Preview
CAUSE NO. 2014-54027
BRADLEY MCDANIEL § IN THE DISTRICT COURT OF
Plaintiff, §
§
§ HARRIS COUNTY, TEXAS
§
BP AMERICA, INC., BP P.L.C., BP §
AMERICA PRODUCTION CO., AND §
MARK EDWARD COBB § 152 JUDICIAL DISTRICT
Defendants.
PLAINTIFF’S MOTION TO REINSTATE
TO THE HONORABLE JUDGE ROBERT SCHAFFER:
Plaintiff, BRADLEY ANIEL Plaintiff , files his Motion to Reinstate Cause Number
-54027, which was dismissed on 13 June 2017 after a brief hearing on 26 May 2017 and
after the Defendants filed a “Motion for Summary Judgement on Causation” on 28 March 2017 -
followed by a “Reply in Support of Summary Judgement on Causation” on 24 May 2017 - that
has now been exposed as blatantly dishonest given the facts and evidence that have long been
available in this case. The Plaintiff terminated his attorneys on 28 September 2017 with good
cause”, and reported their misconduct and potentially illegal actions to the appropriate
authorities and the Texas State Bar Association (further detailed below). Up to this date, the
Plaintiff’s attorneys misrepresented to the Plaintiff that his case had not been finally dismissed
only that “exemplary damages” for his knee injury had been ruled out and that hearings were still
pending for the “remaining causations” in his case. During this time, the Plaintiff’s former
attorneys asked for the Plaintiff to be patient as they were negotiating the terms of a settlement
with the BP Defendants. Only after recent discussions with Court Clerk, Katina Williams, did the
Plaintiff learn that his former attorneys’ representation of the status of his case was in fact false.
During the time these motions for summary judgment were being heard, the Plaintiff’s
former attorneys did not inform him that such motions had been filed, nor that they had
responded to them, nor that a hearing critical to his case was even taking place – this despite that
during this very time, the Plaintiff made multiple request for case updates and made requests for
his complete legal file. After the summary judgement was ruled in favor of the Defendants on 13
June 2017, the Plaintiff’s former attorneys incorrectly informed him that the summary judgement
only effected “Exemplary Damages” due to his knee injury and that hearing on the remaining
causations in his case would be heard in the near future – including “Fraud”, “Intentional
Infliction of Emotional Distress”, and others. The Plaintiff had been very active in
communications with his former attorneys and keeping up with, not only the developments in his
case, but also in the cases consolidated with his for the purpose of discovery. The Plaintiff was
shocked that he was not informed that a hearing critical to his case was taking place, not to
mention that he was not able to review his former attorney’s responses to the Defendants
“Motion for Summary Judgement” before they were filed with the court nor informed what they
were and were not, even after they were filed. After demanding multiple times to see what his
former attorneys had submitted and “argued” on his behalf, his former attorneys provided him
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with the filing and some of the exhibits several weeks after the 13 June 2017 ruling against him.
The Plaintiff was shocked to find out his former attorneys had left out key evidence in his case.
Most troubling was the Plaintiff’s former attorneys’ blatant omission of the key facts that
led multiple FBI agents to strongly encourage the Plaintiff to pursue legal action against the BP
Defendants in the first place – namely the fact that the SARL BAAT labor strikers who the BP
Defendant’s tasked to “guard” the Plaintiff’s drilling rig, were known to the BP Defendants to be
Al Qaeda linked dating years before the crisis (Exhibit A, “V. Facts 5.01-5.08”). This was key to
the knee injury, “exemplary damages” argument on behalf of the Plaintiff because it was these
Al Qaeda linked labor striking “guards” who sounded the false alarm at an opportune time
around 04:30 a.m. on 17 January 2013 causing the Plaintiff to rush off his exposed position on
top of the Wellsite Leaders office injuring his knee. Clear evidence, including the BP
Defendant’s own “Confidential” evidence dating from the weeks surrounding the crisis,
establishes the Plaintiff’s actions took were in fact necessary and saved lives during the 4 day
siege. Also, the Plaintiff had multiple other encounters with these Al Qaeda linked, labor striking
“Guards” before and during the 4 siege that could have easily resulted in other physical injuries
or even additional deaths – the Plaintiff argues that by the BP Defendants gross negligence, at
best, in sourcing these individuals as “Guards”, in order to launder safe payment money to the
emir of Al Qaeda, Abou Zeid (Exhibit A, “V. Facts 5.01-5.08”), BP was directly responsible for
the Plaintiff’s knee injury. Tellingly, BP’s knowledge beforehand of the SARL BAAT labor
strikers links to Al Qaeda and other key evidence was clearly included in the 27 page “Mediation
Memorandum” dated 20 February 2017 signed by his former attorney, Brent Allison (Exhibit B).
