CaseInfoScanned - CASE FILING COVER SHEET September 07, 2017 (2024)

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Ruling

SANCHEZ SCOMA VS. PIT RIVER CASINO, ET AL.

Aug 27, 2024 |CVCV20-0196121

SANCHEZ SCOMA VS. PIT RIVER CASINO, ET AL.Case Number: CVCV20-0196121This matter is on calendar for review regarding status and trial setting. The Court notes that thedefault judgment against Mike Avelar on July 22, 2024, was improperly entered (no proof ofservice of summons was on file) and the default was therefore vacated. Additionally, the SecondAmended Complaint was filed without leave of Court and was therefore stricken. This matter isnot at issue. An appearance is necessary on today’s calendar to provide the Court with astatus of pleadings and service.

Ruling

JOSE RODRIGUEZ VS BYAMBADORJ TSENDAYUSH, ET AL.

Aug 29, 2024 |22STCV02508

Case Number: 22STCV02508 Hearing Date: August 29, 2024 Dept: 28 Having considered the moving and reply papers, the Court rules as follows. BACKGROUND On January 21, 2022, Plaintiff Jose Rodriguez (Plaintiff) filed this action against Defendants Byambadorj Tsendayush, Uber Technologies, Raiser LLC, Raiser-CA LLC, and Does 1-50 for negligence. On October 2, 2023, Defendants Uber Technologies, Inc. (erroneously sued as Uber Technologies), Rasier, LLC (erroneously sued as Raiser LLC), and Rasier-CA, LLC (erroneously sued as Raiser-CA LLC) (collectively, Uber) filed an answer. On October 4, 2023, Defendant Byambadorj Tsendayush filed an answer. On August 5, 2024, Uber filed a motion to continue the trial and related pre-trial dates. The motion was set for hearing on August 29, 2024. No opposition has been filed. On August 22, 2024, Uber filed a reply brief and notice of non-opposition. Trial is currently scheduled for November 4, 2024. PARTIES REQUESTS Uber asks the Court to continue the trial and related pre-trial dates. LEGAL STANDARD A. Motion to continue trial California Rules of Court, rule 3.1332 provides: (a) Trial dates are firm To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (b) Motion or application A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (c) Grounds for continuance Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circ*mstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (d) Other factors to be considered In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. These may include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332.) B. Motion to continue or reopen discovery Code of Civil Procedure section 2024.020 provides: (a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. (b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings. (Code Civ. Proc., § 2024.020.) Code of Civil Procedure section 2024.050 provides: (a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. (c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2024.050.) DISCUSSION Uber asks the Court to continue the trial to August 4, 2025 and to continue related pre-trial dates to allow Uber to complete discovery before trial. Plaintiff filed the complaint in January 2022 but did not serve Uber until September 2023. Uber contends that Plaintiff failed to appear for his noticed deposition and has failed to provide timely responses to discovery requests. The Court finds good cause and continues the trial to the first available date in February 2025. The final status conference, discovery, and related dates will be based on the new trial date. CONCLUSION The Court GRANTS in part the motion to continue the trial and related dates filed by Defendants Uber Technologies, Inc. (erroneously sued as Uber Technologies), Rasier, LLC (erroneously sued as Raiser LLC), and Rasier-CA, LLC (erroneously sued as Raiser-CA LLC). The Court continues the trial to the first available date in February 2025. The final status conference, discovery, and related dates will be based on the new trial date. Moving parties are ordered to give notice of this ruling. Moving parties are ordered to file the proof of service of this ruling with the Court within five days.

Ruling

CLAUDIA BEATRIZ RIVERA VS SUNNYCREST DEVELOPMENT CORP., A BUSINESS OF FORM UNKNOWN, ET AL.

