Preview
(FILED: BRONX COUNTY CLERK 05/07/2015 01:47 PM INDEX NO. 22653/2015ENYSCEF DOC. NO. 1 RECEIVED NYSCEF: 05/07/2015SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF BRONXQUINTIN RODRIGUEZ, Index No.:Plaintiff, Plaintiff designates BRONXCOUNTY as the place of Trial-against-THE CITY OF NEW YORK, NEW YORK The basis of venue is PLACE OFOCCURRENCE.CITYDEPARTMENT OF CORRECTIONS.> SUMMONSCORRECTIONS OFFICER TYRONECORKER (Shield 2801), CORRECTIONSOFFICER MATTHEW PEDLAR (Shield4988), CORRECTIONS OFFICER MARKLOADHOLT (Shield 11101), CORRECTIONSOFFICER IRVING EPSTEIN (Shield 18514),CORRECTIONS CAPTAIN WANDA BLAIR(Shield 0041) and CORRECTIONS OFFICERSJOHN DOE, Individually and in their OfficialCapacities,Defendants.TO THE ABOVE-NAMED DEFENDANTS:You are hereby summoned to answer the verified complaint in this action and to serve acopy of your answer, or, if the verified complaint is not served with this summons, to serve anotice of appearance, on the Plaintiff's Attorney within 20 days after the service of thissummons, exclusive of the day of service (or within 30 days after the service is complete if thissummons is not personally delivered to you within the State of New York); and in case of yourfailure to appear to answer, judgment will be taken against you by default for the reliefdemanded in the verified complaint. -Dated: New York, New YorkMay 7, 2015Yours, etc.,FISHER & BYRIALSEN PLLCAttorney for Plaintiff291 Broadway, Suite 709New York, New York 10007(212) 962-0848oi oxhatie cM bres)Kaitlin F. Nares, Esq. (5198718)Defendants Addresses:City of New York100 Church StreetNew York, NY 10007New York City Department of Corrections100 Church StreetNew York, NY 10007Corrections Officer Tyrone Corker (Shield 2801)11-11 Hazen StreetEast Elmburst, NY 11370Corrections Officer Matthew Pedlar (Shield 4988)1-11 Hazen StreetEast Elmhurst, NY 11370Corrections Officer Mark Loadholt (Shield 11101)1-11 Hazen StreetEast Elmhurst, NY 11370Corrections Officer Irving Epstein (Shield 18514)1-11 Hazen StreetEast Elmhurst, NY 11370Corrections Captain Wanda Blair (Shield 0041)1-11 Hazen StreetEast Elmhurst, NY 11370SUPREME COURT OF THE STATE OF NEW YORK.COUNTY OF BRONXQUINTIN RODRIGUEZ, .Plaintiff,-against-THE CITY OF NEW YORK, NEW YORK CITYDEPARTMENT OF CORRECTIONS, CORRECTIONSOFFICER TYRONE CORKER (Shield 2801),CORRECTIONS OFFICER MATTHEW PEDLAR(Shield 4988), CORRECTIONS OFFICER MARK.LOADHOLT (Shield 11101), CORRECTIONSOFFICER IRVING EPSTEIN (Shield 18514),CORRECTIONS CAPTAIN WANDA BLAIR(Shield 0041) and CORRECTIONS OFFICERSJOHN DOE, Individually and in their Official Capacities,Defendants.SUMMONSFISHER & BYRIALSEN, PLLCAttorneys for: PlaintiffQUINTIN RODRIGUEZ291 Broadway, Suite 709New York, NY 10007(212) 962-0848Service of a copy of the within is hereby admittedDated:.NEW YORK SUPREME COURT ~~COUNTY OF NEW YORK BRONXQUINTIN RODRIGUEZ,Plaintiff, VERIFIED COMPLAINTAND DEMAND FOR-against- JURY TRIALTHE CITY OF NEW YORK, NEW YORK CITYDEPARTMENT OF CORRECTIONS, CORRECTIONSOFFICER TYRONE CORKER (Shield 2801),CORRECTIONS OFFICER MATTHEW PEDLAR(Shield 4988), CORRECTIONS OFFICER MARKLOADHOLT (Shield 11101), CORRECTIONSOFFICER IRVING EPSTEIN (Shield 18514),CORRECTIONS CAPTAIN WANDA BLAIR(Shield 0041) and CORRECTIONS OFFICERSJOHN DOE, Individually and in their Official Capacities,Defendants.Plaintiff, QUINTIN RODRIGUEZ, by and through his attorneys, Fisher & ByrialsenPLLC, complaining of the defendants herein, respectfully shows the Court and alleges:PRELIMINARY STATEMENT1. This is a civil rights action in which the plaintiff, Quintin Rodriguez, seeks relief fordefendants’ violations, under color of state law, of his rights, privileges and immunities securedby the 42 U.S.C. § 1983; and the Fourth, Fifth, Fourteenth and Eighth Amendments to the UnitedStates Constitution; and the Constitution and laws of the State of New York.2. Defendants, the City of New York (hereinafter, “NYC”), New York City Departmentof Corrections, Corrections Officers Tyrone Corker (Shield 2801), Matthew Pedlar (Shield4988), Mark Loadholt (Shield 11101), Irvin Epstein (Shield 18514), Captain Wanda Blair(Shield 0041), and New York City Corrections Officers John Does; individually and, as the casemay be, in their official capacities, jointly and severally, did cause plaintiff Quintin Rodriguez tobe subject to, inter alia, excessive and unreasonable force, causing him physical and mentalinjury.3. Plaintiff is not the only inmate at Rikers Island who has been subjected to brutality byNew York City Corrections Officers. The pattern of brutality in the City’s jails is deeplyentrenched. In 1990, inmates first obtained injunctive relief in Fisher v. Koehler, 83-CV-2128(S.D.N.Y.), in a class action addressing excessive use of force in the Correction Institution forMen (“CIFM”), a Rikers Island jail now known as the Eric M. Taylor Center ((EMTC”).Although that injunction remains in effect, its terms are apparently limited to EMTC. In thesubsequent years, classes of plaintiffs obtained injunctive relief reducing excessive andunnecessary use of force in the Bellevue Prison Psychiatric Ward (Reynolds v, Ward, 81-CV-101(S.D.N.Y. 1990)(order and consent judgment)); in the Brooklyn House of Detention Jackson v.Montemango, 85-CV-2384 (E.D.N.Y.)(order approving stipulation for entry of judgment)); andin the Central Punitive Segregation Unit (*CPSU”)\(Sheppard v. Phoenix, 91-CV-4148 (S.D.N-Y.1998)(order approving stipulation for entry of judgment)). In all of these cases, the Departmentnarrowly limited relief to the particular facilities that were the subjects of the lawsuits andallowed unconstitutional practices to resume once those orders expired. Then, in Ingles v. Toro,01-CV-8279 (S.D.N.Y. 2006), a class of inmates obtained a settlement that purported to offersystem-wide relief, however, the Department failed to enforce the reforms agreed to in thatmatter and continued the same unconstitutional use of force practices.4, More recently, in Nunez v. City of New York, 11-CV-5845(S.D.N.Y. 2011), anothergroup of plaintiffs filed a class action lawsuit alleging that “the City’s jails remain afflicted bythe same culture of violence, the same failure of accountability, and the same deliberateindifference and active acceptance. Conditions in the jails have deteriorated markedly. Despitethe training that its staff is supposed to receive, correction officers still mete out violence toinflict pain rather than to maintain order.” (See Second Amended Complaint, Dkt No. 34, p. 4, §5).5. On August 4, 2014 the United States Attorney's Office for the Southern District ofNew York reported findings of an investigation conducted at Rikers Island pursuant to the CivilRights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997 and Section 14141 of theViolent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141.' Theinvestigation centered on whether the Department of Corrections (“DOC”) adequately protectsadolescents from excessive and unnecessary use of force by DOC corrections officers andsupervisors. (/d. at 1). The findings were that “there is a pattern and practice of conduct atRikers that violates the constitutional rights of adolescent inmates. In particular, we find thatadolescent inmates at Rikers are not adequately protected from harm, including serious physicalharm from the rampant use of unnecessary and excessive force by DOC staff.” (Ud. at 3). Theinvestigation also noted that while the subject investigation did not specifically investigate theuse of force against adult inmate population, the “investigation suggests that the systematicdeficiencies identified in this report may exist in equal measure at the other jails on Rikers.” (/d.at 3).6. Plaintiff seeks (1) compensatory damages for physical injury, psychological andemotional distress, and other financial loss caused by the illegal actions of the defendants; (ii)* CRIPA Investigation of the New York City Department of Correction Jails on Rikers Island, available athttp://www justice. gov/usao/nys’pressreleases/ August] 4/RikersReportPR/SDNY %20Rikers%20Report pdf3punitive damages to deter such intentional or reckless deviations from well-settled constitutionallaws; and (iii) such other and further relief, including costs and attorneys fees, as this courtdeems equitable and just.JURISDICTION7. This action is brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1988, and the Fourth,Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and theconstitutional, statutory, and common laws of the State of New York.8. Jurisdiction is invoked herein pursuant to the aforementioned statutory andconstitutional provisions and pursuant to 28 U.S.C. §§ 1331, 1343, this being an action seekingredress for the violation of the plaintiff's constitutional and civil rights.9. Plaintiff further invokes this Court’s pendent jurisdiction over any and all state-lawclaims and causes of action which derive from the same nucleus of operative facts that give riseto the federally based claims and causes of action pursuant to 28 U.S.C. § 1367.VENUE10. The basis for venue is the place of the occurrence.NOTICE OF CLAIM11. Plaintiff filed a Notice of Claim with the City of New York on or about DecemberMarch 27, 2014, within 90 days of the events complained of herein. More than 30 days haveelapsed since the filing of the Notice of Claim, and adjustment or payment thereof has beenneglected or refused.TRIAL BY JURY12. Plaintiff demands a trial by jury on each and every one of his claims as pled hereinpursuant to Fed., R. Civ. P. 38(b).PARTIES13. At times relevant hereto Plaintiff was an inmate at Rikers Island, New York.14. At all times relevant hereto defendant NYC was and is a municipality of the State ofNew York and