 8, 2023 interim judgment is void and no longer has any force and effect by operation of law. The Court also denied Defendants request to quash all outstanding levies issued under the Courts interim - and now void and unenforceable - May 8, 2023 jury verdict judgment.
On December 12, 2023, Jamgotchian, ESPA, and Theta filed the instant case, case no. 23STCV31285, against Coastal, Bruce Nye, and Sonja Nye for (1) slander of title, (2) quiet title, (3) defamation, (4) libel per se, (5) intentional interference with contractual relations, and (6) negligent interference with contractual relations. Essentially, Jamgotchian and his entities have now elevated their contentions about a premature judgment to separate lawsuits. The basis for all of their claims is that the judgment lien from BC674357 was invalid and premature, which has been rejected by the Court multiple times.
On February 27, 2024, Jamgotchian, ESPA, and Theta filed case no. 24STCV05004 against Done! for (1) slander of title, (2) quiet title, (3) defamation, (4) libel per se, (5) intentional interference with contractual relations, and (6) negligent interference with contractual relations.
On June 14, 2024, the Court related case nos. BC674357, 23STCV31285, and 24STCV05004.
Coastal and the Nyes now assert an Anti-SLAPP Motion or Special Motion to Strike the entirety of the Complaint pursuant to Code Civ. Proc. § 425.16.
Jamgotchian and his entities did not file an opposition.
Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions. In pertinent part, the statute states, A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. (Code Civ. Proc. § 425.16(b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigants constitutional right of petition or free speech. (Code Civ. Proc. § 425.16(a);
Sylmar Air Conditioning v. Pueblo Contracting Services, Inc.
(2004) 122 Cal.App.4th 1049, 1055-1056.)
Courts employ a two-step process to evaluate anti-SLAPP motions. (
Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 61.) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (
Ibid
.) From this fact, courts presume the purpose of the action was to chill the defendants exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits. (
Ibid
.) In determining whether the plaintiff has carried this burden, the trial court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Code Civ. Proc. § 425.16(b)(2); see
Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 291 (
Soukup
).)
Protected Activity
To meet their burden for the first prong of the anti-SLAPP analysis, Defendants must demonstrate that the Complaints causes of action arise from protected activity. That is, it must be that defendants conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . the act underlying the plaintiffs cause or the at which forms the basis for the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. (
Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 63 (internal citations omitted).)
An act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (Code Civ. Proc. § 425.16(e).)
Here, all causes of action are premised on the enforcement proceedings in BC674357. Indeed, the Complaint states: Defendants actions in failing and refusing to withdraw, vacate and/or remove their premature and void Judgment Lien and Abstract(s) of Judgment are, were and continue to be made in bad faith and with specific malicious intention to harm and injure Plaintiffs, as they are knowingly made and maintained without any basis in law and in knowing violation of the Courts September 8, 2023 Minute Order. To date, Defendants have failed and refused to remove their premature and void Judgment Lien and/or Abstract(s) of Judgment and therefore is/are baseless, wrongful and financially damaging to Plaintiffs, and each of them. (Compl. ¶¶ 21-22.)
The actions taken to enforce the judgment in BC674357, particularly the filing of abstracts of judgment, are protected activity within the meaning of Code Civ. Proc. § 425.16(e)(1)-(2). (See, e.g.,
O'Neil-Rosales v. Citibank (S. Dakota) N.A.
(2017) 11 Cal.App.5th Supp. 1, 6. [
privileged or not, defendants acts of obtaining an abstract of judgment and recording it as a real property lien fell within the categories of section 425.16, subdivision (e).
Rusheen v. Cohen
,
supra
, 37 Cal.4th at p. 1056, 39 Cal.Rptr.3d 516, 128 P.3d 713 [ Any act includes communicative conduct such as the filing, funding, and prosecution of a civil action].)].)
