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INDEX NO. E2020-889(FILED: SULLIVAN COUNTY CLERK 1270672023 01:30 PMNYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 SEN67769 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SULLIVAN eee ene ee eee nee eee ee nee een eee enna ee een neeeenenene, SHAUNTE HALL, NOTICE TO TAKE Plaintiff, DEPOSITION UPON ORAL EXAMINATION -against- Index No.: E2020-889 DOMGJONI COMPLEX, INC. and RMD PROPERTY MANAGEMENT CORPORATION, Defendants. wenn ene eee nee eee een ene nee eee eee nee een neee, COUNSELORS: PLEASE TAKE NOTICE that pursuant to Article 31 of the CPLR the testimony upon oral examination of non-party witness: Sean Nolan, one of the EMS crew who picked up plaintiff on or about December 11, 2019, per the attached 12 page EMS Report, will be taken before a Notary Public who is not an attorney, or employee of an attorney, for any party of prospective party herein and is not a person who would be disqualified to act as a juror because of interest or because of consanguinity or affinity to any party herein, at the offices of BARRY McTIERNAN & MOORE LLC, located at 101 Greenwich Street, 14" Floor, New York, New York 10006, or via remote electronic means, on the Sth day of January 2024, at 10:00 o’clock in the morning of that day with respect to evidence and material necessary in the prosecution defense of this action: All of the relevant facts and circ*mstances in connection with the accident including negligence, contributory negligence, liability and damages. That the said person(s) to be examined are required to produce at such examination the following: 1 of 15: INDEX NO. E2020-889NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 ANY AND ALL PAPERS, BOOKS AND DOCUMENTS RELATING TO THIS MATTER. Dated: New Y ork, New Y ork December 6, 2023 — —-- Est BARRY McTIERNAN & MOORE LLC Attomeys for Defendant DOMGJONI COMPLEX, INC. 101 Greenwich Street, 14" Floor New Y ork, New Y ork 10006 (212) 313-3600 TO: Joseph M. Pugliese, Esq. MAINETTI & MAINETTI, P.C Attomeys for Plaintiff 130 N. Front Street Kingston, New Y ork 12401 845-600-0000 2 of 15(FILED: SULLIVAN COUNTY CLERK 1270672023 01:30 PM INDEX NO. E2020-889 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 Sullivan Paramedicine, Inc dba Mobilemedic EMS #1911666 - Hall, Shaunte 266 Main Street ALS (A0427) EMERGENT Hurleyville, NY 12747 Date of Service: 2019-12-11 Claim ID: AD1911666N1 845-436-9111 NPI: 1053314559 845-436-8313 fax EIN: 16-1529605 http:/Awww.mobilemedic.com NY license: 36608 HIPAA WARNING: This file contains data subject to “Privacy Rule" regulations codified in 45 CFR Part 160, issued under authority of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The Privacy Rule regulates access to the “individually identifiable health information" recorded herein. Access to this information is permitted on a strictly “need to know" basis consistent with the accessor's duties as a health care provider or insurance adjuster. Violations are subject to civil penalties of up to $100 per incident, criminal penalties up to $250,000 and/or ten years imprisonment, and termination of employment for cause. Thank you for allowing Mobilemedic EMS the opportunity to serve you. eS Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Run Information Printed by Benjamin, Summer [64] [Dispatch ID 1911666 [PSAP Time Phone Rang 2019-12-11 19:56:54 Tags 911 Center, Village of Monticello Call Taker Picard, Carly [Delay During Dispatch Reason [None] Trip Type Emergent one-way (Complaint Falls Priority 2 (Emergent) Service Level Requested BLS Service Level Performed ALS (A0427) Disposition Transported Type of Service Emergency response - Primary area Execution Status |Complete, as ordered Assigned To 5192: Kohler, Liam + Nolan, Sean Vehicle VIN 1FDSS34P69DA92082 Billable Odometer Start 140,052.0 Billabte Odometer End 140,080.0 Billable Odometer Total 28.0 HCPCS Location Modifier SH Mileage HCPCS Proc Code |A0425 Origin Address 21 Osbourne Street, Monticello, NY 12701 Origin Medicare Class Rural (R) Origin 1CD10 Type {Transportation - Sidewalk [Y92.480] Destination Address Orange Regional Medical Center, 707 East Main Street, Middletown, NY 10940] Destination Facility Code HOO699470889.008 - Mobilemedic EMS 3 of 15 Page 14INDEX NO. E2020-889 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 Reason for Transport For ER Physician Evaluation not available at origin [Reason for EMS/Stretcher Monitoring requirement - cardiac / hemodynamic [Reason for Stretcher - Comments Ankle FX [Condition of Patient On Scene Lower acuity (Green) Numberof Patients On-Scene 1 How Patient was Movedto Stretcher |Two-man assisted lift How Patient was Moved to Ambulance ‘Stretcher Prearmival Activation No Position of Patient During Transport Semi-fowlers Reason for Choosing Destination Closest facility Type of Destination Hospital - Emergency room Hospital Capability ‘Trauma Center Level 2 How Patient was Moved from Ambulance Stretcher Condition of Patient at Destination Lower acuity (Green) Minutes Open 56 a Hall, Shaunte / Run 1911666 Run Information, continued 2019-12-11 / Claim AD1911666N1 Printed by Benjamin, Summer [64] Responder Name 5192 Vehicle Type Ambulance Time Activated 2019-12-11 19:57:00 Time Assigned 2019-12-11 19: 29 Time Enroute 2019-12-11 19:58:12 Transport Mode to Scene Emergent (immediate response) Transport Mode to Scene Speed Enhanced per local policy Transport Mode to Scene Intersections Against normal light patterns Transport Modeto Scene Sirens Lights and sirens Minutes Spent Enroute 7 Delay Enroute Reason [None] Time On-Scene 2019-12-11 20:05:45 Minutes Until On-scene 8 Time of Patient Contact 2019-12-11 20:06:45 Minutes Spent On-Scene 10 Time Transport Began 2019-12-11 20:15:06 Transport Mode from Scene Non-emergent Minutes Spent Transporting 25 Delay During Transport Reason [None] Time at Destination 2019-12-11 20:40:41 Minutes Spent at Destination 13 Delay Retuming to Service Reason [None] Time of Transfer of Care Signature 2019-12-11 20:59:53 Time Returned to Service 2019-12-11 20:53:30 Record ModifiedAt 2019-12-11 21:27:00 Record Modified By Nolan, Sean a Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N4 Patient Information Printed by Benjamin, Summer [64]470889.008 - Mobilemedic EMS 4 of 15 Page 15INDEX NO. E2020-889 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 Last Name Halt First Name Shaunte Social Security Number ae Home Address 29 Harmony Ln, Monticello, NY 12701 |Home Country US Gender Female Race Black or African American Date of Birth 1970 Age Now 45 years old Age at Time of Call 41 years old Approx Weight 210 pounds / 95 kilograms is Bariatric? No Requires Oxygen? No Requires Isolation? No IONR Status No Pregnancy No Drug and Alcohol! Use No admission of drug or alcohol use iHome Phone 16464984299 Checkpoint Created 2019-12-11 20:33 ‘Checkpoint Created By ‘Nolan, Sean Checkpoint Modified 2020-08-03 10:06 Checkpoint Modified By Cooperstein, Julie MHx Obtained From Patient Recent Travel Date (Unknown) ee Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Patient Information, continued Printed by Benjamin, Summer (64] Medical history = [None] Pregnancy: No Current medications {None] Allergies470889.008 - Mobilemedic EMS 5 of 15 Page 16= VAN nk DIV INDEX NO. E2020-889 OUN 06 NYSCEF BOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 [None] ene eee eee eee eee r ee es Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Billing Information Printed by Benjamin, Summer [64] Bill To Insurance Patient Primary Insurance Type Medicaid Primary Insurance Subtype Medicaid [MC] Primary Insurance Provider Name Medicaid New York