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FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS Index No. 512992/2020 ELDER ALVARADO, I.A.S. Part 66 Hon. Richard Velasquez, J.S.C. Plaintiff, v. Mot. Seq. #2 136 EAST 36 STREET APARTMENTS CORP. and EDRAS GROUP. CORP., Defendants. EDRAS GROUP CORP., Third-Party Plaintiff, v. JMA CONSULTANTS & ENGINEERING, PC, JMA CONSULTANTS, INC., PCS ENGINEER, PLLC, and E&E SERVICES, INC., Third-Party Defendants. 136 EAST 36 STREET APARTMENTS CORP. AND EDRAS GROUP CORP., Second Third-Party Plaintiff, v. JMA CONSULTANTS & ENGINEERING, PC, JMA CONSULTANTS, INC., PCS ENGINEER, PLLC, Second Third-Party Plaintiff. BRIEF IN SUPPORT OF MOTION TO DISMISS SECOND THIRD-PARTY COMPLAINT OF 136 EAST 36TH STREET APARTMENT CORP. 1 01/07/2022 SL1 1767810v1 114409.00012 1 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 TABLE OF CONTENTS PRELIMINARY STATEMENT .....................................................................................................3 ARGUMENT ...................................................................................................................................3 I. The Co-op Has Pled Insufficient Facts In Its Third-Party Complaint Such That It Cannot Survive CPLR 3211(a)(7) .............................................................................................. 3 A. The Third-Party Complaint Completely Lacks Any Factual Basis .............................. 5 B. If the Co-op Is Asserting a Contractual Indemnification Claim, Then Such Claim Should be Dismissed for Lacking all of the Elements ................................................. 7 C. The Co-op’s “Breach of Contract” Claim Asserted In the Sole WHEREFORE Clause Must Fail for Two Reasons ......................................................................................... 8 II. Given the Existence of a Contract, as Shown By JMA, the Co-op Cannot Assert a Negligence Claim Against JMA ................................................................................................. 9 A. The Contract Between JMA and the Co-op Should Be Considered on this Motion To Dismiss Pursuant to CPLR 3211(a)(1) ............................................................... 10 B. The Economic Loss Rule Prevents Recovery In Negligence When the Contract Defines the Relationship, Terms, and Conditions By and Between the Parties ................... 11 CONCLUSION ..............................................................................................................................13 2 01/07/2022 SL1 1767810v1 114409.00012 2 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 PRELIMINARY STATEMENT Third-party Plaintiff 136 East 36th Street Apartment Corp., (“Co-op”) has filed a Second Third-Party Complaint (“Third-Party Complaint”) against JMA Consultants, Inc. and JMA Consultants and Engineers, P.C. (collectively, “JMA”), following the filing of an earlier third- party complaint by Edras Group Corp. JMA now files this motion to dismiss the Co-op’s Third- Party Complaint pursuant to CPLR 3211(a)(1) and (7), arguing that the Third-Party Complaint fails to allege sufficient facts to apprise JMA of the causes of action and conduct for which JMA could potentially be held liable. Specifically, there being not a single factual allegation, combined with the muddled legal relief sought by way of a lone, confusing “wherefore” clause at the end of the Third-Party Complaint renders the Third-Party Complaint so devoid of value as a pleading that it should be dismissed. Additionally, to the extent the Co-op seeks to assert a negligence claim against JMA through the Third-Party Complaint, the actual contract between JMA and the Co-op (the “JMA Contract”) governs. The JMA Contract demonstrates that JMA had a limited role such that JMA owes no duty in tort to the Co-op. As a result of the myriad faults in the Third-Party Complaint, the Court should dismiss the Third-Party Complaint in its entirety. ARGUMENT I. The Co-op Has Pled Insufficient Facts In Its Third-Party Complaint Such That It Cannot Survive CPLR 3211(a)(7) A cursory review of the Third-Party Complaint reveals that the Co-op did not allege any facts upon which any claim can be sustained under CPLR 3211(a)(7). JMA therefore moves pursuant to CPLR 3211(a)(7), which allows a party to move to dismiss when the “pleading fails to state a cause of action.” Further, to the extent certain claims are contradicted by evidence, namely the contract between JMA and the Co-op, CPLR 3211(a)(1) permits its introduction. 3 01/07/2022 SL1 1767810v1 114409.00012 3 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 “Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.” Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 (2017); see also Mid-Hudson Valley Fed. Credit Union v. Quartararo & Lois, PLLC, 31 N.Y.3d 1090, 1091 (2018) (affirming dismissal of complaint failing to allege “sufficiently particular” facts). “[A] cause of action cannot be predicated solely on mere conclusory statements . . . unsupported by factual allegations.” Sager v. City of Buffalo, 151 A.D.3d 1908, 1910 (4th Dep’t 2017) (quoting Miller v. Allstate Indem. Co., 132 A.D.3d 1306, 1307 (4th Dep’t 2015)). Moreover, the CPLR demands that the pleading contain a certain degree of specificity: Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense. CPLR 3013; see Scholastic Inc. v. Pace Plumbing Corp., 129 A.D.3d 75, 85 (1st Dep’t 2015) (“[I]t is not enough that a . . . pleading give [defendant] notice of the transaction or occurrence at issue; it must also be sufficient so as to give a [defendant] notice of the ‘material elements’ of the [claim].”). When determining if a complaint may be dismissed for failing to state a cause of action pursuant to CPLR 3211(a)(7), “the complaint must be liberally construed, the allegations therein taken as true, and all reasonable inferences must be resolved in plaintiff’s favor.” Gorelik v. Mount Sinai Hosp. Ctr., 19 A.D.3d 319, 319 (1st Dep’t 2006). The motion “must be denied if from the pleading’s four corners ‘factual allegations are discerned which taken together manifest any cause of action cognizable at law.’” Id. (quoting Polonetsky v. Better Homes Depot, Inc., 97 N.Y.2d 46, 54 (2001)). Although the moving party’s burden on a motion to dismiss pursuant to 4 01/07/2022 SL1 1767810v1 114409.00012 4 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 CPLR 3211 is substantial, that burden is satisfied if the evidence the moving party offers to support the motion is undisputed and conclusively establishes that the plaintiff has no cognizable cause of action. See Kaufman v. Int’l Bus. Machs. Corp., 97 A.D.2d 925, 927 (3rd Dep’t 1983). Here, the entire Third-Party Complaint