Furthermore, the equitable claims at issue essentially challenge the force and effect of the judgment in BC674357, and this undoubtedly relates to protected petitioning activity. (See, e.g.,
Weeden v. Hoffman
(2021) 70 Cal.App.5th 269, 28687 [paragraphs 33, 38, and 45 set forth what Hoffman is alleged to have done that gives rise to the quiet title, cancellation of instrument, and slander of title causes of action; each of those paragraphs complains about Hoffman's recording of the 2018 Abstract of Judgment . . . . Hoffman has demonstrated that the conduct about which the Weedens complain . . . is Hoffman's conduct in obtaining and recording the 2018 Abstract of Judgment, which the Weedens concede is protected activity under Code of Civil Procedure section 425.16, subdivision (e)(2).].)
The Court concludes that Defendants have carried their burden to show that the Complaint arises from protected activity under CCP § 425.16(e)(1)-(2).
Minimal Merit
On the second component of the analysis, courts employ a summary-judgment-like procedure, accepting as true the evidence favorable to the plaintiff and evaluating the defendants evidence only to determine whether the defendant has defeated the plaintiffs evidence as a matter of law. (
Gerbosi v. Gaims, Weil, West & Epstein, LLP
(2011) 193 Cal.App.4th 435, 444.) In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. (
Soukup
, supra, 39 Cal.4th at p. 291.)
Here, the subject causes of action are premised on the assertion that the judgment lien arising from BC674357 was invalid because it was based on a premature judgment. This has been rejected at least a half-dozen times in BC674357. Jamgotchian and his entities are well aware of this Courts reasoning and can refer to the rulings in BC674357, all of which are incorporated herein by reference. Based on these rulings, the Court concludes that there is no possibility of Jamgotchian and his entities prevailing herein and that there are no triable issues of fact.
Thus, the Anti-SLAPP Motion is granted. The entirety of the Complaint is stricken.
The Request for Judicial Notice is granted.
Coastal 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.
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 Carl A. McMahan, Esq. (CSB# 108551) Richard D. Carroll, Esq. (CSB# 116913) 2 Sheila J. Starvish, Esq. (CSB# 193106) McMAHAN & CARROLL PC 3 11755 Wilshire Blvd. Suite 2370 4 Los Angeles, CA 90025 Telephone: (310) 479-8827 5 Facsimile: (310) 479-7226 Email: mail@mcmahancarroll.com 6 7 Attorney for Plaintiffs Leland Hayashi, by and through his Successors in Interest, Brian Hayashi 8 and Kristen Hayashi, and Brian Hayashi and Kristen Hayashi, as individuals 9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES 10 PASADENA COURTHOUSE 11 12 Leland Hayashi, by and through his Successors in ) Case No.: 13 Interest, Brian Hayashi and Kristen Hayashi, and ) Complaint Filed: Brian Hayashi and Kristen Hayashi, as individuals, ) Department: 14 ) Honorable Judge: Plaintiffs, ) 15 ) COMPLAINT FOR DAMAGES 16 v. ) ) 1. Elder and Dependent Adult Abuse, Neglect 17 Olympic Senior Care, LLC, dba MorningStar of ) and Abandonment (Welfare and Institutions Pasadena, a limited liability corporation, Olympic ) Code § 15600 et seq.) 18 Senior Care, LLC, a limited liability corporation, ) MorningStar Senior Management, LLC, a limited ) 2. Negligence 19 liability corporation, Ken Jaeger, an individual, ) 20 Matthew Turner, an individual, Steve H. Martin, an ) 3. Wrongful Death individual, and DOES 1 to 50, ) 21 Defendants, ) Trial Date: None __________________________________________ ) 22 23 COMES NOW, Plaintiffs, who allege as follows: 24 THE PARTIES 25 1. Plaintiff, Leland Hayashi (hereinafter “PLAINTIFF” or “HAYASHI”) is an individual who, at all 26 times relevant to this action, was domiciled in the County of Los Angeles, State of California. HAYASHI 27 was, at all relevant times, over the age of 65 and admitted as a resident at a 24-hour facility, and thus was 28 1 COMPLAINT FOR DAMAGES 1 an Elder Adult pursuant to Welfare and Institutions Code section 15610.27. 