EXHIBIT(S) - BB1 (Motion #5) Exhibit BB-1 - Part 1 NYPH Inpatient Chart_Redacted - Exhibit BB-1 - Part 1 NYPH Inpatient Chart_Redacted Redacted December 06, 2021 (2024)

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Ruling

Eric Amadei vs Timothy Morgan, ESQ, et al

Jul 10, 2024 |23CV00719

23CV00719AMADEI v. MORGAN (UNOPPOSED) MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE AND FOR MONETARY SANCTIONS The unopposed motion is granted. Plaintiff seeks an order deeming the truth of all matters specified in his requests foradmissions, set one, propounded on defendant Morgan. Plaintiff also seeks monetary sanctions inthe amount of $2,145.00. I. Legal Authority Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), if a party fails toserve a timely response to requests for admission, the requesting party may move for an orderthat the genuineness of any documents and the truth of any matter specified in the request bedeemed admitted, as well as for monetary sanctions. Code of Civil Procedure section 2033.280, subdivision (c) requires the court to make thisorder “unless it finds that the party to whom the requests for admission have been directed hasserved, before the hearing on the motion, a proposed response to the requests for admission thatis in substantial compliance with Section 2033.220. It is mandatory that the court impose amonetary sanction under Chapter 7 (commencing with Section 2023.010) on the party orattorney, or both, whose failure to serve a timely response to requests for admission necessitatedthis motion.” II. Discussion Page 2 of 3 Pursuant to the Discovery Act, the court shall order the requests for admission asadmitted unless code-compliant responses are served before the hearing. (Code of Civ. Proc. §2033.280, subd. (c).) Plaintiff served requests for admissions, set one on April 5, 2024, via electronic service,on defendant. (Ex. 2 to Dec. of U. Singh.) Defendant failed to respond to the requests and has notcommunicated with plaintiff’s counsel regarding the requests. (Dec. of U. Singh at ¶ 8.) The court deems admitted all matters specified in requests for admissions, set one,attached to the Declaration of Mr. Singh as Ex. 2. (Code Civ. Proc. § 2033.280, subd. (b).) Thiswill be the order of the court unless defendant serves, before the hearing on the motion, aproposed response to the requests for admissions that is in substantial compliance with Code ofCivil Procedure section 2033.220. The court imposes monetary sanctions against defendant Morgan in the amount of$1,195.00, payable no later than July 31, 2024.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

COSSUTO VS. ESTATE OF MICHAELGARRETT, ET

Jul 11, 2024 |CVPO21-0196776

COSSUTO VS. ESTATE OF MICHAEL GARRETT, ET ALCase Number: CVPO21-0196776Tentative Ruling on Motion to Consolidate: Plaintiff Denise Cossuto moves to consolidate Case No. 196776with Case No. 200449. Denise Cossuto is the Plaintiff in both matters and represented by the same counsel inboth matters. Despite being properly noticed, none of the other parties in this action have filed an opposition.Motions to consolidate have certain pleading requirements that are described in CRC 3.350. Plaintiff has compliedwith the requirements set forth in CRC 3.350. (a) When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.CCP § 1048(a).The Court has discretion to order actions consolidated when they involve common questions of law or fact. CCP§ 1048. Consolidation is appropriate where economy and convenience would be served by having the mattersconsolidated. The purpose of uniting separate lawsuits is to enhance trial court efficiency (i.e., to avoidunnecessary duplication of evidence and procedures); and to avoid the substantial danger of inconsistentadjudications (i.e., different results because tried before different juries, or a judge and jury, etc.). See Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal. App. 4th 976, 978-979.Consolidation is an extension of the liberal rules regarding joinder of parties and claims. The “common question”which justifies consolidation is usually one that would have justified joining the various parties in the same lawsuitat the outset. Where separate lawsuits have been filed, consolidation in effect permits a “joinder” at a later stageof the proceedings. See Petersen v. Bank of America (2014) 232 Cal. App. 4th 238, 252-253. Under the statuteand the case law, there are two types of consolidation: a consolidation for purposes of trial only, where the twoactions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the twoactions are merged into a single proceeding under one case number and result in only one verdict or set of findingsand one judgment. See Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal. 4th 1127. In these matters, Plaintiffsseek to consolidate the cases for all purposes, i.e., complete consolidation.The decision to either grant or deny a motion to consolidate is within the trial court’s sound discretion and willnot be reversed except upon a clear showing of abuse of discretion. Fellner v. Steinbaum (1955) 132 Cal. App.2d 509, 511. In determining whether to order consolidation, courts generally consider the following:1. Timeliness: Whether consolidation would delay the trial of any of the cases involved, or whether discovery in one or more of the cases has proceeded without all parties present;2. Complexity: Whether joining the actions involved would make the trial too confusing or complex for a jury; and3. Prejudice: Whether consolidation would adversely affect the rights of any party.See Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2018), Ch.12(I)-E. Consolidation is not proper if a party to the action is prejudiced by virtue of the consolidation. State FarmMut. Auto Ins. Co. v. Superior Court (1956) 47 Cal. 2d 428, 431-432.The two matters at issue here involve the same parties and the same set of facts. Neither of these matters arecurrently set for trial. There is no allegation that one is further along in discovery than the other or that discoveryhas proceeded without all parties present. Regarding complexity or confusion to a jury, it does not appear thatconsolidation would result in confusion for the jury. There also does not appear to be prejudice to any Defendant.The Motion to consolidate is GRANTED. Case No. 200449 is consolidated into Case No. 196776 for allpurposes. Al future filings will be in Case No. 196776. Plaintiff provided a proposed Order for Case No.196776but did not provide a proposed Order for 200449. Plaintiff is to prepare the Order for Case No. 200449. TheCourt confirms the review hearing on Monday, July 22, 2024 at 9:00 a.m. in Department 63. Plaintiff is toprovide notice of the review hearing to all parties. The parties are ORDERED to meet and confer prior to thehearing regarding proposed dates for trial.

Ruling

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS OLUTOYIN OLA TOMAKILI, ET AL.