After demanding his complete file multiple times and asking for answers to specific questions he
3
had from his previous attorneys, the Plaintiff was given only very minimal answers and
incomplete evidence. After giving his attorneys ample time to answer his questions, the Plaintiff
fired his attorneys on 28 September 2017 in a 43 page letter detailing the “good cause” in their
termination (Exhibit C). This letter specifically cites and details the reason for their termination
being “Conflict of Interest”, “Breach of Fiduciary Duty”, “Unethical Conduct”, “Potentially
Illegal Conduct”, “Deceitful Conduct”, “Blatant Dishonesty”, “withholding of key evidence”
(without consulting Plaintiff), “withholding key statements in (Plaintiff’s) answers to BP’s
interrogatories” (without consulting Plaintiff), and other very disturbing and telling misconduct.
One such telling fact detailed in this termination letter is that despite “representing” the Plaintiff
for over 3 years, the Plaintiff’s former attorney, Brent Allison, “hasn’t asked a single question in
a single deposition yet” on behalf of the Plaintiff. In just one example, the Plaintiff’s fellow BP
America Wellsite Leader, Billy Glenn Whitted and Texas resident was arguably the biggest
accessible witness in substantiating the Plaintiff’s account of what actually occurred on the
drilling rig during the 4 day siege 16-19 January 2013. Mr. Whitted was scheduled for a
deposition on 7 February 2017 but after meeting with the BP Defendants legal team in
preparation for the deposition, tellingly, Mr. Whitted refused to take any further advice from the
BP Defendant’s legal team, demanded his own attorney as an individual, and canceled his
deposition. Tellingly, the Plaintiff’s attorneys allowed the case to move on without taking his
deposition. Again and in fact, the Plaintiff former attorney, Brent Allison, didn’t ask a singled
question in a single deposition. In this termination letter, the Plaintiff informed his former
attorneys that he was reporting them to the FBI, Texas Attorney General’s Office, and Texas Bar
Association – all of which the Plaintiff has done. Only after notifying his former attorneys of this
in their termination letter did Brent Allison mail him a thumb drive containing key evidence
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relevant to his case that was produced in other cases consolidated with his dating as far back as
2015! Suspiciously and tellingly, this key evidence along with other key evidence was not
submitted or argued on behalf of the Plaintiff in the hearing for the Defendant’s “Motion for
Summary Judgement” held without the Plaintiff’s knowledge on 26 May 2017. This evidence,
which was not heard, substantiates the Plaintiff’s account as not only honest, but in fact quite
accurate – while exposing the BP Defendant’s attorneys’ assertions during hearings and filings,
including their “Motion for Summary Judgement”, as blatantly dishonest versus the BP
Defendants own evidence dating back to the time of the crisis. Regardless of the Plaintiff’s
former attorneys’ motives for withholding this key evidence, their misconduct it is not the fault
of the Plaintiff. It is in the interest of justice and only fair that the evidence they withheld be
heard by the court on behalf of the Plaintiff.
Additionally, the evidence the Plaintiff recovered after terminating his attorneys on 28
September 2017 warrant additional, more severe causations in this petition – including naming
additional BP employees as defendants as individuals - with the most obvious being the BP
Defendants’ “Civil Conspiracy to Commit Fraud”, in addition to the “Fraud” we asserted as an
independent causation in our original petition - as laid out in the Plaintiff’s “Second Amended
Petition” filed with the court on 12/1/2017 (Exhibit A). The evidence laid out in this Second
Amended Petition substantiates the Plaintiff’s terrible experience working for the BP
Defendants, as mocked by the BP Defendant’s arguments and filings in this case, including their
now blatantly dishonest “Reply in Support of Summary Judgement on Causation” on 24 May
2017.
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Additionally, upon review of the evidence in this case as laid out in the Plaintiff’s
“Second Amended Petition”, as well as the Plaintiff’s 27 page “Mediation Memorandum” dated
20 February 2017, which was signed by the Plaintiff’s then attorney - obvious “Federal
Questions” become apparent in hearing the Plaintiff’s case – including but not limited to the
application of Federal Whistle Blower protection laws including but not limited to the Sarbanes-
Oxley Act of 2002. Also, in naming the obvious, additional BP Defendants as individuals in this
case, the “Diversity” question is also met in warranting this case be heard in Federal Court.
Respectfully submitted,
BRAD MCDANIEL
_____________________________
Brad McDaniel
Texas Board of Professional Engineers EIT #36030
3803 St Andrews Ct
Midland, Texas 79707
Telephone (432) 214-7915
Brad0606@hotmail.com
PLAINTIFF “Pro Se”
6
NOTICE OF HEARING
The above motion is set for hearing on _________________ at ___________. m.
at the _________________________ County Courthouse, located at:
______________________________________________________________________________
Physical Address of Court House City State Zip
____________________________________________
Signature of Judge or Clerk
Certificate of Service
I will give a copy of this document to each party or attorney of record on the same day this
document is filed with the Court as follows:
If I file this document electronically, I will send a copy of it to each party or attorney of record
through the electronic file manager if possible. If not possible, I will give a copy to each party or
attorney of record in person, by mail, by commercial delivery service, by fax, or by email.
If I file a paper copy of this document, I will give a copy of it to each party or attorney of record
in person, by mail, by commercial delivery service, by fax, or by email.