2 2. HAYASHI died on July 22, 2023. His children and Successors in Interest, Brian Hayashi and 3 Kristen Hayashi bring this action for Elder and Dependent Adult Abuse, Neglect, and Abandonment 4 pursuant to Welfare and Institutions Code § 15600 et seq., and for Negligence on HAYASHI’s behalf. 5 Pursuant to Code of Civil Procedure § 377.32 and Welfare and Institutions Code § 15657.3, the 6 Successors in Interest’s declaration is filed concurrently herewith. (Hereinafter, all references to 7 “PLAINTIFFS” are in collective reference to HAYASHI, Brian Hayashi and Kristen Hayashi, unless 8 otherwise specified.) 9 3. Brian Hayashi and Kristen Hayashi are the adult children of HAYASHI; they are the lawful heirs 10 of HAYASHI. Brian Hayashi and Kristen Hayashi bring this action for Wrongful Death in their 11 individual capacities pursuant to Code of Civil Procedure section 377.60. 12 4. Defendants Olympic Senior Care, LLC, dba MorningStar of Pasadena, a limited liability 13 corporation, Olympic Senior Care, LLC, a limited liability corporation, MorningStar Senior 14 Management, LLC, a limited liability corporation, Ken Jaeger, an individual, Matthew Turner, an 15 individual, and Steve H. Martin, an individual (“MORNINGSTAR” or “FACILITY” or 16 “DEFENDANTS”) were the licensees, managers, consultants, administrators, employers, owners, and 17 operators of, and actively participated in the business of providing custodial care and services to residents 18 of, and otherwise did business as, a residential care facility for elderly (“RCFE”), physically located at 19 951 S. Fair Oaks Avenue, Pasadena, CA 91105. 20 5. MORNINGSTAR and DOES 1 through 50 were licensed through the California Department of 21 Social Services (hereinafter “DSS”) and were therefore subject to the requirements of laws and 22 regulations regarding the operation of a RCFE. 23 6. MORNINGSTAR and DOES 1 through 50 authorized, ratified and/or directed the day-to-day 24 operation of the FACILITY, and the conduct of its agents and employees through the employment, 25 training, and supervision of Administrators and other employees at the FACILITY. 26 7. PLAINTIFFS are informed and believe, and therefore allege, that at all times relevant to this 27 Complaint, MORNINGSTAR and DOES 1 through 50 were individuals, entities, agents and/or alter egos 28 of each other who rendered care and services to HAYASHI and whose conduct caused the injuries and 2 COMPLAINT FOR DAMAGES 1 damages alleged herein. PLAINTIFFS are ignorant of the true names and capacities of those Defendants 2 sued herein as DOES 1 through 50, and for that reason has sued such Defendants by fictitious names. 3 PLAINTIFFS will seek leave of Court, as needed, to amend this Complaint to identify said Defendants 4 upon their discovery. 5 8. PLAINTIFFS are informed and believe, and therefore allege, that each Defendant designated as a 6 DOE was responsible in any actionable manner for the events and happenings herein referred to, which 7 proximately caused the injuries and damages to PLAINTIFFS as alleged infra. 8 JURISDICTION AND VENUE 9 9. PLAINTIFFS hereby incorporate by reference the allegations set forth supra. 10 10. This Court has personal jurisdiction over DEFENDANTS because DEFENDANTS were, at all 11 times relevant herein, doing business in the County of Los Angeles, State of California. DEFENDANTS 12 are business entities or individuals licensed through the DSS to run the FACILITY, which is physically 13 located in Pasadena, California. While engaged in such business, DEFENDANTS’ conduct caused injury 14 to HAYASHI in the County of Los Angeles, State of California. 15 11. Venue is proper in this judicial district because DEFENDANTS conducted business within this 16 district, and because DEFENDANTS’ conduct caused PLAINTIFFS’ injuries in this district, as set forth 17 more fully infra. 