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RETURN DATE: JULY 28, 2020 : SUPERIOR COURTCHRISTOPHER WEYMOUTH : J.D. OF MIDDLESEXvs : AT MIDDLETOWNMICHELLE LORRAINE BALKCOM, ETAL : JUNE 22, 2020COMPLAINTFIRST COUNT (As to defendant, MICHELLE LORRAINE BALKOM, NegligencelL. The plaintiff, CHRISTOPHER WEYMOUTH, is an individual who,at the time of this accident, was residing at 17 Woodland Road, Deep River, Connecticut.2. The defendant, MICHELLE LORRAINE BALKCOM, is an individual who, at thetime of this accident, was residing at 89 Maple Avenue, Uncasville, Connecticut.3: On September 11, 2018 at approximately 4:27 p.m., the plaintiff, CHRISTOPHERWEYMOUTH, was the owner and operator of a 2012 Kawasaki, Ex650ec, bearing ConnecticutLicense Plate No. BOSM8.4. On said date and at said time, the defendant, MICHELLE LORRAINEBALKCOM, was the operator of a 2008 Ford Econoline E350 Super, bearing Connecticut LicensePlate No.: L7605L, which vehicle was owned by the defendant, THE YELLOW CAB GARAGECOMPANY, INCORPORATED, hereinafter referred to as “YELLOW CAB”.5. On said date and at said time, the defendant, MICHELLE LORRAINEBALKCOM, was the operator of a 2008 Ford Econoline E350 Super, bearing Connecticut LicensePlate No.: L7605L, which vehicle was owned, possessed and/or controlled by the defendant, CURTINMOTOR LIVERY SERVICE, INCORPORATED, hereinafter referred to as “CURTIN MOTOR”.6. On said date and at said time, the motorcycle owned and operated by plaintiff,CHRISTOPHER WEYMOUTH, was traveling in the easterly direction on Main Street, in the Town ofEssex, State of Connecticut.Te On Said date and at said time, the defendant, MICHELLE LORRAINE BALKOM,was operating the 2008 Ford Econoline E350 Super, as agent, servant and/or representative of thedefendant, YELLOW CAB, and/or was operating said motor vehicle during the course of heremployment with said defendant.8. On said date and at said time, the vehicle owned by defendant YELLOW CAB andoperated by defendant, MICHELLE LORRAINE BALKCOM, was traveling in an easterly directionon Main Street, in the Town of Essex, Connecticut when she realized that North Main Street had beenclosed.io: On said date and at said time, while the plaintiff, CHRISTOPHER WEYMOUTH,was traveling in the easterly direction on Main Street, the defendant, MICHELLE LORRAINEBALKOM, pulled her vehicle over and stopped in front of Ivory Street, at which time she began tomake a U-turn in front of the plaintiff, causing his motorcycle to strike the left side of the defendant’svehicle, thereby causing the injuries, damages and losses more hereinafter specifically set forth.10. Said accident was directly and proximately caused by the carelessness andnegligence of the defendant, MICHELLE LORRAINE BALKCOM, in one or more of the followingways:a. She made an improper turn at the intersection mentioned herein,in violation of Section 14-241 of the Connecticut General Statutes;b. She failed to stay in her proper lane of travel in violation of Section 14-236of the Connecticut General Statutes;c. She failed to maintain a proper look-out;d. She failed to have said vehicle under such reasonable control as to enable herto stop or steer it to avoid the collision;e. She failed to timely apply her brakes in order to avoid the collision;f. She failed to sound her horn or give the plaintiff a timely warning,or any warning whatsoever, of the impending collision;g. She failed to turn her vehicle in time to avoid a collision; andh. She failed to operate said vehicle in a reasonable and prudent manner.ll. As a result of the aforesaid collision, the plaintiff, CHRISTOPHER WEYMOUTH,has sustained the following injuries, some or all of which are or may be permanent in nature:a. Injury to the neck, consisting of a cervical sprain/strain, and discherniations at C3-C4, C5-6 and C6-7, with accompanying paresthesiasto the right upper extremity in the CS-T1 distribution requiringdecompression with either disc replacement and/or fusion surgery;b. Injury to the mid back, consisting of a thoracic sprain/strain;c. Injury to the low back, consisting of a lumbar sprain/strain;d. Injury to the right chest wall, consisting of bruising, pain and discomfort;e. Injury to the left arm, consisting of left brachial plexopathy and left ulnarnerve axonal motor neuropathy at the elbow; and a near complete fullthickness rotator cuff tear involving the distal supraspinatus tendon, frayingalong the undersurface of the superior labrum and degenerative change atthe AC joint and impingement syndrome requiring left shoulder surgery.f.. Injury to the head, consisting of post-concussion syndrome, includingvertigo and post-traumatic headaches.12. As a result of the injuries sustained by the plaintiff in the aforesaidcollision, said plaintiff has incurred expenses for prescriptions, physicians' services, medicalsupplies, physiotherapy, and hospitalization.13; As a further result of the injuries sustained by the plaintiff in the aforesaidcollision, the plaintiff has lost earnings from his employment, his earning capacity