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FILED 8/23/2024 10:04 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Kryshawna Charleston DEPUTY CAUSE NO. DC-19-08867INTERNATIONAL AMERICAN IN THE DISTRICT COURT OFEDUCATION FEDERATION, INC. D/B/AINTERNATIONAL LEADERSHIP OFTEXAS AND D/B/A TEXAS CHARTERSCHOOL, Plaintiff,v. 134" JUDICIAL DISTRICTTCSF8-GRAND PRAIRIE HS, LLC, RJFORT WORTH I, LLC, et al, Defendants, v. DALLAS COUNTY, TEXAS LASCO LATH & PLASTER, INC., et al, Third-Party Defendants. EXHIBIT M TO DEFENDANT’S MOTION FOR CONTINUANCE AND, SUBJECT THEREO, OPPOSITION TO PLAINTIFF’S NO-EVIDENCE MOTION FOR PARTIALSUMMARY JUDGMENT ON DEFENDANT HILL & WILKINSON CONSTRUCTION GROUP, LTD.’S AFFIRMATIVE DEFENSESre) Mark Mitchell February 07, 2023 Cause No. DC-19-08867INTERNATIONAL AMERICANEDUCATION FEDERATION, INC., IN THE DISTRICT COURT OFD/B/A INTERNATIONAL LEADERSHIPOF TEXAS AND D/B/A TEXASCHARTER SCHOOL, Plaintiff,VvTCSF8-GRAND PRAIRIE HS, LLC, RJ )FORTH WORTH I, LLC, THE CHARTER ) 134th JUDICIAL DISTRICTSCHOOL FUND - EIGHT, LLC, GC )GRAND PRAIRIE CHARTER, LLC, )FIRST AMERICAN EXCHANGECOMPANY, LLC, THE CHARTERSCHOOL FUND-RJ, LLC, AND HILL &WILKINSON CONSTRUCTION GROUP,LTD., BRS ARCHITECTS, AIA, PCD/B/A BRS ARCHITECTS, INC., ANDSTAPLEY ENGINEERING, PA, DALLAS COUNTY, TEXAS Defendants,VvGALINDO & BOYD WALL SYSTEMS,LLC; LASCO LATH & PLASTER,INC.; MAVERICK FRAMING, INC.;PETRI ELECTRIC, INC.; Caption Cont'd DEPOSITION OF MARK MITCHELL TAKEN FEBRUARY 7, 2023 REPORTED BY: DIANA KILPATRICK, CSR No. dan RPR Notary Public U.S. Legal Support | www.uslegalsupport.com Defendant H&W Exhibit MMark Mitchell February 07, 2023 Page 2 Page 4 OUTH CONSTRUCTION SERV: ICES, INC.; APPEARANCES, cont’ D VENTURE MECHANICAL, INC.; BARRERA For Hawkins anes: PLUMBING, Luce KENT COMPANIES, INC.; PM XCONSTRUCTION, LLC; NORTH TEXAS Law Office of Sandy McCorquodale, SONTRACTING, INC.; STERLING ROOF BY JAMES "Sandy" MCCORQUODALE YSTEMS, INC. LASCO ACOUSTICS « 12700 Hillcrest Road, Suite 125 DRYWALL, INC.; L: IDSAY GLASS Dallas, Texas 75230 SYSTEMS; A&A LANDSCAPE 4 IRRIGATION, sandy@smqlaw.com Pe, For Maverick ‘raming: Third-Party Defendants. (Present remotely) 10 Martin, Disiere, Jefferson & Wisdom, LLP 1 BY ZACH LUCTO 12 9111 Cypress Waters Boulevard, Suite 25010 13 Pallas, Texas 75019aL 14 lucio@mdjwlaw.com12 15 For Lasco Lath & Plaster:131a 16 (Present remotely)15 7 Cutler-smith, P.c.16 18 BY NGA ANa7 19 ark Central 718 2019 12750 Merit Drive, Suite 145020 21 Dallas, Texas 7528121 22 ntran@cutler-smith m22 23 “it 24 “et2425 25 “at Page 3 Page 5 THE DEPOSITION OF MARK MITCHELL wa! ken on APPEARANCES, conT’D behalf o the Defendants at the office of Hawkins 2 For Venture Mechanical, Inc. + Companies, 855 West Broad Stree! Suite 300, Boise, (Present remotely) Idaho, commencing at 1:18 p.m. on February 202. 3, Payne & Blanchard, LLP before Diana Kilpat c Certified shor and Repor BY KEVIN J. COOK and Notary Public within and for the State of Idaho, in 717 North Harwood Street, Suite 2880 the above-entitled matter. Pallas, Texas 75201 APPEARANCES kcook@pandblaw.com For e intifé: For RPM xConstruction:10 resent remotely) 10 (Present remotely)a Gravely 2c 11 Touchstone Bernays12 BY MATT SOLIDAY 12 BY TRAY: LIVERMORE13 16018 v a Shavano 13 1717 Main Street, suite 340014 a an Bi nio, Texas 79249 14 Dallas, Texas 7520119 msoliday@gravely.law 15 travis.livermore@tbjbs.com16 For Hill & Wilkinson Construction Group, LTD 16 For North Texas Contracting:VW Mira Blanton PLLC 7 (Present remotely)18 BY TRICK EB. “CENE" BLANTON 18 Litehfield Cavo, LLP19 8235 Douglas Avenue, Suite 805 19 By ss. JAN EUEBER20 Dallas, Texas 75225 20 100 Throckmorton Street, Suite 500aL gene blanton@mix blanton.com 21 Fort Worth, Texas 76102 wy 22 hueber@litchfieldcavo.com23 we 23 wt24 we 24 wiee25 wt 25 wt U.S. Legal Support | www.uslegalsupport.com 2 to 5 Defendant H&W Exhibit MMark Mitchell February 07, 2023 Page 6 Page 8 APPEARANCES, conT’D APPEARANCES, cont’ D For Sterling Roof Systems, Ine. For Kent Companies, Inc.: (Present remotely) Chamblee Ryan Law O£E. of Steward K. smith BY MICHAEL B. BEARN BY WART