Preview
ae rN ASSESSED aly ENTERE! 0. VERIFIEO_| 2006-40566 NO. PB V KIMBERLY DAVIS IN THE DISTRICT COURT OF Individually and as &: Representative of the Estate of PATRICIA DIANNE HAUERLAND, Z ie Deceased, LISA HAUERLAND, and oe SO Cla PATRICIA TODD o> EN, VS. HARRIS COUNTY, TE: SF “#, a 'S LABORATORY CORPORATION OF AMERICA, LABORATORY CORPORATION§ OF AMERICA HOLDINGS, MARGARET WEHNER, M.D. MADAY BENITEZ DARGAN, M._D., BROWN & ASSOCIATES MEDICAL LABORATORIES, L.L.P., and VALERIE T. BAHAR, M.D 2b JUDICIAL DISTRICT PLAINTIFFS’ ORIGINAL PETITION Plaintiffs KIMBERLY DAVIS (“Kimberly”) individually and as representative of the Estate of PATRICIA DIANNE HAUERLAND, deceased, (“Estate”), LISA HAUERLAND (“Lisa”), and PATRICIA TODD (“Patricia”) file this Plaintiffs’ Original Petition complaining of (“Labcorp”), LABORATORY CORPORATION OF AMERICA, LABORATORY CORPORATION OF AMERICA HOLDINGS, (‘Labcorp Holdings”), MARGARET WEHNER, M.D. (“Wehner”), MADAY BENITEZ DARGAN, MLD. (“Dargan”), BROWN & ASSOCIATES MEDICAL LABORATORIES, L.L.P. (“Brown”), and VALERIE BAHAR, MLD. (“Bahar”) defendants, and show the court as follows: Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, discovery is intended to be conducted according to Level 3, Rule 190.3 of the Texas Rules of Civil Procedure. RECORDER'S MEMORANDUM Plaintiffs’ Original Petition (draft) doc This instrument is of poor quality at the time of imaging _- aA Parties & Service 1 Plaintiff Kimberly is a resident of Kansas City, Missouri. Kimberly is therepresentative of the Estate of Patricia Dianne Hauerland, deceased. Plaintiffs Patricia and Lisa areresidents of Houston, Texas. Kimberly, Patricia, and Lisa are the surviving daughters of PatriciaDianne Hauerland. 2. Defendant LABORATORY CORPORATION OF AMERICA, (“Labcorp”) is acorporation organized under the laws of Delaware and does business in Texas. Labcorp may beserved with process by serving a copy of this petition with citation to its registered agent for serviceof process, Corporation Service Company D/B//A CSC-Lawyers Inc., 701 Brazos Street, Suite1050, Austin, Texas 78701, or to one of its officers, or in accordance with the informationdesignated in the Civil Process Request filed with this petition. 3 Defendant LABORATORY CORPORATION OF AMERICA HOLDINGS,(“Labcorp Holdings”) is a corporation organized under the laws of Delaware and does business inTexas. Labcorp Holdings may be served with process by serving a copy of this petition withcitation to its registered agent for service of process, Corporation Service Company D/B//A CSC-Lawyers Inc., 701 Brazos Street, Suite 1050, Austin, Texas 78701, or to one of its officers, or inaccordance with the information designated in the Civil Process Request filed with this petition. 4. Defendant MARGARET WEHNER, M_D. (“Wehner”) is a physician who practicesmedicine in San Antonio, Bexar County, Texas. Wehner may be served with process by deliveringa copy of this petition with citation to Wehner at his or her place of business, 6603 Park Ten Blvd.,San Antonio, Texas 78213. 5 Defendant MADAY BENITEZ DARGAN, M_D. (“Dargan”) is a physician whopractices medicine in San Antonio, Bexar County, Texas. Dargan may be served with process bydelivering a copy of this petition with citation to Dargan at his or her place of business, 6603 ParkTen Blvd., San Antonio, Texas 78213.Plaintiffs’ Original Petition (drat) doc, -~ oN 6. Defendant BROWN AND ASSOCIATES MEDICAL LABORATORIES, L.L.P. (‘Brown’) is a limited liability partnership organized under the laws of Texas. Brown may be served with process by by delivering a copy of this petition with citation to one of its officers or in accordance with the information designated in the Civil Process Request filed with this petition. 7. Defendant VALERIE BAHAR, M.D. (“Bahar”) is a physician who practices medicine in Houston, Harris County, Texas. Bahar may be served with process by delivering a copy of this petition with citation to Bahar at his or her place of business, 7737 Southwest Freeway, Suite 320, Houston, Texas 77074. B. Venue 8 The court has jurisdiction over the controversy because the damages are within the jurisdictional limits of the court. 9 Venue is proper in Harris County, Texas. The occurrence and resulting cause of action made the basis of this suit occurred in Harris County, Texas. Texas Civil Practice and Remedies Code, Section 15.001 and 15.011. Cc. Notice; Expert Report 10. Plaintiffs have complied with Sections 74.051 and 74. 052 of Chapter 74 of the Texas Civil Practice and Remedies Code by sending written notice of their claims and intention to file suit at least sixty days prior to the filing of this petition. Plaintiffs also attach a copy of the expert report of Michael J. Heard, M.D., F.A.C.O.G., along with a copy of Dr. Heard’s curriculum vitae. The report and curriculum vitae are hereby served pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code. D. Facts & Causes of Action 11. This case arises in part from medical care provided to plaintiffs’ decedent, their mother Patricia Dianne Hauerland in July of 2004 and following. Patricia Dianne Hauerland was Plaintiffs Original Petition (draft) doe, -~ oN seen at the office of defendant Bahar on or about July 8, 2004 for a routine checkup, also known as a “well woman” examination that included a screening test for gynecological cancer known as a “Pap test” or more commonly, a “pap smear”. 12. The test was abnormal, and defendant Bahar failed to follow standard practice in following up on this abnormal test, despite clear and ominous signs of possible deadly cancer or precancerous conditions represented by the pathology as reported. Other defendants knew or should have known of the abnormal results they reported and took no action with respect to the abnormal tests. Dr. Bahar continued to see Patricia Dianne Hauerland and failed to take appropriate steps to rule out cancer. 13. Approximately one year later, Patricia Dianne Hauerland was diagnosed with advanced cervical cancer that had spread to other organs and to the point that she could not be effectively treated. She died in Feburary of 2006. 14. Beginning on or about July 8, 2004 and continuing through the time of Patricia Dianne Hauerland’s death, defendants and their employees and agents, as well as employees or agents under their supervision and acting under their direction, were culpable of substandard care and treatment of Patricia Dianne Hauerland. 15. This substandard care and treatment by defendants and by employees and associates of defendants under their direction, was negligent and was a proximate cause of damages to Patricia Dianne Hauerland, the Estate, and plaintiffs. These defendants’ negligence consisted of one or more of the following particulars: a) In failing to adequately assess or recognize the extent of Patricia Dianne Hauerland’s condition and her need for additional tests such as colposcopy and biopsy so as to rule out precancerous or cancerous conditions in the cervix, and in failing to take other standard precautions that would avoid or minimize the chances of persistence of or aggravation of Patricia Dianne Hauerland’s condition, leading to her death without the appropriate diagnosis and follow-up treatment; b) In failing to advise Patricia Dianne Hauerland of the full extent and significance of her condition and the need for immediate testing to rule out various diagnoses, or if those diagnoses proved correct, to implement immediate follow-up treatment; Plaintiffs’ Original Petition (draft).doc, o~™ “~N c) In performing physical examinations on Patricia Dianne Hauerland without the standard documentation of differential diagnoses or the standard documentation of tests that should have been considered or recommended, but were not explained adequately or sufficiently to allow Patricia Dianne Hauerland to make an informed decision, and failure to recommend standard treatment on Patricia Dianne Hauerland so as to prevent or minimize the chances of persistence of her condition, or aggravation of her condition, leading to death. qd) In failing to inform Patricia Dianne Hauerland of the significance of the pathological findings on her in July 2004 and failing to follow up adequately as required by the standards of care applicable to physicians and laboratories. 16. Each of these negligent acts or omissions of defendants was a proximate cause of damages to plaintiffs and each and all were violations of the standard of care, ordinary care, standard medical practice, and accepted medical treatment rendered by reasonably prudent medical practitioners under the same or similar circumstances and as such constitute professional negligence. 17. Defendants are liable for the negligent acts or omissions of their employees under the legal doctrine of respondeat superior and are liable for the negligent acts of physicians and others who treated Patricia Dianne Hauerland but who may not be their employees under the legal doctrine of ostensible agency or agency by estoppel. Defendants that are professional associations are liable negligent acts of physicians or other employees or associates under Texas law, specifically laws that specify that a professional association is liable jointly and severally for the negligent acts of its professional employees or partners. E. Cause of Action—Negligence and Wrongful Death. 18. As stated above, defendants were negligent in treating Patricia Dianne Hauerland and their negligence proximately caused the death of Patricia Dianne Hauerland in February of 2006 . Accordingly, plaintiffs hereby sue defendants for common law negligence and for statutory wrongful death under the provisions of the Texas Civil Practice and Remedies Code, Section 71.001, et. seq. Plaintiffs Original Petition (draft) doc.-? F. Damage: 19, Plaintiffs bring this suit in an effort to be compensated for the damages they have sustained and the monetary and other losses they have incurred and will incur. From the date of the medical treatment and results thereof until the time of trial of this cause, the elements of damage to be considered separately, for the purpose of ascertaining the loss of plaintiffs in determining the sum of money that will fairly and reasonable compensate them for such losses, are as follows: a) The physical pain that Patricia Dianne Hauerland suffered up to the time of her death; b) The mental anguish that Patricia Dianne Hauerland suffered up to the time of her death and that plaintiffs have suffered since her death; ¢) The loss of consortium by plaintiffs as a result of the death of their mother; 4) The reasonable cost of medical treatment as a result of delayed diagnosis, and the reasonable costs of burial and funeral expenses for Patricia Dianne Hauerland incurred by plaintiffs. 