_ _20 December 2017_____
Brad McDaniel Date
7
Related Content
in Harris County
Ruling
Bailey vs. Olsen
Jul 18, 2024 |
24CV-0204127
BAILEY VS. OLSEN
Case Number: 24CV-0204127
Tentative Ruling on Motion for Order Granting Prioritized Trial Setting:
Plaintiff Rowland Bailey, by and through his Guardian Ad Litem, Shalana Bailey brings a motion under Code of
Civil Procedure section 36, subdivision (c), for preference in setting trial. The motion is unopposed by Defendant
Caleb Olsen.
Merits of Motion: Code of Civil Procedure section 36 provides, in relevant part, as follows:
(c) A civil action to recover damages for wrongful death or personal injury shall
be entitled to preference upon the motion of any party to the action who is under
14 years of age unless the court finds that the party does not have a substantial
interest in the case as a whole.
(f) Upon the granting of such a motion for preference, the court shall set the
matter for trial not more than 120 days from that date…
Here, Plaintiff has satisfied the requirements of CCP § 36(c). Plaintiff is only 10 years old. Defendant does not
oppose the motion on the merits.
Finally, upon granting of a motion for preference, the clerk of the Court is required to set the case for trial not
more than 120 days from the date the order is made. Here, the trial date is currently set outside of that timeframe.
The Court will need to re-set the trial for a date no later than November 12, 2024. The date of November 12,
2024 is not a trial date. The closest trial date without going over the 120 days is November 5, 2024.
The motion is GRANTED. A proposed order was lodged with the Court and will be modified to conform to the
filing ruling. The trial date of December 17, 2024, and the mandatory settlement conference set for October 21,
2024 are VACATED. The Court notes that, upon granting a motion for preference, the clerk of the Court is
required to set the case for trial not more than 120 days from the date the order is made. The Court intends to set
trial no later than November 5, 2024, in compliance with CCP § 36. An appearance is necessary to provide
the Court with acceptable trial and mandatory settlement conference dates.
Ruling
WHITLEY RACHELL WILKINS VS FOOT LOCKER RETAIL, INC., A NEW YORK CORPORATION, ET AL.
Jul 16, 2024 |
22STCV26196
Case Number:
22STCV26196
Hearing Date:
July 16, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 16, 2024
CASE NUMBER
:
22STCV26196
MOTIONS
:
Motion to be Relieved from Waiver of Objections to Form Interrogatories and Special Interrogatories (Set One)
MOVING PARTY:
Defendant/Cross-Complainant Foot Locker Retail, Inc.
OPPOSING PARTY:
Cross-Defendant A.J. Molino & Associates, Inc.
BACKGROUND
Defendant/Cross-Complainant Foot Locker Retail, Inc. (Cross-Complainant), moves for relief from waiver of objections to Cross-Defendant A.J. Molino & Associates, Inc.s (Cross-Defendant) Form Interrogatories, Set One and Special Interrogatories, Set One. Cross-Defendant opposes and Cross-Complainant replies.
LEGAL STANDARD
A party who fails to serve a timely response to interrogatories waives any objection to the demand, including based on privilege or work product, unless the court finds that the party has subsequently served a response that is in substantial compliance and the partys failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2030.290(a).)
The Civil Discovery Act does not include a definition of substantial compliance, and few cases have addressed the circumstances under which a response will be deemed not in substantial compliance. (See
St. Mary v. Superior Court
(2014) 223 Cal.App.4th 762, 778 (
St. Mary
).) Substantial compliance means actual compliance with respect to the substance essential to every reasonable objective of the statute. (
Id
. at 779.) However, substantial compliance should not be understood as requiring actual compliance with every specific statutory requirement. (
Ibid
.)¿¿
¿
A court may not find that only some portions of a document containing responses are code-
compliant, but
must instead determine whether the document as whole substantially complies. (
St. Mary
,
supra
, 223 Cal.App.4th at 77980 [this position is supported by the fact that there is an effective statutory vehicle to compel a responding party to cure unsatisfactory responses].)¿
The statutory language mistake, inadvertence, or excusable neglect in the discovery statute should be interpreted using the same general principles developed in application of the identical language in section 473, subdivision (b). (
Scottsdale Ins. Co. v. Superior Court
(1997) 59 Cal.App.4th 263, 275.) Although the party moving for relief under section 473 has the burden to show that the mistake, inadvertence, or neglect was excusable, any doubts as to that showing must be resolved in favor of the moving party. (
New Albertsons, Inc. v. Superior Court
(2008) 168 Cal.App.4th 1403, 1420.)¿¿
DISCUSSION
Cross-Defendant served Form Interrogatories, Set One and Special Interrogatories, Set One on Cross-Complainant on March 5, 2024. The responses were originally due April 5, 2024. (Sohrabian Decl. ¶ 2-3.) These responses were served on prior counsel. During this time, Cross-Complainant changed representation and the case file was being transferred to current counsel (who moved to a different firm). Current counsel substituted into this case on April 22, 2024. (
Id.
