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Ruling
JACK MELKONIAN VS EDWARD PASCO, ET AL.
Sep 06, 2024 |21STCV24930
Case Number: 21STCV24930 Hearing Date: September 6, 2024 Dept: T Motion to Deem Request for Admissions Admitted Moving Party: Plaintiff Jack Melkonian Responding Party: Defendant Management Towing, Inc. Tentative Ruling: Grant in part BACKGROUND This is a personal injury case arising out of a collision on July 11, 2019. This case has been pending since 2021. Plaintiff served Defendant Management Towing Inc. dba Rowlett Towing (Defendant) Requests for Admission on October 20, 2023. Plaintiff has yet to receive responses. MOVING PARTY POSITION Plaintiff argues the Court should Deem Request for Admissions Admitted because Plaintiff has received no response to these Requests for Admission to date from either Defendant or Pasco, and that Defendants failure to respond to Plaintiffs correspondences constitute a misuse of the discovery process. Based on a $300.00 hourly rate, Plaintiff requests $3,133.75 in sanctions relating to this motion, including ten hours of work ($3,000.00) in addition to $133.75 in additional fees. OPPOSITION Defendant argues the Motion must be denied because it has fatal defects and verified and Code-compliant responses will have been served by the time of the hearing on this motion. Moreover, Defendant argues it provided an explanation of mistake, inadvertence, or excusable neglect resulting in the failure to serve a timely response. REPLY Plaintiff argues Defendants opposition admits they were served with requests for admission while represented by WOLFE & WYMAN LLP and that no sufficient excuse for Defendants failure to respond has been proffered. ANALYSIS I. Motion to Deem Requests for Admission Admitted Where there has been no timely response to a request for admission under CCP § 2033.010, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. (CCP § 2033.280(b).) CCP § 2033.280(c) states, in relevant part: The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. If a party to whom requests for production of documents were directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (CCP § 2031.300(b)-(c).) CCP § 2031.300 contains no time limit for a motion to compel where no responses have been served. The propounding party need not demonstrate good cause or satisfy a meet-and-confer requirement all that needs to be shown in the moving papers is that a set of requests for production of documents was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403-04. Here, Defendant Management Towing Inc. dba Rowlett Towing (Defendant) fails to provide an adequate explanation for its delay in providing responses to Plaintiff. Defendant asserts that its former counsel Wolfe & Wyman LLP had filed a successful Motion to Be Relieved as Counsel as to Pasco in October 2023 and that Defendants new counsel first noticed the overdue discovery request with Plaintiffs filing of this motion. Merely changing counsel is not sufficient explanation as to why Defendants counselboth former and currentfailed to respond to Plaintiffs requests. Thus, provided Defendant does not submit responses by the date this motion is heard, the Court will grant Plaintiffs request to deem requests for admission as admitted. The Court declines to grant Plaintiffs motion with respect to Defendant Pasco, as Plaintiff has not provided the Court with the Requests for Admissions. II. Sanctions Based on a $300.00 hourly rate, Plaintiff requests $3,133.75 in sanctions relating to this motion, including ten hours of work ($3,000.00) in addition to $133.75 in additional fees. The Court finds Plaintiffs hourly rate reasonable, whereas the number of hours worked is not as this is not a complicated motion. The Court finds it reasonable to reduce the number of hours to 3.5. Accordingly, sanctions in the amount of $1,050, plus a filing fee of $60, are awarded. RULING Plaintiffs motion to Deem Request for Admissions Admitted is GRANTED with respect to Defendant Management Towing Inc. dba Rowlett Towing. Plaintiffs request for sanctions against Defendant is GRANTED in the amount of $1,110. Sanctions to be paid within 30 days of Plaintiff giving notice of this ruling. Plaintiffs motion to Deem Request for Admissions Admitted with respect to Defendant Pasco is DENIED.
Ruling
TIMOTHY BEST VS SOUTHERN CALIFORNIA ORTHOPEDIC INSTITUTE, LP, ET AL.
Sep 04, 2024 |24VECV00550
Case Number: 24VECV00550 Hearing Date: September 4, 2024 Dept: O SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - NORTHWEST DISTRICT TIMOTHY BEST, Plaintiff, vs. SOUTHERN CALIFORNIA ORTHOPEDIC INSTITUTE, LP; CENTER FOR ORTHOPEDIC SURGERY, LLC; SCOI ANESTHESIA MEDICAL CORPORATION; THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; DAVID AUERBACH, M.D.; CASSANDRE RIBEIRO, CRNA, AND DOES 1 through 100, Inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 24VECV00550 ORDER SUSTAINING DEFENDANTS SOUTHERN CALIFORNIA ORTHOPEDIC INSTITUTE, LP, CENTER FOR ORTHOPEDIC SURGERY, LLC, AND DAVID AUERBACH, M.D.S DEMURRER WITH LEAVE TO AMEND I. INTRODUCTION This case arises out of a shoulder injuries Plaintiff Timothy Best (Plaintiff) allegedly suffered after a surgical procedure on his fingers. Plaintiff alleges the surgery took place at Defendant Center for Orthopedic Surgery (Center), was performed by Defendant David Auerbach (Auerbach) of Defendant Southern California Orthopedic Institute, LP (Institute)(in conjunction with UCLA Health, sued as The Regents of the University of California (Regents)). Plaintiff further alleges Defendant Cassandre Casseus, CRNA (Casseus, erroneously served as Ribeiro), of Defendant SCOI Anesthesia Medical Corporation (SCOI), assisted Auerbach during the surgery by administering anesthesia, including an infraclavicular shoulder block (shoulder block) that Plaintiff did not consent to and that caused Plaintiffs shoulder injuries at the heart of this action. Defendants Center, Auerbach, and Institute (Demurring Defendants) now demurrer to Plaintiffs eighth cause of action for medical battery. II. PROCEDURAL HISTORY On February 7, 2024, Plaintiff filed his Complaint, alleging (1) Medical Malpractice (against Auerbach); (2) Medical Malpractice (against Center); (3) Medical Malpractice (against Casseus); (4) Medical Malpractice (against SCOI); (5) Medical Malpractice (against Institute); (6) Medical Malpractice (against Regents); (7) Medical Battery (against Casseus); and (8) Medical Battery (against Auerbach). On May 22, 2024, SCOI filed its Answer. On June 26, 2024, Demurring Defendants filed the instant Demurer. On July 8, 2024, Casseus filed her Answer. On July 8, 2024, Regents filed its Answer. On August 19, 2024, Plaintiff filed his Opposition. On August 27, 2024, Demurring Defendants filed their Reply. III. LEGAL STANDARD A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading (complaint, answer or cross-complaint). (See Code of Civ. Proc. §§ 422.10, 589(a); see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)[1] It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (See Donabedian, 116 Cal.App.4th at 994.) We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. (Mitchell v. California Dept. of Pub. Health (2016) 1 Cal.App.5th 1000, 1007, citation omitted.) [T]he facts alleged in the pleading are deemed to be true, however improbable they may be. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Allegations are to be liberally construed. (See Code of Civ. Proc. § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (See Code of Civ. Proc. § 430.10(e).) A demurrer tests the sufficiency of a complaint as a matter of law. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) [T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. (Id.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (See SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) No other extrinsic evidence can be considered. (See Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Firemans Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) Accordingly, [w]hether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609-10.) A demurrer can only be sustained when it disposes of an entire cause of action. (See Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court a pleading can be amended successfully. (Id.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). IV. MEET AND CONFER Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (See Code Civ. Proc. § 430.41(a), emphasis added.) A declaration must be filed with a demurrer regarding the results of the meet and confer process. (See Code Civ. Proc. § 430.41(a)(3).) Demurring Defendants filed a declaration attesting to the parties telephonic meet and confer and unsuccessful attempt to come to an informal resolution. (See Declaration of John Reilley filed June 26, 2024, ¶¶ 5-6.) The Court therefore finds the parties have fulfilled their meet and confer requirements. /// V. ANALYSIS A. Plaintiff Fails to State a Medical Battery Cause of Action Against Auerbach The elements of medical battery are 1) that the defendant either performed a medical procedure without the plaintiffs consent, or alternatively, that the plaintiff consented to one medical procedure, but the defendant performed a substantially different medical procedure; 2) that the plaintiff was harmed, and 3) that the defendants conduct was a substantial factor in causing the plaintiffs harm. (See Cobbs v. Grant (1972) 8 Cal.3d 229, 239; see also Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1267-1268; see also Saxena v. Goffney (2008) 159 Cal.App.4th 316, 324-325; see also CACI 530A [Medical Battery].) Demurring Defendants argue Plaintiffs eighth cause of action is uncertain and fails to state a cause of action. (See Demurrer, pp.5-8) Specifically, Demurring Defendants argue Plaintiff fails to allege Auerbach performed a procedure without Plaintiffs consent. (See id. at 6.) Rather, Demurring Defendants argue Plaintiff alleges Casseus, not Auerbach, was the medical provider who performed the shoulder block at issue, and that the medical records do not say which medical procedure actually ordered the shoulder block. (See id.) Demurring Defendants also argue Plaintiffs eighth cause of action is really one for lack of informed consent and is thus duplicative of Plaintiffs first cause of action for medical negligence. (See id. at 7-8.) In opposition, Plaintiff argues [i]t is true that at the time the Complaint was prepared and filed Plaintiff did not know whether there was an order by Dr. Auerback [sic] for the shoulder block, however in discovery has confirmed that Dr. Auerback [sic]&did indeed order a shoulder block to be administered despite Plaintiff's resistance. (See Opposition, pg. 2.) In reply, Demurring Defendants argue Plaintiff has improperly attempted to introduce extraneous information obtained in discovery. (See Reply, pg.2.) As a preliminary matter, the Court does not find Plaintiffs eighth cause of action uncertain. [D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, n. 3 (citations omitted).) Plaintiffs eighth cause of action is not so incomprehensible that Demurring Defendants cannot reasonably respond. The Court agrees, however, that Plaintiff fails to state a cause of action for medical battery against Auerbach. Plaintiffs Complaint states the shoulder block was administered by [SCOI]& Said shoulder block was performed by [Casseus]&.[Casseus] told [Plaintiff] that she was going to perform the shoulder block. [Plaintiff] told [Casseus] that he did not want this block because he was getting general anesthesia&[a]fter 4-5 "sticks" into [Plaintiffs] body, [Casseus] achieved the shoulder block and then the finger surgical repaired was performed and completed. There is no information in the medical records as to [sic] actually ordered the shoulder block. (See Complaint, pg. 5, ¶ 13.) Plaintiffs Complaint later alleges [i]f Auerbach ordered the shoulder block or was aware that it was going to be administered to Best, it would constitute a medical battery; an unconsented to medical procedure on the part of Auerbach. (See id. at pg. 15, ¶ 72.) Battery in an intentional tort. (See Saxena, 159 Cal.App.4th at 324.) Here, Plaintiff fails to allege Auerbach was even involved in administering or deciding to administer the shoulder block, and certainly does not allege Auerbachs intentional conduct was a substantial factor that caused Plaintiffs alleged injuries. Rather, Plaintiff alleges Casseus and SOCI administered and performed the shoulder block and there is no information as to who ordered the shoulder block. Plaintiff has thus failed to state sufficient facts to sustain a cause of action for medical battery as to Auerbach. The Court will not consider Plaintiffs attempts to introduce evidence obtained in discovery as such extrinsic, fact-based evidence is inappropriate for a demurrer. Accordingly, the Court SUSTAINS Demurring Defendants Demurrer as to Plaintiffs eighth cause of action for medical battery WITH LEAVE TO AMEND. VI. CONCLUSION Based on the foregoing analysis, the Court SUSTAINS Demurring Defendants Demurrer as to Plaintiffs eighth cause of action for medical battery WITH LEAVE TO AMEND. Plaintiff has leave to amend his Complaint on or before September 20, 2024. IT IS SO ORDERED. DATED: September 4, 2024 Hon. Michael R. Amerian Judge, Superior Court [1] All statutory references are to California codes unless stated otherwise.
