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Filing # 73619829 E-Filed 06/15/2018 10:58:01 AM IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR GADSDEN COUNTY, FLORIDA STEVEN HAMBLEN, As Personal Representative of the ESTATE OF SAMANTHA HAMBLEN, On behalf of himself and All Survivors and Beneficiaries of the Estate, Plaintiff, CASE NO.: 2014-CA-365 vs PILOT TRAVEL CENTERS, LLC d/b/a FLYING J, Defendant, DEFENDANT’S MOTION TO STRIKE\LIMIT PLAINTIFF'S CLAIMS FOR DAMAGES WITH RESPECT TO MS. BOURNE AND RELATED MOTION IN LIMINE TO LIMIT THE INTRODUCTION OF EVIDEINCE AND USE OF HER PRIOR DEPOSITION TESTIMONY AT TRIAL Defendant, PILOT TRAVEL CENTERS, LLC (hereinafter “PILOT”), by and through its undersigned counsel hereby files its above captioned motion and in support thereof states: This action arises out of a motor vehicle\ tractor trailer accident and the resulting death of Samantha Hamblen (hereafter “the decedent”) that occurred on September 21, 2013. On December 4, 2014, the decedent's mother, Mary Bourne, filed a wrongful death action against Defendant, PILOT, pursuant to Florida's Wrongful Death Act, Florida Statutes Sections 768.16-768.27. See Plaintiff's Amended Complaint attached hereto as Exhibit A (hereafter “Complaint”) at { 7. Ms. Bourne passed away on June 22, 2016, prior to the entry of any judgment against PILOT in this case. See the suggestion of death filed in this case attached hereto as Exhibit B. The decedent's father, Steven Hamblen, was then substituted as the Plaintiff in this action. The Complaint, via this Court's Order, was only amended to reflect this substitution along with a corresponding change to the case's caption. See this Court's Order Granting Plaintiff's Motion to Substitute Party Plaintiff and Amend Caption, dated September 15, 2016.Plaintiff's Complaint explicitly secks to recover Ms. Bourne's mental pain and sufferingdamages and other damages pursuant to the Wrongful Death Act. See Exhibit A at { 9 (incorporatedand the “WHEREFORE” clause of Count II against PILOT). Contrary to the Plaintiff's AmendedComplaint, the Plaintiff can only seek to recover lost “support” and “services” damages on behalf ofMs. Bourne - or rather, on behalf of Ms. Bourne's estate - for the limited time period between thedecedent's and Ms. Bourne's death. Section 768.24 of the Wrongful Death Act, titled, “Death of a survivor before judgment”plainly provides: Asurvivor’s death before final judgment shall limit the survivor’s recovery to lost support and services to the date of his or her death. The personal representative shall pay the amount recovered to the personal representative of the deceased survivor.Id. Emphasis added.See also Florida Clarklift, Inc. v. Reutimann, 323 So.2d 640, 648 (Fla. DCA gnd 1975)(discussingpain and suffering awards under the Wrongful Death Act and stating, “The philosophy of the Act is toafford recovery for this element of damage for the living rather than the dead.”).Section 768.18 of the Wrongful Death Act defines “support” and “services” as follows: (3) “Support” includes contributions in kind as well as money. (4) “Services” means tasks, usually of a household nature, regularly performed by the decedent that will be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case. Thus, it is clear that Plaintiff may not seck mental pain and suffering damages, or, any otherdamages for Ms. Bourne's estate beyond lost support and services for the limited time period betweenthe decedent's death and her own death. Accordingly, this Court should preclude the introduction ofany evidence at trial relating to Ms. Bourne’s mental pain and suffering, grief, and irrelevant facts andcirc*mstances relating to how she learned of the underlying accident and the death of the decedent,and all other topics beyond the limited scope of her lost support and services damages, if any. Upon information and belief, PILOT believes counsel for Plaintiff will seek to introduce Ms.Bourne's prior video-taped deposition and/or deposition transcripts at the trial in this case. However,her deposition testimony has no bearing on the limited damages Plaintiff can seek for her estate. Tothe contrary, they show that factually, Ms. Bourne's estate has no recoverable lost support andservices damages (and thus has no recoverable damages at all). See Ms. Bourne's depositiontranscripts taken on October 7, 2014 and December 1, 2015, previously filed with the Court on June7, 2018. Introduction of evidence beyond matters related to those limited to the very limited damagesavailable on behalf of Ms. Borne, if any, would be irrelevant and highly prejudicial to the defense”Generally, “for evidence to be admissible, it must be relevant.” Brackin v. Boles, 452 So.2d 540, 545(Fla. 1984); Fla. Stat. § 90.402. “Relevant evidence is evidence tending to prove or disprove amaterial fact.” Fla. Stat. § 90.401. As the court explained in Zabner v. Howard Johnson's, Inc., 227So.2d 543, 545 (Fla. 4th DCA 1969): Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings . . . Relevancy has been defined as a tendency to establish a fact in controversy or render a proposition