Jul 11, 2024 |Echo Dawn Ryan |19STLC05734

Case Number: 19STLC05734 Hearing Date: July 11, 2024 Dept: 26 State Farm v. Tomakili, et al.MOTION TO VACATE DISMISSAL AND ENTER JUDGMENT PURSUANT TO STIPULATION (CCP § 664.6) TENTATIVE RULING: Plaintiff State Farm Mutual Automobile Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT OLUTOYIN OLA TOMAKILI IN THE AMOUNT OF $1,300.00 PRINCIPAL, PLUS $500.00 IN COSTS. ANALYSIS: On June 14, 2019, Plaintiff State Farm Mutual Automobile Insurance Company (Plaintiff) filed this subrogation action against Defendant Olutoyin Ola Tomakili (Defendant). Defendant filed an answer on August 16, 2019. On October 26, 2022, Plaintiff filed a copy of the parties settlement agreement with a request for dismissal and retention of jurisdiction under Code of Civil Procedure section 664.6. The Court dismissed the action pursuant to the stipulation on November 15, 2022. (Order for Dismissal, 11/15/22.) On April 17, 2024, Plaintiff filed the instant Motion to Vacate Dismissal, Enforce Settlement, and Enter Judgment. To date, no opposition has been filed. Legal Standard The instant motion is brought under Code of Civil Procedure, section 664.6, which states in relevant part: If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. (Code Civ. Proc., § 664.6, subd. (a).) Prior to January 1, 2021, parties under section 664.6 meant the litigants themselves, not their attorneys. (Levy v. Superior Court (1995) 10 Cal.4th 578, 586.) The current statute provides that parties includes an attorney who represents the party and an insurers agent. (Code Civ. Proc., § 664.6, subd. (b).) The settlement must include the signatures of the parties seeking to enforce the agreement, and against whom enforcement is sought. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 985.) The settlement agreement complies with the statutory requirements set forth above because it was signed by both parties and their attorneys. (Motion, Reese Decl., Exh. A, pp. 2-3.) Furthermore, the request for retention of jurisdiction must be made in writing, by the parties, before the action is dismissed for the Courts retention of jurisdiction to conform to the statutory language. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433 [If, after a suit has been dismissed, a party brings a section 664.6 motion for a judgment on a settlement agreement but cannot present to the court a request for retention of jurisdiction that meets all of these requirements, then enforcement of the agreement must be left to a separate lawsuit.].) The parties request for retention of jurisdiction complies with these requirements because it was made in writing to the Court before the action was dismissed. (Motion, Reese Decl., Exh. A, ¶3.) The settlement provides that Defendant would pay Plaintiff $12,400.00 through an initial payment from Defendants insurer of $10,000.0, followed by Defendants monthly payments starting on September 1, 2022. (Id. at Exh. A, ¶2.) The settlement agreement also provides that upon Defendants default, Plaintiff may seek judgment in the settlement amount, plus costs not to exceed $500.00, less any monies paid. (Id. at ¶3.) Payments of $11,100.00 were made towards the settlement, after which Defendant defaulted. (Id. at ¶¶4-5 and Exh. C.) Based on the foregoing, Plaintiff is entitled to entry of judgment against Defendant in the amount of $1,300.00 principal ($12,400.00 - $11,100.00) plus costs of $500.00. (Id. at ¶8.) Conclusion Plaintiff State Farm Mutual Automobile Insurance Companys Motion to Enforce Settlement Agreement is GRANTED. JUDGMENT TO BE ENTERED IN PLAINTIFFS FAVOR AND AGAINST DEFENDANT OLUTOYIN OLA TOMAKILI IN THE AMOUNT OF $1,300.00 PRINCIPAL, PLUS $500.00 IN COSTS. Moving party to give notice.

Ruling

Watkins, et al. vs. The Estate of Karen Moran

Jul 10, 2024 |23CV-0203208

WATKINS, ET AL. VS. THE ESTATE OF KAREN MORANCase Number: 23CV-0203208This matter is on calendar for trial setting. The Court designates this matter as a Plan II case and intends to setthe matter for trial no later than March 18, 2025. Both parties have posted jury fees. The parties are ordered tomeet and confer prior to the hearing regarding proposed dates for trial. An appearance is necessary on today’scalendar