Aug 26, 2024 |23AHCV01723

Case Number: 23AHCV01723 Hearing Date: August 26, 2024 Dept: P [TENTATIVE] ORDER CONTINUING PLAINTIFFS MOTIONS TO COMPEL DISCOVERY RESPONSES AS TO DEFENDANT SOHO EXPRESS BUSINESS SERVICES INC. I. INTRODUCTION On July 27, 2023, Plaintiff Claudia Beatriz Rivera filed an action for negligence and premises liability against Defendants Sunnycrest Development Corporation (Sunnycrest), Soho Express Business Services Inc. d.b.a. the UPS Store #4833 (Soho), and Does 1 through 50. Plaintiff alleges that around August 13, 2022, while visiting the UPS Store located at 1005 Las Tunas Dr., San Gabriel, Los Angeles, CA 91776, she tripped and fell at the threshold, which was elevated several inches from the exterior landing. On March 27, 2024, the matter was reassigned to Judge Jared D. Moses in Department P at the Pasadena Courthouse. On June 17, 2024, Plaintiff filed the following Motions: (1) Motion to Compel Responses to Form Interrogatories to Defendant Soho and Request for Monetary Sanctions, set for hearing on August 26, 2024; (2) Motion to Compel Responses to Special Interrogatories to Defendant Soho and Request for Monetary Sanctions, set for hearing on August 26, 2024. On June 18, 2024, Plaintiff filed the following Motions: (1) Motion to Compel Responses and Documents Responsive to Requests for Production of Documents to Defendant Soho and Request for Monetary Sanctions, set for hearing on August 27, 2024; (2) Motion to Have Plaintiffs Requests for Admission (Set One) to Defendant Soho Deemed Admitted and Request for Monetary Sanctions, set for hearing on August 27, 2024; On June 20, 2024, Plaintiff filed four additional discovery motions as to Defendant Sunnycrest, set for hearing on September 3 and 4, 2024. On August 22, 2024, Defendants filed an Omnibus Opposition to Plaintiffs discovery motions and a request for monetary sanctions against Plaintiff and her counsel in the amount of $5,100. The hearing on the discovery motions filed as to Defendant Soho is continued. II. LEGAL STANDARD A. Requests for Admission Under Code of Civil Procedure, section 2033.280, subdivision (b), failure to respond to requests for admission in a timely manner allows the requesting party to move for an order that&the truth of any matters specified in the requests be deemed admitted by the party that failed to respond. The requesting partys motion must be granted by the court, unless [the court] finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc. § 2033.280, subd. (c).) Since such motion is in response to failure to respond, there is no requirement to meet and confer prior to moving to deem the requests for admission admitted. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007), 148 Cal.App.4th 390, 411.) By failing to timely respond, the party to whom the requests are directed waives any objection to the requests, including one based on privilege or work product. (Code Civ. Pro. § 2033.280, subd. (a).) B. Interrogatories A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling response to the discovery. (Code Civ. Proc. § 2030.290, subd. (b).) Once compelled to respond, the party waives the right to make any objections, including ones based on privilege or work-product protection. (Code Civ. Proc. § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§ 2024.020, subd. (a), 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (See Code Civ. Proc. § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) C. Requests for Production A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc. § 2031.260, subd. (a).) If a party to whom requests for production of documents is directed does not provide timely responses, the requesting party may move for an order compelling response to the discovery. (Code Civ. Proc. § 2031.300, subd. (c).) The party also waives the right to make any objections, including ones based on privilege or work-product protection. (Code Civ. Proc. § 2031.300, subd. (a).) There is no time limit for a motion to compel responses to production of documents other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc. §§ 2024.020, subd. (a), 2031.300.