Ruling
REZA VEISEH VS ENCINO OAKS HOMEOWNERS ASSOCIATION, A CALIFORNIA CORPORATION; A BUSINESS ENTITY, FORM UNKNOWN
Sep 04, 2024 |24VECV01014
Case Number: 24VECV01014 Hearing Date: September 4, 2024 Dept: W REZA VEISEH VS ENCINO OAKS HOMEOWNERS ASSOCIATION DEFENDANTS MOTION TO SET ASIDE ENTRY OF DEFAULT AND/OR DEFAULT JUDGMENT Date of Hearing: September 4, 2024 Trial Date: N/A Department: W Case No.: 24VECV01014 Moving Party: Defendant Encino Oaks Homeowners Association Responding Party: Plaintiff Reza Veiseh BACKGROUND On March 6, 2024, Plaintiff Reza Veiseh filed a complaint against Defendant Encino Oaks Homeowners Association alleging the Homeowners Association has failed to make repairs to Plaintiffs common area and Plaintiffs unit including failing to check Plaintiffs unit for water intrusion after plumbing in the common area backed up or leaked from the main pipe. Plaintiff alleges as a result, Plaintiffs unit was subject to mold. Request for entry of default was entered against Defendant on April 19, 2024. [TENTATIVE] RULING: Defendants Motion to Set Aside Entry of Default and/or Default Judgment is GRANTED. DISCUSSION Defendant Encino Oaks Homeowners Association moves the court to set aside entry of default entered on April 19, 2024 and the default judgment entered on June 18, 2024 on the grounds: (1) Defendant did not have notice of a default until after a default had been entered in this action, and should be allowed to defend this action on the merits, and (2) Defendants failure to file a timely responsive pleading was through mistake, inadvertence, surprise or excusable neglect. Code of Civil Procedure section 473(d) provides in relevant part that [t]he court may, upon motion of the injured party&set aside any void judgment or order. (CCP §473(d).) Code of Civil Procedure section 473.5(a) provides that [w]hen service of a summons has not resulted in actual notice to a party in time to defend the action and a default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. Such a motion shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. Under section 473(b), the court may, upon any terms as may be just, relieve a party or their legal representative from a judgment, dismissal, order, or other proceeding taken against them through their own mistake, inadvertence, surprise, or excusable neglect. Application for relief must be made within six months after judgment and must be accompanied by a copy of the answer or other pleading proposed to be filed. If an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any default, default judgment, or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. Defendant argues the court should exercise its discretion to grant Defendant relief from the default. On March 15, 2024, General Manager of Defendant, Mr. Johnson, received an e-mail from corporate counsel of Defendant, Ms. Nourmand, informing him that the instant action had been filed by Plaintiff on July 21, 2022 and according to the complaint, a claim had been made with the Defendants insurance carrier (which was denied) suggesting that the carrier might already be aware of it. (Johnson Decl. ¶3, Exh. F.) Based on this representation, Mr. Johnson did not notify Defendants insurance carrier about the instant lawsuit. On March 25, 2024, Ms. Nourmand informed Mr. Johnson via email that Plaintiff had not yet served the lawsuit on Defendant and told Mr. Johnson [s]ince the carrier already has notice of this action, we will reach out to you with the Boards directions on whether to tender this action for defense. (Johnson Decl. ¶4, Exh. G.) Accordingly, Mr. Johnson relied on Ms. Nourmands representation as corporate counsel that the Defendants insurance carrier already had notice of the lawsuit. (Johnson Decl. ¶6.) However, Defendants insurance carrier did not learn about the lawsuit until June 18, 2024, after default had already been taken. On June 18, 2024, Defendants insurance carrier retained insurance defense counsel to represent the Defendant in this matter. (Farkhondeh Decl. ¶3.) Upon reviewing the Register of Actions, Defense counsel discovered that a default had been entered on April 19, 2024. Defendant also argues granting relief will not prejudice Plaintiff and Defendant has attached their proposed answer to the motion. In opposition, Plaintiff first argues Defendants registered agent was personally served on March 8, 2024. Defendant does not necessarily make this argument in their motion but in Reply, submits the declaration of their agent for service of process who testifies he was never served with the summons and complaint. (Watson Decl. ¶¶4-7.) As discussed below, the court will grant the motion on separate grounds and will not take into consideration this contention or other new contentions Defendant made in Reply. Plaintiff makes several other arguments why relief should not be granted, but the court finds Defendant has shown Defendants failure to file a timely responsive pleading was through mistake, inadvertence, surprise or excusable neglect. As noted above, based on Ms. Nourmands representation, Mr. Johnson did not notify Defendants insurance carrier about the instant lawsuit. When Ms. Nourmand informed Defendant Plaintiff had not yet served the lawsuit, she informed Defendant they would reach out with the Boards decision and as such, relied on the representation that the insurance carrier had notice of the lawsuit. This is sufficient to show inadvertence or excusable neglect. As noted by Defendant, the policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963.) Moreover, Plaintiff has not demonstrated they would be prejudiced setting aside the default. Plaintiff contends it would have additional legal cost but does not explain how. Moreover, entry of default was entered less than six months ago. Default judgment was never entered. Accordingly, Defendants Motion to Set Aside Entry of Default and/or Default Judgment is GRANTED. Defendant to file an answer within 10 days.