¶ 5.) However, the file still had not been transferred. As a result, Cross-Complainant requested an extension to May 31, 2024, which Cross-Defendant granted. However, [o]n Friday, May 31, 2024, our office experienced technical issues with the file, so our office emailed Cross-Defendants counsel in the evening that we would have responses by Monday morning, June 3, 2024. On June 3, 2024, Cross-Defendants counsel indicated that he had not granted the extension and therefore objections were waived. (
Id.
¶ 10-11.) Cross-Complainants counsel, Tiffany E. Sohrabian, declares that [o]ur firm explained that we were having technical issues and a further extension was granted to Wednesday, June 5, 2024. (
Id.
¶ 12.) On June 5, 2024, Cross-Complainant served Cross-Defendant with discovery responses. (
Id.
¶ 13.)
In opposition, Cross-Defendant confirms that extensions were granted until Friday, May 31, 2024. However, on Monday, June 3, 2024, after seeing the May 31, 2024 email, Cross-Defendant stated that responses without objections were due by June 3, 2024. (Kim Decl. ¶ 24, Exh. J.) Cross-Complainant requested an extension by June 5, 2024 and asked for the discovery to be re-sent because the files could not be opened. (
Id.
, Exh. J.) Cross-Defendant then re-sent the discovery on June 3 and expected responses without objections by June 5, 2024. (Kim Decl. ¶ 2526.) Cross-complainant provided responses on June 5, 2024. (
Id.
¶ 28.)
Cross-Defendant argues that counsel acted negligently by attempting to complete the responses at the end of the day when they were due. (Opp., 5.) It also argues that the responses are not substantially compliant.
Cross-Complainant describes the technical issues with the file with limited detail and asserts in reply, without a supporting declaration, that when Defendant Foot Lockers counsel attempted to open the discovery documents on May 31, 2024, in order to complete the responses, she discovered that the files were corrupted and she was unable to open them.
Further, she was unable to obtain another copy of the discovery documents on May 31, 2024, because she did not realize this until after the end of the business day. (Reply, 2.) Counsel further argues that counsel served the responses as soon as possible once she obtained the discovery documents from Cross-Defendants counsel. (
Id
.)
However, it appears that when Cross-Complainant did receive the re-served electronic versions of discovery on June 3, Cross-Complainant did not complete the responses on the same day, and did not provide them until June 5, and indeed requested until June 5 to provide responses rather than offering to provide them the same day. Cross-Complainant does not explain the further untimeliness or otherwise provide a basis for the Court to find excusable neglect. This delay undermines Cross-Complainants argument that a technical issue resulted in delay.
CONCLUSION AND ORDER
Accordingly, Cross-Complainant Foot Locker Retail, Inc.s Motion to be Relieved from Waiver of Objections to Form Interrogatories and Special Interrogatories (Set One) is DENIED.
Moving party to provide notice
and file a proof of service of such
.
Ruling
STARGARDT vs O'NEILL
Jul 16, 2024 |
CVPS2305945
Demurrer to First Amended Cross-
CVPS2305945 STARGARDT vs O'NEILL
Complaint
Tentative Ruling: Overruled.
Plaintiff/Cross Defendant to file their answer to 1st Amended Cross Complaint within 20 days of this
order becoming final.
Defendant/Cross Complainant to provide notice pursuant to CCP § 1019.5.
Plaintiff Scott Stargardt (“Stargardt”) alleges Defendant Helen O’Neill (“O’Neill”) owns a mobile home
located at 74711 Dillon Road, Space 416 in Desert Hot Springs, which Stargardt rented. Stargardt
alleges there were various problems at the property which O’Neill did not resolve and instead turned
off utilities.
On December 7, 2023, Stargardt filed this action. On May 22, 2024, Stargardt filed his operative First
Amended Complaint alleging ten (10) causes of action: 1) Unfair & Unlawful Business Practices
(Violation of Bus. & Prof. Code, § 17200); 2) Wrongful interruption of a utility service (Civ. Code, §
789.3); 3) Breach of Covenant of Quiet Enjoyment (Civ. Code, § 1297); 4) Breach of Warranty of
Habitability Pertaining to Interior Maintenance (Civ. Code, § 1941.1); 5) Breach of Warranty of
Habitability pertaining to Exterior Maintenance (Civ. Code, § 1941.1); 6) Negligence; 7) Intentional
Infliction of Emotional Distress; 8) Nuisance; 9) fraud, deceit, misrepresentation; and 10) unjust
enrichment.
On April 25, 2024, O’Neill filed her operative First Amended Cross-Complaint (“FAXC”) alleging three
(3) causes of action: 1) fraud, deceit and misrepresentation; 2) breach of contract; and 3) elder abuse.
Stargardt now demurs to each cause of action on the ground it fails to state facts sufficient to
constitute a defense and is uncertain. (C.C.P., § 430.10(e), (f).) Stargardt states his motion is timely
and he gave proper notice and met and conferred in good faith. Stargardt argues O’Neill has not
alleged sufficient facts to state any claim and the elder abuse claim is untimely under the two-year
statute of limitations of C.C.P., § 335.1.
No demurrer opposition filed.