has been impairedand will continue to be impaired in the future.14. As a result of the negligence of the defendant, the plaintiff was unable and remainsunable to participate in and enjoy his usual activities.SECOND COUNT (As to defendant, THE YELLOW CAB GARAGE COMPANY,INCORPORATED)1, The plaintiff, CHRISTOPHER WEYMOUTH, is an individual who,at the time of this accident, was residing at 17 Woodland Road, Deep River, Connecticut.2, The defendant, MICHELLE LORRAINE BALKCOM, is an individual who, at thetime of this accident, was residing at 89 Maple Avenue, Uncasville, Connecticut.Bi The defendant, YELLOW CAB GARAGE COMPANY, INCORPORATED,hereinafter referred to as “YELLOW CAB”, is a Connecticut Corporation, authorized to conductbusiness within and for the State of Connecticut.4. On September 11, 2018 at approximately 4:27 p.m., the plaintiff, CHRISTOPHERWEYMOUTH, was the owner and operator of a 2012 Kawasaki, Ex650ec, bearing ConnecticutLicense Plate No. BOSM8.5. On said date and at said time, the defendant, MICHELLE LORRAINEBALKCOM, was the operator of a 2008 Ford Econoline E350 Super, bearing Connecticut LicensePlate No.: L7605L, which vehicle was owned by the defendant, THE YELLOW CAB GARAGECOMPANY, INCORPORATED, hereinafter referred to as “YELLOW CAB”.6. On said date and at said time, the motorcycle owned and operated by plaintiff,CHRISTOPHER WEYMOUTH, was traveling in the easterly direction on Main Street, in the Town ofEssex, State of Connecticut.7. On Said date and at said time, the defendant, MICHELLE LORRAINE BALKOM,was operating the 2008 Ford Econoline E350 Super, as agent, servant and/or representative of thedefendant, YELLOW CAB, and/or was operating said motor vehicle during the course of heremployment with said defendant.8. On said date and at said time, the vehicle owned by defendant YELLOW CAB andoperated by defendant, MICHELLE LORRAINE BALKCOM, was traveling in an easterly directionon Main Street, in the Town of Essex, Connecticut when she realized that North Main Street had beenclosed.9. On said date and at said time, while the plaintiff, CHRISTOPHER WEYMOUTH,was traveling in the easterly direction on Main Street, the defendant, MICHELLE LORRAINEBALKOM, pulled her vehicle over and stopped in front of Ivory Street, at which time she began tomake a U-turn in front of the plaintiff, causing his motorcycle to strike the left side of the defendant’svehicle, thereby causing the injuries, damages and losses more hereinafter specifically set forth.10. Said accident was directly and proximately caused by the carelessness andnegligence of the defendant, YELLOW CAB, who is liable for the acts of its agent, defendant,MICHELLE LORRAINE BALKCOM, in one or more of the following ways:a. In that its agent made an improper turn at the intersection mentionedherein, in violation of Section 14-241 of the Connecticut General Statutes;b. In that its agent failed to stay in her proper lane of travel in violation ofSection 14-236 of the Connecticut General Statutes;c. In that its agent failed to maintain a proper look-out;d. In that its agent failed to have said vehicle under such reasonablecontrol as to enable her to stop or steer it to avoid the collision;e. In that its agent failed to timely apply her brakes in order to avoid thecollision;f. In that its agent failed to sound her horn or give the plaintiff a timelywarning, or any warning whatsoever, of the impending collision;g. In that its agent failed to turn her vehicle in time to avoid a collision;andh. In that its agent failed to operate said vehicle in a reasonable andprudent manner.1; As a result of the aforesaid collision, the plaintiff, CHRISTOPHER WEYMOUTH,has sustained the following injuries, some or all of which are or may be permanent in nature:a. Injury to the neck, consisting of a cervical sprain/strain, and discherniations at C3-C4, C5-6 and C6-7, with accompanying paresthesiasto the right upper extremity in the CS-T1 distribution requiringdecompression with either disc replacement and/or fusion surgery;b. Injury to the mid back, consisting of a thoracic sprain/strain;iC; Injury to the low back, consisting of a lumbar sprain/strain;d. Injury to the right chest wall, consisting of bruising, pain and discomfort;e Injury to the left arm, consisting of left brachial plexopathy and left ulnarnerve axonal motor neuropathy at the elbow; and a near complete fullthickness rotator cuff tear involving the distal supraspinatus tendon, frayingalong the undersurface of the superior labrum and degenerative change atthe AC joint and impingement syndrome requiring left shoulder surgery.fen Injury to the head, consisting of post-concussion syndrome, includingvertigo and post-traumatic headaches.1B. As a result of the injuries sustained by the plaintiff in the aforesaidcollision, said plaintiff has incurred expenses for prescriptions, physicians’ services, medicalsupplies, physiotherapy, and hospitalization.13. As a further result of the injuries sustained by the plaintiff in the aforesaidcollision, the plaintiff has lost