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Filing # 117266090 E-Filed 11/25/2020 11:20:13 AM
IN THE CIRCUIT COURT OF THE
20 JUDICIAL COURT IN AND
FOR CHARLOTTE COUNTY,
FLORIDA
DEBORAH COOPER BURG, by and through GENERAL JURISDICTION DIVISION
her Court-appointed Guardian, RICKY
BURG; NICOLE BURG, her daughter; and CASE NO. 2020-000616 CA
RICKY BURG, her spouse,
Plaintiffs,
Vv.
WEST FLORIDA PHYSICIAN NETWORK, LLC;
DILENDRA WEERASINGHE; JOHN RIOUX;
FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL; ABIGAIL
UTECH; NANDINI KIRI, M.D., P.A.; NANDINI KIRI;
HARBOR MEDICAL GROUP, LLC; AHSAN KAMAL;
SOVI JOSEPH, M.D., P.A.; SOVI JOSEPH;
DOMINGO E. GALLIANO, JR., P.A.; DOMINGO
GALLIANO, JR.; PUNTA GORDA MEDICAL
INVESTORS, LLC d/b/a LIFE CARE CENTER OF
PUNTA GORDA, LIFE CARE PHYSICIAN
SERVICES, LLC; and VANCE MALONEY, III,
Defendants.
/
PLAINTIFFS’ MOTION FOR LEAVE TO FILE AMENDED MPLAINT
COME NOW the Plaintiffs, DEBORAH COOPER BURG, by and through her Court-
appointed Guardian, RICKY BURG; NICOLE BURG, her daughter; and RICKY BURG, her
spouse, by and through their undersigned attorneys, and move this Honorable Court for
leave to file an Amended Complaint for Damages, and as grounds therefore state:
& Caballero, P&H.
NEW WORLD TOWER > 100. BIBCAYNE BOULEVARD, SUITE 2602 - MuAN, FLORIDA 33152 » TEL (905) 358-6329
Burg v West Florida Physician Network, LLC, et al.
CASE NO. 2020-000616 CA
Page 2
1. That discovery and investigation have led to additional parties to be joined in the case
as well as various amendments in existing counts. A copy of the proposed Amended
Complaint for Damages is attached hereto.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished by e-service this 25** day of November, 2020 to: see attached service list.
DEUTSCH BLUMBERG & CABALLERO, P.A.
Attorneys for Plaintiffs
New World Tower, Suite 2802
100 North Biscayne Boulevard
Miami, Florida 33132
(305) 358-6329
(305) 358-9304 (facsimile)
Email — erb@deutschblumberg.com;
rmitchell@deutschblumberg.com;
heastillo@deutschblumberg.com
By: s/Edward R. Blumberg
EDWARD R. BLUMBERG, ESQ
Florida Bar No. 190870
& Caballero, P&H.
NEW WORLD TOWER > 100. BIBCAYNE BOULEVARD, SUITE 2602 - MuAN, FLORIDA 33152 » TEL (905) 358-6329
BURG v. WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
SERVICE LIST
John M. Stewart, Esquire
Michael J. Swan, Esquire
Rossway Swan Tierney Barry & Oliver, P.L.
Co-Counsel for PLAINTIFFS
2101 Indian River Boulevard, Suite 200
Vero Beach, Florida 32960
Telephone: (772) 231-4440
E-Mails: jstewart@rosswayswan.com; mswan@rosswayswan.com; cdelo@rosswayswan.com
Richard K. Bowers, Esquire
Bankers Lopez Gassler, P.A.
Attorneys for DILENDRA WEERASINGHE
501 East Kennedy Boulevard, Suite 1700
Tampa, FL 33602
Telephone: 813-221-1500
Fax: 813-222-3066
Email: service-rbowers@bankerlopez.com
Jay P. Chimpoulis, Esquire
Susanne E. Riedhammer, Esquire
Chimpoulis & Hunter, P.A.
Attorneys for Defendants PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a LIFE CARE
CENTER OF PUNTA GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; and VANCE MALONEY,
Il
150 S. Pine Island Road, Suite 510
Plantation, FL 33324
Telephone: 954-463-0033
Fax: 954-463-9562
Email: JCHimpoulis@ChimpoulisHunter.com
Victoria N. Ferrentino, Esq.
Natalie J. Davy, Esq.
Bush Graziano Rice & Platter, P.A.
Attorneys for Defendants WEST FLORIDA PHYSICIAN NETWORK, LLC and JOHN RIOUX
100 S. Ashley Drive, #1400
Tampa, FL 33602
Telephone: 813-228-7000
Fax: 813-273-0091
Emails: vferrentino@barplaw.com; ndavy@barplaw.com; eserve@barplaw.com; and
dhensley@barplaw.com
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Douglas Lumpkin, Esq.
Summer E. Harcup, Esq.
Wicker Smith O’Hara McCoy & Ford, P.A.
Attorneys for Defendants AHSAN KAMAL, M.D. and HARBOR MEDICAL GROUP, LLC
1819 Main Street, Suite 910
Sarasota, FL 34236
Telephone: 941-366-4200
Fax: 941-366-4227
Email: SARertpleadings@wickersmith.com
Ralph L. Marchbank, Jr., Esq.
Dickinson & Gibbons, P.A.
Attorney for Defendants DOMINGO GALLIANO, JR. and DOMINGO E. GALLIANO, JR.,
P.A.
401 N. Cattlemen Road, Suite 300
Sarasota, FL 34232
Telephone: 941-366-4680
Fa: 941-953-3136
Emails: Rmarchbank@dglawyers.com; Lgordon@dglawyers.com
Brett P. Gliosca, Esq.
Jeffrey M. Goodis, Esq.
LA CAVA JACOBSON & GOODIS, P.A.
Attorneys for Defendants SOVI JOSEPH and SOVI JOSEPH, M.D., P.A.
200 Central Avenue, Suite 250
St. Petersburg, FL 33701
Office: 727-477-1013
Fax: 727-550-0811
Emails: stp-pleadings@liglegal.com; bgliosca@ljglegal.com; nkovacic@liglegal.com
Frances G. Prockop, Esq.
Alexandra S. Farren, Esq.
Bush Graziano Rice & Platter, P.A.
Attorneys for Defendant FAWCETT MEMORIAL HOSPITAL, INC. and ABIGAIL UTECH
100 S. Ashley Drive, Suite 1400
Tampa, FL 33602
Office: 813-228-7000
Fax: 813-229-6316
Emails: eserve@bgrplaw.com; Iplyushko@barplaw.com
2|Page
RICHARD B. MANGAN, JR., ESQUIRE
KELSEY T. CAMPBELL, ESQUIRE
RISSMAN, BARRETT, HURT
DONAHUE, McLAIN & MANGAN, P.A. Attorneys for Defendant,
Nandini Kiri, M.D. and Nandini Kiri, M.D., P.A.
1 North Dale Mabry Highway
11th Floor
Tampa, FL 33609
Telephone: (813) 221-3114
Facsimile: (813) 221-3033
Email: rom.service@rissman.com
Email: kic.service@rissman.com
Stephanie. doyle@rissman.com
3|Page
IN THE CIRCUIT COURT OF THE
20 JUDICIAL COURT IN AND
FOR CHARLOTTE COUNTY,
FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO. 2020-000616 CA
DEBORAH COOPER BURG, by and through
her Court-appointed Guardian, RICKY
BURG; NICOLE BURG, her daughter; and
RICKY BURG, her spouse,
Plaintiffs,
Vv
WEST FLORIDA PHYSICIAN NETWORK, LLC;
DILENDRA WEERASINGHE; JOHN RIOUX;
FAWCETT MEMORIAL HOSPITAL, INC. d/b/a
FAWCETT MEMORIAL HOSPITAL; SUSAN
BRUNER; ABIGAIL UTECH; NANDINI KIRI,
M.D., P.A.; NANDINI KIRI; HARBOR MEDICAL
GROUP, LLC; AHSAN KAMAL; SOVI JOSEPH,
M.D., P.A.; SOVI JOSEPH; DOMINGO E.