K SMITE 2777 North Stemmons Freeway, Suite 1257 321 North Central Expressway, Suite 230 Dallas, Texas 75207 McKinney, Texas 75070 mhearn@cr. law ssmith@unitedfiregroup. rn For Barrera Plumbing, LLC: © Lindsay Glass Systems: (Present remotely)10 (Present remotely) 10 Flowers Davis, PLLCaL Law Offices of Gallerson, Bolder, + rence & 11 BY PRE ON Ww MCGEE12 Seymore 12 1021 BSE Loop 323, Suite 20013 BY CHASE LINCER 13 Tyler, Texas 757011a 8070 Park Lane, Suite 200 14 pmegee@flowersdavis.com1s Dallas, Texas 75231 1516 joseph. lincer@linertymutual.com 16ay For Lasco Acoustics & Drywall, Inc 718 (Present remotely) 1819 Walters Balido & Crain 1920 BY ALLISON KALIS 2021 9020 North Capital of Texas Highway 2122 Building 1, Suite 70 2223 Austin, Texas 78759 2324 allison. kalis@woclawfirm. ‘om 2425 wa 25 Page 7 Page 9 APPEARANCES, CONT'D INDEX For A&A Landscape and Irrig tion, L.P.: TESTIMONY OF MARK MITCHELL PACE (Present remotely) QUESTIONS BY MR. BLANTON 10 Mayer LLP EXAMINATION BY Ms KALIS 6 BY Wi LIAM R. eo JONES EXAMINATION BY MR. LIVERMORE 4 750 North Saint Paul Street, Suite 700 EXAMINATION BY MR. LUCIO Dallas, Texas 75201 EXAMINATION BY MR. MILLER 52 bjones@mayerllp.com EXAMINATION BY MR. JONES 53 For Venture Mechanical, Ine : EXAMINATION BY Ms ER 5410 (Present remotely) 10 EXAMINATION BY MR. REILY 54qt Miller Knauff Law Firm un EXAMINATION BY MR. LINCER 5512 BY E MILI R 1213 12221 Merit Drive, Suite 1210 13 5 KHIBIT 7814 Dallas, Texas 752: 14 ‘None marked. ***a mmiller@mklawpc.com 1s16 For Southwest Construction Services, DBA Southwest 16a7 Sealers u18 (Present remotely) 1819 Macdonald Devin Madden Kennefick Harris 19 BY READ H. LY 2021 12770 Coit Road, Suite 1100 2122 Dallas, Texas 75251 2223 rreily®macdonalddevin.com 2324 Ww 2425 Ww 25 U.S. Legal Support | www.uslegalsupport.com 6 to 9 Defendant H&W Exhibit MMark Mitchell February 07, 2023 Page 10 Page 12 MARK MITCHELL, $20 million. first duly sworn to tell the truth relating to said Q. And Mr. Mitchell, how long have you held the cause, testified as follows: title, director of construction? MR. SOLIDAY: Before we start, I just t A, Little xr two years now. to get it on the record that Plaint: £ objects to the Q. And prior to being the director of deposition moving forward at this t in time. We had construction, what was your job title for the Hawkins a lawyer who was prepared to be here today who fell ill Companies? and is not able to make it. fe reserve the right to A, Construction manager. re-depose this witness, and we object to any testimony Q. How long were you construction manager for10 of the witness without the Plaintiff being present and 10 the Havkins Companies? prepared in the process, and not being a le to be given 1l A About 1 years,12 the opportunity to pr for today's deposition, 12 Q. Give or take from 2010 until roughly 2020,13 So with that objection and the right to 13 21, you were a construction manager for Hawkins4 reserve our questions and call this witness again, go 4 Companies?15 ahead, Gene. 15 A It was two stints with Hawkins Companies. iT16 MR. BLANTON: Defendant and Third-Party 16 3 here fram 2006 to '9. I was not with Hawkins duringv7 Plaintiff, so reserves all rights to Hill & Wilkinson, 7 the downturn. Came to work for Hawkins 2013.18 any objections made by counsel for ntif - with the 18 Sometime 2013. So 2013 through almost 2020 I wasa understanding, hopefully we will re re all those as struction manager.20 ater date, but we will go ahead and move forward now 20 Q. What were your job duties as a constructiona EXAMINATION 21 manager for Hawkins Companies?ae QUESTIONS BY MR. BLANTON: a A, Menage, oversee process for projects that23 Q. Mr. Mitchell, good afternoon. aa required construction as part of our development.24 A Good aftern: a 24 Q. Does that mean that you would physically go25 2 How are you today? 25 out to the projects? Page 11 Page 13 A Fine, thank you. A, Occasionally. 