owns, operates, manages, directs, and controls the New York City DOC,(hereinafter, “NYC DOC”), which employs the other Defendants.15. Atall times relevant to this action, Defendant Corrections Officers Corker (Shield2801), Pedlar (Shield 4988), Loadholt (Shield 11101), Epstein (Shield 18514), Captain Blair(Shield 0041) and John Does’, are and were corrections officers employed by the NYC DOC,and acting under color of state law. They are being sued in both their individual and officialcapacities.16. At all times relevant hereto and in all their actions described herein, the DefendantCorrections Officers Corker (Shield 2801), Pedlar (Shield 4988), Loadholt (Shield 11101), IrvinEpstein (Shield 18514), Captain Blair (Shield 0041) and John Does were acting under color ofstatutes, ordinances, regulations, policies, customs, and usages of the NYC DOC and NYC,pursuant to their authority as employees, servants, and agents of the NYC DOC within the scope? As Plaintiff currently does not know the names of numerous NYC DOC Corrections Officers involved in theviolations of his rights, the Defendant Corrections Officers will be referred to generally as Defendant CorrectionsOfficers and the complaint will be amended once the names of the individual officers involved is discovered.5of employment and incidental to their otherwise lawful duties and functions as employees,servants, agents and corrections officers.17. NYC was responsible for the hiring, training, supervision, discipline, retention andpromotion of the corrections officers, sergeants and/or employees of the NYC DOC. They arebeing sued both in their individual and official capacities.FACTS18. This incident occurred on February 7, 2014, at or around 12:00pm at the CranstonJudicial Center (“CJC”) on Rikers Island in East Elmhurst, New York.19. On said date and time, Plaintiff Mr. Rodriguez, an African American male, was thenonly twenty-two years old.20. On said date and time, Mr. Rodriguez was in separation pen #1 at the CJC where hewas waiting to see his Legal Aid Society attorney, Ms. Naila Siddiqui, Esq.21. At the time, Corrections Officer Corker (*CO Corker”) was sitting at a desk justoutside separation pen #1 with the day’s Court docket sheet on the desk.22. CO Corker noticed Mr. Rodriguez staring at the docket sheet, and CO Corker beganto taunt and threaten Mr. Rodriguez, while turning the docket sheet over in order to annoy, incite,and harass Mr. Rodriquez.23. After Mr. Rodriguez met with his attorney, Ms. Naila Siddiqui, Esq., CO Corkerescorted Mr. Rodriguez back to the holding area and physically pushed Mr. Rodriguez into aseparation pen with great force, causing Mr. Rodriguez to slam into the concrete floor face first.24. When Mr. Rodriguez told CO Corker, “You did not have to do that,” CO Corkerbegan to taunt Mr. Rodriguez by responding, “Do not worry what I’m doing! Worry about whatthe guys upstate will do to you.”25, CO Corker than stepped into the separation pen, away from view of other inmatesand the surveillance cameras, and punched Mr. Rodriguez with a closed fist in the face, stomach,and ribs multiple times.26. Corrections Officers Pedlar (“CO Pedlar”), Loadholt (“CO Loadholt”), and Epstein(“CO Epstein”) entered the separation pen and assisted CO Corker further assault Mr. Rodriguezby holding down Mr. Rodriguez's limbs and torso.27. CO Pedlar, CO Loadholt, and CO Epstein never inquired the reason for why COCorker was assaulting Mr. Rodriguez or after witnessing Mr. Rodriguez still, almost lifeless, onthe ground, never urged CO Coxker to stop his use of force.28. Rather, CO Pedilar picked Mr. Rodriguez up by his uniform collar and slammed Mr.Rodriguez face-down onto the concrete floor.29. Mr. Rodriguez is small in stature and in frame, standing at 5°4 tall and weighing lessthan 140 pounds.30. While still on the ground, CO Corker pulled Mr. Rodriguez’s head up and thenslammed his face down to the ground again.31. At this time, CO Leadholt and CO Pedlar kicked Mr. Rodriguez’s back and sidesrepeatedly.32. The Corrections Officers then handcuffed Mr. Rodriguez behind his back anddragged him into separation pen #2.33. The handcuffs were placed so tightly around Mr. Rodriguez's wrists that he sustainedlarge gashes in both wrists. .34. Moments later, the three Corrections Officers walk back to the pen with CaptainBlair and began accusing Mr. Rociguez of stealing an officer's badge.35. Captain Blair frisked Mr. Rodriguez, as he lay lifelessly on the floor, for the allegedcontraband, but nothing was found.36. CO Pedlar proceeded to punch Mr. Rodriguez in the stomach in from of CaptainBlair.37. When Mr. Rodriguez asked Captain Blair, “Are you going to let this go down,”Captain Blair responded, “For Sure” and left the scene.38. Mr. Rodriguez was transported to Elmhurst Hospital Emergency Department bystretcher and presented with severe lower back pain and left upper quadrant abdomen pain;abrasions and contusions to the left and right eyebrow, right cheek, back, left wrist and nose:swelling of the forehead and around the eyes; two black eyes: nausea, dizziness, headaches; andblood clotting around this nostrils.39. Traces of blood were found in Mr. Rodriguez's urine related to the injuries sustainedfrom the assault.40. Mr. Rodriguez was treated and underwent diagnostic testing for kidney trauma,specifically blunt force trauma to the kidney, with the possibility of infection, hematuria, andurothelial thickening; right lower eye lid ecchymosis, blunt force trauma to the head; andmultiple bilateral facial abrasions and contusions of the scalp, face, neck, flank, and back.41. Mr. Rodriguez continued to suffer from extreme pain in his back and neck, hematuriaand swelling of the face for several weeks following his discharge from Elmhurst HospitalEmergency Department.42. Further, on March 4, 2014, Michael Novasky, then, a intern for the Legal AidSociety, interviewed Mr. Rodriguez about the incident. During the meeting, nearly a month afterthe incident, Mr. Rodriguez still presented with two black eyes and large scars on each of hiswrists. Mr. Rodriguez also complained of persistent nightmares and cold sweats in his sleep.43. Mr. Rodriguez presently feels excruciating pain in his lower back.44. Asa result of the harassment, threats, negligence, gross negligence and intentionalinfliction of emotional distress by Defendant Corrections Officers, Plaintiff Quintin Rodriguezfeared for his safety and well being, suffered anxiety, nightmares, cold sweats, insomnia, andsevere emotional distress.‘FIRST CLAIM FOR RELIEF:DEPRIVATION OF FEDERAL CIVIL RIGHTS(General Allegations, Fourth, Fifth, Righth and Fourteenth Amendments)45. Plaintiff repeats and reiterates the allegations set forth in the foregoing paragraphswith the same force and effect as though fully stated herein.46. All of the aforementioned acts of Defendants, their agents, servants, and employeeswere carried out under color of state law.47, All of the aforementioned acts deprived plaintiff of the rights, privileges, andimmunities guaranteed citizens of the United States by the Fourth, Fifth, Eighth and FourteenthAmendments to the Constitution of the United States, and the common law and Constitution ofthe State of New York including, but not limited to:9a. the right to be free from unreasonable searches of his person,b. the right to be free from unreasonable seizure of his person, including excessiveforce,c. the right to be free from deprivation of liberty without due process of law, andd. the right to equal protection, privileges and immunities under the laws.48. All of the aforementioned acts were carried out in violation of 42 U.S.C. § 1983.49. The acts complained of were carried out by the aforementioned individualDefendants in their capacities as corrections officers, with the entire actual and/or apparentauthority attendant thereto.50. The acts complained of were carried out by the aforementioned individualDefendants in their capacities as corrections officers, pursuant to the customs, usages, practices,procedures, and rules of NYC and the NYC DOC, all under the supervision of ranking officers ofsaid department.51. Defendants, collectively and individually, while acting under color of state law,engaged in conduct which constituted a custom, usage, practice, procedure, or rule of his/herrespective municipality/authority, which is forbidden by the Constitution of the United States.52. By these actions, these Defendants have deprived Plaintiff of rights secured by theFourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution, in violationof 42 U.S.C. § 1983, for which the Defendants are individually and jointly liable.SECOND CLAIM FOR RELIEF:INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS53. Plaintiff repeats, reiterates, and re-alleges each and every allegation contained in theforegoing paragraphs with the same force and effect as if fully set forth herein.54. Defendants engaged in extreme and outrageous conduct beyond all possible boundsof decency when they brutally assaulted Plaintiff.55. Defendants’ extreme and outrageous conduct was intended to inflict severe distressupon Plaintiff when they assaulted him.56. Defendants outrageous conduct did inflict severe distress upon Plaintiff, whichcaused Plaintiff to suffer physical injuries, pain, anxiety and mental anguish.57. All of the aforementioned acts of the Defendants constituted intentional infliction ofemotional distress under the law of the State of New York and the Defendants are liable for saiddamage. Pursuant to 28 U.S.C. § 1367, this Court has pendant jurisdiction to hear and adjudicatesuch claims.THIRD CLAIM FOR RELIEF:EXCESSIVE FORCE UNDER 42 U.S.C. § 198358. Plaintiff repeats and reiterates the allegations set forth in