(S) ANSWER TO COMPLAINT OF BROWN FILED BY RAM S DURISETI MD , REPRESENTED BY THOMAS J. DONNELLY - Answer (Unlimited) January 04, 2016 (2024)

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IN RE: THE VANY E. LAURENTI TRUST Dated September 23, 2021 as restated May 24, 2022

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Ruling

JANE DOE 1, ET AL. VS ROE #1, AN ENTITY OF UNKNOWN FORM, ET AL.

Jul 12, 2024 |21STCV32192

Case Number: 21STCV32192 Hearing Date: July 12, 2024 Dept: D TENTATIVE RULING Calendar: 3 Date: 7/12/2024 Case No: 21 STCV32192 Trial Date: February 10, 2025 Case Name: Doe, et al. v. Roe, et al. MOTION FOR SUMMARY JUDGMENT (Or, in the Alternative, Summary Adjudication) Moving Party: Defendant Grace Communion International Responding Party: Plaintiffs Jane Doe 1 and Jane Doe 2 RELIEF REQUESTED: Order granting summary judgment in favor of defendant Grace Communion International and against plaintiffs Jane Doe 1 and Jane Doe 2. In the alternative, summary adjudication of the third, fourth, fifth, sixth and/or seventh causes of action. CAUSES OF ACTION: from First Amended Complaint 1) Sexual Abuse of a Minor v. Roe 1, Dean 2) IIED v. Dean 3) Sexual Harassment v. Grace, Dean 4) Negligence v. Grace 5) Negligent Supervision of a Minor v. Grace 6) Violation of 42 USC Section 1983 v. Grace 7) Violation of Civil Rights v. Grace 8) Negligence v. Does SUMMARY OF FACTS: Plaintiffs Jane Doe 1, currently 51 years old, and Jane Doe 2, currently 52 years old, allege that they were victims of unlawful sexual assault, abuse and other misconduct perpetrated by defendant Kevin Owen Dean while plaintiffs were students and members of defendant Grace Communion International (Grace Communion), formerly known as Worldwide Church of God. Plaintiffs allege that the abuse of Jane Doe 1 began in approximately 1983, when she was just 12 years old and continued until 1991 when she was 22 years old. The abuse of Jane Doe 2 began in approximately 1984 when she was just 14 years old and continued until 1988, when she was 18 years old. Plaintiffs allege that during the time period of 1983 through 1991, defendant Grace Communion was repeatedly contacted related to multiple reports of physical and sexual abuse of plaintiffs and other minor children entrusted into its care and was given evidence of the abuse. It is alleged that employees and agents of Grace Communion witnessed the abuse yet failed to do anything in response to it, and that defendants turned a blind eye and continued to allow defendant Dean to work at Grace Communion, and did not discipline or discharge him, thus allowing Dean to gain access to and ultimately manipulate and sexually abuse plaintiffs. The file shows that on February 7, 2022, plaintiff filed a request for dismissal without prejudice of the punitive damages claim against Grace Communion only. ANALYSIS: Procedural Third, Sixth, and Seventh Causes of Action Plaintiffs in a footnote in the opposition indicate that they: agree to dismiss the third cause of action for Sexual Harassment (Civ. Code sections 51.9 & 52), sixth cause of action for Violation of 42 U.S.C. section 1983 and seventh cause of action for Violation of Civil Rights (Civ. Code section 52.1). Thus, the operative claims against Defendant are the two negligence claims (fourth and fifth causes of action). [Opposition, p. 3, n.1]. No requests for dismissal have yet been filed with the court. The court accordingly grants the motion for summary adjudication as to those causes of action at the concession of plaintiffs in the opposition. Defendant has requested this relief in the reply. The motion is considered to the extent defendant Grace Communion seeks summary judgment or summary adjudication of the fourth cause of action for negligence and fifth cause of action for negligent supervision of a minor. Substantive Under CCP § 437c(p)(2) a defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. CCP § 437c(f)(1) provides that A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Defendant Grace Communion seeks summary judgment or summary adjudication, arguing that plaintiffs will be unable to establish one or more elements of their causes of action against moving defendant. Issue 2: Plaintiffs Fourth Cause of Action for Negligence is Meritless because Grace Lacked knowledge of Kevin Owen Deans misconduct or illicit proclivities Issue 3: Plaintiffs Fifth Cause of Action for Negligent Supervision of a Minor is Meritless because Grace lacked knowledge of Kevin Owen Deans misconduct or illicit proclivities. To establish a claim for negligence, a plaintiff must allege and prove the following elements: The existence of a duty of care, breach of that duty, and an injury proximately caused by the breach. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. With respect to negligent supervision of a minor in the school context, both sides rely on C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 in which the California Supreme Court held: Ample case authority establishes that school personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. (See, e.g., Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 14581461, 249 Cal.Rptr. 688.) If a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under section 815.2. C.A., at 865-866. The Court in C.A. held that a special relationship exists between a student and a school and its employees: In addition, a school district and its employees have a special relationship with the district's pupils, a relationship arising from the mandatory character of school attendance and the comprehensive control over students exercised by school personnel, analogous in many ways to the relationship between parents and their children. (Hoff v. Vacaville Unified School Dist., supra, 19 Cal.4th at p. 935, 80 Cal.Rptr.2d 811, 968 P.2d 522; see M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517, 1 Cal.Rptr.3d 673; Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp. 14581459, 249 Cal.Rptr. 688.) Because of this special relationship, imposing obligations beyond what each person generally owes others under Civil Code section 1714, the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. This principle has been applied in cases of employees' alleged negligence resulting in injury to a student by another student (J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123, 128129, 141148, 107 Cal.Rptr.3d 182; M.W., at pp. 514515, 517521, 1 Cal.Rptr.3d 673), injury to a student by a nonstudent (Leger, at pp. 14521453, 14581459, 249 Cal.Rptr. 688) andon facts remarkably close to the present caseinjuries to a student resulting from a teacher's sexual assault (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 18511855, 19 Cal.Rptr.2d 671). C.A., at 869-870, footnote omitted. In M.W. v. Panama Buena Vista Union School District (2003) 110 Cal.App.4th 508, the court of appeal, in concluding that a school district owed a minor student a duty to protect him from a sexual assault, explained: School districts are subject to well-established statutory duties mandating adequate supervision for the protection of the students. These affirmative duties arise from the compulsory nature of school attendance, the expectation and reliance of parents and students on schools for safe buildings and grounds, and the importance to society of the learning activity that takes place in schools. (See Rodriguez v. Inglewood Unified School Dist., supra, 186 Cal. App. 3d at p. 714.) M.W., at 524-525. Defendant Grace Communion argues here that with respect to the negligence-based causes of action, plaintiffs will be unable to establish that defendant engaged in any negligent act because defendant had no notice of the misconduct or proclivities of defendant Dean. It is held that the issue of due care (a negligent act) in a negligence case ordinarily presents a question of fact for the jury. Wahlgren v. Market Street Ry Co. (1901) 132 Cal. 656, 663; Fennessey v. Pacific Gas & Elec. Co. (1942) 20 Cal.2d 141, 144. Accordingly, defendant is entitled to a finding on summary judgment as a matter of law only if the facts of the case permit only one reasonable conclusion. Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354. The California Supreme Court has explained in connection with the negligence of a school, [T he issues of whether or not the school acted negligently in failing to provide adequate supervision, and if so, whether the students injuries were proximately caused by such negligence, [fall] within the province of the jury. Hoyem v. Manhattan Beach City School Dist. (1978) 22 Cal.3d 508, 513. Defendant argues that a school is not liable for the sexual abuse of a minor unless it had actual or reasonably foreseeable notice of the abuse, and that multiple instances of inoffensive and harmless behavior do not equate to foreseeable sexual misconduct. Defendant relies primarily on John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 and Steven F. v. Anaheim Union High School Dist. (2003) 112 Cal.App.4th 904. Defendant relies on a footnote in the John R. case in which the California Supreme Court noted: We must also observe that the [concurring and dissenting] opinion seems to reflect an unduly pessimistic view of human nature, for, if we read the opinion correctly, it seems to suggest that sexual misconduct is foreseeable any time a minor and an adult are alone in a room together, at least if not constrained by the possibility of being interrupted. (See conc. and dis. opn., post, p. 465.) Given the facts of this case and the benefit of hindsight, all would have to agree that the prospect of such misconduct is conceivable, but that is a far cry from foreseeability, even under the broad meaning that concept is given in the respondeat superior context. John R., at 450, n. 9. This portion of the footnote was directed to the theory of respondent superior liability for the sexual assault itself. The actual holding in the John R. case was that a theory of liability on the school district for alleged sexual abuse of a student by a teacher based on vicarious liability based on respondeat superior based on the facts in the case before it was questionable. However, the Court expressly held that plaintiffs were free to pursue&their claims against the district premised on its own direct negligence in hiring and supervising the teacher. John R., at 453. The first paragraph of the above quoted footnote in fact emphasized that the majority took issue with the analysis offered which appeared to improperly call for the Court to prejudge plaintiffs direct claims against the district for its own negligence. [Id.]. There is no dispute that the theories pursued in the subject causes of action are claims based on the direct negligence of defendant. The footnote accordingly has no bearing on the direct negligence claims alleged here. In addition, as pointed out in the opposition, in the more recent case of Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, the Second District, in considering direct negligence claims against a school district with respect to the alleged sexual assault of a 13 year old student by a school music instructor, reversed the trial courts granting of summary adjudication on the students negligence causes of action, holding: We conclude, consistent with California negligence law, that school administrators have a duty to protect students from sexual abuse by school employees, even if the school does not have actual knowledge of a particular employee's history of committing, or propensity to commit, such abuse. Lawndale, at 119. The Second District in Lawndale rejected an argument by the school district based on the same footnote in John R. that it is not foreseeable that school employees will sexually abuse students, and directly addressed the current application of that footnote under current law: The District also contends it is not foreseeable school employees will sexually abuse students. According to the District, sexual abuse is so unforeseeable that it is outside the course and scope of everyone's employment as a matter of law. But a school district is not like every employer. As the court recognized in United States Youth Soccer, supra, 8 Cal.App.5th 1118, 214 Cal.Rptr.3d 552, sexual abuse by members of an organization that provide[s] activities exclusively for childrenlike an elementary school districtis reasonably foreseeable, even where the organization had no knowledge that [the employee] had previously sexually or physically abused anyone or had a propensity to do so. (Id. at pp. 1132, 1135, 214 Cal.Rptr.3d 552; see Archbishop, supra, 70 Cal.App.5th at pp. 676-677, 285 Cal.Rptr.3d 613; Brown v. USA Taekwondo, supra, 40 Cal.App.5th at pp. 1097-1098, 253 Cal.Rptr.3d 708; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 404, 97 Cal.Rptr.2d 12 (Juarez), disapproved on another ground in Brown, supra, 11 Cal.5th at p. 222, fn. 9, 276 Cal.Rptr.3d 434, 483 P.3d 159.) The District relies primarily on John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438 [256 Cal. Rptr. 766, 769 P.2d 948] (lead opn.). In that case the Supreme Court held a school district was not vicariously liable for a teacher's sexual molestation of a student under respondeat superior. (Id. at p. 441, 256 Cal.Rptr. 766, 769 P.2d 948.) The lead opinion, joined by one other justice, included a footnote stating it was unduly pessimistic ... to suggest that sexual misconduct is foreseeable any time a minor and an adult are alone in a room together .... (Id. at p. 450, fn. 9, 256 Cal.Rptr. 766, 769 P.2d 948.) But the issue here is not whether it is foreseeable a particular adult will sexually abuse a student if left alone with the student. As the court recognized in United States Youth Soccer, and as subsequent cases confirmed, the issue is whether it is reasonably foreseeable that organizations or entities that provide services primarily or exclusively for children have employees who may sexually abuse a child if the organization fails to take reasonable measures to prevent the abuse. In any event, to the extent John R. suggests sexual abuse of students by school employees is not reasonably foreseeable, it is inconsistent with the Supreme Court's more recent holding in Hart that school personnel owe students a duty to take reasonable measures to protect them from foreseeable injury, including injuries to a student resulting from a teacher's sexual assault. (Hart, supra, 53 Cal.4th at p. 871, 138 Cal.Rptr.3d 1, 270 P.3d 699.) Lawndale, at 132 Lawndale relied on Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, in which the court of appeal found that an organization such as the Youth Soccer Association had a duty to one of its players in connection with sexual abuse by a coach, even where defendants had no knowledge that [the coach] had previously sexually or physically abused anyone or had a propensity to do so. United States Youth Soccer, at 1132. With respect to Steven F., defendant relies on a list of several specific instances in Steven F, which were held insufficient to provide a school with knowledge of a teachers sexual relationship with a student, but, again this case is not applicable here because, as pointed out in the opposition, Steven F. involved an analysis of the scope of a school districts duty owed to the relatives of a student who had been sexually abused at school. The students claims against the district had been settled. The Court held that the students parents could not recover under a theory of negligent infliction of emotional distress, applying an NIED liability analysis which required that there be outrageous conduct on the part of defendants, and finding that in that case, the other teachers failure to report their colleagues spending too much time in the company of a particular student was not sufficiently outrageous. The instant case is not a negligent infliction of emotional distress claim brought