Primary Insurance Payor ID MCDNY Primary Insurance ID Number AF71412P Primary Insurance Claims Telephone (800) 343-9000 Primary Insurance Policyholder Relation to Patient Self Primary Insurance Policyholder Name Hall, Shaunte Primary Insurance Policyholder Telephone 6464984299 Primary Insurance Policyholder DOB 1978-02-28 00:00:00 Secondary Insurance Type Private Secondary Insurance Provider Name MVP Health Plan (Mohawk Valley) Secondary Insurance Payor ID 14165 Secondary Insurance ID Number 82080277500 Secondary Insurance Claims Telephone (800) 684-9286 Secondary Insurance Claims ZIP Code 12301 Secondary Insurance Policyholder Relation to Patient Self Secondary Insurance Policyholder Name Hall, Shaunte Secondary Insurance Policyholder Telephone 6464984299 Secondary Insurance Policyholder DOB 1978-02-28 00:00:00 Acute symptoms Code Category | Description Status M79.661 | Pain Lower Leg pain, Right | Present R45.82 | Cognitive | Anxiety / Worries Present ener eee ee eee ees Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Narrative Printed by Benjamin, Summer [64] Dispatched by SC EMS for "Fall". Responded Immediately. AOS to find a 41 year old female alert and oriented x4. Patient found sitting on ground complaining of pain to her right leg. Patient states that she was470889.008 - Mobilemedic EMS 6 of 15 Page 17(FILED: SULLIVAN COUNTY CLERK 1270672023 01:30 PM INDEX NO. E2020-889 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 walking home from the store when she slipped on ice. Patient states that her right ankle hurts. Patient wouldn't let crew touch her ankle at time of arrival. Patient screamed multiple times not to move her. Patient was advised that to receive medical care patient needed to be moved. Patient agreed to let crew move her to the stretcher. Patient had increased anxiety throughout the call. Patient Presents +PEARL, + airway = clear, +\= breathing and chest rise, lung sounds = clear bilaterally, abdomen = soft x4 quadrants non tender non distended, + pulse/sensation/motor x4 extremities. + pain to the right ankle at 7 of 10 on pain scale non radiating, patient described pain as sharp worsening upon movement or touch. Patient right shoe was removed. Patient had obvious deformity to the right ankle and was placed in a pillow splint with pre and post PSM. + IV established in the left A/C with a 20g without infiltration flushed with Normal Saline. Fluid therapy established via 1L Normal Saline and 10 drop set with a total of 100mL infused. Patient received 5mg of Versed # V-52 for pain and Anxiety with some improvement to anxiety but minimal improvement to pain with no adverse reactions, Dr Aldo of ORMC was notified of Medication Administration. EKG 3-Lead applied showing Normal Sinus Rhythm. Negative SOB, LOC, vomiting, dizziness, diarrhea, bleeding or nausea noted or stated by patient. Patient transferred to stretcher via lift assist by crew. Patient transferred in semi fowlers position without incident or distress, no other complaint stated or noted on Physical Exam. Patient transferred to room number 36 at ORMC via slide from stretcher to bed assisted by crew. Patient care and report T.O.T Amy Pastormerlo Rn During transport Patient kept unbuckling herself from the stretcher and kept trying to move around creating a further injury risk to herself. [Created 2019-12-11 23:26 by Nolan, Sean, last modified 2019-12-11 23:39 by Nolan, Sean} eee errr errr ee ee Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Injury Report Printed by Benjamin, Summer (64] Injury 1 W00.9 (Unspecified fall due to ice and snow) Injury 1 Mechanism Blunt Is Work-Related No Fall Height in Feet 4 Address or Mile Post 21 Osboume Street ACN - Is Multiple impacts No ACN - Is Rollover No ACN - Seat Is Occupied No ACN - Seat 1 Is Seatbelt Used No ACN - Seat 1 Is Airbag Deployed No ACN - Seat 2 Is Occupied No ACN - Seat 2 Is Seatbelt Used No ACN - Seat 2 Is Airbag Deployed No470889.008 - Mobilemedic EMS 7 of 15 Page 18=: INDEX NO. E2020-889 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Crew Signatures Printed by Benjamin, Summer [64] Ni Jh- Kohler, Liam [BLS - Basic/EMT: 425704] dy, Qh Nolan, Sean [ALS - Paramedic: 349461] Printed by Benjamin, Summer [64] Payment Authorization | accept treatment and transport by Mobilemedic EMS. | authorize the submission of a claim for payment to Medicare, Medicaid, or any other payor for any services provided to me by Mobilemedic EMS now, in the past, or in the future. | understand that | am financially responsible for the services and supplies provided to me by Mobilemedic EMS, regardless of my insurance coverage, and in some cases, may be responsible for an amount in addition to that which was paid by my insurance. \ agree to immediately remit to Mobilemedic EMS any payments that | receive directly from insurance or any source whatsoever for the services provided to me and | assign all rights to such payments to Mobilemedic EMS. | authorize Mobilemedic EMS to appeal payment denials or other adverse decisions on my behalf without further authorization. | authorize and direct any holder of medical information or other relevant documentation about me to release such information to Mobilemedic EMS and its billing agents, the Centers for Medicare and Medicaid Services, and/or any other payors or insurers, and their respective agentsor contractors, as may be necessary to determine these or other benefits payable for any services provided to me by Mobilemedic EMS, now, in the past, or in the future. (hereby acknowledge receipt of the Mobilemedic EMS Notice of Privacy Practices. Acepto el tratamiento y el transporte de Mobilemedic EMS. Autorizo que se presente una reclamacién de pago a Medicare, Medicaid o a cualquier otra parte encargada del pago de cualquier servicio que Mobilemedic EMS me haya proporcionado en el pasado, actualmente o en el futuro. Comprendo que say responsable del pagode los servicios y suministros que Mobilemedic EMS me proporcione, sin importar mi cobertura de seguro, y, en algunos casos, podria ser responsable por una cantidad adicional a la que haya pagado mi aseguradora. Acuerdo presentarde inmediato a Mobilemedic EMS cualquier pago que reciba directamente de mi seguro o de la fuente que sea, por concepto del pago de los servicios que se me hayan prestado, y asigno todos los derechos de tales pagos a Mobilemedic EMS. Autorizo a Mobilemedic EMS a apelar, en mi nombre, las denegaciones de pagos 0 cualquier otra decision adversa sin necesidad de mas autorizacién. Autorizo y pido a cualquier depositario de informacién médica u otra documentacién relevante referente a mi persona, divulgar dicha informacion a Mobilemedic EMS y a sus agentes de facturacién, los Centros de Medicare y Servicios de Medicaid, 0 a cualquier otra parte encargada del pago 0 aseguradora, asi como a sus respectivos agentes 0 contratistas, segun sea necesario para determinar estos u otros beneficios a pagar por cualquier servicio que Mobilemedic EMS me haya proporcionado en el pasado, presente a futuro. Por este medio acuso recibo del aviso de practicas de confidencialidad de Mobilemedic EMS.470889.008 - Mobilemedic EMS 8 of 15 Page 19: INDEX NO. E2020-889 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 Hall, Shaunte [Patient] Signed on 2019-12-11 20:37:14 Receiving Facility / Transfer Of Care ‘The patient named on this form was received by this organization at the date and ime indicated. My signature is not an acceptance of financial responsibilty for the services tendered to this patient. El paciente nombrado en este formulario se recibié en esta organizacién en la fecha y hora indicadas. Mi firma no es una aceptacién