GALLIANO, JR., P.A.; DOMINGO GALLIANO,
JR.; ARTURO RODRIGUEZ-MARTIN, M.D.,
P.L.; ARTURO RODRIGUEZ-MARTIN;
MILLENNIUM PHYSICIAN GROUP, LLC d/b/a
MILLENNIUM PHYSICIAN GROUP;
CATHY CRISS; LIFE CARE CENTERS OF
AMERICA, INC.; PUNTA GORDA MEDICAL
INVESTORS, LLC d/b/a LIFE CARE CENTER
OF PUNTA GORDA, LIFE CARE PHYSICIAN
SERVICES, LLC; and VANCE MALONEY, III,
Defendants.
/
AMENDED MPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 2
INDEX OF IN .
CLAIMS AGAINST DEFENDANT WEST FLORIDA PHYSICIAN
NETWORK, LLC
Count I — Claim on behalf Deborah Cooper Burg Page 5
Count II — Claim of Nicole Burg Page 15
Count III — Claim of Ricky Burg Page 25
CLAIMS AGAINST DILENDRA WEERASINGHE
Count IV - Claim on behalf of Deborah Cooper Burg Page 34
Count V — Claim of Nicole Burg Page 42
Count VI - Claim of Ricky Burg Page 50
CLAIMS AGAINST JOHN RIOUX
Count VII — Claim on behalf of Deborah Cooper Burg Page 57
Count VIII — Claim of Nicole Burg Page 66
Count IX — Claim of Ricky Burg Page 74
CLAIMS AGAINST FAWCETT MEMORIAL HOSPITAL, INC.
d/b/a FAWCETT MEMORIAL HOSPITAL
Count X — Claim on behalf of Deborah Cooper Burg Page 82
Count XI — Claim of Nicole Burg Page 91
Count XII — Claim of Ricky Burg Page 100
CLAIMS AGAINST SUSAN BRUNER
Count XIII — Claim on behalf of Deborah Cooper Burg Page 108
Count XIV — Claim of Nicole Burg Page 116
Count XV — Claim of Ricky Burg Page 122
CLAIMS AGAINST ABIGAIL UTECH
Count XVI — Claim on behalf of Deborah Cooper Burg Page 129
Count XVII — Claim of Nicole Burg Page 137
Count XVIII — Claim of Ricky Burg Page 144
CLAIMS AGANST NANDINI KIRI, M.D., P.A.
Count XIX - Claim on behalf of Deborah Cooper Burg Page 151
Count XX — Claim of Nicole Burg Page 159
Count XXI — Claim of Ricky Burg Page 166
CLAIMS AGAINST NANDINI KIRI
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 3
Count XXII - Claim on behalf of Deborah Cooper Burg Page 174
Count XXIII - Claim of Nicole Burg Page 181
Count XXIV — Claim of Ricky Burg Page 189
CLAIMS AGAINST HARBOR MEDICAL GROUP, LLC
Count XXV — Claim on behalf of Deborah Cooper Burg Page 195
Count XXVI — Claim of Nicole Burg Page 204
Count XXVII — Claim of Ricky Burg Page 212
CLAIMS AGAINST AHSAN KAMAL
Count XXVIII — Claim on behalf of Deborah Cooper Burg Page 219
Count XXIX — Claim of Nicole Burg Page 227
Count XXX — Claim of Ricky Burg Page 234
CLAIMS AGAINST SOVI JOSEPH, M.D, P.A.
Count XXXI — Claim on behalf of Deborah Cooper Burg Page 242
Count XXXII - Claim of Nicole Burg Page 250
Count XXXIII — Claim of Ricky Burg Page 258
CLAIMS AGAINST SOVI JOSEPH
Count XXXIV — Claim on behalf of Deborah Cooper Burg Page 265
Count XXXV — Claim of Nicole Burg Page 273
Count XXXVI — Claim of Ricky Burg Page 280
CLAIMS AGAINST DOMINGO E. GALLIANO, JR., P.A.
Count XXXVII — Claim on behalf of Deborah Cooper Burg Page 287
Count XXXVIII — Claim of Nicole Burg Page 296
Count XXXIX — Claim of Ricky Burg Page 303
CLAIMS AGAINST DOMINGO GALLIANO, JR.
Count XL — Claim on behalf of Deborah Cooper Burg Page 311
Count XLI — Claim of Nicole Burg Page 318
Count XLII - Claim of Ricky Burg Page 325
CLAIMS AGAINST ARTURO RODRIGUEZ-MARTIN, M.D., P.L.
Count XLIII— Claim on behalf of Deborah Cooper Burg Page 332
Count XLIV — Claim of Nicole Burg Page 341
Count XLV — Claim of Ricky Burg Page 348
CLAIMS AGAINST ARTURO RODRIGUEZ-MARTIN
Count XLVI — Claim on behalf of Deborah Cooper Burg Page 356
Count XLVII — Claim of Nicole Burg Page 364
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 4
Count XLVIII - Claim of Ricky Burg Page 371
CLAIMS AGAINST MILLENNIUM PHYSICIAN GROUP, LLC
d/b/a MILLENNIUM PHYSICIAN GROUP
Count XLIX — Claim on behalf of Deborah Cooper Burg Page 379
Count L — Claim of Nicole Burg Page 386
Count LI — Claim of Ricky Burg Page 393
CLAIMS AGAINST CATHY CRISS
Count LII — Claim on behalf of Deborah Cooper Burg Page 400
Count LIII — Claim of Nicole Burg Page 408
Count LIV — Claim of Ricky Burg Page 414
CLAIMS AGAINST LIFE CARE CENTERS OF
AMERICA, INC. PURSUANT TO FLORIDA STATUTE CHAPTER 400
Count LV — Claim on behalf of Deborah Cooper Burg Page 421
Count LVI — Claim of Nicole Burg Page 427
Count LVII - Claim of Ricky Burg Page 433
CLAIMS AGAINST PUNTA GORDA MEDICAL INVESTORS,
LLC d/b/a LIFE CARE CENTER OF PUNTA GORDA
PURSUANT TO FLORIDA STATUTE CHAPTER 400
Count LVIII — Claim on behalf of Deborah Cooper Burg Page 438
Count LIX — Claim of Nicole Burg Page 445
Count LX — Claim of Ricky Burg Page 451
CLAIMS AGAINST LIFE CARE PHYSICIAN SERVICES, LLC
Count LXI — Claim on behalf of Deborah Cooper Burg Page 457
Count LXII — Claim of Nicole Burg Page 465
Count LXIII — Claim of Ricky Burg Page 473
CLAIMS AGAINST VANCE MALONEY, III
Count LXIV — Claim on behalf of Deborah Cooper Burg Page 481
Count LXV — Claim of Nicole Burg Page 489
Count LXVI — Claim of Ricky Burg Page 496
& Catallere, PA.
