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FILED DALLAS COUNTY 9/28/2016 11:49:12 AM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-16-10253KENNETH PATTERSON, § IN THE DISTRICT COURT Plaintiff, § §v. § 134th JUDICIAL DISTRICT §GEICO COUNTY MUTUAL §INSURANCE COMPANY, § Defendant. § DALLAS COUNTY, TEXAS DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE COMES NOW Defendant, GEICO County Mutual Insurance Company (“GEICO”), filesthis Motion to Sever and Abate and respectfully shows the Court as follows: I. INTRODUCTION AND SUMMARY OF ARGUMENT In his Original Petition (“Petition”), Plaintiff Kenneth Patterson (“Plaintiff”) complainsthat he was injured on November 15, 2015 when Maria R. Viera-Guevara, an allegedunderinsured motorist, collided with Plaintiff in Irving, Texas. Plaintiff filed suit against GEICOalleging it failed to provide him with Underinsured Motorists (“UIM”) coverage benefits inaccordance with the GEICO insurance contract (“Policy”) insuring him at the time of theaccident and also converted him benefits. Plaintiff has also asserted extra-contractual claimsagainst GEICO for allegedly acting in bad faith and denying his claim in violation of Chapters541 and 542 of the Texas Insurance Code, section 17.50 of the Texas Business and CommerceCode as well as gross negligence in handling the claim. See Petition attached hereto as Exhibit Aat III. For the reasons sets forth below, Plaintiff’s extra-contractual and gross negligence claimsshould be severed from his breach of contract claim for UIM benefits and abated.DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 1 Texas law requires severance where a joint trial of multiple claims will create prejudice,such as when evidence is admissible on one claim (i.e., a settlement offer), but is prejudicial tothe other claim. This rule is applicable here because GEICO will be substantially prejudiced ifevidence of its offers to settle/resolve this matter are presented in the trial of Plaintiff’scontractual claim for UIM benefits. Severance is also appropriate in this matter because theissues in this case are separable, and severance will not result in juror confusion. Thus,Plaintiff’s extra-contractual and gross negligence claims should be severed from his claim forUIM benefits. And because this case is ripe for severance, abatement must necessarily follow. Texaslaw supports abatement in this case because Plaintiff’s allegations regarding claims handling(whether presented as extra-contractual or gross negligence) are wholly premature in thatPlaintiff has not yet proven, as required under well-established Texas law, that he is legallyentitled to UIM benefits from the Policy at issue. Thus, it would waste the Court’s, the jury’s,and the parties’ time and resources to conduct a trial and hear evidence on GEICO’s purportedfailures in the handling and resolution of Plaintiff’s UIM claim, when Plaintiff’s legalentitlement to UIM benefits has not yet been established. Moreover, abatement of Plaintiff’sextra-contractual and gross negligence claims will further convenience the Court and the partiesbecause it will avoid costly or intensive discovery and potential hearings on such discovery, andsave time and expense of litigating non-ripe claims handling issues altogether. For all of the reasons above, GEICO respectfully requests that this Court grant its Motionto Sever and Abate.DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 2 II. BRIEF BACKGROUND A. In his Petition, Plaintiff complains that he was injured on November 15, 2015when Maria R. Viera-Guevara, an alleged underinsured motorist, collided with Plaintiff inIrving, Texas. Plaintiff filed suit against GEICO alleging it failed to provide him with UIMcoverage benefits in accordance with the GEICO Policy insuring him at the time of the accidentand also converted him benefits. B. Plaintiff has also asserted extra-contractual claims against GEICO for allegedlyacting in bad faith and denying his claim in violation of Chapters 541 and 542 of the TexasInsurance Code and section 17.50 of the Texas Business and Commerce Code as well as a grossnegligence claim. See Petition attached hereto as Exhibit A at III. For the reasons sets forthbelow, Plaintiff’s extra-contractual claims should be severed from his breach of contract claimfor UIM benefits and abated. C. Plaintiff seeks the following elements of damages in his Petition: medical andhospital expenses, past and future lost wages, past and future physical impairment, past andfuture pain and suffering, and past and future mental anguish. See Exhibit A at IV. In addition,Plaintiff seeks attorneys’ fees, pre and post judgment interest, exemplary damages and trebledamages. See Exhibit A at V. D. On September 21, 2016, GEICO filed its Answer to Plaintiff’s Original Petition.See Exhibit B. E. GEICO’s most recent offer to Plaintiff to settle his UIM claim in the amount of$14,993.66 occurred on July 15, 2016. See Exhibit C. F. Plaintiff rejected GEICO’s offer and filed suit alleging his right to UIM benefitsDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 3under the GEICO Policy, a cause of action asserting extra-contractual claims concerningGEICO’s purported failures in the handling and payment of his UIM claim. G. In light of Plaintiff’s allegations in his Petition, GEICO’s offers1 to resolve hisUIM claim, and well-established Texas law pertaining to the recovery of UIM benefits, GEICOnow files this Motion to Sever and Abate and respectfully requests that it be granted. III. ARGUMENT AND AUTHORITIESA. This Court should grant this Motion to avoid prejudice to GEICO—especially because of GEICO’s settlement offer concerning Plaintiff’s UIM claim. The Texas Supreme Court has held that severance should be permitted to preventinjustice, when there is no fact or circ*mstance supporting a contrary conclusion, and the legalrights of the parties will not be prejudiced by the severance. See Guaranty Fed. Sav. Bank v.Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). Indeed, controlling reasons for aseverance are to “do justice, avoid prejudice and further convenience.” Id. In Liberty Nat’l Fire Ins. Co. v. Akin, the Texas Supreme Court held that an insured’sextra-contractual claims must be tried separately where there is evidence the insurer made anoffer to settle the claim on the policy. See 927 S.W.2d at 630. In fact, the presence of asettlement offer mandates severance of contractual from extra-contractual claims in order toensure a fair trial: The law is well-settled that when a plaintiff has filed breach of contract claims as well as extracontractual claims against an insurer, and a settlement offer has been made, severance and abatement are required, and a trial court abuses its discretion by denying a motion to sever and abate.1 An additional offer to settle was made in a letter dated 06/06/2016.DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 4See In re Allstate Prop. & Cas. Co., 2007 WL 1574964, *1 (Tex. App.—Fort Worth 2007, orig.proceeding) (citing Akin, 927 S.W.2d at 629, among other Texas authorities) (emphasis added).In addition, the Texas Supreme Court has recognized the need for severance of issues to prevent“potential arbitrariness” inherent in the Texas court system. See St. Paul Ins. Co. v. McPeak, 641S.W.2d 284, 289 (Tex. App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (upholding severanceof bad faith claim from workers compensation claim and concluding that claims were“fundamentally different from one another and require substantially different evidence”). Without severance in this matter, the jury will hear evidence about Plaintiff’s claimedinjuries from the November 15, 2015, accident and medical opinions on those injuries to evaluatewhether Plaintiff is legally entitled to recover UIM benefits under the Policy—whilesimultaneously evaluating whether GEICO’s conduct in handling and offering to settle his UIMclaim constituted gross negligence and violated the Texas Insurance Code and Texas Businessand Commerce Code. Plaintiff should not be permitted to infect the jury with allegations ofGEICO’s purported bad faith, while attempting at the same time to address the thresholdquestion as to whether Plaintiff’s claimed injuries, medical expenses and alleged damages legallyestablish his right to UIM benefits under the Policy. Indeed, as noted above, separation of Plaintiff’s extra-contractual claims from hiscontract claim is especially necessary in light of the settlement offers GEICO made in an effortto conclude this matter. See Exhibit C; see also In re Old American Mut. Fire Ins. Co., 2012 WL506570, *5 (Tex. App.—Corpus Christi Feb. 16, 2012, no pet.) (concluding in UIM caseinvolving settlement offer that trial court abused its discretion in denying insurer’s motion tosever and abate Plaintiff’s extra-contractual claims); In re Allstate Ins. Co., 232 S.W.3d 340,343 (Tex. App.