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04-24-DB 02:44pm From- Millo.lliaoo LLP 214 363 3167 • T-684 P.DD2/DID F-732 CAUSE No. 348-220382-06 EVERMAN BINGO AssOCIATION, § PoLVTECHNIC MAIN STRI!.ET PROJECTS, INC. § (") . \~~· AND LINDA MCMULLEN § PlaintiffS § ;;>:.c; § V$. § 348111 JUDICIAL DISTRICT ~ § DoLLAR GENERAL CORPORATION, d/b/a § DOLLAR GENERAL STORE, DOLGENCORP OF § TExAS, INc., RALPH G. CAMPBELL & § JEROLEEN JOHNSON CAMPBELL § FOUNDATION, JNC., § AND Fl.OELJTY ASSET MANAGEMENT, INc. § TARRANT COUNTY, TEXAS Defendann § PLAINTifFS' AMENDED PETITION AND CLAIM FOR INDEMNITY AND CONTRIBUTION AGAINST Doi.G11NCORP OF TEXAS, INC. TO THE HONORABLE JUDCE OF SAID COURT: Now COMES, Plaintiffs and files their Amended Petition and Claim for Indemnity and Contribution Against Dolgencorp of Texas, Inc. and for causes of action would respectfully show the following: Ruu: 194 DISCOVERY CONTROL PUN I. Plaintiffs intend for discovery to be conducted under Level 3 of the Texas Rules of Civil Procedure, Rule 190.3. JURISDICTION AND VENUE 2. This Court has jurisdiction ofthis cause of action in that it involves an amount in controversy within the original jurisdiction of this Court. Venue is proper in this County pursuant to Texas Civil Practice & Remedies Code, Section 15.002 as Tarrant County is where all or a substantial portion of the events took place. PAOEI 2of 10 4/2412008 2:44:26 PM ~entral Dayligh1 rrmeJ 04-24-08 02:44PII From- Mills.lliam& LLP 214 363 3167 • T-684 P.003/0IO F-732 BACKGROUND 3. On May 12, 2003 Lori Durham, Linda McMullen and Melodye Green as owners of and doing business as Everman Bingo Association (hereinafter "Everman Bingo'') signed a lease for 9,600 square feet of space at 182 7 Everman Parkway, Everman, Texas ("the Property''). Everman Bingo Association renewed the lease effective July I, 2006. 4. Pursuant to the Lease, Everman Bingo Association opernted a bingo hall, game room and associated activities licensed and approved by the Texas Lottery Commission. Pursuant to the rules and regulations of the Lottery Commission, Linda McMullen was the Commercial Lessor of Everman Bingo and Polytechnic Main Street Projects, Inc., pursuant to its Conductor's license, played bingo at Everman Bingo and was a 40 I(c) charity. As a result of a fire that originated in the Dollar General Store, these Plaintiffs have lost revenues and income and have been damaged by this loss of revenue and property damage. 5. From October through December 2005 the City ofEverman conducted a Code Enforcement investigation of the Shopping Center ("Code Enforcement Inspection"). On or about January 24, 2006 the City of Everman notified the owner's of the Shopping Center (Campbell Foundation) of over 131 violations at the Shopping Center. 6. The Dollar General Store leased space contiguous to Everman Bingo at the Property, and it was cited with nine (9) such violations. Prior to the Code Enforcement Inspection, Dollar General was aware of the substandard Wiring in the storage area as well as other electrical violations, but no repairs or other action was taken to correct these dangerous conditions. During a fire code inspection in November 2003, tbe store manager told the Deputy Fire Marshal ofEvcnnan that the wiring in PLAINTIFFS' AM~NilED l'E:riTION AND CLAIM FOR TNOEMNITf AND CONTRIRtJTlON AGAINST DOLGENCOBP 011' TEMS, INC. PAOE2 1:\Bingo li.JI\PteDdings\PI:s Pclil.ions\POP 7th Am 04.07.08.wpd 3of 10 412412008 2:44:26 PM [Central Dayt~ht Timej 04-24-08 02:44Pm From- Millo4111111ia•• LLP 214 363 3167 41111 T-684 P 004/010 F-732 the back of the store was in poor condition and had advised Dollar General's coiporate office but no action had been taken to correct the condition of electrical wiring in the back of the store. The Fire Marshal made a note of this fact on their Preplan Inspection Report and described the wiring condition as a "special hazard" and as ''substandard''. 7. On or about July 21, 2006, as a result ofa frre that originated in the back storage area of the Dollar General Store, Plaintiffs' property and business was damaged. 