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 5
COME NOW, DEBORAH COOPER BURG, by and through her Court-appointed
Guardian, RICKY BURG; NICOLE BURG, her daughter; and RICKY BURG, her spouse, by
and through their undersigned attorneys, and sue the Defendants, WEST FLORIDA
PHYSICIAN NETWORK, LLC; DILENDRA WEERASINGHE; JOHN RIOUX; FAWCE
MEMORIAL HOSPITAL, INC. d/b/a FAWCETT MEMORIAL HOSPITAL; SUSAN BRUNER;
ABIGAIL UTECH; NANDINI KIRI, M.D., P.A.; NANDINI KIRI; HARBOR MEDICAL GROUP,
LLC; AHSAN KAMAL; SOVI JOSEPH, M.D., P.A.; SOVI JOSEPH; DOMINGO E. GALLIANO,
JR., P.A.; DOMINGO GALLIANO, JR.; ARTURO RODRIGUEZ-MARTIN, M.D., P.L.;
ARTURO RODRIGUEZ-MARTIN; MILLENNIUM PHYSICIAN GROUP, LLC d/b/a
MILLENNIUM PHYSICIAN GROUP; CATHY CRISS; LIFE CARE CENTERS OF AMERICA,
INC.; PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a LIFE CARE CENTER OF PUNTA
GORDA; LIFE CARE PHYSICIAN SERVICES, LLC; and VANCE MALONEY, III, and state:
DEFENDANT WEST FLORIDA PHYSICIAN NETWORK, LLC AS TO ITS
LIABILITY FOR THE CONDUCT OF DILENDRA WEERASINGHE AND
JOHN RIOUX
1. That this is an action for damages in excess of the jurisdictional limits of this
Court, exclusive of interest and costs.
2. That DEBORAH COOPER BURG, at all pertinent times, is a resident of Florida.
3. That RICKY BURG, at all pertinent times, is the lawful spouse of DEBORAH
COOPER BURG, and has been appointed by the Court to be her lawful Guardian of the
Person and Property as a result of the injuries inflicted upon her by Defendant WEST
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
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FLORIDA PHYSICIAN NETWORK, LLC. See Letters of Plenary Guardianship of the
Person and Property and Reports of Examining Committee Members attached hereto as
Composite Exhibit A.
4. That any and all conditions precedent to the maintenance of this action have
occurred or have been complied with by the Plaintiffs or have been waived by the
Defendant.
5. That the undersigned counsel for the Plaintiffs hereby certify that a reasonable
investigation as permitted by the circumstances has been made and said investigation
gives rise to a good faith belief that grounds exist for this action against said
Defendant.
6. That at all pertinent times, DEBORAH COOPER BURG was a patient of Defendant
WEST FLORIDA PHYSICIAN NETWORK, LLC. Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC is an entity that acted at all times by and through its employees,
Defendants DILENDRA WEERASINGHE, JOHN RIOUX, and JOHN RIOUX’S physician
extender, Debra Nowak. As to all matters concerning the care and treatment of
DEBORAH COOPER BURG, each of the said Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC'S employees acted at all pertinent times within the course and scope of
such employment. At all pertinent times, Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC acknowledged to DEBORAH COOPER BURG that it was the employer of
said individuals and further, said individuals agreed to act under said employment and
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 7
at all pertinent times, Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC had the
control or right of control of the actions of said employees.
7. That Defendants DILENDRA WEERASINGHE and JOHN RIOUX, at all pertinent
times, were medical doctors doing business in Charlotte County, Florida and were
residents of the State of Florida. Said Defendants held themselves out to DEBORAH
COOPER BURG as well as the patient community as being experts in bariatric surgery
and the proper preoperative, operative and postoperative bariatric surgical care and
treatment. Further, at all pertinent times, Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC employed Debra Nowak as a physician extender/advanced registered
nurse practitioner for Defendant JOHN RIOUX in instances when he was not physically
present with the patient and Defendant JOHN RIOUX supervised and/or had the
responsibility of supervising Debra Nowak at all such times and Debra Nowak acted
under the orders of Defendant JOHN RIOUX and acted in the role and capacity of his
physician extender in all matters at all pertinent times.
8. That on or about June 17, 2019, Defendant DILENDRA WEERASINGHE
performed bariatric surgery on DEBORAH COOPER BURG at Fawcett Memorial Hospital
and thereafter he and Defendants JOHN RIOUX and WEST FLORIDA PHYSICIAN
NETWORK, LLC assumed the duty and responsibility of performing the necessary
postoperative follow up on said patient. The bariatric surgery performed by Defendant
DILENDRA WEERASINGHE is known as a Roux-En-Y gastric bypass which represents
the reconstruction of DEBORAH COOPER BURG’S stomach in a markedly reduced
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 8
fashion so that she could only eat very small portions of food at a time. Because of the
reduced food intake, this procedure required DEBORAH COOPER BURG to be on a
special prophylactic daily and lifelong diet of proper nutrition and vitamin intake
including vitamin B1/Thiamine which is a vitamin absolutely necessary to proper
neurologic function and without an adequate amount of this vitamin, it was known or
should have been known to Defendants DILENDRA WEERASINGHE, JOHN RIOUX and
WEST FLORIDA PHYSICIAN NETWORK, LLC, as well as Debra Nowak, the physician
extender/advanced registered nurse practitioner for Defendant JOHN RIOUX, that
DEBORAH COOPER BURG’S neurologic system would be irreparably damaged resulting
in a condition known as Wernicke encephalopathy and Korsakoff psychosis which cause
the loss of the ability of the brain to properly think, process emotions as well as the loss
of proper speech, gait, motor function and sensory function, all of which rely upon the
neurologic system.
9. That Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and
through the above said physician employees, obtained actual and/or constructive
knowledge that postoperatively, DEBORAH COOPER BURG had become inflicted as a
result of her bariatric surgery and its sequelae with a condition of intractable vomiting
to such an intense degree that she was unable to obtain the necessary nutrition and
vitamin supplementation needed to sustain her proper bodily functioning including her
proper and healthy neurological system.
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
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10. At all pertinent times, the accepted standard of care for health care providers
such as Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, which acted by and
through its above said physician employees, involved in the care and treatment of
patients such as DEBORAH COOPER BURG who undergo bariatric surgery, included the
knowledge that even with otherwise successful bariatric surgery, patients such as her
are well known, within reasonable medical probability, to have difficulty sustaining
proper nutrition and adequate vitamin intake and thus, must be carefully monitored
postoperatively with a carefully designed and implemented plan of adequate nutrition
and vitamin intake post-bariatric surgery on a constant prophylactic daily basis for life
to prevent the neurologic damage that actually occurred to DEBORAH COOPER BURG.
Further, the accepted standard of care of health care providers such as Defendant
WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and through its above said
physician employees, included the knowledge that if a patient such as DEBORAH
COOPER BURG cannot or does not, because of intractable vomiting or otherwise,
maintain adequate nutrition and adequate vitamin intake including, but not limited to
vitamin B1/Thiamine, vitamin B12 and Folic Acid, then the neurologic system of the
patient such as DEBORAH COOPER BURG essentially starves leading to the onset of the
above described neurologic conditions called Wernicke encephalopathy and Korsakoff
psychosis.
