Preview
FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015
NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- ------- - -- ------------ - ---- - -- - - X
GREGORY WELCH and PRICILLA WELCH,
Index No. 162502/2015
Plaintiffs,
-against-
260-261 MADISON AVENUE LLC; SKYLIFT
CONTRACTOR CORP.; and BAY CRANE
SERVICE INC., ANSWER TO THIRD THIRD-
PARTY COMPLAINT
Defendants.
- - -- ---- ------------------ - - -- - -- X
SKYLIFT CONTRACTOR CORP.,
Third-Party Plaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY,
INC., d/b/a MARINE & INDUSTRIAL TESTING
SOLUTIONS; MARINE & INDUSTRIAL
TESTING SOLUTIONS; HANES SUPPLY, INC.,
as successor-by-merger to and/or d/b/a PAUL'S
WIRE ROPE & SLING; and PAUL'S WIRE ROPE
& SLING,
Third-Party Defendants.
- ---- - -- - - ----------- - ---- - -- - -- - X
260-261 MADISON AVENUE LLC,
Second Third-Party Plaintiff,
-against-
MARINE & INDUSTRIAL SUPPLY COMPANY,
INC., d/b/a MARINE & INDUSTRIAL TESTING
SOLUTIONS; MARINE & INDUSTRIAL
TESTING SOLUTIONS; HANES SUPPLY, INC.,
as successor-by-merger to and/or d/b/a PAUL'S
WIRE ROPE & SLING; and PAUL'S WIRE ROPE
& SLING,
Second Third-Party Defendants,
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---- --- ------------ - -- - - -- - - -- -- - X
SKYLIFT CONTRACTOR CORP.,
Third Third-Party Plaintiff,
-against-
JOHNSON CONTROLS, INC.,
Third Third-Party Defendant,
- - -- - - ---------------------- ---- - X
COMES NOW Third Third-Party Defendant Johnson Controls, Inc. ("JCI") and submits
the following Answer to Defendant / Third-Party Plaintiff / Third Third-Party Plaintiff Skylift
("Plaintiff"
Contractor Corp.'s or "Skylift") Third Third-Party Complaint ("Complaint"). All
allegations not specifically admitted herein are denied.
The Parties
1. JCI is without knowledge or information sufficient to admit or deny the allegations
contained in Paragraph 1 of Plaintiff's Complaint and therefore denies them.
2. Admitted.
3. JCI admits its wholly owned subsidiary, York, manufactured the chiller unit
allegedly involved in this litigation.
Jurisdiction
4. Admitted.
5. JCI admits that it derives revenue from products used in the State of New York.
JCI denies the remaiñing allegations contained in Paragraph 5 of Plaintiff's Complaint.
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The Main Action
"A"
6. JCI admits that Exhibit ("Exhibit A") purports to be a summons and complaint
filed by plaintiffs Gregory and Pricilla Welch (collectively "Welch"). JCI denies the remair1ing
allegations contained in Paragraph 6 of Plaintiff's Complaint.
7. JCI admits that Welch alleges in Paragraphs 46 and 47 of Exhibit A that damages
were sustained. JCI is without knowledge or information sufficient to admit or deny the remaining
allegations contained in Paragraph 7 of Plaintiff's Complaint, and therefore denies them.
8. JCI admits that Welch alleges in Exhibit A that there was an accident. JCI denies
the remaining allegations contained in Paragraph 8 of Plaintiff's Complaint.
9. JCI is without knowledge or information sufficient to admit or deny the allegations
contained in Paragraph 9 of Plaintiff's Complaint, and therefore denies them.
10. JCI is without knowledge or information sufficient to admit or deny the allegations
contained in Paragraph 10 of Plaintiff's Complaint, and therefore denies them.
"B"
11. JCI admits that Exhibit purports to be an Answer filed by Skylift. JCI denies
the remaining allegations contained in Paragraph 11 of Plaintiff's Complaint.