in issue more or less probable. Additionally, even if Ms. Bourne's prior testimony was relevant, exclusion of that evidenceis proper as its probative value is substantially outweighed by the danger of unfair prejudice,confusion of the issues, misleading or inflaming the jury, and/or the needless presentation ofcumulative evidence. See Fla. Stat. § 90.403. See also State v. McClain 525 So. 2D 420 (1988)where the Florida Supreme Court explains: ... In weighing the probative value against the unfair prejudice, it is proper for the court to consider the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction. Id. at 422 {internal citations omitted).1 For example, decedent lived in Florida as an unpaid live-in nanny and Ms. Boume lived in Arizona and would provide support for the decedent (not the other way around). See for example Ms, Bourne's 2014 deposition testimony at pp. 34 and 91-92. But, this particular issue will be addressed via a separate Motion.2 Defendant reserves the right to raise additional objections and arguments relating to the introduction of her prior testimony (for example, that it is inadmissible hearsay).In light of the foregoing reasons, PILOT respectfully requests that the Court enter an Ordergranting this Motion and Striking Plaintiff's claims for ‘net accumulations’, and for any other reliefthe Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished viaElectronic Mail, to all counsel of record on the attached Service List, this 15" day of June, 2018. LUKS, SANTANIELLO, PETRILLO & JONES Attomeys for Defendant 6265 Old Water Oak Road Suite 201 Tallahassee, FL 32312 Telephone: (850) 385-9901 Facsimile: (850) 727-0233 signed digitally By. DALE J. PALESCHIC Florida Bar No.: 910880 Dpaleschic@LS-Law.com ALEC MASSON Florida Bar No.: 0108074 Amasson@LS-Law.com SERVICE LISTJoshua Zelman Mark W. Nonni517 E. College Ave. 3360 Capital Circle NW, Ste. BTallahassee, FL 32301 Tallahassee, FL 32308Joshi elmanPA.com Mark@fasigbrooks.comFiling # 21238903 Electronically Filed 12/04/2014 01:45:56PM IN THE CIRCUIT COURT FOR THE SECOND JUDICIAL CIRCUIT, IN AND FOR GADSDEN COUNTY, FLORIDAMARY BOURNE, as PersonalRepresentative of the Estate ofSAMANTHA HAMBLEN,on behalf of herself and all survivorsand beneficiaries of the Estate, Plaintiff,v5, CASE NO.: 14-365-CAAWERNER ENTERPRISES, INC.,GAINES LINER, and PILOT TRAVELCENTERS LLC, Defendants, FIRST AMENDED COMPLAINT FOR DAMAGES Plaintiff Mary Bourne, as Personal Representative of the Estate of Samantha Hamblen,sues the Defendants, Werner Enterprises, Inc., Gaines Liner, and Pilot Travel Centers LLC,alleging as true the following: I This is an action for damages in excessof $15,000.00. Venue and jurisdiction areproperly vested in the Circuit Court of Gadsden County. Plaintiff demands a trial by jury. 2 The parties are: a) The decedent's mother, Mary Bourne, as the Personal Representative ofthe Estate of Samantha Hamblen (Case #13-CP-932, Leon County, Florida), bringing this claimon behalf of the Estate and all survivors and beneficiaries; by The Defendant, Werner Enterprises, Inc. (hereinafter “Werner”), acorporation registered to do business in Florida and doing substantial business Florida; EXHIBIT AL°} The Defendant, Gaines Liner, an individual who resides in Florida; d) The Defendant, Pilot Travel Centers LLC (hereinafter “Pilot™), acorporation registered to do business in Florida and doing substantial business Florida. 3 On September 21, 2013, in Gadsden County, Florida, Defendant Liner wasoperating a motor vehicle that was owned by Defendant Wemer, he was operating the vehiclewith the permission and consent of Defendant Werner, and he was driving the vehicle within thecourse and scope of his employment as a driver for Defendant Werner. 4. At that time and place, Defendant Liner made a left turn and drove Defendant‘Werner’s vehicle into the driveway entrance for the “Flying J Truck Stop” located at 33333 BlueStar Highway, which was owned, operated and under the control of Defendant Pilot. 5 At that time and place, a collision occurred between Defendant Werner's vehicleand a vehicle being driven by Johnny Mayo in which Samantha Hamblen was a belted front-seatpassenger, 6, As the direct result of this collision, Samantha Hamblen died from injuries shesuffered during the accident. A copy of her death certificate is attached to this complaint as“Exhibit A". 7. Mary Bourne, as Personal Representative of the Estate of Samantha Hamblen,brings this action pursuant fo the Florida Wrongful Death Act, Florida Statutes Sections 768.16-768,27 (1991), The known survivors and potential beneficiaries of a recovery for the wrongfuldeath of the decedent are her mother, Mary Bourne (date of birth: 3/6/66) and her father, StevenHamblen (date of birth: 9/8/63). 8. The Estate of Samantha Hamblen has sustained a loss of net accumulations andhas accumulated funeral expenses.9. The surviving parents of Samanths Hamblen have suffered the loss of the decedent's companionship and protection and have sustained tremendous mental pain andsuffering as a result of their daughter’s death. Such damages have been sustained in the past andwill be sustained in the future. COUNT I- NEGLIGENCE AGAINST LINER AND WERNER Plaintiff re-alleges paragraphs 1-9 herein. 