is devoid of any facts and therefore dismissal is proper. The Third-Party Complaint fails to allege any facts that can sustain any allegation even under a broad liberal reading. The Third-Party Complaint is solely based on allegations and bare legal conclusions. It is not even clear under which legal theories the Co-op seeks to hold the JMA liable, let alone the factual basis for each. A. The Third-Party Complaint Completely Lacks Any Factual Basis Under both “First” causes of action,1 the Co-op alleges that “damages were sustained by reason of the carelessness, recklessness, and/or negligence and/or the acts or omission or commission of third-party defendant [JMA].” (Eliades Affirm. Ex. A, at ¶¶ 12, 22). No further information is provided, nor is the Co-op’s cause of action or legal theory against JMA stated. JMA has thus not been given notice regarding what claim is being asserted against it. Under both “Second” causes of action, the Co-op vaguely alleges that it was damaged by “the primary and active negligence of the [JMA], its agents, servants and/or employees, in their permitting, causing and creating the alleged condition set forth in plaintiff’s Verified Complaint and, by [JMA’s] failure to exercise care and due diligence at the site where plaintiff was injured and upon which said third-party defendant was performing his own work.” (Eliades Affirm. Ex. A, at ¶¶ 15, 25). Substantively, the “Second” causes of action appear similar to, if not the same as, the “First.” Both appear to allege that JMA was negligent, but only by virtue of invoking the 1 The Co-op provided six cause of action headings in the Third-Party Complaint. The first three are asserted against JMA Consultants, Inc., and are labeled “First” through “Third.” The last three headings are asserted against JMA Consultants and Engineers, PC., and are also labeled “First” through “Third.” Between the two JMA entities, the allegations are virtually identical. 5 01/07/2022 SL1 1767810v1 114409.00012 5 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 word in a conclusory manner. Again, no facts supplement the Co-op’s cause of action such that JMA is on notice of the purportedly problematic conduct. An additional component that adds confusion and introduces more questions than answers, is that the Co-op alleges as against JMA Consultants, Inc. that it was “performing his [sic] own work, pursuant to a verbal agreement.” (Id. at ¶ 15). In contrast, the Co-op alleges that JMA Consultants & Engineers, PC was “performing his [sic] own work, pursuant to an agreement.” (Id. at ¶ 25). Not only does JMA not understand the distinction, but also is confounded as to how a contractual claim is mixed up in the negligence claim. The complete lack of factual basis makes the “Second” causes of action entirely inscrutable. In the “Third” causes of action, which relate to “certain rules, regulations, standards, statutes and ordinances” that plaintiff alleged in his Complaint to have been violated, the Co-op alleges that “such violations were due and based solely and exclusively on the acts of [JMA] and any liability resulting herein is purely vicarious and arises from the affirmative fault of [JMA].” (Id. at ¶¶ 19, 29). There is nothing of additional substance to these causes of action, such that JMA can discern whether JMA is even a potentially liable party under those “rules, regulations, standards, statutes and ordinances.” Lastly, the Co-op includes in a single, combined “WHEREFORE” clause in which the Co-op seeks judgment based on “Dole v. Dow contribution, contractual indemnification and/or common law indemnification, Kinney v. Lisk Co., Inc. (breach of contract).” Such palpably insufficient allegations do not put JMA on notice of the claims asserted against it. There are no facts which support the claims, nor are the legal theories cogently presented. Thus, the allegations fail to state a claim and the Third-Party Complaint should be dismissed. 6 01/07/2022 SL1 1767810v1 114409.00012 6 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 B. If the Co-op Is Asserting a Contractual Indemnification Claim, Then Such Claim Should be Dismissed for Lacking all of the Elements2 The Co-op apparently seeks to assert “contractual indemnification” claims against JMA, as seen in the sole WHEREFORE clause. Firstly, as alleged (and in fact) there is no contract between the Co-op and JMA that entitles the Co-op to indemnification. “[A] party’s right to contractual indemnification depends upon the specific language of the relevant contract.” Morris v Home Depot USA, 152 A.D. 3d 669, 672 (2d Dep’t 2017); see Goodlow v. 724 Fifth Ave. Realty, LLC, 127 A.D. 3d 1138, 1140 (2d Dep’t 2015). Furthermore, “[t]he promise to indemnify should not be found unless it can be clearly implied from the language and purpose of the entire agreement and the surrounding circ*mstances.” Morris, 152 A.D. 3d at 672 (internal quotation marks omitted). The Co-op’s claims for contractual indemnity – however denominated or labeled in the Third-Party Complaint – fail because there is no contract between JMA and the Co-op that would obligate JMA to indemnify the Co-op. Indeed, other than a passing mention of JMA “performing . . . work, pursuant to an agreement” (with one entity apparently under a verbal agreement) there is no allegation or fact in the Third-Party Complaint that there was any type of written agreement between JMA and the Co-op.3 The Co-op provided no allegations to the contrary; truly, the Third-Party Complaint is so insufficient, it lacks any factual predicate for the Co-op’s to claim there is a contract, let alone an indemnity provision in its favor. In the Third- Party Complaint, no contract was alleged, and no indemnity provision in favor of the Co-op was alleged. The contractual indemnity claim should thus be dismissed. 2 It is not clear if the vague “(breach of contract)” reference is in relation to the failure to indemnify pursuant to contract, but if it is, it fails for the same reasons – no contract was sufficiently alleged, let alone a breach. 3 In fact, the only written agreement that governs the parties’ relationship requires that the Co-op indemnify JMA. (Eliades Affirm. Ex. B, at 4). 7 01/07/2022 SL1 1767810v1 114409.00012 7 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 C. The Co-op’s “Breach of Contract” Claim Asserted In the Sole WHEREFORE Clause Must Fail for Two Reasons The Third-Party Complaint contains two passing references to an “agreement” and then states “breach of contract” inside parentheses in the only WHEREFORE clause of the Third- Party Complaint. To the extent such allegations constitute a breach of contract claim, they should be dismissed. 