Facts
12, JCI admits its wholly owned subsidiary, York, manufactured the chiller unit
allegedly involved in this litigation.
13, As stated, JCI is without knowledge or information sufficient to admit or deny the
allegation contained in Paragraph 13 of Plaintiff's Complaint, and therefore denies them.
14, Denied,
15. As stated, JCI is without knowledge or information sufficient to admit or deny the
allegation contained in Paragraph 15 of Plaintiff's Complaint, and therefore denies them.
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16. Denied.
17. As stated, JCI is without knowledge or information sufficient to admit or the
deny
allegation coñtained in Paragraph 17 of Plaintiff s Complaint, and therefore denies them.
18. Denied.
19. As stated, JCI is without knowledge or information sufficient to admit or deny the
allegation contained in Paragraph 19 of Plaintiff's Complaint, and therefore denies them.
20. Denied.
21. Denied.
22. JCI is without knowledge or information sufficient to admit or deny the allegations
contained in Paragraph 22 of Plaintiff's Complaint, and therefore denies them.
23. As stated, JCI is without knowledge or information sufficient to admit or deny the
allegation contained in Paragraph 23 of Plaintiff's Complaint, and therefore denies them.
24. Denied.
First Cause of Action
(For Apportionment)
25. JCI repeats and re-alleges itsresponses to Paragraphs 1 through 24 above as though
fully set forth at length herein.
26. The allegations contained in Paragraph 26 of the Complaint contain legal
conclusions to which no response from JCI is required. To the extent a response is required, JCI
is without knowledge or information sufficient to admit or deny the allegations contained in
Paragraph 26 of the Complaint, and therefore denies them.
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Second Cause of Action
C-----
(Contractüâl and Law Indemniistien and Contribution)
27. JCI repeats and re-alleges itsresponses to Paragraphs 1 through 26 above as though
fully set forth at length herein.
28. The allegations contained in Paragraph 28 of the Complaint contain legal
conclusions to which no response from JCI is required. To the extent a response is required, JCI
is without knowledge or information sufficient to admit or deny the allegations contained in
Paragraph 28 of the Complaint, and therefore denies them.
Further answering, JCI denies that Plaintiff is entitled to a judgment or any relief sought in
"WHEREFORE"
the clause following Paragraph 28 of Plaintiff's Complaint.
FIRST AFFIRMATIVE DEFENSE
JCI denies the allegations of liability, causation and responsibility for alleged damages
asserted by Plaintiff.
SECOND AFFIRMATIVE DEFENSE
Plaintiff's Complaint fails to state a claim against JCI upon which relief can be granted.
THIRD AFFIRMATIVE DEFENSE
Plaintiff's claims are barred by the applicable statutes of limitations.
FOURTH AFFIRMATIVE DEFENSE
If Plaintiff sustained the damages alleged, such damages were caused in whole or in part
by Plaintiff's culpable conduct, including contributory negligence and/or assumption of the risk.
Plaintiff's recovery, if any, must be diminished in the proportion which the culpable conduct
attributable to Plaintiff bears to the culpable conduct which caused the damages.
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FIFTH AFFIRMATIVE DEFENSE
The negligence, fault, or carelessness of Plaintiff caused or contributed to Plaintiff's
alleged dainages and, therefore, any recovery Plaintiff against JCI is barred or diminished in
by
proportion to the amount of negligence, fault, or carelessness attributable to Plaintiff.
SIXTH AFFIRMATIVE DEFENSE
The negligence, fault, or carelessness of other persons or entities, for whose actions JCI is
neither responsible nor liable, was the sole, intervening or superseding cause of Plaintiff's
damages, and therefore, any recovery by Plaintiff against JCI is barred.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate damages and, therefore, any recovery by Plaintiff should not
include any loss which could have been prevented by reasonable care and diligence exercised after
the alleged losses referred to in Plaintiff's Complaint occurred.