Demurrer
In evaluating a demurrer, the court gives the pleading a reasonable interpretation by reading it as a
whole and all of its parts in their context. (Moore v. Regents of University of California (1990) 51
Cal.3d 120, 125). The court assumes the truth of all material facts which have been properly pleaded,
of facts which may be inferred from those expressly pleaded, and of any material facts of which
judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666,
672).
1st Cause of Action – Fraud
The elements of an action for fraud and deceit based on concealment are: (1) the defendant
concealed a material fact; (2) the defendant had a duty to disclose the fact to the plaintiff; (3) the
defendant intentionally concealed the fact with intent to defraud; (4) the plaintiff was unaware of the
fact and would not have acted had she or he had knowledge of the concealed fact; and (5) the plaintiff
sustained damages as a result of the concealment. (Blickman Turkus, LP v. MF Downtown
Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.) A defendant does not have to owe the plaintiff a
fiduciary duty in order to be liable for fraudulent concealment. (Warner Const. Corp. v. L.A. (1970) 2
Cal.3d 285, 294.) When a fiduciary duty does not exist, a claim for fraudulent concealment can arise
in three instances: “(1) the defendant makes representations but does not disclose facts which
materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are
known or accessible only to defendant, and defendant knowns they are not known to or reasonably
discoverable by the plaintiff; and (3) the defendant actively conceals discovery from the plaintiff.” Id.
Where the defendant has exclusive knowledge, the duty to disclose may arise from a transactional
relationship between the parties. (LiMandri v. Judkins (1997) 52 Cal.App.4th 328, 336-337.)
Although fraud claims required a heightened pleading standard, it is not practical to allege facts
showing how, when and by what means something did not happen. (Alfaro v. Community Housing
Improvement System Planning Assn. (2009) 171 Cal.App.4th 1356, 1384.) However, if the
concealment is based on providing false or incomplete statements, the pleading must at least set forth
the substance of the statements at issue. (Id.) Additionally, the specificity requirement of fraud is
“relaxed when it is apparent from the allegations that the defendant necessarily possesses knowledge
of the facts.” (Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 27.)
Stargardt contends that this cause of action fails because of lack of specificity. However, O’Neill has
sufficiently alleged Stargardt failed to disclose his dogs were not well-behaved and would attack and
used said information to induce O’Neill to lease her property to him. These allegations are sufficient.
Any other information would be more within Stargardt’s knowledge than O’Neill’s which would allow
for the relaxing of the specificity requirements for fraud. (Quelimane Co., supra, 19 Cal.4th at 27.)
OVERRULED.
2nd Cause of Action – Breach of Contract
“The elements of breach of contract are ‘(1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’” (Kumaraperu v.
Feldsted (2015) 237 Cal.App.4th 60, 70 [quoting Careau & Co. v. Sec. Pac. Business Credit, Inc.
(1990) 222 Cal.App.3d 1371, 1388].) “If the action is based on alleged breach of a written contract,
the terms must be set out verbatim in the body of the complaint or a copy of the written agreement
must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74
Cal.App.4th 299, 307.) O’Neill has sufficiently alleged the terms of the contract. OVERRULED.
3rd Cause of Action – Elder Abuse
Abuse of an elder or a dependent adult means any of the following: (a) physical abuse, neglect,
financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or
pain or mental suffering. (b) The deprivation by a care custodian of goods or services that are
necessary to avoid physical harm or mental suffering. (c) Financial Abuse….” (Welf. & Inst. §
15610.07.) Section 15610.30 provides in pertinent part:
(a) “Financial abuse” of an elder or dependent adult occurs when a person or entity does any
of the following:
(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both.
(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property
of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting,
appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult
by undue influence, as defined in Section 15610.70.
(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or
retained property for a wrongful use if, among other things, the person or entity takes,
secretes, appropriates, obtains, or retains the property and the person or entity knew or should
have known that this conduct is likely to be harmful to the elder or dependent adult.
(c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or
retains real or personal property when an elder or dependent adult is deprived of any property
right, including by means of an agreement, donative transfer, or testamentary bequest,
regardless of whether the property is held directly or by a representative of an elder or
dependent adult.
Here, O’Neill has alleged a variety of actions by Stargardt, including that he has rekeyed the home,
installed a wall to prevent access, and refused O’Neill any access. (FAXC,¶ 34.) This is sufficient to
constitute a taking or appropriation of her property depriving her of any property right. OVERRULED.
Ruling
RYAN CALDWELL VS VIRGINIA LOUISE BEABOA, ET AL.
Jul 16, 2024 |
22STCV39573
Case Number:
22STCV39573
Hearing Date:
July 16, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 16, 2024
CASE NUMBER
:
22STCV39573
MOTIONS
:
Motion to be Relieved as Counsel
MOVING PARTY:
Plaintiff Ryan Caldwells Counsel
OPPOSING PARTY:
None
BACKGROUND
Plaintiff Ryan Caldwells
(Plaintiff) counsel of record, Khashayar Eshraghi (Counsel), moves to be relieved as counsel for Plaintiff. Counsel contends relief is necessary because there has been a breakdown in the attorney-client relationship.
No opposition has been filed for this motion.