by relatives, but a direct action by the students, and no outrageous conduct on the part of defendant is required. The school district in Lawndale cited the passage in Steven F. in support of an argument that the standard of care required actual notice of sexual abuse, as defendant argues here. The court of appeal in Lawndale rejected the argument, explaining: This language from the 2003 Court of Appeal opinion in Steven F. no longer reflects California law. Imposing liability on school administrators who fail to take reasonable measures to identify and respond to potential sexual abuse of students does not lead to the parade of horribles conjured by the court in Steven F. The language cited by the District is also inconsistent with the Supreme Court's 2012 decision in Hart, which weighed the consequences of imposing liability on school districts and held school administrators may be liable for their negligent supervision of employees that results in sexual abuse. (Hart, supra, 53 Cal.4th at p. 879, 138 Cal.Rptr.3d 1, 270 P.3d 699.) Lawndale, at 136-137. The court of appeal in Lawndale also addressed the language defendant quotes from Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 720, that vicarious liability is precluded based solely on knowledge of conduct by the employee which is ambiguous in regard to his commission of such an offense. The Santillan case addressed what evidence was necessary to revive the statute of limitations on childhood sex abuse cases under former CCP section 340.1, which permitted victims to bring an action where an institution knew or had reason to know that the perpetrator had engaged in past unlawful sexual conduct, which it had been recognized by the lower court imposes more stringent demands on constructive knowledge than the concept of foreseeability normally applicable to negligence claims. Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 542. The Lawndale court of appeal explained that Santillans holding was limited to a defendants notice for purposes of extending the limitations period under the statute. Lawndale, at 130. The standard to be applied is then not whether defendant had actual knowledge of any misconduct or propensity of its employee Dean, but whether the organization failed to take reasonable measures to prevent the abuse, in effect, failed to take reasonable measures to identify and respond to potential sexual abuse of students from foreseeable sources. Lawndale, at 132, 136; C.A. v. William Hart Union High School Dist. (2012) 53 Cal. 4th 861, 871. Defendant has in its legal argument relied on standards which are inapplicable to the analysis here to the extent they require actual knowledge, when, as discussed above, there is no such requirement here. The issues for summary adjudication are noticed and expressly stated as that the negligence and negligent supervision causes of action are meritless because Grace lacked knowledge of Kevin Owen Deans misconduct or illicit proclivities. This notice suggests that an actual knowledge standard is being applied, which would not defeat the element of a negligent act or omission which could be established by other means, and summary adjudication of the entire causes of action would not be appropriate. Defendant in the reply does attempt to argue that the more recent case law cited by plaintiffs does not in fact govern the analysis here but concedes that under C.A. (referred to in some case authorities as Hart), the law imposes a duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties acting negligently or intentionally. C.A., at 870. In any case, foreseeability is recognized as being broad in this context involving services for children in a school setting, as well as a church and recreational camp setting, and is not directly addressed in the moving papers. Defendants motion on these issues accordingly arguably fails to meet defendants initial burden on these issues, and the motion on these issues could be denied on this ground alone. Even had the burden shifted to plaintiffs to raise triable issues of material fact with respect to whether sexual misconduct on the part of Dean was foreseeable, plaintiffs have submitted evidence which raises triable issues. As noted above, the issue of whether a breach of duty has occurred in this context is ordinarily a question of fact. Hoyem v. Manhattan Beach School Dist. (1978) 22 Cal.3d 508, 513 First, although defendant argues that Grace Communion had sexual abuse reporting training and programs, plaintiffs have submitted evidence raising some question whether such programs were in fact in place, including evidence that employees did not receive such training, and such programs and sufficient policies did not exist. [UMF No. 29, 30, 33,35 and evidence cited, Ex. 16, Williams Decl., para. 12; Ex. 17, Dailey Decl., para. 12, Ex. 18, Helge Decl., para. 7, Ex. 19, Feazell Decl., para. 11; Additional Facts Nos. 57-63, and evidence cited]. Specifically, the former principal of the high school at the time, John Locke, testified at deposition that he does not recall ever receiving any training related to suspected sexual abuse of students from either the church or the Imperial Schools, and does not recall himself providing any sort of information or training to his staff, teachers, or employees. [Shukry Decl., Ex. 8, Locke Depo., pp. 39-41]. Locke also does not recall receiving anything from the legal department or from the church on the topic. [Locke Depo, p. 41]. School personnel, including then legal secretary Evelyn Dailey, and then teacher, now president, Leston Greg Williams, testified in deposition that they could not recall any written policies at the time. [Additional Facts No. 62, and evidence cited, Shukry Decl., Ex. 7, Dailey Depo. 48-49; Shukry Decl., Ex. 10, Williams Depo., pp. 66-67]. In addition, although defendant has submitted a declaration of Ralph Helge, general legal counsel for the Grace Church organization at the time, stating that at no time prior to or during Deans employment with Imperial schools did he receive any complaints, reports, or other information suggesting Dean had sexually abused or was sexually inappropriate with a minor, plaintiffs have submitted deposition testimony in which Doe 1 testifies that she attended a meeting with the lawyer for the church, the declarant Ralph Helge, and her parents, in which the lawyer Helge made it clear he was aware of the sexual abuse of Doe 1 by Dean, but told plaintiffs father that it would be very damaging to the fathers reputation if the relationship became public. [Helge Decl., para. 8; Response to UMF No. 32, and evidence cited, Additional Facts Nos. 12, 64-65, and evidence cited; Shukry Decl., Ex. 1, Doe 1 Depo., pp. 61-64, 83, 84, 88-91]. Several witnesses for defendant submit declarations indicating that records were reviewed and there were no complaints whatsoever in the records reflecting that Superintendent Dean posed a risk of danger to minor children, suggesting known misconduct which had become known to Helge was not reported or recorded. [UMF Nos. 37, 38, and evidence cited, Ex. 16, Williams Decl., para. 11; Ex. 17, Dailey Decl., paras. 