10, Defendant Liner was negligent in the operation of the vehicle he was driving byviolating the right of way for Mr. Mayo’s vehiole. i, Defendant Werner is legally liable for any negligence of Defendant Liner. WHEREFORE, Plaintiff, Mary Bourne, as Personal Representative of the Estate ofSamantha Hamblen, demands a judgment against Defendant Gaines Liner and Defendant WemerEnterprises, Inc., for all damages permitted under the Florida Wrongful Death Act, the costs ofthis action and such other relief as may be deemed just and proper. COUNT Hf - NEGLIGENCE AGAINST PILOT Plaintiff re-alleges paragraphs 1-9 herein, 12, Defendant Pilot was negligent in the operation of the “Flying J Truck Stop” byerecting improper, unnecessary and confusing signage that created a dangerous condition on thepremises and/or that failed to fix or repair a dangerous condition that already existed on thepremises. 13. By creating this dangerous condition at the entrance driveway to their business (oralternatively by failing to correct it), it was foreseeable to Defendant Pilot that an accident couldoccur within the zone of risk encompassed by that intersection where the instant accident tookplace. WHEREFORE, Plaintiff, Mary Bourme, as Personal Representative of the Estate ofSamantha Hamblen, demands a judgment against Defendant Pilot Travel Centers, LLC, for alldamages permitted under the Florida Wrongful Death Act, the costs of this action and such otherrelief as may be deemed just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY thata true and correct copy of the foregoing has been furnished viaelectronic mail this 4th day of December, 2014, to the following: P, Raul Alvarez, Esq, Brian D. Stokes, E Alvarez, Sambol & Winthrop, PA eservice@aswpa.com pes@aswpa.com aliranzo@sswpa.com Halley B. Lewis, HI FONVIELLE LEWIS FOOTE & MESSER FL Bar ID No. 0915742 3375 Capital Circle Northeast Building A Tallahassee, FL 32308 (850) 422-7773 FAX: (850) 422-3449 Primary email: hal@wrongfullyinjured.com Secondary email: angela@wrongfullyinjured.com Attorney for Plaintiff (s)° et ti eee Tne ae 4 OFFICE of VITAL STATISTICS eee CERTIFICATION OF DEATH Ss STATE FILE NUMBER: 2073131689 DATE SGM; Septembe 27, 2013 r SECEDENT INFORMATION NAME: SABADESIRES STATE FILE DATE: September e723 RTHA HAMELEN DATE OF DEATH: aber 24, 2043 SEX: FEMALE 88N;| DATE OF BIRTH: 1098 AGE: 024 YEARS BIRTHPLACE: JACKBONVILLE, FLORIDA, NITED BTATER PLAGE OF DEATH: ROADWAY FACILITY NAME OR STREET ADDRESS: U8, 1. 90'AT COMMERCE BLVD. MAEAWAY, FL, 32349 LOCATION OF DEATH: IIDWAY, GADECEN SURVIVING SPOUSE, DECEDENT'S RES! DENCE AND MARTAL STATUS HISTORY INFORMATION : NEVER-MARRIED eo RESIDENCE, O53 BELK DRIVE WEST, TALLAMABSEE, FLORIDA 32910, UNITED OCCUPATION, INDUSTRY: STUDEHT, EIvDUCATION. STATER COUNTY: LEON et RACE: line nek cameo meee acon tutan fee _ Fin see pesca en oar ne, fa aes Sienna soa __Die Pao it MISPANIC OR HAITIAN ORIGIN? NO, ROT OF HISPANIGHAMTIA N OIG EQUGATION: ASBCDEGREE CIAT (B.C. E AA, AS} QVER IN US. ARMED FORGES? HO PARENTS AND INFORMANT INFORMATION FATHER: STEVEN BCOTY HAMRLEN MOTHER, MARY GLEN BOURNE FFORMANTSMARY BOURNE RELATIONSHIP TO DECEDENT: BOTHER: INFORMANTS ADDRESS: 4900 HWY 140 0145, LAPORTE, TEXAS T7671, UNITED STATES PLACE OF EMBPOSITION AND FUNERAL fa*gILITY INFORM ATION PLACE OF DISPOSTTION: CHAPEL OF i PRES METHOD OF DISPOSITION: REMOVAL FRO STATE FUNERAL MUME JOHN 6. ER OSBORN, : RowTa. FUNGRAL FACILITY: CULLEYS MEADUWWODOD FUNERAL HOME Pe@uZag 1787 RIGGINS RD., TALLAHASSEE, FLORIDA 37308 i jx nS CERTIFIER INFORMATION Ay TYPE OF GERTIFIER: ASSOCIATE Me PAGAL EXAMINER — AREDICAL EXAMINER GABE NUMBER: 13panrass iba ‘ThAS OF DEATH [24 ke}: 2243 yeh CERMFIER'S NAME’ ANTHONY JOSE CLARK Ea CERTIFIER'S ICENBE NUMBER: MESSE per Ebeatd a tealEt beea C Prat Ay; \ State Regtetrar REG: wiezAsiy ‘TW ABOVE SROMATLING CRPETURBR FUE THEE TRO A OPERA ON C8 THERE RECN He LE “hae Doe WARRING: EAL DF Teas STATEQM FLOR. GO MOT REDHDT Wren vemaFv ci The 03PRED OF, ot‘Te waresacar “is if) HOCUMET FADE DOMAIN A ui FA DRE BAC GOMT DN GAGE. DIES VOT THOTT GOCI AEEN Wa, se i OT PRODIEE oer Be) S®SBHeOK ORT « Un gx Poeun 1B ie iE repFiling # 43498729 E-Filed 07/01/2016 02:57:01 PM IN THE CIRUIT COURT FOR THE SECOND JUDICIAL CIRCUIT, IN AND FOR GADSDEN COUNTY, FLORIDA CASE NO.: 14-CA-365 MARY BOURNE, as Personal Representative of the Estate of SAMANTHA HAMBLEN, on behalf of herself and all survivors and beneficiaries of the Estate, Plaintiff, VS. WERNER ENTERPRISES, INC., GAINES LINER, and PILOT TRAVEL CENTERS, LLC, Defendants. SUGGESTION OF DEATH Defendant, PILOT TRAVEL CENTERS, LLC, by and through the undersigned counsel, pursuant to Florida Rule of Civil Procedure 1.260(a), hereby files this suggestion of death, suggesting the death of Plaintiff: MARY BOURNE, as Personal Representative of the Estate of SAMANTHA HAMBLEN, on behalf of herself and all survivors and beneficiaries of the Estate. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via electronic mail, to all counsel of record on the attached Service List, this Ist day of July, 2016. LUKS, SANTANIELLO, PETRILLO & JONES Attomeys for Defendant 6265 Old Water Oak Road Suite 201 Tallahassee, FL 32312 Telephone: (850) 385-9901 Facsimile: (850) 727-0233 By: /s/ ALEC MASSON ALEC MASSON EXHIBITFlorida Bar No.: 0108074 AMASSON@LS-Law.com JAMES P. WACZEWSKI Florida Bar No.: 0154989 JWACZEWSKI@LS-Law.com SERVICE LIST.Joshua Zelman, Esq.josh@zelmanpa.com