8. Polytechnic Main Street Projects, Inc. (hereinafter the "Polytechnic'') is the beneficiary of the revenues generated by Everman Bingo. As a result of a fire that originated in the Dollar General Store, Polytechnic has suffered property damage and lost revenues and income and has been damaged by this loss of revenues and property damage. NEGLIGENCE AND DOCTIUNE OF RES IPSA LOQUITUR DOLLAR GENERAL CoRPORATION, dlb/a DOLLAR GENERAL STORE, DOLGENCORP OF TEXAS, INC. 9. Plaintiffs adopt the preceding paragmphs as if fully set forth herein. I 0. Plaintiffs would show that the City of Everrmm, Texas adopted certain building, electrical and fire codes ("Codes'') for the protection of the health, safety, property and welfare of the public, including the International. Property Maintenance Code ("IPMC"). Defendant had u duty to Plaintiffs to maintain the Property in a safe condition and In accordance with the standard of care as set forth in the Codes, including the IPMC. Defendant violated the provisions of the Codes, including the IPMC by their failure to properly maintain and comply with these provisions and said failure was the proximate cause of Plaintiffs' damages. Dollar General breached its duty to Plaintiffs and the breach proximately caused the Plaintiffs' damages for which Plaintiffs hereby sue in the maximum amount of$750,000. PAGE3 4of 10 412412008 2:44:26 PM [Cen1ral Dayt~ht Time) 04-24-08 02:44pa 214 363 3167 41111 T-684 P. 005/010 F-732 11. Dollar General had a duty to exercise rl'asonable and ordiniU)' care to maintain their leased premise in a safe condition by inspecting and correcting for any dangerous conditions. Dollar General had actual or constructive knowledge ofthe dangerous conditions on the premises, including substandard electrical wiring in the back storage 11"'11 that posed an =asonable risk of harm, and Dollar General did not exercise reasonable= to reduce or eliminate this risk, and such failure to use reasonable= proximately caused the Plaintiffs' injuries. Dollar General breached its duty to Plaintiffs and the breach proximately caused the Plaintiffs' damages for which Plaintiffs hereby sue in the maximum amount of$750,000. 12. Employees of Dollar General smelled the order of "burning paper" coming from the back storage area 45 minutes to one hour before the fire was first discovered. Several of the employees went into the back storage room to see if they could de1ermine tbc origin or location of the burning smell. After looking around for a few minutes they returned to their jobs in the front of the store. Dollar General made no further attempts to determine where or how or why there continued to be tbc smell ofburning paper coming from the back storage area. Dollar General had a duty to exercise reasonable and ordiniU)' = to determine the origin and cause of the smell of burning paper and to exercise reasonable and ordlna!y care for the protection of the health, safety, property and welfare of others. Dollar General breached its duty to Plaintiffs and the breach proximately caused the Plaintiffs' damages for which Plaintiffs hereby sue in the maximum amount of $750,000. 13. In the alternative, and without waiving the above, Plaintiffs rely on the doctrine of res ipsa loquillll' as the character of the accident is such that it would not ordinarily occur in the absence of negligence; and the location or instrumentality causing the injury is shown to have been under the PIIOE4 5of 10 4~412008 2:44:26 PM [Central Daylight Time) 04-24-08 02:45po 214 363 3167 ~ T-684 P.006/0IO F-732 management and control ofthe defendant. The fire in the Dollar General store is not something that happens in the ordinary course of things ifthose responsible for keeping the leased premises in a safe condition exercise proper care, and, in the absence of any explanation by defendant, warrants the inference of negligence upon the part of the Defendant in control and possession ofthe leased space. 