earnings from his employment, his earning capacity has been impairedand will continue to be impaired in the future.14. As a result of the negligence of the defendant, the plaintiff was unable and remainsunable to participate in and enjoy his usual activities.THIRD COUNT (As to defendant, CURTIN MOTOR LIVERY SERVICE,INCORPORATED)1. The plaintiff, CHRISTOPHER WEYMOUTH, is an individual who,at the time of this accident, was residing at 17 Woodland Road, Deep River, Connecticut.2 The defendant, MICHELLE LORRAINE BALKCOM, is an individual who, at thetime of this accident, was residing at 89 Maple Avenue, Uncasville, Connecticut.3. The defendant, CURTAIN MOTOR LIVERY SERVICE, INCORPORATED,hereinafter referred to as “CURTIN MOTOR”, is a Connecticut Corporation, authorized to conductbusiness within and for the State of Connecticut.4. On September 11, 2018 at approximately 4:27 p.m., the plaintiff, CHRISTOPHERWEYMOUTH, was the owner and operator of a 2012 Kawasaki, Ex650ec, bearing ConnecticutLicense Plate No. BOSM8.5). On said date and at said time, the defendant, MICHELLE LORRAINEBALKCOM, as the operator of a 2008 Ford Econoline E350 Super, bearing Connecticut LicensePlate No.: L7605L, which vehicle was owned, possessed and/or controlled by the defendant, CURTINMOTOR LIVERY SERVICE, INCORPORATED, hereinafter referred to as “CURTIN MOTOR”.6. On said date and at said time, the motorcycle owned and operated by plaintiff,CHRISTOPHER WEYMOUTH, was traveling in the easterly direction on Main Street, in the Town ofEssex, State of Connecticut.7. On Said date and at said time, the defendant, MICHELLE LORRAINE BALKOM,was operating the 2008 Ford Econoline E350 Super, as agent, servant and/or representative of thedefendant, CURTIN MOTOR, and/or was operating said motor vehicle during the course of heremployment with said defendant.8. On said date and at said time, the vehicle owned, possessed and/or controlled bydefendant CURTIN MOTOR and operated by defendant, MICHELLE LORRAINE BALKCOM, wastraveling in an easterly direction on Main Street, in the Town of Essex, Connecticut when she realizedthat North Main Street had been closed.9. On said date and at said time, while the plaintiff, CHRISTOPHER WEYMOUTH,was traveling in the easterly direction on Main Street, the defendant, MICHELLE LORRAINEBALKOM, pulled her vehicle over and stopped in front of Ivory Street, at which time she began tomake a U-turn in front of the plaintiff, causing his motorcycle to strike the left side of the defendant’svehicle, thereby causing the injuries, damages and losses more hereinafter specifically set forth.10. Said accident was directly and proximately caused by the carelessness andnegligence of the defendant, CURTIN MOTOR, who is liable for the acts of its agent, defendant,MICHELLE LORRAINE BALKCOM, in one or more of the following ways:a. In that its agent made an improper turn at the intersection mentionedherein, in violation of Section 14-241 of the Connecticut General Statutes;b. In that its agent failed to stay in her proper lane of travel in violation ofSection 14-236 of the Connecticut General Statutes;c. In that its agent failed to maintain a proper look-out;d. In that its agent failed to have said vehicle under such reasonablecontrol as to enable her to stop or steer it to avoid the collision;10e. In that its agent failed to timely apply her brakes in order to avoid thecollision;f. In that its agent failed to sound her horn or give the plaintiff a timelywarning, or any warning whatsoever, of the impending collision;g. In that its agent failed to turn her vehicle in time to avoid a collision;andh. In that its agent failed to operate said vehicle in a reasonable andprudent manner.lis As a result of the aforesaid collision, the plaintiff, CHRISTOPHER WEYMOUTH,has sustained the following injuries, some or all of which are or may be permanent in nature:a. Injury to the neck, consisting of a cervical sprain/strain, and discherniations at C3-C4, C5-6 and C6-7, with accompanying paresthesiasto the right upper extremity in the C5-T1 distribution requiringdecompression with either disc replacement and/or fusion surgery;b. Injury to the mid back, consisting of a thoracic sprain/strain;c. Injury to the low back, consisting of a lumbar sprain/strain;d. Injury to the right chest wall, consisting of bruising, pain and discomfort;e. Injury to the left arm, consisting of left brachial plexopathy and left ulnarnerve axonal motor neuropathy at the elbow; and a near complete full11thickness rotator cuff tear involving the distal supraspinatus tendon, frayingalong the undersurface of the superior labrum and degenerative change atthe AC joint and impingement syndrome requiring left shoulder surgery.Ea Injury to the head, consisting of post-concussion syndrome, includingvertigo and post-traumatic headaches.12. As a result of the injuries sustained by the plaintiff in the aforesaidcollision, said plaintiff has incurred expenses for prescriptions, physicians’ services, medicalsupplies, physiotherapy, and hospitalization.13. As