18 FACTUAL ALLEGATIONS 19 12. HAYASHI moved into MORNINGSTAR (formerly Fair Oaks) in December 2017. His 20 admitting diagnoses were vascular dementia and short-term memory loss. He was later diagnosed with 21 hypoglycemia, hypertension, Alzheimer’s disease, type 2 diabetes and renal disease which required 22 dialysis. In the pertinent time frame, he received dialysis three times a week at Liberty Dialysis II in 23 Pasadena from approximately 10am to 2pm. MORNINGSTAR staff would transport HAYASHI in a 24 MORNINGSTAR van to and from his dialysis treatments. HAYASHI was wheelchair bound and was 25 required to be secured in the wheelchair at all times. HAYASHI needed supervision and assistance with 26 all activities of daily living, and in fact, he paid MORNINGSTAR an additional sum for extra one-on- 27 one care including an escort service related to transportation needs. 28 13. Upon accepting HAYASHI for admission, MORNINGSTAR agreed to provide HAYASHI with 3 COMPLAINT FOR DAMAGES 1 custodial care and more. The provision of basic custodial care concerns an individual’s activities of daily 2 living (“ADL”) such as nutrition, hydration, hygiene, bodily movements, rising from, returning to, and 3 repositioning in bed and wheelchair. All of these ADLs are basic necessities needed to maintain human 4 health. 5 14. Despite defendants’ knowledge of HAYASHI’s need for supervision, particularly related to his 6 wheelchair bound status, defendants withheld the custodial care they knew he required and permitted him 7 to be abandoned alone in MORNINGSTAR’s vehicle for six hours from approximately 3 p.m. to 9 p.m., 8 well after nightfall, on May 2, 2023. He was eventually discovered lying facedown on the floor of the 9 MORNINGSTAR vehicle. No explanation has been provided to explain how or why DEFENDANTS 10 were able to abandon HAYASHI for so many hours, especially when he paid extra for escort services 11 specifically intended to prohibit such a situation. This clearly shows ratification of DEFENDANTS’ 12 abuse, neglect and abandonment of HAYASHI. 13 15. HAYASHI was transferred to Glendale Adventist Medical Center Emergency Department. He 14 was treated and released back to MORNINGSTAR on May 3, 2023. On May 4, 2023, HAYASHI was 15 found unresponsive in his room and was transported to Huntington Hospital. He was diagnosed as 16 suffering from pneumonia which was caused by aspirating while facedown on the MORNINGSTAR 17 vehicle floor on May 2, 2023. This became a two-week admission. During this admission, he became 18 unable to swallow and a feeding tube was placed. 19 16. Due to the neglect, abuse and abandonment HAYASHI suffered at MORNINGSTAR, he did not 20 return there, but was instead transferred to Mission Care Center, a critical care facility, because he 21 required a higher level of care at that point. HAYASHI’s condition continued to worsen while at a 22 Mission Care Center and he was transferred to other higher level of care facilities. On July 22, 2023, a 23 little over two months after his abandonment at MORNINGSTAR, HAYASHI died at Rose Valley 24 Garfias Boarding Care due to respiratory failure and pneumonia. Of note, HAYASHI did not suffer from 25 these fatal conditions prior to May 2, 2023. 26 17. Despite DEFENDANTS’ awareness that HAYASHI was at a high risk of suffering harm and 27 injury and that he required consistent monitoring, supervision, and assistance, the DEFENDANTS failed 28 to create and/or implement adequate care plans to ensure that HAYASHI did not suffer harm and 4 COMPLAINT FOR DAMAGES 1 injury. Moreover, due in part to MORNINGSTAR’s inadequate staffing, supervision and training, and its 2 placement of too many patients that needed increased or one-on-one supervision, DEFENDANTS 3 withheld vital custodial care that HAYASHI required to prevent injury and death due to abuse, neglect, 4 abandonment, and health and safety hazards. 5 18. As a direct and proximate result of DEFENDANTS’ conduct, HAYASHI suffered unnecessary 6 and horrific pain, injury, emotional distress, and death. 7 FIRST CAUSE OF ACTION 8 ELDER ABUSE AND NEGLECT 9 (Pursuant to Welfare and Institutions Code § 15600 et. seq) 10 [By HAYASHI, by and through his Successors in Interest, Brian Hayashi and Kristen 11 Hayashi, against all DEFENDANTS] 12 19. PLAINTIFFS hereby incorporate by reference the allegations set forth supra. 