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FILED: NASSAU COUNTY CLERK 07/11/2024 02:46 PM INDEX NO. 612209/2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Index No.: ----------------------------------------------------------------x ALICIA C. TURCIOS, SUMMONS Plaintiff, The basis of the venue is: -against- Place of Occurrence Plaintiff’s Address 21 Arlington Street WINSTON C. MELONG and BARNWELL Westbury, NY 11590 HOUSE OF TIRES, INC., Defendants, ----------------------------------------------------------------x To the above-named defendants, YOU ARE HEREBY SUMMONED to answer the complaint in this action, and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff’s attorney within twenty (20) days after the service of this summons, exclusive of the day of service, where service is made by delivery upon you personally within the state, or, within thirty (30) days after completion of service where service is made in any other manner. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Place of Occurrence: In the vicinity of the intersection of South Broadway and South Oyster Bay Ridge, County of Nassau, State of New York Dated: New York, New York July 11, 2024 ___________________ SIMON KAHNG, ESQ. MORGAN & MORGAN NY PLLC 199 Water Street, Suite 1500 New York, NY 10038 (201) 209-3441 Defendant’s address: WINSTON C. MELONG 1059 Tulsa Street Page 1 of 8 1 of 8FILED: NASSAU COUNTY CLERK 07/11/2024 02:46 PM INDEX NO. 612209/2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/11/2024 Uniondale, NY 11553 BARNWELL HOUSE OF TIRES, INC. 1260 Wellwood Avenue West Babylon, NY 11704 Page 2 of 8 2 of 8FILED: NASSAU COUNTY CLERK 07/11/2024 02:46 PM INDEX NO. 612209/2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/11/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ----------------------------------------------------------------x ALICIA C. TURCIOS, Index No.: Plaintiff, -against- VERIFIED COMPLAINT WINSTON C. MELONG and BARNWELL HOUSE OF TIRES, INC., Defendants, ----------------------------------------------------------------x Plaintiff, by and through her attorneys, MORGAN AND MORGAN NEW YORK PLLC, complaining of the defendants herein, respectfully shows to the Court, and alleges as follows upon information and belief: AS AND FOR A FIRST CAUSE OF ACTION 1. That at all times hereinafter mentioned, plaintiff, ALICIA C. TURCIOS, was, and still is, a resident of the State of New York, County of Nassau. 2. That at all times hereinafter mentioned, defendant, WINSTON C. MELONG, was, and still is, a resident of the State of New York, County of Nassau. 3. That at all times herein mentioned, the defendant, BARNWELL HOUSE OF TIRES, INC., was and still is an out of state corporation, duly organized under and existing by virtue of the laws of the New York. 4. That at all times herein mentioned, defendant, BARNWELL HOUSE OF TIRES, INC., was doing business in the State of New York. 5. That at all times hereinafter mentioned, and on April 22, 2024, defendant, BARNWELL HOUSE OF TIRES, INC., was an owner, as defined in the Vehicle and Traffic Law Sec.128, of a 2021 Freightliner Truck motor vehicle bearing New York State plate number 19325NB. Page 3 of 8 3 of 8FILED: NASSAU COUNTY CLERK 07/11/2024 02:46 PM INDEX NO. 612209/2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/11/2024 6. That at all times hereinafter mentioned, and on April 22, 2024, defendant, WINSTON C. MELONG, operated and controlled the motor vehicle bearing New York State plate number 19325NB. 7. That at all times hereinafter mentioned, and on and prior to April 22, 2024, the defendant, BARNWELL HOUSE OF TIRES, INC., its agents, servants, employees and/or licensees, maintained the motor vehicle bearing New York State plate number 19325NB. 8. That at all times hereinafter mentioned, and on April 22, 2024, the defendant WINSTON C. MELONG was an employee of the defendant, BARNWELL HOUSE OF TIRES, INC. 9. That at all times hereinafter mentioned, and on April 22, 2024, the defendant, WINSTON C. MELONG, operated and controlled the motor vehicle bearing New York State plate number 19325NB while acting within the scope of his employment with BARNWELL HOUSE OF TIRES, INC. 10. That at all times hereinafter mentioned, and on April 22, 2024, defendant, WINSTON C. MELONG, operated and or controlled the aforementioned vehicle with permission from the defendant, BARNWELL HOUSE OF TIRES, INC. 11. That at all times hereinafter mentioned, and on April 22, 2024, defendant, BARNWELL HOUSE OF TIRES, INC., negligently entrusted the aforementioned vehicle bearing New York State plate number 19325NB to defendant, WINSTON C. MELONG. 12. That at all times hereinafter mentioned and on April 22, 2024, the plaintiff, ALICIA C. TURCIOS, was the owner of a 2024 Audi Suburban motor vehicle bearing New York State license plate number LHM1247. 13. That on April 22, 2024, plaintiff, ALICIA C. TURCIOS, was the operator of a 2024 Audi Suburban motor vehicle bearing New York State license plate number LHM1247 in the vicinity Page 4 of 8 4 of 8FILED: NASSAU COUNTY CLERK 07/11/2024 02:46 PM INDEX NO. 612209/2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/11/2024 of the intersection of South Broadway and South Oyster Bay Ridge, County of Nassau, State of New York. 14. That on April 22, 2024, at said location in the vicinity of the intersection of South Broadway and South Oyster Bay Ridge, County of Nassau, State of New York, defendant’s aforementioned motor vehicle struck plaintiff’s aforementioned motor vehicle while in violation of the New York Vehicle and Traffic Law. 15. That the aforementioned collision and injuries resulting therefrom, were due solely and wholly to the careless and negligent manner in which defendant, WINSTON C. MELONG, operated and controlled his said motor vehicle without plaintiff in any way contributing thereto. 