11. That Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and
through its above said physician employees, breached the accepted standard of care it
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 10
owed to DEBORAH COOPER BURG in that, over a period of multiple weeks, when it had
actual and/or constructive knowledge that DEBORAH COOPER BURG was not obtaining
necessary nutrition and vitamin intake to maintain proper neurologic functioning, failed
to timely evaluate, assess, test, recognize, prevent and treat the known postoperative
bariatric surgical complications including but not limited to, vitamin B1/Thiamine
deficiency. In light of DEBORAH COOPER BURG'S post bariatric surgery presentation of
persistent and ongoing vomiting and poor oral intake, all of which Defendant WEST
FLORIDA PHYSICIAN NETWORK, LLC knew or should have known of, Defendant WEST
FLORIDA PHYSICIAN NETWORK, LLC, acting by and through its above said physician
employees, further breached the accepted standard of care it owed to DEBORAH
COOPER BURG by failing to anticipate and recognize the likelihood of vitamin
Bi/Thiamine deficiency occurring, by failing to take the necessary steps known and
needed to prevent the occurrence of vitamin B1/Thiamine deficiency by prophylactically
providing DEBORAH COOPER BURG adequate amounts of vitamin B1/Thiamine
replacement, and by failing to alert and inform DEBORAH COOPER BURG’S various
other health care providers of the necessity of providing replenishment of nutrition and
vitamin B1/Thiamine on a daily ongoing basis which was of critical and necessary
importance because without doing so, DEBORAH COOPER BURG, within reasonable
medical probability, was known or should have been known to Defendant WEST
FLORIDA PHYSICIAN NETWORK, LLC to be doomed to develop the catastrophic
neurologic disease known as Wernicke encephalopathy and its sequela, Korsakoff
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 11
psychosis. As a result of Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC'S,
acting by and through its above said physician employees, above breaches of the
accepted standard of care, the neurologic system of DEBORAH COOPER BURG has been
catastrophically injured and damaged on a permanent basis rendering DEBORAH
COOPER BURG totally disabled, through the onset of Wernicke encephalopathy and
Korsakoff psychosis.
12.That Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and
through its above said physician employees, had the duty to address DEBORAH
COOPER BURG'S nutritional starvation and vitamin insufficiency and its failure to do so
represents a breach of that duty and demonstrates conduct below the accepted
standard of care and professional prevailing practices that it had the duty to provide to
DEBORAH COOPER BURG. With further particularity, Defendant WEST FLORIDA
PHYSICIAN NETWORK, LLC, acting by and through its above said physician employees,
had actual and/or constructive knowledge that beginning on or about July 10, 2019,
DEBORAH COOPER BURG began suffering from near constant vomiting and the inability
to keep down food, nutrition, and vitamins including vitamin B1/Thiamine, resulting in
multiple trips to the Fawcett Memorial Hospital emergency room and as an inpatient in
the months of July and August 2019. Further, on or about August 7, 2019, Defendant
WEST FLORIDA PHYSICIAN NETWORK, LLC, by and through its employee, DILENDRA
WEERASINGHE, performed an upper endoscopy procedure on DEBORAH COOPER
BURG to investigate the cause of her near intractable vomiting and yet said Defendant
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DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 12
failed to order a simple blood test to determine DEBORAH COOPER BURG'S vitamin
B1i/Thiamine level and other vitamin levels or alternatively, to take steps to provide oral
or intravenous vitamin infusion to her or to alert her other health care providers as to
the necessity of replenishing vitamin B1/Thiamine to DEBORAH COOPER BURG so that
it would be assured that DEBORAH COOPER BURG would receive the proper nutrition
and vitamin B1/Thiamine intake. Defendant WEST FLORIDA PHYSICIAN NETWORK,
LLC, acting by and through its above said physician employees, knew or should have
known that vitamin B1/Thiamine and other vitamins and nutrients were critical to
DEBORAH COOPER BURG maintaining a properly functioning neurologic system.
Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and through its above
said physician employees, knew or should have known that without proper vitamin
B1i/Thiamine and other vitamin and nutrient infusion, DEBORAH COOPER BURG would,
within reasonable medical probability, sustain Wernicke encephalopathy and Korsakoff
psychosis and yet deviated from the accepted standard of care by failing to provide this
nutritional and vitamin support to DEBORAH COOPER BURG. The above conduct of
Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and through its above
said physician employees, represents deviations from the accepted standard of care and
prevailing professional practices it owed to DEBORAH COOPER BURG, which were a
legal cause of the catastrophic injuries and damages that befallen DEBORAH COOPER
BURG.
& Catallere, PA.
NEW WORLD TOWER « 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA $3992 » TEL (05) 388-6928
DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 13
13. Further, Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and
through its above said physician employees, assumed the responsibility and duty of
performing the bariatric surgery on DEBORAH COOPER BURG and assumed the
responsibility and duty of providing proper postoperative care, assessment, evaluation,
testing, treatment and communication with DEBORAH COOPER BURG’S present and
subsequent health care providers from July 10, 2019 through August 2019. Moreover,
subsequent to August 7, 2019, Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC,
acting by and through its above said physician employees, failed to follow up with
DEBORAH COOPER BURG or her other subsequent health care providers and
abandoned DEBORAH COOPER BURG by failing to take affirmative steps to either follow
up subsequent to August 7, 2019 to ensure she was receiving the proper medical
support and follow up so that she would be sure to receive proper nutrition and vitamin
B1i/Thiamine or ensure that a knowledgeable specialist in bariatric surgery provide the
appropriate follow up in the absence of Defendant DILENDRA WEERASINGHE and/or
Defendant JOHN RIOUX. Further, had Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC, acting by and through its above said physician employees, taken the
necessary affirmative steps to follow up with its patient, DEBORAH COOPER BURG, it
would have learned that she had to be re-hospitalized on August 10, 2019 at Fawcett
Memorial Hospital, a hospital of which Defendants DILENDRA WEERASINGHE and JOHN
RIOUX were on the staff of, whereby Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC, acting by and through its above said physician employees, had the
& Catallere, PA.
NEW WORLD TOWER « 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA $3992 » TEL (05) 388-6928
DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 14
duty to have either seen and treated DEBORAH COOPER BURG there and/or had the
duty to advise and communicate with her health care providers of the necessity of
proper nutrition and vitamin B1/Thiamine, without which DEBORAH COOPER BURG,
within reasonable medical probability, would be doomed to develop neurologic
dysfunction such as Wernicke encephalopathy and Korsakoff psychosis, or alternatively,
Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and through its above
said physician employees, had the duty to DEBORAH COOPER BURG to arrange for a
knowledgeable bariatric surgeon to follow up and consult and treat DEBORAH COOPER
BURG subsequent to August 7, 2019. Such conduct as stated above of Defendant
WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and through its above said
physician employees, represents conduct below the accepted standard of care and
professional prevailing practices that it had the duty to provide to DEBORAH COOPER
BURG. It breached that duty with the result being that DEBORAH COOPER BURG,
within reasonable medical probability, is catastrophically injured and damaged on a
permanent basis, by the onset of Wernicke encephalopathy and Korsakoff psychosis
and related maladies and sequelae therefrom including but not limited to,
hallucinations, the inability to clearly think, the inability to demonstrate emotional
control, the inability to properly walk, talk and otherwise have full motor and sensory
function.
14. That as a direct and proximate result of the above mentioned breaches of the
accepted standard of care and prevailing professional practices committed by
& Catallere, PA.
NEW WORLD TOWER « 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA $3992 » TEL (05) 388-6928
DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 15
Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC, acting by and through its above
said physician employees, DEBORAH COOPER BURG suffered permanent injuries
causing her to be permanently and totally disabled. DEBORAH COOPER BURG was
injured in and about her body and extremities, suffered aggravation of pre-existing
conditions, suffered and will suffer into the future pain therefrom, suffered and will
suffer into the future disability and physical impairment, suffered and will suffer into the
future mental pain and suffering, incurred and will incur into the future medical,
medically-related and care expenses in the treatment of her injuries, suffered and will
suffer into the future physical handicap, her capacity to enjoy life was impaired and will
be impaired into the future, and she lost earnings in the past and the ability and the
capacity to earn money in the future, as well as past and future loss of fringe-type
benefits related to employment. Within reasonable medical probability, her injuries are
permanent and continuing and DEBORAH COOPER BURG will suffer the above stated
losses and impairments in the future related thereto.