EIGHTH AFFIRMATIVE DEFENSE
JCI states that ifPlaintiff suffered any damages, which is not hereby admitted, JCI requests
that the negligence of Plaintiff, if any, be compared to the alleged negligence or fault of JCI to the
extent that any such negligence or fault of Plaintiff caused or contributed to cause the injuries or
damages alleged by Plaintiff, thus barring or reducing any recovery, if any, to Plaintiff.
NINTH AFFIRMATIVE DEFENSE
In the event Plaintiff recovers a verdict or judgment against JCI, then said verdict or
judgment must be reduced pursuant to C.P.L.R. §4545(c) by those amounts.
TENTH AFFIRMATIVE DEFENSE
Plaintiff's assumption of the risk caused or contributed to Plaintiff's alleged damages and,
therefore, any recovery by Plaintiff against JCI is barred.
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ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff's recovery against JCI, if any, should be reduced or barred by any settlement,
judgment, or payment of any kind received from any other individual or in connection with
entity
the subject matter of the incident described in Plaintiff's Complaint.
TWELFTH AFFIRMATIVE DEFEN_SE
Upon information and belief, the damages alleged were caused by the culpable conduct of
some other person or persons over whom JCI neither had nor exercised control.
THIRTEENTH AFFIRMATIVE DEFENSE
This action should be dismissed since all necessary and indispensable parties have not been
joined in this action,
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff's claims are barred for failure to join indispensable parties.
FIFTEENTH AFFIRMATIVE DEFENSE
JCI pleads the provisions of Article 50 of the C.P.L.R.
SIXTEENTH AFFIRMATIVE DEFENSE
All limitations of liability made available by Article 16 of the C.P.L.R. apply to JCL
SEVENTEENTH AFFIRMATIVE DEFENSE
This action should be dismissed due to improper service of the Summons and Complaint.
EIGHTEENTH AFFIRMATIVE DEFENSE
That in the event of any verdict of judgment on behalf of the Plaintiff, JCI is entitled to a
set-off or credit with respect to the amounts of any payments made to the Plaintiff under GOL §
15-108 for this action and any companion actions arising out of the same set of events as pleãded
here.
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NINETEENTH AFFIRMATIVE DEFENSE
JCI reserves the right to assert any additional defenses as may become available through
investigation and discovery and to adopt and assert any defenses raised or asserted by any other
defendants, if any, to this action.
WHEREFORE, Third Third-Party Defendant Johnson Controls, Inc. demands judgment
the Third Complaint of Defendant / Plaintiff / Third Third-
dismissing Third-Party Third-Party
Party Plaintiff Skylift Contractor Corp., and if Plaintiff is found to have contributed to the alleged
damages, that any damages be reduced in proportion to which Plaintiff may be found to have so
contributed to the damages, together with costs and disbursements
Dated: Uniondale, New York WESTERMAN BALL EDERER MILLER
March 29, 2019 ZUCKER & SHARFSTEIN, LLP
By:
William E. Vita, Esq.
1201 RXR Plaza
Uniondale, New York 11556
Phone: 516-662-9200
Fax: 516-662-9212
wvita@westermanllp.com
Attorneys for Third Third-Party Defendant
Johnson Controls, Inc.
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K. QUILLIN VS. NOELLE BECKER MORENO ET AL
Jul 10, 2024 |
CGC24611734
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 11. DEFENDANT NOELLE MORENO's MOTION TO STRIKE COMPLAINT. Off calendar for noncompliance with Local Rule 2.7(B) (courtesy copies). The motion may be re-set for a Mon.-Thurs. after July 24, with papers to bear new hearing date. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.
Jul 11, 2024 |
21STCV34525
Case Number:
21STCV34525
Hearing Date:
July 11, 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 11, 2024
CASE NUMBER
:
21STCV34525
MOTIONS
:
Motion for Terminating Sanctions
MOVING PARTY:
Defendant City of Los Angeles
OPPOSING PARTY:
None
BACKGROUND
Defendant City of Los Angeles (
Defendant) moves for terminating sanctions against Plaintiff
Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed.