Ruling
24TRCV0037
Sep 05, 2024 |24TRCV0037
Case Number: 24TRCV0037 Hearing Date: September 5, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Thursday, September 5, 2024 Department M Calendar No. 17 PROCEEDINGS Juan Aguilar Maldonado, et al. v. American Honda Motor Company, Inc., et al. 24TRCV00337 1. American Honda Motor Company, Inc.s Motion to Compel Depositions and Request for Sanctions TENTATIVE RULING American Honda Motor Company, Inc.s Motion to Compel Depositions and Request for Sanctions is granted, in part, and denied, in part. Background Plaintiffs filed the Complaint on January 31, 2024. Plaintiffs allege the following facts. This is an action under the Song-Beverly Act. Plaintiffs also allege a cause of action for Fraudulent Inducement-Concealment. Motion to Compel Deposition The party noticing the deposition may move for an order compelling appearance at the deposition and production of documents, pursuant to the deposition notice, from the party deponent who fails to appear or produce materials requested in the deposition notice, and who has not served a valid objection under § 2025.410(a). CCP § 2025.450(a). The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. CCP § 2025.450(b)(2). Plaintiff set forth a meet and confer declaration stating that Plaintiff contacted the deponent to inquire about the nonappearance. (Decl., Nima Shirazi, ¶¶ 6-16). Defendant moves for an order compelling Plaintiffs to appear, testify, and produce documents at their depositions. The motion is made on the grounds that the deponents failed to appear for the noticed date of the depositions and Plaintiffs have failed to respond to requests to schedule an available date for the depositions. Defendant also seeks sanctions. Defendants motion to compel deposition is granted, in part. Plaintiffs are ordered to appear for their depositions at a date and time that can be agreed upon by the parties. If no agreement can be reached, the deponents are ordered to appear at a reasonable date and time to be determined by the moving party. Sanctions Defendants request for sanctions is denied. Code Civ. Proc., § 2023.040 states, in relevant part: A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. Here, the notice of the motion failed to identify every person, party, and attorney against whom the sanctions are sought. Defendant is ordered to give notice of this ruling.
Ruling
BRITTANY TERRY, ET AL. VS ROUND TRIP TRANSPORTATION, INC., ET AL.
Sep 04, 2024 |21STCV37761
Case Number: 21STCV37761 Hearing Date: September 4, 2024 Dept: 28 Having considered the petitioning papers, the Court rules as follows. BACKGROUND On October 12, 2021, Plaintiffs Brittany Terry, Rosa Bautista, and Rafael Gomez, through his guardian ad litem Brittany Terry, filed this action against Defendants Round Trip Transportation, Inc., Antonio Rodriguez, and Does 1-25 for motor vehicle tort. On November 3, 2021, the Court appointed Brittany Terry to serve as Plaintiff Rafael Gomezs guardian ad litem. On November 23, 2022, Defendants Roundtrip Transportation, Inc. and Antonio Rodriguez filed an answer. On January 24, 2024, Plaintiffs filed a notice of settlement. On July 16, 2024, Petitioner Brittany Terry (Petitioner) filed an amended petition for expedited approval of the compromise of Plaintiff Rafael Gomezs action. PETITIONERS REQUEST Petitioner asks the Court for expedited approval of the compromise of the action of minor Plaintiff Rafael Gomez (Plaintiff). DISCUSSION The petition contains the following information: Gross settlement amount: $500.00 Total medical expenses: $30.00 Reductions: $30.00 To be paid/reimbursed from settlement proceeds: $0 Attorneys fees requested: $125.00 Non-medical expenses: $82.26 Net balance: $292.74 Petitioner has submitted a completed petition which includes all required information. The Court grants the petition. The net balance will be paid or delivered to Petitioner Brittany Terry at 10441 Knott Avenue, Apartment 35, Stanton, CA 90680. CONCLUSION The Court GRANTS the amended petition for expedited approval of the compromise of minor Plaintiff Rafael Gomezs action filed by Petitioner Brittany Terry on July 16, 2024. The Court orders the net settlement amount of $292.74 to be paid or delivered to Petitioner Brittany Terry at 10441 Knott Avenue, Apartment 35, Stanton, CA 90680. The Court sets an OSC Re: Distribution of Net Settlement on October 28, 2024, at 8:30 a.m., in Department 28 of the Spring Street Courthouse. The Court sets an OSC Re: Dismissal of Case (Settlement) on October 28, 2024, at 8:30 a.m., in Department 28 of the Spring Street Courthouse. Petitioner is ordered to give notice of this ruling. Petitioner is ordered to file the proof of service of this ruling with the Court within five days.
Ruling
EDGAR CARRILLO, AN INDIVIDUAL VS ONLINE CARGO EXPRESS, A CALIFORNIA CORPORATION, ET AL.