WHEREFORE, Plaintiff DEBORAH COOPER BURG, by and through her Court-
appointed Guardian, RICKY BURG, sues Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC for compensatory damages, interest on liquidated damages, costs and
demand trial by jury of all issues so triable herein.
FLORIDA PHYSICIAN NETWORK, LLC AS TO ITS LIABILITY FOR THE
CONDUCT OF DILENDRA WEERASINGHE AND JOHN RIOUX
NEW WORLD TOWER « 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA $3992 » TEL (05) 388-6928
DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 16
15. That this is an action for damages in excess of the jurisdictional limits of this
Court, exclusive of interest and costs.
16. That NICOLE BURG, at all pertinent times, is a resident of Florida and is the
unmarried natural daughter of DEBORAH COOPER BURG, who at all times material
hereto, was dependent on DEBORAH COOPER BURG. Further, NICOLE BURG was born
on (RAE anc is entitled to damages and to bring this claim pursuant to F.S.
768.0415.
17. That any and all conditions precedent to the maintenance of this action have
occurred or have been complied with by the Plaintiffs or have been waived by the
Defendant.
18. That the undersigned counsel for the Plaintiffs hereby certify that a reasonable
investigation as permitted by the circumstances has been made and said investigation
gives rise to a good faith belief that grounds exist for this action against said
Defendant.
19. That at all pertinent times, DEBORAH COOPER BURG was a patient of
Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC. Defendant WEST FLORIDA
PHYSICIAN NETWORK, LLC is an entity that acted at all times by and through its
employees, Defendants DILENDRA WEERASINGHE, JOHN RIOUX, and JOHN RIOUX’S
physician extender, Debra Nowak. As to all matters concerning the care and treatment
of DEBORAH COOPER BURG, each of the said Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC’S employees acted at all pertinent times within the course and scope of
& Catallere, PA.
NEW WORLD TOWER « 100 N. BISCAYNE BOULEVARD, SUITE 2802 - MIAMI, FLORIDA $3992 » TEL (05) 388-6928
DEBORAH COOPER BURG, et al. v WEST FLORIDA PHYSICIAN NETWORK, LLC, et al.
CASE NO. 2020-000616 CA
Page 17
such employment. At all pertinent times, Defendant WEST FLORIDA PHYSICIAN
NETWORK, LLC acknowledged to DEBORAH COOPER BURG that it was the employer of
said individuals and further, said individuals agreed to act under said employment and
at all pertinent times, Defendant WEST FLORIDA PHYSICIAN NETWORK, LLC had the
control or right of control of the actions of said employees.
20.That Defendants DILENDRA WEERASINGHE and JOHN
Related Content
in Charlotte County
Ruling
FARSHID NIKFARJAM VS CAROL GARCIA
Jul 19, 2024 |
23SMCV04996
Case Number:
23SMCV04996
Hearing Date:
July 19, 2024
Dept:
M
CASE NAME:
Nikfarjam v. Garcia
CASE NO.:
23SMCV04996
MOTION:
Motion to Compel Initial Discovery Responses
HEARING DATE:
7/12/2024
Legal Standard
If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (CCP § 2030.290(b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (
Leach v. Superior Court
(1980) 111 Cal. App. 3d 902, 905-906.)
Where there has been no timely response to a CCP section 2031.010 inspection demand, the demanding party must seek an order compelling a response. (CCP § 2031.300.) Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required.
ANALYSIS
D
efendant Carol Garcia moves to compel Plaintiff Farshid Nikfarjam to respond, without objections, to the Special Interrogatories, Set No. One, Form Interrogatories, Set No. One, and Demand for Production of Documents, Set No. One (collectively, the Subject Discovery), within fifteen (15) days. This action concerns personal injuries and damage from an automobile accident occurred on October 25, 2021.
Defendant propounded the subject discovery by mail on January 19, 2024. Plaintiff did not serve responses within the original due date of February 21, 2024. (Saakian Decl., Exs. A.) On April 16, 2024, Defendant informed Plaintiff of their intent to move to compel. (See Id., Exs. B.) Defendant demonstrates that Plaintiff has failed to respond to duly issued discovery. Accordingly, the motions to compel are GRANTED.
Further responses are ordered, without objection, within 20 days.
SANCTIONS
Sanctions are mandatory. The Court must sanction any party that unsuccessfully makes or opposes a motion to compel a further response, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (See, e.g., CCP, §
2030.290
(c).) Plaintiff has failed to oppose, and therefore failed to justify their failure to respond to these discovery requests.
Defendant requests sanctions of $1,760.00, $760.00, and $760.00 for the respective motions to compel. (See Saakian Decl., ¶ 5.) Using the lodestar method, and considering the duplicative nature of the three motions, the Court finds that a reasonable sanction for the three motions would be $2,280.00 ($760/motion), inclusive of costs.
Ruling
Black Knight Fire Support, Inc. vs. Peterson Holding Company, et al.
Jul 16, 2024 |
22CV-0201274
HOLDING COMPANY, ET AL.
Case Number: 22CV-0201274
Tentative Ruling on Motion for Judgment on the Pleadings. This is a breach of contract case
arising out of maintenance and repair work that Plaintiff alleges it hired Defendants to perform on
a bulldozer in 2020. Defendants move for judgment on the pleadings, on the grounds that the First
Amended Complaint fails to state facts sufficient to constitute a cause of action against Defendants
Peterson Holding Company and Peterson Tractor Company. Plaintiff opposes the motion.
Meet and Confer: Before filing a motion for judgment on the pleadings, moving party's counsel
must meet and confer, in person or by telephone, with counsel for the party who filed the pleading
subject to the judgment on the pleadings motion “for the purpose of determining if an agreement
can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.”
CCP § 439(a). Here, the Declaration of Paul Meidus attaches as Exhibit A a “Meet and Confer”
email he sent to Plaintiff’s counsel midday on May 21, 2024. Mr. Meidus’s Declaration states that
as of the date of the filing, he had not received a response from counsel. The instant Motion was
filed May 22, 2024. The Court’s Order dated June 17, 2024, noted that this was not a good faith
effort to meet and confer, and ordered Defendant to file a supplemental declaration regarding
additional efforts to determine if an agreement could be reached, no later than July 9, 2024. No
such declaration has been filed. Defendant has not adequately met and conferred as required by
CCP § 439(a). Defendant was also ordered to file proper proof of service of the motion, as none
had been previously filed. Defendant did not do so.
Timeliness of Motion: CCP 438(e): No motion may be made pursuant to this section if a pretrial
conference order has been entered pursuant to Section 575, or within 30 days of the date the action
is initially set for trial, whichever is later, unless the court otherwise permits. Here, it appears no
pretrial conference order has been entered. However, the date the action was initially set for trial
was November 28, 2023. That date has long passed, and the parties have sought and received two
continuances of the trial date since then. The parties have participated in a mandatory settlement
conference, and have engaged in motion practice including on discovery issues. As Defendants
argue, the motion is untimely under CCP 438(e). Despite the time limitation imposed by CCP
438(e), which was codified in 1994, Courts have since held that a nonstatutory motion for
judgment on the pleadings survives without the time limitation. “A motion for judgment on the
pleadings may be made at any time either prior to the trial or at the trial itself.” Stoops v. Abbassi
(2002) 100 CA4th 644, 650.
Request for Judicial Notice: Pursuant to Evid. Code §§ 452 and 453, the Court GRANTS
Defendants’ request for judicial notice of the Complaint and First Amended Complaint.