the foregoing paragraphswith the same force and effect as though fully stated herein.59. The degree of force used by Defendants was excessive, unreasonable, andunwarranted.60. Defendants’ actions were intentional, willful, malicious, egregious, grossly recklessand negligent, unconscionable, and unprovoked.61, Asa result of the excessive force and brutality, Plaintiff sustained multiple injuries tohis lumbar spine, pelvis, head and body and endured serious emotional and psychologicaldistress.62. All of the aforementioned acts of the Defendants constituted excessive force underthe United States Constitution and the Defendants are liable for said damage.FOURTH CLAIM FOR RELIEF:ASSAULT AND BATTERY63. Plaintiff repeats and reiterates the allegations set forth in the foregoing paragraphswith the same force and effect as though fully stated herein.64. By the aforementioned actions, the Defendants did inflict assault and battery uponPlaintiff. The acts and conduct of the Defendant Corrections Officers were the direct andproximate cause of injury and damage to Plaintiff and violated his statutory and common lawrights as guaranteed by the laws and Constitution of the State of New York.65. As a result of the foregoing, Plaintiff was deprived of his liberty, suffered specificbodily injury, pain and suffering, great humiliation, mental anguish, costs, and expenses andwere otherwise damaged and injured. Pursuant to 28 U.S.C. §1367, this Court has pendantjurisdiction to hear and adjudicate such claims.FIFTH CLAIM FOR RELIEF:FAILURE TO INTERVENEUNDER FOURTH AMENDMENT - 42 U.S.C. § 198366. Plaintiff repeats and reiterates the allegations set forth in the foregoing paragraphs withthe same force and effect as though fully stated herein.67. Members of the NYPD have an affirmative duty to assess the constitutionality ofinteractions between their fellow members of service and civilians and to intervene where theyobserve another member of DOC employing unjustified and excessive force against an inmate.68. The defendant officers were present on February 7, 2014 at the Cranston Judical Centerof Rikers Island and in the vicinity of the incident and witnessed other officers use unlawfulforce against plaintiff, including brutally beating plaintiff about his head, back, and pelvis.69. Defendants’ violated plaintiff's constitutional rights by failing to intervene in the clearlyunconstitutional use of force that resulted in injury and damages.SIXTH CLAIMS FOR RELIEF:MUNICIPAL LIABILITY70. Plaintiff repeats and reiterates the allegations set forth in the foregoing paragraphswith the same force and effect as though fully stated herein.71. The acts complained of herein were carried out by the Defendant CorrectionsOfficers in their capacities as corrections officers, employees and officials pursuant to thecustoms, policies, usages, practices, procedures, and rules of NYC and the NYC DOC, all underthe supervision of ranking officers of said departments.72. Prison administrators are constitutionally required “to take reasonable measures toguarantee the safety of the inmates.” Hudson v. Palmer, 468 U.S. 517, 526-27 (1984); Hayes v.NYC Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996). When a jurisdiction takes a person intocustody and holds him against bis will, the Supreme Court has held that the Constitution“imposes upon it a corresponding duty to assume some responsibility for his safety and generalwell-being.” County of Sacramento v. Lewis, 523 U.S. 833, 851 (1998) (quoting13DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199-200 (1989));see also Randle v. Alexander, 960 F. Supp. 2d 457, 471 (S.D.N.Y. 2013). Furthermore, TheEighth and Fourteenth Amendments forbid excessive physical force against inmates and pre-trialdetainees. See Farmer v. Brennan, 511 US. 825, 832 (1994); see also United States v. Walsh,194 F.3d 37, 48 (2d Cir. 1999). ,73. Nonetheless, prior to December 8, 2014, NYC and NYC poc developed andmaintained policies or customs acknowledged by Courts, the municipality, and the State asexhibiting deliberate indifference to the Constitutional rights of persons in NYC, which causedthe violation of Plaintiff's rights.74, The NYC DOC operates under a single, system-wide written use of force policeDirective 5006 (the “Written Policy”). The NYC DOC trains its staff at a single TrainingAcademy subject to a uniform curriculum. It was the policy and/or custom of NYC and NYCDOC to inadequately and improperly train and supervise its corrections officers, includingthe defendant officers, thereby failing to adequately discourage further constitutionalviolations on the part of its corrections officers.75. There is one centralized Integrity and Policy Division (formerly called theInvestigation Division) that is responsible for uniformly investigating all reports of staff's use offorce under uniform procedures. There is a central Division that is responsible for conducting allof the administrative prosecutions. This Division also has the authority to decline to prosecuteNYC DOC employees. It was the policy and/or custom of NYC and NYC DOC toinadequately and improperly investigate complaints of misconduct against correctionsofficers filed by inmates in DOC custody, and acts of misconduct were instead tolerated by14NYC, including, but not limited to the following incidents: assault and battery, harassment,negligence, intentional infliction of emotional distress and deliberate indifference tomedical needs.76. NYC and NYC Doc are on notice as to the number, frequency, and severity of useof force incidents in city jails. The NYC DOC receives compilation reports documenting violentincidents, including reports of staff use of force. These “24-hour reports” contain summariesdocument the routine application of injurious force to inmates by staff members undercirc*mstances which often suggest that the staff accounts are fabricated to cover up brutality andother misconduct. Furthermore, within the last 15 years senior supervisors and NYC DOC staffhave been sued repeatedly by inmates alleging staff beatings and cover-up:?« Reynolds y. City of New York, 11 Civ. 621 (S.D.N.Y.)(alleging beat-up inGMDC resulting in shoulder fracture and loss of consciousness; settled for$200,500);e Mull v. City of New York,08 Civ, 8854 (S.D.N.Y. (alleging beat-up in AMKCresulting in diffuse axonal injury to brain, partial loss of eyesight and partial lossof hearing and requiring the victim to take seizure medications; settled for$550,000);¢ Belvell v. City of New York, 09 Civ. 8090(S.D.N.Y.)(alleging beat-ups at GMDCand RNDC resulting in facial fracture; settled for $350,000);* Youngblood v. Baldwin, 08 Civ. 5982 (S.D.N.Y.)(alleging beat-up at GRVCresulting in skull laceration and broken nose; settled for $240,000);e Williams v. City of New York, 07 Civ. 1105(S.D.N.Y.)(alleging beat-up inOBCC resulting in fractured jaw and facial bones and torn earlobe; settled for$202,500);¢ Williams v. City of New York, 09 Civ. 5734(S.D.N.Y.)(alleging beat-up inRNDC resulting in laceration to head: settled for $87,500);> The compilation of cases is referenced in the class action complaint, Nunez v. City of New York, 11-CV-5845(S.D.N.Y. 2011). See Amended Complaiat, Dkt No. 15, p. 28-30, #45.15Lee vy, Perez, 09 Civ. 3134 (S.D.N.Y.}(alleging beat-up at NIC resulting inmultiple rib fractures, a spinal fracture and a collapsed lung; settled for $300,000);Shuford v. City of New York, 09 Civ. 9:RNDC resulting in facial fractures; sett!45 (S.D.N.Y.)(alleging two beat-ups ated for $375,000);Diaz v. City of New York, 09 Civ. 945 (S.D.N.Y.)(alleging beat-ups involvingtwo inmates, one at AMKC and one at OBCC; settled for $400,000 and $450,000,respectfully);Lugo y. City of New York, 08 Civ. 293resulting in orbital fracture; settled for $Cuadrado v. City of New York, 07 Civ.GMDC resulting in orbital fracture; settPischeottola v. City of New York, 06 CiRNDC resulting in punctured lung requi:Rice v. N.Y.C.D.O.C., 03 Civ. 582 (S.Dat GRVC resulting in collapsed lung anin neck and spinal cord injuries causing$255,000 and $590,000, respectfully);Joseph v. N.Y.C.D.O.C., 02 Civ. 9219 (resulting in orbital fracture; settled for $77, With actual and constructive knowledge ofto turn a blind eye, and not in act response measureconstitutional violations.DOC ineffectively training corzections officers, failing16(S.D.N.Y,) (alleging185,000):eat-up at NIC1447 (S.D.N.Y.) (alleging beat-up ated for $175,000};iv. 2505 (S.D.N.Y.) (akring chest rube; settledeging beat-up at$150,000);.N.Y.) (alleging beat-ups of two inmatescontusion hematomas, in one case, andermanent stutter, in the other; settled forS.D.N.Y.) (alleging beat-up at GRVC375,000).numerous forms of published literature,incident reports, and federal complaints detailing brutal incidences of excessive force, itcontinues to be NYC and NYC DOC’s custom, policy, usage, practice, procedure, and rules to curtail the frequency of78. Despite the City and NYC DOC having notice of numerous instances of excessiveuse of force, the customs, policies, usages, practices, procedures, and rule of NYC and the NYCto conduct unbiased and thoroughinvestigations of use of force incidents, failing to discipline staff meaningful and promptly formisconduct to ensure general and specific deterrence, and flagrantly turning a blind eye todocumented instances of injustice, constitutes deliberate indifference to the safety, well-being,and constitutional rights of Plaintiff.79. The foregoing custoins, policies, usages, practices, procedures, and rule of NYC andthe NYC DOC were the proximate cause of the constitutional violations suffered by Plaintiff asalleged herein.80. The foregoing customs, policies, usages, practices, procedures, and rule of NYC