Sep 05, 2024 |24PSCV00194
Case Number: 24PSCV00194 Hearing Date: September 5, 2024 Dept: 6 CASE NAME: Edgar Carrillo v. Online Cargo Express, et al. Defendants Demurrer to Plaintiffs Complaint TENTATIVE RULING The Court SUSTAINS the demurrer to the Sixth, Seventh, and Seventeenth Causes of Action without leave to amend. The Court SUSTAINS the demurrer to the Ninth and Eleventh Causes of action with 20 days leave to amend. The Court OVERRULES the demurrer to the Eighth, Tenth, Twelfth, Thirteenth, Fourteenth, and Fifteenth Causes of Action. Defendants are ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is an employment action. On January 17, 2024, plaintiff Edgar Carrillo (Plaintiff) filed this action against defendants Online Cargo Express, Steve Jung (Jung) (collectively, Defendants), and Does 1 through 20, alleging causes of action for failure to pay wages, failure to provide overtime compensation, failure to provide rest breaks, failure to provide meal breaks, waiting time penalties, failure to provide accurate itemized wage statements, failure to produce employee file, disability discrimination, race discrimination, work environment harassment, retaliation, failure to prevent harassment, discrimination and retaliation, retaliation (second count), failure to provide reasonable accommodation, failure to engage in good faith interactive process, unfair and unlawful business practices, and wrongful constructive termination in violation of public policy. On July 29, 2024, Defendants demurred to the complaint. On August 28, 2024, Plaintiff opposed the motion. On August 29, 2024, Defendants replied. LEGAL STANDARD A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Firemans Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) A demurrer can be utilized where the face of the complaint itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The face of the complaint includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Firemans Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleaders allegations as to the legal effect of the exhibits.]) A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) PRELIMINARY ISSUE The Court notes that the deadline for Plaintiffs opposition was August 22, 2024. (Code Civ. Proc., § 1005, subd. (b).) The Court exercises its discretion to still consider the opposition, but admonishes Plaintiff to comply with the requirements of the Code of Civil Procedure going forward. (See Cal. Rules of Court, rule 3.1300, subd. (d); Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.) DISCUSSION Meet and Confer Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants meet-and-confer efforts insufficient, as there is no indication of having attempted to meet and confer in person, by telephone, or by video conference. (Hsu Decl., ¶ 2, Ex. A.) Nevertheless, the Court may not overrule a demurrer for failure to adequately meet and confer. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court therefore will still consider the demurrer, but admonishes Defendants to comply with the requirements of the Code of Civil Procedure going forward. Sixth Cause of Action Failure to Provide Accurate Itemized Wage Statements To state a cause of action for failure to provide accurate itemized wage statements, the plaintiff must allege facts demonstrating that the defendant employer failed to comply with the requirements for wage statements set forth in Labor Code section 226, subdivision (a). (Lab. Code, § 226, subd. (a).) An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney's fees. (Id., subd. (e)(1).) Labor Code section 226 provides for a penalty against employers who fail to provide itemized Labor Code compliant wage statements. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1108-1109.) Code of Civil Procedure section 340, subdivision (a) provides a one-year statute of limitations for an action upon a statute for a penalty. (Code Civ. Proc., § 340, subd. (a).) While a demurrer based on statute of limitations lies where the dates in question are shown on the face of the complaint, if those dates are missing, there is no ground for a general demurrer. [Citation.] (United W. Med. Centers v. Superior Ct. (1996) 42 Cal.App.4th 500, 505.) Defendants demur to the Sixth Cause of Action for failure to provide accurate itemized wage statements in violation of Labor Code section 226, on the grounds that it is time-barred and therefore fails to state a cause of action. Defendants note that the complaint alleges Plaintiff resigned in January 2021, but he did not file this action until January 17, 2024, which exceeds the one-year statute of limitations for this cause of action. In opposition, Plaintiff contends this cause of action is not time-barred. Plaintiff contends Labor Code sect 226 provides for further relief beyond a penalty or forfeiture, and argues that Code of Civil Procedure section 340, subdivision (a), is a catch-all statute of limitations for violations of statutes seeking damages and injunctive relief. Plaintiff contends this claim is brought for damages, and therefore falls under the three-year statute of limitations for statutory violations. The Court agrees with Defendants. The complaint alleges Plaintiff resigned in January 2021. (Compl., ¶ 29.) Plaintiff did not file this action until January 17, 2024, which is more than one year after Plaintiff resigned, and therefore well after the alleged injuries occurred. (See Code Civ. Proc., § 340, subd. (a); Blackwell v. SkyWest Airlines, Inc. (S.D. Cal. 2007) 245 F.R.D. 453, 463 [penalties based on wage statement violations under Labor Code § 226, subdivision (a), subject to one-year statute of limitations under California law].) Further, Plaintiff seeks statutory penalties in the complaint. (Compl., ¶ 82.) Plaintiff does not seek injunctive relief with respect to this cause of action, nor does it allege facts demonstrating how Defendants actions allegedly damaged Plaintiff. (See Compl., ¶¶ 76-82.) This means the one-year statute of limitations under Code of Civil Procedure section 340, subdivision (a), applies here. (Compl., ¶ 82; Blackwell v. SkyWest Airlines, Inc., supra, 245 F.R.D. at p. 463.) The Court also notes that Plaintiffs opposition does not provide an offer of proof showing how amendment could resolve this pleading defect. Based on the foregoing, the Court SUSTAINS the demurrer to the Sixth Cause of Action without leave to amend. Seventh Cause of Action Failure to Produce Employee File To state a cause of action for failure to produce employee personnel file, the plaintiff must allege facts demonstrating that the employer failed to produce the employees personnel records following a written request within the timeframe allotted under Labor Code section 1198.5, subdivision (b)(1). (Lab. Code, § 1198.5, subd. (b)(1).) If an employer fails to permit a current or former employee, or his or her representative, to inspect or copy personnel records within the times specified in this section, or times agreed to by mutual agreement as provided in this section, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) from the employer. (Lab. Code, § 1198.5, subd. (k).) Defendants demur to the Seventh Cause of Action for failure to produce employee file in violation of Labor Code section 1198.5, on the grounds that it is time-barred and therefore fails to state a cause of action. Defendants arguments here are the same as with respect to the Sixth Cause of Action discussed above, namely that Plaintiff filed this action three years after resigning, which exceeds the one-year statute of limitations for this cause of action under Code of