1. The Bare Citation to Kinney in the WHEREFORE Clause Suggests a Claim Based in Failure to Procure Insurance, But Cannot Survive a Motion to Dismiss Immediately preceding the “(breach of contract)” statement in the lone WHEREFORE clause, the Co-op cites to “Kinney v. Lisk Co., Inc.” The Co-op not only fails to provide the full or correct citation, but also seems to rely on Kinney without any factual basis whatsoever. In Kinney v. G.W. Lisk Co., 76 N.Y.2d 215, 219 (1990), the Court of Appeals discussed the prohibition in Gen. Oblig. Law § 5–322.1, which forbids indemnification of a party’s own misconduct, and refused to extend such prohibition to agreements in which a party seeks to have the other obtain insurance covering the requesting party’s misconduct. In other words, Kinney relates to breaches of contract for failure to procure insurance coverage. As previously stated, not only does the Co-op fail to allege that a valid contract exists between JMA and the Co-op, but also the Co-op fails to include even the word “insurance” in the Third-Party Complaint. If the Co-op wants to allege that JMA breached a contract by failing to procure insurance that covers the Co-op for loss, then the Third-Party Complaint fails to mention it.4 Because a lone invocation of Kinney in the WHEREFORE clause is the only hint of a claim for breach of contract for failure to obtain insurance, the claim should be dismissed as patently insufficient. 4 Yet again, in the actual agreement that governs the relationship between JMA the Co-op, the reverse is true. It is the Co-op that is obligated to insure JMA. (Eliades Affirm. Ex. B, at 4). 8 01/07/2022 SL1 1767810v1 114409.00012 8 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 2. The Co-op Cannot Claim Both a Breach of Contract and a Negligence- Based Claim Against JMA Moreover, to the extent the Co-op is claiming breach of contract against JMA, “[i]t is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated.” Dormitory Auth. v. Samson Constr. Co., 30 N.Y.3d 704, 711 (2018) (quoting Clark–Fitzpatrick, Inc. v. Long Is. R.R. Co., 70 N.Y.2d 382, 389 (1987)) (holding tort claim was duplicative to contract claim). “[M]erely charging a breach of a ‘duty of due care,’ employing language familiar to tort law, does not, without more, transform a simple breach of contract into a tort claim.” Clark–Fitzpatrick, 70 N.Y.2d at 390; see Cherokee Owners Corp. v. DNA Contracting, LLC, 96 A.D.3d 480, 481 (1st Dep’t 2012) (summary judgment in favor of JMA affirmed because, inter alia, “[t]he negligence claim . . . is duplicative of the breach of contract claim” (citing Clark–Fitzpatrick, 70 N.Y.2d at 389)); accord Bd. of Managers of St. Tropez Condo. v. JMA Consultants, Inc., 191 A.D.3d 402, 402 (1st Dep’t 2021). The Co-op cannot assert a breach of contract claim and a claim premised in negligence against JMA for the same exact conduct. Given that there is no factual recitation in the Third- Party Complaint, the two claims are indistinguishable. The same lack of factual allegations that demonstrates the identicalness between the negligence and contractual claims, underlies this entire motion; the Third-Party Complaint provides no facts in support of any of the claims. The Third-Party Complaint should therefore be dismissed. II. Given the Existence of a Contract, as Shown By JMA, the Co-op Cannot Assert a Negligence Claim Against JMA Throughout the Third-Party Complaint, the Co-op states in a conclusory manner that JMA acted with “carelessness, recklessness or negligence” and with “primary and active negligence” such that JMA “fail[ed] to exercise care and due diligence at the site where plaintiff 9 01/07/2022 SL1 1767810v1 114409.00012 9 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 was injured.” (Eliades Affirm. Ex. A, at ¶¶ 12, 22 (“First” causes of action), 15, 25 (“Second” causes of action)). The Co-op states the JMA violated “certain rules, regulations, standards, statutes and ordinances” in an apparent attempt to invoke negligence per se. (Id. at ¶¶ 18-20, 28- 30 (“Third” causes of action)). To the extent the Co-op is seeking to assert a negligence claim against JMA, then it must be dismissed as duplicative of the actual contract that governs the parties’ relationship. A. The Contract Between JMA and the Co-op Should Be Considered on this Motion To Dismiss Pursuant to CPLR 3211(a)(1) JMA first seeks to introduce the actual contract between JMA and the Co-op, the JMA Contract. Pursuant to CPLR 3211(a)(1) a paper qualifies as “documentary evidence” if it satisfies the following criteria: (1) it is unambiguous; (2) it is of undeniable authenticity; and (3) its contents are essentially undeniable. Amsterdam Hospitality Grp., LLC v. Marshall-Alan Assoc., Inc., 120 A.D.3d 431, 432 (1st Dep’t 2014). “[C]ontracts, and any other papers, the contents of which are “essentially undeniable,” qualify as “documentary evidence.” Sands Point Partners Private Client Group v. Fidelity Natl. Title Ins. Co., 99 A.D.3d 982, 984 (2d Dep’t 2012) (emphasis added); see Fin. Med. Sys., Inc. v. Nassau Health Care Corp., No. 6026452012, 2013 WL 12170355, at *7 (Sup. Ct. Nassau Cnty. Oct. 18, 2013) (contracts attached to or referred to in a complaint also satisfy 3211(a)(1)). Here, the contract that JMA seeks to introduce is the unquestionable, actual, and only contract between JMA and the Co-op relevant to this case. (Eliades Affirm. ¶¶ 4-5). It is signed by representatives of both JMA entities and the Co-op. (Eliades Affirm. Ex. B). The Court should rely on the JMA Contract for purposes of this motion to dismiss the Co-op’s apparent claims of negligence against JMA when the parties’ relationship is handled exclusively by contract, precluding tort liability. 10 01/07/2022 SL1 1767810v1 114409.00012 10 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 B. The Economic Loss Rule Prevents Recovery In Negligence When the Contract Defines the Relationship, Terms, and Conditions By and Between the Parties As previously stated, “merely alleging that the breach of contract duty arose from a lack of due care will not transform a simple breach of contract into a tort.” Sommer v. Fed. Signal Corp., 79 N.Y.2d 540, 551 (1992). While “[a] legal duty independent of contractual obligations may be imposed by law as an incident to the parties' relationship . . . where plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory.” Id. at 551, 552. To determine whether a duty outside the contract exists, the Court looks to (1) the nature of the services performed, (2) the defendant's relationship with its customer, (3) whether the service performed affected a significant public interest, (4) whether there can be catastrophic consequences from the service performed, (5) the nature of