LEGAL STANDARD
To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal.
An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See
Vann v. Shilleh
(1975) 54 Cal.App.3d 192, 197;
People v. Prince
(1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (
Hodcarriers, Bldg. and Common Laborers Local Union No. 89
v. Miller
(1966) 243 Cal.App.2d 391.)
The rules have been liberally construed to protect clients. (
Vann v. Shilleh
, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules. (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (
Pineda v. State Bar
(1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the clients case. (CRPC 3.700(A)(2);
Vann v. Shilleh
, supra.)
DISCUSSION
Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required.
(Cal Rules of Court, rule 3.1362.)
Counsel states the instant motion is filed for the following reason: This motion is based upon the grounds that there has been an irremediable breakdown in the attorney-client relationship that stands in the way of effective representation.
(MC-052.)
Counsel has provided information for all future proceedings in this case.
Additionally, Counsel has been unable to confirm Plaintiffs address despite mailing the motion papers to Plaintiffs last known address, return receipt requested, calling Plaintiffs last known telephone number or numbers, attempting to contact Plaintiffs emergency contact, conducting a TLO search, and hiring a private investigator.
However, the declaration in support states that Plaintiff was served by mail. (MC-052, item 3a(2).) This conflicts with the proof of service filed on July 8, 2024, showing that Plaintiff was served personally. Counsel provides no proof of service by mail. Additionally, the personal proof of service states that Plaintiff was served on July 1, 202410 court days before this hearing.
Code of Civil Procedure section 1005 requires written notice of a motion including the date, time and location of the hearing on a motion. A moving partys failure to serve the notice of motion and moving papers on a non-moving party violates the basic principles of procedural due process under the federal and state constitutions notice and an opportunity to be heard.¿ (
Logan v. Zimmerman Brush Co
. (1982) 455 U.S. 422, 428 [minimum due process requires notice and opportunity for hearing appropriate to the nature of the case];
Horn v. County of Ventura
(1979) 24 Cal.3d 605, 612 [due process principles require reasonable notice and opportunity to be heard].) Under Code of Civil Procedure section 1005(b), moving papers must be served and filed at least 16 court days before the hearing.
Therefore, because Counsel did not provide the minimum notice period, the motion to be relieved is denied on procedural grounds.
Additionally, as stated in the previous minute order, the proposed order does not contain Plaintiffs full zip code. (See Min. Order, 5/29/24.) Counsel must correct the zip code in a subsequent motion. Also, the service indicated in MC-052, item 3 must accurately reflect the type of service in the proof of service.
Accordingly, the Court DENIES the motion to relieve counsel.
Counsel shall provide notice of the Courts ruling and file proofs of service of such.
Ruling
RODRIGUEZ, ET AL VS. HEDRICK, ET AL
Jul 18, 2024 |
CVPM22-0199069
RODRIGUEZ, ET AL VS. HEDRICK, ET AL
Case Number: CVPM22-0199069
This matter is on calendar for review regarding status of bankruptcy. On January 16, 2024, at the
Settlement Conference, the Court was informed that Herman Hedrick filed for bankruptcy, which
the Court noted stays the civil action. No status report has been filed. An appearance is necessary
on today’s calendar to provide the Court with a status of the bankruptcy.
Ruling
Marcia Kelley vs R.C. Benson & Sons, Inc
Jul 16, 2024 |
23CV02864
23CV02864
KELLEY v. R.C. BENSON & SONS INC.
(UNOPPOSED) MOTION TO INTERVENE
County of Santa Cruz’s motion for leave to intervene is granted. Although the County
failed to attach the proposed complaint in intervention as required under Code of Civil Procedure
section 387, subdivision (c), the Court waives that defect. The complaint in intervention shall be
filed within 14 days of the hearing.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
Valerie McDuffie vs. Ahmad Faizi
Jul 12, 2024 |
C23-02161
C23-02161
CASE NAME: VALERIE MCDUFFIE VS. AHMAD FAIZI
*HEARING ON MOTION IN RE: MOTION TO BE RELIEVED AS COUNSEL FILED BY VALERIE MCDUFFIE
FILED BY:
*TENTATIVE RULING:*
Hearing required.
Ruling
David Nanez, III vs. California Kidds Pediatric Dentistry, a Dental Practice of Evans, Kunkel, Prieto & O'Hara, Inc.
Jul 18, 2024 |
22CECG02854
Re: David Nanez, III v. California Kidds Pediatric Dentistry
Superior Court Case No. 22CECG02854
Hearing Date: July 18, 2024 (Dept. 502)
Motion: Petition to Approve Compromise of Disputed Claim of Minor
Tentative Ruling:
To continue the hearing on this petition to Thursday, August 8, 2024, at 3:30 p.m. in
Department 502. Petitioner must file a supplemental declaration explaining why it is in
the best interests of the minor for the funds to be placed into a blocked account as
opposed to an annuity. The declaration must be filed by Thursday, July 25, 2024 at 5:00
p.m.
Explanation:
A petition for court approval of a compromise of a minor's disputed claim “must
contain a full disclosure of all information that has any bearing upon the reasonableness
of the compromise, covenant, settlement, or disposition.” (Cal. Rules of Court, rule 7.950,
emphasis added.)