de responsabilidad financiera por los servicios prestados a este paciente. Amy Pastormerlo [Healthcare provider] Address/Title: RN Signed on 2019-12-11 20:59:53 Narcotics Usage Witness Verification \ certify that | witnessed the usage of narcotics as documented in the PCR records herein. sda Sean Nolan [Crew member - Attending] Address/Title: ALS - Paramedic470889.008 - Mobilemedic EMS 9 of 15 Page 20= VAN nk DIV INDEX NO. E2020-889 OUN 06 NYSCEF BOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 Dose/Vial ID: V-52 No Adverse Reactions Signed on 2019-12-11 21:04:55 ee Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Vital Signs Taken Printed by Benjamin, Summer [64] 2019-12-11 20:13:00 (Patient contact + 2019-12-11 20:26:00 (Transporting + Time Taken 00:06:15) 00:10:54) Taken By Nolan, Sean [ALS] _ Nolan, Sear n {ALS} Blood Pressure Ee eons: Blood Pressure Measurement cuft - Automated cut - Automated Method Pulse Rate 85 78 Pulse Rate Measurement Method Electronic monitor - Cardiac Electronic monitor - Cardiac Pulse Rhythm Regular Regular Pulse Quality Strong Strong Pulsox SPO2 99% 99% Airway Status Patent Patent Respiratory Rate Respiratory Effort Normal Normal Respiratory Quality Regular Regular Is Using Oxygen No No Breathing Treatments [None] {None] Airway Device in Use [None] [None] Responsiveness Alert Alert Pain Scaie ’ 2 Pain Scale Type NRS-11 NRS-11 GCS Total Score 15 15 Blood Glucose Level 119 mg/dL, or 6.6 mmol/L Revised Trauma Score 7.841 7.841 Record CreatedAt 2019-12-11 21:30:00 2019-12-11 21:31:00 Record Created By Nolan, Sean Nolan, Sean a Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Assessments Performed Printed by Benjamin, Summer [64] Time Assessed 2019-12-11 20:06:00 (On scene + 00:00:15) AssessedBy Nolan, Sean [ALS] Primary Compiaint Primary Complaint Location Primary Complaint Organ Systor ESS Primary Compiaint Duration SS Gi ES ASS Acute Symptoms. Responsiveness Alert Primary impression se Secondary Impression 1 [None] Eyes Pupil Size 4mm470889.008 - Mobilemedic EMS 10 of 15 Page 21l= VAN OUN NK 06 DM INDEX NO. E2020-889 YSCEE Doc NO. 61 RECEIVED NYSCEF: 12/06/2023 Capillary Refill Less than 2 seconds Catheter No PEG/J Tube No Record Created At 2019-12-11 20:40:00 Record Created By Nolan, Sean Record ModifiedAt 2019-12-11 21:22:00 Record Modified By Nolan, Sean Exam findings ime ion xam rmal 19-12-11 jeuro. [Normal baseline for patient] [2018-12-11 20-06.00_[Mental Normal baseline for patient 2019-12-11 20:06.00_|Mental [Oriented - Event 12-11 20: jental [Onented - Person 2019-12-11 2¢ :00_ [Mental [Oriented - Place 2019-12-11 [Mental Orient TTime. 19-12-11 ead 2019-12-11 eyes. er TPERRL [2019-12-11 ‘ace. Normal 19-12-11 20: [Neck Normal 19-12-71 06:00, chest [Normal [2019-12-11 20:06:00 Skin. Normal 19-12-11 20:06:00 Heart [Normal 1o72T7 200600 [cungs Breath sounds - normal 19-12-11 ungs. ith sounds: normal 19-12-11 jack / Spine. [Normal [2019-12-11 jomen 19-12-11 20:06:00 ital / Urinat mal 19-12-11 ity. [Normal 19-12- fextrem Normal 2019-12-11 mmity_ 19-12-11 ixtremity 19-12- saremity [Normal 19-12-11 Normal 17 xtremity [Normal a Hi jall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Printed by Benjamin, Summer [64] 1.V. Placement and Maintenance Time Performed 2019-12-11 20:15:00 (Patient contact + 00:08:15) PerformedBy Nolan, Sean [ALS] Location Antecubital - Left Activity Installation [SNOMED 392230005] Size 209 Authorized Protocol (standing order) Protocol Used Injury - Extremity (general) Disposition Completed Response Unchanged Complications [None] a Hi fall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Printed by Benjamin, Summer (64] Medications Administered470889.008 - Mobilemedic EMS 11 of 15 Page 22=: 7: INDEX NO. E2020-889 NYSCGEE_DOC NO 61 RECEIVED NYSCEF: 12/06/2023 Time Administered 2019-12-11 20:16:00 (Transporting + 00:00:54) 2019-12-11 20:17:00 (Transporting + 00:01:54) Administered By Nolan, Sean [ALS] Nolan, Sean [ALS] Medication Normal saline 0.9% [RxNorm 313002] Midazolam [RxNorm 6960] Authorized Protocol (standing order) Protocol (standing order) Protocol Used Injury - Extremity (general) Injury - Extremity (general) Dosage 100 Milliliters 5 Milligrams Dose Identification V-52 Disposition Given Given Route Intravenous (IV) Intravenous (IV) Response Unchanged Unchanged Complications {None] (None) Details and Comments No Adverse Reactions a Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 ECGs Performed Printed by Benjamin, Summer [64] Time Performed 2019-12-11 20:12:00 (Patient contact + 00:05:15) PerformedBy Nolan, Sean [ALS] Equipment Type 3-lead [SNOMED 428803005] Authorized Protocol (standing order) Protocol Used Injury - Extremity (general) Disposition Completed Mode Manual interpretation Method Manual interpretation Cardiac Rhythm Normal sinus rhythm Leads Used for Rhythm II470889.008 - Mobilemedic EMS 12 of 15 Page 23VAN OUN INDEX NO. E2020-889 NYSCEF DOC. N 61 RECEIVED NYSCEF: 12/06/2023 Strip for 2019- 11 20:12:00 (Patient contact + 00:05:15 a Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N14 Other Procedures Performed Printed by Benjamin, Summer [64] Time Performed 2019-12-11 20:11:00 (Patient contact + 00:04:15) Performed By Nolan, Sean [ALS] Procedure Type Musculoskeletal: Splinting - general [SNOMED 79321009) Authorized Protocol (standing order) Protocol Used Injury - Extremity (general) Disposition Completed Result Successful Response Improved Complications [None]470889.008 - Mobilemedic EMS 13 of 15 Page 24INDEX NO. E2020-889 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Total Procedure List Printed by Benjamin, Summer [64] [Time Performed [Performed By[SNOMED [Procedure Description _|Patch Req|Success| nse! [2019-12-11 20:06:00 ([?] On scene + 00:00:15) _JNolan, Sean [ALS] 1422616004 |General: Physical assessment EMR Yes Unchanged [2019-12-11 20:11:00 (Patient contact + 00:04:15) Nolan, Sean [ALS] '9321009 |Musculoskeietal: Splinting - general €MR Yes Improved 12019-12-11 20:12:00 (Patient contact + 00:05:15) [Nolan, Sean [ALS] 428603005 |Cardiac: ECG - lead ALS Yes Unchanged 12019-12-11 20:13:00 (Patient contact + 00: 5) JNolan, Sean [ALS] 1425058005 |General: Vital signs taken EMR: Yes Unchanged 12019-12-11 20:13:00 (Patient contact + 00: 5} [Notan, Sean [ALS] General: Blood glucose level checked BLS Yes Unchanged 12019-12-11 20:15:00 (Patient contact + 00: 15) [Notan, Sean [ALS] 392230005 | vascular. Extremity vein catheterization ALS: Yes Unchanged [2019-12-11 20:26:00 (Transporting + 00:10:54) [Nolan, Sean [ALS] 1425056005 |General. Vital signs taken EMR Yes Unchanged ener e eee e ener eee ener Hall, Shaunte / Run 1911666 2019-12-11 / Claim AD1911666N1 Crew PPE Usage Printed by Benjamin, Summer [64] Crew Member Kohler, Liam Nolan, Sean Gloves Eye Protection Face Shield Helmet Mask - N95 Mask - Surgical PAPR Reflective Vest Gown tsolation Coveralls - Suit - Level A Suit - Level B Suit - Level C Suit - Level D Other470889.008 - Mobilemedic EMS 14 of 15 Page 25INDEX NO. E2020-889(FILED: SULLIVAN COUNTY CLERK 1270672023 01:30 PMNYSCEF DOC. NO. 61 RECEIVED NYSCEF: 12/06/2023 AFFIDAVIT OF SERVICE BY ELECTRONIC FILING STATE OF NEW YORK ) )ss. COUNTY OF NEW YORK ) RENATE FRAUNDOREFER, being duly sworn, deposes and says; that deponent is not a party to this action, that she is of 18 years and upwards; and that she is employed by Barry McTieman & Moore LLC, attorneys for DOMGJONI COMPLEX, INC. in the entitled action, that the office address of said attorneys is 101 Greenwich Street, 14" Floor, New Y ork, New Y ork 10006; that on the 6" day of December, 2023, I served the within NOTICE OF EXAMINATION BEFORE TRIAL upon ALL PARTIES AS APPEARING ON THE SUPREME COURT, STATE OF NEW YORK ELECTRONIC FILING WEBSITE AT THE E-MAIL ADDRESSES DESIGNATED BY SAID PARTIES oS Tinh /RENATE FRA Saison wtadanper arn Sworn to before me this 6th day of December 2023 Anetta— NOTARY PUBLIC AVONELLE GREENE Gomrissinar of Deeds City of New York No. Me i New York County Commission Expires July M2025 15 of 15