LEGAL STANDARD
To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).)
Failing to respond or to submit to an authorized method of discovery, or
disobeying a court order to provide discovery,
constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).)
The trial court may order a terminating sanction for discovery abuse after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (
Los Defensores, Inc. v. Gomez
(2014) 223 Cal.App.4th 377, 390, quoting
Lang v. Hochman
(2000) 77 Cal.App.4th 1225, 1246.)
Generally, [a] decision to order terminating sanctions should not be made lightly.
But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (
Los Defensores, supra
, 223 Cal. App. 4th at p. 390 [citation omitted].)
Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (
Los Defensores, supra
, 223 Cal.App.4th at p. 390 citing
Lang, supra
, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g.,
Collisson & Kaplan v. Hartunian
(1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery];
Laguna Auto Body v. Farmers Ins. Exchange
(1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in
Garcia v. McCutchen
(1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].)
If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).)
DISCUSSION
Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (
Id.
¶ 3.)
On April 26, 2024, the Court granted
Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record.
On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion.
Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted.
CONCLUSION
Therefore, Defendant
City of Los Angeles
motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore t
he Court orders the complaint dismissed in its entirety.
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Jul 11, 2024 |
20CV-02521
20CV-02521 Gilbert Hernandez v. In-Shape Health Clubs LLC
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Ruling
SOCORRO ALEGRIA VS ALTAMED HEALTH SERVICES CORPORATION, A CALIFORNIA CORPORATION, ET AL.
Jul 11, 2024 |
24PSCV00032
Case Number:
24PSCV00032
Hearing Date:
July 11, 2024
Dept:
K
1.
Defendant AltaMed Health Services Corporations Motion for Judgment on the Pleadings is summarily GRANTED in part (i.e., as to the fifth, sixth and tenth causes of action) and otherwise DENIED in part (i.e., as to the eighth and ninth causes of action).
2.
Defendant AltaMed Health Services Corporations Motion to Strike is DENIED as MOOT.
Background
Plaintiff Socorro Alegria (Plaintiff) alleges as follows: Plaintiff was sexually assaulted during her March 22, 2023 medical imaging appointment. On January 3, 2024, Plaintiff filed a complaint, asserting causes of action against AltaMed Health Services Corporation (AltaMed), Jose Luis Sanchez and Does 1-20 for:
1.
Negligent Hiring Retention, Supervision and Failure to Terminate (v. AltaMed only)
2.
Common Law Assault (v. Sanchez only)
3.
Common Law Battery (v. Sanchez only)
4.
Sexual Battery in Violation of Civil Code § 1708.5 (v. Sanchez only)
5.
Violation of Civil Code § 51.7
6.
Sexual Harassment in Violation of Civil Code § 51.9
7.
Intentional Infliction of Emotional Distress (v. Sanchez only)
8.
Negligent Infliction of Emotional Distress
9.
Negligence (v. AltaMed only)
10.
Violation of the Tom Bane Civil Rights Act A Case Management Conference is set for July 11, 2024.
1.
Judgment on the Pleadings
Legal Standard
The rules governing demurrers are generally applicable to a motion for judgment on the pleadings. (
Cloud v. Northrop Grumman Corp.
(1998) 67 Cal.App.4th 995, 999; Code Civ. Proc., § 438, subd. (d) [The grounds for motion. . . shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice. . ., the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit].)
A motion by a plaintiff may only be made on the grounds that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint. (Code Civ. Proc., § 438, subd. (c)(1)(A).) A motion by a defendant may only be made on the grounds that (1) [t]he court has no jurisdiction of the subject of the cause of action alleged in the complaint or (2) [t]he complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c).)