20. The precise amount of monetary loss sustained by plaintiffs, and the full extent of their damages cannot be determined at the present time. It is the function of the Court or jury to assess the extent of the damages sustained by plaintiffs and to attempt to compensate them for such damages. The amount of damages suffered by plaintiffs is far in excess of the minimal jurisdictional amount of this court. G. Prayer 21. Plaintiffs pray that defendants be cited to appear and answer in this lawsuit; and that upon final trial and hearing, plaintiffs have judgment against defendants, jointly and severally, for actual damages, for costs of court, for both pre-judgment and post judgment interest at the maximum legal rate; and for such other and further relief, at law and in equity, both general and special, to which they may show themselves justly entitled. Plaintiffs’ Original Petition (draft) doc, o™ Respectfully submitted, Mirv~E—~ Allan R. Brain State Bar No.: 02861500 12 Greenway Plaza, Suite 1100 Houston, Texas 77046 713-425-4949 713-552-0120 (facsimile) State Bar No.: 24034519 4265 San Felipe, Suite 1100 Houston, Texas 77027 713-302-3551 281-852-9969 (facsimile) ATTORNEYS FOR PLAINTIFFS Plaintiffs! Original Petition (draft) docve ~ Michael J. Heard, M_D., F.A.C.0.G. The Women’s Specialists of Houston 6624 Fannin Suite 1800 Houston, Texas 77030 713-425-3783 fax 713-425-3077 June 26, 2006 Mr. Allan Brain Attomey at Law 12 Greenway Plaza, Suite 1100 Houston, Texas 77046 RE: Hauerland Expert Report Dear Mr. Brain: At your request, I have reviewed the medical records of Ms. Patricia Dianne Hauerland from the office of Dr. Valerie Bahar, who is an obstetrician/gynecologist licensed to practice medicine in Texas. Ms. Hauerland’s office visits with Dr. Bahar can be outlined as follows: 1 On July 8, 2004, Ms. Hauerland was initially seenby Dr. Bahar for an office visit that included an annual gynecologic examination. She complained of a possible genital wart. A fold of tissue was noted on external genital exam, as well as a cervical polyp. An information sheet and authorization form to do High Risk HPV testing was signed by Ms. Hauerland. Blood work, a pap smear and HPV testing were done. Mrs. Hauerland's previous pap smear had been done 2 years prior. On July 15, 2004, Ms. Hauerland's pap smear was read as having an epithelial cell abnormality and Atypical Squamous Cells of Undetermined Significance (ASCUS). The HPV Hybrid Capture High Risk was Positive. On July 15, 2004, Ms. Hauerland was seen for removal of her cervical polyp. She reported right lower quadrant pain. On physical exam Dr. Bahar noted the abdomen was benign. The cervical polyp was removed and sent to the lab. A pelvic ultrasound was ordered to further elucidate the abdominal pain and Ms. Hauerland was recommended to see an orthopedist. On August 9, 2004, a letter was written to Ms. Hauerland regarding her lab results. On August 11, 2004,Ms. Hauerland underwent a CT scan of her abdomen and pelvis. The scan was ordered by Dr. Dipti Bavishi to evaluate abdominal pain.s- ~ The CT scan was read by Dr. Stephen Dalton and transcribed on August 12, 2004. Dr. Dalton's impression of the pelvic CT scan was: 1) Changes centrally in the uterus worrisome for hemorthage, secretions, and/or abnormal endometrial proliferation including neoplasm. 2) 2.4 cm uterine fibroid. 3) Pelvic ultrasound with transvaginal component and gynecological consultation were recommended for further evaluation. On August 16, 2004, Dr. Bavishi faxed Dr. Bahar the above results. On August 18, 2004, a pelvic ultrasound was done. Dr. Bahar ordered the ultrasound. The ultrasound was read by Dr. Dalton and transcribed on August 20, 2004. Dr. Dalton's impression of the pelvic ultrasound was: 1) 2.3 cm fundal fibroid. 2) Subtle changes elsewhere in the uterine fundus out of proportion to the 8/12/04 CT findings. I am concerned that there is an endometrial or myometrial mass accounting for the CT findings that is poorly visualized on the ultrasound. MRI of the pelvis without and with contrast is recommended for further evaluation. On August 26, 2004, Ms. Hauerland returned to the office for test results. She reported that her abdominal pain on the right went away after she had a colonoscopy. Dr. Bahar informed Ms. Hauerland that the likelihood of the pain being gynecologic in origin was low. Dr. Bahar's problem list for Ms. Hauerland included: "1) Cervical polyp removed (7/15/04)-inflammation/reactive cellular changes were noted. 2) Right Lower quadrant pain: now resolved Discussed pelvic ultrasound (8/18/04): revealed a 2.3cm fundal fibroid but also some subtle changes consistent with an oval and somewhat ill defined area of increased echogenicity in the fundus slightly to the right of midline. Not consistent with the CT scan (don't have copy of CT scan) Will get copy of CT scan from Dr. Bavishi. 3) Abnormal pap (7/9/04): ASCUS with a +HPV. Discussed ASCUS which might be a result of cervical polyp changes. Recommend repeat pap in 3 months. If returns abnormal then colposcopy, etcetera. On August27, 2004, Dr. Bahar noted in her progress notes that records from Dr. Bavishi showed Ms. Hauerland was seen by Dr. Bavishi on August 9, 2004 and had a colonoscopy on 8/4/04 which was normal with the exception of one rectal polyp. A CT scan from August 12, 2004, showed alarge area of diminished attenuation centrally in uterus and probably cervix. Dr. Bahar also informed Ms Hauerland of the CT scan findings and the need to proceed with an MRI of the pelvis with and without contrast. On August31, 2004, the MRI of the pelvis ordered by Dr. Bahar was done. The MRI was read by Dr. Dalton and transc on August ribed 31, 2004. Dr. Dalton's impression of the MRI was: 1) 2.2cm uterine fibroid. 2) Diffuse abnormality elsewhere in the myometrium may represent adenomyosis or endometrialcarcinoma.10. On September 3, 2004, Dr. Bahar reviewed the MRI results. She noted that the uterus was heterogeneous. Most likely consistent with adenomyosis as opposed to carcinoma given her history.11 On October 7, 2004, Ms. Hauerland was seen for an office visit and desired to be tested for GC/Chlamydia. She stated that her daughter, a Physician Assistant, suggested that Chlamydia might be causing her pain because Ms. Hauerland had a new sexual partner. Genito-urinary exam showed thin white discharge. An STD workup was done.12. On January 20, 2005, Ms. Hauerland came back for a repeat pap smear. She was complaining of lower back pain and lower abdominal pain. On bimanual exam, she was noted to have tenderness along the anterior vaginal wall. The left adnexa was also noted to be very tender. In the assessment and plan Dr. Bahar noted that the low abdominal pain and low back pain were most likely due to cystitis. Ms. Hauerland did not desire treatment yet. She wanted to discontinue urelle and return for urinalysis (UA). Dr. Bahar recommended a pelvic ultrasound to evaluate the low abdominal region, but Ms. Hauerland refused. Dr. Bahar noted that the low back pain was possibly orthopedic in origin, but Ms. Hauerland doubted it.13 On January 26, 2005, Ms. Hauerland's pap smear was read as being negative for intraepithelial lesion and malignancy. Cellular changes associated with atrophy and inflammation were present. The HPV Hybrid Capture High Risk was Negative.14. On March 9, 2005, Dr. Bahar noted that medical records from Northeast OB/Gyn Associates revealed that Ms. Hauerland had a pap smear done in April 2002 that was within normal limits. Dr. Bahar called Ms. Hauerland and noted that Ms. Hanerland was still having a lot of abdominal pain. Dr. Bahar informed Ms. Hauerland that it was most likely originating from the gastrointestinal tract. She recommended hysteroscopy and biopsy to completely rule out a gynecologic cause for her condition.15. On March 14, 2005, Dr. Bahar’s office called Ms. Hauerland and left a message for her to call the office for some non-emergent information. Ms. Hauerland needed a repeat mammogram and uterine biopsy per Dr. Bahar.16. On March 30, 2005, a repeat message was left at Ms. Hauerland's home.17. On April 12, 2005, Dr. Bahar's office called Ms. Hauerland and noted that Ms. Hauerland was thinking about the hysteroscopy and biopsy and would let Dr. Bahar know.-~18. On September 7, 2005, Dr. Bahar's office faxed all progress notes to Dr. Mary Jo Zanders at Ms. Hauerland's request.I reviewed CT reports from West Houston Medical Center from September 4 and 6,2005. These reports revealed:1 On September 4, 2005, Ms. Hauerland was seen at West Houston Medical Center ER. A CT scan of the abdomen and pelvis renal protocol was done which revealed retroperitoneal lymphadenopathy, multiple pulmonary lesions, complex pelvic mass, findings suggestive of metastatic disease. On September 6, 2005, a CT scan of Ms. Hauerland’s chest was done which showed multiple soft tissue masses in the lungs, mediastinum, and base of the neck. On September 6, 2005, a CT scan of the abdomen with contrast showed a mass in the right liver, conglomerate areas of soft tissue about the abdominal aorta consistent with lymph nodes representing neoplastic disease related to the condition in the chest. On September 6, 2005, a CT scan of the pelvis showed a 12 cm macrolobulated, heterogeneously enhancing pelvic mass.I reviewed pathology reports from AmeriPath from September 19, 2005.These reports revealed:1 Dr. Mary Joe Zanders performed cervical, endocervical, and endometrial biopsies on Ms. Hauerland on September 6, 2005. The cervical biopsy revealed detached malignant epithelial fragments consistent with poorly differentiated adenosquamous carcinoma. The endocervical biopsy revealed adenosquamous carcinoma, poorly differentiated (grade3), invasive. The endometrium curettage revealed adenosquamous carcinoma, poorly differentiated (grade 