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NANETTE KINKADE, ET AL. VS ART BRAND STUDIOS, LLC, ET AL.
Aug 21, 2024 |24STCV06387
Case Number: 24STCV06387 Hearing Date: August 21, 2024 Dept: 34 Kinkade v. Art Brand Studios, LLC (24STCV06387) The Motion to Stay Preliminary Injunction is GRANTED. BACKGROUND: On March 14, 2024, Plaintiff Nanette Kinkade (Plaintiff) filed her Complaint against Defendant Art Brand Studios, LLC (Defendant) for provisional remedies in aid of arbitration, pursuant to Code of Civil Procedure section 1281.8. On March 15, 2024, Plaintiff filed her Motion for Preliminary Injunction. On April 22, 2024, Defendant filed its Answer to the Complaint. On April 25, 2024, the court granted Plaintiffs Motion for Preliminary Injunction. On May 9, 2024, the court entered its Order Granting Preliminary Injunction. On May 9, 2024, Defendant filed its Notice of Appeal. On May 9, 2024, Defendant filed its Motion to Stay Preliminary Injunction (Motion to Stay). Defendant concurrently filed its Proposed Order. On May 22, 2024, Plaintiff filed her Opposition to the Motion to Stay. On May 29, 2024, Defendant filed its Reply in support of the Motion to Stay. Defendant concurrently filed Declaration of Myriah V. Jaworski. On May 30, 2024, Defendant filed Amended Exhibits to Reply. ANALYSIS: Legal Standard Except as provided in Sections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order. (Code Civ. Proc., § 916, subd. (a).) In California, a long-established set of rules governs stays of injunctive ordersthat is, orders to do something or to refrain from doing something. What rule applies depends on which kind of order it is. An injunction that requires no action and merely preserves the status quo (a so-called prohibitory injunction) ordinarily takes effect immediately, while an injunction requiring the defendant to take affirmative action (a so-called mandatory injunction) is automatically stayed during the pendency of the appeal. (Daly v. San Bernardino Cnty. Bd. of Supervisors (2021) 11 Cal.5th 1030, 1035.) The provisions of this chapter shall not limit the power of a reviewing court or of a judge thereof to stay proceedings during the pendency of an appeal or to issue a writ of supersedeas or to suspend or modify an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo, the effectiveness of the judgment subsequently to be entered, or otherwise in aid of its jurisdiction. (Code Civ. Proc., § 923.) Discussion The Parties Arguments Defendant moves the Court to either: (a) confirm the Order Granting Preliminary Injunction is stayed pursuant to Code of Civil Procedure section 916, subdivision (a); or, in the alternative, (b) exercise its discretion to stay the Order Granting Preliminary Injunction. (Motion to Stay, p. 5:1821.) Defendant argues: (1) that the preliminary injunction is mandatory and is therefore automatically stayed pending appellate review; and (2) that, alternatively, the Court should grant a discretionary stay because Defendant should not succeed on appeal only to have a pyrrhic victory. (Motion to Stay, pp. 2:1011, 4:1920.) Plaintiff disagrees, arguing: (1) that Defendant has waived its challenge to the preliminary injunction; (2) that this is not a mandatory injunction; and (3) that a discretionary stay is not appropriate because Defendant does not raise any difficult question of law, Plaintiff established a likelihood of success on the merits, and Plaintiff will suffer irreparable harm without the injunction. (Opposition, pp. 8:6, 8:26, 11:2324, 12:12, 13:21.) In its Reply, Defendant reiterates its arguments, and it argues that it did not waive its challenge to the preliminary injunction. (Reply, p. 7:12.) Invited Error Plaintiff points to a proposed order by Defendant that purportedly waived Defendants right to challenge the preliminary injunction. (Opposition, p. 8:710 and Exh. D.) Plaintiff argues that this conduct by Defendant was invited error, which should prevent Defendant from claiming it as a ground for reversal on appeal. (Id. at p. 8:1116, citations omitted.) The court disagrees with this argument. On April 25, 2024, the court granted Plaintiffs Motion for Preliminary Injunction. (Minute Order dated April 25, 2024, p. 13.) The court ordered Plaintiff to prepare the order for the Court. (Ibid.) The court also wrote: If the parties can not [sic] agree on the language to be used for the proposed Order, then all parties are ordered to submit a Joint Status Report by 05/02/2024. (Ibid.) The court has not been presented with any evidence that suggests Defendant supported a preliminary injunction prior to the court issuing a preliminary injunction. Rather, Defendant only submitted a proposed order on the preliminary injunction after the court already granted the preliminary injunction and urged the Parties to confer on language for a proposed order. Overall, this evidence does not support an argument that Defendant invited error or waived its challenge. The Preliminary Injunction is Mandatory and Automatically Stayed Upon and During Appeal The Order Granting Preliminary Injunction is a mandatory injunction that is automatically stayed upon the perfecting (and during the pendency) of an appeal. (Code Civ. Proc., § 916, subd. (a); Daly, supra, 11 Cal.5th at p. 1035.) This preliminary injunction is a mandatory injunction because it requires action that changes the status quo. Specifically, the Order Granting Preliminary Injunction: (1) immediately restrains and enjoins Defendant from exercising rights and performing activities that it was exercising and performing immediately before the injunction was entered; and (2) requires (within seven business days of the entry of the Order) Defendant to provide Plaintiff with certain information that Plaintiff did not have before the injunction was entered. (Order Granting Preliminary Injunction, pp. 2:13:25, 3:274:23.) The court confirms that the Order Granting Preliminary Injunction is STAYED. A Discretionary Stay Would be Appropriate if the Preliminary Injunction were Prohibitory Even if the Order Granting Preliminary Injunction were prohibitory in nature, a discretionary stay would still be appropriate here. Plaintiffs prayer is for an injunction, costs, and attorneys fees. (Complaint, pp. 8:229:3.) Given that the Order Granting Preliminary Injunctionand thus, the entire merits of the case up to this pointis currently in front of the Court of Appeal, it is wholly appropriate for the court to stay the preliminary injunction and allow the Court of Appeal to proceed unimpeded with its review of this matter. In addition, the court recognizes its prior determination that the balance of the harms tips in favor of issuing a preliminary injunction. (Minute Order dated April 25, 2024, p. 13.) However, the court has also been persuaded that it would be prudent to allow the Court of Appeal to finish its review before the status quo is changed. Otherwise, as Defendant argues, Defendant might be irreparably harmed (for example, by having to terminate its employees, and by having to terminate its ongoing commercial relationships related to the intellectual property at issue) during appellate review, which would be meaningless even if Defendant won above. (Id. at p. 12.) Conclusion The Motion to Stay Preliminary Injunction is GRANTED.