a further result of the injuries sustained by the plaintiff in the aforesaidcollision, the plaintiff has lost earnings from his employment, his earning capacity has been impairedand will continue to be impaired in the future.14. As a result of the negligence of the defendant, the plaintiff was unable and remainsunable to participate in and enjoy his usual activities.WHEREFORE, the plaintiff claims compensatory monetary damageswithin the jurisdiction of this Court. s ey GILLIS, B.C.QGHURCH STREET, SUITE 203HAVEN, CONNECTICUT 06510(203)562-5104 Juris No. 40791112RETURN DATE: JULY 28, 2020 : SUPERIOR COURTCHRISTOPHER WEYMOUTH : J.D. OF MIDDLESEXVv. : AT MIDDLETOWNMICHELLE LORRAINE BALKCOM, ETAL: JUNE 22, 2020STATEMENT OF AMOUNT IN DEMANDThe plaintiff claims monetary damages in excess of FIFTEENTHOUSAND DOLLARS ($15,000.00).THE PLAINTIFF 13
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Meet Confer Before filing a demurrer&the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code Civ. Proc. §430.41(a).) Although the demurring party attaches emails demonstrating meet and confer efforts, there was no meeting telephonically nor in person. Therefore, the requirements of Code Civ. Proc. §430.41(a) remain unsatisfied. However, per Code Civ. Proc. §430.41(a)(4), A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. Therefore, the Court ow turns its attention to the demurrer. B. DISCUSSION 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, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.) Analysis Defendants primary argument upon demurrer is that each of the first three causes of action are uncertain and fail to state facts sufficient to support a cause of action. As explained below, the Court disagrees and overrules the demurrer. 1. 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Here, Plaintiff alleges specifically who said what and when, and that what was said later turned out to be false. The intent here was clear, to induce Plaintiff to hire Defendants and enter into the agreement with Defendants for the home improvement project. The fourth element of justifiable reliance is fulfilled because the Complaint shows that Plaintiff performed due diligence by taking bids from two other companies before selecting Defendants. (Complaint, ¶9.) Plaintiff relied on Defendants expertise because Plaintiff knew nothing about construction. (Complaint, ¶7.) With each element of fraud plead with the requisite particularity, the first, second, and third[1] causes of action survive demurrer, and the demurrer is overruled. 2. Korkunis Remains in the suit Defendants additionally make the contention that Korkunis should not be included in Plaintiffs first three causes of action because officers of corporation do not incur personal tort liability merely by reason of their official position. (Demurrer, 11:10-11.) In making such a contention, Defendants rely on several cases, including the Supreme Court of Californias Wyatt v. Union Mortgage Co. (1979) 24Cal.3d 773 (Wyatt). However, Defendants reliance is misplaced. Our Supreme Court was mindful in their holding and meticulous with their words. Wyatt involved a case where the plaintiffs alleged misrepresentations regarding advertisem*nts by a mortgage company. When plaintiffs approached the company about their supposed debtor friendly loans, further misrepresentations were made to induce plaintiffs into signing, plaintiffs signed, and only later found that the loans they agreed to were on much less favorable terms. (Wyatt, supra, at 779-781.) When the lower court ruled in favor of plaintiffs, the mortgage company appealed to the Supreme Court, arguing that officers of a corporation are typically not rendered personally liable. The Wyatt Court pointed out that this is the general rule, however, directors and officers of a corporation may become liable if they directly ordered, authorized, or participated in tortious conduct. (Wyatt, supra, at 785.) That is what Plaintiff is alleging. This sentiment in Wyatt has been echoed in later cases including those cited by Plaintiff: PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1379 and Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 505 [Director status therefore neither immunizes a person from individual liability nor subjects him or her to vicarious liability.] and those cited by Defendants: People v. Pacific Landmark, LLC (2005) 129 Cal.App.4th 1203, 1213 and Reynolds v. Bement (2005) 36 Cal.4th 1075, 1090 (abrogated on other grounds by Martinez v. Combs (2010) 49 Cal.4th 35). As the allegations against Conquest are sufficient, so are those against Korkunis. Therefore, the demurrer as to Korkunis individual liability is overruled. C. CONCLUSION The demurrer filed by Conquest General Building Contractors, Inc., and James Michael Korkunis is OVERRULED. Defendants have twenty days to answer the Complaint. [1] Intentional and negligent misrepresentation possess the same essential elements as Plaintiffs initial fraud claim, and the Court need not repeat its analysis.