the injury, (6) how the injury occurred, and (7) the harm it caused. Dormitory Auth., 30 N.Y.3d at 711. As seen from the plain contents of the JMA Contract, JMA was contracted to “prepare specifications and drawings” for the façade restoration, consult regarding budgeting and “Scope of Work,” prepare bid documents and proposal forms and review bid proposals, and otherwise act as a liaison between the Co-op and the contractors who in fact performed the work. (Eliades Affirm Ex. B, at 1-2). JMA specifically included in the JMA Contract that “JMA shall not be responsible for environmental issues, site safety, special inspections required by the DOB, expediting, supervision, supervision of the work force, building staff, scheduling and protection which shall include, but is not limited to site safety to protect the public, workmen, building staff and neighboring properties.” (Id. at 3 (emphasis added)). JMA expressly clarified that it will not be responsible for such because the Contractor and any other entity is solely responsible for the accuracy and adequacy of construction and services they provide and for any and all other activities performed by them, including but not limited to their methods of construction; supervision of 11 01/07/2022 SL1 1767810v1 114409.00012 11 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 personnel and construction, control of any of their equipment; false work, scaffolding, and temporary construction aids; safety in, on, and about the job site; and compliance with OSHA, NYCDOB and any and all other applicable regulations. (Id.) Indeed, JMA ensured in the JMA Contract that the Co-op understood that JMA was undertaking a specific and limited role that did not encompass the means and methods of the construction: The Owner understands and agrees that any work that is being performed under this contract is on an existing building, with possible hidden conditions, and that work in addition to the work described in the specifications, surveys and reports may be required based on unforeseen and/or unforeseeable field conditions. They also understand that any work performed under this agreement covers specific, limited work/consulting and not a complete restoration/review of all the building's elements. (Id. at 4). The JMA Contract cannot render JMA liable to the Co-op for claims based in tort because JMA did not provide services that involve the site’s safety. Though JMA was involved in the site and the project in an administrative and professional role pursuant to the JMA Contract, the work it performed did not involve the safety of the site. The JMA Contract was for professional services to the Co-op and did “not include review or observation of the adequacy of the Contractor's safety measures or of safety conditions on the project site.” (Id. at 3). JMA has performed the same services in other cases and courts have consistently held that the work JMA performs does not engender a duty arising in tort because of the limited involvement JMA has with its customer. See, e.g., Bd. of Managers of St. Tropez Condo. v. JMA Consultants, Inc., 191 A.D.3d 402, 402 (1st Dep’t 2021); Cherokee Owners Corp. v. DNA Contracting, LLC, 96 A.D.3d 480, 481 (1st Dep’t 2012). 12 01/07/2022 SL1 1767810v1 114409.00012 12 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 Consequently, the Co-op’s claims based in negligence cannot stand, as the JMA Contract governs the parties’ relationship such that no duty in tort exists as against JMA. Therefore, the Court should dismiss the negligence-based claims in the Third-Party Complaint. CONCLUSION For the foregoing reasons, the Court should grant JMA’s motion and dismiss the Co-op’s Third-Party Complaint, and grant such other relief as the Court may deem appropriate. Dated: January 7, 2022 /s/ Nicholas P. Eliades New York, NY Nicholas P. Eliades, Esq. STEVENS & LEE, PC 669 River Drive, Suite 201 Elmwood Park, New Jersey 07407 Telephone: (201) 857-6760 Facsimile: (201) 857-6761 Email: nicholas.eliades@stevenslee.com Attorneys for Third-Party Defendants, JMA Consultants, Inc. and JMA Consultants and Engineers, P.C. 13 01/07/2022 SL1 1767810v1 114409.00012 13 of 14FILED: KINGS COUNTY CLERK 01/07/2022 09:15 PM INDEX NO. 512992/2020NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 01/07/2022 CERTIFICATE OF WORD COUNT As required by 22 NYCRR § 202.8-b(c), I certify that this Brief In Support Of Motion To Dismiss Second Third-Party Complaint Of 136 East 36th Street Apartment Corp. contains 3,377 words, excluding the parts of the document that are exempted by 22 NYCRR § 202.8-b(b). This certificate was prepared in reliance on the word count of the word-processing system used to prepare the document. Dated: January 7, 2022 /s/ Nicholas P. Eliades Nicholas P. Eliades 14 01/07/2022 SL1 1767810v1 114409.00012 14 of 14
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A deposition subpoena may command any of the following: (a) Only the attendance and testimony of the deponent &. (b) Only the production of business records for copying &. (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240 [contempt and an action for civil damages under section 1992]. (Code Civ. Proc., § 2025.440, subd. (b).) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (Code Civ. Proc., § 2025.480, subd. (a).) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040. (Id., subd. (b).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (Id., subd. (i).) [T]he 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 compel an answer or production, 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. (Id., subd. (j).) A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record. (Cal. Rules of Court, rule 3.1346.) Discussion Defendant seeks to compel the deposition and production of documents of Non-Party Witness, Ann Holabird (Holabird). Holabird did not appear for her deposition on March 1, 2024; Holabird alerted Defendant that she did not have a signed authorization from Plaintiff as Plaintiffs treating therapist, and thus would not appear for deposition. (Caponegri Decl., ¶¶ 4-6.) Holabird was personally served with the deposition subpoena on February 13, 2024. (Exh. C.) Holabird was not, however, personally served with this motion. (See Supp. Caponegri Decl., ¶¶ 2-5.) That is required by California Rules of Court, rule 3.1346. Absent such service on the non-party, the Court cannot grant the motion. Therefore, the Court DENIES without prejudice Defendants motion to compel the personal appearance and production of documents of Ann Holabird. Conclusion The Court DENIES without prejudice Defendants motion to compel the personal appearance and production of documents from Ann Holabird. Moving party to give notice.