Ruling
ROSA ALVAREZ ASCENCIO, ET AL. VS JESSICA ZURITA, ET AL.
Aug 20, 2024 |23TRCV02113
Case Number: 23TRCV02113 Hearing Date: August 20, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Tuesday, August 20, 2024 Department M Calendar No. 10 PROCEEDINGS Rosa Alvarez Ascencio, et al. v. Jessica Zurita, et al. 23TRCV02113 1. Rosa Alvarez Asencios Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor (Giselle Guerrero) 2. Rosa Alvarez Asencios Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor (Jayleen Guerrero) TENTATIVE RULING Rosa Alvarez Asencios Petitions for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minors are granted. Background Plaintiffs filed the Complaint on June 29, 2023. Plaintiffs allege that they were involved in a motor vehicle accident with Defendant. Petitions to Approve Compromise of Pending Action of Minor A claim by or against a minor may be settled through compromise only with the approval of the court. A petition for approval must be presented to the court by the minors guardian. CCP § 372; Probate Code Secs. 2500-2507; 3413-3605. The court should consider the following factors: the circ*mstances of the accident, particularly the facts bearing on the payors liability and the minors damages; the amount of the proposed settlement; the method of payment; the nature of the injury and the minors current medical status (the petition should include a recent medical report); and the amount of attorneys fees being requested. Before the hearing, the court should make a preliminary determination of whether the proposed settlement and the method of payment appear reasonable in relation to the potential liability and the nature and extent of injuries. It is especially important to determine whether the minors condition is permanent, and whether it is stable or likely to worsen. The court should also make a preliminary determination as to whether the costs, expenses, and attorneys fees appear reasonable. The Court has reviewed the petitions for compromise of pending action. The Court determines that the petitions are reasonable as to the settlement amount. The Court finds that the settlement is in the best interests of the minors. The proposed petitions for compromise of the pending action and the proposed disposition of the proceeds of the settlement funds are hereby approved. Thus, for the foregoing reasons, Petitioners Petitions to Approve Compromise of Pending Action of Minor[s] are granted. Petitioner is ordered to give notice of this ruling.
Ruling
BRIAN BEECHER, ET AL. VS AVRAHAM A. PERETZ
Aug 21, 2024 |24VECV02532
Case Number: 24VECV02532 Hearing Date: August 21, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT BRIAN BEECHER, et al., Plaintiffs, v. AVRAHAM A. PERETZ, Defendant. Case Number Department 24VECV02532 107 COURTS [TENTATIVE] ORDER RE: Demurrer to Complaint I. BACKGROUND Factual In October of 2023, Plaintiffs Brian Beecher and Crystal Beecher (Plaintiffs) purchased a single-family residence located at 12626 Hortense St., Studio City, CA 91604 (the Property) from 126126 Hortense St. Trust (Seller). (Compl. ¶¶ 3, 14-15.) Defendant Avraham A. Peretz (Defendant) is a general contractor, who constructed the Property between 2015 and July 2016. (Compl., ¶¶ 4, 13.) Plaintiffs allege that they noticed defects on the Property in February 2024. (Compl., ¶ 16.) Procedural On May 30, 2024, Plaintiffs initiated this lawsuit by complaint (the Complaint) against Defendant and DOES 1 through 100, alleging a single cause of action for violation of Senate Bill 800 ("SB-800") Construction Standards. On June 20, 2024, the Complaint amended DOE 1 to name Defendant 126126 Hortense LLC. On July 24, 2024, Defendant Avraham A. Peretz moved to strike the Complaint, filed concurrently with a supporting declaration, and request for judicial notice. On August 5, 2024, Plaintiff filed an opposition. Defendant did not file a reply. A hearing on this motion is scheduled for August 21, 2024. Request for Judicial Notice Defendant asks the Court to take judicial notice of (1) a September 10, 2014, grant deed conveying the Property from David F. Haas, Anthony E. Haas. Sylbia Haas Harrison, and Michael W. Haas as undivided 1⁄4 tenants in common to Defendant, (2) a June 10, 2015, grant deed, conveying the property from Defendant to Defendant 12626 Hortense, LLC, (3) a July 21, 2016, notice of completion of the Property, (4) an August 5, 2016, grant deed conveying the property from Defendant 12626 Hortense, LLC, to Eric W. Fulton, and (5) a certificate of cancellation and dissolution for 1626 Hortense, LLC filed with the California Secretary of States Office. The Court may take judicial notice of the legal effect of documents language when the effect is clear, but it may not take judicial notice of the truth of statements of fact recited within the documents.¿ (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.)¿ The request is granted only to that extent.¿ Meet and Confer Prior to filing a demurrer, the demurring party is required to satisfy their meet and confer obligations pursuant to Code of Civ. Proc. §430.41 and demonstrate that they so satisfied their meet and confer obligation by submitting a declaration pursuant to Code of Civ. Proc. §430.41(a)(2) & (3).¿ On review of the Declaration of Alan L. Rosen, the Court notes that Defendant has satisfied its meet and confer obligation prior to filing the instant motion, as Code of Civil Procedure section 430.41, subdivision (a), and section 435.5, subdivision (a), require meeting and conferring in person or by telephone. On July 22, 2024, Defense counsel and Plaintiffs counsel discussed the merits of this demurrer by telephone and did not reach an agreement. (Rosen Decl. ¶ 3.) Accordingly, all procedural requirements are fulfilled. II. LEGAL STANDARD When ruling on a demurrer or motion to strike, the Court accepts the truth of all properly pleaded material facts of the subject pleading,¿Aubry¿v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 966-967 (1992), and draws reasonable inferences favorable to the plaintiff, not the defendant.¿Perez v. Golden Empire Transit Dist., 209 Cal. App. 4th 1228, 1239 (2012);¿see¿Doe v. Roman Catholic Bishop of Sacramento, 189 Cal. App. 4th 1423, 1427 (2010); Clauson v. Superior Court, 67 Cal. App. 4th 1253, 1255 (1998) (In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.). The Court may also consider matters properly subject to judicial notice, Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985), but need not accept contentions, deductions or conclusions of fact or law.¿Daar¿v. Yellow Cab Co., 67 Cal. 2d 695, 713 (1967).¿ Though the governing standards are similar, demurrers and motions to strike differ starkly in their respective purposes. Demurrers can only be used to reach entire causes of action. See Ellena¿v. Dept of Ins., 230 Cal. App. 4th 198, 206 (2014)¿(A demurrer must be overruled if the complaint states a claim on any theory.); Kong v. City of Hawaiian Gardens Redevelopment Agency, 108 Cal. App. 4th 1028, 1047 (2002) ([A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.). On the other hand, the purpose of a motion to strike is to reach certain kinds of defects in a pleading¿that are¿not subject to demurrer.