Ruling

DOE #1 (C.S.) vs DHSL, LLC

Jul 10, 2024 |CVPS2400961

Demurrer on Complaint by DHSO, INC.,CVPS2400961 DOE #1 (C.S.) vs DHSL, LLCDHSL, LLC, and DHSE, INC.Tentative Ruling: Sustained in part, and overruled in part.Overruled as to all challenged causes of action with the exception of the 5th Cause of Action which issustained without leave to amend.Defendants to file their answer within 20 days of this order becoming final.Plaintiffs to provide notice pursuant to CCP § 1019.5.Plaintiffs Jane Doe #1 (CS) and Jane Doe #2 (NH) (“Plaintiff”) filed the complaint (the “Complaint”) inthe present action on February 15, 2023 against defendants DHSO, Inc.; DHSL LLC; and DHSE, Inc.(together, “Defendants”). Plaintiffs allege they separately went for massages at Miracle SpringsResort and Spa (the “Resort”), which is alleged to be owned and operated by Defendants. Theassigned massage therapist, Francisco Terredanio III (“Terredanio”), engaged in unwanted andoffensive sexual touching of Plaintiffs during the massages, which they describe in detail in theComplaint. They reported Terredanio’s inappropriate conduct. The manager told one Terredanio’semployment would be terminated and thanked her for coming forward. However, no termination ofemployment occurred and when the same happened to Doe #2, the manager of the Resort indicatedshe would provide a refund. Plaintiffs allege Defendants took no action against and continued toemploy Terredanio. The Complaint sets forth six causes of action: (1) negligence; (2) negligentinfliction of emotional distress (“NIED”); (3) intentional infliction of emotional distress (“IIED”); (4)sexual battery (Civ. Code § 1708.5); (5) gender violence (Civ. Code § 52.4); and (6) Ralph Actviolation (Civ. Code § 51.7).Defendants DHSO, Inc.; DHSL LLC; and DHSE, Inc. (“Defendants”) demur to the Complaint andargue: (1) Plaintiff failed to comply with Civ. Code § 364; (2) the first through sixth causes of actionare unintelligible and uncertain; (3) the first cause of action through third causes of action only allegeeconomic loss; (4) the second cause of action for NIED is redundant of the first cause of action fornegligence; (5) the third cause of action for IIED fails because the Complaint does not set forthoutrageous conduct by Defendants; (6) the fourth cause of action for sexual battery fails because theComplaint does not allege facts demonstrating “harmful and offensive contact” and does not describeDefendant’s actual knowledge or ratification of Terredanio’s conduct; (7) the fifth cause of action forgender violence fails because the Complaint does not set forth a violation of Civ. Code § 52.4(e) byDefendants; and (7) the sixth cause of action does not describe an act of violence in violation of theRalph Act.In opposition, Plaintiffs argues: (1) Civil Code § 364 is inapplicable, as the present action is not basedupon professional negligence; (2) the first through fourth causes of action are not uncertain and areproperly pleaded; (3) the first and second causes of action are properly pleaded and Defendant hasnot set forth a sufficient basis for demurrer; (4) the Complaint sufficiently sets forth outrageousconduct to support the third cause of action for IIED; (5) the fourth cause of action for sexual batteryand fifth cause of action for gender violence are properly pleaded; and (6) the allegations ofTerredanio’s unwanted and offensive touching is sufficient to support the sixth cause of action forviolations of the Ralph Act.DemurrerA general demurrer lies where the pleading does not state facts sufficient to constitute a cause ofaction. (CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonableinterpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents ofUniversity of California (1990) 51 Cal.3d 120, 125.) The court assumes the truth of all material factswhich have been properly pleaded, of facts which may be inferred from those expressly pleaded, andof any material facts of which judicial notice has been requested and may be taken. (Crowley v.Katleman (1994) 8 Cal.4th 666, 672.) However, a demurrer does not admit contentions, deductionsor conclusions of fact or law. (Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, 713.) Factsappearing in exhibits attached to the complaint will also be accepted as true and, if contraryallegations appear in the complaint, will be given precedence. (Del E. Webb Corp. v. StructuralMaterials Co. (1981) 123 Cal.App.3d 593, 606.) If the complaint fails to state a cause of action, thecourt must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can becured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)A special demurrer lies where a pleading is uncertain, ambiguous and unintelligible. (CCP §430.10(f).) Demurrers for uncertainty, however, are typically sustained where the defendant cannotreasonably determine what issues must be admitted or denied, or what claims are directed againsthim. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)Special Demurrer for UncertaintyDefendants challenges the first four causes of action on the ground of uncertainty under CCP §430.10(f). However, Defendants fail to explain how the claims are uncertain such that Defendantcannot reasonably determine what issues must be admitted or denied, or what claims are directedagainst it. (Khoury, supra, 14 Cal.App.4th at 616.) While Defendants appears to argue that theComplaint lacks any basis for its liability for Terredanio’s actions, the Complaint very clearly allegesthat Defendants owned and operated the Resort and employed Terredanio. (See Complaint, ¶¶ 4-8,20-26.) Any clarification Defendants require may be obtained through discovery. OVERRULED.CCP § 364 Is Inapplicable to the Present ActionDefendants first argues that because Plaintiff failed to comply with the notice provisions under CCP §364, the demurrer to the Complaint should be sustained without leave to amend. CCP § 364(a)provides that an action based upon the professional negligence of a health care provider “may not becommenced unless the defendant has been given at least 90 days’ prior notice of the intention tocommence the action.” On its face, CCP § 364 only applies to actions for professional negligence.Here, Plaintiff has not set forth a cause of action for professional negligence/malpractice. Moreover,even if the statute were applicable – and it is not – additional causes of action that arise out of thesame facts as a medical malpractice action do not trigger MICRA. (Unruh-Haxton v. Regents ofUniversity of California (2008) 162 Cal.App.4th 343, 354-56.) More importantly, the failure to providenotice is not a ground for sustaining a demurrer; rather, under the express language of CCP § 365,the failure to comply with CCP § 364 is grounds for discipline of the attorney. OVERRULED.1ST and 2nd Causes of Action – Negligence and Negligent Infliction of Emotional Distress (NIED)“Actionable negligence involves a legal duty to use due care, a breach of such legal duty, and thebreach as the proximate or legal cause of the resulting injury.” (Beacon Residential Community Assn.v. Skidmore, Owings & Merrill LLP (2014) 59 Cal. 4th 568, 573 [quoting United States Liab. Ins. Co. v.Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594] [internal quotation marks omitted].) However, thereis no independent tort of NIED; the tort is negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6Cal.4th 965, 984.) Thus, the elements of cause of action for NIED are: (1) legal duty to use due care;(2) breach of such legal duty; (3) damage or injury; and (4) cause of the resulting damage or injury.(Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) The law of NIED istypically analyzed by reference to two “theories” of recovery: the “bystander” theory and the “directvictim” theory. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.) Bystander liability ispremised upon a defendant’s violation of duty not to cause emotional distress to people who observenegligent conduct which causes harm to another. (Id. at 1072.)In John R. vs. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447-452, the California SupremeCourt held that sexual assault committed by a public school teacher was not within the scope ofemployment because the act was in no way incidental to any duties that the teacher was engaged toperform and could not fairly be said to be a foreseeable risk inherent in the teacher’s activities. (Seealso John Y. v. Chaparral Treatment Ctr., Inc. (2002) 101 Cal.App.4th 565, 575-576 [no respondeatsuperior liability for sexual misconduct by counselor at a residential facility for emotionally disturbedchildren]; Juarez vs. Boy Scouts of America (2000) 81 Cal.App.4th 377, 397-395 [no respondeatsuperior liability against church and organization for sexual assault of boy scout by troop leader]. Seealso Mary M. vs. City of Los Angeles (1991) 54 Cal.3d 202, 214-216 [city vicariously liable for a sexualassault by an off-duty police officer following a traffic stop: the officer who detains an individual isacting as the official representative of the state, with all its coercive power, and it is neither startlingnor unexpected that on occasion an officer will misuse that authority by engaging in assaultiveconduct].)In the present case, the Complaint sets forth sufficient facts from which the trier of fact could concludethat Defendants are liable for Terredanio’s conduct under a respondeat superior theory of liability.The assault took place while Terredanio was massaging Plaintiff within the scope of his employmentduties, and it cannot be said that his actions were wholly unrelated to his employment duties or thatthey did not arise from the conduct of Defendants’ business. The risk of tortious injury could bedeemed to be