andthe NYC DOC were the moving force behind the constitutional violations suffered by Plaintiff asalleged herein.81. Asa result of the above described policies and customs, corrections officers of NYCDOC, including the defendant officers, believed that their actions would not be monitored bysupervisory officers and that their own misconduct would not be investigated or sanctioned, butinstead would be tolerated.82. Defendants, collectively and individually, while acting under color of state law, weredirectly and actively involved in violating the constitutional rights of Plaintiff.83. Defendants, collectively and individually, while acting under color of state law,acquiesced in a pattern of unconstitutional conduct by subordinate officers and were directlyresponsible for the violation of Plaintiffs constitutional rights.84. Defendants NYC, as municipal policymakers in the training and supervision ofDefendant corrections officers/employees, have pursued a policy and custom of deliberateindifference to the rights of persons in their domain who suffer violations of their freedom fromdeprivation of Liberty without Due process of law in violation of the Fourth, Fifth, Eighth, andFourteenth Amendments to the Constitution of the United States and 42 U.S.C. § 1983.85. All of the foregoing acts by Defendants deprived Plaintiff of federally protectedrights, including, but not limited to, the right:a. Not to be deprived of liberty without due process of law;b. To be free from unreasonable search and seizure under the Fourth andFourteenth Amendments to the United States Constitution;c To be protected against violations of his civil and constitutional rights;d. Not to have cruel and unusual punishment imposed upon him; ande. To receive equal protection under the law.PRAYER FOR RELIEFWHEREFORE, Plaintiff demands judgment and prays for the following relief, jointlyand severally, against the Defendants:1. Special and compensatory damages in the amount of ONE MILLION DOLLARS($1,000,000.00) DOLLARS; and2. Punitive damages in the amount of ONE MILLION DOLLARS ($1,000,000.00)DOLLARS; and3. Reasonable attorney's fees and costs; and4. Such other and further relief as this Court deems just and proper.18DATED: New York, New YorkMay 7, 2015Kaitlin F. Nares, Esq. (5198718)FISHER & BYRIALSEN PLLCAttorney for Plaintiff291 Broadway, Suite 709New York, New York 10007(212) 962-0848VERIFICATIONThe undersigned, an attorney, admitted to practice in the Courts of the State of NewYork, shows:That deponent is the attorney of record for Plaintiff in the within action; that deponenthas read the foregoing Summons and Verified Complaint and knows the contents thereof; thatthe same is not true to deponents own knowledge, except as to the matters therein stated to bealleged upon information and belief, and that as to those matters, deponent believes that to betrue. Deponent further says that the reason this Verification is made by deponent and not by thePlaintiff is that Plaintiff resides in a county other than that in which deponent maintains heroffices.The grounds for deponent’s belief as to all matters not stated upon her knowledge areinvestigations which she has made or has caused to be made concerning the subject matter of thisaction, and the statements of parties and/or witnesses herein.The undersigned affirms that the foregoing statements are true under the penalties ofperjury.Dated: New York, New YorkMay 7, 2015Kaillin F. Nares, Esq. (5198718)FISHER & BYRIALSEN PLLCAttorney for Plaintiff291 Broadway, Suite 709New York, New York 10007(212) 962-0848SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF BRONXQUINTIN RODRIGUEZ,Plaintiff,-against-THE CITY OF NEW YORK, NEW YORK CITYDEPARTMENT OF CORRECTIONS, CORRECTIONSOFFICER TYRONE CORKER (Shield 2801),CORRECTIONS OFFICER MATTHEW PEDLAR(Shield 4988), CORRECTIONS OFFICER MARKLOADHOLT (Shield 11101), CORRECTIONSOFFICER IRVING EPSTEIN (Shield 18514),CORRECTIONS CAPTAIN WANDA BLAIR{Shield 0041) and CORRECTIONS OFFICERSJOHN DOE, Individually and in their Official Capacities,Defendants.VERIFIED COMPLAINTFISHER & BYRIALSEN, PLLCAttorneys for: PlaintiffQUINTIN RODRIGUEZ291 Broadway, Suite 709New York, NY 10007(212) 962-0848Service of a copy of the within is hereby admittedDated:
Related Contentin Bronx County
Case
COLON,LUISA v. DELACRUZ,MAXIMO
Sep 02, 2014 |Aarons, Hon. Sharon A. M. |Tort-Motor Vehicle |Tort-Motor Vehicle |21647/2013E
Case
G, J v. CITY OF NEW YORK et al
Apr 15, 2024 |Danziger, Hon. Mitchell J. |Tort-Other Negligence-City |Tort-Other Negligence-City |806086/2024E
Case
Eva Nazario, Martha Ivette Montes v. Merchant Funding Services Corp, Jose B Felix, Punjab Enterprises Inc., John Doe 1, John Doe 2
Mar 03, 2023 |Ben Barbato |Torts - Motor Vehicle |Torts - Motor Vehicle |803497/2023E
Case
Dorothy Brown v. Cleveland Chunn, Serge Jean-Gilles, American United Transportation Inc.
May 25, 2020 |Ben Barbato |Torts - Motor Vehicle |Torts - Motor Vehicle |24243/2020E
Case
Aug 20, 2024 |Torts - Other Negligence (Premises) |Torts - Other Negligence (Premises) |813196/2024E
Case
Jaiden Garcia v. Britton Realty Llc, L.D. Property Management, Inc.
Oct 03, 2023 |Andrew J. Cohen |Torts - Other Negligence (Ceiling collapsed) |Torts - Other Negligence (Ceiling collapsed) |815314/2023E
Case
MILLS, LLYOD J. v. WESTROCK MECHANICAL CORP, et al
Nov 09, 2021 |Barbato, Hon. Ben R. |Tort-Motor Vehicle |Tort-Motor Vehicle |815281/2021E
Case
CHEN, LIJUN v. DINALLY, SIMON et al
Apr 12, 2024 |Barbato, Hon. Ben R. |Tort-Motor Vehicle |Tort-Motor Vehicle |806005/2024E
Case
Jul 19, 2022 |Barbato, Hon. Ben R. |Tort-Motor Vehicle |Tort-Motor Vehicle |42013/2023E
Ruling
AMANDA PHAM VS LVMH MOET HENNESSY LOUIS VUITTON INC., ET AL.
Aug 21, 2024 |23STCV01213
Case Number: 23STCV01213 Hearing Date: August 21, 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: August 21, 2024 CASE NUMBER: 23STCV01213 MOTIONS: Motion to Deem Requests for Admissions, Set One, to Plaintiff, Admitted MOVING PARTY: Defendant Louis Vuitton USA Inc. OPPOSING PARTY: Unopposed BACKGROUND Defendant Louis Vuitton USA Inc. (Defendant) moves to deem admitted Request for Admissions, Set One, served on Plaintiff Amanda Pham (Plaintiff). Defendant also requests terminating and monetary sanctions.[1] No opposition has been filed. LEGAL STANDARD Deem Admitted Where there has been no timely response to a request for admission under Code of Civil Procedure section 2033.010, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.¿ (Code of Civ. Proc., § 2033.280, subd. (b).)¿ The party who failed to respond waives any objections to the demand, unless the court grants that party relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the partys failure to respond was the result of mistake, inadvertence, or excusable neglect.¿ (Code of Civ. Proc., § 2033.280, subds. (a)(1)-(2).)¿ The court shall grant a motion to deem admitted requests for admissions, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.¿ (Code of Civ. Proc., § 2033.280, subd. (c).)¿ The Discovery Act does not define substantial compliance in the context of service of a proposed response that complies with Code Civ. Proc., section 2033.220. The courts have ruled that substantial compliance means actual compliance with all matters of substance and that technical deviations are not to be given the stature of noncompliance. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 779.) For example, unverified responses are not in substantial compliance. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Additionally, RFA responses must be examined in their entirety. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 780.)¿¿¿ Where a party fails to provide a timely response to requests for admission, [i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.¿ (Code Civ. Proc., § 2033.280, subd. (c).) Terminating Sanctions 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 circ*mstances: [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].) DISCUSSION On October 16, 2023, Defendant served Request for Admissions, Set One on Plaintiff. (Galvan Decl. ¶ 3, Exh. A.) After granting extensions, Plaintiff served unverified responses on December 15, 2023. (Id. ¶ 4, Exh. B.) On May 8, 2024, the Court granted Plaintiffs counsels motion to be relieved, effective upon filing proof of service of the order on Plaintiff. The proof of service was filed on May 9, 2024. Plaintiff is currently self-represented. On May 16, 2024, Defendants counsel attempted to call Plaintiff via telephone. (Galvan Decl. ¶ 9.) Plaintiff never responded to counsels voicemail message. Plaintiff has not made a general appearance in this case since being self-represented. On May 30, 2024, Defendant sent Plaintiff a meet and confer letter regarding the unverified responses, but Plaintiff did not reply. Id. ¶ 13-16, Exh. C.) Reviewing Plaintiffs responses to the Request for Admissions, the Court notes they contain substantive responses and thus, require a verification. Because [u]nverified discovery responses are tantamount to no response at all, (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636), they are not in substantial compliance. Here, notice of the instant motion was served on Plaintiff via overnight delivery to the address indicated on the order to relieve counsel. No opposition has been filed for this motion. Accordingly, because the responses are not verified, the motion to deem admitted is granted as to the requests that do not contain only objections. Defendant seeks $1,650 in monetary sanctions against Plaintiff based on a $265 hourly rate and the $60 filing fee. Monetary sanctions are mandatory, but the amount requested is excessive given the type of motion and the lack of opposition. Therefore, the