—Tyler 2007, orig. proceeding) (concluding that in case where insurer has madeDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 5offer to settle a disputed contract claim, the trial court can reach only one decision “and that is toorder severance of the two types of claims”). Failure to sever Plaintiff’s extra-contractual andgross negligence claims from his contractual claim in the face of a settlement offer will result inmanifest injustice and prejudice to GEICO, as settlement offers are generally inadmissible. SeeTEX. R. EVID. 408. Moreover, as set out above, GEICO’s alleged improper handling of Plaintiff’s UIM claimis irrelevant to Plaintiff’s contractual dispute that the Policy affords his UIM benefits—and canonly serve to tilt the field in favor of Plaintiff to the prejudice of GEICO if evidence pertaining toGEICO’s handling and efforts to resolve Plaintiff’s UIM claim is admitted in the same trialconcerning Plaintiff’s UIM claim. This is contrary to Texas Rules of Evidence 402 and 403. SeeTEX. R. EVID. 402 (“Evidence which is not relevant is inadmissible.”); TEX. R. EVID. 403(“Although relevant, evidence may be excluded if its probative value is substantially outweighedby the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . .”). In order to avoid prejudice to GEICO, this Court should grant its request for severance.B. This Court should grant GEICO’s Motion because Plaintiff’s extra-contractual claims are separate and distinct from his contractual claim for UIM benefits. Under Texas law, any claim against a party may be severed and proceeded withseparately. See TEX. R. CIV. P. 41; see also TEX. R. CIV. P. 174(b) (“The court in furtherance ofconvenience or to avoid prejudice may order a separate trial of any claim . . . .”). Severance restswithin the trial court’s discretion and may be accomplished at any time before the case issubmitted to the jury. See TEX. R. CIV. P. 41; Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d627, 629 (Tex. 1996). Specifically, severance is appropriate when: (1) the controversy involvesmore than one cause of action; (2) the severed cause of action is one that would be the properDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 6subject of a lawsuit if independently asserted; and (3) the severed causes are not so intertwinedas to involve the same identical facts and issues. Akin, 927 S.W.2d at 629. Texas courts have determined that claims for benefits due under an insurance policy andextra-contractual claims meet the above requirements and are therefore subject to severance. SeeState Farm Mut. Auto. Ins. Co. v. Wilborn, 835 S.W.2d 260, 261 (Tex. App.—Houston [1stDist.] 1992, orig. proceeding). Such claims are separate and distinct and could each constitute adiscrete lawsuit. See id. (“Uninsured motorist claims and bad faith claims have been recognizedas separate and distinct causes of action, each of which might constitute a complete lawsuitwithin itself.”). Plaintiff’s contractual claim for UIM benefits is not so intertwined with hisextra-contractual claims as to involve the same facts and issues. With respect to Plaintiff’s claim for UIM benefits under the Policy, the sole issue iswhether he is “legally entitled to recover” the UIM benefits provided by the Policy. See ExhibitD at Part IV (page 12 of 17). Thus, any trial of that claim will only involve the issue as towhether Plaintiff has satisfied the conditions precedent of determining the tortfeasor’s liabilityand his damages with respect to the accident at issue. See Stoyer v. State Farm Mut. Auto. Ins.Co., 2009 WL 464971, **2 (N.D. Tex. Feb. 24, 2009) (mem. op.) (“[B]ecause UIM benefits turnon whether the insured is legally entitled to receive damages from a third party - the othermotorist - an insurer’s contractual duty to pay is not triggered until liability and damages aredetermined.”); Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006) (holdingthat an insurer in Texas has no contractual duty to pay UM benefits “until the insured obtains ajudgment establishing the liability and underinsured status of the other motorist.”) (referencingHenson v. Southern Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 654 (Tex. 2000)); Wellisch v.United States Auto. Ass’n, 75 S.W.3d 53, 57 (Tex. App.—San Antonio 2002, pet. denied) (“[A]nDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 7insurer is not obligated to pay UIM benefits until the insured becomes legally entitled to thosebenefits.”); see also Mid-Century Ins. Co. of Texas v. McLain, 2010 WL 851407, *2 (Tex.App.—Eastland 2010, no pet.) (“Before an insured is entitled to recover under a UIM policyprovision, the insured must establish the tortfeasor’s liability and the damages resulting from thetortfeasor’s negligence.”). On the other hand, Plaintiff’s extra-contractual and gross negligence claims relate solelyto GEICO’s alleged improper conduct in handling and offering to settle his UIM claim as set outin the Texas Insurance Code (Tex. Ins. Code Ann. §541.060, et. seq). See Exhibit A; see alsoUniversal Life Ins. Co. v. Giles, 950 S.W.2d 48, 55-56 (Tex. 1997) (recognizing allegedviolations of the Texas Insurance Code as a cognizable cause of action). Because Plaintiff’s extra-contractual and gross negligence claims are separate and distinctfrom his contractual claim for UIM benefits, and could constitute a wholly separate lawsuitbased solely on those claims, severance is proper in this case.C. This Court should grant GEICO’s Motion because Plaintiff’s extra-contractual claims hinge on whether he is legally entitled to UIM benefits under the Policy. The central issue in a bad faith claim is whether there was a delay or denial of benefitswhen liability was reasonably clear. See Giles, 950 S.W.2d at 56. Before recovering on such aclaim, however, the insured must obtain a favorable ruling that the act complained of was indeedcovered by the policy. See Akin, 927 S.W.2d at 629 (finding that insurance coverage claims andbad faith claims are by his very nature independent claims). Importantly, Texas law providesthat where there is no liability under the contract, there can be no liability for bad faith. SeeRepublic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995); see also Gates v. State FarmCounty Mut. Ins. Co., 53 S.W.3d 826, 831 (Tex. App.—Dallas 2001, no pet.) (“We hold the finalDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 8judgment in favor of State Farm on Gates’ breach of contract claims precludes, as a matter oflaw, recovery by the Gates on his bad faith claims stemming from the same accident.”). Onlyafter an insured obtains a determination that the insurer is liable on the policy can he proceed insecuring a finding that the insurer did not act in good faith. See Akin, 927 S.W.2d at 629. The threshold question in this case is whether GEICO is contractually responsible forpaying the Policy’s UIM benefits at this time. In other words, is Plaintiff “legally entitled torecover” UIM benefits? See Brainard, 216 S.W.3d at 818 (“[T]his language means the UIMinsurer is under no contractual duty to pay benefits until the insured obtains a judgmentestablishing the liability and underinsured status of the other motorist.”) (emphasis added);Henson, 17 S.W.3d at 654 (finding that until the condition precedent is met that insured is“legally entitled to recover” uninsured motorist benefits, an insurer is under no contractual dutyto pay those benefits); see also In re United Fire Lloyds, 327 S.W.3d 250, 256 (Tex. App.—SanAntonio 2010, no pet.) (holding that insurer was under no contractual duty to pay UIM benefitsuntil insured established “the liability and underinsured status of the other motorist”). Plaintiffcannot proceed on extra-contractual claims until the trier of fact first makes this determination.See Stoyer, 2009 WL 464971, *3 (abating bad faith claims pending the determination of thedefendant’s liability for the UIM damages under the policy); see also In re Am. Nat. Cnty. Mut.Ins. Co., 384 S.W.3d 429, 438 (Tex. App.