14. In this connection Plaintiffs will show that the character of the occurrence giving rise to the fire is such that it would not have happened in the absence of negligence, and that the leased space was within the exclusive control of Defendant at the time the negligence occurred. Thus, an inference ofnegligent may be inferred, which negligence was the proximate cause ofthe injuries and damages sustained by Plaintiffs for which Plaintiffs now makes aclaim for their damages as set forth above. NEGLIGENCE RALPH G. CAMPBELL & JEROLEEN JOHNSON CAMPBELL FOUNDATION 1 INC. AND FIDELITY ASSET MANAGEMENT 15. The Landlord, Campbell Foundation, had a duty to Plaintiffs to exercise reasonable and ordinary care to maintain the Property in a safe condition. The Landlord had actual or constructive knowledge of the dangerous conditions on the premises, including substandard electrical wiring in the back storage area that posed an unreasonable risk of hllflll, and the Landlord did not exercise reasonable care to reduce or eliminate this risk, and such failure to use reasonable care proximately caused the Plaintiffs' injuries. The Landlord breached its duty to Plaintiffs and the breach proximately caused the Plaintiffs' damages for which Plaintiffs hereby sue in the maximum amount of $750,000. 16. Plaintiffs would show that the City of Everman, Texas adopted certain building, electrical PutNTIFFS' AMENDED l'llTITJON -'NP CLAIM f'OR INDJ:MNITy AND CONTRTBUTrON AGAINn" DOLGEN(;ORP OFT!XAS.INC~ PAGES 1:\l:liingo Hnii\Picadinp\f'ls Potitions\POP ?rh Am 04.07 .OI.wpd ............._______________________ 6ol10 4/2412008 2:44:26 PM [Cenlral Daylight Time) 04-24-08 02:45PII From- Mi 11••11 ia•• LLP 214 363 3167 • T-684 P.DD7/DID F-73Z and fire codes ("Codes") for the protection of the health, safety, property and welfare of the public, including the International Property Maintenance Code("IPMC"). The Landlord, Campbell Foundation, had a duty to Plaintiffs to maintain the Property in a safe condition and in accordance with the standard of care as set forth in the Codes, including the IPMC. Defendants violated the provisions of the Codes, including the IPMC by their failure to properly maintain and comply with the provisions of the Codes, including the IPMC and said failure was the proximate cause of Plaintiffs' damages. 17. Additionally, there is an implied warranty of suitability by a landlord in a conunerciallease that the premises are suitable for their intended co!Wllercial purposes and there are no latent defects in the Shopping Center that are vital to the use ofthe premises for their intended conunercial purpose and that the Shopping Center will remain in a suitable condition. Defendant breached its duty and the implied warranty to Plaintiffs and said breach of its duty was the proximate and producing cause of Plaintiffs' damages for which Plaintiffs hereby sue in the maxirnlUll amount of $750,000. Plaintiffs reserve the right to amend as discovery is ongoing. 18. Fidelity Asset Management was the Propeny Manager for Everman Shopping Center. Fidelity, as Campbell FoUildations's Agent, had the authority and power to make ordinary repairs and to notifY the Campbell Foundation if more extensive repairs were needed, including any code violations, warnings or notices related to such matters. As the Propeny Manager, Fidelity had a duty to Plaintiffs to exercise reasonable and ordinary care to maintain the Property in a safe condition. Fidelity had actual or constructive knowledge ofthe dangerous conditions on the premises, including substandard electrical wiring in the back storage area that posed an unreasonable risk of harm, nnd Fidelity did not exercise reasonable care to reduce or eliminate this risk, and such failure to use PLAINTIFFS' AM:END£0 PETITION AND CLAIM FOR INP£1!!N!Ty AND CONTI!IDUTION AGAINST DOLCENCORP OF'I'EXi\.'1, INC. PAGE6 Am 04.07.0i.wpQ' J:\Binso Hali\Pieadinss\Pis Pcait:ions\POP 7th 7or 10 4/2412008 2:44:26 PM [Central Dayl~ht nmeJ 04-24-08 OZ:45PII From· ~i l l r . l l iamr llP Zl4 363 3167 • -- --·- -· T-684 P.OOS/010 F-73Z reasonable care proximately caused the Plaintiffs' injuries. Fidelity breached its duty to Plaintiffs and the breach proximately caused the Plaintiffs' damages for which Plaintiffs hereby sue in the mlll=y: ~ J:hn \-\1 b.bcM.) • Bar ID # \'0\ t-+L-1 IoE:O Finn Name: ~f.. '4ls1DI(i IA.:2 FaxN @)~"~:l\~-3Li5S Subscn"ber Numbet-: Cj t) 0~ [1 ~ lJ 33 Telcph P. .,., g lf you ever have a problem, please call Sue at 817-884-1345 or Willie at 817-212·7009. .