3).I reviewed Dr. Khaled Jabboury’s oncology consultation report from September 9, 2005.Dr. Jabboury felt Ms. Hauerland had extensive metastatic cancer of uterine/cervicalorigin.I reviewed Dr. James Wharton's oncology consultation report from September 20, 2005,at MD Anderson. I also reviewed the multidisciplinary conference report from MDAnderson from September 27, 2005, attended by Dr. Wharton, Dr. Gershenson, Dr.Coleman, Dr. Levenback, Dr. Eifel, Dr. Jhingran, and Dr. Freedman. The oncologists atMD Anderson felt that Ms. Hauerland had stage TV adenosquamous carcinoma of theendocervix.Ms, Hauerland died from metastatic cervical cancer in February 2006.After an extensive review of the medical records obtained on Ms. Hauerland’s case, itwas apparent that she was suffering from a pelvic malignancy that was ultimatelydiagnosed approximately a little more than one year after her initial visit to Dr. Bahar foran annual examination with pap smear.Cervical cancer is a common gynecologic malignancy. It is one of the few cancers thatcan be cured when caught early. That is why we gynecologists put so much emphasis onproper screening. The standard of care for the practice of gynecology sets forth importantguidelines for cervical cancer screening, namely the pap smear test. However, this test isonly a screening test and can be falsely negative even in the presence of cancer in up to25% of patients. More definitive testing including colposcopy and biopsy are indicatedto give more conclusive results. Pap smears that reveal atypical cells of undeterminedsignificance in the presence of a High Risk HPV (human papilloma virus) requireimmediate colposcopy to rule out more abnormal findings such as a cervical cancer.There are several comments about this particular medical case that deserve mention.1 Ms. Hauerland was a 62-year-old female with multiple risk factors for cervical dysplasia, These included advanced age, sexual activity, high risk HPV, and an abnormal pap smear. These risk factors in the presence of an abnormal pap smear with positive HPV warrant further evaluation with colposcopy and biopsy rather than a follow-up pap smear. Ms. Hauerland was evaluated for abdominal/pelvic pain through radiological imaging and colonoscopy. The CT scan when compared to the ultrasound findings were suspicious for an endometrial or myometrial process that required further evaluation. The MRI showed a diffuse abnormality that was also concerning for adenomyosis or endometrial carcinoma. Ms. Hauerland continued to complain of abdominal and back pain from her early office visits to Dr. Bahar. There was no adequate explanation for these symptoms in Dr. Bahar’s progress notes, especially in light of the abnormal pap smear, positive HPV, abnormal CT scan of pelvic, abnormal ultrasound of the pelvis, and abnormal MRI of the pelvis. Despite the findings on the radiological studies and continued symptoms reported by Ms. Hauerland, no colposcopy or biopsies were undertaken. It is obvious that Ms. Hauerland's cancer progressed to advanced stages based on her worsening symptoms and findings found on subsequent CT scans. There was no abnormal lymphadenopathy found on the initial CT scan in August 2004; however, diffuse disease was noted on the CT scan performed in 2005 with evidence of metastatic lesions to the lungs, liver, and abdomen/pelvis.Several important clinical management decisions must be noted where Dr. Valerie Baharbreached the standard of care which ultimately led to the misdiagnosis of cervical cancerin Ms. Dianne Hauverland.These important points are as follows:1 Ms. Hauerland had multiple risk factors for cervical dysplasia which should have prompted more diagnostic testing with colposcopy and biopsy. It is a standard practice that a patient with an ASCUS pap smear that has positive HPV have an immediate colposcopy with biopsy (see attached). This test was never performed. Only a repeat pap smear was completed. These screening tests can be falsely negative for cancer in up to 25% of patients and should not be used in a high risk patient such as Ms. Hauerland. The abnormalities on CT and MRI when correlated with Ms. Haueriand's symptomatology also should have warranted further testing such as endometrial biopsy. On two separate reports, there was concern of an abnormal endometrial process. This concern was later confirmed with an endometrial biopsy that had suspicious cells performed by Dr. Zanders. Dr. Bahar considered a biopsy six months after presentation, when Ms. Hauerland’s disease was obviously more advanced.Cervical cancer is one of the few cancers in women that can be diagnosed early and curedwith appropriate evaluation and treatment. Gynecologists have a duty to properly screen,diagnose and treat cervical cancer in their patients. Proper screening and diagnosisinclude not only performing a pap smear and HPV test but also interpreting the resultscorrectly. Gynecologists have duty to perform a colposcopy and endocervicalbiopsy/curettage on patients that have an abnormal pap smear which reads ASCUS withpositive HPV and who are at high risk for cervical cancer. Dr. Bahar breached this dutyby not performing a colposcopy and endometrial biopsy/curettage immediately once she received Ms. Hauerland's abnormal pap smear results which showed ASCUS and HPV.Ms. Hauerland was especially at high risk for cervical cancer in light of the abnormal pap smear, positive HPV, advanced age, and being sexually active.Dr. Bahar’s failure to perform a colposcopy and endomometrial biopsy/curettage early ledto a failure to diagnose Ms. Hauerland's cervical cancer at an early stage. Had Dr. Baharperformed a colposcopy and endometrial biopsy/curettage immediately after obtainingthe abnormal pap smear and positive HPV test, Ms. Hauerland's cervical cancer wouldhave been diagnosed at an early stage.Cervical cancer diagnosed at an early stage can be treated and cured by performing surgery and/or giving radiation treatment. Performing a surgical excision of the cervix or a hysterectomy can be curative for early stage cervical cancer. Both procedures are commonly performed by gynecologists. Dr. Bahar as a gynecologist was qualified to~perform these procedures, Gynecologists have a duty to treat and excise early cervicaland cervical cancer from their patients. Dr. Bahar had a duty to perform an excisionprocedure of Ms. Hauerland's cervix or perform a hysterectomy had Ms. Hauerland’scervical cancer been diagnosed at an early stage. Alternatively, had Ms. Hauerland beendiagnosed with cervical cancer at an early stage, Dr. Bahar could have referred Ms.Hauerland to a qualified gynecologic oncologist for further treatment.It is my opinion that, had Dr. Bahar performed a colposcopy and endometrialbiopsy/curettage immediately on Ms. Hauerland once the abnormal ASCUS pap smearand positive HPV results were known, her cervical cancer would have been diagnosed atan early stage. Had Ms. Haverland's cervical cancer been diagnosed at an early stage shewould then have been treated with surgery and/or radiation. In all probability, if Ms.Hauerland had been diagnosed and treated earlier, she would have been cured of cervicalcancer.In summary, Ms. Dianne Hauerland presented with clinical findings of an early pelvicmalignancy that became metastatic over the course of one year. Dr. Valerie Bahar wasthe primary provider that saw Ms. Hauerland initially over several months but failed totimely diagnose cervical cancer that should have been diagnosed, treated and cured.Failure to follow reasonable standard of care by Dr. Bahar in her clinical practice as anOB/Gyn led to the delayed diagnosis of cervical cancer in Ms. Hauerland whichultimately led to her death.My above opinions are based on my knowledge and experience as a board certified obstetrician and gynecologist who is currently in clinical practice. All the contents of this report are based on my extensive review of the record and the clinical decisions that were made by Dr. Valerie Bahar. espectt omilMicl eard, M.D., F.A.C.0.G.Bo ertifiédObstet nd GynecologyAttachment:1. American Society for Colposcopy and Cervical Pathology algorithm for treatment ofwomen with atypical squamous cells of undetermined significance.2. Screening Guidelines for Women Age 30 and Older (from a February 2004 article inObstetrics & Gynecology was published detailing the consensus reached on managementguidelines for women age 30 and older based on their results from a combination ofcervical cytology with High Risk HPV DNA testing.). Gynecology and Surgery 191 eS Appendix 2 ASC-US HPV DNA testi Repeat cytology Preferred If liquid-based cytology at 4-6 months or co-collection available a — “ev Negative 2ASC HPV positive HPV negative (for high-risk types) (for high-risk types) Repeat cytology Repeat cyto! at 4-6 months at 12 months Negative 2Asc ————»> Colposcopy a Routine No CIN/cancer CIN/cancer screening a HPVni HPV Manage per or unknown (for high-risk types) ASCCP guidelines at 6 and 12 months 2ASC or HPV(+) —= Repeat colposcopy Repeat at 12 months HPV DNA testing Negative —> Routine screening at 12 months FIG. 1. American Society for Colpascopy and Cervical Pathology (ASCCP) algorithm for treatment of women with atypical squamous cells of undetermined. significance (ASC-US) in special circumstances. HPV indicates human papillomavirus. (The Consensus Guidelines algorithm originally appeared in and are reprinted from The Journal of Lower Genital Tract Disease Vol. 6, Issue 2, and are reprinted with the per- mission of ASCCP © American Society for Colposcopy and Cervical Pathology 2002. No copies of the algorithms may be made without the prior consent of ASCCP.) I I) HiilL HHiNScreening Guidelines for Women Age 30 and OlderA February 2004 article in Obstetrics & Gynecology was published detailing the consensus reachedon management guidelines for women age 30 and older based on their results from a combination “ | aof cervical cytology with High-Risk HPV DNA testing. - Results obtained on cytology and High-Risk Hey DNA testing™ Cytology negative 6 Cytology negative Cytology ASC-US Cytology ASC-US Cytology > ASC-US. HPV negative HPY positive HPV negative .HPY positive any HPV result ' Routine screening ' Repeat both tests 4 Repeat cytology ' Colposcopy t Colposcopy at3 years at 6-12 months at 12 