Petitioner must explain why placing the funds into a blocked account instead of
an annuity, as originally proposed, is the most reasonable option in the best interests of
the minor.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: KCK on 07/17/24 .
(Judge’s initials) (Date)
Preview
CAUSE NO. 2014-54027 BRADLEY MCDANIEL § IN THE DISTRICT COURT OF Plaintiff, § § § HARRIS COUNTY, TEXAS § BP AMERICA, INC., BP P.L.C., BP § AMERICA PRODUCTION CO., AND § MARK EDWARD COBB § 152 JUDICIAL DISTRICT Defendants. PLAINTIFF’S MOTION TO REINSTATE TO THE HONORABLE JUDGE ROBERT SCHAFFER: Plaintiff, BRADLEY ANIEL Plaintiff , files his Motion to Reinstate Cause Number -54027, which was dismissed on 13 June 2017 after a brief hearing on 26 May 2017 and after the Defendants filed a “Motion for Summary Judgement on Causation” on 28 March 2017 - followed by a “Reply in Support of Summary Judgement on Causation” on 24 May 2017 - that has now been exposed as blatantly dishonest given the facts and evidence that have long been available in this case. The Plaintiff terminated his attorneys on 28 September 2017 with good cause”, and reported their misconduct and potentially illegal actions to the appropriate authorities and the Texas State Bar Association (further detailed below). Up to this date, the Plaintiff’s attorneys misrepresented to the Plaintiff that his case had not been finally dismissed only that “exemplary damages” for his knee injury had been ruled out and that hearings were still pending for the “remaining causations” in his case. During this time, the Plaintiff’s former attorneys asked for the Plaintiff to be patient as they were negotiating the terms of a settlement with the BP Defendants. Only after recent discussions with Court Clerk, Katina Williams, did the Plaintiff learn that his former attorneys’ representation of the status of his case was in fact false. During the time these motions for summary judgment were being heard, the Plaintiff’s former attorneys did not inform him that such motions had been filed, nor that they had responded to them, nor that a hearing critical to his case was even taking place – this despite that during this very time, the Plaintiff made multiple request for case updates and made requests for his complete legal file. After the summary judgement was ruled in favor of the Defendants on 13 June 2017, the Plaintiff’s former attorneys incorrectly informed him that the summary judgement only effected “Exemplary Damages” due to his knee injury and that hearing on the remaining causations in his case would be heard in the near future – including “Fraud”, “Intentional Infliction of Emotional Distress”, and others. The Plaintiff had been very active in communications with his former attorneys and keeping up with, not only the developments in his case, but also in the cases consolidated with his for the purpose of discovery. The Plaintiff was shocked that he was not informed that a hearing critical to his case was taking place, not to mention that he was not able to review his former attorney’s responses to the Defendants “Motion for Summary Judgement” before they were filed with the court nor informed what they were and were not, even after they were filed. After demanding multiple times to see what his former attorneys had submitted and “argued” on his behalf, his former attorneys provided him 2 with the filing and some of the exhibits several weeks after the 13 June 2017 ruling against him. The Plaintiff was shocked to find out his former attorneys had left out key evidence in his case. Most troubling was the Plaintiff’s former attorneys’ blatant omission of the key facts that led multiple FBI agents to strongly encourage the Plaintiff to pursue legal action against the BP Defendants in the first place – namely the fact that the SARL BAAT labor strikers who the BP Defendant’s tasked to “guard” the Plaintiff’s drilling rig, were known to the BP Defendants to be Al Qaeda linked dating years before the crisis (Exhibit A, “V. Facts 5.01-5.08”). This was key to the knee injury, “exemplary damages” argument on behalf of the Plaintiff because it was these Al Qaeda linked labor striking “guards” who sounded the false alarm at an opportune time around 04:30 a.m. on 17 January 2013 causing the Plaintiff to rush off his exposed position on top of the Wellsite Leaders office injuring his knee. Clear evidence, including the BP Defendant’s own “Confidential” evidence dating from the weeks surrounding the crisis, establishes the Plaintiff’s actions took were in fact necessary and saved lives during the 4 day siege. Also, the Plaintiff had multiple other encounters with these Al Qaeda linked, labor striking “Guards” before and during the 4 siege that could have easily resulted in other physical injuries or even additional deaths – the Plaintiff argues that by the BP Defendants gross negligence, at best, in sourcing these individuals as “Guards”, in order to launder safe payment money to the emir of Al Qaeda, Abou Zeid (Exhibit A, “V. Facts 5.01-5.08”), BP was directly responsible for the Plaintiff’s knee injury. Tellingly, BP’s knowledge beforehand of the SARL BAAT labor strikers links to Al Qaeda and other key evidence was clearly included in the 27 page “Mediation Memorandum” dated 20 February 2017 signed by his former attorney, Brent Allison (Exhibit B). After demanding his complete file multiple times and asking for answers to specific questions he 3 had from his previous attorneys, the Plaintiff was given only very minimal answers and incomplete evidence. After giving his attorneys ample time to answer his questions, the Plaintiff fired his attorneys on 28 September 2017 in a 