Related Contentin Westchester County
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Ruling
PERKINS vs VALLEY WIDE TOWING LLC
Aug 22, 2024 |CVRI2305865
PERKINS VS VALLEY WIDECVRI2305865 MOTION FOR RECONSIDERATIONTOWING LLCTentative Ruling:The Court denies the motion for reconsideration.Procedural ContextFor purposes of this motion, however, Plaintiff is seeking the Court to reverse its prior rulingordering the consolidation of Plaintiff’s for injuries and damages from Defendant’s cross-complaintfor defamation.AnalysisA motion for reconsideration must be based on new or different facts, circ*mstances or law.(C.C.P. §1008(a).) The legislative intent was to restrict these motions to circ*mstances where aparty offers the court some fact or circ*mstance not previously considered, and some valid reasonfor not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The burdenis comparable to that of a party seeking a new trial on the ground of newly discovered evidence;that is, the information must be such that the moving party could not with reasonable diligencehave discovered or produced it at trial. (New York Times Co. v. Superior Court (2005) 135Cal.App.4th 206, 212-13.)In this matter, Counsel for Plaintiff in the underlying complaint has argued that the Court shouldreconsider its ruling, in part, because Counsel did not make an oral request for argument due tohis schedule. However, the Court did not base it ruling on whether or not Counsel madearrangements for oral argument, it based its ruling on the fact that all causes of action stemmedfrom the incident that occurred on December 10, 2021, including the defamatory statement aboutPlaintiff being shot that day. The Court recognizes that the social media posting occurredapproximately a year later, but there is no doubt that the circ*mstances of the incident are aboutthe exact same event.Indeed, the Court’s prior ruling was specifically made so as to avoid the danger of conflictingverdicts, which the Court finds would be significant if two different trials took place. For instance,suppose that Plaintiff’s underlying complaint went forward, and she was successful in obtaining averdict for the injuries she suffered. Suppose then as well the Court conducted a second trial,with a different jury, but instead that second jury came to the opposite verdict and concluded thatPlaintiff defamed Defendant about this shooting and that Defendant/Cross-Complainant wastherefore entitled to compensation. Which jury verdict should the Court rely upon when issuing ajudgment?This is the reason why the Court consolidated the two matters – to avoid inconsistent verdicts.Plaintiff has not provided any additional facts or arguments that has addressed this fundamentalissue, and thus, the Court finds no basis to reverse its decision to consolidate. The motion istherefore denied.
Ruling
- LEVELIT INSTALLATIONS GROUP INC vs SOLIS, RICHARD
Aug 20, 2024 |CV-21-002479
CV-21-002479 - LEVELIT INSTALLATIONS GROUP INC vs SOLIS, RICHARD – a) Defendants' Motion for Summary Adjudication - GRANTED.; b) Plaintiffs Level-It-Installations Group, Inc.'s and Level-It Management, Inc.'s Motion for Summary Adjudication – DENIED.a) As an initial matter, the Court notes that Defendant’s separate statement does not comply with the requirements of CA ST CIVIL RULES Rule 3.1350 (d)(1) and (h). However, the Court has exercised its discretion to proceed to address this motion.The Court finds, as to Plaintiff’s breach of loyalty and breach of fiduciary duty claims that based on the disputed approaches to Plaintiff’s experts’ computation of Plaintiff’s damages, to the extent that said computation assumes that all jobs that Defendants’ undertook would have been awarded to Plaintiff’s and that said computation fails to address Defendants’ costs of operation, and includes relocation costs for new employees, a triable issue of material fact exists as to Plaintiff’s damages claimed in respect of Plaintiff’s First Cause of Action.