16. That by reason of the foregoing and the negligence of the said defendant, plaintiff, ALICIA C. TURCIOS, sustained serious, severe and permanent injuries, still suffers and will continue to suffer for some time, great physical and mental pain, and serious bodily injury; became sick, sore, lame and disabled and so remained for a considerable length of time. 17. That by the reason of the foregoing and the negligence of the said defendant, plaintiff, ALICIA C. TURCIOS, was informed and verily believes that her aforementioned injuries are permanent, and that she will permanently suffer from the effects of her aforementioned injuries and that she will be caused to suffer continuous pain and inconvenience. 18. That by reason of the foregoing, plaintiff, ALICIA C. TURCIOS, was compelled and did necessarily require medical aid and attention and did necessarily pay and become liable therefore, for medicines and other related medical expenses, and upon information and belief, plaintiff will necessarily incur similar expenses. Page 5 of 8 5 of 8FILED: NASSAU COUNTY CLERK 07/11/2024 02:46 PM INDEX NO. 612209/2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/11/2024 19. That plaintiff, ALICIA C. TURCIOS, sustained serious injuries as defined in the Insurance Law of the State of New York and has sustained economic loss greater than basic economic loss as defined in the Insurance Law of the State of New York. AS AND FOR A SECOND CAUSE OF ACTION AGAINST DEFENDANT, WINSTON C. MELONG Plaintiff repeats, reiterates, and realleges each allegation as contained in the above paragraphs of the within Complaint, with the same force and effect, as though each were fully set forth at length herein. 18. That at all times hereinafter mentioned, and on April 22, 2024, the defendant, WINSTON C. MELONG, operated the aforementioned motor vehicle recklessly and without regard to human life, in that, defendant, WINSTON C. MELONG, fled the scene of the instant collision without stopping to exhibit his license and insurance identification card for his aforementioned motor vehicle, and without reporting the collision to police or judicial officers, until unidentified bystanders stopped the Defendant’s vehicle from fleeing the scene. 19. That at all times hereinafter mentioned, and on April 22, 2024, the defendant, WINSTON C. MELONG, acted recklessly and without regard to human life, in that, the defendant, WINSTON C. MELONG, had cause to know that personal injury was caused to plaintiff, ALICIA C. TURCIOS, due to the instant collision of the aforementioned motor vehicle operated by the defendant, WINSTON C. MELONG, and did not report said collision to police or judicial officers, until unidentified bystanders stopped the Defendant’s vehicle from fleeing the scene. 20. That at all times hereinafter mentioned, and on April 22, 2024, the defendant, WINSTON C. MELONG, acted recklessly and without regard to human life, in that, the defendant, WINSTON C. MELONG, had cause to know that personal injury was caused to plaintiff, ALICIA C. TURCIOS, due to the instant collision of his aforementioned motor vehicle, and did not report said Page 6 of 8 6 of 8FILED: NASSAU COUNTY CLERK 07/11/2024 02:46 PM INDEX NO. 612209/2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/11/2024 collision to police or judicial officers, until unidentified bystanders stopped the Defendant’s vehicle from fleeing the scene. 21. That as a result of the negligence of defendants, WINSTON C. MELONG and BARNWELL HOUSE OF TIRES, INC., plaintiff, ALICIA C. TURCIOS, sustained serious personal injuries as set forth above. WHEREFORE plaintiff, ALICIA C. TURCIOS, demands judgment against defendants, WINSTON C. MELONG and BARNWELL HOUSE OF TIRES, INC., in an amount to be determined at the time of trial, together with the costs and disbursem*nts of this action which exceeds the jurisdiction of the lower courts. Dated: New York, New York July 11, 2024 Respectfully Submitted, _________________________ SIMON KAHNG, ESQ. MORGAN & MORGAN NY PLLC 199 Water Street, Suite 1500 New York, NY 10038 (201) 209-3441 TO: WINSTON C. MELONG 1059 Tulsa Street Uniondale, NY 11553 BARNWELL HOUSE OF TIRES, INC. 1260 Wellwood Avenue West Babylon, NY 11704 Page 7 of 8 7 of 8FILED: NASSAU COUNTY CLERK 07/11/2024 02:46 PM INDEX NO. 612209/2024NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 07/11/2024 ATTORNEY VERIFICATION SIMON KAHNG, ESQ, an attorney duly licensed to practice in the courts of the State of New York, hereby affirms the following under penalties of perjury: That I am associated with the law firm of MORGAN & MORGAN NY, PLLC attorneys for the plaintiff in the within action; that I have read the foregoing SUMMONS AND VERIFIED COMPLAINT, and know the contents thereof; and that the same is true to my own knowledge, except as to the matters therein alleged to be on information and belief, and as to those matters, I believe them to be true. The reason this Verification is made by me and not by the plaintiff is that said claimant resides outside of the County in which the Affirmant’s office is located. The grounds of my belief as to all matters stated upon my own knowledge are as follows: the records, reports, contracts, and/or documents contained in the plaintiff’s file. _______________________ SIMON KAHNG, ESQ. MORGAN & MORGAN NY PLLC 199 Water Street, Suite 1500 New York, NY 10038 (201) 209-3441 Affirmed: July 11, 2024 New York, NY Page 8 of 8 8 of 8
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Ruling
MARIA LUZ NIEVES VS KEVIN GEORGE AZIZ RIAD, ET AL.