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LEGAL STANDARD If, after service of a deposition notice, a party to the action . . . without having served a valid objection under Section 2025.410, fails to appear for examination . . . 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 & described in the deposition notice. (Code Civ. Proc., § 2025.450(a).) DISCUSSION I. Factual Background Defense counsel began inquiring as to Plaintiffs availability for deposition beginning on April 5, 2024. (McPhillips Decl. ¶ 4, Ex. A.) Plaintiffs counsel responded on April 7, 2024, stating that the parties could confer the following Monday. (Ibid.) Plaintiffs counsel did not reach out on Monday, and defense counsel sent a follow-up email on April 10, 2024. (Ibid.) 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Plaintiffs did not respond on April 18, 2024, prompting Defendant to file a motion to compel, along with an ex parte application to shorten the time for hearing the motion. (Ibid.) On April 23, 2024, the Court granted the ex parte application and continued the trial to September 24, 2024. (Id., Ex. K.) Defendant thereafter took the motion to compel off calendar and emailed Plaintiffs on April 24, 2024, attempting once again to ascertain available dates for deposition. (McPhillips Decl. ¶ 7, Ex. L.) Plaintiffs again failed to respond, prompting a follow-up email on June 26, 2024. (Id., ¶ 8, Ex. M.) Plaintiffs ignored that communication as well, prompting another follow-up email on July 5, 2024. (Id., ¶ 8, Ex. N.) Plaintiffs also did not respond to that email. (Id., ¶ 8.) II. Plaintiffs Opposition Plaintiffs argue that the motion is procedurally improper because a motion to compel deposition only applies when the deponent fails to appear for examination (Code Civ. Proc., § 2025.450(a)), and Plaintiffs have not failed to appear because no deposition actually took place. Plaintiffs further contend that Defendant violated the Superior Courts civility guidelines by unilaterally scheduling the depositions and failing to take into account the availability of Plaintiffs and their counsel. (See Guidelines for Civility in Litigation, Rule (e)(2).) During meet and confer on other cases concerning the same subject premises, Plaintiffs counsel expressed to Defendant that he was available for depositions on Fridays at 1pm. (Partiyeli Decl. ¶¶ 3-4.) III. Analysis a. Defendant Reasonably Accommodated Plaintiffs Availability Plaintiffs argument overlooks the extensive history of Defendants attempts to ascertain Plaintiffs availability, beginning in April 2024. Plaintiffs ignored the majority of the communications from Defendant. When Defendant issued the deposition notices because Plaintiffs did not respond to prior communications, Defendant apologized for the unilateral dates and asked for alternative dates. Plaintiffs do not dispute any of these facts. The record easily reflects Defendants reasonable consideration for the availability of Plaintiffs and their counsel. (See Guidelines for Civility in Litigation, Rule (e)(2).) Assuming Plaintiffs clearly indicated their availability on Fridays at 1pm[1], Plaintiffs also demanded that the depositions take place on a single day only. (See McPhillips Decl. ¶ 5, Ex. E-G.) Given that Defendants are entitled to depose each Plaintiff for up to seven hours (Code Civ. Proc., § 2025.290(a)), this would mean that the depositions could last up to 8pm on Fridays, which is highly impractical. Thus, if anything, Plaintiffs are the ones failing to account for Defendants schedule. Defense counsel was under no obligation to stipulate to this single limited timeframe. b. Defendant Was Not Required to Hold a Deposition Before Filing This Motion Plaintiffs cite no authority for their proposition that a motion to compel deposition cannot be filed until the deposing party actually holds the deposition. Plaintiffs made clear in their response to the deposition notice that they would not comply with the notice. The record also demonstrates that Plaintiffs ignored Defendants communications and refused to provide their availability. Plaintiffs offer no reason why this should not be considered a failure to appear for purposes of section 2025.450(a). Defendant is not required to expend time and resources holding three futile depositions before moving to compel Plaintiffs compliance with their discovery obligations. Additionally, the Court has both inherent and statutory authority to make orders to ensure the orderly administration of justice. (See Walker v. Superior Court (1991) 53 Cal.3d 257, 266-67; Code Civ. Proc., § 128.) The Court has discretion to establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice. (Code Civ. Proc., § 