-r'1 -·:_:._.. -u .....d :t: ?::J- !):> ;:J; ~, .... _,~ _New Case Filing r ..D -:P _Motions and otbiOr pleadings WITH FEES: _ M01ions and Olher pleadings WITHOUT FEES: REOUEST FOR SERVICE DOCUMENTS '""'~...., w , • ....., '"""'"""' _....,........, Typo or a e r v i c e - I "~·~ ~ ,. ... -~~·~ I _&ypo or • .,.,... ' ! 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Case Number: 23CHCV00608 Hearing Date: August 21, 2024 Dept: F51 Dept. F-51¿¿ Date: 8/21/24 Case #23CHCV00608 LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F-51 AUGUST 20, 2024 MOTION FOR SUMMARY JUDGMENT Los Angeles Superior Court Case # 23CHCV00608 ¿ Motion Filed: 5/8/24 ¿ MOVING PARTY: Defendants William Josephson; and Catherine Flannery (collectively, Defendants) RESPONDING PARTY: Plaintiff Vartan Minassian (Plaintiff) NOTICE: OK¿ ¿ RELIEF REQUESTED: An order granting summary judgment in favor of Defendants and against Plaintiff on Plaintiffs complaint. TENTATIVE RULING: The motion is granted. REQUEST FOR JUDICIAL NOTICE: Defendants request for judicial notice is granted. BACKGROUND This is a personal injury action in which Plaintiff alleges that on 2/23/21, while he was walking his small dog on a leash along Marva Avenue in the City of Granada Hills, two of Defendants vicious dogs, charged and attacked Plaintiff without provocation when he passed Defendants residence located at 12523 Marva Avenue, Grana Hills, California. (Compl. ¶¶ 1112.) The subject dogs were owned by defaulted defendants Levon Ayrapetov and Jessica Ayrapetov, who resided at the subject property. (Id. at ¶ 14.) Defendants owned the subject property. (Id. at ¶ 15.) On 2/22/23, Plaintiff filed his complaint against all four Defendants, alleging the following causes of action: (1) Strict Liability (against the Ayrapetov defendants; and (2) Negligence (against Defendants). On 10/13/23, Defendants filed their answer. On 5/7/24, default was entered against the Ayrapetov defendants. On 5/8/24, Defendants filed the instant motion for summary judgment. On 7/24/24, Plaintiff filed his opposition. On 8/14/24, Defendants filed their reply. // // ANALYSIS The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 15191520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) A. Negligence Plaintiffs sole cause of action against Defendants is Negligence. To state a claim for negligence, a plaintiff must allege the elements of (1) the existence of a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in an injury. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Here, Plaintiff alleges that all Defendants had a duty to properly own and maintain the subject property, and negligently and carelessly breached their duty/duties when they allowed the premises to exist in a condition which allowed the dog to exit the premises and viciously attack Plaintiff as he walked on a public sidewalk near the premises. (Compl. ¶¶ 2425.) Defendants argue that they, as landlords of the property, owed no duty of care to Plaintiff because they had no knowledge of the dogs or their dangerous propensities. (MSJ 5:1325, citing Uccello v. Laudenslayer (1975) 44 Cal. App.3d 504, Donchin v. Guerrero (1995) 34 Cal.App.4th 1834.) Specifically, Defendants argue that they do not own the dogs that alleged to have attacked Plaintiff and have never had charge, care, custody, or control of the dogs, including on the day in question. (MSJ 3:2728.) Defendants further argue that they did not have any knowledge of the ARAYPETOVs dogs alleged history of dangerous propensities prior to the alleged attack, nor that the dogs would cause injury to another. (Id. at 4:24.) Defendants support their arguments with their own sworn declarations, as well as the lease agreement they entered into with the Ayrapretov defendants, showing a pet policy stating that any pets kept on the premises required Defendants prior written consent, and at the time of signing, no pets were