Court awards $457.50 in monetary sanctions against Plaintiff (1.5 hours of attorney time plus the filing fee). Defendant also requests that the Court impose terminating sanctions. However, there is insufficient evidence of discovery abuse to warrant terminating sanctions at this time. Additionally, Defendant has failed to show that less severe sanctions would not induce compliance. As a result, the request for terminating sanctions is denied. CONCLUSION AND ORDER Accordingly, Defendant Louis Vuitton USA Inc.s motion to deem admitted Request for Admissions, Set One served on Plaintiff Amanda Pham, is GRANTED. The Court further imposes monetary sanctions against Plaintiff in the reduced amount of $457.50. Said monetary sanctions are to be paid to counsel for Defendant within 30 days of the date of this order. Defendant shall provide notice of the Courts order and file a proof of service of such. TENTATIVE RULING DEPT: 32 HEARING DATE: August 21, 2024 CASE NUMBER: 23STCV01213 MOTIONS: Compel Responses to Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One MOVING PARTY: Defendants Louis Vuitton USA Inc. and Goya Studios, Inc. OPPOSING PARTY: None BACKGROUND Defendants Louis Vuitton USA Inc. and Goya Studios, Inc. (Defendants) move to compel Plaintiff Amanda Phams (Plaintiff) verified responses to Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Defendants seek monetary sanctions. No opposition has been filed. LEGAL STANDARD Interrogatories If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290 (b).) Failure to timely respond waives all objections, including privilege and work product, unless [t]he party has subsequently served a response that is in substantial compliance and [t]he partys failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290 (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. 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.) If a motion to compel responses is filed, the Court shall impose a monetary sanction against the losing party unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2030.290 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) Requests for Production Under Code of Civil Procedure Section 2031.300, if a party fails to serve a timely response to a demand for inspection, the party making the demand may move for an order compelling response to the demand. (Code Civ. Pro § 2031.300 (b).) The party who fails to serve a timely response to a demand for inspection waives any objection to the demand unless the court finds that the party has subsequently served a response that is in substantial compliance or partys failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2031.300 (a)(1)- (2).) Courts shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection unless the party acted with substantial justification or other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.300 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) DISCUSSION Here, on February 23, 2023, Goya Studios, Inc. served Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One on Plaintiff. (Galvan Decl. ¶ 3, Exh. A.) After receiving multiple extensions, Plaintiff served unverified responses which contain substantive responses on May 8, 2023. (Id. ¶ 5, Exh. B.) On October 16, 2023, Louis Vuitton USA Inc. served Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One on Plaintiff. (Galvan Decl. ¶ 7, Exh. C.) After receiving multiple extensions, Plaintiff served unverified responses which contain substantive responses on December 15, 2023. (Id. ¶ 9, Exh. D.) Therefore, because the responses do not solely contain objections, they need to be verified. (Code Civ. Proc. §§ 2030.250(a), 2031.250(a).) Since unverified responses are tantamount to no responses at all, the motion to compel is granted.[2] Defendant seeks $2,445 in monetary sanctions representing an hourly rate of $265 and the $60 filing fee. (Galvan Decl. ¶ 27.) The Court finds sanctions are warranted because Plaintiff has failed to respond. However, the amount requested is excessive given the type of motion, the lack of opposition, and the fact counsel can appear at the hearing remotely. Therefore, the Court awards sanctions in the amount of $457.50 (1.5 hour of attorney time and the filing fee). CONCLUSION AND ORDER Accordingly, Defendants Motion to Compel Request for Production, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One is GRANTED. Plaintiff Amanda Pham shall provide verified responses within 20 days. The Court further GRANTS Defendants request for monetary sanctions against Plaintiff in the reduced amount of $457.50. Said monetary sanctions are to be paid to counsel for Defendants within 30 days of the date of this order. Defendants shall provide notice of the Courts order and file a proof of service of such. [1] It appears Defendant has filed two identical motions seeking the same relief under two different reservation numbers ending in 7977 and 4248. [2] The Court admonishes Defendants that each motion to compel must be separately filed. Failure to comply in the future may result in the Court striking an omnibus motion or otherwise declining to hear it.
Ruling
ANDREW LUIS MIRANDA VS JEFFREY SLOAN, ET AL.
Aug 20, 2024 |21STCV27174
Case Number: 21STCV27174 Hearing Date: August 20, 2024 Dept: 28 Having considered the moving papers, the Court rules as follows. PROCEDURAL HISTORY On July 23, 2021, Plaintiff Andrew Luis Miranda (Plaintiff) filed this action against Defendants Jeffrey Jay Sloan, Crawford & Company, and Does 1-50 for motor vehicle tort and general negligence. On April 22, 2022, Plaintiff amended the complaint to include Defendant Emkay, Inc. as Doe 1. On December 29, 2022, Plaintiff amended the complaint to include Defendant Estate of Jeffrey Jay Sloan (Estate) as Doe 2. On December 6, 2023, Estate filed an answer. On January 11, 2024, the Court dismissed Defendants Crawford & Company and Emkay, Inc., without prejudice at Plaintiffs request. On July 5, 2024, Estate filed motions to compel compliance with subpoenas issued to Santo Nino Medical Clinic, CHC Providence Holy Cross Medical Center, and Los Angeles Orthopedic Institute. The motions were set for hearing on August 20, 2024. No oppositions have been filed. Trial is currently scheduled for January 13, 2025. PARTYS REQUESTS The Estate asks the Court to order Santo Nino Medical Clinic, CHC Providence Holy Cross Medical Center, and Los Angeles Orthopedic Institute to comply with deposition subpoenas for business records and impose sanctions. LEGAL STANDARD Code of Civil Procedure section 2020.010 provides: (a) Any of the following methods may be used to obtain discovery within the state from a person who is not a party to the action in which the discovery is sought: (1) An oral deposition under Chapter 9 (commencing with Section 2025.010). (2) A written deposition under Chapter 11 (commencing with Section 2028.010). (3) A deposition for production of business records and things under Article 4 (commencing with Section 2020.410) or Article 5 (commencing with Section 2020.510). (b) Except as provided in subdivision (a) of Section 2025.280, the process by which a nonparty is required to provide discovery is a deposition subpoena. (Code Civ. Proc., § 2020.010.) Code of Civil Procedure section 2020.020 provides: A deposition subpoena may command any of the following: (a) Only the attendance and the testimony of the deponent, under Article 3 (commencing with Section 2020.310). (b) Only the production of business records for copying, under Article 4 (commencing with Section 2020.410). (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things, under Article 5 (commencing with Section 2020.510). (Code Civ. Proc., § 2020.020.) Code of Civil Procedure section 1987.1 provides: (a) If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the courts own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (b) The following persons may make a motion pursuant to subdivision (a): (1) A party. (2) A witness. (3) A consumer described in Section 1985.3. (4) An employee described in Section 1985.6. (5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that persons exercise of free speech rights. (c) Nothing in this section shall require any person to move to quash, modify, or condition any subpoena duces tecum of personal records of any consumer served under paragraph (1) of subdivision (b) of Section 1985.3 or employment records of any employee served under paragraph (1) of subdivision (b) of Section 1985.6. (Code Civ. Proc., § 1987.1.) DISCUSSION California Rules of Court, rule 3.1346, provides: A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record. (Cal. Rules of Court, rule 3.1346.) The proofs of service filed with the Court do not show that Estate served the moving papers on Santo Nino Medical Clinic, CHC Providence Holy Cross Medical Center, or Los Angeles Orthopedic Institute by any method. Estate has not shown that Santo Nino Medical Clinic, CHC Providence Holy Cross Medical Center, and Los Angeles Orthopedic Institute agreed to accept service by electronic service on Plaintiffs counsel. The Court denies the motions. CONCLUSION The Court DENIES Defendant Estate of Jeffrey Jay Sloans motion to compel Santo Nino Medical Clinic to comply with a deposition subpoena. The Court DENIES Defendant Estate of Jeffrey Jay Sloans motion to compel CHC Providence Holy Cross Medical Center to comply with a deposition subpoena. The Court DENIES Defendant Estate of Jeffrey Jay Sloans motion to compel Los Angeles Orthopedic Institute to comply with a deposition subpoena. Moving party is ordered to give notice of this ruling. Moving party is ordered to file the proof of service of this ruling with the Court within five days.