–Austin 2012, no pet.) (concluding trial court abusedits discretion in failing to abate Plaintiff’s contract claim from her extra-contractual claims untilher contract claim was resolved). Therefore, a finding that GEICO is not legally responsible for UIM benefits under thePolicy would demonstrate that no duty to pay such benefits was owed. Further, if no contractualDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 9or legal obligation exists to pay Plaintiff UIM benefits under the Policy, then Plaintiff’sallegations concerning GEICO’s failures in handling his UIM claim would be moot. Severing Plaintiff’s extra-contractual claims from his threshold contract claim for UIMbenefits will allow the parties to avoid the time, expense, and resources of litigating extra-contractual claims that will likely be nullified by the initial determination concerning the UIMbenefits to which Plaintiff claims he is entitled. See In re Old American Mut. Fire Ins. Co., 2012WL 506570 at **4-5; In re United Fire Lloyds, 327 S.W.3d at 256. Also, if the Court or a jury isable to determine from the outset the amount of UIM benefits, if any, due to Plaintiff under thePolicy, then valuable judicial time and resources, which would be wasted resolving irrelevantextra-contracutal issues, will be saved. A jury should not be assembled to hear evidence on,evaluate, and make a determination concerning matters that may never arise.D. This Court should abate further proceedings and discovery on Plaintiff’s extra- contractual claims until his claim for UIM benefits is resolved because it will promote judicial economy and orderly procedure. Failure to abate the extra-contractual and gross negligence claims will force the Court,the parties, and the attorneys to exert effort, money, and resources concerning discovery about,attend hearings for, and prepare for the trial regarding claims that may become moot once theunderlying claim for UIM benefits is resolved. See In re Allstate, 232 S.W.3d at 344 (“Here, asin most cases involving severance of contractual and extracontractual claims, if theextracontractual claims are not abated, both parties will incur unnecessary discovery expenses ifthe [insured’s] breach of contract claim is decided in [the insurer’s] favor.”); see also UnitedStates Fire Ins. Co. v. Millard, 847 S.W.2d 668, 673 (Tex. App.—Houston [1st Dist.] 1993, orig.proceeding) (“Enhancing judicial economy becomes particularly important in view of theburgeoning practice of routinely alleging bad faith in cases in which insurance is involved.”). InDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 10other words, Plaintiff’s anticipated discovery on his extra-contractual claims would beimmaterial to the initial question in this case as to whether Plaintiff is legally entitled to recoverUIM benefits under the GEICO Policy. Responding to any discovery regarding claims handling, which will most likely berendered moot with the resolution of Plaintiff’s contractual claim for UIM benefits, does notpromote judicial economy or orderly procedure. It only serves to waste the Court’s, parties’, andattorneys’ time, effort, and resources. Indeed, should abatement be denied, then discoverymotions, such as motions to compel and motions for protective orders, may be presented to thisCourt in order to address Plaintiff’s discovery regarding claims handling. This Court shouldabate any discovery of or resolution on Plaintiff’s extra-contractual and gross negligence claimsuntil his claim for UIM benefits is resolved. Further, because abatement of Plaintiff’s extra-contractual and gross negligence claimspromotes judicial economy and convenience, GEICO requests that, even if the Court deniesseverance, the Court abate resolution of Plaintiff’s extra-contractual and gross negligence claims,including abating discovery on those claims, until Plaintiff’s claim for UIM benefits is resolved. WHEREFORE, GEICO respectfully requests that this Court grant its Motion to Severand Abate such that Plaintiff’s extra-contractual and gross negligence claims be severed from hiscontractual claim for UIM benefits; that all of Plaintiff’s extra-contractual and gross negligenceclaims be included within and given a separate cause number; and that Plaintiff’s extra-contractual and gross negligence claims and any related discovery be abated until such time ashis claim for UIM benefits is resolved. In the alternative, if this Court denies GEICO’s requestfor severance, GEICO requests that this Court abate resolution of Plaintiff’s extra-contractualDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 11and gross negligence claims until his contract claim for UIM benefits is resolved. GEICOrequests such other and further relief, both at law and equity, to which it may be entitled. Respectfully submitted, PERRY LAW P.C. By:/s/ Stacy Thompson Meloney Perry State Bar No. 00790424 Stacy Thompson State Bar No. 24046971 10440 North Central Expressway, Suite 600 Dallas, TX 75231 (214) 265-6201 (Telephone) (214) 265-6226 (Facsimile) mperry@mperrylaw.com sthompson@mperrylaw.com ATTORNEYS FOR DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY CERTIFICATE OF CONFERENCE Counsel for movant has attempted to discuss this motion with Plaintiff’s counsel viaemail on 09/22/2016 and 09/27/2016, however, as of the date of this filing, Plaintiff’s counselhas not responded, therefore movant submits the motion to the Court for consideration. Certified this 28th day of September 2016. /s/ Stacy Thompson Stacy ThompsonDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 12 CERTIFICATE OF SERVICE I hereby certificate that a true and correct copy of the foregoing document was served onthe following counsel on the 28th day of September 2016 in accordance with the Texas Rules ofCivil Procedure. Via Electronic Service Christian Jenkins Law Offices of Christian Jenkins, P.C. Old Town Office Plaza 1307-B West Abram, Suite 100 Arlington, Texas 76013 jenkins5@aol.com Attorney for Plaintiff /s/ Stacy Thompson Stacy Thompson00046035.DOCDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S MOTION TO SEVER AND ABATE PAGE 13EXHIBIT A FILED DALLAS COUNTY 8/22/2016 12:30:30 PM FELICIA PITRE DISTRICT CLERK DC-16-10253 David Hernandez CAUSE NO.: _ _ _ _ _ _ _ __KENNETH PATTERSON, § IN THE DISTRICT COURT OF Plaintiff, § §VS. § DALLAS COUNTY, TEXAS. §GEICO COUNTY MUTUAL INSURANCE §COMPANY, § Defendant. § JUDICIAL DISTRICT PLAINTIFF'S ORIGINAL PETITIONTO THE HONORABLE JUDGE OF SAID COURT: NOW COMES, KENNETH PATTERSON, (hereinafter referred to as "Plaintiff'), PlaintiffIn the above-numbered and styled cause, complaining of GEICO COUNTY MUTUALINSURANCE COMPANY, (hereinafter referred to as "Defendant") and files this his OriginalPetition, and for his cause of action would show to the Court and Jury as follows: I. Parties, Jurisdiction, Venue and Nature of Cause Pursuant to Tex. R. Civ. P. 190, a Level 2 discovery control plan is appropriate in this case.Plaintiff seeks only monetary relief of$l 00,000.00 to $300,000.00 or less including damages of anykind, penalties, costs, expenses, pre-judgement interest and attorney fees Plaintiff KENNETH PATTERSON is a resident of Arlington, Texas, the last four digits ofhis social security number are 5647. Defendant GEICO COUNTY MUTUAL INSURANCE COMPANY, is an insurancecompany engaged in the sale and servicing of insurance contracts to the general public in the StatePlaintifrs Original UM Petition Page Iof Texas. Service can be had on Defendant by serving its registered agent, Matthew J. Zuraw, 4201Spring Valley Road, Dallas, Texas 75244. This Court has subject matter jurisdiction over this cause of action as the amount incontroversy is in excess of the minimum jurisdictional limitations of this Court. Venue is proper in Irving, Dallas County, Texas pursuant to Section 15.002 of the TexasCivil Practice and Remedies Code as a substantial part of the events giving rise to this cause ofaction occurred in Dallas County, Texas. This claim arises out of the Defendant's bad faith refusal to comply with an uninsuredprovision in a policy of insurance it sold to the driver Plaintiff, KENNETH PATTERSON. Theuninsured provision became effective following a motor vehicle collision which occurred on oraround November 15,2015, and which resulted in injuries to Plaintiff KENNETH PATTERSON.As set forth more fully herein, Plaintiff was injured when an underinsured driver collided with thevehicle in which he was traveling. II. Factual Background Defendant issued Plaintiff a Policy of Insurance No.: 4402223822, (hereinafter referred toas "the policy") known as an automobile policy, which contained therein a clause known as an"uninsuredlunderinsured motorists coverage" provision. Such insurance policy was in full force andeffect with all premiums paid thereon at the time, on November 15, 2015 (hereinafter referred to as"the date of loss"). On the date of loss, Plaintiffwas involved in a motor vehicle collision (referredto herein as "the collision") with an automobile operated by Maria R. Viera-Guevara, anunderinsured motorist, within the definitions and meaning of the policy. Such collision occurred inPlaintiffs Original UM Petition Page 2Irving, Dallas County, Texas. Plaintiff alleges that the uninsured motorist was negligent in several particulars in theoperation of his/her motor vehicle including, but not limited to the following: a. In failing