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) D. Monetary Sanctions Code of Civil Procedure, section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorneys fees, incurred by anyone because of that conduct. Misuse of discovery includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc. § 2023.010, subd. (d)). Courts are obligated to impose monetary sanctions in cases where a failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc. § 2023.010, subd. (d).) Sanctions are calculated based on reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Ibid. § 2023.030, subd. (a)). Furthermore, sections 2030.290 and 2031.300 authorize the Court to impose monetary sanctions if a party fails to respond to interrogatories and requests for production. III. ANALYSIS On April 22, 2024, Plaintiff served Defendant with Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Admission (Set One), and Requests for Production of Documents (Set One). (Brito Decl. ¶ 3, Exs. A-D.) Responses were due by May 24, 2024. (Ibid.) Plaintiff did not receive any responses, thus, on May 31, 2024, Plaintiffs counsel reached out to defense counsel regarding the discovery requests. (Ibid. at ¶ 4, Ex. E, p. 1.) Defense counsel failed to respond to the May 31, 2024, communication. On June 12, 2024, Plaintiffs counsel once again reached out to defense counsel regarding the overdue responses and reminded him that Plaintiffs deposition, set for June 17, could not go forward without the discovery responses. (Ibid. at ¶ 5, Ex. E, p. 2.) Defense counsel refused to provide a certain date by which the responses would be provided. (Ibid. at ¶ 5, Ex. E, pp. 3-7.) As of the date of these discovery motions, Plaintiff has not received any responses to the Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Admission (Set One), and Requests for Production of Documents (Set One). (Ibid. at ¶ 6.) Moreover, Plaintiff requests monetary sanctions in the amount of $2,940 in attorneys fees and costs to be imposed against Defendant Soho and its counsel of record, as follows: 4 hours for preparation of the motions, 2 hours for review of the opposition, preparation of reply, and attendance at the hearing, at a billing rate of $450 per hour, and $240 in motion filing fees ($60 per motion). (Ibid. at ¶ 7.) On August 22, 2024, Defendants filed an Omnibus Opposition to the discovery motions. The Court notes that the Opposition was filed late in response to the motions set for hearing on August 26, 2024. Defense counsel states that Plaintiffs counsel was well-aware that he was managing the death of a relative while trying to compile the discovery responses. (Safarian Decl. ¶ 3, Ex. A.) While being informed that the responses were forthcoming, Plaintiffs counsel went ahead and filed 8 separate discovery motions, demonstrating counsels refusal to resolve the issue informally. (Ibid. at ¶¶ 3-5.) On July 11, 2024, Defendants served verified responses to all the discovery requests, without any objections; however, Plaintiffs counsel refuses to take the motions off the calendar. (Ibid. at ¶ 6, Exs. B-I.) Defendants request monetary sanctions in the amount of $5,100 as follows: attorneys fees at a billing rate of $850 per hour for 2 hours to prepare the opposition and 4 hours to attend the four separate hearings on the Motions. Pursuant to California Rules of Court, rule 3.1300, subdivision (d), the Court in its discretion considers the late-filed Opposition. However, to provide Plaintiff with an opportunity to respond to the Opposition, the Court continues the hearing on the discovery motions filed as to Defendant Soho. IV. CONCLUSION AND ORDER The hearings on the following Motions, filed by Plaintiff Claudia Beatriz Rivera, are CONTINUED to a date to be determined at the hearing scheduled for August 26, 2024 in Department P of the Pasadena Courthouse. Plaintiff is given an opportunity to respond to Defendants Opposition. No further papers may be filed. (1) Motion to Compel Responses to Form Interrogatories to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (2) Motion to Compel Responses to Special Interrogatories to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (3) Motion to Compel Responses and Documents Responsive to Requests for Production of Documents to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (4) Motion to Have Plaintiffs Requests for Admission (Set One) to Defendant Soho Express Business Services Inc. Deemed Admitted and Request for Monetary Sanctions. Dated: August 26, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT

Ruling

JOHN WALTER TEMPLE VS MALIYA ANISE SAANI, ET AL.

Aug 27, 2024 |24TRCV00291

Ruling

KRYSTAL RENEE CASTRO, ET AL. VS THOMAZ PHILLIP COUSSEAU, ET AL.

Aug 27, 2024 |Renee C. Reyna |21STCV31342

Case Number: 21STCV31342 Hearing Date: August 27, 2024 Dept: 29 Castro v. Cousseau 21STCV31342 Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Albert Abkarian & Associates. Background On August 24, 2021, Krystal Renee Castro, Victor Andres Avila, Brisstelle Avila, and Viktor Amias Avila filed a complaint against Thomaz Phillip Cousseau, Nissan North America Inc., and Rebecca Diane Mullin (collectively Defendants) for negligence cause of action arising out of an automobile collision on July 18, 2020. On October 26, 2021, Defendants filed an answer. In June 2023, the Court granted the petition for approval of minors compromises in this case. An OSC re proof of deposit was set and continued several times; in the interim, it appears that counsel has been unable to communicate with the client (guardian ad litem). On June 20, 2024, Albert Abkarian & Associates (Counsel) filed a motion to be relieved as counsel for Plaintiff Krystal Renee Castro (Plaintiff). No opposition has been filed. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.136(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) Discussion Counsel has filed the Notice, Declaration, and Order to be Relieved as Counsel. However, Counsel fails to include all future hearings, including the OSC re Proof of Deposit set for September 25, 2024, on both the Declaration and Order. Moreover, the Court has the following additional concerns: (1) a guardian ad litem cannot represent a minor without counsel, and granting the motion could leave the case in an uncertain state; and (2) it is unclear to the Court whether the settlement funds have been paid and, if so, whether they have been deposited into a blocked account as ordered. Accordingly, the motion is DENIED without prejudice. Conclusion The motion to be relieved as counsel is DENIED without prejudice. Moving counsel to give notice.