Civil Procedure section 340. In opposition, Plaintiff concedes that this cause of action is time-barred. For the same reasons set forth above, plus Plaintiffs concession that this cause of action is time-barred, (Opp., 2:6-8), the Court SUSTAINS the demurrer to the Seventh Cause of Action without leave to amend. Seventeenth Cause of Action Wrongful Constructive Termination in Violation of Public Policy Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, I quit, the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4th 1238, 1244-1245.) Wrongful termination claims are subject to the two-year statute of limitations under Code of Civil Procedure section 335.1. (Prue v. Brady Co./San Diego (2015) 242 Cal.App.4th 1367, 1382 (Prue).) Defendants demur to the Seventeenth Cause of Action for wrongful constructive termination in violation of public policy on the grounds that it is time-barred and therefore fails to state a cause of action. Defendants reiterate there previous arguments here, namely that Plaintiff alleges he resigned in January 2021, but did not file this action until January 17, 2024, more than three years later, and this claim is therefore time-barred. In opposition, Plaintiff concedes that this cause of action is time-barred. The Court agrees with Defendants. Plaintiff filed this action more than two years after he allegedly resigned. (See Compl., ¶ 29.) Plaintiff also concedes this cause of action is time-barred. (Opp., 2:6-8.) Plaintiffs claim is therefore time-barred. (Prue, supra, 242 Cal.App.4th at p.1382.) This is also a defect that cannot be remedied by amendment. Accordingly, the Court SUSTAINS the demurrer to the Seventeenth Cause of Action without leave to amend. Eighth Cause of Action Disability Discrimination To state a cause of action for disability discrimination, the plaintiff must allege facts demonstrating, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. [Citation.] (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.) The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. (Govt Code, § 12926.1, subd. (b).) Defendants demur to the Eighth Cause of Action for disability discrimination on the grounds that it fails to state a cause of action and is uncertain. Defendants contend the complaint fails to allege any facts demonstrating that Plaintiff suffered from a disability, and argues that Plaintiffs alleged medical conditions involving tuberculosis and COVID-19 do not qualify as disabilities. Defendants then contend Plaintiff does not allege facts establishing whether he could perform his essential job duties with or without accommodation or what the alleged adverse employment action based on disability was. Defendants further contend the complaint is self-contradictory and therefore unintelligible because Plaintiff both alleges that he resigned and was terminated. In opposition, Plaintiff contends COVID-19 is a contagious disease, and that contagious diseases and tuberculosis are included under the definition of a disability under the FEHA, citing California Code of Regulations, Title 2, section 14020, subdivision (p)(7). Plaintiff contends the complaint alleges Plaintiff suffered from a disability that limited major life activities, or alternatively from a perceived disability, and that he requested accommodations for this disability, but was denied them by having his hours cut or being sent home from work. The Court finds Plaintiff has sufficiently alleged a cause of action for disability discrimination. Plaintiff correctly contends that tuberculosis is included in the definition of a disability. (Cal. Code Regs., tit. 2, § 14020, subd. (p)(7) [The definition of disability in this subchapter shall be construed in favor of broad coverage of individuals under this subchapter, to the maximum extent permitted by the terms of this subchapter. Disabilities include contagious diseases& tuberculosis&) The occurrence of the COVID-19 pandemic supports the inference that COVID-19 is a contagious disease that also fits within this definition. The complaint alleges that Plaintiff suffered from those illnesses while working for Defendants, and that Defendants refused to accommodate his requests for taking lunch at specific times each day for his tuberculosis medication, among other things. (Compl., ¶¶ 20-21.) With respect to alleging both resignation and termination, the Court does not find those allegations contradictory. Constructive termination specifically covers the situation in which an employee quits but is legally treated as termination. (Prue, supra, 242 Cal.App.4th at p. 1382.) Based on the foregoing, the Court OVERRULES the demurrer to the Eighth Cause of Action. Ninth Cause of Action Race Discrimination To state a cause of action for racial discrimination, the plaintiff must allege facts demonstrating that the plaintiff was a member of a protected class, the plaintiff was qualified for the position sought or competently performed in the position held, the plaintiff suffered an adverse employment action, and the actions under the circ*mstances suggest a discriminatory motive. (McDonell Douglas Corp. v. Green (1973) 411 U.S. 802.) Defendants demur to the Ninth Cause of Action for racial discrimination on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend the complaint fails to properly allege an adverse employment action to sustain a claim for race discrimination. Defendants also reiterate their argument that the complaint is self-contradictory and unintelligible due to it alleging Plaintiff both resigned and was terminated. In opposition, Plaintiff contends the complaint identifies multiple adverse employment actions taken against him due to his race, such as the owner favoring Asian employees over Hispanic and African American employees, inviting Asian employees to lunch while Plaintiff was not allowed to take meal and rest breaks, sending Plaintiff home early or cutting his hours, failing to pay Plaintiff overtime or commissions, all of which ultimately led to Plaintiffs resignation. The Court finds Defendants arguments persuasive. Plaintiff fails to allege any facts demonstrating that he is a member of a protected racial class. Plaintiff also fails to allege any facts demonstrating any adverse action based on his race or in response to his admonishments of Jungs negative comments about African Americans. Based on the foregoing, the Court SUSTAINS the demurrer to the Ninth Cause of Action with leave to amend. Tenth Cause of Action Work Environment Harassment To allege a cause of action for harassment, the plaintiff must allege facts demonstrating that he or she was subjected to offensive comments or other abusive conduct based on a protected characteristic that was sufficiently severe or pervasive to affect the conditions of the plaintiffs employment. (Serri v. Santa Clara Univ. (2014) 226 Cal.App.4th 830, 871.) Defendants demur to the Tenth Cause of Action for work environment harassment on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend Plaintiff does not allege conduct sufficient to support a claim for harassment. Defendants contend that the complaint fails to show how the alleged comments unreasonably interfered with Plaintiffs work performance and otherwise only makes repeated vague allegations about retaliation. In opposition, Plaintiff reiterates that Mr. Jung would make racist comments about African American employees and would rebuff Plaintiffs admonishments, failed to accommodate Plaintiffs need for lunch breaks to take his tuberculosis medication, would complain to other employees about Plaintiff taking a lunch, and then send Plaintiff home