listed on the lease. (Ex. A to Decl. of Catherin Flannery; Ex. A to Decl. of William Josephson.) Defendants argue that the ARYAPETOVS at no time prior to or after the execution of the Lease, disclosed to WILLIAM that they owned any animals, including dogs, or that any such animals were to being kept on the subject premises. (MSJ 4:68; Flannery Decl. ¶¶ 911; Josephson Decl. ¶¶ 911.) Although the lease that the ARYAPETOVS signed stated that no animal or pet shall be kept on or about the Premises without Landlords prior written consent at no time prior to or following the execution of the Lease did the ARYAPETOVS obtain written consent from WILLIAM to keep dogs on the subject premises. Since WILLIAM and CATHERINE did not have any knowledge of the ARAYPETOVs dogs existence on the subject premises, they could not know of the dogs alleged history of dangerous propensities prior to the alleged attack, nor that the dogs would cause injury to another. (MSJ 6:613.) Based on the foregoing, the Court finds that Defendants have met their initial burden to negate an essential element of Plaintiffs negligence cause of action. The burden thus shifts to Plaintiff to produce substantial evidence showing that a triable issue of fact exists. In opposition, Plaintiff argues that a triable issue remains because during discovery, Defendants produced a text message chain between Josephson and Levon Ayrapetov, purporting to show that Defendants are evidently very familiar with the Subject Dogs; going on to state that the dog is in bad shape. (Opp. 8:1415.) As a preliminary matter, and as Defendants observe, here, Plaintiff has only submitted to the Court his Points & Authorities which articulates Plaintiffs Argument for denial of the instant Motion. Plaintiff has failed to provide this court with a Separate Statement. As such, it is impossible for Plaintiff to demonstrate that there is a dispute as to any material fact. (Reply 3:47.) A separate statement is required in an opposition to a motion for summary judgment to ease the trial courts burden and put the moving party on notice of the evidence which is disputed by respondent. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 419; Cal. Rules of Ct., rule 3.130(e)(2).) Here, Plaintiff has failed to file any separate statement with his opposition as required by the California Rules of Court, and thus has failed to dispute any of the facts or evidence set forth by Defendants. As Plaintiff has failed to provide or introduce, any concrete evidence or circumstantial evidence which would contradict the facts alleged in Defendants Motion for Summary Judgment, Plaintiffs argument that Defendants likely had actual knowledge of the subject dog prior to the incident is little more than speculation and conjecture. (Reply 4:610.) The sole evidence proffered by Plaintiff to show Defendants knowledge of the subject dogs dangerous propensities is a text exchange, dated after the subject incident, wherein Josephson states that the dog is in bad shape. (Ex. A to Opp.) Therefore, even if Plaintiff had satisfied the procedural requirement by filing an opposing separate statement, the Court agrees with Defendants that the proffered text messages alone fail to create a triable issue of material fact. Based on the foregoing, the Court finds that Plaintiff has failed to meet his responsive burden to show that a triable issue exists as to whether Defendants are liable to him pursuant to Civil Code section 3342. The Court agrees with Defendants that Plaintiff has provided no facts that contradict the facts outlined in Defendants Motion for Summary Judgment, nor has he provided any reasonable inferences which would raise a triable issue of fact in this matter. (Reply 3:1922.) Accordingly, the motion is granted as to Plaintiffs negligence cause of action. B. Additional Discovery If it appears from the affidavits submitted in opposition to a motion for summary judgment & that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. (Code Civ. Proc. § 437c, subd. (h).) A declaration in support of a request for continuance under section 437c, subdivision (h) must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 [internal quotations omitted].) Here, Plaintiff argues that Defendants prematurely and wrongfully filed their Motion as discover[y] is ongoing and Plaintiff is attempting to locate the remaining defendants as to procure their depositions, and circumstantial evidence of Defendants actual knowledge of Subject Dog and Subject Dogs propensities. (Opp. 4:1517.) In light of Defendants incomplete discovery responses, Plaintiff intends to serve a second set of special interrogatories and request for production of documents on or before July 23, 2024. (Id. at 5:13.) Plaintiff therefore contends that due to discovery being incomplete, neither Plaintiff nor Defendants can definitively say facts essential to justify the opposition do not exist. (Id. at 7:2022.) However, as Defendants note in reply, there is no Declaration submitted by Plaintiffs counsel which articulates the reasons for seeking a continuance, as required by Code of Civil Procedure section 437c, subdivision (h). (Reply 8:12.) Additionally, to the extent that Plaintiff contends that Defendants 4/12/24 discovery responses were lacking in any way, Plaintiff failed to move for appropriate relief under the Civil Discovery Act. Defendants further note that at no time prior to filing Plaintiffs Opposition to Defendants Motion for Summary Judgment on or around July 24, 2024, did Plaintiffs Counsel attempt to meet and confer with Defense counsel regarding the alleged issues with Defendants discovery responses raised in Plaintiffs Opposition. (Reply 4:1822.) Based on the foregoing, the Court finds that Plaintiff has not met his burden to justify a continuance of the instant motion based on a lack of necessary facts yet to be discovered. Accordingly, the Court denies Plaintiffs request for any such continuance. CONCLUSION The motion is granted. Defendants to file Judgment within 10 days.
Ruling
Andres Martinez vs Koua Yang
Aug 20, 2024 |23CECG04147
Re: Martinez v. Yang et al. Superior Court Case No. 23CECG04147Hearing Date: August 20, 2024 (Dept. 501)Motion: by Plaintiff to Compel Further Response to Request for Production of Documents, Set OneTentative Ruling: To deny. If oral argument is timely requested, such argument will be entertained on August21, 2024, at 3:30 p.m.Explanation: The motion to compel further responses must be accompanied by a declarationshowing “a reasonable and good faith attempt” to resolve the issues outside of court.(Code Civ. Proc., §§ 2016.040, 2031.310, subd. (b)(2); see Clement v. Alegre (2009) 177Cal.App.4th 1277, 1294 [reasonable and good faith attempt at informal resolution entailssomething more than bickering with opposing counsel].) Three times before plaintiff filed the motion to compel (on 5/9, 5/16 and 5/21/24)defense counsel emailed proposed amended responses, asking if they would resolveplaintiff’s concerns. (See Garcia Decl., Exhs. 2 and 3.) There does not appear to havebeen any response from plaintiff’s counsel to these efforts, and plaintiff’s counsel evenfailed to include the 5/9 and 5/16 emails with the moving papers’ meet and conferexhibits, misleading the court about the nature and extent of the parties’ meet andconfer efforts. Again on 7/10/24, the day before the instant motion was filed, defensecounsel submitted the further amended responses and advised that verifications wouldbe forthcoming, once signed by defendants. (Garcia Decl., Exh. 5.) Verifications of theproposed amended responses were provided on 7/17/24. (Garcia Decl., Exhs. 6 and 7.)While maintaining many objections, the supplemental responses provided additionalsubstantive responses notwithstanding the objections. Moreover, plaintiff’s counsel’s written meet and confer communications largelyfailed to clearly set forth the deficiencies in the responses, making it difficult for defensecounsel to adequately respond. In the Pretrial Discovery Conference order granting plaintiff permission to file theinstant motion, the court directed that “[c]ounsel must continue to meet and confer inperson or by phone in advance of any motion to compel.” (See 6/21/24 Minute Order.)Plaintiff’s