Ruling
PROGRESSIVE WEST INSURANCE COMPANY VS REGINA STIBLEY, ET AL.
Aug 21, 2024 |22STCV38200
Case Number: 22STCV38200 Hearing Date: August 21, 2024 Dept: 28 Having considered the documents submitted in support of the request for default judgment, the Court rules as follows. BACKGROUND On December 7, 2022, Plaintiff Progressive West Insurance Company (Plaintiff) filed this action against Defendants Regina Stibley (Stibley), Edwin Brown (Brown), and Does 1-20 for motor vehicle tort and subrogation under California Insurance Code section 11580.2, subdivision (g). The complaint demanded $59,064.98. On January 17, 2023, Plaintiff filed a proof of service showing substituted service of the summons, complaint, statement of damages, and other documents on Stibley on January 9, 2023. On February 2, 2023, the Court dismissed Brown without prejudice at Plaintiffs request. On May 20, 2024, the Court dismissed the Doe defendants without prejudice at Plaintiffs request. On May 17, 2024, the clerk entered Stibleys default. Also on May 17, 2024, Plaintiff filed a request for Court judgment. PARTYS REQUEST Plaintiff Progressive West Insurance Company asks the Court to enter a default judgment against Defendant Regina Stibley and award Plaintiff $59,583.98, consisting of $59,064.98 as the demand of the complaint and $519.00 in costs. LEGAL STANDARD A. Default judgment [With exceptions that do not apply here,] [a] party seeking a default judgment on declarations must use mandatory Request for Entry of Default (Application to Enter Default) (form CIV-100) . . . The following must be included in the documents filed with the clerk: (1) Except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim; (2) Declarations or other admissible evidence in support of the judgment requested; (3) Interest computations as necessary; (4) A memorandum of costs and disbursem*nts; (5) A declaration of nonmilitary status for each defendant against whom judgment is sought; (6) A proposed form of judgment; (7) A dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) Exhibits as necessary; and (9) A request for attorney fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800(a).) B. Damages On a request for default judgment, [w]here a cause of action is stated in the complaint, plaintiff merely needs to introduce evidence establishing a prima facie case for damages. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 5:213.1, p. 5-56 (Cal. Practice Guide), citing Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361 [trial court erred in applying preponderance of the evidence standard].) The relief granted to a plaintiff upon entry of a defendant's default cannot exceed the amount demanded in the complaint or, for personal injury cases where damages may not be stated in the complaint, the amount listed in the statement of damages. (Code Civ. Proc., §§ 580, subd. (a), 585, subd. (b).) The notice requirement of section 580 was designed to insure fundamental fairness. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494.) The statute insures that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them. [Citation.] If a judgment other than that which is demanded is taken against him, [the defendant] has been deprived of his day in courta right to a hearing on the matter adjudicated. (Id. at p. 493.) A trial court exceeds its jurisdiction if it awards damages in excess of the amount specified in the complaint or statement of damages. (Id. at p. 494.) DISCUSSION Plaintiff has submitted a complete default judgment application with all required information. The Court grants the application. CONCLUSION The Court GRANTS Plaintiff Progressive West Insurance Companys application for default judgment against Defendant Regina Stibley filed on May 17, 2024. The Court awards Plaintiff Progressive West Insurance Company $59,583.98 against Defendant Regina Stibley. Plaintiff is ordered to give notice of this ruling.
Ruling
MARTA VELASCO VS NUESTRA SENORA DE GUADALUPE, INC.
Aug 20, 2024 |Renee C. Reyna |21STCV35122
Case Number: 21STCV35122 Hearing Date: August 20, 2024 Dept: 29 Velasco v. Nuestra Senora de Guadalupe, Inc. 21STCV35122 Plaintiffs Motion to Set Aside Dismissal Tentative The motion is granted. Background On September 22, 2021 Plaintiff Marta Velasco (Plaintiff) filed a complaint against Nuestra Senora De Guadalupe, Inc. (Defendant) and Does 1 to 30 for premises liability and general negligence arising out of a fall on September 26, 2019. Default was entered against Defendant on June 5, 2023. On November 29, 2023, Plaintiff amended the complaint to correct the name of Defendant. The correct name is Our Lady of Guadalupe Church. On February 13, 2024, Plaintiff did not appear at an OSC re Dismissal. Plaintiffs complaint was dismissed without prejudice. On June 11, 2024, Plaintiff filed this motion to set aside the dismissal. No opposition has been filed. This motion was initially scheduled for July 24 and continued to August 20. Legal Standard Code of Civil Procedure section 473, subdivision (b) provides for both discretionary and mandatory relief from dismissal. As to discretionary relief, the statute states: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him through his or her mistake, inadvertence, surprise, or excusable neglect. (Code of Civil Procedure § 473, subd. (b).) Where such an application for discretionary relief is made, the motion must be accompanied by a copy of the answer or pleading proposed to be filed; otherwise the application shall not be granted. (Ibid.) The application for relief must be made within a reasonable time, and in no case exceeding six months after the judgment. (Ibid.) The statute also provides for mandatory relief from dismissal, default, or default judgment: whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorneys sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect & unless the court finds that the default or dismissal was not in fact caused by the attorneys mistake, inadvertence, surprise, or neglect. (Ibid.) Discussion Plaintiff seeks to have the dismissal of her complaint set aside. Plaintiffs counsel Dean Hakkak states that he failed to appear at the OSC hearing on February 13, 2024, because of an inadvertent scheduling mistake. (Hakkak Decl., ¶¶ 5-6.) The Court finds that the dismissal was entered as a result of counsels mistake, inadvertence, surprise, or neglect. Accordingly, the motion is granted. Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), the Court ORDERS counsel of record Dean Hakkak to pay $150 to the State Bar Client Security Fund, and to file proof of payment with the Court by no later than September 20, 2024. Conclusion Plaintiffs motion to set aside the dismissal is GRANTED. The Court SETS ASIDE the dismissal order entered on February 13, 2024. The Court SETS a hearing in approximately 60 days on an Order to Show Cause re Dismissal for failure to obtain entry of default against the Defendant or, in the alternative, a Trial Setting Conference. The Court SETS a hearing in approximately 60 days on an Order to Show Cause re proof of payment by counsel of record Dean Hakkak of the amount of $150 to the State Bar Client Security Fund. Moving party to give notice.