2019.020(b).) Management of discovery lies within the sound discretion of the trial court. (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1061.) Failing to respond or to submit to an authorized method of discovery constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010(d).) Therefore, the Court has discretion to order the depositions even if such an order is not expressly authorized by section 2025.450(a). CONCLUSION Defendants motion to compel deposition is GRANTED. Plaintiffs Cornelia Rosales, Jose Juventino Rosales, and Jose Alfredo Rosales shall appear for their respective depositions within 15 days of this order. [1] Defense counsel denies receiving any indication from Plaintiffs counsel about his availability on Fridays at 1pm. Plaintiffs counsel avers that he provided this information during meet and confer on other cases. (Partiyeli Decl. ¶¶ 3-4.) Thus, Plaintiffs do not appear to have clearly indicated their availability for depositions in this case. In any event, making one statement about availability does not justify ignoring all of the other communications from Defendant. CORNELIA ROSALES, et al., Plaintiffs, v. VERMONT CITY LIGHTS LP, Defendant. Case No.: 23STCV01764 Hearing Date: August 7, 2024 [TENTATIVE] order RE: defendants motion to preclude improperly designated experts, set fees of experts, and extend time for expert discovery BACKGROUND On January 17, 2023, Plaintiffs Cornelia Rosales, Jose Juventino Rosales, and Jose Alfredo Rosales filed this landlord-tenant action against Defendant Vermont City Lights LP alleging uninhabitable conditions. On July 12, 2024, Defendant filed the instant motion to preclude improperly designated experts, to set the fees of experts, and to extend the time for expert discovery. Plaintiffs filed their opposition on July 23, 2024. DISCUSSION I. Improperly Designated Experts After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each others expert trial witnesses. (Code Civ. Proc., § 2034.210.) If any expert designated by a party under subdivision (a) . . . has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under Section 2034.260. (Id., § 2034.210(b).) This declaration must contain, inter alia, [a] representation that the expert has agreed to testify at the trial. (Id., § 2034.260(c)(3).) [T]he trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: . . . (a) List that witness as an expert under Section 2034.260 . . . (b) Submit an expert witness declaration . . . . (Id., § 2034.300.) Plaintiffs expert designation lists nine witnesses for which Plaintiff has failed to include a declaration stating that the expert has agreed to testify at trial: Meier Fire Investigation; Guhan Subramanian; Amy Chua; Carol Brown; Dr. Gladys Frankel; Dr. Jeffery Alan Sugar; Mark R. Levitt; Eric Garcia; and Joseph Palanca. (McPhillips Decl., Ex. A.) Plaintiffs do not address this in their opposition. Therefore, these witnesses are precluded from testifying at trial. II. Witness Fees If a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert for providing deposition testimony is unreasonable, that party may move for an order setting the compensation of that expert. Notice of this motion shall also be given to the expert. (Code Civ. Proc., § 2034.470(a).) The expert or the party designating the expert shall provide the following information: (1) proof of the ordinary and customary fee actually charged and received by that expert for similar services provided outside the subject litigation; (2) the total number of times the presently demanded fee has ever been charged and received by that expert; and (3) the frequency and regularity with which the presently demanded fee has been charged and received by that expert within the two-year period preceding the hearing on the motion. (Id., § 2034.470(c), (d).) Defendant argues that several of Plaintiffs designated experts have charged excessive fees and that Plaintiffs have failed to provide the requisite supporting information. However, a motion to set expert compensation must be noticed to the expert. (Code Civ. Proc., § 2034.470(a).) The information supporting the fees may be provided either by the party designating the expert or the expert himself. (Id., § 2034.470(c), (d).) Plaintiffs experts deny receiving any notice of the motion. (Partiyeli Decl. ¶ 3.) Thus, Plaintiffs failure to provide information supporting the claimed fees is not dispositive, because the experts themselves should have been given notice of the motion and an opportunity to provide the requisite evidence. While the Court denies the motion for the procedural defect of failing to notice the experts, the Court notes that the fees do appear to be excessive on their face. (See Mtn. 3:23-4:4.) III. Extension of Time for Expert Discovery While Defendants notice of motion purports to move for an extension, Defendant provides no argument or analysis on this point. Therefore, the Court does not reach this issue. CONCLUSION Defendants motion to exclude improperly designated experts is GRANTED. Defendants motion to set expert fees and extend time for expert discovery is DENIED without prejudice.