counsel’s declaration makes no mention of further in person or telephonic meetand confer, in disregard of the court’s order. The court finds that plaintiff has not demonstrated a reasonable and good faithattempt to resolve the discovery dispute informally. Additionally, the motion is in large part mooted by the service of supplementalresponses. The only demands which did not receive a supplemental response are nos.11, 24, 29 and 35. No further response to demand no. 11 is warranted, as plaintiff’s counseldid not address the demand in meet and confer. This demand should not have beenincluded in the motion to compel. The response to no. 24 states that any responsivedocuments were already produced by plaintiff in pre-litigation discovery. It is unclear whyplaintiff would move to compel further response and production where plaintiff is alreadyin possession of the responsive documents. Moreover, it is unclear why plaintiff would beseeking from defendant’s plaintiff’s past medical records, which would obviously be inthe possession and control of plaintiff and not defendants. This demand is rathernonsensical, given the parties respective positions in this litigation. The response todemand no. 29 is Code-compliant, representing that a diligent search and inquiry hasbeen made, and that defendants “cannot comply with this demand because he hasnever had possession of the requested information and does not know if any exist.” (SeeCode Civ. Proc., § 2031.230.) As to demand no. 35, the moving papers fail to address theactual objections raised, instead addressing other objections that were not made inresponse to the demand. This further demonstrates the lack of good faith in bringing thismotion. Accordingly, in addition to the failure to adequately meet and confer, the courtfinds the motion mooted as to most demands at issue, and lacking in merit as to thedemands for which no supplemental responses were served. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 8/19/2024 . (Judge’s initials) (Date)
Ruling
HIBBS, ET AL VS. AGOOT, ET AL
Aug 19, 2024 |CVPM22-0199094
HIBBS, ET AL VS. AGOOT, ET ALCase Number: CVPM22-0199094This matter is on calendar for status of dismissal. The Court notes that the matter is at issue and the parties planto mediate. The matter is continued to Monday, October 7, 2024 at 9:00 a.m. in Department 63 for reviewregarding status of mediation and trial setting. If the matter does not resolve in mediation, the Court intends to seta trial date no later than April 29, 2025. The parties are ordered to meet and confer regarding proposed dates fortrial and be prepared to set a trial date at the next hearing. No appearance is necessary on today’s calendar.
Ruling
Alexander Family Trust vs. Simao, et al.
Aug 19, 2024 |23CV-0203196
ALEXANDER FAMILY TRUST VS. SIMAO, ET AL.Case Number: 23CV-0203196This matter is on calendar for review regarding status of settlement and trial setting. The previoustrial dates were vacated by the Court’s June 6, 2024 Order. Plaintiff’s claims against Safeco werebifurcated March 15, 2024, and trial of Plaintiffs claims against Safeco were to follow resolutionof the claims against the other Defendants. Case management statements have been filed, but it isunclear which parties, if any, have reached a settlement. At the last hearing on June 17, 2024,Counsel indicated that all parties except for Safeco had settled. However, notices of settlementand dismissals are not on file for any party. Additionally, Jacqueline Simao’s Cross-Complaint,filed November 13, 2023, against Allen & Roth and Lowe’s Home Improvement has not beenserved.The Court designates this matter a Plan II case and intends to set the matter for trial no later thanMarch 11, 2025. Defendants have posted jury fees, but Plaintiff has not. Plaintiff is granted 10days leave to post jury fees. A failure to post jury fees in that time will be deemed a waiver of theright to a jury. The parties are ordered to appear to provide the Court with status ofsettlement as to Defendants Simao, Rayfifield and 2584 Reservoir Lane, and to discussavailable trial dates as to Defendant Safeco.