months Both negative Cytology ASC-US ! Cytology>ASC-US Any cytology result HPV negative HPV negative HPV positive ot - t Routine t Rescreen with t Calposcopy- t Colpascopy screening cytology and HPV at3 years at12 months 13 Management of specific combinations of test results: Cytology negative and High-Risk HPV DNA negati Taking into ve: and risk factors, rescreening consideration health jould ba no sooner than three years. © Cytology negative and High-Risk HPV DNA positive: Repeat both cytology and High-Risk HPV DNA tests in 6 to 12 months. If repeated test results are negative, rescreening should be no sooner than three years. If either repeated result is positive, a colposcopy should be performed for a more careful evaluation. If colposcopy is normal, tescreening with both tests should be performed at 12 months. © ASC-US result and High-Risk HPV DNA negative: Acytotog y be repeated in 12 months. test should © ASC-US result and High-Risk HPV DNA positive: A colposcopy should. be performed for a more careful evaluation. © Cytology results ASC-H, LSIL or HSIL and High-Risk HPV DNA negative or positive: A colposcopy should be performed for more careful evaluation. The combinad test results should be used in canjuncton with other clinical information when meking patient management decisions.4/84/2086 11:22 71342538777 WOMENS SPECIALISTS PAGE 82/87 MICHAEL J. HEARD, M.D., F.A.C.0.G. Obstetrics and Gynecology Reproductive Endocrinology and Infertility The Woman's Specialists of Houston 6624 Fannin Suite 1800 Houston, Texas 77030 713-425-3783 ‘Fax 713-425-3077 Email: mjheardmd@pol.net CURRICULUM VITAE Aug 2002-Present Houston REV/Private Practice Pesoic/Adolescont Gynecology ive Endocrinol and Infertility Aug 1999-July 2002 Baylor Collegeof Mati ine, Division of Reproductive Bndocrinology end logy Clinical/Research Fellow Nov 1995-Iuly 1999 Louisiana State University Medical Center, Shreveport, LA ent of Obstetrics and Gynacology Assistant Professor - Gratis Faculty ‘Aug 1995-Iuly 1959 2nd Medical Group Hospital, Barksdale Air Fores Base, LA OB/GYN Staff Physician June 199 1-June 1995 University of Teanester Hospital Systems, Memphis, TN Resident Physician ‘Aug 1987-May 1992 Bmory University School of Medicine, Decatur, GA Graduate Medical Sept 1983-June 1987 University af Georgia, Athens, GA B.S,, Microbiology/Minor Music Sept 1979-June 1983 Central Gwinnett High School, Lawrenceville, GA.~84/84/2086 11:22 71342538777 WOMENS SPECIALISTS PAGE 83/87 Care/Prim ‘Urgent Experience Care ary Tune 2000-Present Kingwood Urgent Care, Kingwood, Tx ‘September 2002-Presentt Doctors Care Clinio, Houston, Tx September 1996- March 2000 Schumpert Fitst Care, Shreveport, Le October 1995+ November 1997 Bossier Medical Center, Bossier City. La September 1993 ‘Mediquik Minot Med, Memphis, Tn 1992- ber Septem October 1993-July 1995 tow Minor Medical, German n, Th. Germantown Abstracty/Publications: ement of Missed sina Misoprosto nthe Qutpatient Man eA Alun stewart GM. Je Bust,
Related Contentin Harris County
Case
HOUSTON, DEMOND vs. WAL-MART STORES TEXAS LLC
Jul 10, 2024 |DEDRA DAVIS |Premises |Premises |202443249
Case
ULLOA, ALICIA (INDIVIDUALLY AND AS NEXT FRIEND A J (JR) AND A C) vs. CALDERON, DIANA
Jul 11, 2024 |JACLANEL M. MCFARLAND |Motor Vehicle Accident |Motor Vehicle Accident |202443511
Case
WORTHAM, ERIC NATHANIEL vs. TOTAL INDUSTRY SPECIALTY SERVICES INC
Jul 09, 2024 |FREDERICKA PHILLIPS |PERSONAL INJ (NON-AUTO) |PERSONAL INJ (NON-AUTO) |202443115
Case
OYEDELE, PETER vs. TRADER JOES EAST INC.
Jul 12, 2024 |CHRISTINE WEEMS |PERSONAL INJ (NON-AUTO) |PERSONAL INJ (NON-AUTO) |202443748
Case
COLEMAN, PAUL vs. LEI AG-WEST LOOP LLC (F/K/A HOTEL DEREK)
Jul 12, 2024 |DAWN ROGERS |Premises |Premises |202443702
Case
MARTINEZ, PABLO vs. MORENO, GUSTAVO
Jul 09, 2024 |BEAU MILLER |Motor Vehicle Accident |Motor Vehicle Accident |202443134
Case
GARZA, MONICA vs. BOSLEY, PAYTON
Jul 10, 2024 |BEAU MILLER |Motor Vehicle Accident |Motor Vehicle Accident |202443359
Case
GREEN, CHRISTOPHER vs. TOTE SERVICES, LLC
Jul 11, 2024 |MIKE ENGELHART |PERSONAL INJ (NON-AUTO) |PERSONAL INJ (NON-AUTO) |202443423
Case
RUIZ, ANGELICA (INDIVIDUALLY AND A/N/F RXXX, IXXXXX [A MINOR]) vs. DELATORRE, MARTIN
Jul 10, 2024 |MIKE ENGELHART |Motor Vehicle Accident |Motor Vehicle Accident |202443200
Ruling
Tierney, Ainsley vs. Raddigan, Ryann Elizabeth et al
Jul 15, 2024 |S-CV-0052402
S-CV-0052402 Tierney, Ainsley vs. Raddigan, Ryann Elizabeth et alNo appearance required. CMC is continued to 10/07/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Raddigan, Jared; Raddigan RyannAdditionally, no proof of service has been filed as to Defendant(s): Raddigan,Jared; Raddigan RyannPer Local Rule 20.1.7 D. If a party or attorney has a conflict with future hearingdates set in the Case Management Conference calendar notes, or opposes thefuture dates set in the Case Management Conference calendar notes, the party orattorney must appear at the Case Management Conference. That attorney or partymust provide at least 7 days’ notice to all other parties in the case of their intentto appear at the Case Management Conference. [Effective 1/1/19]07/15/2024 CMCin Dept. 6 at 3 PMCalendar Notes
Ruling
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS LATRISE SIMPSON
Jul 10, 2024 |20STLC05341
Case Number: 20STLC05341 Hearing Date: July 10, 2024 Dept: 25 Hearing Date: Wednesday, July 10, 2024 Case Name: State Farm Mutual Automobile Insurance Company v. Latrise Simpson, et al. Case No.: 20STLC05341 Motion: Motion to Vacate Dismissal and Enter Judgment Moving Party: Plaintiff State Farm Mutual Automobile Insurance Company Responding Party: Unopposed Notice: OK Recommended Ruling: Plaintiffs Motion to Vacate Dismissal and Enter Judgment is GRANTED. BACKGROUND On June 25, 2020, Plaintiff State Farm Mutual Automobile Insurance Company (Plaintiff) filed a Complaint alleging a single cause of action for Subrogation against Defendants Latrise Simpson (Defendant) and Does 1 to 10. The Complaint arises from Defendant colliding with the vehicle of Plaintiffs insured. On December 3, 2020, Defendant filed an Answer to the Complaint. On July 12, 2022, a Notice of Settlement was filed. On August 18, 2022, Plaintiff filed a Stipulation for Dismissal with Reservation to Vacate and Enter Judgment Upon Breach (the Stipulation). The Stipulation provides the following: this action shall be dismissed without prejudice. (Stipulation, ¶ 1.) Defendant shall pay $6,467.95, which is the settlement amount, in full settlement of this action. (Stipulation, ¶ 2.) According to the Stipulation [a]n initial payment of $4,667.95 shall be made by September 1, 2022 by Defendants insurance carrier, Progressive Insurance; then, beginning November 1, 2022, monthly payments of $50.00; then beginning May 1, 2023, monthly payments of $75.00; then beginning November 1, 2023, payments of $100.00 shall be made with all subsequent payments being due on the same day of each month thereafter until the settlement amount is paid in full. (Stipulation, ¶ 2.) The Stipulation provides that the parties stipulate that the Court retain jurisdiction of this matter pursuant to CCP § 664.6. (Stipulation, ¶ 3.) If Defendant fails to make a timely payment, then such failure is a material breach. (Stipulation, ¶ 3.) Any costs are capped at $500.00 pursuant to the Stipulation. (Stipulation, ¶ 3.) On August 24, 2022, the Court entered an Order for Dismissal with Reservation to Vacate and Enter Judgment Upon Breach (the Order), which dismissed this action without prejudice in its entirety but allowed the Court to retain jurisdiction to enforce the Stipulation pursuant to CCP § 664.6. (08/24/22 Order.) On April 12, 2024, Plaintiff filed and served the instant unopposed Motion to Vacate Dismissal and Enter Judgment. As of July 5, 2024, the motion is unopposed. Any opposition to the motion was required to have been filed and served at least nine court days prior to the hearing. (CCP § 1005(b).) MOVING PARTY POSITION Plaintiff contends that Defendant breached the Stipulation by failing to bring payments current, and it is entitled to have the dismissal vacated and judgment entered. OPPOSITION None filed as of July 9, 2024. REPLY None filed as of July 9, 2024. ANALYSIS I. Enforcing the Stipulation A. Legal Standard Code of Civil Procedure section 664.6 provides a summary procedure to enforce a settlement agreement by entering judgment pursuant to the terms of the settlement. Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182. [I]f the parties to pending litigation enter into a settlement either in writing signed by the parties or orally before the court, the court, upon a motion, may enter judgment pursuant to the terms of the settlement. Ibid. The court retains jurisdiction to enforce a settlement under the statute even after a dismissal, but only if the parties requested such a retention of jurisdiction before the dismissal. Ibid. Such a request must be made either in writing signed by the parties or orally before the court. Ibid. A court ruling on a motion under Code of Civil Procedure section 664.6 must determine whether the parties entered into a valid and binding settlement. Ibid. A settlement is enforceable under section 664.6 only if the parties agreed to all material settlement terms. Ibid. The court ruling on the motion may consider the parties declarations and other evidence in deciding what terms the parties agreed to. Ibid. If the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement. Ibid. Code Civ. Proc. § 664.6 expressly provides for the court to enter judgment pursuant to the terms of the settlement. Id. at p. 1183. It is widely recognized that the courts are not at liberty to revise an agreement under the guise of construing it. Series AGI Est Linn of Appian Group Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156, 164. A prevailing party is entitled to its costs in any action or proceeding. (CCP § 1032(b).) A prevailing party is a party with a net monetary recovery. (CCP § 1032(a)(4).) Except as attorneys fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties. (CCP § 1021.) B. Discussion In support of the motion, Plaintiffs counsel, Harlan M. Reese, Esq. (Reese), provides a declaration. Counsel declares that: on August 17, 2022, Plaintiff and Defendant entered into