Jul 10, 2024 |20STCV08423
Case Number: 20STCV08423 Hearing Date: July 10, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Wednesday, July 10, 2024 Department M Calendar No. 16 PROCEEDINGS Maria Luz Nieves, et al. v. Kevin George Aziz Riad, et al. 20STCV08423 1. K&K Limousine Services, Inc., et al.s Motion for Summary Judgment, or in the Alternative, Summary Adjudication TENTATIVE RULING K&K Limousine Services, Inc.s Motion for Summary Judgment is granted. KMK Properties, LLC (KMK) and AVA Mina Properties, LLCs (AVA) Motion for Summary Judgment, or in the Alternative, Summary Adjudication is deemed moot. These Defendants were dismissed on June 28, 2024. Background Plaintiffs filed their Complaint on February 28, 2020. Plaintiffs First Amended Complaint was filed on June 11, 2020. Plaintiffs allege the following facts. Plaintiffs decedent was killed in an automobile accident. Defendants were operating a 2016 Tesla Model S which purportedly suffered from defects. Plaintiffs allege the following causes of action: 1) Wrongful Death-General Negligence 2) Wrongful Death-Negligent Hiring, Training, and Supervision 3) Negligent Entrustment of Motor Vehicle 4) Products Liability-Negligence 5) Products Liability- Design Defect 6) Products Liability- Manufacturing Defect 7) Products Liability- Failure to Warn 8) Negligence- Manufacturer or Supplier-Duty to Warn 9) Negligence- Recall/Retrofit. Motion for Summary Judgment or Summary Adjudication The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. CCP § 437c(p)(2). Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. CCP § 437c(p)(2). If the plaintiff cannot do so, summary judgment should be granted. Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467. A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. Code Civ. Proc., § 437c(p)(1). When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Avivi, 159 Cal.App.4th at 467; CCP § 437c(c).) Defendants move this Court pursuant to Code of Civil Procedure Section 437c for entry of summary judgment, or alternatively summary adjudication, in Defendants favor and against Plaintiffs Maria Luz Nieves, individually and as a successor-in-interest of Maria Guadalupe Nieves, deceased; Lorena Ochoa individually and as successor in interest to Gilberto Lopez, Deceased; Ulises Alcazar through Guardian Ad Litem, Rosalia Lopez, individually, Hector Rafael Alcazar through Guardian Ad Litem, Rosalia Lopez, Marilee Cristina Alcazar through Guardian Ad Litem and Rosalia Lopez. Issues 1 to 3 seek summary adjudication of the first through third causes of action. At the time of the accident, Defendant Kevin George Aziz Riad was driving a 2016 Tesla Model S. Plaintiffs named as Defendants Kevin Riad, as well as the registered owners of the Tesla George Salib and K&K Limousine Services, Inc. (K&K Limousine). Plaintiffs also named KMK and AVA Mina as Defendants. However, as mentioned above, these Defendants were dismissed. To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries. Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62. Negligent entrustment is a common law liability doctrine, which arises in numerous factual contexts. [Citation.] In cases involving negligent entrustment of a vehicle, liability is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver. [Citations.] Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner. [Citation]; accord, Rest.2nd Torts, § 308 [It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others].) [¶] California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [¶] A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver. (See Judicial Council of Cal., Civ. Jury Instns. (2010) CACI No. 426.) That same awareness underlies a claim for negligent entrustment. (See CACI No. 724.) In a typical case ... the two claims are functionally identical. McKenna v. Beesley (2021) 67 Cal.App.5th 552, 565567 (internal citations and quotations omitted). The following statutory authority applies in this action: Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner. Veh. Code, § 17150. Defendant K&K Limousine has met its initial burden to show that an essential element or elements of Plaintiffs causes of action cannot be established and/or that there is a complete defense to the causes of action. Plaintiffs have not met their burden to provide specific facts to show the existence of a triable issue of material fact as to the causes of action. CCP § 437c(p)(2). Plaintiffs failed to dispute any of the separate statement of facts submitted by Defendants. Most significantly, Plaintiffs did not dispute fact number 5 which stated that Defendant K&K Limousine did not give permission for Defendant Riad to operate the vehicle and that permission to operate the vehicle had only been granted by George Salib. Thus, Plaintiffs submitted no facts or evidence to support the proposition that K&K Limousine gave permission, express or implied, to operate the vehicle. With no evidence of permission, liability as the owner pursuant to Veh. Code § 17150 cannot be established. The Court notes that George Salib is not a moving party on this motion. In addition, Plaintiffs submitted no evidence that Riad was employed by K&K Limousine to support the theories of negligent entrustment and negligent hiring, training, and supervision. Therefore, for the foregoing reasons, K&K Limousines Motion for Summary Judgment is granted. Defendant is ordered to give notice of this ruling.
Ruling
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY VS ABBIE L. LILL, ET AL.