¿Baral¿v.¿Schnitt, 1 Cal. 5th 376, 388 (2016) (citing 5 Witkin, Cal. Proc. 5th, Pleading § 1008 (2008)) (internal quotation marks omitted) (emphasis added). Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) IV. DISCUSSION First Cause of Action: Violation of Senate Bill 800 ("SB-800") Construction Standards Under Corporations Code section 2011, causes of action against a dissolved corporation and its shareholders are extinguished on the earlier of the expiration of the statute of limitations to the cause of action, or four years after the effective date of the dissolution of the corporation. (Corp. Code § 2011, as amended by enacted legislation, 2019 Cal. Legis. Serv. Ch. 143 (S.B. 251) (West); See also Corp. Code § 2009.) The statute of limitations for breach of contract is generally four years. (Code Civ. Proc. § 337.) Defendant argues that the claims against 1626 Hortense LLC and its shareholders are barred by the application of the four-year statute of limitations for claims against a dissolved corporation. With respect to dissolved corporations, Corporations Code section 2011 provides the following: [&] all causes of action against a shareholder of a dissolved corporation arising under this section are extinguished unless the claimant commences a proceeding to enforce the cause of action against that shareholder of a dissolved corporation prior to & (B) Four years after the effective date of the dissolution of the corporation. (Cal. Corp. Code § 2011 (a)(2)(B) emphasis added.) Defendant contends that Plaintiffs first and only cause of action for violation of Senate Bill 800 (SB 800) is time-barred by a four-year statute of limitations imposed by subsection(a)(2)(B) of the Corporations Code § 2011. Defendant argues that the complaint filed by Plaintiffs on May 30, 2024, is untimely because Defendant 1626 Hortense LLC owned the Property when the project was completed on July 21, 2016, and 1626 Hortense LLC dissolved later that year on December 22, 2016, making the statute of limitations for Plaintiffs December 22, 2020, three and half years prior to filing this action. (Demurrer, 7:10-19.) Plaintiffs argue that the cause of action for violation of SB 800 is not time-barred by the four-year statute of limitations because a 10-year statute of limitations is proscribed under Code Civ. Proc., § 337.15 (a). Plaintiff argues that Corporations Code section 2011 is not at issue in this matter because Plaintiff does not allege shareholder liability against Defendant, and shareholder liability and alter ego liability are distinct liability theories. (Oppn., 1:16-18, 2:19-24.) Plaintiffs seek leave to amend the Complaint under an alter ego theory alleging that Defendant operated 1626 Hortense LLC as his alter ego, obtaining permits in his own name. (Oppn., 2:21-24.) California Code Civ. Proc. section 337.15 provides that [n]o action may be brought to recover damages from any person . . . who develops real property or performs or furnishes the design, specifications, surveying, planning, supervision, testing, or observation of construction or construction of an improvement to real property more than 10 years after the substantial completion of the development or improvement for [any latent deficiency or injury to property arising out of such latent deficiency]. (Code Civ. Proc. § 337.15(a).) Section 337.15 does not apply to actions based on willful misconduct or fraudulent concealment. (Id., § 337.15(f).) For the section 337.15(f) to apply, the plaintiff must plead (1) there was willful misconduct involved in the construction of [the plaintiffs home], (2) such willful misconduct resulted in the alleged latent construction defects and (3) such willful misconduct was committed by the defendants or the facts and circ*mstances are such that the willful misconduct of others is appropriately chargeable to them. (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1286.) [W]illful misconduct implies the intentional doing of something either with knowledge, express or implied, that serious injury is a probable, as distinguished from a possible, result, or the intentional doing of an act with a wanton and reckless disregard of its consequences. (Acosta, supra, 128 Cal.App.4th at 1293 (quoting Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 402).) As to whether section 337.15 bars the cause of action alleged against Defendant, the Court finds it does not. Plaintiffs purchased the home in October 2023, and completion of Property occurred between June 10, 2015, and July 20, 2016. (Demurrer, 4:15, 5:12-15.) As ten years have not passed since the completion of the home, section 337.15 operates to maintain the SB 800 violation cause of action. Defendant also demurs as to the Complaint on the basis that Plaintiffs cannot maintain a valid claim against him as former shareholder under Corporations Code section 2011. The case relied on by Defendant, Pacific Scene, Inc. v. Penasquitos, Inc. (1988), 46 Cal. 3d 407, holds that the equitable trust fund theory in claims for the recovery of improperly distributed assets is preempted by Californias statutory scheme under Corporations Code section 2009 and 2011. (Id. at 413-414.) Pacific Scene does not discuss whether alter ego liability is preempted by the statutory scheme under California law and is therefore inapplicable. In opposition, Plaintiffs seek leave to amend 12626 Hortense LLC, as the alter ego of Defendant Peretz. (Oppn., 2:19-21.) The Court reviews the Complaint to determine whether shareholder liability is at issue. (See Hutton, supra, 213 Cal. App. 4th at 493 [pleadings delimit scope of issues on summary judgment].) The Complaint does not allege that Defendant is liable as shareholder of 12626 Hortense LLC, only that Plaintiffs are informed and believe and thereon allege that Defendant Peretz sold the Home to 12626 Hortense Street Trust ("Seller"). (See generally, Compl. ¶ 14.) The Court does note that on June 20, 2024, Plaintiffs amended DOE 1 in the Complaint to name Defendant 12626 Hortense LLC. Therefore, Defendants argument that Corporations Code section 2011 bars Plaintiffs claim is irrelevant to the instant action, as no shareholder liability is alleged in the operative pleading. Defendants cite no authority for the proposition that Plaintiffs alter ego claims are preempted. Therefore, Defendant has not met his burden on the statute of limitations demurrer. Nevertheless, Defendants demurrer on grounds that Cal. Corp. Code § 2011 bars the action against them is sustained with leave to amend. __________________________________ Judge Eric Harmon, Department 107, Van Nuys August 21, 2024 Los Angeles County Superior Court
Ruling
Aug 20, 2024 |23CV-0202671
FORRESTER VS. M&M MEYERS ENTERPRISES, INC, ET AL.Case Number: 23CV-0202671This matter is on calendar for review regarding status of default judgment. The Court notes thatPlaintiff attempted to file a Request for Court Judgement. It was rejected by the Clerk because theDoe Defendants have not yet been dismissed. This matter is continued to Monday, September16, 2024, at 9:00 a.m. in Department 64 for review regarding status of default judgment. Noappearance is necessary on today’s calendar.