early or cut his hours for taking a meal break. The Court finds Defendants arguments unavailing. Whether the alleged comments and conduct were severe and pervasive are questions of fact, (Davis v. Team Elec. Co. (9th Cir. 2008) 520 F.3d 1080, 1096), which generally are not resolvable on a demurrer, (see TracFone Wireless, Inc. v. Cnty. of Los Angeles (2008) 163 Cal.App.4th 1359, 1368). The complaint alleges Defendants engaged in multiple instances of offensive comments or abusive conduct. (Compl., ¶¶ 19-26.) There is no one way to interpret these allegations at this stage of the litigation. (See TracFone Wireless, Inc. v. Cnty. of Los Angeles, supra, 163 Cal.App.4th at p. 1368.) Accordingly, the Court OVERRULES the demurrer to the Tenth Cause of Action. Eleventh Cause of Action Retaliation To state a cause of action for retaliation, the plaintiff must allege facts demonstrating that the plaintiff engaged in a protected activity, the defendant employer undertook an adverse employment action in response, and a causal link between the protected activity and the adverse employment action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; Govt Code, § 12940, subd. (h).) Facts demonstrating intent to retaliate must also be alleged. (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1230.) Defendants demur to the Eleventh Cause of Action for retaliation on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend the complaint makes no factual allegations regarding Plaintiff engaging in any protected activity or how Defendants supposedly retaliated. Defendants further contend the complaint fails to allege what was the substantial motivating reason for Plaintiffs resignation. Defendants also reiterate their argument that the complaint is self-contradictory and unintelligible. In opposition, Plaintiff contends to have opposed racial harassment and discrimination, and requested reasonable accommodations for when he had tuberculosis and COVID-19, which are protected activities. The Court finds Defendants arguments unpersuasive. The complaint alleges that Plaintiff complained to Jung about him making racist comments, which Jung dismissed and told Plaintiff to stay quiet. (Compl., ¶ 23.) The complaint also alleges Defendants have not paid Plaintiff overtime, and refused to pay him commissions owed. (Compl., ¶¶ 24-26.) However, with respect to retaliatory motive, the Court finds the complaint fails to allege sufficient facts. The retaliatory motive is proved by showing that plaintiff engaged in protected activities, that his employer was aware of the protected activities, and that the adverse action followed within a relatively short time thereafter. [Citation.] (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 615.) The complaint contains no allegations about how soon after Plaintiff complained to Jung the alleged adverse employment action or actions happened. The Court also notes that Plaintiffs opposition does not address this argument, which the Court construes as a tacit admission that Defendants argument is meritorious. (See Opp., 9:8-21; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motionand Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]]) Additionally, as stated above, the Court finds Defendants arguments regarding the complaint being self-contradictory and unintelligible unpersuasive. Constructive wrongful termination ordinarily involves the employee quitting, but the court still legally treats it as a termination. (Prue, supra, 242 Cal.App.4th at p. 1382.) Accordingly, the Court SUSTAINS the demurrer to the Eleventh Cause of Action with leave to amend. Twelfth Cause of Action Failure to Prevent Harassment, Discrimination and Retaliation To allege a cause of action for failure to prevent harassment, discrimination and retaliation, the plaintiff must allege facts demonstrating that the defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Govt Code, § 12940, subd. (k).) [C]ourts have required a finding of actual discrimination or harassment under FEHA before a plaintiff may prevail under section 12940, subdivision (k). [Citation.] (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.) Defendants demur to the Twelfth Cause of Action for failure to prevent harassment, discrimination, and retaliation on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend this cause of action fails because the complaint fails to allege facts demonstrating discrimination and harassment. In opposition, Plaintiff contends to have sufficiently pleaded discrimination, harassment, and retaliation, so this cause of action is also sufficiently pleaded. The Court rejects Defendants arguments. As shown above, the Court found the complaint does in fact allege sufficient facts to state a cause of action for discrimination and harassment. As such, the complaint sufficiently alleges facts to support this cause of action as well. Based on the foregoing, the Court OVERRULES the demurrer to the Twelfth Cause of Action. Thirteenth Cause of Action Retaliation (Second Count - Labor Code §§ 98.6, 1102.5, 6310) To state a cause of action for retaliation under Labor Code sections 98.6, 1102.5, and 6310, the plaintiff must allege facts demonstrating that the plaintiff disclosed information to or complained to a government agency or to a person with authority over the employee regarding a workplace related violation and the defendant retaliated against the plaintiff in response. (Lab. Code, §§ 98.6, 1102.5, 6310.) Defendants demur to the Thirteenth Cause of Action for retaliation under Labor Code sections 98.6, 1102.5, and 6310, on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend the complaint fails to allege that Plaintiff disclosed any Labor Code violation before his resignation. In opposition, Plaintiff contends to have sufficiently pleaded having engaged in a protected activity when complaining about racist conduct, unlawful wage and hour practices, and Defendants failure to pay Plaintiff earned wages, including commissions. The Court agrees with Plaintiff. The complaint contains allegations that Plaintiff disclosed information or made complaints to Jung, who had authority over Plaintiff, regarding Defendants failure to allow him meal and lunch breaks, and Defendants failure to pay him for overtime and commissions, and requiring employees, including Plaintiff to make fraudulent and illegal reports to the bank and that Defendants retaliated against Plaintiff because of such actions. (Compl., ¶¶ 21, 24, 25, 27.) Accordingly, the Court OVERRULES the demurrer to the Thirteenth Cause of Action. Fourteenth Cause of Action Failure to Provide Reasonable Accommodation To state a cause of action for failure to provide reasonable accommodation, the plaintiff must allege facts demonstrating a disability covered by the FEHA, the plaintiff can perform the essential functions of the position, and the employer failed to reasonably accommodate the disability. (Brown v. Los Angeles Unified Sch. Dist. (2021) 60 Cal.App.5th 1092, 1107.) Defendants demur to the Fourteenth Cause of Action on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend the complaint is deficient because Plaintiff fails to allege facts showing he suffered from a disability, facts regarding his requested accommodation, and facts showing how and when Defendants failed to accommodate his disability. Defendants contend the allegations regarding tuberculosis and COVID are insufficient to show that Plaintiff suffered any actual or perceived disability. Defendants further contend the complaint fails to allege that Plaintiff requested disability accommodation or requested