Jul 10, 2024 |23STLC01390
Case Number: 23STLC01390 Hearing Date: July 10, 2024 Dept: 25 PROCEEDINGS: MOTION FOR AN ORDER SEEKING LEAVE OF THE COURT TO FILE A CROSS-COMPLAINT MOVING PARTY: Defendant/Cross-Complainant Abbie L. Lill RESP. PARTY: None MOTION FOR LEAVE TO AMEND (CCP § 473(a)) TENTATIVE RULING: Defendant/Cross-Complainant Abbie L. Lills request for leave of court to file an amended Cross-Complaint is CONTINUED TO ____ at _____ a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant Lill must file and serve supplemental papers addressing the issues discussed herein. Failure to do so may result in the Motion being placed off calendar or denied. SERVICE: [X] Proof of Service Timely Filed (CRC, rule 3.1300) OK [X] Correct Address (CCP §§ 1013, 1013a) OK [ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO (location) OPPOSITION: None filed as of July 5, 2024 [ ] Late [X] None REPLY: None filed as of July 5, 2024 [ ] Late [X] None ANALYSIS: I. Background On February 24, 2023, Plaintiff State Farm Mutual Automobile Insurance Company (Plaintiff) filed an action against Defendants Abbie L. Lill; Emily Salinas; Miguel Fuentes; Does I through V. Defendant Lill filed an Answer on June 7, 2023. Defendant Lill filed the instant Motion for an Order Seeking Leave of the Court to File a Cross-Complaint (the Motion) on June 14, 2024. No opposition has been filed. II. Legal Standard Leave to amend is permitted under the Code of Civil Procedure section 473, subdivision (a) and section 576. The policy favoring amendment and resolving all matters in the same dispute is so strong that it is a rare case in which denial of leave to amend can be justified. . .. Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only where no prejudice is shown to the adverse party . . .. [citation]. A different result is indicated where inexcusable delay and probable prejudice to the opposing party is shown. [Citation]. (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.) A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, rule 3.1324, subds. (a), (b).) III. Discussion Defendant Lill seeks leave of court to file an amended Cross-Complaint seeking equitable indemnity and declaratory relief against Emily Salinas and Miguel Fuentes. (Mot., p. 3.) The Motion, however, does not comply with all requirements of California Rules of Court, rule 3.1324. Specifically, Motion does not identify the pages and line numbers where allegations would be added, deleted, or modified. Defendant Lills counsels supporting declaration also does not state when he discovered the information, the effect, or why it is necessary. As a final note, the Motion fails to provide a courthouse address. Thus, the Notice is defective. Thus, the hearing will be CONTINUED so that Defendant Lill may correct these errors. IV. Conclusion & Order For the foregoing reasons, Defendant/Cross-Complainant Lills request for leave of court to file an amended Cross-Complaint is CONTINUED TO ____ at _____ a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Defendant Lill must file and serve supplemental papers addressing the issues discussed herein. Failure to do so may result in the Motion being placed off calendar or denied. Moving party is ordered to give notice.
Ruling
ALICIA HUITRON, ET AL. VS IESHA CATHERINE GABRIEL
Jul 11, 2024 |21STCV39173
Case Number: 21STCV39173 Hearing Date: July 11, 2024 Dept: B HEARING DATE: Thurs., July 11, 2024 JUDGE /DEPT: Moskowitz/Dept. B CASE NAME: Alicia Huitron, et al. v. Iesha Catherine Gabriel CASE NUMBER: 21STCV39173 COMPL. FILED: 10-25-21 PROCEEDINGS: MOTION TO BE RELIEVED AS COUNSEL MOVING PARTY: Counsel Kate Jamsheed/KJ Injury & Accident Lawyers, PC RESP. PARTY: None MOTION TO BE RELIEVED AS COUNSEL (CCP § 284, CRC rule 3.162) TENTATIVE RULING: Counsel Kate Jamsheed/KJ Injury & Accident Lawyers, PCs Motion to Be Relieved as Counsel as to Plaintiff Melody Tejeda-Huitron is GRANTED. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective until proof of service of a copy of the signed order on the client has been filed with the court. (Ibid.) ANALYSIS: I. Background On October 25, 2021, Plaintiffs Alicia Huitron (Huitron) and Melody Tejeda-Huitron (Tejeda-Huitron) (collectively Plaintiffs) filed an action against Defendant Iesha Catherine Gabriel (Gabriel) for motor vehicle and general negligence. On May 22, 2024, Counsel Kate Jamsheed/KJ Injury & Accident Lawyers, PC (Jamsheed) filed the instant Motion to be Relieved as Counsel (Motion) as to Plaintiff Melody Tejeda-Huitron. On June 7, 2024, the matter was assigned to Judge Karen Moskowitz in Department B of the Van Nuys Courthouse East. II. Legal Standard Code of Civil Procedure § 284 states that the attorney in an action&may be changed at any time before or after judgment or final determination, as follows: (1) upon the consent of both client and attorney&; (2) upon the order of the court, upon the application of either client or attorney, after notice from one to the other. (Code Civ. Proc. § 284; CRC 3.1362.) The withdrawal request may be denied if it would cause an injustice or undue delay in proceeding; but the court's discretion in this area is one to be exercised reasonably. (See Mandell v. Superior (1977) 67 Cal.App.3d 1, 4; Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1173.) In making a motion to be relieved as counsel, the attorney must comply with procedures set forth in Cal. Rules of Court, Rule 3.1362. The motion must be made using mandatory forms: 1. Notice of Motion and Motion to be Relieved as Counsel directed to the client (MC-051); 2. Declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship the reasons that the motion was brought (MC-052); 3. Proposed Order (MC-053). (Ibid.) The forms must be timely filed and served on all parties who have appeared