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Aug 13, 2024 |FCS059298
FCS059298PORTUGAL’s Motion for Summary JudgmentTENTATIVE RULINGDefendant RUTH PORTUGAL, R.N. (“PORTUGAL”) moves for summary judgment onPlaintiff FELICIA THOMPSON’s cause of action for wrongful death via medicalnegligence. Summarized, Plaintiff alleges that PORTUGAL’s failure to observe thestandard of care applicable to a nurse caused the death of Plaintiff’s father (“Decedent”)on September 2, 2017.Objections to Evidence. In ruling on a motion for summary adjudication the courtneed only rule on those evidentiary objections that it deems material to its disposition ofthe motion. (Code Civ. Proc., § 437c, subd. (q).)PORTUGAL’s Objections #1-10. PORTUGAL’s objections #1-10 are overruled.PORTUGAL’s Objections #11-22. PORTUGAL’s objections to Plaintiff’s declarationsfrom Melvin Smith, Michael Burrus, Cole Bienek, Earl Miller, James Cross, JohnLawyer, Herman Davis, Clarence Myers, Shelvert Dyer, Lamar Minor, and MichaelDavis, as well as the second supplemental declaration of Dr. Dan Field, on the basis offailure to comply with Code of Civil Procedure section 2015.5 are sustained. Thoughthe declarations are not hearsay they do not meet Code of Civil Procedure section2015.5 requirements. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th601, 609 [declarations of personal knowledge admissible on summary judgment].) Alldeclarations but Dr. Field’s fail to state the date and place of execution of thedeclarations. Dr. Field’s second supplemental declaration does not state the place.PORTUGAL’s Objections #23-24. PORTUGAL’s objections to all proffered evidencefrom Dr. Field, being his two declarations, a rebuttal declaration to defense expertopinions, and deposition excerpts, are sustained. A doctor may speak to the standardof care for a nurse if he possesses relevant qualifications or knowledge. (Lattimore v.Dickey (2015) 239 Cal.App.4th 959, 970 (Lattimore).) However, Dr. Field’squalifications and knowledge are solely set forth in his second supplementaldeclaration, which fails to meet Code of Civil Procedure section 2015.5 requirements.Accordingly Plaintiff does not establish with admissible evidence that Dr. Field canspeak to the standard of care applicable to PORTUGAL.Similarly, Dr. Fields’ opinions as a medical doctor are also lacking in foundation. Neitherthe Record Review Report dated 12/11/2020 or the Rebuttal Report dated 1/14/2021state Dr. Fields’ qualifications. The Second Supplemental Declaration, which does statethe doctor’s qualifications, does not cure the problem as the declaration is procedurallydefective under CCP 2015.5.The court does not consider PORTUGAL’s remaining objections material to thedisposition of the motion.Requests for Judicial Notice. Matters subject to judicial notice may support a motionfor summary judgment. (Code Civ. Proc. § 437c, subd. (b)(1).) The court takes judicialnotice of all items proffered by PORTUGAL, being documents from Plaintiff’s federalcase preceding this one on the same facts, as records of a court of the United Statesper Evidence Code section 452, subdivision (d).Legal Standard. A defendant may move for summary judgment on the basis that theplaintiff cannot establish an element of his cause of action. (Code Civ. Proc., § 437c,subd. (o)(1).) A summary judgment motion is properly granted where the evidence insupport of the moving party would be sufficient to sustain a judgment in his favor andhis opponent does not show facts sufficient to present a triable issue of fact. (Parker v.Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181 (Parker).) The motion isnot to be granted where any triable issue of material fact exists. (Ibid.) The affidavits ofthe moving party are strictly construed, and doubts as to the propriety of summaryjudgment should be resolved against granting the motion. (Ibid.) Reasonableinferences from the evidence must be drawn in the light most favorable to the opposingparty. (Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155.)Affidavits, declarations, admissions, answers to interrogatories, depositions, andmatters judicially noticed may all support a motion for summary judgment, provided theycontain admissible evidence. (Code Civ. Proc., §§ 437c, subds. (b)(1), (d).) Allegationsin a party’s own pleadings may not satisfy deficiencies in evidence. (Code Civ. Proc., §437c, subd. (p).) Allegations in an opposing party’s pleadings may be consideredevidence, however. (Parker, supra, 3 Cal.3d at p. 181.) Additionally, a defendant doesnot meet its burden of showing a plaintiff cannot establish an element merely bypointing out the absence of evidence; the defendant must show that the plaintiff bothdoes not possess and cannot reasonably obtain evidence. (Zipusch v. LA Workout, Inc.