“Conversion” is the wrongful exercise of dominion over the property of another.The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property, (2) the defendant's conversion by a wrongful act or disposition of property rights, and (3) damages (Welco Elecs., Inc. v. Mora, (2014) 223 Cal. App. 4th 202).The Court finds that Defendants have discharged their burden of establishing Plaintiff’s lack of ownership or right to possession of the recycled scrap metal at issue. Further, that Plaintiffs have failed to establish the existence of a triable issue of material fact as to Plaintiff’s ownership of said scrap metal. (Ps’ UMF’S 52-54; Depo of Todd Walker IsacKson, Ds’ Exhibit K pp. 233, 14-16, 244, 5-12, and 245 9-12).The Court also finds that the facts alleged including Plaintiff’s damages claimed in support of Plaintiff’s’ Comprehensive Computer Data Access and Fraud Act Claim (CCDAFA) constitute a misappropriation of trade secrets claim pursuant to the California Uniform Trade Secrets Act claim which trade secrets claim preempts said CCDAFA claim. (Civ. Code § 3426.7 (b)(2); Reeves v. Hanlon, 2004); 33 Cal.4th 1140; K.C. Multimedia, Inc. v. Bank of Am. Tech. & Operations, Inc., 171 Cal. App. 4th 939) Defendants’ UMF 60, SSAMF 63, Defendant’s Exhibit F, Response No. 90; Exhibit A to Dawn Hall’s Declaration, paragraphs 51 and 53).Furthermore, Plaintiff’s damages claims are based on loss of business opportunities and the loss of potential profits therefrom. (Dawn Hall’s Declaration, paragraphs 5 and 6, and Exhibit A,). However, compensatory damages under the CCDAFA are required to include “any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access.” Plaintiff’s damages failed to include this element.Accordingly, Defendants’ motion for Summary Adjudication as to Plaintiff’s Fifth and Eleventh Causes of Action is hereby granted.b) The Court finds after consideration of all the testimony and admissible evidence that Plaintiffs have failed to establish their first cause of action for breach of duty of loyalty and breach of fiduciary duty. Damages is an essential element of this claim. (Coley v. Eskaton, (2020) 51 Cal. App. 5th 943). The Court finds that a valid triable issue of material fact exists based on the disputing expert opinions as to the bases of Plaintiff’s computations for its alleged damages, which are applicable to Plaintiff’s First and Seventh Causes of Action.Notably, Plaintiff’s damages claims are based on loss of business opportunities and the loss of potential profits therefrom as well as relocation costs for new employees (Dawn Hall’s Declaration, paragraphs 5 and 6, and Exhibit A,) Defendants expert opinion report contends that said computation wrongly assumes that every job that Defendants obtained would have been undertaken by Plaintiffs, makes assumptions as to Defendants’ profit and disregards Defendants’ costs of operation and questions the inclusion of Plaintiff’s claimed relocation costs. (Defendants’ Expert Report by Michael R. Huhn, Defendant’s Exhibit R). This raises a triable issue of material fact as to Plaintiff’s claimed damages.As to Plaintiff’s cause of action for conversion, the Court finds that Plaintiffs have failed to discharge their burden of demonstrating that Plaintiff’s had ownership or right to possession of the recycled scrap metal at issue ((Welco Elecs., Inc. v. Mora, (2014) 223 Cal. App. 4th 202); Plaintiffs’ UMF’S 52-54; Depo of Todd Walker IsacKson, Ds’ Exhibit K pp. 233, 14-16, 244, 5-12, and 245 9-12).Plaintiff’s Seventh Cause of Action for Breach of Contract also suffers from the same issue with regards to its damages claim.Accordingly, Plaintiff’s Motion for Summary Adjudication as to Plaintiff’s First, Fifth and Seventh Causes of Action is hereby denied.
Ruling
LARRY CARLON, ET AL. VS ESTATE OF JONATHAN PATRICK TATONE, DECEASED, ET AL.