in the case. (Ibid.) If these documents are served on the client by mail, there must be a declaration stating either that the address where client was served is the current residence or business address of the client or the last known residence or business address of the client and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before the filing of the motion to be relieved. (Cal. Rules of Court, rule 3.1362(d)(1).) III. Discussion The Court finds that Counsel Jamsheed has properly filed a Notice of Motion and Motion (MC-051). Counsel has also filed a Declaration in Support of the Motion (MC-052) stating that There has been a breakdown in attorney-client communication such that continued representation is no longer feasible. We have been unable to have the client sign the substitution of attorney. (MC-052 ¶ 2.) Counsel has confirmed within the past 30 days that the address is current through TLO. (Ibid. at ¶ 3b(1)(d).) Counsel has also filed a Proposed Order, Form MC-053. All documents were served on Plaintiff via mail on May 22, 2024, at her last known address. Defendant has not yet been served with the Summons and Complaint. The Court finds that all procedural requirements have been satisfied and there is no showing that withdrawal would cause injustice or undue delay in the proceedings. Counsel Jamsheeds Motion to be Relieved as Counsel as to Plaintiff Melody Tejeda-Huitron is GRANTED. IV. Conclusion & Order For the foregoing reasons, Counsel Kate Jamsheed/KJ Injury & Accident Lawyers, PCs Motion to Be Relieved as Counsel as to Plaintiff Melody Tejeda-Huitron is GRANTED. After the order is signed, a copy of the signed order must be served on the client and on all parties that have appeared in the case. (Cal. Rules of Court, rule 3.1362(e).) The Order on this Motion will not be effective until proof of service of a copy of the signed order on the client has been filed with the court. (Ibid.) Moving party is ordered to give notice.
Ruling
JYLA ELSA CORRAL, ET AL. VS FORD MOTOR COMPANY, A CORPORATION, ET AL.
Jul 11, 2024 |22STCV27975
Case Number: 22STCV27975 Hearing Date: July 11, 2024 Dept: 71 Superior Court of California County of Los Angeles DEPARTMENT 71 TENTATIVE RULING JYLA ELSA CORRAL, et al., vs. FORD MOTOR COMPANY, et al. Case No.: 22STCV27975 Hearing Date: July 11, 2024 Defendant Westinghouse Air Brake Technologies Corporations unopposed motion for leave to file a cross-complaint against Defendants International Service Center, Inc. and Edwin Torres is granted. Defendant Westinghouse Air Brake Technologies Corporation may file the proposed cross-complaint with the Court. Defendant Westinghouse Air Brake Technologies Corporation (Wabtec) (Moving Defendant) moves unopposed for an order granting leave to file a cross-complaint (CC) against Defendants International Service Center, Inc. (ISC) and Edwin Torres (Torres) (collectively, Defendants) on the grounds that the CC arises out of the same general facts as the operative Complaint (and cross-complaints) presently on file, that no prejudice will result to the Defendants by the granting of this motion, and that the CC, which Wabtec now seeks to file, will serve to protect the interests of Wabtec should a judgment be entered against it. (Notice of Motion, pg. 1.) Procedural Background This lawsuit brought by Plaintiffs Jyla Elsa Corral, Jonaven Hess Corral, Jazlyn Leilani Corral, Jayven Cali Corral, and Jocelyn Gianna Corral, by and through their GAL Rafal Corral, (collectively, Plaintiffs) individually and as successors in interest to Heather Susy Garcia (Decedent) arises from a fatal accident on January 22, 2022, wherein Decedent fell out of a moving party bus. Plaintiffs filed their initial complaint on August 26, 2022, against Ford Motor Company (Ford), ISC, and Torres (the owner and driver of the bus) (collectively, Plaintiffs). ISC filed a cross-complaint against Wabtec on October 20, 2023, which Wabtec answered on November 20, 2023. On October 5, 2023, Plaintiffs amended their complaint to add Wabtec as a Doe defendant. On December 15, 2023, Plaintiffs moved for leave to file a First Amended Complaint (FAC), which this Court heard and granted on April 11, 2024. On July 2, 2024, this Court approved Fords applications for good faith settlement determination with Plaintiffs and Defendants Grech Motors Inc. and Edward P. Grech. Wabtec filed the instant motion on May 2, 2024. As of the date of this hearing no opposition has been filed. Motion for Leave to Amend C.C.P. §426.50 provides: A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file a cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This section shall be liberally construed to avoid forfeiture of causes of action. (C.C.P. §426.50.) California rules further provide authority to file a Cross-Complaint against a party who has filed a Complaint against the movant if the claims arise out of the same occurrences as the claims brought against it. (See C.C.P. §§428.10(a)-(b).) At any time during the course of the lawsuit, the court retains power to permit defendant to file or amend a cross-complaint to avoid forfeiture of defendants related claim. (See Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99 [stating even on eve of trial, leave to file compulsory cross-complaint mandatory absent bad faith].) CRC Rule 3.1324(a) requires that a motion to amend must: [i]nclude a copy of the proposed . . . amended pleading . . . [and] state what allegations in the previous pleading are proposed to be [deleted and/or added], if any, and where, by page, paragraph, and line number, the [deleted and/or additional] allegations are located. CRC Rule 3.1324(b) provides, as follows: [a] separate declaration must accompany the motion and must specify: (1) [t]he effect of the amendment; (2) [w]hy