Ruling
MHJ GROUP INC ET AL VS JI LI ET AL
Aug 21, 2024 |BC675380
Case Number: BC675380 Hearing Date: August 21, 2024 Dept: 39 TENTATIVE RULING DEPT: 39 HEARING DATE: August 21, 2024 CASE NUMBER: BC675380 MOTION: Motions to Compel Further Discovery Responses MOVING PARTY: Plaintiffs MHJ Group, Inc. and Kai Hou Liang OPPOSING PARTY: None MOTION Plaintiffs and Judgment Creditors MHJ Group, Inc. and Kai Hou Liang (Plaintiffs) move to compel Defendant and Judgment Debtor Ji Li (Defendant) to further respond to Special Interrogatories, set one (SROG) and Requests for Production of Documents, set one (RPD). Defendant has not filed oppositions to the motions. ANALYSIS If the propounding party deems responses to interrogatories or requests for production of documents unsatisfactory, the propounding party may move to compel further responses. (Code Civ. Proc., §§ 2030.300, 2031.310.) Essentially, Plaintiffs move to compel Defendant to further respond to the SROG and RPD because Plaintiffs do not believe Defendants responses. ( See, e.g. Memorandum of Points and Authorities Re Motion to Compel Further Responses to Interrogatories, p. 3; Memorandum of Points and Authorities Re Motion to Compel Further Responses to Document Demands, p. 2.) Plaintiffs belief Defendants responses are not truthful is not a valid basis to compel Defendant to further respond to discovery. (See Holguin v. Superior Court (1972) 22 Cal.App.3d 812, 820-821.) Accordingly, the motion is denied. Plaintiffs are ordered to give notice of this order and to file proof of service of same.
Ruling
YEHUDA ABIKHZER VS M S EXCEL RENT A CAR, INC., A CALIFORNIA CORPORATION
Aug 19, 2024 |22STCV26279
Case Number: 22STCV26279 Hearing Date: August 19, 2024 Dept: 28 Having considered the documents submitted in support of the request for default judgment, the Court rules as follows. BACKGROUND On August 15, 2022, Plaintiff Yehuda Abikhzer (Plaintiff) filed this action against Defendants M S Excel Rent A Car, Inc. (Defendant) and Does 1-100 for negligence, negligence per se, intentional misrepresentation, negligent misrepresentation, breach of written contract, violation of Business and Professions Code section 17200, violation of the Consumer Legal Remedies Act, and products liability. On December 7, 2023, Plaintiff amended the complaint to replace Defendants name with MS Excel Rent A Car, Inc. On March 22, 2024, Plaintiff filed a proof of service showing substituted service of the summons, complaint, and other documents on Defendant on October 2, 2023. On April 8, 2024, the clerk entered Defendants default. On June 6, 2024, the Court dismissed the Doe defendants without prejudice at Plaintiffs request. On June 13, 2024, Plaintiff filed a proof of service showing substituted service of the summons, complaint, statement of damages and other documents on Defendant on December 19, 2023. On June 14, 2024, Plaintiff filed a request for Court judgment. PARTYS REQUESTS Plaintiff Yehuda Abikhzer asks the Court to enter a default judgment against Defendant MS Excel Rent A Car, Inc. and award Plaintiff $5,505,233.00, consisting of $5,000,000.00 in general damages, $500,000.00 in special damages, and $5,233.00 in costs. LEGAL STANDARD A. Default judgment [With exceptions that do not apply here,] [a] party seeking a default judgment on declarations must use mandatory Request for Entry of Default (Application to Enter Default) (form CIV-100) . . . The following must be included in the documents filed with the clerk: (1) Except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim; (2) Declarations or other admissible evidence in support of the judgment requested; (3) Interest computations as necessary; (4) A memorandum of costs and disbursem*nts; (5) A declaration of nonmilitary status for each defendant against whom judgment is sought; (6) A proposed form of judgment; (7) A dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) Exhibits as necessary; and (9) A request for attorney fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800(a).) B. Damages On a request for default judgment, [w]here a cause of action is stated in the complaint, plaintiff merely needs to introduce evidence establishing a prima facie case for damages. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 5:213.1, p. 5-56 (Cal. Practice Guide), citing Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361 [trial court erred in applying preponderance of the evidence standard].) The relief granted to a plaintiff upon entry of a defendant's default cannot exceed the amount demanded in the complaint or, for personal injury cases where damages may not be stated in the complaint, the amount listed in the statement of damages. (Code Civ. Proc., §§ 580, subd. (a), 585, subd. (b).) The notice requirement of section 580 was designed to insure fundamental fairness. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494.) The statute insures that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them. [Citation.] If a judgment other than that which is demanded is taken against him, [the defendant] has been deprived of his day in courta right to a hearing on the matter adjudicated. (Id. at p. 493.) A trial court exceeds its jurisdiction if it awards damages in excess of the amount specified in the complaint or statement of damages. (Id. at p. 494.) DISCUSSION Plaintiff has not provided a copy of the statement of damages which Plaintiff contends that he served on December 19, 2023. Although Plaintiff states that Exhibit I is a true and correct copy of the Statement of Damages served on Defendant, filed with the court on March 22, 2024, Exhibit I is titled Summary of Case in Support of Plaintiffs Request for Court Judgment; Declaration of Roy Aviram, Esq. in Support Thereof. The document asserts that [a] Statement of Damages was served on Defendant pursuant to CCP §425.11 & §425.115 on December 19, 2023. However, no statement of damages is attached. Plaintiff has not provided evidence supporting his claim for $500,000.00 in special damages. The medical bill attached to Plaintiffs declaration shows total charges of $4,276.00, adjustments of $3,825.67, and payments of $450.33. Plaintiff states in his declaration that he will need future medical care but he has provided no evidence to support this statement. Exhibit M appears to be a list of items included in the memorandum of costs. Exhibit M includes $2,250.00 for Purchase Vehicle from Lien Sale, $39.99 for Carfax for Vehicle, $330.00 for Tow Vehicle from Desert Towing, $120.00 for Travel Fees to Pick Up Vehicle, and $225.00 for Reimbursem*nt for Trip to Purchase Vehicle. Plaintiff has not shown that these expenses qualify as recoverable costs under Code of Civil Procedure section 1033.5, subdivision (a). Plaintiffs declaration supports an award of general damages. However, Plaintiff has not provided evidence supporting a general damage award of $5,000,000.00. The Court denies Plaintiffs application for default judgment. CONCLUSION The Court DENIES without prejudice Plaintiff Yehuda Abikhzers application for default judgment against Defendant MS Excel Rent A Car, Inc. filed on June 14, 2024. Plaintiff is ordered to give notice of this ruling.
Ruling
BUTCHERSHOP CREATIVE, LLC, A CALIFORNIA LIMITED VS. CFO RICK INC., A CALIFORNIA CORPORATION ET AL
Aug 19, 2024 |CGC23609983
Matter on the Law & Motion calendar for Monday, August 19, 2024, Line 10. 1 - CROSS DEFENDANT TREVOR HUBBARD's DEMURRER to Amended CROSS COMPLAINT. Off calendar. The Card declaration provides parties have not met and conferred in person, by telephone, or by video conference, as required by CCP 430.41. Parties are ordered to comply with the Code. Responsive pleadings are now due by September 19, 2024. 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
FCS059298 - THOMPSON, FELICIA V. SAUKHLA, M.D., NARINDER (DMS)
Aug 19, 2024 |FCS059298
FCS059298PORTUGAL’s Motion for Summary JudgmentTENTATIVE RULINGDefendant RUTH PORTUGAL, R.N. (“PORTUGAL”) moves for summary judgment onPlaintiff FELICIA THOMPSON’s cause of action for wrongful death via medicalnegligence. Summarized, Plaintiff alleges that PORTUGAL’s failure to observe thestandard of care applicable to a nurse caused the death of Plaintiff’s father (“Decedent”)on September 2, 2017.Objections to Evidence. In ruling on a motion for summary adjudication the courtneed only rule on those evidentiary objections that it deems material to its disposition ofthe motion. (Code Civ. Proc., § 437c, subd. (q).)PORTUGAL’s Objections #1-10. PORTUGAL’s objections #1-10 are overruled.PORTUGAL’s Objections #11-22. PORTUGAL’s objections to Plaintiff’s declarationsfrom Melvin Smith, Michael Burrus, Cole Bienek, Earl Miller, James Cross, JohnLawyer, Herman Davis, Clarence Myers, Shelvert Dyer, Lamar Minor, and MichaelDavis, as well as the second supplemental declaration of Dr. Dan Field, on the basis offailure to comply with Code of Civil Procedure section 2015.5 are sustained. Thoughthe declarations are not hearsay they do not meet Code of Civil Procedure section2015.5 requirements. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th601, 609 [declarations of personal knowledge admissible on summary judgment].) Alldeclarations but Dr. Field’s fail to state the date and place of execution of thedeclarations. Dr. Field’s second supplemental declaration does not state the place.PORTUGAL’s Objections #23-24. PORTUGAL’s objections to all proffered evidencefrom Dr. Field, being his two declarations, a rebuttal declaration to defense expertopinions, and deposition excerpts, are sustained. A doctor may speak to the standardof care for a nurse if he possesses relevant qualifications or knowledge. (Lattimore v.Dickey (2015) 239 Cal.App.4th 959, 970 (Lattimore).) However, Dr. Field’squalifications and knowledge are solely set forth in his second supplementaldeclaration, which fails to meet Code of Civil Procedure section 2015.5 requirements.Accordingly Plaintiff does not establish with admissible evidence that Dr. Field canspeak to the standard of care applicable to PORTUGAL.Similarly, Dr. Fields’ opinions as a medical doctor are also lacking in foundation. Neitherthe Record Review Report dated 12/11/2020 or the Rebuttal Report dated 1/14/2021state Dr. Fields’ qualifications. The Second Supplemental Declaration, which does statethe doctor’s qualifications, does not cure the problem as the declaration is procedurallydefective under CCP 2015.5.The court does not consider PORTUGAL’s remaining objections material to thedisposition of the motion.Requests for Judicial Notice. Matters subject to judicial notice may support a motionfor summary judgment. (Code Civ. Proc. § 437c, subd. (b)(1).) The court takes judicialnotice of all items proffered by PORTUGAL, being documents from Plaintiff’s federalcase preceding this one on the same facts, as records of a court of the United Statesper Evidence Code section 452, subdivision (d).Legal Standard. A defendant may move for summary judgment on the basis that theplaintiff cannot establish an element of his cause of action. (Code Civ. Proc., § 437c,subd. (o)(1).) A summary judgment motion is properly granted where the evidence insupport of the moving party would be sufficient to sustain a judgment in his favor andhis opponent does not show facts sufficient to present a triable issue of fact. (Parker v.Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion isnot to be granted where any triable issue of material fact exists. (Ibid.) The affidavits ofthe moving party are strictly construed, and doubts as to the propriety of summaryjudgment should be resolved against granting the motion. (Ibid.) Reasonableinferences from the evidence must be drawn in the light most favorable to the opposingparty. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155.)Affidavits, declarations, admissions, answers to interrogatories, depositions, andmatters judicially noticed may all support a motion for summary judgment, provided theycontain admissible evidence. (Code Civ. Proc., §§ 437c, subds. (b)(1), (d).) Allegationsin a party’s own pleadings may not satisfy deficiencies in evidence. (Code Civ. Proc., §437c, subd. (p).) Allegations in an opposing party’s pleadings may be consideredevidence, however. (Parker, supra, 3 Cal.3d at p. 181.) Additionally, a defendant doesnot meet its burden of showing a plaintiff cannot establish an element merely bypointing out the absence of evidence; the defendant must show that the plaintiff bothdoes not possess and cannot reasonably obtain evidence. (Zipusch v. LA Workout, Inc.(2007) 155 Cal.App.4th 1281, 1286-1287.)Wrongful Death via Medical Negligence. Wrongful death is a statutory cause ofaction, the elements of which are simply a tort resulting in death and damages.(Lattimore, supra, 239 Cal.App.4th at p. 968.) In this case Plaintiff alleges the wrongfuldeath of Decedent due to the underlying tort of medical malpractice or negligence.(First Amended Complaint at ¶¶ 38-44.) Medical negligence is a form of negligence, towhich general principles of negligence apply. (Massey v. Mercy Medical CenterRedding (2009) 180 Cal.App.4th 690, 695.) Thus a medical practitioner is negligent ifhe fails to use the standard of care that a reasonably careful practitioner would use insimilar circ*mstances, but what the standard of care is for a medical practitioner is amatter peculiarly within the knowledge of experts. (Ibid.) The standard of care for amedical practitioner may therefore only be proven by the testimony of experts unlessthe conduct required in the circ*mstances is something within the common knowledgeof laymen. (Ibid.) In other words, a plaintiff usually may only prove that a medicalpractitioner failed to meet the standard of care via expert testimony. (Ibid.) Theforegoing rules of analysis apply whether the practitioner is a doctor or a nurse; anurse’s conduct is not measured by the same standard of care as a doctor’s butlikewise must be assessed by expert testimony from one qualified to speak to theappropriate profession’s standard of care. (Lattimore at p. 969.)On moving for summary judgment a medical practitioner will accordingly have the initialburden to present evidence, supported by expert testimony where necessary, thathis/her acts met the applicable standard of care, else the motion must be denied.PORTUGAL carries her initial burden as to the standard of care issue. The Declarationof Nancy Booth in Support of PORTUGAL’s Motion for Summary Judgment (Booth)states that PORTUGAL observed the relevant standard of care (Booth at ¶ 17.) Ms.Booth declares she is qualified to speak to the standard of care for a nurse inPORTUGAL’s circ*mstances because she is a licensed registered nurse with almostfifty years’ experience who has been a certified correctional setting health careprofessional since 2013 and worked in a correctional health care setting from 2006 to2021. (Id. at ¶¶ 1, 3.) Ms. Booth reviewed Decedent’s general medical records, therecords from September 2, 2017, and numerous documents generated in the course ofthis litigation. (Id. at ¶ 5.) Ms. Booth explains that in the context of the unusually hotday on September 2, 2017 it was reasonable for PORTUGAL to believe Decedentsuffered heat-related problems and perform associated assessments and treatment.(Id. at ¶ 18.) Ms. Booth states that Decedent was able to answer questions and obeycommands and so it was reasonable for PORTUGAL to not explore a possible alteredmental state. (Id. at ¶ 17.) Ms. Booth states that it was reasonable to believeDecedent’s problems had resolved because he displayed improved vital signs aftertreatment. (Id. at ¶ 18.) Additional tests such as rectal thermometer and orthostaticblood pressure readings were not necessary to meet the standard of care becauseDecedent was a conscious adult male whose vital signs were able to be accessed inother ways. (Id. at ¶¶ 20-21.) Ms. Booth connects her opinions to facts and offerscompetent expert testimony that PORTUGAL met the standard of care.Plaintiff’s admissible evidence suffices to raise triable issues of material fact on theissue of the standard of care. In paragraph 13 of the Ron Lopez declaration he statesthat PORTUGAL observed that Decedent was dehydrated yet performed no evaluationof urine specific gravity, orthostatic blood pressure, or fluid intake and output. Thisdirectly counters Ms. Booth’s assertion that there was no need to examine Decedent’sorthostatic blood pressure and raises a triable issue of material fact on the standard ofcare given that the defense position hinges on the idea that PORTUGAL respondedappropriately to presented dehydration. In paragraph 14 Mr. Lopez states thatPORTUGAL observed “10/10” pain from Decedent for two and a half hours but did notperform a PQRST pain assessment or document the effect of the analgesics provided.This too raises an issue as to the standard of care in the circ*mstances Decedentpresented.On the issue of causation, however, PORTUGAL fails to meet her initial burden. In amedical negligence case, causation must be proven with expert testimony. (Bromme v.Pavitt (1992) 5 Cal.App.4th 1487, 1498; Dumas v. Cooney (1991) 235 Cal.App.3d 1593,1603; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.) In the context of a motion for summary judgment, it stands to reason that experttestimony is needed to negate causation. PORTUGAL offers no expert evidence tonegate causation. She uses only a layperson’s analysis based on the disputed factssurrounding Decedent’s cause of death to conclude that there is no evidence thatresponding differently to Decedent’s initial presentation would have changed histreatment outcome.Conclusion. PORTUGAL’s motion for summary judgment is denied.Department 7 is inviting you to a scheduled ZoomGov meeting.Join ZoomGov Meetinghttps://solano-courts-ca-gov.zoomgov.com/j/1611554664?pwd=T3U4QlBGWWNWaGlieXJTcGxIVHRXZz09Meeting ID: 161 155 4664Passcode: 818575One tap mobile+16692545252,,1611554664#,,,,*818575# US (San Jose)+14154494000,,1611554664#,,,,*818575# US (US Spanish Line)
Ruling
RAYMOND GALBREATH VS L AND R AUTO PARKS, INC, ET AL.
Aug 20, 2024 |Renee C. Reyna |21STCV45717
Case Number: 21STCV45717 Hearing Date: August 20, 2024 Dept: 29 Galbreath v. L and R Auto Parks, Inc. 21STCV45717 Defendants Motion for Leave to File Amended Answer Tentative The motion is granted. Background On December 15, 2021, Plaintiff Raymond Galbreath (Plaintiff) filed his complaint against Defendants L and R Auto Parks, Inc., Juan Cruz, and Does 1 through 50 for motor vehicle negligence and general negligence causes of action stemming from an auto accident occurring on December 16, 2019. On June 9, 2022, L and R Auto Parks, Inc. and Juan Cruz (collectively Defendants) filed an answer. On April 19, 2024, Defendants filed this motion for leave to file an amended answer. No opposition has been filed. This motion was initially set for hearing on July 23 and continued to August 20. Trial is currently scheduled for December 3, 2024. Legal Authority CCP § 473(a)(1) provides, in relevant part: The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281, overruled on other grounds by Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390.) Under CRC Rule 3.1324(a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. Under CRC Rule 3.1324(b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has discretion to deny leave to amend. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490.) Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.) Discussion Defendants request leave to amend their answer to add an affirmative defense of Civil Code section 3333.4; Defendants contend that Plaintiff lacked insurance when the accident occurred, and therefore non-economic damages are not recoverable. (Hubert Decl., ¶¶ 3, 4.) Although the potential for a lapse of insurance was initially discovered in February 2023, Defendants have since followed up to request any proof of insurance in effect at the time of the accident and also subpoenaed records from Allstate, Uber, and James River for proof of insurance. (Id., ¶¶ 7-9.) Reviewing the motion and its exhibits, the Court finds that Defendants have established good cause for leave to amend their answer. All substantive and procedural requirements are satisfied. As such, the Court GRANTS the motion for leave to amend. Conclusion Accordingly, Defendants motion for leave to amend is GRANTED. The Court GRANTS Defendants leave to file their First Amended Answer, attached to the moving papers, within 7 days of the hearing. Moving Party is to give notice.
Ruling
LAMONT STAPLETON VS LYFT, INC., ET AL.