Ruling
MINA BOKTOR VS RETZEL GLENN HILL, ET AL.
Aug 21, 2024 |Renee C. Reyna |22STCV32473
Case Number: 22STCV32473 Hearing Date: August 21, 2024 Dept: 29 Boktor v. Hill 22STCV32473 Defendants Motion to Compel Deposition of Plaintiff Tentative The motion is granted. The request for sanctions is granted in part. Background On October 4, 2022, Mina Boktor (Plaintiff) filed a complaint against Retzel Glenn Hill, Specialized Services Transportation Inc. (collectively Defendants), and Does 1 through 50 for negligence arising out of an automobile accident occurring on November 12, 2020. Defendants filed their answers on November 9 and 16, 2023. On July 24, 2024, Defendants filed this motion to compel the deposition of Plaintiff. Defendants also seek sanctions. On August 12, 2024, Plaintiffs counsel filed a document labelled a declaration of non-opposition. In the non-opposition, Plaintiff consents to the order compelling the deposition but opposes Defendants request for sanctions, arguing that Defendants did not properly meet and confer and did not schedule and complete an Informal Discovery Conference (IDC). The Court notes that this non-opposition, which is in fact an opposition to the sanctions request, was not timely filed. Defendants filed a reply on August 14. Legal Standard Any party may obtain discovery & by taking in California the oral deposition of any person, including any party to the action. (Code Civ. Proc., § 2025.010.) Code of Civil Procedure sections 2025.210 through 2025.280 provide the requirements for (among other things) what must be included in a deposition notice, when and where depositions may be taken, and how and when the notice must be served. The service of a deposition notice & is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying. (Id., § 2025.280, subd. (a).) Section 2025.230 provides: If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent. Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280. Section 2025.450, subdivision (a), provides: If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Id., subd. (b).) When a motion to compel is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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. (Id., § 2025.450, subd. (g)(1).) In Chapter 7 of the Civil Discovery Act, section 2023.010, subdivision (d), defines [m]isuses of the discovery process to include [f]ailing to respond to or to submit to an authorized method of discovery. Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Id., § 2023.030, subd. (a).) Discussion Defendants noticed Plaintiffs deposition for April 17, 2024. (Glass Decl., ¶ 2 & Exh. A.) Plaintiff objected on the grounds that counsel was not contacted regarding the date and that the deposition should be conducted remotely rather than in person. (Id., ¶ 3 & Exh. B.) Defendants reached out to Plaintiff regarding scheduling, but Plaintiff did not respond. (Id., ¶¶ 4-5 & Exhs. C-D.) Defendants then noticed Plaintiffs deposition for June 18, 2024. (Id., ¶ 6 & Exh. E.) Plaintiff did not object but emailed Plaintiffs counsel at 4:39 p.m. on June 17 stating that the deposition could not go forward due to a scheduling conflict. (Id., ¶¶ 7-8 & Exhs. F-G.) Plaintiff did not appear, and Defendants took a certificate of non-appearance. (Id., ¶ 17 & Exh. O.) Counsel then discussed new dates for the deposition and settled on July 24. (Id., ¶¶ 9-10 & Exhs. H-I.) But counsel disagreed as to whether the deposition should be taken in the office of Plaintiffs counsel or Defendants counsel. (Id., ¶¶ 11-12, 14 & Exhs. J-K, M) Defendants noticed Plaintiffs deposition for July 24, at the offices of Defendants counsel. (Id., ¶ 13 & Exh. L.) Plaintiff objected on the grounds that counsel was not contacted regarding the date and that the deposition should be conducted remotely rather than in person. (Id., ¶ 15 & Exh. N.) The Court finds that Defendants have satisfied all substantive and procedural requirements in connection with their motion. Defendants noticed a deposition for June 18, 2024. Plaintiff did not object and did not appear. Defendants inquired about the nonappearance but the parties have not been able to resolve their disagreements about deposition scheduling. The Court exercises its discretion to consider Plaintiffs opposition to the motion, which Plaintiff labels as a non-opposition. First, Plaintiff contends that Defendants did not meet and confer adequately. The Court has reviewed the record and finds that there was no failure to meet and confer. Moreover, in connection with a motion under Code of Civil Procedure section 2025.450, it is sufficient for the moving party to inquire about the nonappearance, which Defendants plainly did. Second, Plaintiff contends that Defendants did not satisfy the requirement for an IDC. Under the Eighth Amended Standing Order for Procedures in the Personal Injury Hub Courts, an IDC is required for a motion to compel further discovery responses; there is no IDC requirement for a motion to compel a deposition. Turning now to sanctions, the Court grants in part Defendants request for monetary sanctions. Plaintiff contends that sanctions may be awarded only against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel and that since Plaintiff has filed only a non-opposition, sanctions cannot be awarded. It is true, of course, that a number of statutes within the Civil Discovery Act authorize sanctions only against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel. (See, e.g., Code Civ. Proc., § 2030.290, subd. (c) & § 2031.300, subd. (c).) But this motion is brought under section 2025.450, subdivision (a). And the applicable sanctions provision, contained in subdivision (g)(1), does not limit the authority to award sanctions to those who unsuccessfully make or oppose a motion to compel. To the contrary, subdivision (g)(1) provides: If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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. Accordingly, even if the Court accepted the argument that Plaintiffs non-opposition is not an opposition in substance (which the Court does not), sanctions are still authorized under section 2025.450, subdivision (g)(1), in these circ*mstances. The Court finds that a motion under subdivision (a) has been granted, that Plaintiff and counsel have not acted with substantial justification, and that other circ*mstances do not make the imposition of the sanction unjust. Based on the relatively straightforward nature of a motion to compel a deposition of a party, the Court sets sanctions in the amount of $1,604.50, calculated based on 2.5 hours of attorney time, multiplied by counsels reasonable billing rate of $295 per hour, plus $867 in costs. (See Glass Decl., ¶¶ 17-20 & Exh. O.) Sanctions are awarded against Plaintiff. No sanctions are requested against counsel. Conclusion The Court GRANTS Defendants motion to compel the deposition of Plaintiff. The Court ORDERS Plaintiff Mina Boktor to appear for deposition and answer questions under oath on September __, 2024, at 10:00 am, at the offices of Harrington Foxx Dubrow & Canter LLP, 535 North Brand Boulevard, Suite 800, Glendale, California 91203. The Court ORDERS Plaintiff Mina Boktor pay $1,604.50 in monetary sanctions under the Civil Discovery Act to Defendants within 30 days of notice of this order. Moving party is ORDERED to give notice.