the amendment is necessary and proper; (3) [w]hen the facts giving rise to the amended allegations were discovered; and (4) [t]he reasons why the request for amendment was not made earlier. Wabtecs motion substantially complies with CRC Rule 3.1324(a). The motion includes a copy of the proposed CC. (Decl. of Lohman ¶6, Exh. A.) Webtecs motion substantially complies with CRC Rule 3.1324(b). Wabtec submitted a separate declaration of its counsel that specifies the effect of the amendments and explains why the amendments are necessary and proper. (Decl. of Lohman ¶2.) Wabtec asserts the amendments are necessary because it determined that there are indemnification and apportionment claims it has against Defendants ISC and Torres which arise out of the same transactions and occurrences giving rise to this case. (Decl. of Lohman ¶2.) Wabtecs counsel states when the facts giving rise of the amended allegations were discovered and why the request for amendment was not made earlier. Wabtecs counsel declares, [h]aving participated in the March 27, 2024 inspection of the subject bus and participated in discovery, Wabtec would be prejudiced should the Court not grant leave for it to file its Cross-Complaint against ISC and Torres, as it would be barred from making these claims in a separate action. (Decl. of Lohman ¶5.) Plaintiffs counsel further declares, Wabtec did not file a Cross-Complaint against ISC initially at the time that it answered its Cross-Complaint against Wabtec, albeit in good faith, while it investigated the claims asserted in this matter. For the same reasons, Wabtec also did not file a Cross-Complaint against Torres. (Decl. of Lohman ¶¶3-4.) Based on the foregoing, Wabtecs motion for leave to file its CC against ISC and Torres is granted. Conclusion Wabtecs unopposed motion for leave to file its CC against ISC and Torres is granted. Wabtec may file the proposed CC with the Court. Moving Party to give notice. Dated: July _____, 2024 Hon. Daniel M. Crowley Judge of the Superior Court
Ruling
MARIANA ACOSTA VS HECTOR EDUARDO GALBUSERA
Jul 09, 2024 |20STCV33737
Case Number: 20STCV33737 Hearing Date: July 9, 2024 Dept: T Motion to Change Venue Moving Party: Plaintiff Mariana Accosta Responding Party: Defendant Hector Galbusera Tentative Ruling: Denied. BACKGROUND On September 03, 2020, Plaintiff Mariana Acosta (Plaintiff) filed a Complaint alleging motor vehicle action against Defendant Hector Eduardo Galbusera (Defendant) and DOES 1 through 30, inclusive. Defendant filed his Answer to the Complaint on October 20, 2020. On May 31, 2024, Plaintiff filed the instant Motion to Transfer. Defendant filed his opposition to the motion on June 13, 2024. Plaintiff has filed a reply. DISCUSSION Applicable Law Venue is determined based on the complaint on file at the time the motion to change venue is made. [Citations.] [Citation.] (Dow AgroSciences, LLC v. Superior Court (2017) 16 Cal.App.5th 1067, 1076.)¿¿ [I]f an action or proceeding is commenced in a court having jurisdiction over the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced& (Code Civ. Proc., § 396b(a).) The burden is on the moving party to establish facts justifying the transfer. (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 928.) Absent an affirmative showing to the contrary, the presumption is that the county in which the title of the action shows that it is brought is, prima facie, the proper county for the commencement and trial of the action. (Id.; Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) Analysis The Complaint alleges a negligence cause of action against the Defendant for a motor = vehicle accident that occurred on the ramp of SR-60 E/B to the I-710 N/B, Los Angeles, CA 90022. (Compl.) Plaintiff alleges that Defendant fell asleep while driving, causing the crash with Plaintiff, and was cited for violating California Vehicle Code section 22350 - Unsafe Speed by the California Highway Patrol. (Id. p. 5.) Plaintiff seeks to transfer the action to a trial department in Downtown Los Angeles. (Mot. p. 2) Plaintiff argues that the lawsuit has no connection to Alhambra since the subject incident occurred downtown, neither party lives in Alhambra, and all witnesses, including first responders and Plaintiffs medical provider, live in/near or work in/near downtown Los Angeles. Plaintiff asserts that the venue is proper in the central district because the case was initially filed there and had remained there for nearly four years before being transferred to this Court. In opposition, Defendant argues that Plaintiff fails to provide any statutory authority to support the motion. The Court disagrees. First, Defendant mistakes the motion for a motion for forum non-convenes. That is not the case as Plaintiff rests the motion under Code of Civil Procedure Sections 395(a), 397(c). However, Plaintiff has not carried her burden in showing that a change in venue back to downtown is justifiable. Here, the standard is not so much about focusing on convenience but rather on the inconvenience of the venue for the action. The plaintiffs contention that witnesses are in or around downtown is simply not enough to carry her burden under the statute. While one courthouse may be more convenient to some witnesses, the level of inconvenience is not substantial and a transfer is not necessary to further the interests of justice. Further, Plaintiff argues that she would be prejudiced by a trial continuance. Because the matter is set for trial on October 14 in Department T and it is extremely unlikely that the case would be set any earlier in a downtown courthouse, denial of this motion protects Plaintiff from the perceived prejudice resulting from a trial continuance. CONCLUSION Based on the foregoing, Plaintiffs Motion to Change Venue is DENIED.