10, 11; Ex. 19, Feazell Decl., para. 12]. This circ*mstance raises triable issues of material fact with respect to whether Helge had actual knowledge of the improper relationship between Dean and a student, and deliberately did nothing about it and did not document it according to his own reported policies and training practices or was actively engaged in covering up the information. Finally, plaintiffs have submitted evidence which a trier of fact could reasonably find supports a conclusion that school, church and camp administrators should have known, or a reasonable investigation of conduct should have resulted in, discovery of defendants misconduct. Specifically, plaintiffs submit evidence that Dean would do drugs with and provide alcohol to groups of students on multiple occasions, on school property, in his home, which was a church owned property, and at camp, and that drug and alcohol use occurred in the presence of another Imperial teacher and sports coach, Greg Rothwell, who plaintiff and other students believed was also aware of the closeness between Dean and Doe 1. [Additional Facts Nos. 28, 29, and evidence cited, Doe 1 Depo. pp. 44-49]. Plaintiffs also submit deposition testimony of a student at the time, Lisa Davis, who testifies that she was called into the school office and asked about the parties by Principal Locke and Vice Principal Cote, including whether there had been alcohol use, and when Davis could offer no information, Principal Locke would tell us not to have this conversation with anyone, and one student would have to go get the next one. [Response to UMF No. 36, and evidence cited, Additional Facts 33, 53-55, and evidence cited, Shukry Decl., Ex. 2, Davis Depo. I, pp. 34; Shukry Decl., Ex. 3, Davis Depo. II, pp. 92-102; Shukry Decl., Ex. 6, Davis Depo. III, 31-33]. As plaintiffs argue, this evidence gives rise to a reasonable inference that Deans misconduct, occurring repeatedly, was suspected by the principal and vice principal, known to at least one other teacher, and should have been further investigated and viewed with suspicion as creating an atmosphere of danger for students, and for abuse. Plaintiffs also submit evidence that Deans wife, Carole Dean, a teacher at the Imperial elementary school, witnessed Dean kissing plaintiff Doe 1 in their home. [Additional Facts 8, 24, and evidence cited, Doe 1 Depo., pp. 150]. Evidence is also submitted that camp employees personally assisted in delivering plaintiff Doe 1 to spend time alone with Dean after lights out at camp. [Additional Facts Nos. 35-37, 50, and evidence cited, Doe Depo., p 258-261]. Plaintiffs submit evidence that fellow students were aware of the relationship, observing the physical closeness between the two, particularly in speech class, hearing rumors of the relationship, and overhearing daily telephone calls from plaintiff Doe 1 to Superintendent Dean, in which she laughed and giggled, and was smiley and flirty when she was on the phone. [Response to UMF No. 36, and evidence cited, Additional Facts Nos. 27, 31, 32, 34, and evidence cited, Davis Depo., I pp. 31, 32, 39-41; Davis Depo. II, pp. 86-91, 179-185, Davis Depo III, p. 103]. The Second District in Lawndale, in fact, noted as troublesome the instructors frequent physical interactions with plaintiff student on campus in the presence of otherswhich the other middle school students described as flirting. Lawndale, at 131. The evidence is sufficient to support a reasonable conclusion that ineffective supervision was occurring, despite the special relationship between the school and church and its students, and that there was sufficiently concerning conduct occurring by Dean in connection with students which warranted investigation. As argued in the opposition, at the very least, the drug and alcohol being provided at parties by Superintendent Dean should have led to an investigation which could have uncovered his other improper conduct or resulted in discipline and possible removal from further contact with his alleged sexual abuse victims. Triable issues of material fact remain, and the motion on these issues is denied. RULING: Grace Communion Internationals Motion for Summary Judgment or, in the Alternative, Summary Adjudication: Motion for Summary Judgment is DENIED. Motion for Summary Adjudication: Motion is GRANTED as to the third cause of action for sexual harassment, sixth cause of action for civil rights violation under 42. U.S.C. section 1983, and seventh cause of action for civil rights violation under Civil Code section 52.1 (Issues 1, 4 and 5) based on plaintiffs concession in the opposition that these causes of action, specifically, the third cause of action for Sexual Harassment (Civ. Code sections 51.9 & 52), sixth cause of action for Violation of 42 U.S.C. section 1983, and seventh cause of action for Violation of Civil Rights (Civ. Code section 52.1), should be dismissed as to moving defendant, with the only operative claims remaining against this defendant being the two negligence claims (fourth and fifth causes of action). [See, Opposition, p. 3, n.1]. Issue 2: Plaintiffs Fourth Cause of Action for Negligence is Meritless because Grace Lacked knowledge of Kevin Owen Deans misconduct or illicit proclivities Issue 3: Plaintiffs Fifth Cause of Action for Negligent Supervision of a Minor is Meritless because Grace lacked knowledge of Kevin Owen Deans misconduct or illicit proclivities. Motion is DENIED. Defendant has failed to effectively establish that actual knowledge is legally required to support a direct negligent or negligent supervision claim in this context under current legal authority. In addition, plaintiffs have raised triable issues of material fact with respect to whether defendant Grace Communion International in fact obtained actual knowledge of the alleged sexual abuse but failed to appropriately address it. [UMF Nos. 37, 38, Response to UMF No. 32, and evidence cited, Additional Facts Nos. 12, 64-65, and evidence cited, Shukry Decl., Ex. 1, Doe 1 Depo., pp. 61-64, 83, 84, 88-91; Helge Decl., para. 8, Ex. 16, Williams Decl., para. 11; Ex. 17, Dailey Decl., paras. 10, 11; Ex. 19, Feazell Decl., para. 12]. Triable issues have also been raised with respect to the existence of or sufficiency of any sexual abuse reporting and prevention training and policies. [Additional Facts Nos. 57-63, and evidence cited; Shukry Decl., Ex. 8, Locke Depo., pp. 39-41; Shukry Decl., Ex. 7, Dailey Depo. 48-49; Shukry Decl., Ex. 10, Williams Depo., pp. 66-67]. Plaintiffs have also submitted evidence which supports a reasonable inference that administrators were aware of misconduct with students on the part of Superintendent Dean but failed to appropriately investigate. [Response to UMF No. 36, Additional Facts 33, 53-55, and evidence cited, Shukry Decl., Ex. 2, Davis Depo. I, pp. 34; Shoukry Decl., Ex. 3, Davis Depo. II, pp. 92-102; Shukry Decl., Ex. 6, Davis Depo. III, 31-33]. There is also evidence that at least two teachers, and multiple camp employees, were aware Dean was in an improper relationship with a student, and circ*mstances were such that other students were aware of the situation, but defendant failed to take reasonable measures to identify and respond to potential sexual abuse of students. [Response to UMF No. 36, and evidence cited, Additional Facts Nos. 8, 24, 27, 28, 29, 31, 32, 34-37, 50, and evidence cited, Doe 1 Depo. pp. 44-49, 150, 258-261, Davis Depo., I pp. 31, 32, 39-41; Davis Depo. II, pp. 86-91, 179-185, Davis Depo III, p. 103]. UNOPPOSED Request for Judicial Notice in Support of Grace Communion Internationals Motion for Summary Judgment or, in the Alternative, Summary Adjudication is GRANTED. Plaintiffs Objections to Defendants Declarations in Support of Plaintiffs Opposition to Motion for Summary Judgment or, in the Alternative, Summary Adjudication: Objection No. 1 is SUSTAINED as to the statement beginning By March 1986 through any complaints of sexual misconduct involving Dean. Objection is otherwise OVERRULED. Objection No. 9 is SUSTAINED. Remaining Objections are OVERRULED. Defendants Objections to Plaintiffs Evidence in Support of Opposition to Motion for Summary Judgment: Objections Nos. 1-235 and Objections to Additional Material Facts, Objections1-56 are OVERRULED. The Court does not consider statements in a Separate Statement evidence. DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE AUDIO OR VIDEO APPEARANCES Please make arrangement in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect offers free audio and video appearances. However, ADVANCE REGISTRATION IS REQUIRED. If no appearance is set up through LACourtConnect, or no appearance is otherwise made, then the Court will assume the parties are submitting on the tentative.