Aug 20, 2024 |21STCV36657
Case Number: 21STCV36657 Hearing Date: August 20, 2024 Dept: F43 Dept. F43 Date: 8-20-24 Case #21STCV36657, Larry Carlon, et al. vs. Estate of Jonathan Patrick Tatone, et al. Trial Date: 4-28-25 MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES MOVING PARTY: Defendant County of Los Angeles RESPONDING PARTY: Plaintiff Larry Carlon RELIEF REQUESTED Plaintiffs Further Responses to Defendants Special Interrogatories RULING: Motion is granted. SUMMARY OF ACTION AND ANALYSIS On October 5, 2021, Plaintiff Larry Carlon (Plaintiff) filed this wrongful death case against Defendant County of Los Angeles (Defendant). Defendant propounded discovery on Plaintiff, including special interrogatories and requests for production of documents. Because Plaintiff is the father of the adult decedent who is the subject of the wrongful death action, Defendant seeks information as to whether Plaintiff was financially dependent upon the decedent. Plaintiff served responses to Defendants special interrogatories and requests for production on March 6, 2024. This motion concerns the special interrogatories. Plaintiff objected to and refused to respond to Defendants Special Interrogatories Nos. 30 through 44. The parties engaged in substantial meet and confer efforts in order to resolve the issues present. They were unsuccessful, so Defendant filed this motion on July 23, 2024. Special Interrogatories 30 through 44 seek information related to the bank accounts, investment accounts, retirement accounts, retirement-related payments, sources of financial gain (on or after January 1, 2016, until June 1, 2021), and real property, as well as the balances and values of those accounts and property as of June 1, 2021. Defendant argues that the information it seeks through the special interrogatories is highly relevant. Defendant also argues that Plaintiff must provide full responses, as the right to privacy does not justify Plaintiffs failure to respond and the special interrogatories are not overly broad. Plaintiff argues in his opposition that the special interrogatories do not seek highly relevant information and that the right to privacy justifies his objections. He also argues that the interrogatories are overbroad. Defendants reply reasserts the arguments made in its motion. ANALYSIS A party may obtain discovery related to any matter, not privileged, that is relevant to the litigation, provided the matter is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) When a responding partys objections and responses to interrogatories are without merit and/or too general, a party may move to compel further responses for good cause. (CCP § 2030.300.) The good cause requirement is met by a showing of relevance. (TBG Ins. Servs. Corp. v. Superior Court (2022) 96 Cal.App.4th 443, 448.) Relevance in this context is broad. (Id.) Evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. (Id.) Under the Legislatures very liberal and flexible standard of relevancy, any doubts as to relevance should generally be resolved in favor of permitting discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 542 (quoting Pac. Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173).) Courts presume all relevant nonprivileged evidence in a partys possession is discoverable. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Relevance of the Special Interrogatories Defendant argues that the disputed special interrogatories are relevant because they seek information that it argues is necessary in determining whether Plaintiff was financially dependent on the decedent. That is a requirement for a wrongful death action pursuant to CCP § 377.60. Plaintiff argues that the information sought by Defendant is not relevant because Defendant seeks details about owned businesses, income, investments, properties owned, and loans made by the decedent to his parents. Plaintiffs argues that this information is not determinative of whether Plaintiff had some expectancy to have some financial dependence on his son for the necessities in life. Plaintiff further argues that the focus should be on the support provided by the decedent to his father, the Plaintiff, rather than the overall financial status of Plaintiff. Next, Plaintiff argues that the actions by the decedent right before his death evidence a commitment to provide for both his parents for the necessities of life, due to his parents age and medical complications. Defendant argues in reply that the information it seeks is highly relevant because [P]arents cannot be considered dependent for purposes of the wrongful death statute unless they were actually dependent, to some extent, upon the decedent for the necessaries of life. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 189 (citation omitted).) Plaintiff brought his wrongful death claim based on his assertion that he was financially dependent on the decedent. Therefore, information concerning Plaintiffs financial accounts and the amount of money in those accounts is highly relevant to the lawsuit. It is not enough for him to say that he was financially dependent on the decedent; he needs to demonstrate it through evidence of his own financial condition at that time. Right of Privacy The constitutional right of privacy is not absolute. (Hill v. Natl Collegiate Athletic Assn (1994) 7 Cal.4th 1, 38; see John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199 (a partys privacy interests may have to give way to [the] opponents right to a fair trial (citation omitted))). A party who asserts a right to privacy must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circ*mstances; and (3) conduct by defendant constituting a serious invasion of privacy. (Hill, 7 Cal.4th at 35-37.) However, even if the threshold Hill requirements are established, a court must then balance the right of privacy against the need for disclosure. (Id.) Courts . . . place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion . . .. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) Courts allow discovery into a partys finances where the finances are relevant to the case. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 91-92 (financial information that goes to the cause of action at issue is generally discoverable).) In this case, Plaintiffs financial information is directly relevant to the case. Any privacy interests that Plaintiff might have in that information is overcome by the need for disclosure. Additionally, there is already a protective order in place in this case, so any doubts about the privacy of the information may be resolved by the protective order. Breadth of the Interrogatories Plaintiff argues that the special interrogatories are overbroad because they seek financial information spanning from January 1, 2016, through June 1, 2021. However, only Special Interrogatories Nos. 39 and 40 deal with this longer time period, and those interrogatories seek sources of financial gain over that time period. The rest of the interrogatories only seek information on accounts and real property as of June 1, 2021. These requests are not overbroad, as they deal with a specific relevant time period or a specific date in time. Conclusion Based on the foregoing, the Court finds that Defendants Special Interrogatories are relevant, do not violate Plaintiffs privacy interests, and are not overly broad. ORDER Defendants motion to compel further responses to Special Interrogatories Nos. 30 through 44 is granted. Plaintiff is ordered to provide responses to Special Interrogatories Nos. 30 through 44 within 30 days. Moving party to give notice. Dept. F43 Date: 8-21-24 Case #21STCV36657, Larry Carlon, et al. vs. Estate of Jonathan Patrick Tatone, et al. Trial Date: 4-28-25 MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES MOVING PARTY: Defendant County of Los Angeles RESPONDING PARTY: Plaintiff Bonnie Carlon RELIEF REQUESTED Plaintiffs Further Responses to Defendants Special Interrogatories RULING: Motion is granted. SUMMARY OF ACTION AND ANALYSIS On October 5, 2021, Plaintiff Bonnie Carlon (Plaintiff) filed this wrongful death case against Defendant County of Los Angeles (Defendant). Defendant propounded discovery on Plaintiff, including special interrogatories and requests for production of documents. Because Plaintiff is the mother of the adult decedent who is the subject of the wrongful death action, Defendant seeks information as to whether Plaintiff was financially dependent upon the decedent. Plaintiff served responses to Defendants special interrogatories and requests for production on March 6, 2024. This motion concerns the special interrogatories. Plaintiff objected to and refused to respond to Defendants Special Interrogatories Nos. 30 through 44. The parties engaged in substantial meet and confer efforts in order to resolve the issues present. They were unsuccessful, so Defendant filed this motion on July 23, 2024. Special Interrogatories 30 through 44 seek information related to Plaintiffs bank accounts, investment accounts, retirement accounts, retirement-related payments, sources of financial gain (on or after January 1, 2016, until June 1, 2021), and real property, as well as the balances and values of those accounts and property as of June 1, 2021. Defendant argues that the information it seeks through the special interrogatories is highly relevant. Defendant also argues that Plaintiff must provide full responses, as the right to privacy does not justify Plaintiffs failure to respond and the special interrogatories are not overly broad. Plaintiff argues in her opposition that the special interrogatories do not seek highly relevant information and that the right to privacy justifies his objections. She also argues that the interrogatories are overbroad. Defendants reply reasserts the arguments made in its motion. ANALYSIS A party may obtain discovery related to any matter, not privileged, that is relevant to the litigation, provided the matter is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) When a responding partys objections and responses to interrogatories are without merit and/or too general, a party may move to compel further responses for good cause. (CCP § 2030.300.) The good cause requirement is met by a showing of relevance. (TBG Ins. Servs. Corp. v. Superior Court (2022) 96 Cal.App.4th 443, 448.) Relevance in this context is broad. (Id.) Evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. (Id.) Under the Legislatures very liberal and flexible standard of relevancy, any doubts as to relevance should generally be resolved in favor of permitting discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 542 (quoting Pac. Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173).) Courts presume all relevant nonprivileged evidence in a partys possession is discoverable. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Relevance of the Special Interrogatories Defendant argues that the disputed special interrogatories are relevant because they seek information that it argues is necessary in determining whether Plaintiff was financially dependent on the decedent. That is a requirement for a wrongful death action pursuant to CCP § 377.60. Plaintiff argues that the information sought by Defendant is not relevant because Defendant seeks details about owned businesses, income, investments, properties owned, and loans made by the decedent to his parents. Plaintiff argues that this information is not determinative of whether Plaintiff had some expectancy to have some financial dependence on her son for the necessities in life. Plaintiff further argues that the focus should be on the support provided by the decedent to his mother, the Plaintiff, rather than the overall financial status of Plaintiff. Next, Plaintiff argues that the actions by the decedent right before his death evidence a commitment to provide for both his parents for the necessities of life, due to his parents age and medical complications. Defendant argues in its reply that the information it seeks is highly relevant because [P]arents cannot be considered dependent for purposes of the wrongful death statute unless they were actually dependent, to some extent, upon the decedent for the necessaries of life. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 189 (citation omitted).) Plaintiff brought her wrongful death claim based on her assertion that she was financially dependent on the decedent. Therefore, information concerning Plaintiffs financial accounts and the amount of money in those accounts is highly relevant to the lawsuit. It is not enough for her to say that she was financially dependent on the decedent; she needs to demonstrate it through evidence of her own financial condition at that time. Right of Privacy The constitutional right of privacy is not absolute. (Hill v. Natl Collegiate Athletic Assn (1994) 7 Cal.4th 1, 38; see John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199 (a partys privacy interests may have to give way to [the] opponents right to a fair trial (citation omitted))). A party who asserts a right to privacy must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circ*mstances; and (3) conduct by defendant constituting a serious invasion of privacy. (Hill, 7 Cal.4th at 35-37.) However, even if the threshold Hill requirements are established, a court must then balance the right of privacy against the need for disclosure. (Id.) Courts . . . place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion . . .. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) Courts allow discovery into a partys finances where the finances are relevant to the case. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 91-92 (financial information that goes to the cause of action at issue is generally discoverable).) In this case, Plaintiffs financial information is directly relevant to the case. Any privacy interests that Plaintiff might have in that information is overcome by the need for disclosure. Additionally, there is already a protective order in place in this case, so any doubts about the privacy of the information may be resolved by the protective order. Breadth of the Interrogatories Plaintiff argues that the special interrogatories are overbroad because they seek financial information spanning from January 1, 2016, through June 1, 2021. However, only Special Interrogatories Nos. 39 and 40 deal with this longer time period, and those interrogatories seek sources of financial gain over that time period. The rest of the interrogatories only seek information on accounts and real property as of June 1, 2021. These requests are not overbroad, as they deal with a specific relevant time period or a specific date in time. Conclusion Based on the foregoing, the Court finds that Defendants Special Interrogatories are relevant, do not violate Plaintiffs privacy interests, and are not overly broad. ORDER Defendants motion to compel further responses to Special Interrogatories Nos. 30 through 44 is granted. Plaintiff is ordered to provide responses to Special Interrogatories Nos. 30 through 44 within 30 days. Moving party to give notice.
Ruling
JOHN E. WAI VS. FATHI SAID ET AL
Aug 19, 2024 |CGC23606031
Matter on the Discovery Calendar for Monday, Aug-19-2024, Line 6, PLAINTIFF TWO TO FOUR, LLC'S, A CALIFORNIA LIMITED LIABILITY COMPANY, Second Motion To Compel Discovery. Continued to September 13, 2024, on the court's motion. No JPT available. (D525)
Ruling
Maria Napoles, et al. vs Lewis Maiorino Ranch, Inc., et al.
Aug 20, 2024 |17CV-02223
17CV-02223 Maria Napoles, et al. v. Lewis Maiorino Ranch LLC, et al. .Petition for Compromise of Minors Disputed ClaimAppearance required. Remote appearances are permitted. Parties who wish to appearremotely must contact the clerk of the court at (209) 725-4111 to arrange for a remoteappearance. The Minor’s Compromised filed August 6, 2024, is GRANTED upon the Courtperforming a voir dire of the Guardian Ad Litem as to the compromise content and theresulting finality of case if accepted. Although the attorney fee request exceeds theCourt’s local rule and limit of 25%, based on the totality of the circ*mstances, includingthe complexity of the case and workup involved, the Court finds 33.3% to be areasonable sum and apparently the percentage agreed upon by the plaintiff in therepresentation agreement with counsel.