to keep such lookout as a person of ordinary prudence would have kept under the same or similar circ*mstances; b. In failing to apply the brakes to her vehicle in a timely manner to avoid the collision in question; c. In failing to apply the brakes to ~er vehicle to avoid the collision in question; d. In driving her vehicle at a rate of speed that was greater than that which an ordinarily prudent person would have driven under the same or similar circ*mstances; e. In failing to turn her vehicle, or take other evasive action, to avoid the collision in question; and f. In failing to yield right of way. Such negligence was a direct and proximate cause of the collision, as well as the injuriessustained by Plaintiff. Defendant is liable to Plaintiff for the damages sustained as a result of thecollision, and has paid zero to Plaintiff. Plaintiff's medical expenses were $42,072.06. Theinsurance carrier for underinsured motorist paid a total of $30,000.00 to the Plaintiff. Plaintiff'sunderinsured motorists provision of Plaintiff s insurance policy is effective, and Defendant iscontractually liable to compensate Plaintiff for his losses. As stated previously, Plaintiff was in compliance with his contractual obligation to pay thepremiums supporting the policy. Such policy had not lapsed, terminated or been canceled at the timeof the collision. Plaintiff has fully and completely complied with each and every requests forcooperation or information from the Defendant in investigating and evaluating this claim. Further,Plaintiff timely provided notice to the Defendant of the pendency of said claim. Therefore, allPlaintiff's Original UM Petition Page 3conditions precedent to recovery herein have been satisfied by Plaintiff. III. Causes of Action1. Breach of Contract. Plaintiff would show that although the Defendant has failed and refused to pay a reasonableamount to resolve and settle his claim(s) under the contract of insurance described above, Defendantdoes in fact have a contractual obligation and duty under the terms of such insurance policy tocompensate Plaintiff for her losses, which it has breached.2. Bad Faith and Unfair Dealing. Given the nature of the relationship between Plaintiff and Defendant, Defendant had a dutyto negotiate with Plaintiff in good faith in order to fully resolve Plaintiffs claim(s). The Defendantbreached said duty of good faith and fair dealing by failing to investigate Plaintiff s claim promptly,by failing to negotiate in good faith, and by failing to make a fair and reasonable settlement offer. Defendant's last offer to settle this claim was $14,993.66, via letter, dated July 15,2016. Defendant's conduct further demonstrated bad faith in their offer to settle the Plaintiffsclaims in an amount less than that which the Defendant knew, or should have known, the claim tobe worth. This was done for the sole purpose of settling such claims for less than what Plaintiff wasentitled to under the terms and conditions of the insurance contract.3. Gross Negligence. Such conduct on the part of the Defendant was committed with gross negligence,demonstrating a conscious indifference to the rights of Plaintiff and the duties owed Plaintiff arisingfrom the relationship existing between them.Plaintiffs Original UM Petition Page 44. Deceptive Trade Practices. Plaintiff is entitled to recover exemplary damages, for the maliciously or grossly negligentconduct of the Defendant. Furthermore, by the above mentioned acts and/or omissions, theDefendant violated the Deceptive Trade Consumer Protection Act in each of the following respects: A. Violation of 17.50(a)(3) of the Texas Business and Commerce Code by taking an unconscionable action or course of action; B. Violation of the Unfair Settlement Practices Act, as incorporated in the Texas Deceptive Trade Consumer Protection Act, and specifically violation of Article 21.21; (l.b) failing to acknowledge with reasonable promptness and pertinent communications with respect for claims arising under the policy; (2.b) failing to adopt and implement reasonable standards to prompt investigation of claims arising under its policies; and (3.b) not attempting in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear. In violation of Chapter 541 of the Texas Insurance Code, defendant has knowingly andintentionally engaged in unfair settlement practices with respect to his claim including, but notlimited to, failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement ofa claim with respect to which the insurer's liability has become reasonably clear; and refusing to paya claim without conducting a reasonable investigation with respect to the claim. Further, defendant violated Chapter 542 by requiring Plaintiff to institute this suit becauseof the inadequate offer it made to Plaintiff to settle this claim.Plaintitrs Original UM Petition PageS Plaintiff notified Defendant of his intent to make this claim at least sixty (60) days prior tosuit as shown by Exhibit "A" which is a true and correct photocopy of such notice forwarded viaCertified Mail Return Receipt, and proof of the Certified Mail Return Receipt confirmation attachedhereto. IV. Damages As a direct and proximate result of the collision described more fully herein, Plaintiff hassuffered damages for which she now sues as follows: 1. Reasonable and necessary medical expenses in the past, which in all reasonable probability will be required in the future; 2. Loss of wages and/or earning capacity in the past and in the future; 3. Physical Impairment in the past, which will in all reasonable probability will continue in the future; 4. Pain and suffering in the past, which in all reasonable probability will continue in the future; and 5. Mental anguish in the past, which in all reasonable probability will continue in the future. By reason of the foregoing, Plaintiff has suffered in damages which exceed the minimumjurisdictional limits of this Honorable Court. Since Defendant violated the Texas Consumer Deceptive Trade Practices Act, Plaintiff isentitled to recover treble damages which would be the amount of damages suffered in the accident,less $30,000.00, as a result of the Deceptive Trade Practices Act violations, court costs, andPlaintiff's Original UM Petition Page 6reasonable attorney's fees necessitated as a result of the violation of the Deceptive Trade PracticesAct and Unfair Settlement Practices Act. v. Jury DemandPlaintiff respectfully request a trial by jury. WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that the Defendant be citedto appear and answer herein, and that upon final trial hereofPlaintiffhas and recover from Defendantjudgment for all damages proved, costs of Court, prejudgment interest and interest from the date ofjudgment until same is paid, treble damages pursuant to Section 17.509b)(I) Texas Business andCommerce Code, exemplary damages, attorney fees, and for such other and further relief, either atlaw or in equity, to which Plaintiff may show himself justly entitled. Respectfully submitted, LAW OFFICES OF CHRISTIAN JENKINS, P.C. lsi Christian Jenkins Christian Jenkins State Bar No.: 10625500 Old Town Office Plaza 1307-B West Abram, Suite 100 Arlington, Texas 76013 Jenkins5@aol.com 817-461-4222 - Metro 817.461.5199 - Facsimile ATTORNEY FOR PLAINTIFF KENNETH PATTERSONPlaintiff's OriginaJ UM Petition Page 7EXHIBIT B FILED DALLAS COUNTY 9/21/2016 11:23:07 AM FELICIA PITRE DISTRICT CLERK Marissa Pittman CAUSE NO. DC-16-10253KENNETH PATTERSON, § IN THE DISTRICT COURT Plaintiff, § §v. § 134th JUDICIAL DISTRICT §GEICO COUNTY MUTUAL §INSURANCE COMPANY, § Defendant. § DALLAS COUNTY, TEXAS DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’S ANSWER TO PLAINTIFF’S ORIGINAL PETITIONTO THE HONORABLE JUDGE OF SAID COURT: COMES NOW GEICO County Mutual Insurance Company (“GEICO”) and files thisAnswer to Plaintiff’s Original Petition in the above-styled and numbered cause. In supportthereof, GEICO would respectfully show the Court as follows: A. GENERAL DENIAL Pursuant to Rule 92 of the Texas Rules of Civil Procedure, GEICO generally denies eachand every allegation contained in Plaintiff’s Original Petition, and demands strict proof thereof. B. VERIFIED DENIALS 1. GEICO further denies that Plaintiff has performed all conditions precedentnecessary to bring a claim against it in this action or that all conditions precedent to theautomobile insurance policy contract at issue have been performed or have occurred. 