2 Can you please give me your full name? Q. How often would you typically go out to a A Mark Gordan Mitchell. ject? Q And Mr. Mitchell, what is your current Depending on the pro’ , once every couple address? weeks on maybe larger, longer p 8. Sometimes A,3359 West Via Del Sol Drive, Phoenix, once a month, Really just as a project calls for. Arizona, 85027. Q. Mr. Mitchell, what was your role on any of Q. And Mr. Mitchell, do you predominantly live the ILT school projects located in the state of Texas? in Phoenix, Arizona? A I was involved with one ILT project, Grand10 A, Yes. 10 Prairie, as the constr ction manager.1 Q. And what is your current job title? 1 Q. And what did you do on the Grand Prairie12 A, Director of construction. 12 project as the construction manager?13 For which company? 13 A Just oversee the process, manage4 Hawkins Companies. 14 consultants, watched over -- I guess, I don't think,15 And how long have you been with Hawkins a with con cts, I don't ink we wrote that contract,16 Companies? 16 but managed process, budgets schedules. Just atVW About 13 yea! aS. 17 overall. I don't think th e any day-to-day18 And what types of projects do you primarily 18 ac vity.19 work on for the Hawkins Companies? 19 Q. What is your understanding of the Hawkins20 A, Well, our company as a e is mostly 20 Companies’ role on the Grand Prairie ILIX project?a retail, comercial, sone family, some storage facility, oe A, Well, just bec! ‘of-house as far Hawkinsie charter schools. a Companies I can only spe fi what I was responsible23 Q Is there a dollar value associated with the 23 to do, so I don't know, with Haw ns as a whole, what24 types of projects that you typically handle? 24 their responsibilities wes.25 A, It varies. From 2 million dollars up to 25 Q. Do you know if Hawkins had any partners on U.S. Legal Support | www.uslegalsupport.com 10 to 13 Defendant H& W Exhibit MMark Mitchell February 07, 2023 Page 14 Page 16 this project? Q. Can you tell me what the status of A I'm not aware of what the partner, if there construction, if any, was, whenever you came to the was partners. project? 2 ‘Do you know who Athlos is? A, I dot t believe any struct A, I've heard of Athlos. commenced, 2. Did you work with Athios on this project? Q. Can you generally describe for me the A, I worked with Athlos. I don't recall if process that Hawkins uses in developing one of these they were -- where they were at with this project. I've school. projects? worked with then on other projects. A, From an entire land developnent standpoint?10 Q. As the construction manager for Hawkins 10 Q. Yeah. I you can. I'm trying to get an1 Companies on the Grand Prairie ILIX project, who did you ln idea of when Hawkins got involved from, let's just say12 report to? 12 identifying a piece of dirt, to ultimately there's a13 A, Within my compa: 13 charter school constructed that is then leased and4 Q. Yes. 4 ocoupied and sold, Where in the process does Hawkins15 A, Our director of construction. 15 come into thls?16 And who was that? 16 A, I imagine it would vary depending on the7 Doug Matthews. 7 project. For this particu r project, I took over as18 Is Mr, Matthews still with the company? 18 the construction manager, I believe it was designeda He is jot. as already, permitted, po: bly. Cont: ted, I believe.20 Do you know when he left? 20 Q. And when you say contracted, you mean therea Tt would have been 2019. 21 was an agreenent between the developer, the owner, and22 Do you have any idea as to the circ*mstances 22 the general contractor?23 related to his departure? 2323 A, Yes.24 A I do not. 24 Q. And would it refresh your memory if I told25 Q. Can you describe for me what you meant when 25 you that the agreement between the general contractor Page 15 Page 17 you said part of your job duties as the construction and the developer/owner was in January of 2016? manager on the Grand Prairie project included you A, Sorry. State that again. managed the consultants? What does that mean? Q. ‘The agreement between the general contractor A ene £ REIs needed responding to or and the owner is dated Januaryof 2016. submittals wes eeding responding to, we were just 2 A, Okay. liaison between, whether it be the contract or or whoever Q. Does that tell you that you would have cone was working needed the respon from the consultants. to the project before then, or sometime later? Q. And is it your understanding that you were A Yeah. f I was around November, December, acting as the oners' representative in that capacity? coning on, and the project started rather quickly from10 A, Yes. 10 the time I was assigned to that proj So I mean, a1 Q. When I say owner, do you know who I mean? il contract could have been written in January. Or signed.12 A, Well, for me, Hawkins Companies, but no. I 12 Iga T don't know between written and signed,13 mean, I don't know eeat you mean by owner. 