Ruling
TAICHANDRA FYELDEES VS ALLIED PACIFIC IPA
Aug 08, 2024 |24AHCV00125
Case Number: 24AHCV00125 Hearing Date: August 8, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT TAICHANDRA FYELDEES, Plaintiff(s), vs. ALLIED PACIFIC IPA, Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 24AHCV00125 [TENTATIVE] ORDER RE: MOTION TO SET ASIDE DEFAULT Dept. 3 8:30 a.m. August 8, 2024 ) On January 22, 2024, plaintiff Taichandra Fyeldees (Plaintiff) filed this action against Allied Pacific IPA and Does 1 to 10. Plaintiff filed an amended complaint on February 16, 2024, correctly naming Allied Physicians of California dba Allied Pacific IPA (Defendant) and Does 1 to 10. A proof of service filed on March 25, 2024, shows that Defendant was personally served through its registered agent for service of process on February 28, 2024. On April 8, 2024, default was entered against Defendant. On May 2, 2024, Defendant filed this motion to set aside and vacate the entry of default. Defendant also requests the Court judicially notice records from a related case filed by Plaintiff against Defendant, captioned Taichandra Fyeldees v. Allied Pacific IPA, et al. (Case No. 22STCV18790) (the Earlier Acton). The request is GRANTED. A judge may grant relief from default or a default judgment on the ground of the defendant's excusable neglect if the defendant shows a reasonable excuse for the default. (Jackson v Bank of America (1983) 141 Cal.App.3d 55, 58.) The defendant has the burden of proving excusable neglect by a preponderance of the evidence. (Bonzer v City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478.) In its original moving papers, Defendant stated in its brief that it did not provide the complaint to its counsel, W&D Law, LLP, until after Plaintiff requested the entry of default due to inadvertence and excusable neglect but only submitted the declaration of defense counsel as evidence. (Motion, p. 4.) Therefore, on June 25, 2024, the Court continued the hearing on this motion to allow Defendant to submit a declaration from a corporate representative with personal knowledge of the inadvertence and excusable neglect upon which this motion is purportedly based. On June 27, 2024, Defendant filed the declaration of its chief executive officer, Thomas Lam, M.D., M.P.H. (Dr. Lam). Dr. Lam declares that when Defendants agent for service was served with a copy of the Complaint, they at first mistakenly assumed that it related to [the Earlier Action] and therefore by virtue of inadvertence and excusable neglect [Defendant] did not provide Plaintiffs present complaint to its insurance carrier until after Plaintiff had taken [Defendant]s default. (Lam Decl., ¶ 3.) The agent for service is unidentified in declaration and Dr. Lam, the declarant, does not state if he was the agent for service who was under said mistaken assumption. The they to which the declaration refers are not identified but, presumably, the declaration should have been made by one of such persons to avoid it being inadmissible hearsay. Accordingly, based on what has been provided to the Court, it appears that Dr. Lam lacks personal knowledge to make this declaration and that the motion is predicated on inadmissible hearsay. Therefore, Defendant fails to show by a preponderance of the evidence that there was any inadvertence or excusable mistake that would justify setting aside the default. The motion is DENIED without prejudice. Dated this 8th day of August, 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
Ruling
MANUEL LOPEZ, ET AL. VS MEDCOVE URGENT CARE, AN UNKNOWN BUSINESS ENTITY, ET AL.