13 20. At all relevant times, HAYASHI was admitted to a 24-hour facility and was an Elder Adult as 14 defined by Welfare and Institutions Code section 15610.27. At all relevant times, HAYASHI was a 15 resident of the County of Los Angeles in the State of California. Further, HAYASHI suffered from 16 physical limitations which restricted his ability to carry out normal activities and to protect his rights, as 17 set forth more fully supra. 18 21. DEFENDANTS were required to provide custodial care, room and board, 24-hour supervision, 19 and personal care and assistance to their residents. DEFENDANTS were aware of HAYASHI’s physical 20 limitations that rendered him dependent on DEFENDANTS to meet his care needs. DEFENDANTS 21 willingly agreed to provide the care and services HAYASHI required by assuming his custodial care 22 upon admission. Accordingly, at all times relevant, DEFENDANTS served as the care custodians of 23 HAYASHI and voluntarily and intentionally assumed responsibility for his care and custody, as well as 24 for providing for all of his custodial needs while ensuring his health, safety, and well-being. Therefore, at 25 all relevant times, DEFENDANTS owed statutory, regulatory, and custodial duties to HAYASHI to 26 provide for his custodial needs, health, safety, and well-being. 27 22. Despite these duties, DEFENDANTS consciously disregarded the substantially high risk that 28 HAYASHI would suffer serious physical injuries if DEFENDANTS denied or withheld basic custodial 5 COMPLAINT FOR DAMAGES 1 care, such as providing sufficient supervision and care plans, monitoring and observing him, and 2 providing assistance as needed. DEFENDANTS willfully, intentionally, and recklessly caused or 3 permitted HAYASHI to be injured by their abandonment of him in their own vehicle placing him in a 4 situation such that his life, health and safety was in danger when he was insufficiently monitored and 5 supervised despite DEFENDANTS’ knowledge that HAYASHI was at a high risk for injury. As a direct 6 and proximate result of DEFENDANTS’ conduct, HAYASHI suffered pain, injury and ultimately death. 7 23. Even with the knowledge of HAYASHI’s special care needs, the FACILITY failed to adequately 8 provide the proper custodial care that HAYASHI required for his well-being. The FACILITY knew or 9 should have known that it could not meet HAYASHI’s needs, and therefore had a duty to transfer him to 10 a facility which could ensure his health and safety. Yet, the FACILITY failed to promptly transfer 11 HAYASHI to a facility which could meet his needs, thus causing him to suffer the injuries detailed supra. 12 24. The injuries that HAYASHI suffered were due to DEFENDANTS’ failure to provide basic 13 custodial services to him, such as sufficient supervision, development and/or implementation of care 14 plans, monitoring and observing him, providing assistance as needed, and the failure to provide the extra 15 services HAYAHI contracted for with the FACILITY including providing escort services wherein, for 16 HAYAHI’s safety and well-being, FACILITY staff were to personally escort HAYASHI to and from 17 meals, activities and transportation for medical appointments. As demonstrated by the complaints filed 18 against the FACILITY with the DSS since at least 2021, several of which pertain to DEFENDANTS’ 19 failure to provide appropriate monitoring, supervision, care plans, training, and a safe environment, as 20 well as prior instances of DEFENDANTS’ failures resulting in HAYASHI sustaining fall injuries, 21 DEFENDANTS’ failure to provide for the contracted escort service, DEFENDANTS’ neglect of 22 HAYASHI was not a one-time mistake; rather, HAYASHI’s injuries were such that they resulted from a 23 pattern of reckless neglect by DEFENDANTS. 24 25. Despite the DEFENDANTS’ knowledge of its past failures to provide appropriate monitoring, 25 supervision, care plans, training, and a safe environment, they recklessly failed to remedy these 26 deficiencies and continued to violate the law by withholding necessary goods and services in the care of 27 its residents. 