Ruling
EDWARD VAN NGUYEN VS. BASILIO RAMON TINIACOS HUERTA ET AL
Aug 19, 2024 |CGC22601706
Matter on the Law & Motion calendar for Monday, August 19, 2024, Line 5. DEFENDANT BASILIO TINIACOS HUERTA AND NATANA ALVES' Motion To Compel Plaintiff To Appear At Deposition;Defendants Motion For Terminating Sanctions Against Plaintiff For Failure To Prosecute. Transferred to the discovery calendar to be heard on September 20, 2024, at 9:00 a.m. =(302/RBU)
Ruling
LEON vs JIMENEZ
Aug 20, 2024 |CVSW2310545
MOTION TO BE RELIEVED ASCVSW2310545 LEON VS JIMENEZCOUNSELTentative Ruling: GRANT. Approve the Proposed Order, however, modify the date for theCMC and OSC to 10/31/24.
Ruling
RANDALL BERNARD ALLEN VS THE CITY OF LOS ANGELES, ET AL.
Aug 21, 2024 |21STCV25562
Case Number: 21STCV25562 Hearing Date: August 21, 2024 Dept: 55 NATURE OF PROCEEDINGS: Defendant Vista Point, Inc.s Demurrer to Second Amended Complaint BACKGROUND RANDALL BERNARD ALLEN (Plaintiff), a self-represented litigant, brings this case against VISTA POINT, INC. (Defendant), which manages a special needs trust for Plaintiffs benefit. The Court previously sustained, without leave to amend, a demurrer of a former defendant PACIFIC LIFE INSURANCE ANNUITY COMPANY. On 12/15/23, the Court sustained, with leave to amend, Defendants demurrer to the First Amended Complaint (FAC). The operative Second Amended Complaint (SAC) alleges five causes for action against Defendant: 1) Breach of Contract, 2) Breach of Trust, 3) Violation of Probate Code § 17200, 4) Failure to Disclose, and 5) Intentional Infection of Emotional Distress. Defendant has filed a demurrer to the SAC. Plaintiff opposes the demurrer. LEGAL STANDARD A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc. § 430.10.) ¿¿ In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a demurrer lies only for defects appearing on the face of the complaint[.] (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) When ruling on a demurrer, the Court may only consider the complaints allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 128.) 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). ANALYSIS Per the December 15, 2023, Minute Order, the Court found that the FAC was uncertain as to how the entity Defendant, as a trust administrator, acted under color of state law, such as by conspiracy or joint action. (12/15/23 Minute Order.) The Court additionally found that the contract provisions alleged to be breached were not specified in the pleading. (Id.) The SAC does not cure the deficiencies identified by the Court. While the SAC drops the Section 1983 claim, it fails to sufficiently plead a cause for action for breach of contract. For example, the SAC does not sufficiently allege breach because it does not allege what sections of the parties' agreement were violated by the Defendant. Instead, the SAC alleges that Plaintiff became ineligible for disability, thus rendering the trust illegal to possess. (SAC ¶48.) This does not allege a breach because it does not plead any specific facts indicating a breach. (Melican v. Regents of Univ. of Cal. (2007) 151 Cal. App. 4th 168, 174. Based on this, the cause of action for breach of contract cannot survive on demurrer. Defendant contends that the Second, Third, Fourth, and Fifth causes of action fail due to uncertainty and for failure to state the claim. The Court agrees with the Defendant that the complaint as plead is uncertain. The Second and Third causes of action (grouped into one claim in the SAC) do not sufficiently allege a breach of duty because the SAC does not allege any facts constituting a breach. The Fourth cause action is uncertain because the SAC does not cite any authority for a private right of action for alleged violation of the Civil Discovery Act. Finally, the Fifth cause of action is uncertain because it alleges tangential actions by third parties without connection to the Defendant. In sustaining the demurrer, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) However, leave in this case would not be appropriate because Plaintiff does not meet his burden in showing that he can amend the complaint and how that amendment will change the legal effect of his pleading. (Goodman, supra, 18 Cal.3rd 349.) CONCLUSION Defendant Vista Point, Inc.s Demurrer to Second Amended Complaint is sustained without leave to amend.
Ruling
SHOKOUH SHADRAVAN, BY AND THROUGH HER ATTORNEY-IN-FACT, MOJAN GHAHRAMANI VS CALIFORNIA REHABILITATION INSTITUTE, LLC, ET AL.
Aug 20, 2024 |Echo Dawn Ryan |23STCV19071
Case Number: 23STCV19071 Hearing Date: August 20, 2024 Dept: 26 08/20/24 Dept. 26 Hon. Rolf Treu, Judge presiding SHADRAVAN v. CALIFORNIA REHABILITATION INSTITUTE, LLC, et al. (23STCV19071) Counsel for Plaintiff/moving party: Spencer Peck (Peck Law Corporation) Counsel for Defendant/opposing party: Alexander Watson (Fraser Watson & Croutch, LLP) PLAINTIFFS MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO (filed 03/19/2024) TENTATIVE RULING Plaintiffs motion to compel further responses to Special Interrogatories, Set Two, Nos. 31-38 is GRANTED in part. The Court GRANTS the opt-in notice procedure specified at page 2 of the Plaintiffs Notice of Motion. The parties are to meet and confer on the selection of a third party administrator and costs of the third-party administrator are to be shared equally by Plaintiff and Defendant. BACKGROUND On August 10, 2023, Plaintiff Shokouh Shadravan by and through her Attorney-in-Fact Majon Ghahramani, (Plaintiff) filed the instant action against Defendants California Rehabilitation Institute, LLC (CRI) and Jennifer Chauncey (Chauncey). The Complaint alleges that while under the care and treatment of CRI and Chauncey, Plaintiff developed Stage IV wounds to her legs as a result of the clinical team at CRIs failure to take the appropriate and necessary measured to prevent wounds from developing. The Complaint asserts the following causes of action: 1. Elder Abuse 2. Negligence On March 19, 2024, Plaintiff filed a Motion to Compel Further Responses from Defendant California Rehabilitation Institute, LLC, Special Interrogatories, Set Two, arguing: · Plaintiff moves to compel further responses to Special Rog Nos. 31-38 · Plaintiff also requests Defendant be ordered to: o Send out the letter attached as Exhibit 4 to all responsive witnesses to Special Interrogatories, Nos. Set Two, Nos. 31 through 38); o Enclose in the letter the response card attached hereto as Exhibit 5 and a self-addressed stamped envelope for the return; o Submit to the Court and Plaintiffs counsel a declaration under penalty of perjury as to the number of letters sent out seven days after mailing; o As to all witnesses who authorize the dissemination of their information, it is to be provided to Plaintiffs counsel, in writing and within five days of receipt; and o Defense counsel to be ordered to not contact any of the responsive witnesses unless authorized to do so directly by the witness or by the written authorization by which Plaintiffs counsel is to be bound. · Plaintiff seeks witness names and contact information of patients and responsible parties. Defendant fails to provide the identity and location of witnesses on purported privacy grounds. · Courts have ordered the production of the same information in elder abuse cases. · Plaintiffs proposed compromise of sending letters to witnesses seeking affirmative assent to the disclosure of their contact information negates any purported privacy rights. Defendant CRI filed an opposition, arguing: · CRI objected to the foregoing special interrogatories on several grounds, including the fact that the information sought in each interrogatory was violative of the privacy rights of parties not involved in this litigation, violative of the Health Insurance Portability and Accountability Act, sought information not reasonably calculated to lead to the discovery of admissible evidence, not to mention irrelevant to the subject matter, overly broad, burdensome and oppressive. · Plaintiff has not established that other patients could provide percipient testimony on these matters, or whether CRI's other patients' opinions on these matters would be somehow credible, relevant to this case or even admissible at trial. · CRI and its counsel have not identified any other patient as a percipient witness, nor do they intend to do so. · The Health Insurance Portability and Accountability Act prohibits the disclosure of patients health information. · The California Constitution grants citizens an inalienable right to privacy. In the instant case, the information sought by plaintiff in her motion to compel is private health information that is legally protected. · Plaintiff's alternative proposal for CRI to send out an opt-in letter to allow its patients to decide whether they