Aug 20, 2024 |24STCV09585
Case Number: 24STCV09585 Hearing Date: August 20, 2024 Dept: 56 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT LAMONT STAPLETON, Plaintiff, vs. LYFT, INC., JAMES WORRELL CAMPBELL and DOES 1-50, Defendants. CASE NO.: 24STCV09585 [TENTATIVE] ORDER RE: DEMURRER TO PLAINTIFFS COMPLAINT MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT Date: August 20, 2024 Time: 8:30 a.m. Dept. 56 MOVING PARTY: Defendant Worrell James Campbell (Campbell or Defendant) RESPONDING PARTY: Plaintiff Lamont Stapleton (Plaintiff) The Court has considered the moving, opposition and reply papers. BACKGROUND This action arises from a collision between a car driven by Campbell and a bicycle on which the Plaintiff was riding, which occurred on May 14, 2022. Plaintiff alleges that he was riding on his bicycle when Campbell made an unsafe lane change into the bike lane and collided with Plaintiff. (Complaint, p. 5, GN-2.) It is alleged that Campbell left the scene of the incident without providing Plaintiff with his contact information. (Id.) Plaintiff further alleges that at the time of the incident, Campbell was acting as an agent of Defendant Lyft, Inc (Lyft). (Id.) On April 16, 2024, Plaintiff filed a PLD-PI-001 form complaint (the Complaint) against Defendants Campbell and Lyft, asserting the following causes of action: 1) motor vehicle; 2) general negligence; and 3) intentional tort (intentional infliction of emotional distress). On May 30, 2024, Campbell filed a demurrer to Plaintiffs third cause of action for intentional tort (the Demurrer) and also filed a motion to strike portions of Plaintiffs Complaint setting forth a claim for punitive damages (the Motion to Strike). On July 9, 2024, a dismissal was entered as to Plaintiffs intentional infliction of emotional distress (IIED) cause of action as to Lyft only. Plaintiff filed oppositions to the Demurrer and the Motion to Strike on August 7, 2024, and Campbell filed replies to the oppositions on August 13, 2024. MEET AND CONFER Based upon the sworn declaration of Defendants counsel, the Court finds that the meet and confer requirement has been met. DISCUSSION Demurrer The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) A demurrer tests the legal sufficiency of the factual allegations in a complaint. (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. (Id.) The Court does not read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the complaint as a whole and its parts in their context. [Citation.] (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 804.) The Court assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Harris, supra, 56 Cal.4th p. 240.) The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Cause of Action for IIED Campbell asserts that by Plaintiffs Third Cause of Action for Intentional Tort, Plaintiff has attempted to assert a claim for IIED. Campbell argues that the Complaint fails to allege facts demonstrating that (a) Campbell is guilty of outrageous conduct and (b) Plaintiff truly suffered severe emotional distress. The essential elements of intentional infliction of emotional distress are: (1) outrageous conduct; (2) intention of causing, or reckless disregard of the probability of causing emotional distress; (3) severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Girard v. Ball (1981) 125 Cal.App.3d 772, 786.) An essential element of such a claim is&outrageous conduct beyond the bounds of human decency. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) Conduct is actionable when the recitation of the facts to an average member of the community would arouse such resentment against the actor that the member would exclaim Outrageous! (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) While there is no bright-line in deciding what outrageous conduct is and it involves a case-by-case appraisal, trial courts can determine whether the conduct was sufficiently outrageous. (Id.) The trial court can decide as a matter of law based upon the facts of the case that the conduct is not so extreme and outrageous as to exceed all bounds of that usually tolerated in a civilized society. (Wilkins v. National Broadcasting Co., Inc. (1999) 71 Cal.App.4th 1066, 1087, quoting Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 [while the outrageousness of the conduct is normally an issue to be determined by the trier of fact, the trial court can determine in the first instance whether the conduct may reasonably be regarded as so extreme and outrageous as to permit recovery].) Here, Plaintiff alleges that after the collision, Defendant Campbell got out of his vehicle to check on Plaintiff. Defendant proceeded to flee the scene of the incident without providing Plaintiff with his contact information. (Complaint, p. 8, IT-2.) The facts, as alleged, do not adequately allege an IIED claim. To establish a claim for IIED, the conduct must be "extreme and outrageous," exceeding all bounds usually tolerated in a civilized community. Given the standards as discussed above, merely fleeing the scene of an accident, especially after first stopping to check on the victim, without additional egregious elements, do not reach the threshold of being "extreme and outrageous" as required for an IIED claim. None of the cases cited by Plaintiff supports a finding that fleeing the scene of an accident, in itself, constitutes outrageous conduct. Moreover, to support his claim of severe emotional distress, Plaintiff alleges that [a]s a result of Defendant fleeing the scene of the accident, Plaintiff was seriously concerned that Defendant may never be located and that he would be unable to obtain necessary medical treatment and also be saddled with medical expenses. (Complaint, p. 8, IT-5.) Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal. 4th 965, 1004.) The distress allegedly suffered by Plaintiff, i.e., serious concern about paying his medical bills, does not meet this demanding standard. Accordingly, because Plaintiff fails to state a cause of action for IIED, the Court SUSTAINS the demurrer with leave to amend. Plaintiff has 30 days from the date of this Order to amend the Complaint. The Court notes that unless a subsequent amendment cures the above defects in the pleading, the Court would consider sustaining a demurrer filed thereto without leave to amend. Motion to Strike The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.) Here, Defendant moves to strike portions of Plaintiffs Complaint pertaining to punitive damages and related references. Exemplary/Punitive Damages Civil Code § 3294(a) authorizes the recovery of punitive damages in non-contract cases where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice& (1) Malice means conduct which is 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. (2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. (3) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civil Code § 3294(c)(1)-(3).) Despicable conduct that rises to the level of supporting an award of punitive damages against a defendant is that which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people and has been described as conduct&having the character of outrage frequently associated with a crime. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Conscious disregard means the defendant was aware of the probable dangerous consequences of his conduct, and he willfully and deliberately failed to avoid those consequences. (Hoch v. Allied-Signal, Inc. (1994) 25 Cal.App.4th 1269, 1287.) To be liable for punitive damages the defendant must have actual knowledge of the risk of harm it is creating, and in the face of the knowledge, fail to take steps it knows will reduce or eliminate the risk of harm. (Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 742.) Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1051.) The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. (Tomaselli, supra, 25 Cal.App.4th at 1287 (Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiffs rights, a level which decent citizens should not have to tolerate.). Here, Plaintiffs conduct does not rise to the level of despicable conduct sufficient to support the award of punitive damages. As discussed above, Campbells act of fleeing the scene of the incident without providing Plaintiff with his contact information does not necessarily amount to extreme and outrageous conduct. Because the cause of action supporting the claim for punitive damages fails, so must the claim for punitive damages. (Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1355 [if the cause of action fails, so must an ancillary claim for punitive damages].) Accordingly, Campbells motion to strike portions of the Complaint pertaining to Plaintiffs claim for exemplary/punitive damages is GRANTED with leave to amend. Plaintiff has 30 days from the date of this Order to amend the Complaint. The Court notes that unless a subsequent amendment cures the above defects in the pleading, the Court would consider granting a motion to strike filed thereto without leave to amend. Moving party is ordered to give notice of this ruling. Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. Dated this 20th day of August 2024 Hon. Holly J. Fujie Judge of the Superior Court
Document
Amarilys Rodriguez v. The City Of New York, New York City Department Of Design And Construction, The New York City Department Of Transportation, Weeks Avenue Associates Holdings Llc, Tully Construction Co. Inc.
Jul 14, 2023 |Mitchell J. Danziger |Torts - Other Negligence (Trip and Fall) |Torts - Other Negligence (Trip and Fall) |810741/2023E
Document
Gricely Reyes v. Hajie Dukuray Waggeh, Abdouraoufou Sambare, Lyft Inc., And Michael M. Cohen
Dec 18, 2023 |Fidel Gomez |Torts - Motor Vehicle |Torts - Motor Vehicle |820070/2023E
Document
Y. M. R. , an infant by her mother and guardian YANEILIS REYES GARCIA, Yaneilis Reyes Garcia , Individually v. Amboy Development West Llc, Joel Shafran, David Levitan, Yosef Rabinowitz
Jan 29, 2021 |Veronica G. Hummel |Torts - Other (Premises Liability) |Torts - Other (Premises Liability) |801407/2021E
Document
T'Qi Moshi As Administrator Of The Estate Of HELEN EMELINE RICHARDS A/K/A EMELINE RICHARDS DECEASED, T-Qi Moshi Individually v. Eastchester Rehabilitation And Health Care Center Llc, Centers Health Care Ipa, Llc D/B/A Beth Abraham Center
Mar 01, 2024 |Michael A |Torts - Other (NEGLIGENT SUPERVISION) |Torts - Other (NEGLIGENT SUPERVISION) |803626/2024E
Document
Deyvis Ivan Cruzado Lizana v. Tishman Construction Corp., 220 Eleventh Llc
Aug 18, 2023 |Erik Gray |Torts - Other (Labor Law) |Torts - Other (Labor Law) |812785/2023E
Document
Mar 16, 2022 |Wilma Guzman |Torts - Other (Premises) |Torts - Other (Premises) |804042/2022E
Document
Billy J. Jansen v. 90 Fifth Owner, Llc, Taurino Management, Inc., Republic First Bank
Nov 15, 2019 |Wilma Guzman |Torts - Other Negligence (Construction Labor Law) |Torts - Other Negligence (Construction Labor Law) |33593/2019E
Document
Ramon Jimenez v. Union Health Center, Haunlin An Md, Yvonne Ablorh-Odjida Md, Gramercy Park Digestive Disease Center, Lawrence Ottaviano Md
May 10, 2017 |Alicia Gerez |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |23912/2017E