Ruling

Jane Doe vs Doe 1 - School et al.

Jul 09, 2024 |STK-CV-UNPI-2022-0010913

TENTATIVE RULING NOTICE Tentative rulings for Law and Motion will be posted electronically by 1:30 p.m. the day before the hearing. Any party wishing to contest or argue the tentative ruling must email the court at civilcourtclerks@sjcourts.org. that they intend to appear remotely no later than 4:00 PM on the day before the scheduled hearing. The Department and Case Number must be in the header of the email. The email must include the Department, Case number, Case Name, Motion, party’s name and email, date and time of the hearing, issues they plan to argue, and that they have informed the opposing party. The party must also notify affected counsel, or unrepresented parties, that they intend to appear, no later than 4:00 PM on the day before the scheduled hearing. Unless the Court and opposing counsel have been notified, the tentative ruling shall become the ruling of the Court without oral argument. To attend the remote hearing with Judge Kronlund in Dept. 10-D: Call into (209) 992-5590, then follow the prompts and use the Bridge # and Pin # as follows: Bridge # 6940 Pin # 3782 Court is issuing one tentative ruling for both motions on calendar this date Tentative Rulings Defendant TUSD's motion to stay action is Denied, without prejudice. A court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141.) The power to stay proceedings is incidental to the power inherent in every court to control the disposition of the cause on its docket with the economy of time and effort for itself, for counsel and for litigants. (Ibid.) Trial courts generally have inherent power to stay proceedings in the interest of justice and to promote judicial efficiency. (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489; see also Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-79; Code Civ. Proc. §§ 128(a)(3) ["Every court shall have the power to do all of the following: To provide for the orderly conduct of proceedings before it, or its officers."] and (a)(5) ["Every court shall have the power to do all of the following: To control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto."]. Both parties acknowledge this Court’s discretion in considering this Motion. However, the parties differ about the applicable standards that should govern this discretion. This case was filed in November of 2022, and we have only had one CMC so far, and Defendant TUSD is only now filing an answer. The Court has until November of 2027 to get this case to trial. Defendant TUSD's 2 requests for judicial notice (RFJN) are denied, except as to the fact of a Writ Petition being filed with the 6th DCA on another similar case from Monterey regarding the constitutionality of AB 218, and the filing in the 1st DCA of an appeal on the same issue in yet another case. None of the rest of the documents included in the RFJNs are relevant to this motion. Defendants object to Plaintiff's Counsel's declaration which essentially seeks judicial notice of numerous other cases' orders and filings; these are not relevant and have no precedential value in this case. Likewise, these authorities are not properly subject to judicial notice. The Court can not say that a stay in this action, of unknown duration, would serve the interests of justice or judicial efficiency or economy under all of the circ*mstances. Defendant City's motion for joinder is Granted. Barbara A. Kronlund

Ruling

Raymundo Monzon Lopez vs Eric Stine

Jul 11, 2024 |23CECG02228

Re: Raymundo Monzon Lopez v. Eric Stine, et al. Superior Court Case No. 23CECG02228Hearing Date: July 11, 2024 (Dept. 501)Motion: by Plaintiffs for Orders Compelling Defendant Eric Jeffrey Stine to Provide Initial Responses to Form Interrogatories, Set Two; Special Interrogatories, Set Two; Requests for Production of Documents, Set Two; Deeming Matters in Requests for Admissions Admitted, Set Two; and Imposing Monetary SanctionsTentative Ruling: To deny plaintiffs’ motions to compel initial responses to the second set ofdiscovery requests in their entirety, as defendant Stine has now served responses and themotion is therefore moot. To grant sanctions against defendant Eric Jeffrey Stine for theunjustifiable refusal to provide responses to the discovery requests until after the motionsto compel had been filed. Sanctions are in the amount of $1,040.00 and are to be paidwithin 20 calendar days from the date of service of the minute order by the clerk.Explanation: Defendant cites California Rules of Court, rule 3.1348(a), to argue that sanctionsare discretionary if late responses to discovery are served. They are only discretionary asto the requests for interrogatories and production. Regarding the request to deemmatters admitted, “[i]t is mandatory that the court impose a monetary sanction underChapter 7 … on the party or attorney, or both, whose failure to serve a timely responseto requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280.) Defendant’s excuse for why discovery responses were not provided sooner is nota substantial justification for their untimeliness. Defendant claims that his criminal defensecounsel advised him to not provide information to attorneys involved in the civil actionthat could adversely affect Defendant’s criminal case. This is not sufficient to excusedefendant’s untimely responses. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 6/17/2024 . (Judge’s initials) (Date)

Ruling

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS IMANI SINGLETON, ET AL.

Jul 10, 2024 |Echo Dawn Ryan |23STLC00620

Case Number: 23STLC00620 Hearing Date: July 10, 2024 Dept: 26 State Farm v. Singleton, et al.JUDGMENT ON THE PLEADINGS (Code Civ. Proc., § 438; Smiley v. Citibank (1995) 11 Cal.4th 138, 145-146) TENTATIVE RULING: Plaintiff State Farm Mutual Automobile Insurance Companys Motion for Judgment on the Pleadings against Defendant Imani Singleton is CONTINUED TO JULY 25, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY JULY 15, 2024, PLAINTIFF IS TO FILE AND SERVE A SUPPLEMENTAL DECLARATION EXPLAINING THE STATUS OF THE ACTION WITH RESPECT TO DEFENDANT THOMPSON. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED. ANALYSIS: On January 26, 2023, Plaintiff State Farm Mutual Automobile Insurance Company (Plaintiff) filed this action for automobile subrogation against Defendants Imani Singleton (Defendant Singleton) and Jahlani Thompson aka Jalhani Thompson (Defendant Thompson). Defendants filed an answer on April 10, 2023, and an amended answer on April 12, 2023. On November 6, 2023, the Court granted Plaintiffs Motion to Deem Requests for Admission Admitted and Request for Monetary Sanctions against Defendant Singleton. (Minute Order, 11/06/23.) Plaintiff filed the instant Motion for Judgment on the Pleadings against Defendant Singleton on April 12, 2024. No opposition to the Motion has been filed to date. Discussion The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.) While a statutory motion for judgment on the pleadings brought pursuant to Code of Civil Procedure section 438, et seq. must be accompanied by a meet and confer declaration, there is no such requirement for a motion for judgment on the pleadings brought pursuant to the common law. (See Code Civ. Proc., § 439 [moving party must file declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed].) Plaintiffs Motion is accompanied by a request for judicial notice of the matters deemed admitted in Plaintiffs Motion to Deem Requests for Admission, Set One, Admitted, and this Courts November 6, 2023 order deeming the Requests for Admission admitted against Defendant Singleton. The Court takes judicial notice of these facts pursuant to Cal. Evidence Code section 452, subdivision (d). (Cal. Evid. Code, § 452, subd. (d); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549) [holding that the court may take judicial notice of matters that cannot be reasonably controverted, including admissions and concessions.].) The admissions in the Request for Admissions directly contradict the general denial and affirmative defenses asserted in Defendant Singletons Answer. The admissions admit that Defendant Singleton failed to drive with reasonable care. (RJN, Exh. 2, Request for Admission No. 4.) They also admit that Defendant Singleton was the sole cause of the accident with Plaintiffs insured and as a result, Defendant Singleton caused Plaintiffs insured to incur damages. (Id. at Request for Admission Nos. 5-7.) The admissions admit that Defendant Singleton caused Plaintiff to incur damages of at least $23,086.22. (Id. at Request for Admission No. 8-9.) Finally, Defendant Singleton admits that the affirmative defenses asserted in the Answer lack merit and evidentiary support. (Id. at Request for Admission No. 10.) By this Motion, Plaintiff has demonstrated that it served Defendant Singleton with Requests for Admissions that effectively establish the truth of the allegations in the Complaint, as detailed above. The admissions establish the facts upon which Plaintiff based its Complaint and that Defendant Singleton has not alleged a defense to Plaintiffs Complaint in the Answer. However, the Motion does not address whether Plaintiff intends to further pursue this action against Defendant Thompson. The Court cannot enter judgment against Defendant Singleton while the case remains pending against Defendant Thompson. Conclusion Therefore, Plaintiff State Farm Mutual Automobile Insurance Companys Motion for Judgment on the Pleadings against Defendant Imani Singleton is CONTINUED TO JULY 25, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. BY JULY 15, 2024, PLAINTIFF IS TO FILE AND SERVE A SUPPLEMENTAL DECLARATION EXPLAINING THE STATUS OF THE ACTION WITH RESPECT TO DEFENDANT THOMPSON. FAILURE TO DO SO MAY RESULT IN THE MOTION BEING DENIED. Moving party to give notice.