43 page letter detailing the “good cause” in their termination (Exhibit C). This letter specifically cites and details the reason for their termination being “Conflict of Interest”, “Breach of Fiduciary Duty”, “Unethical Conduct”, “Potentially Illegal Conduct”, “Deceitful Conduct”, “Blatant Dishonesty”, “withholding of key evidence” (without consulting Plaintiff), “withholding key statements in (Plaintiff’s) answers to BP’s interrogatories” (without consulting Plaintiff), and other very disturbing and telling misconduct. One such telling fact detailed in this termination letter is that despite “representing” the Plaintiff for over 3 years, the Plaintiff’s former attorney, Brent Allison, “hasn’t asked a single question in a single deposition yet” on behalf of the Plaintiff. In just one example, the Plaintiff’s fellow BP America Wellsite Leader, Billy Glenn Whitted and Texas resident was arguably the biggest accessible witness in substantiating the Plaintiff’s account of what actually occurred on the drilling rig during the 4 day siege 16-19 January 2013. Mr. Whitted was scheduled for a deposition on 7 February 2017 but after meeting with the BP Defendants legal team in preparation for the deposition, tellingly, Mr. Whitted refused to take any further advice from the BP Defendant’s legal team, demanded his own attorney as an individual, and canceled his deposition. Tellingly, the Plaintiff’s attorneys allowed the case to move on without taking his deposition. Again and in fact, the Plaintiff former attorney, Brent Allison, didn’t ask a singled question in a single deposition. In this termination letter, the Plaintiff informed his former attorneys that he was reporting them to the FBI, Texas Attorney General’s Office, and Texas Bar Association – all of which the Plaintiff has done. Only after notifying his former attorneys of this in their termination letter did Brent Allison mail him a thumb drive containing key evidence 4 relevant to his case that was produced in other cases consolidated with his dating as far back as 2015! Suspiciously and tellingly, this key evidence along with other key evidence was not submitted or argued on behalf of the Plaintiff in the hearing for the Defendant’s “Motion for Summary Judgement” held without the Plaintiff’s knowledge on 26 May 2017. This evidence, which was not heard, substantiates the Plaintiff’s account as not only honest, but in fact quite accurate – while exposing the BP Defendant’s attorneys’ assertions during hearings and filings, including their “Motion for Summary Judgement”, as blatantly dishonest versus the BP Defendants own evidence dating back to the time of the crisis. Regardless of the Plaintiff’s former attorneys’ motives for withholding this key evidence, their misconduct it is not the fault of the Plaintiff. It is in the interest of justice and only fair that the evidence they withheld be heard by the court on behalf of the Plaintiff. Additionally, the evidence the Plaintiff recovered after terminating his attorneys on 28 September 2017 warrant additional, more severe causations in this petition – including naming additional BP employees as defendants as individuals - with the most obvious being the BP Defendants’ “Civil Conspiracy to Commit Fraud”, in addition to the “Fraud” we asserted as an independent causation in our original petition - as laid out in the Plaintiff’s “Second Amended Petition” filed with the court on 12/1/2017 (Exhibit A). The evidence laid out in this Second Amended Petition substantiates the Plaintiff’s terrible experience working for the BP Defendants, as mocked by the BP Defendant’s arguments and filings in this case, including their now blatantly dishonest “Reply in Support of Summary Judgement on Causation” on 24 May 2017. 5 Additionally, upon review of the evidence in this case as laid out in the Plaintiff’s “Second Amended Petition”, as well as the Plaintiff’s 27 page “Mediation Memorandum” dated 20 February 2017, which was signed by the Plaintiff’s then attorney - obvious “Federal Questions” become apparent in hearing the Plaintiff’s case – including but not limited to the application of Federal Whistle Blower protection laws including but not limited to the Sarbanes- Oxley Act of 2002. Also, in naming the obvious, additional BP Defendants as individuals in this case, the “Diversity” question is also met in warranting this case be heard in Federal Court. Respectfully submitted, BRAD MCDANIEL _____________________________ Brad McDaniel Texas Board of Professional Engineers EIT #36030 3803 St Andrews Ct Midland, Texas 79707 Telephone (432) 214-7915 Brad0606@hotmail.com PLAINTIFF “Pro Se” 6 NOTICE OF HEARING The above motion is set for hearing on _________________ at ___________. m. at the _________________________ County Courthouse, located at: ______________________________________________________________________________ Physical Address of Court House City State Zip ____________________________________________ Signature of Judge or Clerk Certificate of Service I will give a copy of this document to each party or attorney of record on the same day this document is filed with the Court as follows: If I file this document electronically, I will send a copy of it to each party or attorney of record through the electronic file manager if possible. If not possible, I will give a copy to each party or attorney of record in person, by mail, by commercial delivery service, by fax, or by email. If I file a paper copy of this document, I will give a copy of it to each party or attorney of record in person, by mail, by commercial delivery service, by fax, or by email. _ _20 December 2017_____ Brad McDaniel Date 7