Merits: A motion for judgment on the pleadings has the same function as a general demurrer but
is made after the time for demurrer has expired. Except as provided by CCP § 438, the rules
governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 CA4th 995, 999;
Templo v. State of Calif. (2018) 24 CA5th 730, 735 (motion for judgment on the pleadings is
equivalent to a demurrer). The grounds for a motion for judgment on the pleadings must appear
on the face of the challenged pleading or be based on facts the court may judicially notice. CCP
§ 438(d); Tung v. Chicago Title Co. (2021) 63 CA5th 734, 758-759.
The First Amended Complaint (“FAC”) filed October 26, 2023, is the operative pleading.
Defendants named in the caption include Peterson Holding Company, Brian Adams, and Peterson
Tractor Co. The parties stipulated to the amendment of the FAC, which changed Plaintiff’s name
to Black Knight Enterprises (it was formerly Black Knight Fire Support, Inc.). The order on that
stipulation was entered on October 23, 2023. The FAC alleges: Peterson Holding Company and
Peterson Tractor Company (“Peterson”) operate several lines of business, including Peterson-
CAT. (FAC ¶4.) Peterson, as Peterson-CAT, sells Caterpillar brand earthmoving and construction
equipment, and provides maintenance and repair services for such equipment. (FAC ¶4.) Peterson
operates at several locations, including a facility in Redding, County of Shasta, California, which
was where Peterson’s obligations which are the subject of this complaint were to be performed.
(FAC ¶4.) Peterson’s service manager Brian Adams provided a quote for maintenance work which
Plaintiff accepted on December 2, 2020. (FAC ¶ 10.)
The FAC contains numerous further allegations against Peterson. The Court only looks to the face
of the pleadings and matters subject to judicial notice on a motion for judgment on the pleadings.
This is a well-pleaded complaint making allegations that Peterson Holding Company and Peterson
Tractor Company entered into a contract with Plaintiff in 2020 for maintenance work that was
performed. The identity of the correct business entity which is directly liable to Plaintiff may be
Peterson Holding, Peterson Tractor, or Peterson-CAT – but that information is in the control of
the Defendants. The Court notes that on June 24, 2024, this Court granted Plaintiff’s Motions to
Compel Discovery Responses, which had not been provided as required by the CCP, despite
several reasonable extensions granted by Plaintiff. The responses presumably will permit Plaintiff
to amend to add Peterson-CAT as a named defendant if necessary.
On a motion for judgment on the pleadings, as on a demurrer, the court “treat[s] the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions or conclusions of
fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal. App. 4th 435,
438. No matter how unlikely, a plaintiff’s allegations must be accepted as true for the purpose of
ruling on a demurrer. Del. E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d
593, 604. A plaintiff must plead ultimate facts that acquaint the defendant with the nature, source
and extent of plaintiff’s causes of action. Doe v. City of Los Angeles (2007) 42 Cal. 4th 542, 550.
Here, Defendants are clearly aware of the allegations in this matter and the events which gave rise
to them. Defendants are arguing corporate form shields two of the defendants from liability.
Notably, Defendants’ pleading is conspicuously silent as to what the actual corporate relationship
is here, even though that information is within its custody and control. The Motion for Judgment
on the Pleadings is DENIED. No proposed order has been lodged as required by Local Rule
5.17(D). Defendant shall prepare the order.
Ruling
FARRARA, ET AL VS. AIRBNB, INC.
Jul 16, 2024 |
CVCV21-0198447
FARRARA, ET AL VS. AIRBNB, INC.
Case Number: CVCV21-0198447
Tentative Ruling on Petition to Approve Minor Compromise: Brianna Farrara seeks an order
approving the compromise of a claim on behalf of her minor son, Alexander Farrara. California
Rules of Court, Rule 7.950 states that a petition for court approval of a minor’s compromise must
contain a full disclosure of all information that has any bearing upon the reasonableness of the
compromise. The Petition provides the required information. Considering the nature of the
minor’s injuries and level of recovery and the uncertainty of liability, the Court is prepared to find
that the settlement is in the best interest of the minor if the voir dire process is completed to the
Court’s satisfaction.
The Court notes this is not an expedited petition brought on Judicial Council Form MC-350EX.
See CRC Rule 7.950.5. Hearing is thus needed on the Petition before it can be approved. The
person seeking approval of the settlement on behalf of the minor and the minor are required to
appear at the hearing, unless good cause is presented for their non-appearance. CRC Rule 7.952.
The Petitioner and minor are required to appear. Counsel will voir dire the Petitioner about the
terms of the settlement, any other potential sources to increase the settlement amount, whether the
minor has fully recovered and whether the Petitioner understands that once approved, the
settlement is final and binding on the minor. Once satisfied, the Court intends to grant the Petition
and set this matter for review for confirmation of deposit of the funds into a court blocked account.
An appearance by the Petitioner and minor is necessary on today’s calendar.
Ruling
DELMY YADIRA VARGAS HERNANDEZ, AN INDIVIDUAL, ET AL. VS NATIONAL COMMUNITY RENAISSANCE OF CALIFORNIA, A CALIFORNIA CORPORATION
Jul 18, 2024 |
24STCV04359
Case Number:
24STCV04359
Hearing Date:
July 18, 2024
Dept:
39
TENTATIVE RULING
DEPT
:
39
HEARING DATE
:
July 18, 2024
CASE NUMBER
:
24STCV04359
MOTION
:
Demurrer to Complaint
Motion to Strike Portions of Complaint
MOVING PARTY:
Defendant National Community Renaissance of California
OPPOSING PARTY:
Plaintiffs Delmy Yadira Vargas Hernandez, Sebastian Gonzalez, Delmy S. Gonzalez, Babie J. Gonzalez
MOTION
Plaintiffs Delmy Yadira Vargas Hernandez, Sebastian Gonzalez, Delmy S. Gonzalez, and Babie J. Gonzalez (Plaintiffs) sued Defendant National Community Renaissance of California (Defendant) for habitability violations.
Defendant demurs to Plaintiffs complaint.
Plaintiffs oppose the motion.
ANALYSIS
[A] demurrer tests the legal sufficiency of the allegations in a complaint. (
Lewis v. Safeway, Inc.
(2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must liberally construe[] the allegations of the complaint. (Code Civ. Proc., § 452.)
This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (
Perez v. Golden Empire Transit Dist.
(2012) 209 Cal.App.4th 1228, 1238.)
Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)
On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b);
Stafford v. Shultz
(1954) 42 Cal.2d 767, 782.)
Plaintiffs first cause of action is for breach of contract.
Plaintiffs allege Defendant breached the terms of the lease with Plaintiffs by failing to provide a habitable unit.
(Complaint, ¶ 19.)
For pleading purposes, these allegations suffice.
Plaintiffs attach a lease addendum to the complaint and allege this is the operative agreement between the parties.
(
Id.
, ¶ 16, Exhibit B.)
Defendant argues this agreement is not a lease, but rather an addendum to a lease.
That is immaterial.
Plaintiffs allege Defendant breached the agreement Plaintiff attached to the complaint.
Plaintiffs are entitled to plead breach of contract in general terms.
(See
Ochs v. PacifiCare of California.
(2004) 115 Cal.App.4th 782, 795 [In an action based on a written contract, the plaintiff may plead the legal effect of the contract rather than its precise language].)
Defendant may obtain further information regarding Plaintiffs claims through discovery.
The demurrer to the first cause of action is overruled.
Likewise, Defendants argument Plaintiffs fifth cause of action for nuisance is duplicative fails.
Plaintiffs are entitled to plead in the alternative.
(See
Mendoza v. Continental Sales Co
. (2006) 140 Cal.App.4th 1395, 1402 [modern practice allows
. . . party to plead in the alternative and make inconsistent allegations].)
The demurrer to the fifth cause of action is overruled.