Although a nonstatutory motion may be made at any time either prior to the trial or at the trial itself (
Stoops v. Abbassi
(2002) 100 Cal.App.4th 644, 650 [quotation marks and citation omitted]), a statutory motion cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later, unless the court otherwise permits. (Code Civ. Proc., § 438, subd. (e).)
Discussion
AltaMed moves the court, pursuant to Code of Civil Procedure § 438, for judgment on the pleadings as to the fifth, sixth, and eighth through tenth (i.e., for
Violation of Civil Code § 51.7, Sexual Harassment in Violation of Civil Code § 51.9, Negligent Infliction of Emotional Distress, Negligence and Violation of the Tom Bane Civil Rights Act, respectively)
causes of action in Plaintiffs complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.
At the outset, Plaintiff represents that she agrees to dismiss her fifth, sixth and tenth causes of action, without prejudice (Opp., 1:26-2:2); accordingly, in the event a Request for Dismissal is not on file by the time of the hearing, the court will summarily grant the motion in this regard.
The courts following analysis, then, is limited to Plaintiffs eighth and ninth causes of action, for Negligent Infliction of Emotional Distress and Negligence, respectively:
AltaMed asserts that these causes of action fail because it cannot be held vicariously liable for an alleged sexual assault by its employee. [A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment. (
Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995) 12 Cal.4th 291, 296.) However, [a]n
employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. (
Id.
at 297).
The court construes Plaintiffs eighth and ninth causes of action as sounding in direct negligence, rather than vicarious liability. Further, while AltaMed contends that these causes of action are surplusage, this argument was raised for the first time in the reply; as such, it is disregarded. The motion is denied in this regard.
2.
Motion to Strike
AltaMed moves the court for an order striking out the following language from Plaintiffs complaint:
1.
Page 12, paragraph 68, lines 6-12;
2.
Page 13, paragraph 79, lines 9-15;
3.
Page 16, paragraph 102, lines 18-24;
4.
Page 17, paragraph 7, line 13;
5.
Page 17, paragraph 9, line 15;
6.
Page 17, paragraph 10, line 16. AltaMeds request is denied as moot. All of the allegations AltaMed seeks to have stricken pertain to the fifth, sixth and tenth causes of action, which Plaintiff has agreed to dismiss.
Ruling
Thompson, Harry Fayne III vs. Rose, Steven Leon et al
Jul 22, 2024 |
S-CV-0052451
S-CV-0052451 Thompson, Harry Fayne III vs. Rose, Steven Leon et al
No appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.
Complaint is not at issue - Need responsive pleading, default or dismissal as to
Defendant(s): Grossman, Marilyn Joy
Additionally, no proof of service has been filed as to Defendant(s): Rose, Steven
Leon
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |
21STCV42736
Case Number:
21STCV42736
Hearing Date:
July 9, 2024
Dept:
S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |
23CV01711
23CV01711
KUTZ et al. v. FRIBOURGH et al.
(UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED
The unopposed motions are denied without prejudice. Counsel must refile to reflect
correct upcoming hearing dates in the declarations and proposed orders.
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.
Page 1 of 1
Ruling
Dryden, Donna vs Tri Counties Bank
Jul 10, 2024 |
23CV03115
23CV03115 Dryden, Donna et al. v. Tri Counties Bank
EVENT: Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel
Plaintiffs’ Motion to Consolidate and Appoint Interim Class Counsel is GRANTED. Defendant
shall file a responsive pleading within 60 days of the date of this order. The Court will sign the
proposed order with the noted modification.