Ruling
John Roe 927 D.W. vs. County of Fresno / COMPLEX
Aug 20, 2024 |22CECG03958
Re: John Roe 927 D.W. v. County of Fresno Case No. 22CECG03958Hearing Date: August 20, 2024 (Dept. 501)Motion: by Defendant County of Fresno for an Order Compelling Initial Responses to Interrogatories and Request for Production of Documents, and for SanctionsTentative Ruling: To grant defendant County of Fresno’s motion to compel plaintiff John Roe 868D.M. to serve responses to defendant’s form interrogatories, set one, specialinterrogatories, set one, and requests for production of documents, set one. Plaintiff shallserve his verified responses without objections within 10 days of the date of service of thisorder. To grant defendant’s request for monetary sanctions against plaintiff for hisunjustified failure to serve responses to discovery, in the amount of $300. Plaintiff shall paythe sanctions to defense counsel within 30 days of the date of service of this order. To deny defendant’s request for an order dismissing plaintiff’s Complaint, asdefendant has not served or filed a motion for terminating sanctions, nor has defendantshown that plaintiff has engaged in a pattern of willfully refusing to respond to discoveryor disobeyed court orders to provide discovery responses. If oral argument is timely requested, such argument will be entertained on August21, 2024, at 3:30 p.m.Explanation: The court intends to grant the motion to compel plaintiff John Roe 868 D.M. toprovide initial responses to the form interrogatories, special interrogatories, and requestsfor production of documents, set one. (See Code Civ. Proc., §§ 2030.290, 2031.300.)Plaintiff has failed to respond to the discovery requests despite being given an extensionof time to respond. His responses are now about five months overdue. He is no longerrepresented by counsel, but he is still obligated to respond to discovery as a party to theaction regardless of his legal representation. Also, he is apparently no longer respondingto phone calls, letters, or emails, and defense counsel has been unable to contact himabout the unanswered discovery. Therefore, the court will order him to provide responseswithout objections to the pending discovery requests. In addition, the court intends to order plaintiff to pay sanctions to defendant forhis unjustified refusal to respond to the discovery. Defendant seeks $620 in sanctionsbased on 3.1 hours of attorney time billed at $200 per hour. While defendant is entitled tosanctions, the requested amount of sanctions appears to be excessive based on thesimple, unopposed nature of the motion. The court will grant sanctions of $300 basedon 1.5 hours of attorney time billed at $200 per hour. To the extent defendant seeks an order dismissing the entire action, the courtintends to deny the request. Granting terminating sanctions against plaintiff at this stageof the proceedings would be premature and excessively punitive, especially sincedefendant has not properly noticed its motion for terminating sanctions. Nor has plaintiffdefied a court order requiring him to respond to discovery. Therefore, terminatingsanctions are not yet proper here. “Although in extreme cases a court has the authorityto order a terminating sanction as a first measure a terminating sanction should generallynot be imposed until the court has attempted less severe alternatives and found them tobe unsuccessful and/or the record clearly shows lesser sanctions would be ineffective.”(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566,604–605, citations omitted.) However, if plaintiff continues to refuse to respond todiscovery after being ordered to do so, the court will consider granting terminatingsanctions against him. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: DTT on 8/9/2024 . (Judge’s initials) (Date)
Ruling
ROCHA, FERNANDO vs TRUJILLO, DIANA LISBBETH HERNANDEZ
Aug 19, 2024 |CV-22-002302
CV-22-002302 – ROCHA, FERNANDO vs TRUJILLO, DIANA LISBBETH HERNANDEZ – Plaintiff’s Motion for Order Compelling Further Verified Responses from Defendant Ontrac to Special Interrogatories, Set Two; Request for Sanctions – GRANTED, in part, DENIED, in part.The Court finds that Plaintiff is entitled to further responses to its Special Interrogatories Set Two, Nos. 2 to 6 and that the objections raised by Defendant to same are without merit. (Civ. Proc Code § 2017.010; Civ. Proc. Code § 2030.240).Further, claims of attorney client privilege or protected work product privilege require the production of sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (Civ. Proc. Code § 2031.240) Defendant made bare assertions of said privileges without supporting them with sufficient factual information or a privilege log.The Court also frowns upon Defendant’s Counsel’s conduct in making repeated assertions and undertakings to Plaintiff’s Counsel that supplementary responses were forthcoming, only to oppose this motion without any regard or reference to said assertions and undertakings.Accordingly, Plaintiff’s motion is granted. Defendant is hereby ordered to produce Code- compliant verified responses without objection to Plaintiff’s Special Interrogatories, Set Two, Nos. 2-6 within fourteen (14) days of the date of this order.Objections based on work product or attorney client privilege shall be supported by a privilege log.Plaintiff’s request for monetary sanctions is denied for failure to notice his request for monetary sanctions and the party against whom said sanctions are sought. (Mattco Forge, Inc. v. Arthur Young & Co. (1990), 223 Cal.App.3d 1429; Cal. Rules of Court, rule 311(a); Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 6; O'Brien v. Cseh, 148 Cal.App. 3d 957, at p. 961
Ruling
Manpreet Gill vs. Community Medical Centers, Inc.