the Stipulation. (Reese Decl., ¶ 2; Ex. A.) On August 24, 2022, this action was ordered dismissed with reservation to vacate and enter judgment upon breach. (Reese Decl., ¶ 3; Ex. B.) Defendants insurance carrier made a one-time payment of $4,667.95. (Reese Decl., ¶ 4.) Defendant made monthly payments pursuant to the Stipulation totaling $375.00; however, Defendant has since defaulted on payments. (Reese Decl., ¶ 5.) Pursuant to the terms of the Stipulation, on or about March 14, 2024, Plaintiff mailed Defendant a letter regarding the missed payments; however, Defendant failed to cure the default. (Reese Decl., ¶¶ 6-7; Ex. C.) Plaintiff seeks to set aside the dismissal and enter judgment in the amount of $6,467.95, less the later payments of $5,042.95, plus court costs of $500.00, which amounts to total judgment in the amount of $1,925.00. (Reese Decl., ¶ 8.) The court costs consist of $370.00 for filing the Complaint, a $79.50 service of process fee, and a $60.00 motion fee. (Reese Decl., ¶ 7.) The Court finds that it has authority to enforce the Stipulation pursuant to Hines v. Lukes, supra, 167 Cal.App.4th 1174, 1182. Plaintiff and Defendant signed the Stipulation. The Court also has jurisdiction to enforce the Stipulation as the parties explicitly requestedand furthermore agreedthat the Court would retain jurisdiction to enforce such agreement. The Court furthermore determines that the parties entered into a valid and binding agreement. The declaration of Plaintiffs counsel sets forth the terms of the Stipulation and indicates that Defendant has breached the Stipulation. The Motion to Vacate Dismissal and Enter Judgment is therefore GRANTED. II. Conclusion Based on the foregoing, Plaintiffs motion is GRANTED. Moving party is ordered to give notic
Ruling
Kytonen, Stephanie Marie et al vs. Pelito, Pablo Tendero
Jul 22, 2024 |S-CV-0052450
S-CV-0052450 Kytonen, Stephanie Marie et al vs. Pelito, Pablo TenderoNo appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6. FirstAmended Complaint [filed 6/14/24] is not at issue - Need responsive pleading,default or dismissal as to Defendant(s): Kaiser Foundation Health Plan Inc;Kaiser Foundation Hospitals
Ruling
SIMON GEYSIMONYAN VS FREDDIE JUDSON
Jul 10, 2024 |22STCV32850
Case Number: 22STCV32850 Hearing Date: July 10, 2024 Dept: 55 NATURE OF PROCEEDINGS: Demurrer of Defendants SIOF 1 PROPERTIES, LLC, MARTIN MUOTO, ARI HORN, and GRAY LUSK to Second Amended Complaint. BACKGROUND This case consists of two consolidated cases related to a commercial lease dispute between the parties. In consolidated case number 22STCV38250, SIOF 1 PROPERTIES, LLC alleges claims against PHOOD FARMACY 2 LLC, ROBERT ANCILL, and THELMA ANCILL based on allegations that SIOF, as commercial lessor and lender, agreed to provide over $350,000 for Phood Farmacys improvements to prepare 1000 E. 60th Street, Los Angeles for occupancy to operate a restaurant, but Phood Farmacy abandoned the premises after about 7 months of possession and refuses to repay the loan or pay the rent. In consolidated case number 22STCV39896, PHOOD FARMACY 2 LLC, ROBERT ANCILL, THELMA ANCILL, and THE NEXT IDEA CONSULTING, LLC filed a Second Amended Complaint (SAC) against SIOF 1 PROPERTIES, LLC; MARTIN MUTO; ARI HORN; and GRAY LUSK (Demurring Defendants) regarding Demurring Defendants alleged failure to perform commercial lease agreements including preparations for the new restaurant. Those Causes of Action are (1) Breach of Contract, (2) Violation of Californias Unfair Competition Law, (3) Breach of Fiduciary Duty, (4) Accounting, (5) Intentional Misrepresentation, (6) Negligent Misrepresentation, (7) Intentional Interference with Prospective Economic Advantage, (8) Negligent Interference with Prospective Economic Advantage, (9) Conversion, (10) Unjust Enrichment, and (11) Promissory Estoppel. Demurring Defendants demur to the Fifth, Seventh and Eighth Causes of Action of the SAC. PHOOD FARMACY 2, LLC; THE NEXT IDEA CONSULTING, LLC; THELMA ANCILL; and ROBERT ANCILL (Opposing Plaintiffs) advocate overruling or leave to amend. LEGAL STANDARD Demurrers are to be sustained where a pleading fails to plead adequately any essential element of the cause of action. Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880. Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice. Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556. In ruling upon demurrers, courts treat as being true not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged. Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112. ANALYSIS 1. Fifth Cause of Action- Intentional Misrepresentation Demurring Defendants contend that, after the Court sustained the demurrer as to the same claims of the FAC, Plaintiffs Cause of Action for Intentional Misrepresentation still lacks particular descriptions of misrepresentations and financial statements allegedly made by Demurring Defendants. With regard to fraud claims, pleadings must allege facts as to how, when, where, to whom, and by what means the representations were tendered." Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. As to the degree of particularity required to allege fraud, considerations of practicality enter in. Miles v. Deutsche Bank Natl Trust Co. (2015) 236 Cal.App.4th 394, 403. A cause of action for promissory fraud must include specific factual circumstances from which a contemporaneous intent not to perform can be inferred. Hills Transportation Co. v. Southwest Forest Ind., Inc. (1968) 266 Cal.App.2d 702, 707. Here, the amendments contained in the SAC suffice to allege that the Demurring Defendants had made the 6/30/20 lease without intent to perform promises about creating space suitable for restaurant operation. E.g., SAC, ¶¶ 75, 96-101. Beyond the contract, the SAC alleges specific details of other promises, as to how, when, where, to whom, and by what means, representations were tendered. E.g., SAC, ¶¶ 75 (promises were the contract and oral), 76 (identities), 82 (representations of named parties about intent to remedy issues), 83 (8/1/22 representation by Defendant MARTIN MUOTO about cost of construction), 84-85 (8/31/22 representation by Defendant GRAY LUSK to Plaintiff ROBERT ANCILL via a schedule of costs), 86-88 (details of invoice representations), While arguably some of the representations are lacking in detail, the procedural rule applies that a demurrer does not lie as to only part of a claim. E.g., Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 (A demurrer must dispose of an entire cause of action to be sustained.). Therefore, the Court overrules the demurrer as to the misrepresentation claim. 2. Seventh and Eighth Causes of Action - Intentional and Negligent Interference with Prospective Economic Advantage Demurring Defendants contend that the SAC still does not allege an independently wrongful act and an actual disruption of any relationship. In response, Opposing Plaintiffs argue that, beyond just the lessors privilege to select tenants, the SAC alleges independent, wrongful acts designed to disrupt a known economic relationship, done by fraudulent promises such as a promise to lease the shared space, resulting lost economic benefit that was caused by not having the nearby office. The elements of a claim for intentional interference with prospective economic advantage are: (1) economic relationship existing between the plaintiff and third party, (2) probability of future economic benefit to the plaintiff, (3) defendant's knowledge of the relationship, (4) defendant's intentional acts designed to disrupt the relationship, (5) defendant engaged in an independently wrongful act in disrupting the relationship beyond just inducing disruption of economic advantage, (6) actual disruption of the relationship, and (7) economic harm to the plaintiff caused by the acts. Salma v. Capon (2008) 161 Cal.App.4th 1275, 1290. The elements of a claim for negligent interference with prospective economic advantage are (1) economic relationship between the plaintiff and a third party, (2) that contained a reasonably probable future economic benefit or advantage to plaintiff, (3) defendant knew of the existence of the relationship and was aware, or should have been, that if it did not act with due care, its actions would interfere with the relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage, (4) defendant was negligent, (5) negligence caused damage to plaintiff because of actual interference or disruption, and (6) plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship. North Amer. Chem. Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786. Specific facts are not required in order to allege disruption and loss. Cf. J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803 (court must assume the truth of all material allegations in the complaint&, including the allegations of negligence and cause in fact. The only question & is whether a cause of action for negligent loss of expected economic advantage may be maintained under these facts.). Furthermore, a complete disruption of an economic relationship is not required, but instead the loss may be only partial. See, e.g., N. Am. Chem. Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786787 (the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.). (Underscoring added.) First, the SAC sufficiently alleges Demurring Defendants oral promise to allow Opposing Plaintiffs to share commercial real estate space in relation to a partnership agreement between Plaintiff The Next Idea Consulting, LLC and LETA. E.g., SAC, ¶¶ 9, 38-42 and 143. Additionally, the SAC contains allegations inferring the fraudulent nature of the oral promise, based upon allegations of many other instances of fraudulent promises, reasonably inferring an ongoing pattern of those. E.g., SAC, ¶¶ 76-79, 82, 93, 106-107, 133 and 149. Second, the SAC adequately alleges SIOFs disruption causing at least a partial loss of benefits due to not being able to locate an office beside Phood Farmacy, including Robert Ancills resultant needing to travel regularly to different locations, and Opposing Plaintiffs inability to proceed with their partnership as planned. E.g., SAC, ¶¶ 144-148 and 164-168. In sum, the Court overrules the demurrer as to these claims. CONCLUSION The demurrer is overruled. Twenty days to answer.