Document
Patrick Strickland v. W.I.P. Club, Inc., Barry Mullineaux, Collective Hardware, Inc., John Bakhishi, Lina Kay, Hirukuni Sai, John C. Best, Frank Porco, Merlin Bobb-Willis, 150 Rft Varick Corp., 150 Rft Varick Basement Llc, W. & M. Operating, L.L.C., Aubrey Graham Drake a/k/a DRAKE, Allstar Security & Consulting, Inc., Christopher Maurice Brown a/k/a CHRIS BROWN
Apr 08, 2013 |
Anil Singh
|
Tort |
Tort |
153185/2013
Document
Melania Rodriguez and RYAN LUNT, as Parents and Natural Guardians of Z.L, Melania Rodriguez, Ryan Lunt Individually v. Nicholas James Buffin M.D., Valerie Lewis-Morris M.D., Emily Schmidt-Beuchat M.D., Hope S. Langer M.D., Youyin Choy M.D., Lois Brustman M.D., Susan Rothenberg M.D., Helaine Worrell M.D., Mount Sinai West, West Care Medical, P.C.,, Faculty Practice Associates-Mount Sinai Hospital,, Midtown Ob/Gyn
Mar 15, 2021 |
John J. Kelley
|
Torts - Medical, Dental, or Podiatrist Malpractice |
Torts - Medical, Dental, or Podiatrist Malpractice |
805086/2021
Preview
FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK - ------- - -- ------------ - ---- - -- - - X GREGORY WELCH and PRICILLA WELCH, Index No. 162502/2015 Plaintiffs, -against- 260-261 MADISON AVENUE LLC; SKYLIFT CONTRACTOR CORP.; and BAY CRANE SERVICE INC., ANSWER TO THIRD THIRD- PARTY COMPLAINT Defendants. - - -- ---- ------------------ - - -- - -- X SKYLIFT CONTRACTOR CORP., Third-Party Plaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY, INC., as successor-by-merger to and/or d/b/a PAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING, Third-Party Defendants. - ---- - -- - - ----------- - ---- - -- - -- - X 260-261 MADISON AVENUE LLC, Second Third-Party Plaintiff, -against- MARINE & INDUSTRIAL SUPPLY COMPANY, INC., d/b/a MARINE & INDUSTRIAL TESTING SOLUTIONS; MARINE & INDUSTRIAL TESTING SOLUTIONS; HANES SUPPLY, INC., as successor-by-merger to and/or d/b/a PAUL'S WIRE ROPE & SLING; and PAUL'S WIRE ROPE & SLING, Second Third-Party Defendants, 1 1 of 8 FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019 ---- --- ------------ - -- - - -- - - -- -- - X SKYLIFT CONTRACTOR CORP., Third Third-Party Plaintiff, -against- JOHNSON CONTROLS, INC., Third Third-Party Defendant, - - -- - - ---------------------- ---- - X COMES NOW Third Third-Party Defendant Johnson Controls, Inc. ("JCI") and submits the following Answer to Defendant / Third-Party Plaintiff / Third Third-Party Plaintiff Skylift ("Plaintiff" Contractor Corp.'s or "Skylift") Third Third-Party Complaint ("Complaint"). All allegations not specifically admitted herein are denied. The Parties 1. JCI is without knowledge or information sufficient to admit or deny the allegations contained in Paragraph 1 of Plaintiff's Complaint and therefore denies them. 2. Admitted. 3. JCI admits its wholly owned subsidiary, York, manufactured the chiller unit allegedly involved in this litigation. Jurisdiction 4. Admitted. 5. JCI admits that it derives revenue from products used in the State of New York. JCI denies the remaiñing allegations contained in Paragraph 5 of Plaintiff's Complaint. 2 2 of 8 FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019 The Main Action "A" 6. JCI admits that Exhibit ("Exhibit A") purports to be a summons and complaint filed by plaintiffs Gregory and Pricilla Welch (collectively "Welch"). JCI denies the remair1ing allegations contained in Paragraph 6 of Plaintiff's Complaint. 7. JCI admits that Welch alleges in Paragraphs 46 and 47 of Exhibit A that damages were sustained. JCI is without knowledge or information sufficient to admit or deny the remaining allegations contained in Paragraph 7 of Plaintiff's Complaint, and therefore denies them. 8. JCI admits that Welch alleges in Exhibit A that there was an accident. JCI denies the remaining allegations contained in Paragraph 8 of Plaintiff's Complaint. 