Ruling

ALMA NIEVA-PEREZ VS EHUD LEVY, ET AL.

Jul 09, 2024 |23STCV02627

Case Number: 23STCV02627 Hearing Date: July 9, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: July 9, 2024 CASE NUMBER: 23STCV02627 MOTIONS: Motion for Leave to Take Physical Examination of Plaintiff in Specialty of Neuro-Ophthalmology MOVING PARTY: Defendants Ehud Levy, 1621 Westerly Terrace, LLC and Alexander Henry Levin OPPOSING PARTY: Plaintiff Alma Nieva-Perez MOTION On February 7, 2023, Plaintiff Alma Nieva-Perez (Plaintiff) filed this action after allegedly falling off an external staircase. Defendants Ehud Levy, 1621 Westerly Terrace, LLC, and Alexander Henry Levin (Defendants) now move for leave to take a physical examination of Plaintiff with Alfredo A. Sadun, M.D., Ph.D, a specialist in neuro-ophthalmology. Plaintiff opposes and Defendants repy. LEGAL STANDARD In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee. (Code Civ. Proc., § 2032.220, subd. (a).)¿¿¿ If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Civ. Proc., § 2032.310, subds. (a)-(b).) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. (Code Civ. Proc., § 2032.320, subd. (a); see also Sporich v. Superior Court (2000) 77 Cal.App.4th 422, 427 [the good cause which must be shown should be such that will satisfy an impartial tribunal that the request may be granted without abuse of the inherent rights of the adversary].) A showing of good cause generally requires that the party produce specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 840.) And [a] party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy. (Id. at p. 839.) The examination will be limited to whatever condition is in controversy in the action.¿ (Code Civ. Proc. §2032.020(a).)¿ This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.¿ (Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.)¿ Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.¿ (See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.)¿ Discovery responses can also frame the issues regarding the injuries and damages alleged.¿¿ MEET AND CONFER The Declaration of Christopher Babadjanian, Defendants counsel, states the following: On March 1, 2024, I caused to be sent to plaintiffs counsel a meet and confer correspondence requesting their consent to an ophthalmology examination of plaintiff with Dr. Sadun. On March 6, 2024, I followed-up that correspondence by sending an email, again requesting plaintiff consent to the examination to avoid motion practice. I did not receive any response to the above correspondence. (Babadjanian Decl. ¶ 911.) DISCUSSION Plaintiff claims visual impairment problems, including blurry vision and light sensitivity, that are ongoing. (Babadjanian Decl. ¶ 6, Exh. B, FROG #6.2.) In May 2024, Plaintiff attended a defense physical examination with Dr. Millstein, an orthopedist. However, Defendants contend that Dr. Millstein is not an ophthalmologist and therefore was unable to examine issues related to Plaintiffs vision. As a result, they seek Dr. Sadun, a board-certified ophthalmologist, to perform a neuro-ophthalmology examination. In opposition, Plaintiff argues that besides orthopedic injuries, she is alleging a traumatic brain injury. She asserts the vision issues stem from the brain trauma, and not from an ocular injury. As a result, Plaintiff asserts that while a neurological exam is justified, an ophthalmology examination is not.[1] However, Plaintiff does not dispute the vision issues or contends the examination will be painful or intrusive. In reply, Defendants argue that they have a right to investigate the causes of Plaintiffs injuries and not rely on Plaintiffs assertion on what caused the vision issues. Defendants motion also sets forth the time, place, manner, conditions, scope, and nature of the examination, setting the examination for July 26, 2024 at 10:00 a.m., at 800 S. Fairmount Ave., Suite 215, Pasadena, CA 91105. Therefore, based on the information provided, the Court finds good cause to allow leave for a neuro-ophthalmology examination. CONCLUSION AND ORDER Accordingly, Defendants Motion for leave to conduct a neuro-ophthalmology examination of Plaintiff is GRANTED. Defendants shall provide notice of the Courts order and file a proof of service of such. [1] The Court notes that Defendants have also filed a motion for leave to conduct a neurological examination of Plaintiff, set for July 11, 2024. Plaintiff does not oppose this motion. (Opp., 4.) In light of the non-opposition, the Court expects the parties to meet and confer and for Defendant to cancel the hearing reservation for that motion.

Ruling

ARMEN BEGOYAN VS CITY OF LOS ANGELES, ET AL.