Ruling
JUAN vs REGENTS OF THE UNIVERSITY OF CALIFORNIA
Jul 10, 2024 |Civil Unlimited (Civil Rights/Discrimination) |24CV077213
24CV077213: JUAN vs REGENTS OF THE UNIVERSITY OF CALIFORNIA07/10/2024 Hearing on Motion - Other MOTION TO DISMISS COUNSEL; filed by Diana Juan (Plaintiff) in Department 19Tentative Ruling - 07/03/2024 Joscelyn JonesThe Hearing on Motion - Other MOTION TO DISMISS COUNSEL; filed by Diana Juan(Plaintiff) scheduled for 07/10/2024 is continued to 07/31/2024 at 03:00 PM in Department 19 atRene C. Davidson Courthouse .Plaintiff’s “Motion to Dismiss Counsel” is CONTINUED to July 31, 2024 at 3:00 p.m. inDepartment 19.Plaintiff does not need to file a motion or obtain a court order to represent herself in this case.Instead, Plaintiff is directed to file a “Substitution of Attorney – Civil”, using Judicial Councilform MC-050. Use of this form is mandatory if a litigant will no longer be represented by thelitigant’s former attorney.If Plaintiff files a correctly completed “Substitution of Attorney – Civil” form prior to thecontinued July 31, 2024 hearing, the Court will vacate that hearing.
Ruling
JANE DOE L.P., ET AL. VS DOWNEY UNIFIED SCHOOL DISTRICT
Jul 11, 2024 |20STCV30564
Case Number: 20STCV30564 Hearing Date: July 11, 2024 Dept: 48 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT JANE DOE L.P., Plaintiff, vs. DOWNEY UNIFIED SCHOOL DISTRICT, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 20STCV30564 [TENTATIVE] ORDER GRANTING IN PART MOTION TO COMPEL FURTHER RESPONSES Dept. 48 8:30 a.m. July 11, 2024 On December 11, 2023, Plaintiff Jane Doe L.P. served a Notice of Taking Deposition of Defendant Downey Unified School Districts Person Most Knowledgeable and Fact Witness Principal Tom Houts and Request for Production of Documents (RFPs) on Defendant Downey Unified School District. On February 22, 2024, Plaintiff filed a motion to compel further responses to RFP No. 4. At the March 19, 2024, hearing, the Court found that some information about K.G., such as that related to Defendants knowledge of his prior similar misconduct and need for supervision, may be relevant. However, the Court found that RFP No. 4 was overbroad. The Court also noted that the request infringed on K.G.s privacy rights without giving him notice before the disclosure. Accordingly, the Court continued the hearing, ordered the parties to meet and confer about the scope of RFP No. 4, and ordered Defendant to provide K.G.s guardians last known address and phone number to Plaintiff so that Plaintiff could provide notice of the motion and the continued hearing date. On May 3, 2024, Plaintiffs counsel filed a supplemental declaration. Plaintiff has served K.G.s guardian with notice of the motion via U.S. mail and email. (Baldermann Suppl. Decl. ¶ 13 & Ex. 13.) Since the last hearing, Plaintiff and Defendant have been discussing the scope of RFP No. 4. (Baldermann Suppl. Decl. ¶¶ 6-10.) However, from April 18, 2024 through May 1, 2024, Defendants counsel stopped responding to Plaintiffs counsel. (Baldermann Suppl. Decl. ¶ 11.) At the June 4, 2024 hearing, the Court ordered supplemental briefing and continued the hearing. Defendant timely filed a supplemental brief with exhibits. One of these exhibits is an email from K.Gs guardian in response to a conversation with Defendants counsel, which states, I do not Authorize Downey Unified School District to release [K.G.s] school records. And also [K.G.] will be pleading the Fifth Amendment. (Evenstad Decl., Ex. D.) As propounded, RFP No. 4 requests Any and all SCHOOL RECORDS in YOUR possession, custody or control for K.G. SCHOOL RECORDS is defined as any and all written notes, memos, reports, or other writings regarding a student including but not limited to report cards, progress reports, letters, notes, nurses notes, attendance records, health records, incident reports, IEP reports, correspondence, class schedules, or any other written material having anything whatsoever to do with the student in YOUR possession, custody or control. Defendants last specific offer (March 26, 2024) was for K.G.s student profile, enrollment history, attendance history, entry into the special education program dates, and the September 2019 IEP outlining the supervision/services that his IEP called for at the time of the incident. (Baldermann Suppl. Decl. ¶ 6 & Ex. 7.) On April 23, 2024, Defendants counsel communicated that she think[s] the production should be limited to the IEP in place at the time of the incident, which is really the only thing that would meet the directly relevant standard. (Evenstad Supple Decl., Ex. C.) Plaintiffs last request (April 25, 2024) was for K.G.s student profile, enrollment history, class schedule for the 2019-2020 school year, entry into the special education program dates, IEP/504 Triennial Plans for the time period of August 1, 2012 - December 6, 2019, behavioral and psychosocial reports up until December 6, 2019, Disciplinary Records from August 1, 2012 - December 6, 2019, if any, which shall include written/recording verbal warnings, written warnings, incident reports, suspensions, detentions, complaints regarding behavioral issues and incidents, reprimands, and any similar admonishments of inappropriate behavior demonstrated by K.G. (Baldermann Suppl. Decl. ¶ 10 & Ex. 11.) In its supplemental opposition, Defendant now asks the Court to limit