Ruling
SOLLARS vs. JOSEPH
Aug 16, 2024 |C23-00616
C23-00616CASE NAME: SOLLARS VS. JOSEPH*HEARING ON MINOR'S COMPROMISE RE BRANDON NEVAREZFILED BY: SOLLARS, ISELA*TENTATIVE RULING:*Petition to approve compromise of minor Brandon Nevarez’s claim is granted. Petition wasunopposed. No personal appearance is required. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: GINA DASHMAN HEARING DATE: 08/16/2024
Ruling
DANA DRABINSKY VS 4629 FULTON, LLC, ET AL.
Aug 19, 2024 |24VECV01169
Case Number: 24VECV01169 Hearing Date: August 19, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT DANA DRABINSKY, Plaintiff, vs. 4629 FULTON, LLC, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO: 24VECV01169 [TENTATIVE] ORDER RE: DEFENDANTS MOTION TO STRIKE Dept. 107 9:00 a.m. August 19, 2024 I. BACKGROUND On March 14, 2024, Plaintiff Dana Drabinsky (Plaintiff) filed a complaint against Defendants 4629 Fulton, LLC; M West Holdings, LLC; Polaris Property Management, LLC; Cushman & Wakefield, Inc; Cushman & Wakefield Global Services, Inc., Cushman & Wakefield of California, and Cushman & Wakefield U.S., Inc., and later amended the complaint to also name Pinnacle Property Management Services California Corp. (Defendants) alleging causes of action for: (1) Negligence; (2) Preemies Liability; and (3) Negligent Hiring, Supervision, Training and Retention. Plaintiffs Complaint also seeks a prayer for punitive damages. The complaint alleges that on or about May 20, 2017, Plaintiff signed a lease for an apartment owned, controlled, and/or managed by Defendants. Defendants did not inspect the apartment to make sure it was safe for occupants (which it was not). The complaint further alleges that about three days after moving in, on or about May 23, 2017, Plaintiff noticed issues with the shower in her apartment, specifically low water pressure and rusty/yellow water. Plaintiff contacted Defendants. Defendants first had the showerhead replaced but the water was still rusty/yellow. Defendants then negligently hired an unfit plumber, who cut the wall from the wet bar that backed into the shower to replace the shower valve. But Defendants plumber did not properly install the shower valve such that it was constantly leaking. Even more, Defendants plumber did not install the new valve per the Building code such that the replacement was not a single-handle valve. Lastly, Defendants plumber left a live electrified conduit very close to and/or touching the shower connections. Plaintiff further alleges that for the next two years, the shower valve was constantly leaking and causing mold to grow in Plaintiffs apartment. As a result, Plaintiff alleges she was continually being exposed to mold for two years after moving into the apartment. Plaintiff claims that on or about May 7, 2019, Plaintiff noticed the shower leak in her apartment and contacted Defendants. Instead of fixing the leak, on May 22, 2019, Defendants told Plaintiff that there was a massive water leak from her apartment; that it had spread and damaged the gym below; and that they needed access to her apartment for remediation. Plaintiff alleges that on or about May 23, 2019, Plaintiff contacted Defendants to state her concern about the mold from the water leak and the asbestos that would be spread from the remediation. On the same day, Defendants contacted Plaintiff stating that they were opening up the wall in the wet bar again to check for the leak. On or about May 27, 2019, more than 20 days after Plaintiff reported the shower leak, Defendants finally hired another plumber to fix the shower. Further, Plaintiff alleges on or about May 30, 2019, Plaintiff contacted Defendants and told them they needed to check the apartment for mold and asbestos. Defendants hired someone to take samples for mold and asbestos, but the person refused to share the results with Plaintiff. On June 6, 2019, Defendants said the testing for mold and asbestos was fine but refused to share the results with Plaintiff. Between June 6, 2019 and July 11, 2019, despite Plaintiffs repeated requests for the testing results, Defendants refused to produce it. Plaintiff also alleges that on March 24, 2022, Plaintiff suffered an electric shock as she attempted to use the shower because Defendants had recklessly electrified the shower in violation of basic safety rules. On July 12, 2024, Defendants Cushman & Wakefield, Inc. and Pinnacle California Corp. dba Pinnacle Property Management Services California Corp. filed this motion to strike. On August 6, 2024, Plaintiff filed an opposition. On August 12, 2024, Defendants filed a reply. II. LEGAL STANDARD Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) III. DISCUSSION Meet and Confer Before filing a motion to strike, moving party is required to meet and confer with the party who filed the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the motion to strike. (Code Civ. Proc., § 435.5.) The meet and confer requirements have been met. (Torrez Decl., ¶¶ 3-4.) Motion to Strike Defendants move to strike the allegations, references to, and the prayer for punitive damages, arguing that Plaintiff fails to allege any facts which would support a claim for punitive damages. To support a claim for punitive damages, a plaintiff must allege facts and circ*mstances showing conduct constituting malice, fraud or oppression.