inherent in the working environment, or typical of or broadly incidental to the enterprisethe employers have undertaken. (See Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12Cal.4th 291, 298; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003-04.)Further, Terredanio’s alleged sexual assault is arguably a foreseeable consequence of the businessactivity. (See Lisa M., supra, 12 Cal.4th at 301-02, quoting Rodgers v. Kemper Constr. Co. (1975) 50Cal.App.2d 608, 619 [“An intentional tort is foreseeable, for purposes of respondeat superior, only if inthe context of the particular enterprise an employee’s conduct is not so unusual or startling that itwould seem unfair to include the loss resulting from it among other costs of the employer’s business”][emphasis in the original] [internal quotation marks omitted]. The determination whether Terredaniowas acting within the scope of his employment presents a question of fact. (Lisa M., supra, 12 Cal.4that 299; Farmers Ins. Group, supra, 11 Cal.4th at 1019.)In sum, in their first cause of action for negligence, Plaintiffs allege a direct cause of action againstDefendants and includes allegations that Defendants negligently hired, trained, supervised and/orretained Terredanio. (Complaint, ¶¶ 69-73.) In their second cause of action, Plaintiffs similarly seeksto hold Defendants directly liable for their own actions, although they also include allegations basedupon their ratification –that is, they allege that Defendants are vicariously liable for Terredanio’snegligent actions. (Complaint, ¶¶ 63-69.) While the claims contain some redundancies, Plaintiffs haveset forth two separate theories of recovery. OVERRULED.3rd Cause of Action – Intentional Infliction of Emotional Distress (IIED)A cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageousconduct with the intent of causing, or reckless disregard of the probability of causing, emotionaldistress; (2) suffering of sever or extreme emotional distress; and (3) actual and proximate causeresulting from the conduct. (Hughes v. Pair (2009) 46 Cal. 4th 1035, 1050-51). “A defendant’sconduct is ‘outrageous’ when it is so extreme as to exceed all bounds of that usually tolerated in acivilized community.” (Id. at 1050 [quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965,1001] [internal quotation marks omitted]). In order to avoid a demurrer, the plaintiff must allege with“great specificity” the acts which he or she believes are so extreme as to exceed all bounds of thatusually tolerated in a civilized community. (Vasquez v. Franklin Management Real Estate Fund, Inc.(2013) 222 Cal.App.4th 819, 832.) Importantly, a court is not required to accept blindly as true theconclusory allegation that a defendant’s conduct was extreme and outrageous; rather, it may decide itdoes not suffice as a matter of law. (Bock, supra, 225 Cal.App.4th at 235; Moncada v. West CoastQuartz Corp. (2013) 221 Cal.App.4th 768, 781; McClintock v. West (2013) 219 Cal.App.4th 540, 556;Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.)In the present case, Defendants argues that Plaintiffs have not set forth any factual allegations ofextreme or outrageous conduct. The argument is not well taken. Indeed, the Complaint includesdetailed allegations Terredanio’s unauthorized and offensive touching of Plaintiff Jane Doe #1 (Comp.¶¶ 30-35, 86) and Jane Doe #2 (Comp. ¶¶ 43-51, 87). There is no legitimate dispute that Plaintiff’sallegations set forth extreme and outrageous actions that exceed all bounds of that usually toleratedin a civilized community under these circ*mstances. Further, Plaintiffs alleges that they have sufferedsevere emotional distress and has experienced physical manifestations of distress and disgrace,humiliation, loss of enjoyment of life and has incurred and will continue to incur expenses for medicalexpenses. (Comp., ¶¶ 89-90.) Plaintiffs allegations of severe emotional distress, especially given thefactual circ*mstances, are sufficient at the pleading stage. (Hailey v. California Physicians'Service (2007) 158 Cal.App.4th 452, 476-77.) OVERRULED.4TH Cause of Action – Sexual BatteryUnder Civ. Code § 1708.5(a), a person commits sexual battery if he does any of the following:(1) Acts with the intent to cause a harmful or offensive contact with an intimate part of another,and a sexually offensive contact with that person directly or indirectly results.(2) Acts with the intent to cause a harmful or offensive contact with another by use of his or herintimate part, and a sexually offensive contact with that person directly or indirectly results.(3) Acts to cause an imminent apprehension of the conduct described in paragraph (1) or (2),and a sexually offensive contact with that person directly or indirectly results.A cause of action for sexual battery requires that the batterer intend to cause a harmful or offensivecontact and that the victim suffer a sexually offensive contact. (Jacqueline R. v. Household of FaithFamily Church, Inc. (2002) 97 Cal.App.4th 198, 208; Angie M. v. Superior Court (1995) 37Cal.App.4th 1217, 1225.)Defendants argue that Plaintiffs attempt to plead the claim as a negligence per se tort. Defendantsalso argue that the Complaint fails to set forth harmful or offensive contact and does not set forth abasis for liability against Defendants. Contrary to Defendants arguments, Plaintiffs allegations heresufficiently set forth a claim for sexual battery. As discussed above, Plaintiffs sets forth allegations ofharmful and offensive contact in great detail. Further, Plaintiffs adequately set forth allegations ofratification to support liability against Defendants.Importantly, principles of ratification apply to a claims for sexual battery, and an employer may beliable for an employee’s act where the employer either authorized the tortious act or subsequentlyratified an originally unauthorized tort. (See C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th1094, 1110-11; see also Andrade v. Arby's Restaurant Group, Inc. (N.D. Cal. 2016) 225 F.Supp.3d1115, 1129-31.) Notably, the California Supreme Court has explained:Ratification is the voluntary election by a person to adopt in some manner as his own an actwhich was purportedly done on his behalf by another person, the effect of which, as to someor all persons, is to treat the act as if originally authorized by him. A purported agent’s act maybe adopted expressly or it may be adopted by implication based on conduct of the purportedprincipal from which an intention to consent to or adopt the act may be fairly inferred, includingconduct which is inconsistent with any reasonable intention on his part, other than that heintended approving and adopting it.(Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73 [emphasis supplied].) “The theory of ratification isgenerally applied where an employer fails to investigate or respond to charges that an employeecommitted an intentional tort, such as assault or battery.” (C.R., supra, 169 Cal.App.4th at 1110.)Importantly, retention of an employee after knowledge of the employee’s conduct or an adequateopportunity to learn of the conduct may support an inference of ratification. (See Murillo v. Rite StuffFoods, Inc. (1998) 65 Cal.App.4th 833, 852. See also Baptist v. Robinson (2006) 143 Cal.App.4th151, 169-70 [“Whether an employer has ratified an employee’s conduct is generally a factualquestion”].)Here, Plaintiffs alleges that she informed the Resort’s manager of Terredanio’s conduct and thatDefendants took no disciplinary action against Terredanio continue to employ him as a massagetherapist. (Complaint, ¶¶ 36, 51, 63, 96.) Plaintiffs allegations are sufficient at the pleading stage.OVERRULED.5th Cause of Action – Gender ViolenceCiv. Code § 52.4(a) provides that “[a]ny person who has been subjected to gender violence may bringa civil action for damages against any responsible party.” Importantly, § 52.4(c) defines “genderviolence” as:(1) One or more acts that would constitute a criminal offense under state law that has as anelement the use, attempted use, or threatened use of physical force against the person orproperty of another, committed at least in part based on the gender of the victim, whether ornot those acts have resulted in criminal complaints, charges, prosecution, or conviction.