Ruling
Eric Amadei vs Timothy Morgan, ESQ, et al
Jul 11, 2024 |23CV00719
23CV00719AMADEI v. MORGAN (UNOPPOSED) MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE AND FOR MONETARY SANCTIONS The unopposed motion is granted. Plaintiff seeks an order deeming the truth of all matters specified in his requests foradmissions, set one, propounded on defendant Morgan. Plaintiff also seeks monetary sanctions inthe amount of $2,145.00. I. Legal Authority Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), if a party fails toserve a timely response to requests for admission, the requesting party may move for an orderthat the genuineness of any documents and the truth of any matter specified in the request bedeemed admitted, as well as for monetary sanctions. Code of Civil Procedure section 2033.280, subdivision (c) requires the court to make thisorder “unless it finds that the party to whom the requests for admission have been directed hasserved, before the hearing on the motion, a proposed response to the requests for admission thatis in substantial compliance with Section 2033.220. It is mandatory that the court impose amonetary sanction under Chapter 7 (commencing with Section 2023.010) on the party orattorney, or both, whose failure to serve a timely response to requests for admission necessitatedthis motion.” II. Discussion Page 2 of 3 Pursuant to the Discovery Act, the court shall order the requests for admission asadmitted unless code-compliant responses are served before the hearing. (Code of Civ. Proc. §2033.280, subd. (c).) Plaintiff served requests for admissions, set one on April 5, 2024, via electronic service,on defendant. (Ex. 2 to Dec. of U. Singh.) Defendant failed to respond to the requests and has notcommunicated with plaintiff’s counsel regarding the requests. (Dec. of U. Singh at ¶ 8.) The court deems admitted all matters specified in requests for admissions, set one,attached to the Declaration of Mr. Singh as Ex. 2. (Code Civ. Proc. § 2033.280, subd. (b).) Thiswill be the order of the court unless defendant serves, before the hearing on the motion, aproposed response to the requests for admissions that is in substantial compliance with Code ofCivil Procedure section 2033.220. The court imposes monetary sanctions against defendant Morgan in the amount of$1,195.00, payable no later than July 31, 2024.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
JESUS AGUILAR SALMERON VS. AC STONE GROUP PTY LTD. ET AL
Jul 10, 2024 |CGC24614256
Matter on the Law & Motion calendar for Wednesday, July 10, 2024, Line 14. 1 - DEFENDANT COSTCO WHOLESALE CORPORATION DEMURRER to COMPLAINT. Off calendar. The Chan declaration fails to show that the parties met and conferred "in person, by telephone, or by video conference" in compliance with CCP 430.41. Plaintiff's counsel is ordered to comply with the code. The response to the complaint is now due August 7, 2024. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)
Ruling
IRMA LETICIA NILA, AN INDIVIDUAL VS COUNTY OF LOS ANGELES, A GOVERNMENTAL ENTITY, ET AL.
Jul 09, 2024 |22CHCV01127
Case Number: 22CHCV01127 Hearing Date: July 9, 2024 Dept: F51 JULY 8, 2024 MOTIONS FOR PROTECTIVE ORDERS (Special Interrogatories, Set One) Los Angeles Superior Court Case # 22CHCV01127 Motions filed: 1/22/24 MOVING PARTY: Defendants Ramon Lopez and Yolanda Cruz (collectively, Moving Defendants) RESPONDING PARTY: Plaintiff Irma Leticia Nila (Plaintiff) NOTICE: ok RELIEF REQUESTED: A protective order finding that (1) Plaintiffs Special Interrogatories, Set One, propounded on each Moving Defendant, need not be responded to; or, alternatively, (2) that the number of special interrogatories be appropriately limited, with each Moving Defendant provided at least 30 days after the Courts ruling to provide responses to the same. Moving Defendants also seek monetary sanctions to be imposed against Plaintiff and her counsel in the amount of $1,519.56. TENTATIVE RULING: The motion is granted in part. Moving Defendants to serve code-compliant responses to Plaintiffs Special Interrogatories, Set One, Nos. 7282, within 30 days. The Court declines imposing monetary sanctions against either party. BACKGROUND This is a personal injury action in which Plaintiff alleges that on 2/18/22, she was injured while exiting an apartment complex located at 11850 Gladstone Ave., Sylmar California 91342, when she tripped over a sidewalk elevated by a tree root and fell onto the concrete. (Compl. ¶ 11.) Plaintiff alleges that nonmoving defendants County of Los Angeles (the County) and City of Los Angeles (the City) owned and maintained the public sidewalk, and that Moving Defendants owned and maintained the surrounding property and curtilage. (Id. at ¶¶ 89.) On 11/10/22, Plaintiff filed the instant action, alleging against Defendants Negligence and Statutory Liability. On 12/16/22, the County filed its answer. On 12/27/22, Moving Defendants filed their answer. On 1/17/23, the City filed its answer and cross-complaint against Moving Defendants, alleging the following causes of action: (1) Indemnification; (2) Apportionment of Fault; and (3) Declaratory Relief. On 3/22/23, Moving Defendants filed their answer to the Citys cross-complaint. On 4/13/23, Plaintiff dismissed the County from the instant action without prejudice. On 12/21/23, Plaintiff served Moving Defendants with her first set of Special Interrogatories. (Ex. A to Decl. of Mineh Eisaeian.) On 1/22/24, Moving Defendants filed the instant motion for a protective order. On 6/24/24 and 6/25/24, Plaintiff filed her oppositions. On 7/1/24, Moving Defendants filed their replies. ANALYSIS A. Meet and Confer A motion for protective order must be accompanied by a meet and confer declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. (Code Civ. Proc. §§ 2030.090, subd. (a); 2016.040.) Here, Moving Defendants counsel declares that beginning on 1/3/24, she met and conferred with Plaintiffs counsel regarding the issues raised in the instant motion, but the parties were unable to come to a resolution. (Eisaeian Decl. ¶¶ 78.) While Plaintiff disputes the sufficiency of the meet and confer process, the Court finds that counsel has satisfied the meet and confer requirements of Code of Civil Procedure section 2030.090. B. Protective Order When document requests, interrogatories, or a deposition notice have been propounded, the responding party, may promptly move for a protective order. (Code Civ. Proc. §§ 2025.420, subd. (a), 2030.090, subd. (a), 2031.060, subd. (a).) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (Code Civ. Proc. §§ 2025.420, subd. (b), 2030.090, subd. (b), 2031.060, subd. (b).) Here, Plaintiffs Special Interrogatories, Set One, propounded to each Moving Defendant, consists of 82 interrogatories, seeking, inter alia, the identities of every person who owned, controlled, or maintained the subject premises, sidewalk, tree, tree well, and block. (Ex. A to Eisaeian Decl.) Moving Defendants argue that no circumstances exist in this straightforward trip and fall incident case that justify Plaintiff and her counsels serving both Defendants with 82 identical special interrogatories, which are excessive in number, not appropriately tailored, and are not warranted in this non-complex case. (Def.s Mot. 5:2126.) 1. Supporting Declaration The discovery statute requires a propounding party to attach a supporting declaration to special interrogatories exceeding the statutory limit of 35 interrogatories, based on any of the following reasons: (1) The complexity or the quantity of the existing and potential issues in the particular case; (2) The financial burden on a party entailed in conducting the discovery by oral deposition; (3) The expedience of using this method of discovery to provide to the responding party the opportunity to conduct an inquiry, investigation, or search of files or records to supply the information sought. (Code Civ. Proc. § 2030.040, subd. (a).) In the supporting declaration, the propounding party is required to state each factor described in Section 2030.040 that is relied on, as well as the reasons why any factor relied on is applicable to the instant lawsuit. (Code Civ. Proc. § 2030.050.) If the responding party seeks a protective order on the ground that the number of specially prepared interrogatories is unwarranted, the propounding party shall have the burden of justifying the number of these interrogatories. (Code Civ. Proc. § 2030.040, subd. (b).) Here, in support of Plaintiffs Special Interrogatories, Set One, Plaintiffs counsel declares that this number of questions is warranted under Section 2030.040 of the Code of Civil Procedure because of the complexity and/or the quantity of the existing potential issues in this particular case. (Ex. B to Eisaeian Decl., ¶ 8.) In bringing the instant motion, Moving Defendants argue that there are no facts included in the declarations supporting the conclusory assertions that additional special interrogatories are warranted because of the complexity and/or the quantity of the existing potential issues in this particular case. To the contrary, as demonstrated by the allegations in Plaintiffs complaint, the issues presented are not complex and there are few issues in this common place trip and fall incident case with a single cause of action for general negligence/premises liability. (Def.s Mot. 7:712.) Moving Defendants further argues that to the extent that Plaintiff intends to rely on the remaining reasons provided in the statute, these arguments fail because Plaintiffs counsel also fails to assert the