13 Q. You told me it was designed already. What14 Q. T believe on some of the different contracts 4 did you mean by that?15 on this specific school, you'll see things like a A Plans been ubmitted into the cities for16 ‘TCSFQ-Grand Prairie HS, LIC. Do you have any idea as to 16 pemit.17 what entity that is? vv Q. Was there a construction manager for the18 A I do not. 18 Hawkins Companies on this project prior to your19 Q. Can you tell me when it is that you recall 19 involvement?20 first being engaged to serve as a construction manager 20 Ye2. on the ILT Grand Prairie project? 21 ‘Who was that?22oa A It would have been maybe Noverber, December, a Keith Bucher.23 I know it was late in the I'm trying to 2016. 23 ‘And can you spell Mr. Bucher's last name for24 remember the dates of that project, what the timeframes 24 me?25 were. 25 A, Beure-h-e-r. U.S. Legal Support | www.uslegalsupport.com 14 to 17 Defendant H&W Exhibit MMark Mitchell February 07, 2023 Page 18 Page 20 Q. Did he continue working on the project with Q. Did ~~ you, or did he -- was he reassigned elsewhere? A, Some project types do + you know, A, I mean, there was probably some time during fully-made pl t! are already ready for construction first couple of mx s, during, you know, kind o or ready to be submitted for permit. handoff Q. On this project, do you know how any of the Is he still with Hawkins Companies? plan decisions for building systems were made? Say, for He is not. example, the EVAC systen and different components, were Do you know when he left? you involved in any of that process? Maybe 2020. A, No,10 Q. Do you know who prepared the architectural 10 Q. Were you involved in the decisions relatedll plans on this project? 1 to the foundations for this project?12 A, BRS Architects. 12 A No,13 Q. Do you know how many projects BRS Architects 13 Q. Let me ask more specifically the design with14 designed for any of the ILT projects? 4 the slab, with the footings, as opposed to piers or15 A, I know at least two. I believe there 15 anything else.16 three constructed. I'm not sure if they designed all 16 A, That would be nothing I was involved with.7 three of them or not. 7 Q. ‘he construction manager, I think you said,18 Q. iho else from the Hawkins Companies was 18 oversees and manages process. What does that mean?1 involved on this project, as far as you know? as A, Yeah, kind ike a liaison, say if20 A, I mean, as far as all Hawkins Companies, I 20 we have a ‘oject that we need a consultant on, thena don't know who all wa: involved, oe we'll go out and find consultants, or, you know,22 Q. Can you give me any other names other than a contract consultants, contractors, we'll solicit23 yourself, Mr. Bucher, and I believe Mr. Matthews? aa contre Try d what's needed for the project,24 A From the truction department side that 24 bring that team t ner just, again, it's moreaa would be it, 05 just @ management part of, just putting it all together. Page 19 Page 21 Q Is there a development side that was Q. On this project, the Grand Prairie ILT involved? project, can you tell me who the general contractor was? A Yeah, I imagine there was predevelopment A, Hill & Wilkinson, I don't know who would have been a predevelopment Q. Aside from this project, did you do any manager. others with Hill & Wilkinson? Q. Do you know if Mr. Huffaker was involved? A, Yes. I worked on one in San Antonio. A, I don't know what cap i ty, what role. Q. Who was your main point of contact with Q. Have you talked to him at all about your Hill & Wilkinson? deposition today? A, Matt Sisco.10 A, Other than just scheduling. se me, not 10 Q. And can you tell me approximately how many other than just scheduling. 