(2) A physical intrusion or physical invasion of a sexual nature under coercive conditions,whether or not those acts have resulted in criminal complaints, charges, prosecution, orconviction.While Plaintiffs allegations would easily set forth a cause of action for gender violence againstTerredanio (who is not a party to the action), their allegations are insufficient to state a claim againstDefendants. Importantly, Civ. Code § 52.4(e) provides:Notwithstanding any other laws that may establish the liability of an employer for the acts of anemployee, this section does not establish any civil liability of a person because of his or herstatus as an employer, unless the employer personally committed an act of gender violence.Defendants correctly argue that the Complaint does not set forth any allegation that it personallycommitted an act of gender violence and that under the explicit terms of the statute, it cannot be heldvicariously liable. (See Doe v. Pasadena Hospital Association, Ltd. (C.D. Cal., Mar. 16, 2020) No.2:18-CV-08710-ODW (MAAx), 2020 WL 1244357 at *8 [Civ. Code § 52.4(e) exempts employers fromliability on a claim of gender violence for the acts of their employees].) SUSTAINED WITHOUTLEAVE TO AMEND.6TH Cause of Action – Violation of the Ralph ActUnder the Ralph Act, all persons within the state have the right to be free from violence, orintimidation by threat of violence, committed against their persons or property because of protectedcharacteristics, including sex/gender. (Civ. Code § 51.7(a); see also Civ. Code § 51(b) and (e)[enumerating protected characteristics].) To state a claim under the act, a plaintiff must show that (1)the defendant threatened or committed violent acts against the plaintiff; (2) the defendant wasmotivated by his perception of plaintiff’s protected characteristic (here, Plaintiffs’ sex/gender); (3) theplaintiff was harmed; and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’sharm. (See Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 881 [quotingCACI 3023]; see also Gabrielle A. v. County of Orange (2017) 10 Cal.App.5th 1268, 1291 [“Under theRalph Act, a plaintiff must establish the defendant threatened or committed violent acts against theplaintiff or their property, and a motivating reason for doing so was a prohibited discriminatory motive,or that the defendant aided, incited, or conspired in the denial of a protected right”].)Civ. Code § 51.7 is a “hate crime” statute and requires actual threats of violence to a person or theirproperty. (Ramirez v. Wong (2010) 188 Cal.App.4th 1480, 1486.) Further, under Civ. Code § 52(b),“[w]hoever denies the right provided by Section 51.7 …, or aids, incites, or conspires in that denial, isliable for each and every offense for the actual damages suffered by any person denied that right.”Courts have construed the statute to create liability on the part of an employer for a § 51.7 violationcommitted by an employee. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1457-58;Winarto v. Toshiba Am. Elec. Components (9th Cir. 2001) 274 F.3d 1276, 1290, 1292-93; Beliveau v.Caras (C.D. Cal. 1995) 873 F.Supp. 1393, 1400-01; see also Links, Robert D., Cal. Civ. Prac. CivilRights Litigation (Thomson Reuters 2022) § 3:6.)In the present case, Defendants argue that the Complaint does not set forth an act of violence. Theargument lacks merit. As discussed above, the Complaint sets forth detailed allegations of sexualassault/battery, and Plaintiffs further alleges that perception of their sex was a motivating reason forTerredanio’s conduct and that his conduct was a substantial factor in causing their harm. (Comp., ¶¶30-35, 43-51, 86-87, 109, 112.) Sexual assault constitutes violence under the Ralph Act, regardlessof the level of force. (See Roe v. California Department of Developmental Services (N.D. Cal., May26, 2017) No. 16-CV-03745-WHO, 2017 WL 2311303 at *9; see also Winarto, supra, 274 F.3d at1289 [“[T]here is no requirement that the violence be extreme.... If the California legislature wanted tolimit the reach of the statute to extreme, criminal acts of violence, it could have explicitly said so”].)Plaintiff’s allegations are sufficient at the pleading stage. OVERRULED.3.Motion to Strike Plaintiff’s Complaint byCVPS2400961 DOE #1 (C.S.) vs DHSL, LLCDHSO, INC., DHSL, LLC, and DHSE, INC.Tentative Ruling: Denied.Plaintiff to provide notice pursuant to CCP § 1019.5.Plaintiffs Jane Doe #1 (CS) and Jane Doe #2 (NH) (“Plaintiff”) filed the complaint (the “Complaint”) inthe present action on February 15, 2023 against defendants DHSO, Inc.; DHSL LLC; and DHSE, Inc.(together, “Defendants”). Plaintiffs allege they separately went for massages at Miracle SpringsResort and Spa (the “Resort”), which is alleged to be owned and operated by Defendants. Theassigned massage therapist, Francisco Terredanio III (“Terredanio”), engaged in unwanted andoffensive sexual touching of Plaintiffs during the massages, which they describes in detail in theComplaint. They reported Terredanio’s inappropriate conduct; however, the manager of the Resortindicated she would provide a refund to one and speak with Terredanio about the complaints.Plaintiffs allege Defendants took no action against and continued to employ Terredanio. TheComplaint sets forth six causes of action: (1) negligence; (2) negligent infliction of emotional distress(“NIED”); (3) intentional infliction of emotional distress (“IIED”); (4) sexual battery (Civ. Code §1708.5); (5) gender violence (Civ. Code § 52.4); and (6) Ralph Act violation (Civ. Code § 51.7).Defendants move to strike the demand for punitive damages on the ground that Plaintiff has not setforth facts supporting the demand against them. Defendants further argue that Plaintiff’s allegationsof ratification should be stricken because there is no indication that Plaintiff reported Terredanio’sconduct to Defendants. Lastly, Defendants argues that the demand for attorney fees should bestricken as the Complaint fails to set forth a statutory basis for an award of fees.In opposition, Plaintiffs argue that the Complaint sets forth sufficient facts to demonstrate ratificationand to support the demand for punitive damages. Plaintiffs further argue that the Complaint properlydemands attorney fees in accordance with Civ. Code §§ 51.7, 52.4 and 1708.5.Punitive DamagesTo support a demand for punitive damages under Civ. Code § 3294, a plaintiff must plead and provefacts demonstrating malice, oppression or fraud as defined in (Civ. Code § 3294(c).) As defined in thestatute, malice is “conduct which is intended by the defendant to cause injury to the plaintiff ordespicable conduct which is carried on by the defendant with a willful and conscious disregard of therights or safety of others,” while oppression is defined as “despicable conduct that subjects a personto cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(1)-(2).) Despicable conduct is conduct that is base, vile or contemptible. (College Hospital, Inc. v.Superior Court (1994) 8 Cal.4th 704, 725.) The mere allegation that an intentional tort was committedis not sufficient to warrant an award of punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d890, 894.) “There must be circ*mstances of aggravation or outrage, such as spite or malice or afraudulent or evil motive on the part of defendant, or such conscious and deliberate disregard for theinterests of others that his conduct may be called willful or wonton.” (Id. at 894-95 [citation andinternal quotation marks omitted].) However, “[i]t has long been the rule that conduct classified onlyas unintentional carelessness, while it may constitute negligence or even gross negligence, will notsupport an award of punitive damages.” (Nolin v. National Convenience Stores, Inc. (1979) 95Cal.App.3d 279, 285-86.)In the present case, Defendants argues that Plaintiffs fails to plead specific facts to demonstratemalice, oppression or fraud to support the demand for punitive damages. However, as discussedabove, Plaintiff sets forth detailed allegations of Terredanio’s alleged sexual assault, actions which areindisputably base, vile and contemptible. The allegations, if proven, are sufficient to support an awardof punitive damages. Notwithstanding, Defendant argues that Plaintiff fails to allege that the actsconstituting malice, oppression and/or fraud were ratified by an officer, director or managing agent ofthe Resort in accordance with Civ. Code § 3294(b).Civ. Code § 3294(b) sets forth the circ*mstances under which an employer may be held liable forpunitive damages based upon acts of an employee. They include the employer’s (1) advanceknowledge of the employee’s unfitness; (2) authorization or ratification of the wrongful conduct; and(3) personal culpability. (See Grieves v. Superior Court, 157 Cal.App.3d 159, 167.) Moreover, acorporate employer may be liable only if the knowledge, authorization, ratification or act itself was onthe part of an officer, director or managing agent of the corporation. (Civ. Code § 3294(b); Grieves,157 Cal.App.3d at 167-68.) Thus, when the defendant is a corporation, an award of punitive damagesagainst that corporation must rest on the malice of the corporation’s employees. (Wilson v. SouthernCalifornia Edison Co. (2015) 234 Cal.App.4th 123, 164.) That is, the law does not simply imputeevery employee’s malice to a corporation; rather, the punitive damages statute requires proof ofmalice among corporate leaders: that the corporation’s officers, directors or managing agents hadknowledge of the employee’s unfitness, authorized or ratified the wrongful conduct, or had personalculpability. (Civ. Code § 3294(b); Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.)Here, the Complaint contains broad allegations that officers and/or directors knew of Terredanio’sunfitness. (Complaint, ¶¶ 21-28.) Further, Plaintiffs allege that they directly advised the manager ofthe Resort of Terredanio’s conduct but that Defendants thereafter did not take any disciplinary actionand that they continued to employ Terredanio as a massage therapist. (Complaint, ¶¶ 35-38, 42, 51-53.) While the allegations of corporate authorization/ratification are set forth in conclusory terms, it isa general canon of pleading that less specificity is required where the facts lie more in the knowledgeof the defendant. (Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d197, 217.) Pleading in the language of the statute is not objectionable when sufficient facts arealleged; nor is it proper to strike punitive damages simply because the averments of the complaint aremostly conclusory and subject to being stricken. (See Perkins v. Superior Court (1981) 117Cal.App.3d 1, 6-7.) Plaintiffs allegations are sufficient at the pleading stage to support the demand forpunitive damages as against Defendants. DENIED.Attorney FeesA prevailing party may recover attorney fees only when a statute or contract provides for fee shifting.(Kirby v. Immoos Fire Protection (2012) 53 Cal. 4th 1244, 1248.)Here, as discussed in the accompanying demurrer, Plaintiff has set forth a viable cause of actionunder the Ralph Act, which provides for an award of attorney fees. (Civ. Code § 52(b)(3).) DENIED.