Jul 11, 2024 |21STCV34525

Case Number: 21STCV34525 Hearing Date: July 11, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: July 11, 2024 CASE NUMBER: 21STCV34525 MOTIONS: Motion for Terminating Sanctions MOVING PARTY: Defendant City of Los Angeles OPPOSING PARTY: None BACKGROUND Defendant City of Los Angeles (Defendant) moves for terminating sanctions against Plaintiff Armen Begoyan (Plaintiff) for failure to comply with the Courts April 26, 2024 discovery order. Defendant seeks to dismiss the entire action. No opposition has been filed. LEGAL STANDARD To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).) Failing to respond or to submit to an authorized method of discovery, or disobeying a court order to provide discovery, constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).) The trial court may order a terminating sanction for discovery abuse after considering the totality of the circ*mstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) Generally, [a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Los Defensores, supra, 223 Cal. App. 4th at p. 390 [citation omitted].) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].) If a party . . . fails to obey an order compelling answers [to interrogatories or requests for production], the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). (Code Civ. Proc. §§ 2030.290(c); 2031.300(c).) DISCUSSION Written discovery was originally served on Plaintiff on March 1, 2023. (Kahramanian Decl. ¶ 2.) On September 21, 2023 and January 11, 2024, Defendants counsel emailed Plaintiffs counsel requesting responses but received no response. (Id. ¶ 3.) On April 26, 2024, the Court granted Defendants unopposed motion to compel Plaintiffs responses to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Plaintiff was ordered to provide verified responses, without objections, within 10 days. (Min. Order, 4/26/24.) The Court also imposed $700.00 in monetary sanctions against Plaintiff and his counsel of record. On May 2, 2024, Defendant filed and served electronic notice of the ruling on Plaintiffs counsel. Defendant contends that no responses have been served complying with the Courts order. (Kahramanian Decl. ¶ 4.) Plaintiff has not filed an opposition to this motion. Therefore, it appears that the discovery was first served in March 2023, and the motion to compel was granted on April 26, 2024. Throughout this time, Defendant sought to obtain responses through informal ways before ultimately obtaining an order to compel. The delay in time also demonstrates that Defendant has been prevented from mounting a defense against this case. Considering the above, the fact Plaintiff did not oppose this motion nor the previous motion to compel, and monetary sanctions have been ineffective, the Court finds Plaintiffs actions to be willful. Therefore, the motion for terminating sanctions is granted. CONCLUSION Therefore, Defendant City of Los Angeles motion for terminating sanctions is GRANTED. The only remaining defendants are Doe Defendants who have not been named or served, and therefore the Court orders the complaint dismissed in its entirety. If Defendant moves to dismiss the cross-complaint at the hearing on this motion, then the Final Status Conference and Jury Trial dates will be advanced and vacated. Defendant shall provide notice of the Courts ruling and file a proof of service of such.

Ruling

JAMES HOWARD VS PROSPER BENHAIM

Jul 09, 2024 |23CHCV00240

Case Number: 23CHCV00240 Hearing Date: July 9, 2024 Dept: F49 Dept. F49 Date: 7/9/24 Case Name: James Howard v. Prosper Benhaim Case No. 23CHCV00240 LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F49 JULY 9, 2024 MOTION FOR JUDGMENT ON THE PLEADINGS Los Angeles Superior Court Case No. 23CHCV00240 Motion filed: 2/1/24 MOVING PARTY: Defendant Prosper Benhaim (Benhaim or the Defendant) RESPONDING PARTY: None. NOTICE: OK. RELIEF REQUESTED: A judgment on Plaintiffs Complaint on the grounds that Plaintiff does not state facts sufficient to constitute a cause of action against Defendant. TENTATIVE RULING: The motion is GRANTED without LEAVE TO AMEND. BACKGROUND On January 27, 2023, Plaintiff James Howard (Howard or Plaintiff) filed a Complaint against Defendant alleging Medical Malpractice. Subsequently, on March 8, 2023, Defendant filed his Answer to the Complaint. On January 29, 2024, Department F51 Court granted Defendants unopposed motions to compel Plaintiffs responses to discovery requests, and to deem admitted his Requests for Admission, Set One, filed on November 3, 2023. (1/29/24 Minute Order). On February 1, 2024, Defendant filed the instant Motion for Judgment on the Pleadings (the Motion). No Opposition or Reply papers have been received by the Court. ANALYSIS A motion for judgment on the pleadings is the equivalent of a demurrer made after the pleadings are in. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746 [quoting Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 463].) A party may move for a judgment on the pleadings as to an entire complaint or as to a particular cause of action in a complaint. (Code Civ. Proc., §¿438, subd. (c)(2)(A).) If a defendant moves for judgment on the pleadings and argues that a complaint does not state facts sufficient to constitute a cause of action against that defendant, then the court should grant a defendants motion only if the court finds as a matter of law that the complaint fails to allege facts sufficient to constitute the cause of action. (Code Civ. Proc., §¿438, subd.(c)(1)(B)(ii); see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.) The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. OReilly (2010) 183 Cal.App.4th 316, 321.) A judgment on the pleadings attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Code Civ. Proc., § 438, subd. (d); Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) When considering a motion for judgment on the pleadings, the court should assume that all facts alleged are true and should liberally construe the alleged facts with a view to attaining substantial justice among the parties. (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232; Code Civ. Proc., § 452.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 27.) Whether a motion for judgment on the pleadings should be granted with or without leave to amend depends on whether there is a reasonable possibility that the defect can be cured by amendment& (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1402 [quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318].) When a cure is a reasonable possibility, the trial court abuses its discretion by not granting leave to amend& (Ibid.) A. Meet and Confer Requirement Code of Civil Procedure section 439, subdivision (a) provides, Before filing a statutory motion for judgment on the pleadings, the moving party must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. (Code Civ. Proc., § 439, subd. (a).) However, determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion for judgment on the pleadings. Furthermore, [t]he moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following: (A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 439, subd. (a)(3).) Here, Defendants counsel attests that on January 31, 2024, he called and spoke to Plaintiff in order to meet and confer regarding issues raised in the Motion. (Corson Decl. ¶ 7.) According to Defendants counsels declaration, during the meet and confer phone call, Plaintiff stated that he understood that Defendant would be seeking a dismissal based on matters deemed admitted, and Plaintiff indicated that he would try and get his case back in order. (Ibid.) Based on the above records, the Court determines that the requirements for meet and confer have been sufficiently met. B. Requests for Judicial Notice Defendant requests that the Court take judicial notice of the following documents: (1) This Courts January 29, 2024 Minute Order Deeming the Truth of Matters Specified in Requests for Admission Propounded on Plaintiff JAMES HOWARD Admitted (attached hereto as Exhibit A). (2) Defendant PROSPER BENHAIM, M.D.s Request For Admissions, Set No. 1, Propounded on Plaintiff JAMES HOWARD (attached hereto as Exhibit B). A court may take judicial notice of the contents of its own records. (Evid. Code, § 452, subd. (d); Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265; Foster v. Gray (1962) 203 Cal.App.2d 434, 439.) Accordingly, the Court GRANTS Defendants Request for Judicial Notice. C. Motion for Judgment on the Pleadings 1) Cause of Action Medical Malpractice A prima facie case for medical malpractice consists of (1) a duty to conform to the relevant standard of care; (2) a breach of that duty, i.e., the negligent conduct; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)¿A healthcare provider is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful healthcare providers of the same type would use in the same or similar circ*mstances. (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) Here, Defendant argues that Plaintiffs action is barred because Plaintiff was deemed to have admitted that he had no basis for his action against Defendant. Specifically, it was deemed admitted that defendant PROSPER BENHAIM, M.D., complied with the STANDARD OF CARE at all times when rendering treatment to [Plaintiff], that any action taken by defendant PROSPER BENHAIM, M.D., was not a SUBSTANTIAL FACTOR in causing any INJURY to [Plaintiff], that any action which was not taken by defendant PROSPER BENHAIM, M.D. was not a SUBSTANTIAL FACTOR in causing any INJURY to [Plaintiff], and that to a reasonable degree of medical probability [Plaintiff] have not suffered any INJURY due to a breach of the STANDARD OF CARE by defendant PROSPER BENHAIM, M.D. (RJN, Ex. A, and B.) Defendant contends that by these admissions, which demonstrate the absence of the necessary elements for the claim, Plaintiff cannot sufficiently state a cause of action for Medical Malpractice. (Mot. at pp. 4-5.) The Court agrees. The Court notes that a complaint's allegations may be disregarded when they conflict with judicially noticed discovery responses. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83.) Accordingly, a pleading valid on its face may nevertheless be subject to demurrer when judicially noticed admissions render the complaint meritless. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Here, in alignment with these established precedents, the judicial notice of the Minute Order dated January 29, 2024, deeming matters admitted by Plaintiff, is dispositive in this case. The admissions conclusively establish that Defendant did not act below the standard of care and that no act or omission by Defendant was a substantial factor in causing Plaintiffs alleged injuries. As a result, Plaintiff has failed to demonstrate the essential elements of a medical malpractice claim. Therefore, given that Plaintiff has admitted that his action against Defendant was meritless, the Court GRANTS the Motion for Judgment on the Pleadings. 2) Leave to Amend 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.) Here, Plaintiff does not submit any Opposition to the Motion or argue there is a reasonable possibility of successful amendment, failing to meet his burden. Moreover, even assuming that Plaintiffs single-page Complaint may be amended to state a cause of action, it does not overcome the judicially noticed admissions rendering a valid complaint meritless. (See Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604.) Accordingly, the Court DENIES leave to amend. CONCLUSION Defendants unopposed Motion for Judgment on the Pleadings is GRANTED WITHOUT LEAVE TO AMEND. Moving party to give notice.