2. Indeed GEICO County Mutual Insurance Company is not liable to Plaintiff underthe underinsured (UIM) coverage provisions of Plaintiff’s policy because Plaintiff has failed toperform all conditions precedent to any duty to pay UIM coverage benefits under any autopolicy. Plaintiff has not established that he is “legally entitled to recover from the owner orDEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’SANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 1operator of an uninsured motor vehicle because of bodily injury sustained by a covered person,or property damage, caused by an accident,” which is a condition precedent to any duty to payUIM benefits under Plaintiff’s insurance policy. 3. GEICO is entitled to an offset or credit in the amounts of the liability insuranceamount of any tortfeasor who was responsible for the accident made the basis of this suit andPlaintiff’s alleged injuries and damages, an offset or credit for any other UIM policy of insuranceissued by any other insurer to Plaintiff, and an offset or credit for any other money paid to or onbehalf of Plaintiff for any medical payment, benefit payments, or personal injury protectionbenefit payments. C. SPECIFIC DENIALS AND AFFIRMATIVE DEFENSES Pursuant to Rule 94 of the Texas Rules of Civil Procedure, GEICO raises the followingaffirmative defenses: 1. Plaintiff’s claims are barred because they are not ripe. 2. Plaintiff has failed to state a claim upon which relief can be granted. 3. Plaintiff has stated one or more claims that have no basis in law or fact. 4. Plaintiff’s claims are barred for lack of subject matter jurisdiction. 5. Plaintiff’s claims are barred for failing to mitigate damages. 6. Plaintiff’s claims are barred to the extent they are outside the applicablelimitations period. 7. Plaintiff’s claims are barred because Plaintiff has not suffered any injury ordamage as a result of any acts or omissions alleged of GEICO. 8. Plaintiff’s claims are barred because they are moot. 9. Plaintiff’s claims are barred by the doctrine of waiver.DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’SANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 2 10. Plaintiff’s claims are barred by the doctrine of release. 11. Plaintiff’s claims are barred by the doctrine of accord and satisfaction. 12. Any claim by Plaintiff for punitive or exemplary damages is barred becauseGEICO did not act intentionally, wantonly, fraudulently, or maliciously. 13. Plaintiff is not entitled to the recovery of punitive or exemplary damages, if at all,beyond the limitations set forth in Texas Civil Practice and Remedies Code. 14. Plaintiff is not entitled to the recovery of punitive or exemplary damages to theextent such award would deprive GEICO of property and rights without due process of law andwould constitute an excessive and unreasonable fine or penalty prohibited by the Texas and U.S.Constitutions. 15. Plaintiff’s claims are barred for failure to comply with all conditions precedent. 16. GEICO would show it is not responsible for Plaintiff’s medical conditions anddamages, if any, which existed before this accident and/or Plaintiff’s medical conditions anddamages, if any, which were not proximately caused by this accident. Plaintiff has failed to set out his claims with sufficient particularity to enable GEICO todetermine all applicable affirmative defenses. GEICO therefore reserves its right to assert anyadditional affirmative defenses that may be applicable, to withdraw any affirmative defenses thatare inapplicable, and to more specifically assert affirmative defenses once the precise nature ofthe claims are ascertained. D. PAID MEDICAL DAMAGES LIMITATION GEICO asserts that Plaintiff’s medical or health care damages, if any, caused by theaccident as alleged in his Original Petition are limited to the amounts, if any, actually paid by oron behalf of Plaintiff, including payments made by health insurers.DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’SANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 3 E. NOTICE THAT DOCUMENTS WILL BE USED In accordance with TEX. R. CIV. P. 193.7, Defendant hereby gives notice to all parties thatDefendant intends to use at trial or at any pre-trial proceedings all documents produced byPlaintiff and Defendant in response to discovery from any and all parties in this cause. F. REQUEST FOR DISCLOSURE Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiff is requested todisclose, within 30 days of the service of this request, the information or material described inRule 194.2. G. JURY DEMAND DEFENDANT GEICO DEMANDS A TRIAL BY JURY H. PRAYER WHEREFORE, PREMISES CONSIDERED, GEICO prays that this Court grant itsMotion to Transfer Venue, that Plaintiff take nothing by his suit, that GEICO recovers itsreasonable costs of court, and for such other and further relief both general and special, whetherat law or in equity, to which GEICO may show itself justly entitled.DEFENDANT GEICO COUNTY MUTUAL INSURANCE COMPANY’SANSWER TO PLAINTIFF’S ORIGINAL PETITION PAGE 4 Respectfully submitted, PERRY LAW P.C. By:/s/ Stacy Thompson Meloney Perry State Bar No. 00790424
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Ruling
SANCHEZ SCOMA VS. PIT RIVER CASINO, ET AL.
Aug 27, 2024 |CVCV20-0196121
SANCHEZ SCOMA VS. PIT RIVER CASINO, ET AL.Case Number: CVCV20-0196121This matter is on calendar for review regarding status and trial setting. The Court notes that thedefault judgment against Mike Avelar on July 22, 2024, was improperly entered (no proof ofservice of summons was on file) and the default was therefore vacated. Additionally, the SecondAmended Complaint was filed without leave of Court and was therefore stricken. This matter isnot at issue. An appearance is necessary on today’s calendar to provide the Court with astatus of pleadings and service.
Ruling
JOSE RODRIGUEZ VS BYAMBADORJ TSENDAYUSH, ET AL.
Aug 29, 2024 |22STCV02508
Case Number: 22STCV02508 Hearing Date: August 29, 2024 Dept: 28 Having considered the moving and reply papers, the Court rules as follows. BACKGROUND On January 21, 2022, Plaintiff Jose Rodriguez (Plaintiff) filed this action against Defendants Byambadorj Tsendayush, Uber Technologies, Raiser LLC, Raiser-CA LLC, and Does 1-50 for negligence. On October 2, 2023, Defendants Uber Technologies, Inc. (erroneously sued as Uber Technologies), Rasier, LLC (erroneously sued as Raiser LLC), and Rasier-CA, LLC (erroneously sued as Raiser-CA LLC) (collectively, Uber) filed an answer. On October 4, 2023, Defendant Byambadorj Tsendayush filed an answer. On August 5, 2024, Uber filed a motion to continue the trial and related pre-trial dates. The motion was set for hearing on August 29, 2024. No opposition has been filed. On August 22, 2024, Uber filed a reply brief and notice of non-opposition. Trial is currently scheduled for November 4, 2024. PARTIES REQUESTS Uber asks the Court to continue the trial and related pre-trial dates. LEGAL STANDARD A. Motion to continue trial California Rules of Court, rule 3.1332 provides: (a) Trial dates are firm To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (b) Motion or application A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (c) Grounds for continuance Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circ*mstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (d) Other factors to be considered In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. These may include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332.) B. Motion to continue or reopen discovery Code of Civil Procedure section 2024.020 provides: (a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. (b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings. (Code Civ. Proc., § 2024.020.) Code of Civil Procedure section 2024.050 provides: (a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. (c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2024.050.) DISCUSSION Uber asks the Court to continue the trial to August 4, 2025 and to continue related pre-trial dates to allow Uber to complete discovery before trial. Plaintiff filed the complaint in January 2022 but did not serve Uber until September 2023. Uber contends that Plaintiff failed to appear for his noticed deposition and has failed to provide timely responses to discovery requests. The Court finds good cause and continues the trial to the first available date in February 2025. The final status conference, discovery, and related dates will be based on the new trial date. CONCLUSION The Court GRANTS in part the motion to continue the trial and related dates filed by Defendants Uber Technologies, Inc. (erroneously sued as Uber Technologies), Rasier, LLC (erroneously sued as Raiser LLC), and Rasier-CA, LLC (erroneously sued as Raiser-CA LLC). The Court continues the trial to the first available date in February 2025. The final status conference, discovery, and related dates will be based on the new trial date. Moving parties are ordered to give notice of this ruling. Moving parties are ordered to file the proof of service of this ruling with the Court within five days.