interrogatories are being used in lieu of taking Defendants oral depositions. & Nowhere does Plaintiffs counsel claim the interrogatories are a more expedient method for to obtain the information from other means of discovery ot [sic] to demonstrate the same. (Def.s Mot. 7:268:1, citing Ex. B to Eisaeian Decl.; Code Civ. Proc. § 2030.040, subds. (a)(2)(3).) In opposition, Plaintiff mistakenly asserts that the burden of proof belongs to Moving Defendants, as the responding parties, to establish the undue burden of responding to Plaintiffs special interrogatories. (Pl.s Opp. 6:1617, citing Williams v. Superior Court (2017) 3 Cal.5th 539, 549.) While this may be the usual rule for protective orders, here, the statute explicitly provides that the filing of the instant motion challenging Plaintiffs supporting declaration shifts the burden to Plaintiff as the propounding party to justify the number of interrogatories. (Code Civ. Proc. § 2030.040, subd. (b).) To meet that burden of proof, the propounding party must establish facts that specifically support the reasons given in the declaration. (Cal. Judges Benchbook Civ. Proc. Discovery § 18.14.) Here, the Court agrees with Moving Defendants that the conclusory assertion in Plaintiffs declaration for additional discovery that number of requests is warranted because of the complexity and the quantity of the existing and potential issues in this particular case does not suffice because it does not articulate why the alleged complexity or quantity of issues warrant the excessive number of special interrogatories. (Def.s Reply 3:912.) Plaintiff merely argues that pursuant to the Courts ruling in Rifkind, the subject written interrogatories are the more appropriate and expedient method for Plaintiff to obtain information relating to those legal contentions and defenses contained within Defendants Answer to the Complaint and Defendants Answer to the Cross-complaint. Such responses will permit Plaintiff and its counsel to take an informed and thorough deposition of Defendant in order to obtain that information which is necessary for this matter to be tried on its merits. (Pl.s Opp. 7:1217.) In Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, the Court of Appeal held that deposition questions may ask a deponent about the basis for, or information about, factual conclusions or assertions, but not the basis for a legal conclusion. If a deponent says that a certain event happened at a particular time or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her knowledge about it, and for similar information of a factual nature. (Rifkind, 22 Cal.App.4th at 1259.) However, in contrast, deposition questions that call for a witness legal contentions are improper because legal contention questions require the party interrogated to make a law-to-fact application that is beyond the competence of most lay persons. & Even if such questions may be characterized as not calling for a legal opinion & or as presenting a mixed question of law and fact & their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot. There is no legitimate reason to put the deponent to that exercise. If the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory. (Id. at 1262.) Here, the Court notes that only Special Interrogatory Nos. 7282 ask for each Moving Defendants legal contentions, which Rifkind limits to written interrogatories as opposed to oral deposition questions. As to the remaining 71 interrogatories, Plaintiff has not made a sufficient factual showing that the number of interrogatories is warranted based on the complexity and/or quantity of the existing and potential issues in the case. (Code Civ. Proc. § 2030.040, subd. (a)(1).) The Court also finds that as Plaintiff has not opted to rely on any of the other reasons provided in the statute in her supporting declaration, the Court disregards any additional argument to that extent. (Id. at subds. (a)(2)(3).) Based on the foregoing, the Court limits the number of Plaintiffs Special Interrogatories, Set One, to Special Interrogatory Nos. 7282. The Court notes the parties arguments concerning the substance of the subject interrogatories but declines to reach them in light of the foregoing, and because these issues were not raised during the meet and confer process. C. Sanctions The court shall impose a monetary sanction & against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc. §§ 2025.420, subd. (h), 2030.090, subd. (d), 2031.060, subd. (h).) Additionally, the 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. (Code Civ. Proc. § 2023.030, subd. (a).) Here, Moving Defendants request monetary sanctions in the amount of $1,519.56 per motion to be imposed on Plaintiff and her counsel, totaling $3,039.12. This amount includes: (1) 9.1 hours of Moving Defendants attorneys time spent preparing the instant papers and appearing at the hearing, at counsels hourly rate of $160.17 per hour; and (2) $61.65 in filing fees per motion. (Eisaeian Decl. ¶¶ 1011.) The Court notes that these calculations yield a total of $3,038.39. In opposition, Plaintiff requests monetary sanctions in the total amount of $1,500.00 to be imposed on each Moving Defendant and their counsel, totaling $3,000.00, which encompasses (1) 5 hours of Plaintiffs counsels time preparing each opposition; and (2) 1 hour attending each hearing, at counsels hourly rate of $250.00 per hour. (Decl. of Andrew J. Lopez, ¶ 10.) Based on the foregoing, the Court finds that monetary sanctions are not warranted in this instance because neither party was completely successful in making or opposing the motion. CONCLUSION The motion is granted in part. Moving Defendants to serve code-compliant responses to Plaintiffs Special Interrogatories, Set One, Nos. 7282, within 30 days. The Court declines imposing monetary sanctions against either party.
Ruling
ROBERT SANG LEE VS LORNA KIM, ET AL.
Jul 09, 2024 |22STCV12924
Case Number: 22STCV12924 Hearing Date: July 9, 2024 Dept: 73 7/09/2024 Dept. 73 Hon. Rolf Treu, Judge presiding ROBERT SANG LEE v. LORNA KIM, et al. (22STCV12924) Counsel for Plaintiff/moving party: Jack Karpeles Counsel for Defendants/moving party: Marc Shapiro (Hanger, Steinberg, Shapiro & Ash) DEFENDANTS motion for TERMINATING SANCTIONS, OR IN THE ALTERNATIVE, ISSUE AND/OR EVIDENTIARY SANCTIONS; REQUEST FOR MONETARY SANCTIONS (filed on 02/06/24) TENTATIVE RULING Defendants Motion for Sanctions against Plaintiff is GRANTED in part as follows: (1) DENIED as to terminating, issue and evidentiary sanctions; and (2) GRANTED as to monetary sanctions in the amount of $4,340, to be paid within 30 days. I. BACKGROUND On July 27, 2022, Plaintiff Robert Lee filed this action against Defendants William Kim and Lorna Kim. Plaintiffs First Amended Complaint asserts causes of action for: (1) Libel and (2) Slander. The Complaint alleges that beginning in late April 2021, Defendants Lorna Kim and her husband William Kim began a defamatory campaign accusing Lornas uncle, Plaintiff, of molesting Lorna as a child. The Complaint further alleges Defendants published these defamatory statements by speaking and sending text messages to family members and building tenants. On February 6, 2024, Defendant Lorna Kim filed this Motion for Terminating Sanctions, or in the alternative, Issue and/or Evidentiary Sanctions, and request for Monetary Sanctions, against Plaintiff, arguing: · Plaintiff failed to obey this Courts January 26, 2024 order compelling the deposition of Plaintiff. On February 6, 2024, Plaintiff failed to appear for his court-ordered deposition. · Defendant has been hindered in preparing a defense to Plaintiffs claims as Plaintiff has now failed to appear for deposition for over two months since it was first timely noticed. · This Court should grant terminating sanctions, dismissing Plaintiffs complaint with prejudice. · In the alternative, Defendant requests that the Court impose issue sanctions precluding Plaintiff from testifying at trial and asserting any claims that Defendant was liable for any incident claimed in this lawsuit, or that Plaintiff suffered any damages whatsoever as a result of said incident(s). Alternatively, Defendant requests that the Court impose evidentiary sanctions precluding Plaintiff from introducing any evidence in support of his allegations that Defendant is liable for any incident or that Plaintiff suffered any damages. · In addition to terminating, issue and evidence sanctions, the Court may impose monetary sanctions for a partys misuse of the discovery process. Defendant requests monetary sanctions in the amount of $3,865.00. Plaintiff filed an opposition, arguing: · Plaintiff requests leave of court to excuse this late filing on the grounds that he was diverted into and absorbed by trial readiness for the voluminous companion case of Jong Soo Park v. Ben Hang Lee, 22STCV03583; FSC, June 24, 2024; jury trial, July 8, 2024; Hon. Holly J. Fujie, LASC Dept. 56. Fortunately, the court a few days ago continued the trial date. · The Court rulings of January 26, 2024, February 7 & 8, 2024, and June 5, 2024 acknowledged that meet & confer was needed but was absent. At a minimum Moving Party could have moved the Court for an Informal Discovery Conference, where meet & confer would take place. Defendant filed a reply, arguing: · Plaintiffs opposition was untimely and received by Defense counsel on July 1, 2024, the day the Reply was due. The Opposition is untimely and should be disregarded. Plaintiff has not presented this Court with any valid excuse. · Only two things are absolutely required to grant