Aug 21, 2024 |23CECG05021
Re: Gill v. Community Medical Centers, Inc. et al. Superior Court Case No. 23CECG05021Hearing Date: August 21, 2024 (Dept. 503)Motions: (1) By Defendant Charles Sohn, M.D. for an Order Compelling Initial Responses to Form Interrogatories, Set One From Plaintiff Yadwinder Singh, and Request for Sanctions (2) By Defendant Charles Sohn, M.D. for an Order Compelling Initial Responses to Special Interrogatories, Set One From Plaintiff Yadwinder Singh, and Request for Sanctions (3) By Defendant Charles Sohn, M.D. for an Order Compelling Initial Responses to Request for Production of Documents, Set One From Plaintiff Yadwinder Singh, and Request for Sanctions If oral argument is timely requested, it will be entertained on Thursday, August 22, 2024, at 3:30 p.m. in Department 503.Tentative Ruling: To grant each of the motions to compel initial responses to form and specialinterrogatories, and request for production of documents. Within ten (10) days of serviceof the order by the clerk, plaintiff Yadwinder Singh shall serve verified responses, withoutobjections, to Form Interrogatories, Set One; Special Interrogatories, Set One; andRequest for Production, Set One, and produce all documents responsive to the Requestfor Production of Documents. To impose monetary sanctions in the total amount of $547.50 against plaintiffYadwinder Singh, in favor of defendant Charles Sohn, M.D. Within thirty (30) days ofservice of the order by the clerk, plaintiff Yadwinder Singh shall pay sanctions todefendant Charles Sohn, M.D.’s counsel.Explanation: On January 30, 2024, defendant Charles Sohn, M.D. (“Defendant”) served thediscovery at issue on plaintiff Yadwinder Singh (“Plaintiff”). (E.g., Thelen Decl., ¶ 3, and Ex.A thereto.) As of the filing of the motions to compel, no responses have been served. (Id.,¶ 7.) No opposition was filed. Within 30 days of service of interrogatories, the party to whom the interrogatoriesare propounded shall serve the original of the response to them on the propoundingparty. (Code Civ. Proc. § 2030.260.) Within 30 days of service of a demand for inspection,the party to whom the requests are propounded shall serve the original of the responseto them on the propounding party. (Code Civ. Proc. § 2031.260.) To date, Defendanthas received no response to interrogatories and demands for inspection. Accordingly,an order compelling Plaintiff to provide initial responses is warranted. (Code Civ. Proc. §2030.290, subd. (b), 2031.300 subd. (b).) All objections are waived. (Id., §§ 2030.290, subd.(a), 2031.300, subd. (a).) Sanctions Sanctions are mandatory unless the court finds that the party acted “withsubstantial justification” or other circ*mstances that would render sanctions “unjust.” (Id.,§§ 2030.290, subd. (c), 2031.300, subd. (c).) As no opposition was filed, the court finds nocirc*mstances that would render the mandatory sanctions unjust. The court findscounsel’s rate of $245 per hour as reasonable, and imposes sanctions in $367.50 reflecting1.5 hours of attorney time in preparation of the present motion and $180.00 in filing fees,in favor of Defendant, and against Plaintiff. The sanctions imposed total to $547.50. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: jyh on 8/20/24 . (Judge’s initials) (Date)
Ruling
VIACHESLAV PEVCHENKO, ET AL. VS JOSHUA ROMERO
Aug 21, 2024 |11/28/2022 |24SMCV01260
Case Number: 24SMCV01260 Hearing Date: August 21, 2024 Dept: N TENTATIVE RULING Defendant Joshua Romeros Demurrer to Plaintiffs First Amended Complaint is SUSTAINED with thirty (30) days leave to amend. Defendant Joshua Romeros Motion to Strike Portions of Plaintiffs First Amended Complaint is DENIED as MOOT. Plaintiffs Viacheslav Pevchenko and Labazangadzhi Kurbanov may amend their complaint only as authorized by the Courts order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Defendant Joshua Romero to give notice. REASONING Legal Standard [A] demurrer tests the legal sufficiency of the allegations in a complaint. (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125). Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Analysis Defendant Joshua Romero (Defendant) demurs to the complaint on the ground there is another action pending in the small claims court (Los Angeles Superior Court Case No. 24BHSC00972 (Kurbanov v. Romero)). While Defendant has not properly requested judicial notice of this action or the filings therein, the Court may take judicial notice of the court records on its own motion pursuant to Evidence Code section 452, subdivision (d). The complaint in that action shows that Plaintiffs Viacheslav Pevchenko and Labazangadzhi Kurbanov (Plaintiffs) brought an action against Defendant, seeking $12,500, based on allegations that Defendant hits Plaintiffs automobile on February 19, 2024, which mirrors the allegations of the present action, except Plaintiffs allege here that Defendant hit the vehicle on February 18, 2024. Notably, the small claims action went to trial on July 3, 2024, a judgment was entered in Plaintiffs favor, and the minute order specifically notes that Plaintiffs acknowledge[d] that they have filed a superior court case as well and were advised that the jurisdictional maximum of small claims court is $12,500 and elected to proceed anyway. The action is currently the subject of an appeal by Defendant. Plaintiff provide several citations to case law and statutes, none of which indicate that a party may proceed in both unlimited civil and small claims for the same harm arising out of the same conduct. Accordingly, Defendant Joshua Romeros Demurrer to Plaintiffs First Amended Complaint is SUSTAINED with thirty (30) days leave to amend. While the Court is not convinced that Plaintiffs can amend the complaint to cure the deficiencies, the Court will allow Plaintiffs the opportunity to so amend. Given the Courts ruling on demurrer, Defendant Joshua Romeros Motion to Strike Portions of Plaintiffs First Amended Complaint is DENIED as MOOT.
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