Ruling

CECILIA TAPIA DE ULLOA, ET AL. VS MICHAEL K. NEWMAN, M.D., ET AL.

Jul 10, 2024 |23TRCV00346

Case Number: 23TRCV00346 Hearing Date: July 10, 2024 Dept: 8 Tentative Ruling HEARING DATE: July 10, 2024 CASE NUMBER: 23TRCV00346 CASE NAME: Cecilia Tapia De Ulloa, et al. v. Michael K. Newman, M.D., et al. MOVING PARTY: (1) Defendants, Michael K. Newman, M.D. and Association of South Bay Plastic Surgeons Medical Group (2) Defendants, Michael K. Newman, M.D. and Association of South Bay Plastic Surgeons Medical Group RESPONDING PARTY: (1) Plaintiff, Cecilia Tapia De Ulloa (No opposition) (2) Plaintiffs, Cecilia Tapia De Ulloa and Edwin Ulloa TRIAL DATE: April 28, 2025 MOTION: (1) Motion to Compel the Depositions of Plaintiffs, Cecilia Tapia de Ulloa and Edwin J. Ulloa (2) Motion to Deem Admissions as to both Plaintiffs Tentative Rulings: (1) GRANTED, and the Court awards monetary sanctions of $2,255.40. The date and times for the depositions will be discussed at the hearing on the motions and made part of the Courts order (2) MOOTED by service of verified denials of each RFA on July 1, 2024, but monetary sanctions of an additional $855 are GRANTED The monetary sanctions are payable by Plaintiffs and/or by their counsel to the offices of defense counsel on or before July 30, 2024. The awarded sanctions are expressly discovery sanctions, for purposes of State Bar reporting concerns I. BACKGROUND A. Factual On February 7, 2023, Plaintiffs, Cecilia Tapia De Ulloa and Edwin J. Ulloa, as individuals and as successors in interest to Natalia C. Ulloa filed a Complaint against Defendants, Michael K. Newman, M.D., South Bay Plastic Surgeons, Inc., Jason K. Ho, M.D., Michael Mercado, M.D., Providence Medical Institute Manhattan Beach Urgent Care, and DOES 1 through 100. The Complaint alleges a cause of action for Medical Malpractice/Wrongful Death and Survival Action. Defendants, Michael K. Newman, M.D. and Association of South Bay Plastic Surgeons Medical Group (erroneously sued as South Bay Plastic Surgeons, Inc.) now file a Motion to Compel the Depositions of Cecilia Tapia De Ulloa and Edwin J. Ulloa. Moving Defendants note that the initially noticed the depositions of Plaintiffs on July 12, 2023, to occur on October 12, 2023. However, Moving Defendants indicate the depositions were taken off calendar by moving defendants counsel on October 5, 2023, because Plaintiffs responses to discovery on July 12, 2023, had still not been received. Moving Defendants contend that the Plaintiffs depositions were again noticed on February 23, 2024, to occur on April 24, 2024. Moving Defendants note that on April 15, 2024 and April 18, 2024, Moving Defendants litigation assistant sent emails to both of Plaintiffs counsels to confirm the depositions of them noticed for April 24, 2024. On April 19, 2024, at 3:43 pm, Moving Defendants assert that one of Plaintiffs counsel, Sonia Chaisson, sent an email to Ms. Plotkin asking to meet and confer regarding dates for the subject depositions. On April 19, 2024, Ms. Plotkin sent an email to Ms. Chaisson stating she had just left a voicemail and asked for available dates for Plaintiffs deposition and that of a percipient witness who Plaintiffs counsel had agreed to produce. Ms. Plotkin notes she sent another email to both of Plaintiffs counsel on April 22, 2024, and that an email was received from Plaintiffs other counsel, Ralph Rogari, on Monday, April 22, 2024, stating that he and Ms. Chaisson would be in court for the next few days, but that Ms. Chaisson would provide deposition dates by Friday, April 26, 2024. Moving Defendants also note that Mr. Rogari also requested dates for Dr. Newmans deposition and that of Defendants expert, although experts had not yet been designated. Moving Defendants counsel indicates that an email was sent to Mr. Rogari on April 23, 2024, stating the deposition could not be deferred indefinitely, and that if firm dates were not received by Friday, the depositions would be noticed unilaterally, and would not be taken off calendar again. Moving Defendants counsel indicates no response was sent and no deposition availability was communicated by Plaintiffs counsel. Accordingly, Moving Defendants indicate that on May 6, 2024, Defense counsel noticed the depositions of Plaintiffs to occur on May 29, 2024. Defense counsel notes that no response and no deposition availability was communicated to defense counsels office. On May 22, 2024, Moving Defendants counsel notes that she reached out to Plaintiffs counsel to confirm the depositions of Plaintiffs set for May 29, 2024, but that there was no response. On May 24, 2024, Defense counsel notes she received from Plaintiffs counsel a Notice of Deposition of Dr. Newman. On May 29, 2024, Defense counsel notes that the court reporter and videographer appeared for depositions of Plaintiffs pursuant to the noticed depositions, at 10:00 am and 2:00 pm. However, Defense counsel notes that there was no appearance by Plaintiffs or their counsels, nor was there a call. Defense counsel asserts that certificates of non-appearance were obtained. Further, on February 23, 2024, Moving Defendants also note that the propounded Requests for Admission, Set One, on each of the Plaintiffs through their counsel of record. Responses were due on or before March 27, 2024. On May 6, 2024, Defense counsel notes that she sent a letter to Plaintiffs counsel requesting Plaintiffs outstanding responses to the Requests for Admission, Set One, without objections, within ten (10) days of the letter. Moving Defendants contended as of the time the motion was filed that no responses were served. Thus, they have brought this motion to deem requests for admission as admitted. B. Procedural On June 5, 2024, Moving Defendants filed this Motion to Compel the Deposition of Plaintiffs. To date, no opposition has been filed. On June 12, 2024, Moving Defendants filed a Motion to have Requests for Admission Deemed Admitted and Requests for Sanction. On July 1, 2024, Plaintiffs filed an opposition brief attaching verified denials of the subject RFAs. On July 2, 2024, Moving Defendants filed a reply brief. II. ANALYSIS A. Motions to Compel the Deposition of Plaintiffs Legal Standard A party seeking discovery from a person who is not a party to the action may obtain discovery by oral deposition, written deposition, or deposition subpoena for production of business records.¿ (Code Civ. Proc., § 2020.010.)¿ A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things.¿ (Code Civ. Proc., § 2020.020.)¿ A service of a deposition subpoena shall be affected a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce any designated documents and, where personal attendance is commanded, a reasonable time to travel to the place of deposition.¿ (Code Civ. Proc., § 2020.220, subd. (a).)