Ruling
CLAUDIA BEATRIZ RIVERA VS SUNNYCREST DEVELOPMENT CORP., A BUSINESS OF FORM UNKNOWN, ET AL.
Aug 26, 2024 |23AHCV01723
Case Number: 23AHCV01723 Hearing Date: August 26, 2024 Dept: P [TENTATIVE] ORDER CONTINUING PLAINTIFFS MOTIONS TO COMPEL DISCOVERY RESPONSES AS TO DEFENDANT SOHO EXPRESS BUSINESS SERVICES INC. I. INTRODUCTION On July 27, 2023, Plaintiff Claudia Beatriz Rivera filed an action for negligence and premises liability against Defendants Sunnycrest Development Corporation (Sunnycrest), Soho Express Business Services Inc. d.b.a. the UPS Store #4833 (Soho), and Does 1 through 50. Plaintiff alleges that around August 13, 2022, while visiting the UPS Store located at 1005 Las Tunas Dr., San Gabriel, Los Angeles, CA 91776, she tripped and fell at the threshold, which was elevated several inches from the exterior landing. On March 27, 2024, the matter was reassigned to Judge Jared D. Moses in Department P at the Pasadena Courthouse. On June 17, 2024, Plaintiff filed the following Motions: (1) Motion to Compel Responses to Form Interrogatories to Defendant Soho and Request for Monetary Sanctions, set for hearing on August 26, 2024; (2) Motion to Compel Responses to Special Interrogatories to Defendant Soho and Request for Monetary Sanctions, set for hearing on August 26, 2024. On June 18, 2024, Plaintiff filed the following Motions: (1) Motion to Compel Responses and Documents Responsive to Requests for Production of Documents to Defendant Soho and Request for Monetary Sanctions, set for hearing on August 27, 2024; (2) Motion to Have Plaintiffs Requests for Admission (Set One) to Defendant Soho Deemed Admitted and Request for Monetary Sanctions, set for hearing on August 27, 2024; On June 20, 2024, Plaintiff filed four additional discovery motions as to Defendant Sunnycrest, set for hearing on September 3 and 4, 2024. On August 22, 2024, Defendants filed an Omnibus Opposition to Plaintiffs discovery motions and a request for monetary sanctions against Plaintiff and her counsel in the amount of $5,100. The hearing on the discovery motions filed as to Defendant Soho is continued. II. LEGAL STANDARD A. Requests for Admission Under Code of Civil Procedure, section 2033.280, subdivision (b), failure to respond to requests for admission in a timely manner allows the requesting party to move for an order that&the truth of any matters specified in the requests be deemed admitted by the party that failed to respond. The requesting partys motion must be granted by the court, unless [the court] finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. (Code Civ. Proc. § 2033.280, subd. (c).) Since such motion is in response to failure to respond, there is no requirement to meet and confer prior to moving to deem the requests for admission admitted. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007), 148 Cal.App.4th 390, 411.) By failing to timely respond, the party to whom the requests are directed waives any objection to the requests, including one based on privilege or work product. (Code Civ. Pro. § 2033.280, subd. (a).) B. Interrogatories A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed does not provide timely responses, the requesting party may move for an order compelling response to the discovery. (Code Civ. Proc. § 2030.290, subd. (b).) Once compelled to respond, the party waives the right to make any objections, including ones based on privilege or work-product protection. (Code Civ. Proc. § 2030.290, subd. (a).) There is no time limit for a motion to compel responses to interrogatories other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc., §§ 2024.020, subd. (a), 2030.290.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (See Code Civ. Proc. § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) C. Requests for Production A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc. § 2031.260, subd. (a).) If a party to whom requests for production of documents is directed does not provide timely responses, the requesting party may move for an order compelling response to the discovery. (Code Civ. Proc. § 2031.300, subd. (c).) The party also waives the right to make any objections, including ones based on privilege or work-product protection. (Code Civ. Proc. § 2031.300, subd. (a).) There is no time limit for a motion to compel responses to production of documents other than the cut-off on hearing discovery motions 15 days before trial. (Code Civ. Proc. §§ 2024.020, subd. (a), 2031.300.) No meet and confer efforts are required before filing a motion to compel responses to the discovery. (Code Civ. Proc., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) D. Monetary Sanctions Code of Civil Procedure, section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction on a party engaging in the misuse of the discovery process to pay the reasonable expenses, including attorneys fees, incurred by anyone because of that conduct. Misuse of discovery includes failing to respond or submit to an authorized method of discovery. (Code Civ. Proc. § 2023.010, subd. (d)). Courts are obligated to impose monetary sanctions in cases where a failure to serve a timely response to requests for admission necessitated this motion. (Code Civ. Proc. § 2023.010, subd. (d).) Sanctions are calculated based on reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Ibid. § 2023.030, subd. (a)). Furthermore, sections 2030.290 and 2031.300 authorize the Court to impose monetary sanctions if a party fails to respond to interrogatories and requests for production. III. ANALYSIS On April 22, 2024, Plaintiff served Defendant with Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Admission (Set One), and Requests for Production of Documents (Set One). (Brito Decl. ¶ 3, Exs. A-D.) Responses were due by May 24, 2024. (Ibid.) Plaintiff did not receive any responses, thus, on May 31, 2024, Plaintiffs counsel reached out to defense counsel regarding the discovery requests. (Ibid. at ¶ 4, Ex. E, p. 1.) Defense counsel failed to respond to the May 31, 2024, communication. On June 12, 2024, Plaintiffs counsel once again reached out to defense counsel regarding the overdue responses and reminded him that Plaintiffs deposition, set for June 17, could not go forward without the discovery responses. (Ibid. at ¶ 5, Ex. E, p. 2.) Defense counsel refused to provide a certain date by which the responses would be provided. (Ibid. at ¶ 5, Ex. E, pp. 3-7.) As of the date of these discovery motions, Plaintiff has not received any responses to the Form Interrogatories (Set One), Special Interrogatories (Set One), Requests for Admission (Set One), and Requests for Production of Documents (Set One). (Ibid. at ¶ 6.) Moreover, Plaintiff requests monetary sanctions in the amount of $2,940 in attorneys fees and costs to be imposed against Defendant Soho and its counsel of record, as follows: 4 hours for preparation of the motions, 2 hours for review of the opposition, preparation of reply, and attendance at the hearing, at a billing rate of $450 per hour, and $240 in motion filing fees ($60 per motion). (Ibid. at ¶ 7.) On August 22, 2024, Defendants filed an Omnibus Opposition to the discovery motions. The Court notes that the Opposition was filed late in response to the motions set for hearing on August 26, 2024. Defense counsel states that Plaintiffs counsel was well-aware that he was managing the death of a relative while trying to compile the discovery responses. (Safarian Decl. ¶ 3, Ex. A.) While being informed that the responses were forthcoming, Plaintiffs counsel went ahead and filed 8 separate discovery motions, demonstrating counsels refusal to resolve the issue informally. (Ibid. at ¶¶ 3-5.) On July 11, 2024, Defendants served verified responses to all the discovery requests, without any objections; however, Plaintiffs counsel refuses to take the motions off the calendar. (Ibid. at ¶ 6, Exs. B-I.) Defendants request monetary sanctions in the amount of $5,100 as follows: attorneys fees at a billing rate of $850 per hour for 2 hours to prepare the opposition and 4 hours to attend the four separate hearings on the Motions. Pursuant to California Rules of Court, rule 3.1300, subdivision (d), the Court in its discretion considers the late-filed Opposition. However, to provide Plaintiff with an opportunity to respond to the Opposition, the Court continues the hearing on the discovery motions filed as to Defendant Soho. IV. CONCLUSION AND ORDER The hearings on the following Motions, filed by Plaintiff Claudia Beatriz Rivera, are CONTINUED to a date to be determined at the hearing scheduled for August 26, 2024 in Department P of the Pasadena Courthouse. Plaintiff is given an opportunity to respond to Defendants Opposition. No further papers may be filed. (1) Motion to Compel Responses to Form Interrogatories to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (2) Motion to Compel Responses to Special Interrogatories to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (3) Motion to Compel Responses and Documents Responsive to Requests for Production of Documents to Defendant Soho Express Business Services Inc. and Request for Monetary Sanctions; (4) Motion to Have Plaintiffs Requests for Admission (Set One) to Defendant Soho Express Business Services Inc. Deemed Admitted and Request for Monetary Sanctions. Dated: August 26, 2024 JARED D. MOSES JUDGE OF THE SUPERIOR COURT
Ruling
JOHN WALTER TEMPLE VS MALIYA ANISE SAANI, ET AL.