to engage in the interactive process for accommodation purposes. In opposition, Plaintiff contends he notified Mr. Jung regarding his medical condition and told him that he needed to take a lunch break before taking his medication and that he needed to take his medication at specific times throughout the day, which Mr. Jung disregarded. Plaintiff also contends Mr. Jung would complain to other staff about Plaintiff taking a lunch, cut his hours, or send him home early. The Court finds Plaintiff has adequately alleged a cause of action for failure to provide reasonable accommodation. As noted above, the Court finds Plaintiff has sufficiently alleged facts demonstrating a disability, namely tuberculosis and COVID-19. (Compl., ¶¶ 20-21.) The complaint also alleges that Plaintiff requested accommodations to take lunch at specific times throughout the day for his tuberculosis medication, and that Mr. Jung failed to accommodate these requests. (Compl., ¶¶ 20-21.) Therefore, the Court OVERRULES the demurrer to the Fourteenth Cause of Action. Fifteenth Cause of Action Failure to Engage in Interactive Process To state a cause of action for failure to engage in interactive process, the plaintiff must allege facts demonstrating that the defendant failed to engage in a timely, good faith, interactive process with the plaintiff to determine effective reasonable accommodations in response to a request for reasonable accommodations by an employee or applicant with a known disability or medical condition. (Govt Code, § 12940, subd. (n).) Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) Defendants demur to the Fifteenth Cause of Action for failure to engage in interactive process on the grounds that the complaint fails to state a cause of action and is uncertain. Defendants contend this claim fails because Plaintiff has not properly alleged that he suffered from a disability, and because there does not appear to be any facts showing that Plaintiff initiated the interactive process with Defendants or that he required any additional accommodation. In opposition, Plaintiff made the same arguments regarding the Fourteenth Cause of Action. The Court finds the complaint alleges sufficient facts to state a cause of action for failure to engage in interactive process. The complaint alleges that Plaintiff requested Mr. Jung to accommodate Plaintiffs schedule regarding taking lunch at a specific time each day so he could take his tuberculosis medication. (Compl., ¶¶ 20-21.) The complaint also alleges that Defendants failed to accommodate that request or otherwise attempt to have a discussion regarding that accommodation request. (Compl., ¶¶ 20-21.) Based on the foregoing, the Court OVERRULES the demurrer to the Fifteenth Cause of Action. CONCLUSION The Court SUSTAINS the demurrer to the Sixth, Seventh, and Seventeenth Causes of Action without leave to amend. The Court SUSTAINS the demurrer to the Ninth and Eleventh Causes of action with 20 days leave to amend. The Court OVERRULES the demurrer to the Eighth, Tenth, Twelfth, Thirteenth, Fourteenth, and Fifteenth Causes of Action. Defendants are ordered to give notice of the Courts ruling within five calendar days of this order.
Ruling
PAUL J. COHEN, ET AL. VS MICHAEL KAPLAN, ET AL.
Sep 06, 2024 |20SMCV01214
Case Number: 20SMCV01214 Hearing Date: September 6, 2024 Dept: P Tentative Ruling Paul J. Cohen, et al. v. Michael Kaplan, et al., Case No. 20SMCV01214 Hearing Date: September 6, 2024 Cross-Defendant Blochs Motion for Attorneys Fees Plaintiffs Cohen sued for quiet title and trespass related to property in Malibu. Defendants Kaplan cross-complained. The parties negotiated a settlement, which was not executed by Elaine Cohen. The Kaplans thereafter sued Cohens counsel cross-defendant moving party Bloch. His anti-SLAPP motion against the TACC was granted; he seeks prevailing party fees and costs. Cross-defendant Blochs objections nos. 1-4 are SUSTAINED as the disputed statements and exhibits are not relevant to the reasonableness of the hours claimed. Attorneys Fees and Costs Code of Civil Procedure section 425.16(c)(1) states a prevailing defendant on a special motion to strike shall be entitled to recover that defendants attorneys fees and costs. The award of attorneys fees and costs to a prevailing anti-SLAPP defendant is mandatory. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131. The Court granted Blochs anti-SLAPP. Minute Order 5/2/24. As the prevailing party, Blochs motion is proper, and he is entitled to attorneys fees. Reasonable Fees The California Supreme Court has determined the lodestar method is the proper mechanism to calculate attorneys fees under Code of Civil Procedure section 425.16(c). Ketchum, 24 Cal.4th at 1136. To calculate a lodestar amount, the court must determine the reasonableness of the hourly rates sought. The reasonable hourly rate applicable under the lodestar method is the rate prevailing in the community for similar work. PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095. The trial court makes its determination after consideration of a number of factors, including the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circ*mstances in the case. Id. at 1096. Bloch seeks fees for attorney Berman at an hourly rate of $725. Berman Decl. ¶27. Berman argues that the rate is reasonable because he has been a civil litigator for nearly 38 years, and the rate is conservative compared to similarly situated attorneys. Id. ¶35. Kaplans opposition does not dispute the hourly rate. The court finds the hourly rate reasonable. Billed Hours The verified time entries of the attorneys are entitled to a presumption of credibility, which extends to an attorneys professional judgment as to whether time spent was reasonably necessary to the litigation. Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 [We think the verified time statements of the attorney as officers of the court are entitled to credence in the absence of a clear indication the records are erroneous.]. California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the courts own view of the number of hours reasonably spent. Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 698-699. Bloch requests 47.6 hours for the anti-SLAPP motion plus $615.50 in costs. Berman Decl. ¶34. The anti-SLAPP motion was complicated, and the hours sought are justified via declaration. Kaplan argues the hours are excessive. However, Bermans time entries are stated in the declaration, and Kaplan does not identify any particular entry the Court should strike. Kaplans dispute over the cost associated with the anti-SLAPP is also unavailing as the costs are connected to the anti-SLAPP motion. Bloch Decl. ¶13. Thus, the 47.6 hours and cost are related to the instant and anti-SLAPP motions. GRANTED in the amount of 47.6 hours at $725/hr., for a total of $35,126.30.
Ruling
IN THE MATTER OF: ANDRE STEPHEN VINCENT LYNCH
Sep 03, 2024 |24STCP02146
Case Number: 24STCP02146 Hearing Date: September 3, 2024 Dept: 9 It appears that Petitioner has failed to submit a criminal history assessment form. The petition is CONTINUED to October 14, 2024 to provide Petitioner with an opportunity to submit a criminal history assessment form so that The Court Clerk may verify Petitioners criminal history, including whether Petitioner is a registered sex offender. Within one week, Petitioner must submit a criminal history assessment form. The Name Change Clerk is ordered to run and complete a criminal history assessment prior to the continued hearing. Court Clerk to give notice.
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