9. JCI is without knowledge or information sufficient to admit or deny the allegations contained in Paragraph 9 of Plaintiff's Complaint, and therefore denies them. 10. JCI is without knowledge or information sufficient to admit or deny the allegations contained in Paragraph 10 of Plaintiff's Complaint, and therefore denies them. "B" 11. JCI admits that Exhibit purports to be an Answer filed by Skylift. JCI denies the remaining allegations contained in Paragraph 11 of Plaintiff's Complaint. Facts 12, JCI admits its wholly owned subsidiary, York, manufactured the chiller unit allegedly involved in this litigation. 13, As stated, JCI is without knowledge or information sufficient to admit or deny the allegation contained in Paragraph 13 of Plaintiff's Complaint, and therefore denies them. 14, Denied, 15. As stated, JCI is without knowledge or information sufficient to admit or deny the allegation contained in Paragraph 15 of Plaintiff's Complaint, and therefore denies them. 3 3 of 8 FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019 16. Denied. 17. As stated, JCI is without knowledge or information sufficient to admit or the deny allegation coñtained in Paragraph 17 of Plaintiff s Complaint, and therefore denies them. 18. Denied. 19. As stated, JCI is without knowledge or information sufficient to admit or deny the allegation contained in Paragraph 19 of Plaintiff's Complaint, and therefore denies them. 20. Denied. 21. Denied. 22. JCI is without knowledge or information sufficient to admit or deny the allegations contained in Paragraph 22 of Plaintiff's Complaint, and therefore denies them. 23. As stated, JCI is without knowledge or information sufficient to admit or deny the allegation contained in Paragraph 23 of Plaintiff's Complaint, and therefore denies them. 24. Denied. First Cause of Action (For Apportionment) 25. JCI repeats and re-alleges itsresponses to Paragraphs 1 through 24 above as though fully set forth at length herein. 26. The allegations contained in Paragraph 26 of the Complaint contain legal conclusions to which no response from JCI is required. To the extent a response is required, JCI is without knowledge or information sufficient to admit or deny the allegations contained in Paragraph 26 of the Complaint, and therefore denies them. 4 4 of 8 FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019 Second Cause of Action C----- (Contractüâl and Law Indemniistien and Contribution) 27. JCI repeats and re-alleges itsresponses to Paragraphs 1 through 26 above as though fully set forth at length herein. 28. The allegations contained in Paragraph 28 of the Complaint contain legal conclusions to which no response from JCI is required. To the extent a response is required, JCI is without knowledge or information sufficient to admit or deny the allegations contained in Paragraph 28 of the Complaint, and therefore denies them. Further answering, JCI denies that Plaintiff is entitled to a judgment or any relief sought in "WHEREFORE" the clause following Paragraph 28 of Plaintiff's Complaint. FIRST AFFIRMATIVE DEFENSE JCI denies the allegations of liability, causation and responsibility for alleged damages asserted by Plaintiff. SECOND AFFIRMATIVE DEFENSE Plaintiff's Complaint fails to state a claim against JCI upon which relief can be granted. THIRD AFFIRMATIVE DEFENSE Plaintiff's claims are barred by the applicable statutes of limitations. FOURTH AFFIRMATIVE DEFENSE If Plaintiff sustained the damages alleged, such damages were caused in whole or in part by Plaintiff's culpable conduct, including contributory negligence and/or assumption of the risk. Plaintiff's recovery, if any, must be diminished in the proportion which the culpable conduct attributable to Plaintiff bears to the culpable conduct which caused the damages. 