Ruling

JYLA ELSA CORRAL, ET AL. VS FORD MOTOR COMPANY, A CORPORATION, ET AL.

Jul 11, 2024 |22STCV27975

Case Number: 22STCV27975 Hearing Date: July 11, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING JYLA ELSA CORRAL, et al., vs. FORD MOTOR COMPANY, et al. Case No.: 22STCV27975 Hearing Date: July 11, 2024 Defendant Westinghouse Air Brake Technologies Corporations unopposed motion for leave to file a cross-complaint against Defendants International Service Center, Inc. and Edwin Torres is granted. Defendant Westinghouse Air Brake Technologies Corporation may file the proposed cross-complaint with the Court. Defendant Westinghouse Air Brake Technologies Corporation (Wabtec) (Moving Defendant) moves unopposed for an order granting leave to file a cross-complaint (CC) against Defendants International Service Center, Inc. (ISC) and Edwin Torres (Torres) (collectively, Defendants) on the grounds that the CC arises out of the same general facts as the operative Complaint (and cross-complaints) presently on file, that no prejudice will result to the Defendants by the granting of this motion, and that the CC, which Wabtec now seeks to file, will serve to protect the interests of Wabtec should a judgment be entered against it. (Notice of Motion, pg. 1.) Procedural Background This lawsuit brought by Plaintiffs Jyla Elsa Corral, Jonaven Hess Corral, Jazlyn Leilani Corral, Jayven Cali Corral, and Jocelyn Gianna Corral, by and through their GAL Rafal Corral, (collectively, Plaintiffs) individually and as successors in interest to Heather Susy Garcia (Decedent) arises from a fatal accident on January 22, 2022, wherein Decedent fell out of a moving party bus. Plaintiffs filed their initial complaint on August 26, 2022, against Ford Motor Company (Ford), ISC, and Torres (the owner and driver of the bus) (collectively, Plaintiffs). ISC filed a cross-complaint against Wabtec on October 20, 2023, which Wabtec answered on November 20, 2023. On October 5, 2023, Plaintiffs amended their complaint to add Wabtec as a Doe defendant. On December 15, 2023, Plaintiffs moved for leave to file a First Amended Complaint (FAC), which this Court heard and granted on April 11, 2024. On July 2, 2024, this Court approved Fords applications for good faith settlement determination with Plaintiffs and Defendants Grech Motors Inc. and Edward P. Grech. Wabtec filed the instant motion on May 2, 2024. As of the date of this hearing no opposition has been filed. Motion for Leave to Amend C.C.P. §426.50 provides: A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file a cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This section shall be liberally construed to avoid forfeiture of causes of action. (C.C.P. §426.50.) California rules further provide authority to file a Cross-Complaint against a party who has filed a Complaint against the movant if the claims arise out of the same occurrences as the claims brought against it. (See C.C.P. §§428.10(a)-(b).) At any time during the course of the lawsuit, the court retains power to permit defendant to file or amend a cross-complaint to avoid forfeiture of defendants related claim. (See Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99 [stating even on eve of trial, leave to file compulsory cross-complaint mandatory absent bad faith].) CRC Rule 3.1324(a) requires that a motion to amend must: [i]nclude a copy of the proposed . . . amended pleading . . . [and] state what allegations in the previous pleading are proposed to be [deleted and/or added], if any, and where, by page, paragraph, and line number, the [deleted and/or additional] allegations are located. CRC Rule 3.1324(b) provides, as follows: [a] separate declaration must accompany the motion and must specify: (1) [t]he effect of the amendment; (2) [w]hy the amendment is necessary and proper; (3) [w]hen the facts giving rise to the amended allegations were discovered; and (4) [t]he reasons why the request for amendment was not made earlier. Wabtecs motion substantially complies with CRC Rule 3.1324(a). The motion includes a copy of the proposed CC. (Decl. of Lohman ¶6, Exh. A.) Webtecs motion substantially complies with CRC Rule 3.1324(b). Wabtec submitted a separate declaration of its counsel that specifies the effect of the amendments and explains why the amendments are necessary and proper. (Decl. of Lohman ¶2.) Wabtec asserts the amendments are necessary because it determined that there are indemnification and apportionment claims it has against Defendants ISC and Torres which arise out of the same transactions and occurrences giving rise to this case. (Decl. of Lohman ¶2.) Wabtecs counsel states when the facts giving rise of the amended allegations were discovered and why the request for amendment was not made earlier. Wabtecs counsel declares, [h]aving participated in the March 27, 2024 inspection of the subject bus and participated in discovery, Wabtec would be prejudiced should the Court not grant leave for it to file its Cross-Complaint against ISC and Torres, as it would be barred from making these claims in a separate action. (Decl. of Lohman ¶5.) Plaintiffs counsel further declares, Wabtec did not file a Cross-Complaint against ISC initially at the time that it answered its Cross-Complaint against Wabtec, albeit in good faith, while it investigated the claims asserted in this matter. For the same reasons, Wabtec also did not file a Cross-Complaint against Torres. (Decl. of Lohman ¶¶3-4.) Based on the foregoing, Wabtecs motion for leave to file its CC against ISC and Torres is granted. Conclusion Wabtecs unopposed motion for leave to file its CC against ISC and Torres is granted. Wabtec may file the proposed CC with the Court. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court

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