Ruling

SMITH vs THE INN AT DEEP CANYON

Aug 29, 2024 |CVPS2204678

SMITH vs THE INN AT DEEP Demurrer on Complaint by THE INN AT DEEPCVPS2204678CANYON CANYON, ARNOLD KIRSCHENBAUMTentative Ruling: Sustained.Plaintiff granted leave to amend within 10 days of this order becoming final.Moving party to provide notice pursuant to CCP 1019.5.This is a personal injury action brought by Plaintiffs Paul Smith and Jasmine Smith (collectively“Plaintiffs”) against Defendants the Inn at Deep Canyon (“Deep Canyon”) and individual ArnoldKirschenbaum (collectively “Defendants”). Plaintiffs allege they stayed at Deep Canyon, located at74470 Abronia Trial, Palm Desert, California, from December 20-24, 2020. During their stay, Plaintiffsallege they sustained injuries as a result of bedbug bites.Plaintiffs’ complaint brings causes of action for the following: (1) battery; (2) negligence; (3) intentionalinfliction of emotional distress; (4) fraudulent concealment; (5) private nuisance; and (6) public nuisance.Now, Defendants demurrer as follows: Plaintiffs’ third and fifth causes of action fail to state factssufficient to constitute a cause of action (CCP § 430.10(e)), are both uncertain (CCP § 430.10(f), anddo not provide notice of grounds for liability in violation of California Rule of Court 2.112. Defendantsargue that the complaint’s third cause of action does not allege “extreme and outrageous” conductbecause Plaintiffs have only shown an omission, not an act. They also argue the third cause of actionfails because there is no allegation of severe emotional distress past their initial injuries in 2020.Defendants argue that the fifth cause of action fails as there cannot be an action for private nuisancewithout harm to a property intertest.In opposition, Plaintiffs generally argue their claims were pleaded correctly with citations to thecomplaint.DemurrerThe function of a demurrer is to test the legal sufficiency of a pleading, but not the truthfulness of theallegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrerproceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.3rd Cause of Action – Intentional Infliction of Emotional DistressA cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageousconduct with the intent of causing, or reckless disregard of the probability of causing, emotional distress;(2) suffering of severe or extreme emotional distress; and (3) actual and proximate cause resulting fromthe conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51). “A defendant’s conduct is ‘outrageous’when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at1050 [quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001] [internal quotationmarks omitted]). In order to avoid a demurrer, the plaintiff must allege with “great specificity” the actswhich he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilizedcommunity. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819,832.) It is not enough that a defendant’s conduct be intentional and outrageous; the conduct must alsobe directed to the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware. (Potter,supra, 6 Cal.4th at 1002 [quoting Christensen v. Superior Court (1991) 54 Cal.3d 868, 903].)Here, the complaint is deficient as it fails to allege specific facts to meet this heightened pleadingstandard. While experiencing a bedbug infestation is outrageous itself, the complaint does not allegeany extreme or outrageous conduct directed at Plaintiffs specifically to support a claim for intentionalinflection of emotional distress. Importantly, a court is not required to accept blindly as true theconclusory allegation that a defendant’s conduct was extreme and outrageous; rather, it may decide itdoes not suffice as a matter of law. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235; Moncada v.West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 781; McClintock v. West (2013) 219 Cal.App.4th540, 556; Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.) Thus, the allegationsthat Defendants had prior knowledge of the infestation and failed to address same is not sufficientwithout any conduct specifically aimed at Plaintiffs. (Complaint, ¶¶ 27-28, 30, 83, 84.)Defendants also argue that the complaint is deficient in alleging extreme emotional injuries, but thereare sufficient allegations in that regard. (Complaint, ¶¶ 27, 29, 83, 90.)The general demurrer to Plaintiffs’ 3rd cause of action is sustained with leave to amend. SUSTAINED.5th Cause of Action – Private NuisanceElements of an action for private nuisance are: (1) an interference with the use and enjoyment ofproperty; (2) that causes substantial actual damage; (3) and is of such a nature, duration, or amount asto constitute unreasonable interference with the use and enjoyment of the land. (Mendez v. RanchoValencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.) That interference must be with“plaintiff’s use and enjoyment of his or her property.” (Chase v. Wizmann (2021) 71 Cal.App.5th 244,253; emphasis added.)Here, Plaintiffs were hotel guests. They do not have an ownership interest in the room they rented fora few nights. Plaintiffs do not offer any case law to support the argument that renting a “dwelling unit –the Subject Hotel room” (Plaintiffs’ Opposition at p. 11, lines 20-21) would satisfy the first element of anaction for private nuisance.Regarding leave to amend, the plaintiff has the burden to show a reasonable possibility of curing thedefect in the complaint by amendment. (Heritage Pacific Financial, LLC v. Monroy (2013) 215Cal.App.4th 972, 994.)The general demurrer to Plaintiffs’ 5th cause of action will be sustained with leave to amend.SUSTAINED.

Ruling

MARIBEL ARREOLA-GONZALEZ, AN INDIVIDUAL, ET AL. VS AHMC SAN GABRIEL VALLEY MEDICAL CENTER LP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.