1 times you would have visited the school during the12 Q. Good clarification. As the construction 12 course of construction?13 manager on these projects from 2013 to 2020, you cone 13 A The Grand Prairie school?4 in, is it typical that whenever the construction manager 4 Q. Yes.15 gets assigned to a project, it's already bought, a had to guess, seven or eight.16 designed, pemits submitted? Is that standard or is 16 . Roughly the once-a-month time period that17 that different from other projects? lv you kind of alluded to earlier?18 A I mean, standard's not sonething we use all 18 A Yeah. Probably up £a nt maybe once a month.a the time, because things vary a lot. No. I mean, a Maybe towards the end closer to turnover, might have20 8 times if we're EPP: ng into a pri ject, 20 1 More requent.a common. Sometimes a project is already under 21 Q. And on those visits, what was your primaryie struction, and for one reason or another, 22 objective?23 construction manager is replaced, or soneone else takes 23 A, Just checking on progress, seeing how the24 over based on workload or something like that. So no. 24 project's caning, seeing if we'xe tracking schedule,28 I mean, I quess it varies on the project type. 25 tracking budget. U.S. Legal Support | www.uslegalsupport.com 18 to 21 Defendant H&W Exhibit MMark Mitchell February 07, 2023 Page 22 Page 24 Q. Did you meet with the architect during those Is closeout before or after substantial visits? completion? A. I think the architect ~ yes, the architect Typic: after, we on site. I know they were 0 te for pun walks Q. Before or after final completion? and stuff towards the end. A, Well, it should be before, beca use we don't Q. Who was your primary point of contact at sider it final, complete, until it's closed out. ‘BRS? Q. Were you involved in any way with the A, For that project I don't renenber who was project after it was operated and leased by ILTX? managing that project for BRS. A, Yes.10 Q. Did you oversee or help manage any other 10 Q. And what were you doing?1 design consultants on this project? 11 A T was asked to go down a attend a12 A, I think civil engineering. I don't think we 12 walk-through with the school.13 oversaw -- from a liaison standpoint, I believe they 13 Q. So this would have been after it was turned4 ere contracted, I don't know who they were contracted 4 over. Is that correct?15 with, And all the other disciplines were under BRS. 15 A Yes.16 Q. Was the civil Big Red Dog? Does that name 16 Q. And what was the reason for the7 sound familiar? 7 walk-through?18 A, ‘That doesn't sound familiar. 18 A They - T guess they were having sone -- I1 Q Was it Stapley? as "tre a but maybe sone sl ‘That ae20 A Wo. 20 I recall, what we Ww ere there for.2. 2 Makowski? 21 Q. Do you recall who all was there?ae A Makowski, is that their full name? a A, I dor I believe sameone from -- I don't23 Q There's different engineers. I'm just aa recall who was ther T belies someone from24 trying to see which ones you renenber. 24 Hill & Wilki n was I don'tre 1 from theaa A Okay. a school who walked with us. Page 23 Page 25 Makowski Associates? Q. Were there any engineersthere? M ski sounds Satan So yes. Someon from the geotechnical, and Do you remeber any specific engineers that perhaps BRS. you interacted with on this project? Q. Anything else you can tell me about that So BRS, M walk-through? What about DNS? A, Nothing spec: ‘ic, DNS. ld t recall DNs that an Q. Was there any specific concerns raisedby acronym for something? the school? Q I'm sure it is, but they do go by DNS. What AL Yeah. sre was some, I think cosmetic10 point -- 10 stuff, Some drywall cracks. A DNS Geotechnical. ln Q. Any other complaints or issues raised by the12 Q. At what point did -- letme back up. Does 12 school in that meeting that you recall?13 that mean that you recall DNS, at least in sone 13 A No. I think generally it was cracks. There4 capacity, as a geotechnical engineer on this project? 