28 26. “Abuse,” as it relates to elders, is defined at Welfare and Institutions Code section 15610.07 as 6 COMPLAINT FOR DAMAGES 1 either: “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting 2 physical harm or pain or mental suffering”; or “the deprivation by a care custodian of goods or services 3 that are necessary to avoid physical harm or mental suffering.” “Abandonment” is defined as the 4 desertion or willful forsaking of an elder by anyone having care or custody of that person under 5 circumstances in which a reasonable person would continue to provide care and custody. Welfare and 6 Institutions Code section 15610.05. 7 27. “Neglect,” as it relates to elders, is defined at Welfare and Institutions Code section 15610.57 as 8 “[t]he negligent failure of any person having the care and custody of an elder or a dependent adult to 9 exercise that degree of care that a reasonable person in a like position would exercise,” and includes but 10 is not limited to the: “[f]ailure to protect from health and safety hazards”; “failure to assist in personal 11 hygiene, or in the provision of food, clothing, or shelter”; and “failure to provide medical care for 12 physical and mental health needs.” (Welf. & Inst. Code, § 15610.57, subds. (b)(1)-(4).) Failure to 13 exercise the degree of care that a reasonable person in a like position would exercise with respect to 14 caring for elders, then, can constitute neglect and therefore abuse of an elder. 15 28. Additionally, regulations such as those set forth infra demonstrate the care and services that 16 RCFE’s are required to provide pursuant to state regulations. Said regulations are appropriate in 17 determining that DEFENDANTS’ conduct amounted to physical abuse, neglect and abandonment per se, 18 as well as recklessness, oppression, or malice. DEFENDANTS were required to provide care and 19 services as detailed supra to HAYASHI yet failed to operate and provide services in compliance with all 20 applicable codes and regulations, and with accepted standards and principles that apply to those 21 providing services to residents of RCFE’s. 22 29. The conduct of DEFENDANTS, as alleged herein, constitutes “neglect of an elder or dependent 23 adult” as defined in Welfare and Institutions Code section 15610.57 in ways which include but are not 24 limited to: 25 a. Failure to protect from health and safety hazards such that HAYASHI suffered serious injuries 26 from being abandoned on the floor of MORNINGSTAR’s vehicle for several hours; 27 b. Failure to provide sufficient assessments; and 28 c. Failure to provide contracted services, including personal escort services; and 7 COMPLAINT FOR DAMAGES 1 d. Failure to develop and implement adequate care plans. 2 30. By engaging in the conduct, neglect, abandonment and abuse, as alleged herein, despite the 3 known risks, DEFENDANTS and its managing agents’ actions were malicious, oppressive, fraudulent, 4 and/or reckless. DEFENDANTS were aware or should have been aware that HAYASHI was at risk of 5 the aforementioned injuries upon his admission to the FACILITY. Despite knowledge of the risks of 6 harm to HAYASHI, DEFENDANTS and its managing agents neglected, abandoned, and denied or 7 withheld the necessary services, or authorized or ratified these actions, with knowledge that injury was 8 substantially certain to result, or at a minimum with conscious disregard of the high probability that 9 injury would result. 