¿ Personal service of any deposition subpoena is effective to require a deponent who is a resident of California to: personally appear and testify, if the subpoena so specifies; to produce any specified documents; and to appear at a court session if the subpoena so specifies.¿ (Code Civ. Proc., § 2020.220, subd. (c).)¿ A deponent who disobeys a deposition subpoena may be punished for contempt without the necessity of a prior order of the court directing compliance by the witness.¿ (Code Civ. Proc., § 2020.240.)¿ Pursuant to Code of Civil Procedure section 2025.450, subdivision (a) states, [i]f after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under section 2025.230, without having served a valid objection under section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450(a).) California Code of Civil Procedure section 1987.1, subdivision (a) states, [i]f a subpoena requires the attendance of a witness or the production of books, documents, 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. [U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas. (Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal.App.4th 575, 582-583.) Discussion Here, Moving Defendants have filed a motion for an order compelling the depositions of both Plaintiffs, Cecilia Tapia De Ulloa and Edwin J. Ulloa. Moving Defendants argue that it is essential that the Plaintiffs be deposed to ascertain any information they have regarding liability and damages, which Moving Defendants will likely be presented by them at the time of trial to support their case. Moving Defendants contend that without these depositions, they will not be able to accurately project Plaintiffs claimed damages, assess the strengths and weaknesses of plaintiffs case, to retain the appropriate experts, to prepare for trial, or to consider pre-trial resolution by settlement. Further, this Court notes that Moving Defendants have complied with the requirements of making this said motion under Code of Civil Procedure section 2025.450, et seq. For example, Moving Defendants have: (1) set forth in their motion, specific facts showing good cause for justifying the ordering of Plaintiffs depositions pursuant to the subpoenas; (2) the motion is also accompanied by a meet and confer declaration. (Code Civ. Proc., §2024.450(b)(1)-(2).) Without an opposition brief, the Court assumes that Plaintiffs do not have an opposition to the motion. As such, the Court finds good cause to GRANT the motions to order compliance with the deposition subpoenas of Plaintiffs. The Court will discuss the scheduling for the depositions at the hearing on this motion so that the compelled depositions will be scheduled per court order. Sanctions Pursuant to Code of Civil Procedure section 2025.450, subdivision (g)(1), [i]f a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2025.450(g)(1).) Here, counsel for Moving Defendants, Betsey J. Jeffery, Esq., notes in her declaration (Jeffery Decl.) that Moving Defendants have accrued sanctions in the amount of $3,447.90 in connection with this motion. The total amount is based on her declaration where she asserts she spent at least 0.4 hours of attorney hours on meet and confer efforts, 3 hours in drafting the subject motion, 0.7 hours appearing for the no-show depositions and doing certificates of non-appearance, with an additional 3 hours of anticipated attorney work in reviewing and relying to the opposition, appearing at the zoom hearing, a $60 filing fee, $1,506.40 in court reporter fees and with an hourly rate of $265. This Court notes that no opposition was filed and no reply brief or notice of non-opposition was filed by Moving Defendants counsel, and thus, that amount will not be accounted for. This Court also notes that 3 hours to prepare a general discovery motion is an excessive amount of time for the current case. As such, the Court GRANTS Moving Defendants request for sanctions, but in the lowered amount of $2,255.40 because there was no opposition to review and no reply to prepare. The monetary sanctions are payable by Plaintiffs and/or by their counsel to the offices of defense counsel on or before July 30, 2024. B. Motion to Deem Requests for Admission as Admitted Legal Standard A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd. (b).) The party also waives the right to make any objections, including one based on privilege or work-product protection. (Code Civ. Proc., § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc., 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411 Further, where there has been no timely response to a Code of Civil Procedure § 2031.010 demand, the demanding party must seek an order compelling a response. (CCP § 2031.300.) Failure to timely respond waives all objections, including privilege and work product. Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion. Where the motion seeks only a response to the inspection demand, no showing of "good cause" is required. Discussion Here, the Court notes that Plaintiffs opposition brief indicates that they have subsequently served verified responses to the Moving Defendants Requests for Admission, and this Court further notes that it finds those responses to be in substantial compliance. If Moving Defendants take issue with Form Interrogatory No. 17.1 as it relates to the Requests for Admission, they may file a Motion to Compel Further Responses to the form interrogatory 17.1. Because the untimely, but substantially Code-compliant admissions and denial were served prior to the hearing of this motion, the substantive motion to deem the RFAs admitted is mooted. (Code Civ. Proc., § 2033.280(a).) However, this does not moot the Moving Defendants request for sanctions. Moving Defendants have requested monetary sanctions be imposed on Plaintiffs and/or their respective counsels in the amount of $1,120. This amount is supported by Betsey J. Jefferys declaration (Jeffery Decl.) as well. She asserts that she has spent 2.5 attorney hours drafting the motion, an additional 1.5 hours of anticipated work in reviewing and replying to the opposition ,and appearing at the zoom hearing, a $60 filing fee, and at a rate of $265 per hour. Sanctions are mandatory in connection with motions to deem RFAs admitted if, as here, the Court finds that the responding party has submitted a response to the RFAs that is in substantial compliance with Section 2033.220. It 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(c).) The Court thus awards monetary sanctions in the lowered amount of $855 in monetary sanctions against Plaintiffs and/or Plaintiffs counsel, payable to defense counsel on or before July 30, 2024. III. CONCLUSION For the foregoing reasons, Moving Defendants Motion for an Order Compelling the Depositions of Plaintiffs, Cecilia Tapia De Ullo and Edwin J. Ulloa is GRANTED and sanctions are awarded in the amount of $2,255.40. Further, Moving Defendants Motion to Deem Requests for Admission as Admitted is MOOTED. However, mandatory sanctions are awarded in the amount of $855. Moving Defendants are ordered to give notice.