Aug 26, 2024 |23AHCV01453

Case Number: 23AHCV01453 Hearing Date: August 26, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT MARIBEL ARREOLA-GONZALEZ, et al., Plaintiff(s), vs. AHMC SAN GABRIEL VALLEY MEDICAL CENTER LP, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23AHCV01453 [TENTATIVE] ORDER RE: DEFENDANT LI CUI, M.D.S DEMURRER TO PLAINTIFFS COMPLAINT Dept. 3 8:30 a.m. August 26, 2024 I. INTRODUCTION On June 26, 2023, plaintiffs Maribel Arreola-Gonzalez (Plaintiff), Saul Gonzalez Arreola, and Eva Gonzalez Arreola filed this wrongful death and survival action arising from medical treatment provided to Jorge Gonzalez (Decedent) by defendants AHMC San Gabriel Valley Medical Center LP, AHMC, Inc., Nham Nhat Pham, Alfredo Lee Chang, David Gu, Tommy Lu, and Li Cui. Plaintiff asserts an individual cause of action for negligent infliction of emotional distress (NIED) and alleges that [t]he rapid and grave deterioration of the Decedents health caused by Defendants carelessness and negligence in the emergency room on January 27, 2022, was witnessed by Plaintiff and was shocking to her. (Compl., ¶ 24.) On January 10, 2024, Li Cui, M.D. (Defendant) filed this demurrer to Plaintiffs third cause of action for NIED. Plaintiffs filed an opposition brief on April 16, 2024. Defendant filed a reply brief on August 1, 2024. II. LEGAL STANDARDS A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) 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. [Citation.] (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [the facts alleged in the pleading are deemed to be true, however improbable they may be].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) III. DISCUSSION The Court first addresses Defendants argument that Plaintiffs NIED claim is barred by Code of Civil Procedure section 340.5, which is the statute of limitations enacted as part of the Medical Injury Compensation Reform Act (MICRA). Under section 340.5, an action for injury or death against a health care provider based upon such persons alleged professional negligence must be brought within one year after the plaintiff discovers, or should have discovered, the injury or within 3 years after the date of injury, whichever occurs first. The term professional negligence encompasses actions in which the injury for which damages are sought is directly related to the professional services provided by the health care provider (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191) or directly related to a matter that is an ordinary and usual part of medical professional services (Id. at p. 193.) [C]ourts have broadly construed professional negligence to mean negligence occurring during the rendering of services for which the health care provider is licensed. (Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 406407 [holding that [a]n EMT's operation of an ambulance qualifies as professional negligence when the EMT is rendering services for which he or she is licensed or when a claim for damages is directly related to the provision of ambulance services by the EMT].) Defendant argues that the act or omission forming the basis of Plaintiffs NIED claim is alleged professional negligence. Therefore, Plaintiffs NIED claim is untimely because the alleged injury-producing event occurred on January 27, 2022, and the lawsuit was filed five months too late on June 26, 2023. In opposition, Plaintiff argues that the applicable statute of limitations is provided by Code of Civil Procedure section 335.1, which provides for a 2-year period to assert claims arising from personal injury. Plaintiff also argues that her NIED claim does not arise out of professional negligence because Defendant was not providing medical services to her. However, section 340.5 is not limited to injuries or death inflicted on a patient but can be applied to injuries suffered by a third parties due to the health providers professional negligence. (Arroyo v. Plosay (225 CalApp.4th 279, 298.) In fact, in Lopez v. American Medical Response West (2023) 89 Cal.App.5th 336, 347, the court of appeal found that section 340.5 applied to two plaintiffs claims against a paramedic who allegedly negligently operated an ambulance, even though only one of the plaintiffs was being transported as a patient. Here, Plaintiff alleges that she suffered emotional distress while witnessing Defendants negligent medical treatment of Decedent. Therefore, professional negligence forms the basis for Plaintiffs NIED claim and the one-year statute of limitations applies. Accordingly, Plaintiffs claim is time-barred because it was filed on June 26, 2023, which is one year and five months after Plaintiff allegedly experienced the emotional distress from witnessing the negligent care provided to Decedent on January 27, 2022. As Plaintiffs claim is untimely, the Court need not analyze whether she pleads sufficient facts to state a cause of action. IV. CONCLUSION Defendants demurrer to her Third Cause of Action for NIED is SUSTAINED. As Plaintiff does not show how her NIED claim can be amended to avoid the statute of limitations, the demurrer is sustained without leave to amend. Moving party to give notice. Dated this 26th day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Ruling

Stayer vs. A Plus Safety LLC, et al.

Aug 29, 2024 |23CV-0203556

STAYER VS. A PLUS SAFETY LLC, ET AL.Case Number: 23CV-0203556This matter is on calendar for review regarding status of the case. The Court notes that allComplaints and Cross-Complaints are at issue, with the exception of the most recently filed Cross-Complaint, filed by O’Reilly Auto Enterprises, LLC on August 9, 2024. However, all partiesnamed in that Cross-Complaint have previously appeared as Plaintiffs, Defendants, or Cross-Defendants in this action. The parties are ordered to appear to discuss status and trial setting.

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