Aug 06, 2024 |21STCV20803
Case Number: 21STCV20803 Hearing Date: August 6, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: August 6, 2024 CASE NUMBER: 21STCV20803 MOTIONS: (1) Compel Responses to Demand for Production (2) Compel Responses to Special Interrogatories (3) Compel Responses to Form Interrogatories MOVING PARTY: Defendants Jason Torres, N.P. and Medcove Urgent Care, APC OPPOSING PARTY: Unopposed BACKGROUND Defendants Jason Torres, N.P. and Medcove Urgent Care, APC (Defendants) move to compel Plaintiff Bella Rose Lopez (Plaintiff) to serve verified responses, without objections, to Demand for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One. Defendants seek monetary sanctions. No opposition has been filed. LEGAL STANDARD Interrogatories If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses. (Code Civ. Proc. § 2030.290 (b).) Failure to timely respond waives all objections, including privilege and work product, unless [t]he party has subsequently served a response that is in substantial compliance and [t]he partys failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2030.290 (a)(1), (a)(2).) The statute contains no time limit for a motion to compel where no responses have been served and no meet and confer is required when a party does not respond to discovery requests. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.) If a motion to compel responses is filed, the Court shall impose a monetary sanction against the losing party unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2030.290 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) Requests for Production Under Code of Civil Procedure Section 2031.300, if a party fails to serve a timely response to a demand for inspection, the party making the demand may move for an order compelling response to the demand. (Code Civ. Pro § 2031.300 (b).) The party who fails to serve a timely response to a demand for inspection waives any objection to the demand unless the court finds that the party has subsequently served a response that is in substantial compliance or partys failure was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc. § 2031.300 (a)(1)- (2).) Courts shall impose a monetary sanction against any party who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection unless the party acted with substantial justification or other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc. § 2031.300 (c).) Further, [t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed. (Cal. Rules of Court, rule 3.1348(a).) DISCUSSION Here, Defendants served Demands for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One, on Plaintiffs on March 21, 2024. (Villebro Decl. ¶ 2, Exh. A.) Responses were due April 23, 2024. (Id. ¶ 3.) Since then, no responses have been served. (Id. ¶ 5.) Therefore, because responses have not been served, the motions to compel are granted. Defendants also request $720 in monetary sanctions for each of the three motions, against Plaintiff. This represents an hourly rate of $220 and the $60.00 filing fee. (Villebro Decl. ¶ 16.) The Court finds sanctions are warranted because Plaintiff has failed to respond. However, the amount requested is excessive due to the type of motion at issue, the fact no opposition was filed, and the fact counsel can appear at the hearing remotely. Therefore, the Court awards sanctions in the amount of $1,170 (1.5 hours of attorney time to file and appear at the hearing, plus the $60 filing fee, for each motion). CONCLUSION AND ORDER Accordingly, Defendants Motions to Compel Demands for Production of Documents, Set One, Special Interrogatories, Set One, and Form Interrogatories, Set One are GRANTED. Plaintiff Bella Rose Lopez shall provide verified responses, without objections, within 10 days. The Court further GRANTS Defendants request for monetary sanctions against Plaintiff in the reduced amount of $1,170.00. Said monetary sanctions are to be paid to counsel for Defendants within 30 days of the date of this order. Defendants shall provide notice of the Courts order and file a proof of service of such.
Ruling
LEAUPEPE vs GOLDENVOICE, LLC, A LIMITED LIABILITY COMPANY
Aug 06, 2024 |CVPS2400165
LEAUPEPE vs GOLDENVOICE,Demurrer on Complaint for Auto by STAFFCVPS2400165 LLC, A LIMITED LIABILITYPRO INC., A CORPORATIONCOMPANYTentative Ruling: Sustain with 20 days’ leave to amend.This case involves a pedestrian who mistakenly or confusedly left the grounds of the Coachella MusicFestival and was struck by a car while walking along the roadside looking for his campground.Plaintiff’s complaint alleges four causes of action: (1) negligence; (2) motor vehicle negligence; (3)premises liability; and (4) dangerous condition of public property. The only remaining cause of actionagainst Defendant Staff Pro Inc. is the first cause of action for negligence. Staff Pro demurrersarguing that this cause of action is insufficiently pleaded because Staff Pro was not responsible forpermitting, traffic control, pedestrian access, or safety measures for the festival site and surroundingareas.To withstand a demurrer the complaint must contain “a statement of the facts constituting the cause ofaction, in ordinary and concise language.” (Code Civ. Proc., § 425.10.) “[T]he complaint need onlyallege facts sufficient to state a cause of action, each evidentiary fact that might eventually form partof the plaintiff’s proof need not be alleged. (C.A. v. William S. Hart Union High School Dist. (2012) 53Cal.4th 861, 872.) Generally, a plaintiff need only plead facts necessary “to acquaint a defendant withthe nature, source and extent of his claims.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.) A demurrer on the ground of uncertainty will only be sustained where a defendant cannotreasonably determine what issues must be admitted or denied, or what claims are directed againstthem. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)To support a claim for negligence, a plaintiff must allege facts showing a legal duty to use due care,breach of the duty, causation, and damages. (Regents of University of California v. Superior Court(2018) 4 Cal.5th 607, 618 (“Regents”); Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083(“Vasilenko”).) “In general, each person has a duty to act with reasonable care under thecirc*mstances.” (Regents, supra, 4 Cal.5th at p. 619; accord Vasilenko, supra, 3 Cal.5th 1077 at p.1083 [“Civil Code section 1714, subdivision (a) ‘establishes the general duty of each person toexercise, in his or her activities, reasonable care for the safety of others.’ ”].) “However, ‘one owes noduty to control the conduct of another, nor to warn those endangered by such conduct.’” (Regents,supra, 4 Cal.5th at p. 619; accord Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 [“as ageneral matter, there is no duty to act to protect others from the conduct of third parties”].)“[P]laintiffs alleging a defendant had a duty to protect them must establish: (1) that an exception to thegeneral no-duty-to-protect rule applies and (2) that the Rowland factors support the imposition of theduty.” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 77 (“Barenborg”).)“‘“The key in each [special relationship] is that the defendant's relationship with ... the tortfeasor ...places the defendant in the best position to protect against the risk of harm.” ’ [Citations.] Thus, thedefendant's ability to control the person who caused the harm must be such that ‘if exercised, [it]would meaningfully reduce the risk of the harm that actually occurred.’ ” (Barenborg, supra, 33Cal.App.5th 78.)Here, the facts alleged do not demonstrate that Staff Pro owed Plaintiff a duty. The fact that Staff Prowas hired to provide security services at the festival is not on its face related to Plaintiff’s injury by athird party. The Complaint alleges that Plaintiff asked security personnel for directions to his camp, butdid not get assistance. Plaintiff has not alleged facts demonstrating how asking for and failing to getdirections from unnamed or identified security staff gave rise to a duty owed by Staff Pro to ensurePlaintiff got back safely to his camp. There is nothing in the Complaint that reflects that Staff Pro hadany responsibility to provide proper precautions or provisions to guide pedestrian guests/patrons backand forth between the festival and the campgrounds/campsites. There are no allegations in theComplaint suggesting that Staff Pro had an obligation to provide signage, lighting, or other amenitiesto guide pedestrian guests on or off the festival site. Further, although the Complaint makes theconclusory allegation that Staff Pro (in referencing Defendants generally) had a special relationshipwith Plaintiff to support finding a duty, none of the facts pleaded support a special relationshipbetween Staff Pro and Plaintiff such that Staff Pro had the ability to reduce the risk of Plaintiff being hitby a limo while walking along the highway in the dark outside of the festival orcampgrounds/campsites.The Case Management Conference and Orders to Show Cause set for hearing on August 6, 2024 at8:30 a.m. are continued to October 24, 2024 at 8:30 a.m. Parties are ordered to file with the Court 10days in advance of the continued CMC a joint declaration of counsel explaining their efforts to meetand confer in accord with Local Rule 3218 and Rules of Court 3.724. The declaration should detailany agreements among the parties, and should specify the anticipated discovery schedule and whatform of alternative dispute resolution the parties will be participating in and on what timeline. TheOSCs are returnable to this department under Local Rule 3116.
Ruling
MILTON OSVALDO REVOLORIO-GUIDO VS HENRY PINEDA CABRERA, ET AL.
Aug 08, 2024 |Renee C. Reyna |21STCV37620
Case Number: 21STCV37620 Hearing Date: August 8, 2024 Dept: 29 Revolorio-Guido v. Pineda Cabrera 21STCV37620 Petition for Approval of Minors Compromise Tentative: The Court excuses the personal appearance of the claimant and the guardian ad litem. Counsel may appear by telephone or video conference call. On April 29, 2024, the Court approved a previous petition for approval of a settlement between Claimant and Defendants Henry Pineda Cabrera and Fernando Salesesteban. In this petition, filed July 10, 2024, Petitioner seeks an order approving a settlement between Claimant and Defendants Fernando Cervantes and Martha Cervantes. The Court has reviewed the petition and all supporting papers and finds the settlement and fees fair and reasonable. All substantive and procedural requirements are satisfied. The Court APPROVES and GRANTS the Petition for Approval of Minors Compromise between the minor, Milton Osvaldo Revolorio-Guido, and Defendants Fernando Cervantes and Martha Cervantes. Order to Show Cause Re: proof of deposit of funds into blocked account is scheduled for __/__/2024 at 08:30 AM in Department 29 at Spring Street Courthouse. Moving party to give notice.
Ruling
Rhoades, Autumn vs. De Soto, Marianne C.
Aug 19, 2024 |S-CV-0052000
S-CV-0052000 Rhoades, Autumn vs. De Soto, Marianne C.** NOTE: telephonic appearances are strongly encouragedAppearance required. Complaint is not at issue - Need responsive pleading,default or dismissal as to Defendant(s): De Soto, Marianne C.Additionally, no proof of service has been filed as to Defendant(s): De Soto,Marianne C.
Ruling
ROBERT GUILLEN VS. OFFICEMAX, LLC ET AL
Aug 06, 2024 |CGC23608846
Matter on the Discovery Calendar for Tuesday, Aug-06-2024, Line 7, 1-DEFENDANT OFFICE DEPOT. LLC'S Motion To Compel Plaintiff To Respond To Interrogatories. Pro Tem Judge Scott Borrowman, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Motion to compel DENIED. While late, the reply acknowledged that responses were served. Sanctions GRANTED in the amount of $660 for 1 hour of attorney fees + the motion fee. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 525 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 525. Any party who contests a tentative ruling must send an email to sborrowman@gmail.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(525/JPT)
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