Aug 27, 2024 |24TRCV00291
Case Number: 24TRCV00291 Hearing Date: August 27, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B JOHN WALTER TEMPLE, Plaintiff, Case No.: 24TRCV00291 r/t 23TRCV01583 vs. [Tentative] RULING MALIYA ANISE SAANI, et al., Defendants. Hearing Date: August 27, 2024 Moving Parties: Defendant Maliya Anise Saani Responding Party: None Motion to Compel Responses to Form and Special Interrogatories (Set One) The Court considered the moving papers. No opposition was filed. RULING The motion is GRANTED. Plaintiff John Walter Temple is ordered to respond without objections to defendants Form Interrogatories, Set One and Special Interrogatories, Set One within twenty days. The Court orders that plaintiff and plaintiffs attorney of record Michael Kahn, Esq. pay a monetary sanction to defendant in the amount of $466.66 within thirty days. BACKGROUND On January 26, 2024, plaintiff John Walter Temple filed a complaint against Maliya Anise Saani and Bryan Barnes for motor vehicle negligence and negligence based on an incident that occurred on April 6, 2023, on the 405 northbound near N. Rosecrans, Hawthorne. On April 10, 2024, Bryan Barnes filed a cross-complaint for equitable indemnity, implied indemnity, comparative fault, and declaratory relief. On July 9, 2024 the case was deemed related to 23TRCV01583. LEGAL AUTHORITY If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. CCP §2030.290(b). The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. Leach v. Superior Court (1980) 111 Cal. App. 3d 902, 905-906. DISCUSSION Defendant Maliya Anise Saani requests that the Court compel plaintiff John Walter Temple to respond to Form Interrogatories, Set One and Special Interrogatories, Set One. Defendant asserts that on March 25, 2024, defendant served written discovery requests on plaintiff. Responses were due by April 26, 2024. On June 4, 2024, defense counsel sent a reminder email to plaintiffs counsel. Plaintiffs counsel did not respond. On July 1, 2024, defense counsel sent another email to meet and confer for compliance and included copies of the served discovery requests. Plaintiffs counsel did not respond. To date, defense counsel has not received responses. There is no opposition. The Court finds that defendant properly served written discovery and plaintiff failed to timely serve responses, and thus have waived objections. Accordingly, the motion is GRANTED. Sanctions Under CCP § 2023.030(a), [t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. Under CCP § 2023.010, an example of the misuse of the discovery process is (d) Failing to respond or to submit to an authorized method of discovery. Sanctions are mandatory in connection with motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. CCP §§ 2030.290(c), 2031.300(c). Cal. Rules of Court, Rule 3.1348(a) states: The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. Defendant requests $466.66 in sanctions against plaintiff and their attorney Michael Kahn, Esq. The Court finds that the requested amount is a reasonable amount to be imposed against plaintiff and plaintiffs attorney of record. ORDER The motion is GRANTED. Plaintiff John Walter Temple is ordered to respond without objections to defendants Form Interrogatories, Set One and Special Interrogatories, Set One within twenty days. The Court orders that plaintiff and plaintiffs attorney of record Michael Kahn, Esq. pay a monetary sanction to defendant in the amount of $466.66 within thirty days. Defendant is ordered to give notice of this ruling.
Ruling
KRYSTAL RENEE CASTRO, ET AL. VS THOMAZ PHILLIP COUSSEAU, ET AL.
Aug 27, 2024 |Renee C. Reyna |21STCV31342
Case Number: 21STCV31342 Hearing Date: August 27, 2024 Dept: 29 Castro v. Cousseau 21STCV31342 Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Albert Abkarian & Associates. Background On August 24, 2021, Krystal Renee Castro, Victor Andres Avila, Brisstelle Avila, and Viktor Amias Avila filed a complaint against Thomaz Phillip Cousseau, Nissan North America Inc., and Rebecca Diane Mullin (collectively Defendants) for negligence cause of action arising out of an automobile collision on July 18, 2020. On October 26, 2021, Defendants filed an answer. In June 2023, the Court granted the petition for approval of minors compromises in this case. An OSC re proof of deposit was set and continued several times; in the interim, it appears that counsel has been unable to communicate with the client (guardian ad litem). On June 20, 2024, Albert Abkarian & Associates (Counsel) filed a motion to be relieved as counsel for Plaintiff Krystal Renee Castro (Plaintiff). No opposition has been filed. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.136(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) Discussion Counsel has filed the Notice, Declaration, and Order to be Relieved as Counsel. However, Counsel fails to include all future hearings, including the OSC re Proof of Deposit set for September 25, 2024, on both the Declaration and Order. Moreover, the Court has the following additional concerns: (1) a guardian ad litem cannot represent a minor without counsel, and granting the motion could leave the case in an uncertain state; and (2) it is unclear to the Court whether the settlement funds have been paid and, if so, whether they have been deposited into a blocked account as ordered. Accordingly, the motion is DENIED without prejudice. Conclusion The motion to be relieved as counsel is DENIED without prejudice. Moving counsel to give notice.