10 31. By engaging in the conduct, neglect, abuse and abandonment, as alleged supra, due in part to a 11 profit scheme by which the DEFENDANTS and its managing agents undercapitalized, understaffed, and 12 undertrained its employees despite the known risks, while at the same seeking to increase residency rates 13 to increase revenue, DEFENDANTS’ actions were despicable, malicious, oppressive, fraudulent, and/or 14 reckless. Abandoning HAYASHI, an elder and dependent adult, in the FACILITY’s van for 15 approximately 6 (six) hours with no food, water or means to call for assistance is inexcusable and 16 deplorable conduct constituting neglect, abuse and abandonment. Further, DEFENDANTS failure to 17 have policies and procedures in place to ensure residents, such as HAYASHI, were actually returned 18 safely to the FACILITY and appropriately monitored following being transported by DEFENDANTS to 19 medical appointments despite knowledge of the risks of harm to residents, such as HAYASHI, 20 DEFENDANTS and its managing agents neglected, abandoned, and denied or withheld the necessary 21 services, or authorized or ratified these actions, with knowledge that injury was substantially certain to 22 result, or at a minimum with conscious disregard of the high probability that injury would result. 23 Moreover, DEFENDANTS’ repeated failure to provide the extra services it contracted to provide to 24 HAYASHI, such as to provide personal escort services to meals, activities and medical transportation, 25 was a pattern of reckless neglect by DEFENDANTS resulting in HAYASHI being abandoned, face down 26 on the floor of DEFENDANTS’ van for approximately 6 (six) hours and causing HAYASHI’s injuries. 27 32. DEFENDANTS and its managing agents each willfully, intentionally, and/or recklessly caused or 28 permitted HAYASHI to be injured and/or placed in a situation such that his health was in danger, as set 8 COMPLAINT FOR DAMAGES 1 forth supra. DEFENDANTS’ actions as alleged supra created circumstances or conditions likely to cause 2 great bodily harm, and as such DEFENDANTS’ willfully caused HAYASHI to suffer unjustifiable 3 physical and emotional pain, injuries, damages, indignity and ultimately death. 4 33. Because of the despicable, malicious, oppressive, fraudulent, and/or reckless nature of 5 DEFENDANTS’ and its managing agents’ conduct or authorization or ratification, an award of punitive 6 damages and attorney fees and costs in a sum according to proof at trial is therefore justified and 7 appropriate. 8 SECOND CAUSE OF ACTION 9 NEGLIGENCE 10 [By HAYASHI, by and through his Successors in Interest, Brian Hayashi and Kristen 11 Hayashi, against all DEFENDANTS] 12 34. PLAINTIFFS hereby incorporate by reference the allegations set forth supra. 13 35. By accepting HAYASHI as a resident, DEFENDANTS voluntarily and intentionally assumed 14 responsibility for providing supervisory and custodial care and services to HAYASHI and protecting him 15 from health and safety hazards during his residency at the FACILITY. DEFENDANTS were required to 16 provide care and services in a manner consistent with RCFE statutes and regulations. DEFENDANTS 17 were required to exercise the degree of care that a reasonable facility in a like position would exercise 18 with respect to ensuring that HAYASHI did not suffer injury. However, DEFENDANTS breached those 19 duties by failing to prevent him from being abandoned and left unattended in DEFENDANTS’ vehicle 20 for many hours and failed to make sure that appropriate interventions, supervision, training, safety 21 procedures, and care plans were adequate and actually implemented. Such failures caused HAYASHI to 22 suffer from the injuries and death described herein. 23 36. DEFENDANTS were required to provide care and services to HAYASHI in accordance with 24 state statutes and regulations. As an RCFE, its agent, owner, operator, alter ego, DEFENDANTS were 25 required to abide by their statutory and regulatory obligations that included but are not limited to 26 ensuring that their residents, including HAYASHI, received proper care, supervision, and assistance, as 27 detailed supra. DEFENDANTS failed to abide by such regulations. These statutes and regulations were 28 designed in order to prevent residents of RCFE’s like HAYASHI from experiencing the type of harm and 9 COMPLAINT FOR DAMAGES 1 injuries that HAYASHI suffered. As such, DEFENDANTS’ conduct constitutes negligence per se, as the 2 breaches of DEFENDANTS’ statutory and regulatory obligations, including but not limited to California 3 Code of Regulations section 87468.2(a)(4), caused severe injury and death to HAYASHI. 