(2007) 155 Cal.App.4th 1281, 1286-1287.)Wrongful Death via Medical Negligence. Wrongful death is a statutory cause ofaction, the elements of which are simply a tort resulting in death and damages.(Lattimore, supra, 239 Cal.App.4th at p. 968.) In this case Plaintiff alleges the wrongfuldeath of Decedent due to the underlying tort of medical malpractice or negligence.(First Amended Complaint at ¶¶ 38-44.) Medical negligence is a form of negligence, towhich general principles of negligence apply. (Massey v. Mercy Medical CenterRedding (2009) 180 Cal.App.4th 690, 695.) Thus a medical practitioner is negligent ifhe fails to use the standard of care that a reasonably careful practitioner would use insimilar circ*mstances, but what the standard of care is for a medical practitioner is amatter peculiarly within the knowledge of experts. (Ibid.) The standard of care for amedical practitioner may therefore only be proven by the testimony of experts unlessthe conduct required in the circ*mstances is something within the common knowledgeof laymen. (Ibid.) In other words, a plaintiff usually may only prove that a medicalpractitioner failed to meet the standard of care via expert testimony. (Ibid.) Theforegoing rules of analysis apply whether the practitioner is a doctor or a nurse; anurse’s conduct is not measured by the same standard of care as a doctor’s butlikewise must be assessed by expert testimony from one qualified to speak to theappropriate profession’s standard of care. (Lattimore at p. 969.)On moving for summary judgment a medical practitioner will accordingly have the initialburden to present evidence, supported by expert testimony where necessary, thathis/her acts met the applicable standard of care, else the motion must be denied.PORTUGAL carries her initial burden as to the standard of care issue. The Declarationof Nancy Booth in Support of PORTUGAL’s Motion for Summary Judgment (Booth)states that PORTUGAL observed the relevant standard of care (Booth at ¶ 17.) Ms.Booth declares she is qualified to speak to the standard of care for a nurse inPORTUGAL’s circ*mstances because she is a licensed registered nurse with almostfifty years’ experience who has been a certified correctional setting health careprofessional since 2013 and worked in a correctional health care setting from 2006 to2021. (Id. at ¶¶ 1, 3.) Ms. Booth reviewed Decedent’s general medical records, therecords from September 2, 2017, and numerous documents generated in the course ofthis litigation. (Id. at ¶ 5.) Ms. Booth explains that in the context of the unusually hotday on September 2, 2017 it was reasonable for PORTUGAL to believe Decedentsuffered heat-related problems and perform associated assessments and treatment.(Id. at ¶ 18.) Ms. Booth states that Decedent was able to answer questions and obeycommands and so it was reasonable for PORTUGAL to not explore a possible alteredmental state. (Id. at ¶ 17.) Ms. Booth states that it was reasonable to believeDecedent’s problems had resolved because he displayed improved vital signs aftertreatment. (Id. at ¶ 18.) Additional tests such as rectal thermometer and orthostaticblood pressure readings were not necessary to meet the standard of care becauseDecedent was a conscious adult male whose vital signs were able to be accessed inother ways. (Id. at ¶¶ 20-21.) Ms. Booth connects her opinions to facts and offerscompetent expert testimony that PORTUGAL met the standard of care.Plaintiff’s admissible evidence suffices to raise triable issues of material fact on theissue of the standard of care. In paragraph 13 of the Ron Lopez declaration he statesthat PORTUGAL observed that Decedent was dehydrated yet performed no evaluationof urine specific gravity, orthostatic blood pressure, or fluid intake and output. Thisdirectly counters Ms. Booth’s assertion that there was no need to examine Decedent’sorthostatic blood pressure and raises a triable issue of material fact on the standard ofcare given that the defense position hinges on the idea that PORTUGAL respondedappropriately to presented dehydration. In paragraph 14 Mr. Lopez states thatPORTUGAL observed “10/10” pain from Decedent for two and a half hours but did notperform a PQRST pain assessment or document the effect of the analgesics