Ruling
SMITH vs THE INN AT DEEP CANYON
Aug 29, 2024 |CVPS2204678
SMITH vs THE INN AT DEEP Demurrer on Complaint by THE INN AT DEEPCVPS2204678CANYON CANYON, ARNOLD KIRSCHENBAUMTentative Ruling: Sustained.Plaintiff granted leave to amend within 10 days of this order becoming final.Moving party to provide notice pursuant to CCP 1019.5.This is a personal injury action brought by Plaintiffs Paul Smith and Jasmine Smith (collectively“Plaintiffs”) against Defendants the Inn at Deep Canyon (“Deep Canyon”) and individual ArnoldKirschenbaum (collectively “Defendants”). Plaintiffs allege they stayed at Deep Canyon, located at74470 Abronia Trial, Palm Desert, California, from December 20-24, 2020. During their stay, Plaintiffsallege they sustained injuries as a result of bedbug bites.Plaintiffs’ complaint brings causes of action for the following: (1) battery; (2) negligence; (3) intentionalinfliction of emotional distress; (4) fraudulent concealment; (5) private nuisance; and (6) public nuisance.Now, Defendants demurrer as follows: Plaintiffs’ third and fifth causes of action fail to state factssufficient to constitute a cause of action (CCP § 430.10(e)), are both uncertain (CCP § 430.10(f), anddo not provide notice of grounds for liability in violation of California Rule of Court 2.112. Defendantsargue that the complaint’s third cause of action does not allege “extreme and outrageous” conductbecause Plaintiffs have only shown an omission, not an act. They also argue the third cause of actionfails because there is no allegation of severe emotional distress past their initial injuries in 2020.Defendants argue that the fifth cause of action fails as there cannot be an action for private nuisancewithout harm to a property intertest.In opposition, Plaintiffs generally argue their claims were pleaded correctly with citations to thecomplaint.DemurrerThe function of a demurrer is to test the legal sufficiency of a pleading, but not the truthfulness of theallegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In a demurrerproceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.3rd Cause of Action – Intentional Infliction of Emotional DistressA cause of action for intentional infliction of emotional distress requires: (1) extreme and outrageousconduct with the intent of causing, or reckless disregard of the probability of causing, emotional distress;(2) suffering of severe or extreme emotional distress; and (3) actual and proximate cause resulting fromthe conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51). “A defendant’s conduct is ‘outrageous’when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Id. at1050 [quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001] [internal quotationmarks omitted]). In order to avoid a demurrer, the plaintiff must allege with “great specificity” the actswhich he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilizedcommunity. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819,832.) It is not enough that a defendant’s conduct be intentional and outrageous; the conduct must alsobe directed to the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware. (Potter,supra, 6 Cal.4th at 1002 [quoting Christensen v. Superior Court (1991) 54 Cal.3d 868, 903].)Here, the complaint is deficient as it fails to allege specific facts to meet this heightened pleadingstandard. While experiencing a bedbug infestation is outrageous itself, the complaint does not allegeany extreme or outrageous conduct directed at Plaintiffs specifically to support a claim for intentionalinflection of emotional distress. Importantly, a court is not required to accept blindly as true theconclusory allegation that a defendant’s conduct was extreme and outrageous; rather, it may decide itdoes not suffice as a matter of law. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235; Moncada v.West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 781; McClintock v. West (2013) 219 Cal.App.4th540, 556; Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1609.) Thus, the allegationsthat Defendants had prior knowledge of the infestation and failed to address same is not sufficientwithout any conduct specifically aimed at Plaintiffs. (Complaint, ¶¶ 27-28, 30, 83, 84.)Defendants also argue that the complaint is deficient in alleging extreme emotional injuries, but thereare sufficient allegations in that regard. (Complaint, ¶¶ 27, 29, 83, 90.)The general demurrer to Plaintiffs’ 3rd cause of action is sustained with leave to amend. SUSTAINED.5th Cause of Action – Private NuisanceElements of an action for private nuisance are: (1) an interference with the use and enjoyment ofproperty; (2) that causes substantial actual damage; (3) and is of such a nature, duration, or amount asto constitute unreasonable interference with the use and enjoyment of the land. (Mendez v. RanchoValencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.) That interference must be with“plaintiff’s use and enjoyment of his or her property.” (Chase v. Wizmann (2021) 71 Cal.App.5th 244,253; emphasis added.)Here, Plaintiffs were hotel guests. They do not have an ownership interest in the room they rented fora few nights. Plaintiffs do not offer any case law to support the argument that renting a “dwelling unit –the Subject Hotel room” (Plaintiffs’ Opposition at p. 11, lines 20-21) would satisfy the first element of anaction for private nuisance.Regarding leave to amend, the plaintiff has the burden to show a reasonable possibility of curing thedefect in the complaint by amendment. (Heritage Pacific Financial, LLC v. Monroy (2013) 215Cal.App.4th 972, 994.)The general demurrer to Plaintiffs’ 5th cause of action will be sustained with leave to amend.SUSTAINED.
Ruling
MARIBEL ARREOLA-GONZALEZ, AN INDIVIDUAL, ET AL. VS AHMC SAN GABRIEL VALLEY MEDICAL CENTER LP, A CALIFORNIA LIMITED PARTNERSHIP, ET AL.
Aug 26, 2024 |23AHCV01453
Case Number: 23AHCV01453 Hearing Date: August 26, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT MARIBEL ARREOLA-GONZALEZ, et al., Plaintiff(s), vs. AHMC SAN GABRIEL VALLEY MEDICAL CENTER LP, et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 23AHCV01453 [TENTATIVE] ORDER RE: DEFENDANT LI CUI, M.D.S DEMURRER TO PLAINTIFFS COMPLAINT Dept. 3 8:30 a.m. August 26, 2024 I. INTRODUCTION On June 26, 2023, plaintiffs Maribel Arreola-Gonzalez (Plaintiff), Saul Gonzalez Arreola, and Eva Gonzalez Arreola filed this wrongful death and survival action arising from medical treatment provided to Jorge Gonzalez (Decedent) by defendants AHMC San Gabriel Valley Medical Center LP, AHMC, Inc., Nham Nhat Pham, Alfredo Lee Chang, David Gu, Tommy Lu, and Li Cui. Plaintiff asserts an individual cause of action for negligent infliction of emotional distress (NIED) and alleges that [t]he rapid and grave deterioration of the Decedents health caused by Defendants carelessness and negligence in the emergency room on January 27, 2022, was witnessed by Plaintiff and was shocking to her. (Compl., ¶ 24.) On January 10, 2024, Li Cui, M.D. (Defendant) filed this demurrer to Plaintiffs third cause of action for NIED. Plaintiffs filed an opposition brief on April 16, 2024. Defendant filed a reply brief on August 1, 2024. II. LEGAL STANDARDS A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.] (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [the facts alleged in the pleading are deemed to be true, however improbable they may be].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) III. DISCUSSION The Court first addresses Defendants argument that Plaintiffs NIED claim is barred by Code of Civil Procedure section 340.5, which is the statute of limitations enacted as part of the Medical Injury Compensation Reform Act (MICRA). Under section 340.5, an action for injury or death against a health care provider based upon such persons alleged professional negligence must be brought within one year after the plaintiff discovers, or should have discovered, the injury or within 3 years after the date of injury, whichever occurs first. The term professional negligence encompasses actions in which the injury for which damages are sought is directly related to the professional services provided by the health care provider (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191) or directly related to a matter that is an ordinary and usual part of medical professional services (Id. at p. 193.) [C]ourts have broadly construed professional negligence to mean negligence occurring during the rendering of services for which the health care provider is licensed. (Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 406407 [holding that [a]n EMT's operation of an ambulance qualifies as professional negligence when the EMT is rendering services for which he or she is licensed or when a claim for damages is directly related to the provision of ambulance services by the EMT].) Defendant argues that the act or omission forming the basis of Plaintiffs NIED claim is alleged professional negligence. Therefore, Plaintiffs NIED claim is untimely because the alleged injury-producing event occurred on January 27, 2022, and the lawsuit was filed five months too late on June 26, 2023. In opposition, Plaintiff argues that the applicable statute of limitations is provided by Code of Civil Procedure section 335.1, which provides for a 2-year period to assert claims arising from personal injury. Plaintiff also argues that her NIED claim does not arise out of professional negligence because Defendant was not providing medical services to her. However, section 340.5 is not limited to injuries or death inflicted on a patient but can be applied to injuries suffered by a third parties due to the health providers professional negligence. (Arroyo v. Plosay (225 CalApp.4th 279, 298.) In fact, in Lopez v. American Medical Response West (2023) 89 Cal.App.5th 336, 347, the court of appeal found that section 340.5 applied to two plaintiffs claims against a paramedic who allegedly negligently operated an ambulance, even though only one of the plaintiffs was being transported as a patient. Here, Plaintiff alleges that she suffered emotional distress while witnessing Defendants negligent medical treatment of Decedent. Therefore, professional negligence forms the basis for Plaintiffs NIED claim and the one-year statute of limitations applies. Accordingly, Plaintiffs claim is time-barred because it was filed on June 26, 2023, which is one year and five months after Plaintiff allegedly experienced the emotional distress from witnessing the negligent care provided to Decedent on January 27, 2022. As Plaintiffs claim is untimely, the Court need not analyze whether she pleads sufficient facts to state a cause of action. IV. CONCLUSION Defendants demurrer to her Third Cause of Action for NIED is SUSTAINED. As Plaintiff does not show how her NIED claim can be amended to avoid the statute of limitations, the demurrer is sustained without leave to amend. Moving party to give notice. Dated this 26th day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
Stayer vs. A Plus Safety LLC, et al.
Aug 29, 2024 |23CV-0203556
STAYER VS. A PLUS SAFETY LLC, ET AL.Case Number: 23CV-0203556This matter is on calendar for review regarding status of the case. The Court notes that allComplaints and Cross-Complaints are at issue, with the exception of the most recently filed Cross-Complaint, filed by O’Reilly Auto Enterprises, LLC on August 9, 2024. However, all partiesnamed in that Cross-Complaint have previously appeared as Plaintiffs, Defendants, or Cross-Defendants in this action. The parties are ordered to appear to discuss status and trial setting.
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