4 37. DEFENDANTS’ acts and omissions as alleged supra were the direct, actual, legal, and proximate 5 cause of HAYASHI’s injuries and death. 6 38. The injuries that HAYASHI suffered were foreseeable, as DEFENDANTS knew or should have 7 known that its failure to provide him with the proper care and assistance as ordered was likely to lead to 8 exactly the type of harm and injury that he suffered as a result of their acts and omissions. Therefore, 9 DEFENDANTS had actual notice that the failure to provide the proper care as required was substantially 10 likely to result in serious harm and death to HAYASHI. 11 39. But for DEFENDANTS’ conduct and breaches of duty as detailed supra, HAYASHI would not 12 have suffered illness, injury, and death. 13 40. Furthermore, DEFENDANTS are liable for the negligent and tortious acts of their agents, 14 employees, and alter egos through the legal doctrines of direct and vicarious liability. DEFENDANTS’ 15 employees and agents breached the standards of care as detailed herein in the scope of their employment 16 and agency, and such acts and omissions were the direct, actual, legal, and proximate cause of 17 HAYASHI’s injuries. As such, DEFENDANTS are vicariously liable for the acts and omissions of each 18 other. 19 41. As a result of DEFENDANTS’ acts and omissions as detailed supra, HAYASHI suffered 20 damages in an amount according to proof at trial, including damages for HAYASHI’s pre-death pain and 21 suffering pursuant to Code of Civil Procedure section 377.34, subdivision (b). 22 THIRD CAUSE OF ACTION 23 WRONGFUL DEATH 24 [By Brian Hayashi and Kristen Hayashi, as individuals, against all DEFENDANTS] 25 42. PLAINTIFFS hereby incorporate by reference the allegations set forth supra. 26 43. As a result of DEFENDANTS’ acts and omissions as detailed supra, HAYASHI died on July 22, 27 2023. 28 44. DEFENDANTS were obligated to protect HAYASHI from the abuse, neglect, abandonment and 10 COMPLAINT FOR DAMAGES 1 negligence alleged supra, which ultimately caused and/or hastened HAYASHI’s death. DEFENDANTS 2 breached those duties by failing to prevent HAYASHI from suffering abandonment, the ensuing life- 3 threatening injuries, and ultimately death. 4 45. The breaches of DEFENDANTS’ duties caused injury and death to HAYASHI. 5 46. DEFENDANTS’ acts and omissions as alleged supra were the direct, actual, legal, and proximate 6 causes of HAYASHI’s injuries and death. 7 47. Prior to HAYASHI’s death, Brian Hayashi and Kristen Hayashi enjoyed the love, society, 8 comfort, and attention of their loving father, HAYASHI. 9 48. As a proximate result of the acts and omissions alleged herein of DEFENDANTS, Brian Hayashi 10 and Kristen Hayashi sustained the loss of love, society, comfort, and attention of their loving father, 11 HAYASHI, for which they seek general damages. 12 49. As a further result of the acts and omissions of DEFENDANTS as alleged supra, Brian Hayashi 13 and Kristen Hayashi incurred other expenses for the funeral and burial of HAYASHI, for which they 14 seek special damages. 15 PRAYER FOR RELIEF 16 WHEREFORE, PLAINTIFFS pray for judgment and damages as follows: 17 1. For pre-death pain and suffering pursuant to Code of Civil Procedure section 377.34, subdivision 18 (b), and Welfare and Institutions Code section 15657 against DEFENDANTS 19 2. For general damages according to proof against DEFENDANTS; 20 3. For special damages according to proof against DEFENDANTS; 21 4. For attorney’s fees against DEFENDANTS; 22 5. For punitive and exemplary damages against DEFENDANTS; 23 6. For costs of suit against DEFENDANTS; 24 25 26 27 28 11 COMPLAINT FOR DAMAGES 1 7. For pre-judgment and post-judgment interest, according to law, against DEFENDANTS; 2 8. For such other and further relief as the Court deems just and proper. 3 4 5 Dated: July 8, 2024 McMAHAN & CARROLL PC 6 7 By: ______________________________ 8 CARL A. McMAHAN, ESQ. RICHARD D. CARROLL, ESQ. 9 SHEILA J. STARVISH, ESQ. Attorneys for Plaintiffs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 COMPLAINT FOR DAMAGES