want plaintiff's counsel to contact them is equally untenable, as the impact would yield the same results in those instances where CRI's patients would consent to allow plaintiff's counsel to contact them, which result is the potential provision of irrelevant information and irrelevant opinions, based on nothing more than speculation and conjecture on plaintiff's part that through overreaching inquiry of individuals completely unrelated to this litigation something may turn up that will help plaintiff's case. Plaintiff filed a reply, arguing: · The proposed opt-in method negates any purported privacy rights · The issues of this case are not limited to Plaintiffs care. o Other patients would testify in their capacity as lay witnesses since they would have substantial and unique knowledge regarding such critical issues as whether the facility was sufficiently staffed to afford patients the ongoing care they needed, the existence and nature of complaints made to the facility regarding the care provided, incidents and injuries similar to those that Plaintiff suffered, the training employees received, whether that training was adequate to enable them to provide appropriate custodial care, and, of course, whether the custodial care provided to residents in general, and to the Plaintiff herein in particular, was adequate. · The information is needed to proving recklessness and corporate ratification · Defendants HIPPA objections are without merit ANALYSIS A. Legal Standard Any party may obtain discovery . . . by propounding to any other party to the action written interrogatories to be answered under oath.¿ CCP § 2030.010(a).¿ Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party, unless on motion of the propounding party the court has shortened the time for response, or unless on motion of the responding party the court has extended the time for response.¿ CCP § 2030.260(a).¿ ¿ The party to whom interrogatories have been propounded shall respond in writing under oath separately to each interrogatory by any of the following: (1) An answer containing the information sought to be discovered. (2) An exercise of the party's option to produce writings. (3) An objection to the particular interrogatory.¿ CCP § 2030.210(a).¿ If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.¿ CCP § 2030.220(c).¿ ¿ On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general.¿ CCP § 2030.300(a).¿ A motion under subdivision (a) [of CCP § 2030.300] shall be accompanied by a meet and confer declaration under Section 2016.040.¿ CCP § 2030.300(b).¿ In addition, a separate statement is required.¿ California Rules of Court (CRC) Rule 3.1345(a)(2).¿ ¿ Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.¿ CCP § 2030.300(c).¿[T]he time limitations set forth in section 2030 and section 2034, subdivision (a) [are] mandatory and [when] not met, the trial court's order is in excess of its jurisdiction.¿(Vidal Sassoon, Inc. v. Superior Court¿(1983) 147 Cal.App.3d 681, 685.) B. Request for Judicial Notice Plaintiff requests the Court take judicial notice of the following: 1. Minute Order in the case of Bernardez v. White Memorial Medical Center, et al., Los Angeles Superior Court Case No. BC512260; 2. Ruling and Minute Order in the case of Alba v. Saint Vincent Medical Center, LASC No. BC500508; 3. Ruling and Minute Order in the case of Jose Sergio Villareal Valladolid v. Brier Oak on Sunset, et al., Los Angeles Superior Court Case No. BC553657. The court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, [r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States, and [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452, subds. (c), (d), and (h).)¿¿ The Court grants Plaintiffs requests for judicial notice. The Court notes that although it may take judicial notice of the documents, the documents are only judicially noticeable to show their existence and what orders were made. The facts and findings within the documents are not judicially noticeable. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885.) C. Objections to Evidence Plaintiffs evidentiary objection to the declaration of Roger Schechter is overruled. D. Meet and Confer Plaintiff submits the declaration of their counsel stating that Plaintiffs counsel sent a meet and confer letter to defense counsel and defense counsel indicated that they would not provide supplemental responses. (Peck Decl., ¶¶ 4-5.) Thus, the Court will consider the merits of the motion. E. Discussion Plaintiff moves to compel further responses from Defendant CRI to Special Interrogatory Nos. 31-38. Interrogatory 31: Please IDENTIFY each patient of the FACILITY on the same wing, unit, or station of the PLAINTIFF during the time period PLAINTIFF was a patient at the FACILITY. Interrogatory 33: Please IDENTIFY each patient of the FACILITY who developed a DECUBITUS ULCER at the FACILITY during the time period PLAINTIFF was a patient of the FACILITY, one year preceding her admission and the six months subsequent to her admission; DECUBITUS ULCER as utilized in this inquiry shall mean as that term is defined in "Title 22, California Code of Regulations, § 72027, which provides in its entirety as follows: "Decubitus ulcer means an ulceration of skin and underlying tissue caused by pressure. Interrogatory 35: Please IDENTIFY each patient of the FACILITY during the time period PLAINTIFF was a patient at the FACILITY, one year preceding her admission and the six months subsequent to her admission, who filed a formal complaint with any governmental agency (This includes, but is not limited to, both state and federal agencies, such as the Department of Public Health, Department of Health Services, and Department of Health and Human Services Center for Medicare and Medicaid Services) regarding any aspect of the care provided by the FACILITY to its patients. Interrogatory 37: Please IDENTIFY each patient of the FACILITY relating to whom a report was made by the FACILITY pursuant to the FACILITY's obligations as mandated reporters of suspected Elder Abuse and Neglect, as set forth in Welfare & Institutions Code §15630(a), during the time period PLAINTIFF was a patient at the FACILITY, one year preceding her admission and the six months subsequent to her admission. Interrogatory Nos. 32, 34, 36 and 38 ask for the identity of the responsible parties for the patients identified in interrogatories 31, 33, 35 and 37. While Defendant argues that these interrogatories violate resident/representative privacy rights and HIPPA, the Court finds that Plaintiff has made a sufficient showing of need to justify the minimum privacy intrusion with sending an opt-in letter to the patients. On page two of the Notice of the Motion, Plaintiff requests that Defendant be ordered to, within ten days of this hearing: 1. Send out the letter attached as Exhibit 4 to the Motion to all responsive witnesses to Special Interrogatories, Nos. Set Two, Nos. 31 through 38; 2. Enclose in the letter the response card attached hereto as Exhibit 5 to the Motion and a self-addressed stamped envelope for the return; 3. Submit to the Court and Plaintiffs counsel a declaration under penalty of perjury as to the number of letters sent out seven days after mailing; 4. As to all witnesses who authorize the dissemination of their information, it is to be provided to Plaintiffs counsel, in writing and within five days of receipt; and 5. Defense counsel to be ordered to not contact any of the responsive witnesses unless authorized to do so directly by the witness or by the written authorization by which Plaintiffs counsel is to be bound. The opt-in letter will substantially mitigate any privacy concerns as Plaintiff will not be given the identities or contact information of patients without their affirmative consent to the disclosure. In addition to providing information on Defendants standard of care, patients could provide useful information on issues such as staffing, training of Defendants staff, and corporate ratification. Therefore, the parties are to meet and confer on the selection of a third-party administrator necessary to carry out the opt-in letter procedure. Costs of the third-party administrator will be shared equally by Plaintiff and Defendant CRI. Thus, the Court GRANTS the opt-in notice procedure specified at page 2 of the Plaintiffs Notice of Motion. DISPOSITION Plaintiffs motion to compel further responses to Special Interrogatories, Set Two, Nos. 31-38 is GRANTED in part. The Court GRANTS the opt-in notice procedure specified at page 2 of the Plaintiffs Notice of Motion. The parties are to meet and confer on the selection of a third-party administrator and costs of the third-party administrator are to be shared equally by Plaintiff and Defendant.
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