14 was sone slab cracks, drywall cracks.a A Yes, 15 Q. Slab cracks and drywall cracks?16 Q. What is it that you recall about interacting 16 A Um-hun.17 with them? vv Q. Anybody talk about the potential cause of18 A Not really interacting. Just they were the 18 the cracks?a ones who provided the geotechnica study. a Not. spec hat I re rybody will20 Q. At what point did you stop serving as the 20 ‘ways have an of ny I gu wi t that is. I don't2. construction manager for Hawkins Companies on this oe recall vw if anybody had an opinion that day.22 specific project? 22 Q. Did you have an opinion that day?23 A, T don't know if there tee 8 a in exact: cutoff 23 A I did not.24 point, but typically atat thtlhe endo: at we call 24 Q. Do you know if this was before or after IL25 closeout. 25 ‘Texas bought the school? U.S. Legal Support | www.uslegalsupport.com 22 to 25 Defendant H&W Exhibit MMark Mitchell February 07, 2023 Page 26 Page 28 T don't know ~ when they bought the completion that reflected what they wel billing for. school. Q. And how did you do that? Q. Were you involved in any way in the sale of A, dust viewed their ppl ion. They the school to the operator, IL Texas? would submit a ay appli on m dust look A I don't believe I was. No. I don't have through it. anything to do with and who wo ld have been Q. Did you go down there and look at the involved in that process on behal iawkins Companies. ‘ogress in person? I don't know the answer to that. A, Well, was on ~~ £ I was there for aa Q. Is there a specific department that wouldbe site visit, I would be there to see where they are on10 involved? 10 the progress. Tt was never specific to review a pay A, No. As a whole, I don't believe a speci 11 application.12 department would be. I imagine it would be multiple 12 Q. Did you ever ask the architect about the13 departments. 13 work that was installed by Hill & Wilkinson?14 Q. Do you have any understanding as to how a 14 A I don't believe so.15 sale occurs between the operator and the Hawkins 15 Q. For example, did you ever say to BRS, hey,16 Companies on any of these projects? 16 they're billing at 70 percent complete here, do youv7 A, I do not. 7 agree with those percentages, or that all of these items18 Q. Did anybody else from the Hawkins Conpanies 18 have been installed?1g go to this walk-through with you that was after the as A, No I don't belie ed the architect.20 project was complete? 20 their percentage of completion.a A Not that I recall. 21 Q. Did BRS ever raise any concerns about the22 Q. Did you report back to anybody about the 22 work done by Hill & Wilkinson on this project?23 walk-through visit? aa MR. S01 Ob: ‘ion. Form,24 A Im , I would imagine I had 24 MR. BLANTO Counsel, maybe to make itaa to report to somebody while we were there. I don't easier on the court reporter, we can just agree that an Page 27 Page 29 know, It may have been to the director. objection for one is an objection for all? Q. Do you recall if that was Mr. Matthewsat MR, Ye the time? BY MR. BLANION: A, ‘That was the director at the time. Q I'm sorry, I didn't hear your answer to my Q. Let me see if I can save us some time later last question. this afternoon. Do you have any idea who the A, Can you repeat the question? subcontractors were that did work on this project? Q. Sure thing. Did BRS ever complain to you A, By name, no. about the work done by Hill & Wilkinson? Q. So if I said to you, for instance, do you A, Not that I recall.10 know what Venture Mechanical did on this project? 10 Q. Did you have any complaints about the work A, Not specifically. I imagine they did ln done by Hill & Wilkinson?12 mechanical, but -- 12 A T don't a any opinion of a complaint.13 Q. But other than whatever is in the name, you 13 Q. Well, let me -- did you have any complaints4 have no idea as to what their actual scope of work was? 4 about the work that they did?a A N
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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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