Ruling

Gabriela Judith Anacona vs Dignity Health

/media/1546

Ruling

JAMES HOWARD VS PROSPER BENHAIM

Jul 09, 2024 |23CHCV00240

Case Number: 23CHCV00240 Hearing Date: July 9, 2024 Dept: F49 Dept. F49 Date: 7/9/24 Case Name: James Howard v. Prosper Benhaim Case No. 23CHCV00240 LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F49 JULY 9, 2024 MOTION FOR JUDGMENT ON THE PLEADINGS Los Angeles Superior Court Case No. 23CHCV00240 Motion filed: 2/1/24 MOVING PARTY: Defendant Prosper Benhaim (Benhaim or the Defendant) RESPONDING PARTY: None. NOTICE: OK. RELIEF REQUESTED: A judgment on Plaintiffs Complaint on the grounds that Plaintiff does not state facts sufficient to constitute a cause of action against Defendant. TENTATIVE RULING: The motion is GRANTED without LEAVE TO AMEND. BACKGROUND On January 27, 2023, Plaintiff James Howard (Howard or Plaintiff) filed a Complaint against Defendant alleging Medical Malpractice. Subsequently, on March 8, 2023, Defendant filed his Answer to the Complaint. On January 29, 2024, Department F51 Court granted Defendants unopposed motions to compel Plaintiffs responses to discovery requests, and to deem admitted his Requests for Admission, Set One, filed on November 3, 2023. (1/29/24 Minute Order). On February 1, 2024, Defendant filed the instant Motion for Judgment on the Pleadings (the Motion). No Opposition or Reply papers have been received by the Court. ANALYSIS A motion for judgment on the pleadings is the equivalent of a demurrer made after the pleadings are in. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746 [quoting Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 463].) A party may move for a judgment on the pleadings as to an entire complaint or as to a particular cause of action in a complaint. (Code Civ. Proc., §¿438, subd. (c)(2)(A).) If a defendant moves for judgment on the pleadings and argues that a complaint does not state facts sufficient to constitute a cause of action against that defendant, then the court should grant a defendants motion only if the court finds as a matter of law that the complaint fails to allege facts sufficient to constitute the cause of action. (Code Civ. Proc., §¿438, subd.(c)(1)(B)(ii); see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.) The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. OReilly (2010) 183 Cal.App.4th 316, 321.) A judgment on the pleadings attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Code Civ. Proc., § 438, subd. (d); Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) When considering a motion for judgment on the pleadings, the court should assume that all facts alleged are true and should liberally construe the alleged facts with a view to attaining substantial justice among the parties. (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232; Code Civ. Proc., § 452.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 27.) Whether a motion for judgment on the pleadings should be granted with or without leave to amend depends on whether there is a reasonable possibility that the defect can be cured by amendment& (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1402 [quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318].) When a cure is a reasonable possibility, the trial court abuses its discretion by not granting leave to amend& (Ibid.) A. Meet and Confer Requirement Code of Civil Procedure section 439, subdivision (a) provides, Before filing a statutory motion for judgment on the pleadings, the moving party must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. (Code Civ. Proc., § 439, subd. (a).) However, determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion for judgment on the pleadings. Furthermore, [t]he moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following: (A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 439, subd. (a)(3).) Here, Defendants counsel attests that on January 31, 2024, he called and spoke to Plaintiff in order to meet and confer regarding issues raised in the Motion. (Corson Decl. ¶ 7.) According to Defendants counsels declaration, during the meet and confer phone call, Plaintiff stated that he understood that Defendant would be seeking a dismissal based on matters deemed admitted, and Plaintiff indicated that he would try and get his case back in order. (Ibid.) Based on the above records, the Court determines that the requirements for meet and confer have been sufficiently met. B. Requests for Judicial Notice Defendant requests that the Court take judicial notice of the following documents: (1) This Courts January 29, 2024 Minute Order Deeming the Truth of Matters Specified in Requests for Admission Propounded on Plaintiff JAMES HOWARD Admitted (attached hereto as Exhibit A). (2) Defendant PROSPER BENHAIM, M.D.s Request For Admissions, Set No. 1, Propounded on Plaintiff JAMES HOWARD (attached hereto as Exhibit B). A court may take judicial notice of the contents of its own records. (Evid. Code, § 452, subd. (d); Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265; Foster v. Gray (1962) 203 Cal.App.2d 434, 439.) Accordingly, the Court GRANTS Defendants Request for Judicial Notice. C. Motion for Judgment on the Pleadings 1) Cause of Action Medical Malpractice A prima facie case for medical malpractice consists of (1) a duty to conform to the relevant standard of care; (2) a breach of that duty, i.e., the negligent conduct; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)¿A healthcare provider is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful healthcare providers of the same type would use in the same or similar circ*mstances. (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) Here, Defendant argues that Plaintiffs action is barred because Plaintiff was deemed to have admitted that he had no basis for his action against Defendant. Specifically, it was deemed admitted that defendant PROSPER BENHAIM, M.D., complied with the STANDARD OF CARE at all times when rendering treatment to [Plaintiff], that any action taken by defendant PROSPER BENHAIM, M.D., was not a SUBSTANTIAL FACTOR in causing any INJURY to [Plaintiff], that any action which was not taken by defendant PROSPER BENHAIM, M.D. was not a SUBSTANTIAL FACTOR in causing any INJURY to [Plaintiff], and that to a reasonable degree of medical probability [Plaintiff] have not suffered any INJURY due to a breach of the STANDARD OF CARE by defendant PROSPER BENHAIM, M.D. (RJN, Ex. A, and B.) Defendant contends that by these admissions, which demonstrate the absence of the necessary elements for the claim, Plaintiff cannot sufficiently state a cause of action for Medical Malpractice. (Mot. at pp. 4-5.) The Court agrees. The Court notes that a complaint's allegations may be disregarded when they conflict with judicially noticed discovery responses. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83.) Accordingly, a pleading valid on its face may nevertheless be subject to demurrer when judicially noticed admissions render the complaint meritless. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Here, in alignment with these established precedents, the judicial notice of the Minute Order dated January 29, 2024, deeming matters admitted by Plaintiff, is dispositive in this case. The admissions conclusively establish that Defendant did not act below the standard of care and that no act or omission by Defendant was a substantial factor in causing Plaintiffs alleged injuries. As a result, Plaintiff has failed to demonstrate the essential elements of a medical malpractice claim. Therefore, given that Plaintiff has admitted that his action against Defendant was meritless, the Court GRANTS the Motion for Judgment on the Pleadings. 2) Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) Here, Plaintiff does not submit any Opposition to the Motion or argue there is a reasonable possibility of successful amendment, failing to meet his burden. Moreover, even assuming that Plaintiffs single-page Complaint may be amended to state a cause of action, it does not overcome the judicially noticed admissions rendering a valid complaint meritless. (See Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604.) Accordingly, the Court DENIES leave to amend. CONCLUSION Defendants unopposed Motion for Judgment on the Pleadings is GRANTED WITHOUT LEAVE TO AMEND. Moving party to give notice.

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