provided.This too raises an issue as to the standard of care in the circ*mstances Decedentpresented.On the issue of causation, however, PORTUGAL fails to meet her initial burden. In amedical negligence case, causation must be proven with expert testimony. (Bromme v.Pavitt (1992) 5 Cal.App.4th 1487, 1498; Dumas v. Cooney (1991) 235 Cal.App.3d 1593,1603; Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.) In the context of a motion for summary judgment, it stands to reason that experttestimony is needed to negate causation. PORTUGAL offers no expert evidence tonegate causation. She uses only a layperson’s analysis based on the disputed factssurrounding Decedent’s cause of death to conclude that there is no evidence thatresponding differently to Decedent’s initial presentation would have changed histreatment outcome.Conclusion. PORTUGAL’s motion for summary judgment is denied.Department 7 is inviting you to a scheduled ZoomGov meeting.Join ZoomGov Meetinghttps://solano-courts-ca-gov.zoomgov.com/j/1611554664?pwd=T3U4QlBGWWNWaGlieXJTcGxIVHRXZz09Meeting ID: 161 155 4664Passcode: 818575One tap mobile+16692545252,,1611554664#,,,,*818575# US (San Jose)+14154494000,,1611554664#,,,,*818575# US (US Spanish Line)
Ruling
The Village of Los Banos, Unit No. 2 Owners Association vs K. Hovnanian Communities, Inc., et al.
Aug 16, 2024 |21CV-03779
21CV-03779 The Village of Los Banos, Unit 2 Owners Association v. K. Hovnanian Communities, Inc., et al.Motion to Stay ProceedingsThe Motion for Stay is DENIED. Defendants offer no authority for the proposition that anotice must be given by the claimant as opposed to someone acting on behalf of aclaimant. Furthermore, to the extent Defendants seek a stay because of an allegedinsufficiency in the pleadings, their remedy is a motion for judgment on the pleadings.The existing complaint is fully at issue. Finally, to the extent that the motion to stay isbased on issues relating to discovery, the Court notes that a discovery master has beenappointed in this matter and that all discovery related matters, including requests forstay of discovery, should be submitted to the discovery master.Motion by K. Hovnanian Communities, Inc., K. Hovnanian Homes Northern California, Inc., K.Hovnanian’s Four Seasons at Los Banos, LLC, K. Hovnanian California Operations, Inc. and L.Hovnanian Cooperative, Inc. for Summary Judgment, or in the alternative, SummaryAdjudication that (1) Plaintiff’s lack standing, and (2) Whether individual homeowners’ claimsare barred by the statute of repose provided under California Civil Code section 941 andCalifornia Code of Civil Procedure section 337.15.All Requests for Judicial Notice are GRANTED.In River’s Side at Washington Square Homeowner’s Association v. The Superior Court ofYolo County (2023) 88 Cal.App.5th 1209, 1218 (“River’s Side”), the Third District ofCalifornia held as follows: As explained in more detail below, we conclude that Plaintiff has standing to bring claims for damages to the common areas pursuant to Civil Code sections 945 and 5980, and that it at least nominally alleged such damages. We further conclude that Plaintiff may have standing to bring claims for damages to the residential units that sound in contract or fraud if it can meet the requirements for bringing a representative action pursuant to Code of Civil Procedure section 382. Lastly, we hold Plaintiff should have been granted leave to amend to cure any standing defect. We thus grant the petition for writ of mandate and direct the trial court to reverse its order granting the demurrer.(River’s Side at Washington Square Homeowner’s Association v. The Superior Court ofYolo County (2023) 88 Cal.App.5th 1209, 1218.)Given that the River’s Side holding that a Homeowners Association’s lack of standing tobring individual unit claims under Civil Code section 5980 may be rendered moot if theComplaint is Amended to allege that the individual homeowners have assigned theirindividual home claims to the Homeowner’s Association, and given the representation byPlaintiff herein that it has obtained appropriate assignments, this Court elects to treat thestanding aspects of the Motion for Summary Judgment, or in the alternative, summaryadjudication, as a Motion for Judgment on the Pleadings (See American Airlines, Inc. v.County of San Mateo (1996) 12 Cal.4th 1110, 1118; Prue v. Brady Co./Sand Diego, Inc.