the production to K.G.s student profile with his demographic information and enrollment history and special education program information, which includes the special education programs and dates from 2011 through the time of the incident; K.G.s September 2019 IEP; and K.G.s discipline history from the start of summer school 2019 until the incident, which is the only time that plaintiff and K.G. attended Downey High School. (Suppl. Opposition at p. 4.) Defendant contends that it cannot offer more or less supervision of a student where it is not called for in an IEP and agreed to by the parent, and a school cannot implement any special education program or provide services to a child if the parent doesnt agree to them. (Suppl. Opposition at pp. 6-7.) However, Defendant focuses only on the IEPs requirement of parental consent to the provision of special education and related services, not Defendants general duty to supervise and protect against foreseeable harms for all students. (See id. at pp. 6-8 [citing Education Code sections 56340, 56341, 56341.1, 56345].) California courts have long recognized that a student may recover for injuries proximately caused by a breach of [a schools] duty to supervise. (M. W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 518.) The existence of a duty of care of a school district toward a student depends, in part, on whether the particular harm to the student is reasonably foreseeable. (Ibid.) The harm may be foreseeable when the alleged perpetrator was repeatedly disciplined for grave acts of defiance and inappropriate and violent behavior. (Id. at p. 520.) Plaintiff alleges that on December 6, 2019, her one-on-one aide abandoned her, resulting in Plaintiff being assaulted by K.G. (Complaint ¶ 22.) Plaintiff alleges that Defendant negligently failed to carry out its duties to properly and adequately supervise Plaintiff L.P. and failed to discipline, investigate, warn, appropriately supervise, or suspend [K.G.] despite having actual or constructive knowledge that he had engaged in inappropriate conduct with other minor student. (Complaint ¶¶ 23, 46.) Accordingly, Defendants limitation to K.Gs student profile, September 2019 IEP, and discipline history from summer 2019 is too narrow. The limitation for K.G.s discipline history for the only time that plaintiff and K.G. attended Downey High School is particularly too narrow if Defendant had additional knowledge of K.G.s behavior from prior attendance at other schools in Defendants district. The motion to compel further is GRANTED IN PART. Defendant is ordered to respond to RFP No. 4 by producing the following documents to Plaintiff within 30 days: K.G.s student profile; enrollment history; class schedule for the 2019-2020 school year; dates of entry into the special education program; IEP/504 Triennial Plans for the time period of August 1, 2012 to December 6, 2019; behavioral and psychosocial reports up until December 6, 2019; and Disciplinary Records from August 1, 2012 to December 6, 2019, if any, including written/recording verbal warnings, written warnings, incident reports, suspensions, detentions, complaints regarding behavioral issues and incidents, reprimands, and any similar admonishments of inappropriate behavior demonstrated by K.G. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 11th day of July 2024 Hon. Thomas D. Long Judge of the Superior Court
Ruling
TONIA ANDRUS FLORES, ET AL. VS SAFECO INSURANCE, A LIBERTY MUTUAL COMPANY
Jul 10, 2024 |23NWCV03289
Case Number: 23NWCV03289 Hearing Date: July 10, 2024 Dept: C TONIA FLORES, ET AL. v. SAFECO INSURANCE COMPANY OF AMERICA CASE NO.: 23NWCV03289 HEARING: 7/10/24 @ 9:30 A.M. #8 TENTATIVE RULING Plaintiffs Tonia and Allen Floress motion to compel arbitration is GRANTED. Moving Party to give NOTICE. On September 28, 2022, DOE defendants 1 through 25 allegedly collided with the vehicle driven by plaintiff Allen Burton Flores, causing it to collide with another vehicle driven by plaintiff Tonia Andrus Flores. DOE defendants 1 through 25 allegedly did not stop and identify themselves. Plaintiffs submitted the claim to defendant Safeco Insurance Company of America. Plaintiffs move to compel arbitration with Safeco Insurance Company of America. On June 5, 2024, the Court continued the motion to compel arbitration because Defendant filed its opposition late. Discussion Insurance Code section 11580.2 requires insurers to provide coverage for bodily injury or wrongful death caused by uninsured motorists. Uninsured motorist coverage requires the driver to have been injured by a vehicle with no available liability coverage, which includes when the identity of the owner or operator of the vehicle is unknown. (Ins. Code, § 11580.2, subd. (b).) Subdivision (f) states that if the insurer and the insured cannot agree whether the insured is legally entitled to recover damages from an uninsured motorist and the amount of such damages, arbitration will determine these issues. (Ins. Code, § 11580.2, subd. (f).) The parties dispute liability and nature and extent of the damages. (Opp., pg. 2.) Thus, the parties dispute is subject to arbitration. Defendant states it will participate in arbitration once discovery is complete. However, Defendant can also conduct discovery in arbitration. Thus, the Court grants the motion.
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