Ruling
YOCHONON BAITELMAN, ET AL. VS JOHN ALPHONSE MARASCO, ET AL.
Aug 19, 2024 |22STCV31294
Case Number: 22STCV31294 Hearing Date: August 19, 2024 Dept: 28 Having considered the moving papers, the Court rules as follows. BACKGROUND On September 22, 2022, Plaintiffs Yochonon Baitelman and Yochonon Baitelman on behalf of Mushka Baitelman, Rivka Baitelman and Esther Baitelman, minors, filed this action against Defendants John Alphonse Marasco (Marasco), Amie Jennet Morris (Morris), The Los Angeles Fire Department (LAFD), and Does 1-10 for motor vehicle tort and general negligence. On March 22, 2024, Morris filed an answer and a cross-complaint against Cross-Defendants Marasco, LAFD, and Roes 1-10 for indemnity, declaratory relief, and apportionment of fault. On August 9, 2024, Defendant City of Los Angeles, acting by and through the Los Angeles Fire Department (City), and Marasco filed an answer to the cross-complaint. On June 7, 2024, Defendants City of Los Angeles, acting by and through the Los Angeles Fire Department (City), and Marasco filed an answer to Plaintiffs complaint. On June 27, 2024, the City filed a cross-complaint against Cross-Defendants Morris and Roes 1-10 for indemnification, apportionment of fault, and declaratory relief. On June 26, 2024, Morris filed an answer to the Citys cross-complaint. On July 26, 2024, Plaintiffs counsel, Jamie Lefkowitz, filed a motion to be relieved as counsel for Plaintiff Rivka Baitelman. The motion was set for hearing on August 19, 2024. COUNSELS REQUEST Plaintiffs counsel, Jamie Lefkowitz, asks to be relieved as counsel for Plaintiff Rivka Baitelman. LEGAL STANDARD California Rules of Court, rule 3.1362, provides: (a) Notice A notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051). (b) Memorandum Notwithstanding any other rule of court, no memorandum is required to be filed or served with a motion to be relieved as counsel. (c) Declaration The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel-Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). (d) Service The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail. (1) If the notice is served on the client by mail under Code of Civil Procedure section 1013, it must be accompanied by a declaration stating facts showing that either: (A) The service address is the current residence or business address of the client; or (B) The service address is the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. (2) If the notice is served on the client by electronic service under Code of Civil Procedure section 1010.6 and rule 2.251, it must be accompanied by a declaration stating that the electronic service address is the client's current electronic service address. As used in this rule, current means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current. If the service is by mail, Code of Civil Procedure section 1011(b) applies. (e) Order The proposed order relieving counsel must be prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel-Civil (form MC-053) and must be lodged with the court with the moving papers. The order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. If no hearing date is presently scheduled, the court may set one and specify the date in the order. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362.) DISCUSSION Counsels declaration does not use Judicial Council form MC-052 as California Rules of Court, rule 3.1362(c), requires. In addition, counsel has not served all the parties that have appeared in this action, as California Rules of Court, rule 3.1362(d), requires. The Court denies the motion. CONCLUSION The Court DENIES without prejudice Jamie Lefkowitz's motion to be relieved as counsel for Plaintiff Rivka Baitelman. Counsel is ordered to give notice of this ruling. Counsel is ordered to file the proof of service of this ruling with the Court within five days.
Ruling
DOE vs PERRIS UNION HIGH SCHOOL DISTRICT,
Aug 20, 2024 |CVRI2303798
DOE vs PERRIS UNION HIGHCVRI2303798 Motion to CompelSCHOOL DISTRICT,Tentative Ruling:See above.
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