5 5 of 8 FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019 FIFTH AFFIRMATIVE DEFENSE The negligence, fault, or carelessness of Plaintiff caused or contributed to Plaintiff's alleged dainages and, therefore, any recovery Plaintiff against JCI is barred or diminished in by proportion to the amount of negligence, fault, or carelessness attributable to Plaintiff. SIXTH AFFIRMATIVE DEFENSE The negligence, fault, or carelessness of other persons or entities, for whose actions JCI is neither responsible nor liable, was the sole, intervening or superseding cause of Plaintiff's damages, and therefore, any recovery by Plaintiff against JCI is barred. SEVENTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate damages and, therefore, any recovery by Plaintiff should not include any loss which could have been prevented by reasonable care and diligence exercised after the alleged losses referred to in Plaintiff's Complaint occurred. EIGHTH AFFIRMATIVE DEFENSE JCI states that ifPlaintiff suffered any damages, which is not hereby admitted, JCI requests that the negligence of Plaintiff, if any, be compared to the alleged negligence or fault of JCI to the extent that any such negligence or fault of Plaintiff caused or contributed to cause the injuries or damages alleged by Plaintiff, thus barring or reducing any recovery, if any, to Plaintiff. NINTH AFFIRMATIVE DEFENSE In the event Plaintiff recovers a verdict or judgment against JCI, then said verdict or judgment must be reduced pursuant to C.P.L.R. §4545(c) by those amounts. TENTH AFFIRMATIVE DEFENSE Plaintiff's assumption of the risk caused or contributed to Plaintiff's alleged damages and, therefore, any recovery by Plaintiff against JCI is barred. 6 6 of 8 FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019 ELEVENTH AFFIRMATIVE DEFENSE Plaintiff's recovery against JCI, if any, should be reduced or barred by any settlement, judgment, or payment of any kind received from any other individual or in connection with entity the subject matter of the incident described in Plaintiff's Complaint. TWELFTH AFFIRMATIVE DEFEN_SE Upon information and belief, the damages alleged were caused by the culpable conduct of some other person or persons over whom JCI neither had nor exercised control. THIRTEENTH AFFIRMATIVE DEFENSE This action should be dismissed since all necessary and indispensable parties have not been joined in this action, FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred for failure to join indispensable parties. FIFTEENTH AFFIRMATIVE DEFENSE JCI pleads the provisions of Article 50 of the C.P.L.R. SIXTEENTH AFFIRMATIVE DEFENSE All limitations of liability made available by Article 16 of the C.P.L.R. apply to JCL SEVENTEENTH AFFIRMATIVE DEFENSE This action should be dismissed due to improper service of the Summons and Complaint. EIGHTEENTH AFFIRMATIVE DEFENSE That in the event of any verdict of judgment on behalf of the Plaintiff, JCI is entitled to a set-off or credit with respect to the amounts of any payments made to the Plaintiff under GOL § 15-108 for this action and any companion actions arising out of the same set of events as pleãded here. 7 7 of 8 FILED: NEW YORK COUNTY CLERK 03/29/2019 03:42 PM INDEX NO. 162502/2015 NYSCEF DOC. NO. 209 RECEIVED NYSCEF: 03/29/2019 NINETEENTH AFFIRMATIVE DEFENSE JCI reserves the right to assert any additional defenses as may become available through investigation and discovery and to adopt and assert any defenses raised or asserted by any other defendants, if any, to this action. WHEREFORE, Third Third-Party Defendant Johnson Controls, Inc. demands judgment the Third Complaint of Defendant / Plaintiff / Third Third- dismissing Third-Party Third-Party Party Plaintiff Skylift Contractor Corp., and if Plaintiff is found to have contributed to the alleged damages, that any damages be reduced in proportion to which Plaintiff may be found to have so contributed to the damages, together with costs and disbursements Dated: Uniondale, New York WESTERMAN BALL EDERER MILLER March 29, 2019 ZUCKER & SHARFSTEIN, LLP By: William E. Vita, Esq. 1201 RXR Plaza Uniondale, New York 11556 Phone: 516-662-9200 Fax: 516-662-9212 wvita@westermanllp.com Attorneys for Third Third-Party Defendant Johnson Controls, Inc. 8 8 of 8