Defendant argues Plaintiffs seventh cause of action for violation of Los Angeles Municipal Code section 45.30 fails because Plaintiffs apartment is not within the city limits of Los Angeles.
Plaintiffs concede this point.
Accordingly, the court sustains the demurrer to the seventh cause of action.
In opposition, Plaintiffs seek leave to amend to assert a claim under the Los Angeles County Code, asserting they were under the mistaken understanding the subject property was located in the City of Los Angeles.
[U]nder this states liberal rules of pleading, the right of a party to amend to correct inadvertent misstatements of facts or erroneous allegations of terms cannot be denied. [Citation.].
(
Berman v. Bromberg
(1997) 56 Cal.App.4th 936, 945.)
Therefore, the court will grant Plaintiff leave to amend the seventh cause of action.
Defendant moves to strike the prayer for punitive damages.
In ruling on a motion to strike punitive damages, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (
Clauson v. Superior Court
(1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (
College Hospital, Inc. v. Superior Court
(1994) 8 Cal.4th 704, 721 (
College Hospital
).)
Therefore, a plaintiff must allege the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).)
Malice is defined as conduct intended by the defendant to cause injury to the plaintiff, or
despicable
conduct which is carried on by the defendant with a
willful
and conscious disregard of the rights or safety of others. [Citation.] (
College Hospital
,
supra
, 8 Cal.4th at p. 725.)
The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. (
Grieves v. Superior Court
(1984) 157 Cal.App.3d 159, 166, internal citations and footnotes omitted.)
Plaintiffs allege Defendant failed to maintain the apartment Plaintiffs leased from Defendant in a habitable condition, and Defendant did not remedy such conditions even though Plaintiffs informed Defendant of the issues.
(See, e.g., Complaint, ¶¶ 10-12.)
However, Plaintiffs do not allege any specific facts to show Defendant acted with malice, rather than negligently.
As such, Plaintiffs have not alleged a claim for punitive damages against Defendant.
The court grants the motion to strike the prayer for punitive damages with leave to amend.
Defendant also moves to strike the prayer for attorney fees.
Plaintiffs allege they are entitled to attorney fees pursuant to the terms of their lease with Defendant.
However, the lease Plaintiffs attach to the complaint does not contain an attorney fees provision.
Plaintiffs concede as much.
If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (
Holland v. Morse Diesel Intern., Inc.
(2001) 86 Cal.App.4th 1443, 1447.)
Accordingly, the motion to strike the prayer for attorney fees is granted without leave to amend.
Should Plaintiffs obtain evidence of an applicable contractual attorney fees provision in discovery or determine there is any other bases for an award of attorney fees, Plaintiffs may file a motion for leave to amend their complaint, accordingly.
CONCLUSION AND ORDER
Defendants demurrer to Plaintiffs seventh cause of action is sustained with leave to amend.
Defendants demurrer is otherwise overruled.
Defendants motion to strike the punitive damages allegations is granted with leave to amend.
Defendants motion to strike the prayer for attorney fees is granted without leave to amend at this time.
Plaintiffs are to file an amended complaint within 10 days.
Defendant is ordered to provide notice of this order and file proof of service of same.
Ruling
RIEYAHNE BLAYLOCK VS. CITY AND COUNTY OF SAN FRANCISCO ET AL
Jul 15, 2024 |
CGC23605751
Matter on the Law & Motion Calendar for Monday, July 15, 2024, Line 6. PLAINTIFF RIEYAHNE BLAYLOCK BY AND THROUGH GARDIAN AD LITEM HALIMA QUINN's Motion To Quash Subpoenas From Defendantt Ccsf And Request For Sanctions. The judge pro tem's report and recommendation is adopted. 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. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and attaches a copy of the report and recommendation and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. 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
E. vs. Bright Starz Day Care
Jul 17, 2024 |
SCV-273747
SCV-273747, E. v. Bright Starz Day Care
Plaintiff Anastasia E. (“Plaintiff”) by and through her guardian ad litem Rachele Eschenburg
(“Guardian Ad Litem”) filed the complaint (the “Complaint”) in this action against Bright Starz
Day Care (“Bright Starz”), Jackielyn Bausley (“Bausely”, together with Bright Starz,
“Defendants”), and Does 1 through 25 for causes of action arising from alleged sexual abuse of
Plaintiff while under the care of Defendants.
This matter is on calendar for the motion by Plaintiff through her Guardian Ad Litem pursuant to
Cal. Code Civ. Proc. (“CCP”) § 473 for leave to amend the Complaint. No opposition is on file.
The Motion is DENIED without prejudice.
I. Governing Authorities
While motions to amend a pleading are generally within the discretion of the court, it does
require that some showing be made which justifies the court’s exercise of discretionary power.
Baxter v. Riverside Portland Cement Co. (1913) 22 Cal.App. 199, 201. Though there is no
statute requiring the filing of an affidavit, it is the burden of the moving party to place before the
court such material to evidence that the ends of justice will be served through granting the
motion. Plummer v. Superior Court for Los Angeles County (1963) 212 Cal.App.2d 841, 844.
Any motion to amend must be accompanied by a supporting declaration stating the effect of the
amendment, why the amendment is necessary and proper, when the changed facts were
discovered, and the reasons why amendment was not made earlier. CROC, rule 3.1324 (b).
II. Analysis
First, Plaintiff has failed to produce any of the requirements under Rule 3.1324 beyond a copy of
the proposed amended complaint and a motion which contains no authority cited. Additionally,
there is no declaration submitted meeting the evidentiary burdens necessary for this type of
motion. Plaintiff has submitted a proposed amended complaint, but it does not provide
“additional facts” as argued in the motion. See Plaintiff’s Proposed Amended Complaint
(“PAC”). Rather, it adds a cause of action for breach of contract, while eliminating much of the
factual allegations. Contra, Complaint (the alleged assault occurred on November 23, 2022). It is
deleterious to Defendants’ ability to respond for Plaintiff to have not included the required list of
revisions as required under Rule 3.1324 (a), as it inhibits the ability of both Defendants and the
Court to review the changes Plaintiff proposes.
As noted, the lack of declaration signed under penalty of perjury in support also makes the
motion deficient. It fails to show the effect of the amendment, why the amendment is necessary
and proper, when the facts giving rise to the allegations were discovered, and why the request for
amendment was not made earlier. Plaintiff (through Guardian Ad Litem) must meet her
evidentiary burden for the Court to have the power to allow amendment.
Second, there is no evidence before the Court showing that the motion was served on the
Defendants. There is no proof of service in the file, and no opposition is on file from Defendants.
See California Rule of Court, Rule 3.510 (Proofs of service are due 5 court days before the
hearing). Defendants having not received notice of the motion, denial is proper. See, Code of
Civil Procedure, §§ 1005 and 1010 (motions, and notice of the date on which they are to be
heard, are to be served at least 16 court days before the hearing).
Therefore, Plaintiff’s motion to amend is DENIED without prejudice.
**This is the end of the Tentative Rulings.***
Ruling
MALVINA MKHCHYAN VS MARGARET MARY LEWIS
Jul 15, 2024 |
21STCV31743
Case Number:
21STCV31743
Hearing Date:
July 15, 2024
Dept:
28
Having reviewed the moving and supplemental papers, the Court rules as follows.
BACKGROUND
On August 26, 2021, Plaintiff Malvina Mkchyan (Plaintiff) filed a complaint against Defendants Margaret Mary Lewis (Defendant) and Does 1-50 for motor vehicle tort and general negligence.
On May 15, 2023, Defendant filed an answer.