terminating sanctions; a failure to comply, and that the failure was willful. (See R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) Both are clearly met here. · Additional monetary sanctions are warranted. Plaintiff failed to appear for his deposition yet again on February 20, 2024, after this motion was filed. (Kerr Decl., ¶ 3.) Defendant incurred another Court Reporter fee in the amount of $475.00, and respectfully requests this amount be added to any sanctions awarded, bringing the total request to $4,340.00 against Plaintiff and his attorney of record II. ANALYSIS A. Legal Standard A misuse of the discovery process is failing to respond or to submit to an authorized method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).) A misuse of the discovery process also includes disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (g).) A court may impose issue sanctions, evidence sanctions, or monetary sanctions against a party engaging in misuse of the discovery process. (Code Civ. Proc. § 2023.030.) Where an issue sanction is imposed, designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (b).) An issue sanction may also involve any party engaging in misuse of the discovery process from supporting or opposing designated claims or defenses. (Code Civ. Proc., § 2023.030, subd. (b).) An evidence sanction involves an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030, subd. (c).) A terminating sanction may be imposed by the court by one of the following orders: (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; or (4) an order rending judgment by default against that party. (Code Civ. Proc., § 2023.030, subd. (d)(1)-(4).) The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Ibid.) [C]continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.) Where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with discovery rules, the trial court is justified in imposing the ultimate sanction. (Ibid.) A trial court has broad discretion to impose discovery sanctions, but two facts are generally a prerequisite to the imposition of nonmonetary sanctions. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.) Where discovery sanctions are requested against a party, there must be a failure to comply with a court order and the failure must be willful. (Ibid.) A decision to order terminating sanctions should not be made lightly. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) A trial courts order to impose terminating sanctions will be reversed only if it was arbitrary, capricious, or whimsical. (Ibid.) Trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Terminating sanctions are warranted when a partys lack of compliance with the discovery process has caused the opposing party prejudice. (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 989.) B. Request for Judicial Notice Plaintiff requests the Court take judicial notice of the following: 1. January 26, 2024, ruling of the court in Los Angeles Superior Court case Robert Lee v. Lorna Kim, 22STCV12924; 2. Plaintiffs Opposition to Second Further Declaration of Christopher G. Kerr in Los Angeles Superior Court case Robert Lee v. Lorna Kim, 22STCV12924; 3. Plaintiff Robert Lees February 6, 2024, Points and Authorities in Support of Ex Parte Application to Enforce Court Order on Depositions in Los Angeles Superior Court case Robert Lee v. Lorna Kim, 22STCV12924; 4. Plaintiff Robert Lees February 7, 2024, Plaintiffs Opposition to Defendant Lorna Kims Ex Parte Application in Los Angeles Superior Court case Robert Lee v. Lorna Kim, 22STCV12924; 5. February 6, 2024, Defendant Lorna Kims Notice of Motion and Motion for Terminating Sanctions, in Los Angeles Superior Court case Robert Lee v. Lorna Kim, 22STCV12924; 6. February 7, 2024, ruling of the court in Los Angeles Superior Court case Robert Lee v. Lorna Kim, 22STCV12924; 7. February 8, 2024, ruling of the court in Los Angeles Superior Court case Robert Lee v. Lorna Kim, 22STCV12924; 8. June 5, 2024, ruling of the court in Los Angeles Superior Court case Robert Lee v. Lorna Kim, 22STCV12924. The court may take judicial notice of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States, [r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States, and [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452, subds. (c), (d), and (h).) The Court may take judicial notice of its own file. (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500.) The Court grants Plaintiffs requests for judicial notice. C. Timeliness of Plaintiffs Opposition As an initial matter, the Court notes that Plaintiff failed to timely file his opposition. Opposition papers are required to be filed and served at least nine court days prior to the hearing under California Code of Civil Procedure (CCP) section 1005, subdivision (b). Here, Plaintiffs opposition was filed on June 28, 2024 and received by Defendant on July 1, 2024, the same day Plaintiffs reply was due. Plaintiff asserts his opposition was filed late because he was diverted into and absorbed by trial readiness in another case. (Oppos., pp. 1-2.) The Court does not find Plaintiffs excuse warranted the late filing. However, a court may properly consider papers that are not timely filed pursuant to CCP section 1005(b) unless substantial rights are affected. (Cal. Rules of Court, rule 3.1300(d); Code Civ. Proc., § 475.) Since Defendant was able to respond to Plaintiffs opposition in her Reply, the Court, in its discretion, considers the arguments raised in Plaintiffs late filed opposition. D. Discussion Defendant moves for terminating sanctions against Plaintiff and seeks an order dismissing the case, or alternatively, Defendant seeks issue sanctions precluding Plaintiff from testifying at trial and asserting any claims that Defendant was liable for any incident claimed in this lawsuit, or that Plaintiff suffered any damages whatsoever as a result of said incident(s), or evidentiary sanctions precluding Plaintiff from introducing any evidence in support of his allegations that Defendant is liable for any incident or that Plaintiff suffered any damages. On January 26, 2024, this Court granted Defendants Motion to Compel the deposition of Plaintiff. (Kerr Decl. ¶ 3, Exhibit 1.) Defendant then noticed the Court-ordered deposition of Plaintiff for February 6, 2024. (Kerr Decl. ¶ 4.) However, Plaintiff failed to appear for his deposition on February 6, 2024 and February 20, 2024. (Kerr Decl. ¶ 13, Suppl. Kerr Decl., ¶ 3.) The Court does not grant terminating sanctions at this time. As the court stated in Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279, 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. The Discovery Act envisions an incremental approach to sanctions, and monetary, issue and evidentiary sanctions have not yet been imposed against Defendant. As stated in Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 992, discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Further, this is Plaintiffs first failure to comply with an order for the production of evidence and Defendant has not shown that lesser sanctions would not prevent further discovery abuse. Therefore at this time, the Court grants Defendants request for monetary sanctions against Plaintiff. California Code of Civil Procedure, Section 2023.030 provides that [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. A court has discretion to fix the amount of reasonable monetary sanctions. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) Counsels declaration in support of the instant motion sets forth counsels costs and fees, including counsels time spent on the motion at the hourly rate of $300 and costs incurred such as the Court Reporter fees. Counsel attests that Plaintiff will and has incurred attorneys fees and costs totaling $4,340. Due to Plaintiffs failure to appear for his court-ordered depositions, the Court grants monetary sanctions against Plaintiff in the amount of $4,340. Accordingly, sanctions are imposed against Plaintiff and his attorney of record. Plaintiff is ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $4,340, within thirty (30) days. II. DISPOSITION Defendants Motion for Sanctions against Plaintiff is GRANTED in part as follows: (1) DENIED as to terminating, issue and evidentiary sanctions; and (2) GRANTED as to monetary sanctions in the amount of $4,340, to be paid within 30 days.
Document
Jul 08, 2024 |ELAINE H PALMER |MALPRACTICE (MEDICAL) |MALPRACTICE (MEDICAL) |202442928
Document
LAURA MONJARAS (INDIVIDUALLY AND A/N/F OF E.A.M AN vs. LEE, WILLIAM
Jul 12, 2024 |MIKE ENGELHART |Motor Vehicle Accident |Motor Vehicle Accident |202443649
Document
MONTENEGRO, BERNARDO GOMEZ vs. CHI ST. LUKE?S HEALTH BAYLOR COLLEGE OF MEDICINE M
Jul 10, 2024 |RAVI K. SANDILL |MALPRACTICE (MEDICAL) |MALPRACTICE (MEDICAL) |202443350
Document
MONDRAGON, ANTONIO vs. CASTILLO, MARIA
Jul 09, 2024 |MIKE ENGELHART |Motor Vehicle Accident |Motor Vehicle Accident |202443111
Document
NGUYEN, DEBORAH vs. LI, HAIMEI
Jul 10, 2024 |LAUREN REEDER |Motor Vehicle Accident |Motor Vehicle Accident |202443329
Document
RODRIGUEZ, KEVIN NIETO vs. BAKER DISTRIBUTING COMPANY LLC
Jul 10, 2024 |MIKE ENGELHART |Motor Vehicle Accident |Motor Vehicle Accident |202443226
Document
BCEFGI GRAND BLVD MANAGER LLC (INDIVIDUALLY AND DERIVATIVELY ON BEHALF vs. ARDMORE PROPERTY LLC
Jul 11, 2024 |DEDRA DAVIS |FRAUD |FRAUD |202443543
Document
CARPENTER, ADRIAN (SR) (INDIVIDUALLY AND AS NEXT FRIEND OF A C J AND vs. MONTEMAYOR, CLARO A
Jul 10, 2024 |TAMIKA CRAFT-DEMMING |Motor Vehicle Accident |Motor Vehicle Accident |202443303