¿(Grieves v. Superior Court¿(1984) 157 Cal. App. 3d 159, 166.) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294(c)(1).) Oppressive conduct is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of a persons rights. (Code Civ. Proc. § 3294(c).)¿¿ Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as having the character of outrage frequently associated with crime. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) To prove that a defendant acted with willful and conscious disregard of the rights or safety of others, it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others. (Id. at 90). Moreover, a claim for punitive damages cannot be pleaded generally and allegations that a defendant acted "with oppression, fraud and malice" toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Rather, specific factual allegations are required to support a claim for punitive damages. (Id.) An employer shall not be liable for punitive damages based on the acts of an employee, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which damages are awarded, or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Civ. Code, § 3294, subd. (b).) As an initial matter, Plaintiff argues that Defendants Motion to Strike must be denied because the Notice fails to quote in full the portions sought to be stricken. . . . California Rules of Court 3.1322(a) provides, [a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. The notice seeks to strike the words: recklessly from paragraphs 30, 49; reckless disregard from paragraph 51; and Plaintiffs prayer for punitive damages. As such, the notice does quote the portions sought to be stricken. Next, the court agrees that the allegations do not rise to conduct constituting malice, oppression, or fraud. The complaint alleges that each time Plaintiff complained of the issues to Defendants, they came to repair the premises. Without further facts regarding the severity of the defective conditions, the Court declines to find that Defendants conduct was malicious. Plaintiff then complains of incidents of negligent repair, such as hiring workers whose work was not in compliance with the Building code, or who performed the work negligently, but those incidences only amount to negligence or at most gross negligence, which is not sufficient for punitive damages. Next, Plaintiff alleges Defendant fraudulently kept the mold results from Plaintiff. While Plaintiff does not plead in the complaint that Defendant fraudulent kept it from her (it is only pled that the person refused to share the results with Plaintiff), the court nevertheless notes that fraud must be pleaded specifically; general and conclusory allegations do not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.). This particularity requirement necessitates pleading facts which show how, where, to whom, and by what means the alleged fraud occurred. (Id.) The complaint elsewhere alleges in a conclusory fashion that Defendants conduct was fraudulent but does not set forth any specific facts to support the elements for fraud. Lastly, the complaint does not plead any facts in support of punitive damages against a corporate defendant such as Defendants, as it is silent as to whether an officer, director or managing agent of Defendants had advance knowledge of an unfit employee and employed him or her with a conscious disregard of the rights or safety of others, or authorized or ratified the wrongful conduct or were personally guilty of malice. Therefore, the motion to strike is granted. 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 court will allow Plaintiff 20 days leave to amend. IV. CONCLUSION Based on the foregoing, Defendants motion to strike is GRANTED with 20 days leave to amend. Plaintiff is ordered to give notice.
Ruling
FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)
Aug 22, 2024 |FCS057573
FCS057573Motions for ContemptTENTATIVE RULING:Petitioner’s “motions” for contempt are denied.No affidavit of the facts constituting any contempt has been presented to thecourt. The filing of a sufficient affidavit is a jurisdictional prerequisite to acontempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court(1951) 103 Cal.App.2d 512, 541.) Page 1 of 1
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