On February 22, 2024, Defendant filed (1) a motion to compel Plaintiffs further responses to special interrogatories, set one, and for sanctions, and (2) a motion to compel Plaintiffs further responses to form interrogatories, set one, and for sanctions.
The motions were set to be heard on April 22, 2024.
On April 22, 2024, the Court continued the hearing to May 16, 2024 and ordered Defendant to file supplemental declarations or briefs explaining whether her motions were timely under Code of Civil Procedure section 2030.300, subdivision (c). The Court granted Plaintiff leave to file responsive declarations or briefs.
On May 2, 2024, Defendant filed supplemental briefs. The Court continued the hearing to July 15, 2024.
Trial is currently scheduled for August 22, 2024.
DISCUSSION
A.
Informal Discovery Conference
The Los Angeles Superior Courts Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts Effective October 10, 2022 (filed September 20, 2022) (Eighth Amended Standing Order), ¶ 9E, provides: PI Hub Courts will not hear Motions to Compel Further Discovery Responses to Discovery until the parties have engaged in an Informal Discovery Conference (IDC). PI Hub Courts may deny or continue a Motion to Compel Further Responses to Discovery if parties fail to schedule and complete an IDC before the scheduled hearing on a Motion to Compel Further Responses to Discovery.
Defendant scheduled and attended an IDC on February 20, 2024.
Plaintiff did not attend the IDC. The Court took the IDC off calendar and ruled that Defendant could proceed with motions to compel further discovery responses.
B.
Timeliness
Unless notice of [a motion to compel further responses to interrogatories] is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. (Code Civ. Proc., § 2030.300, subd. (c).)
The statutory deadline for a motion to compel further responses to interrogatories is mandatory and the Court lacks jurisdiction to entertain a belated motion to compel. (See
Golf & Tennis Pro Shop, Inc. v. Superior Court
(2022) 84 Cal.App.5th 127, 137 (
Golf & Tennis Pro Shop
);
Vidal Sassoon, Inc. v. Superior Court
(1983) 147 Cal.App.3d 681, 683, 685 (
Vidal Sassoon
).)
On February 22, 2024, Defendant filed (1) a motion to compel further responses to special interrogatories, set one, and request for sanctions, and (2) a motion to compel further responses to form interrogatories, set one, and request for sanctions. The motions stated that Defendants counsel received Plaintiffs responses to Defendants special and form interrogatories on November 3, 2023. The motions also stated that although Defendants counsel asked Plaintiffs counsel for an extension of time to file a motion to compel further responses to the interrogatories, Plaintiffs counsel did not respond to the request.
On April 22, 2024, the Court issued an order observing that the 45-day deadline to file a motion to compel further responses begins to run only when verified responses are served and it was not clear if the responses which Defendants counsel received on November 3, 2023 were verified.
The Court continued the hearing to May 16, 2024 and ordered Defendant to file supplemental declarations or briefs explaining whether her motions were timely under Code of Civil Procedure section 2030.300, subdivision (c). The Court granted Plaintiff leave to file responsive declarations or briefs.
On May 2, 2024, Defendant filed supplemental briefs stating that Plaintiff served verifications to the discovery responses on November 7, 2023.
Defendant asserts that Plaintiffs counsel agreed to extend Defendants time to file motions to compel further responses to January 12, 2024 and then for an additional three weeks. (Defendants Supplemental Brief p. 6.) Based on Defendant's representations, Defendant's deadline to file motions to compel further responses would have been February 2, 2024.
On January 19 and 30, 2024, Defendants counsel asked Plaintiffs counsel for a 60-day extension of time to file motions to compel further responses to the special and form interrogatories. (Defendants Supplemental Brief p. 6.) Plaintiffs counsel did not respond to the request.
As noted, Defendant filed motions to compel further responses on February 22, 2024, after the February 2, 2024 deadline.
Nonetheless, Defendant argues that the Court instructed Defendant to file motions to compel further discovery and tolled all motion deadlines related to the discovery at issue in doing so at the February 20, 2024 informal discovery conference.
(Supplement Brief pp. 2-3.)
As support for this argument, Defendant cites the Courts February 20, 2024 minute order, which stated that notwithstanding Plaintiff's failure to appear at the informal discovery conference, Counsel for Defendant may move forward with filing the Motions to Compel Further Discovery Responses and the Court will rule on the Motions on their scheduled dates of 4/22 and 4/23/22024 at 1:30 p.m. in this Department.
The timeliness issue was not before the Court at the February 20, 2024 informal discovery conference and the Court did not address it. In stating that Defendant could proceed with filing her motion, the Court meant only that Defendant had complied with the Eighth Amended Standing Orders requirement that a party participate in an informal discovery conference before the Court will hear the partys motion to compel further discovery responses. Indeed, the Court has no authority to waive the timeliness requirement.
(See
Golf & Tennis Pro Shop
,
supra
, 84 Cal.App.5th at p. 137;
Vidal Sassoon
,
supra
, 147 Cal.App.3d at pp. 683, 685.)
If Defendant relied on the language of the Courts February 20, 2024 minute order to support a belief that that the Court tolled all motion deadlines related to the discovery (Supplemental Brief p. 3), Defendants reliance was misplaced.
Defendant also argues that [a]t the February 20, 2024, IDC hearing, the court necessarily tolled the applicable motion deadlines under former Code of Civil Procedure section 2016.080(c)(2) by giving Defendant permission to file her Motions at the Informal Discovery Conference.
(Supplemental Brief p. 4.) But as Defendant acknowledges, former Code of Civil Procedure section 2016.080, subdivision (c)(2), was not in effect when the February 20, 2024 informal discovery conference took place.
Defendant also relies on the Eighth Amended Standing Orders statements that (1) parties are encouraged to stipulate to extend the deadline for filing a Motion to Compel Further Discovery Responses by 60 days in order to allow time to participate in an IDC and to informally resolve the pending discovery issues and (2) [a] partys failure to stipulate to extend the time to bring a Motion to Compel Further Discovery Responses so that an IDC may be held may subject the parties and/or counsel to the imposition of sanctions.
(Eight Amended Standing Order ¶ 9 E.)
Defendant does not mention the Eighth Amended Standing Orders warning that [r]eserving or scheduling an IDC
does not extend the time to file a Motion to Compel Further Discovery Responses.
(
Ibid
., bold in original.)
The Eighth Amended Standing Order suggests that [i]f parties do not stipulate to extend the deadline(s) to file a Motion to Compel Further Discovery Responses, the moving/propounding party may file the motion to avoid it being deemed untimely.
(
Ibid
.)
Defendant did not follow this suggestion.
The Court denies the motions as untimely.
CONCLUSION
The Court DENIES Defendant
Margaret Mary Lewiss motion to compel further responses to special interrogatories, set one, and for sanctions.
The Court DENIES Defendant Margaret Mary Lewiss motion to compel further responses to form interrogatories, set one, and for sanctions.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file proof of service of this ruling within five days.
Ruling
Figueroa vs. State of California (Department of Social Services), et al.
Jul 16, 2024 |
22CV-0200829
SOCIAL SERVICES), ET AL.
Case Number: 22CV-0200829
This matter is on calendar for review regarding status of default and trial setting. This case was
filed in October of 2022, but is still not at issue. Doe Defendant La-Z-Boy Incorporated was served
on December 4, 2023, but has not yet appeared. The Court has received and executed a stipulated
order re filing of a Second Amended Complaint. The Court will therefore continue this matter 60
days to allow said Complaint to be filed and served. The Court continues this matter to September
16, 2024 at 9:00 p.m. in Dept. 64. The parties are to file with the Court a Status Conference
Statement 5 days prior thereto. No appearance is necessary on today’s calendar.