(2015) 242 Cal.App.4th 1367, 1375-1376) and Grant the Motion for Judgment on thePleadings with leave to amend to cure any standing defect pursuant to River’s Edge,including any standing defect to bring contract or fraud claims based on potentialstanding under Code of Civil Procedure § 382. Although the issue is not directlyaddressed in River’s Edge, the decision implicitly finds that the Defendant Builder in aconstruction defect suit has standing to challenge HOA standing notwithstandingSection 6.11 of the Restatement (3rd) Property. As noted above, this Court is bound by apublished decision of a Court of Appeal absent a contrary finding by another Court ofAppeal.Similarly, while Defendants have established a prima facie case that the ten year statuteof limitations bars this action at least with respect to some properties, Plaintiff assertsthat the ten year statute of limitations is tolled during the period that the Builder controlsthe Homeowner’s association, although there is no allegation in the First AmendedComplaint pleading around the statute of limitations. Since the tolling argument istechnically outside the scope of the current pleadings, this Court elects to treat thestatute of limitations argument in the Motion for Summary Judgment, or in the alternativeSummary Adjudication, as a motion for Judgment on the Pleadings, and GRANTS themotion with leave to amend to plead around the statute of limitations. Any AmendedComplaint shall be filed by September 30, 2024.
Ruling
FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)
Aug 13, 2024 |FCS057573
FCS057573Motions for ContemptTENTATIVE RULING:Petitioner’s “motions” for contempt are denied.No affidavit of the facts constituting any contempt has been presented to thecourt. The filing of a sufficient affidavit is a jurisdictional prerequisite to acontempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court(1951) 103 Cal.App.2d 512, 541.) Page 1 of 1
Ruling
VINCENT SEDDO ET AL VS. CARRIER CORPORATION ET AL
Aug 13, 2024 |CGC23277149
On Asbestos Law and Motion Calendar for Tuesday, August 13, 2024, in Department 301, Line 3. Plaintiff's Motion for Order Substituting Anthony Seddo as Successor-in-Interest to, and Substituting Successor-in-Interest for Deceased Plaintiff; And For Leave to File First Amended Complaint is GRANTED. (C.C.P. Sections 377.20, 377.31, 377.11, 377.32, 377.60, and 473.) No opposition filed. Plaintiff shall file and serve the First Amended Complaint forthwith. The First Amended Complaint is deemed served on all Defendants who have previously appeared in the action. The prevailing party shall lodge with the clerk in Department 301 by the time set for this hearing a proposed order repeating verbatim the substantive portion of the tentative ruling. Any party wishing to contest the tentative ruling must email contestasbestostr@sftc.org by 4:00 p.m. on the day before the hearing and state their intention to contest. If a hearing is requested, it will be on August 13, 2024, at 9:30 a.m. Attorneys may appear in person or remotely. Face coverings are optional. Remote appearances must be arranged through CourtCall (1-888-88-COURT). No prior notice or permission is required. If a party wishes to have the matter reported, the parties must meet and confer to agree on only one court reporter, who must be licensed under Bus. & Prof. Code, sec. 8016. There will be only one official record. If the parties cannot agree, the Court will designate a qualified court reporter to provide the official transcript for the matter, and the party or parties will bear the cost. = (301/RCE)
Ruling
Transport Funding, LLC, a limited liability company vs. Premier Truck and Trailer Repair INC., a California corporation
Aug 13, 2024 |24CECG02001
Re: Transport Funding, LLC v. Premier Truck and Trailer Repair, Inc. Superior Court Case No. 24CECG02001Hearing Date: August 13, 2024 (Dept. 503)Motion: Plaintiff’s Application for a Writ of Possession against Defendant Premier Truck and Trailer Repair, Inc.Tentative Ruling: To deny in light of the entry of default against defendant Premier Truck and TrailerRepair on July 10, 2024.Explanation: This motion requests a prejudgment writ of possession against defendant, which isproper to request before final adjudication of the claims sued upon. (Kemp Bros. Const.,Inc. v. Titan Elec. Corp. (2007) 146 Cal.App.4th 1474, 1476.) However, after serving themoving papers on defendant (served along with the summons and complaint), plaintiffrequested entry of defendant’s default and the clerk entered their defaults on July 10,2024. The entry of default instantly cuts off a defendant’s right to appear in the actionor participate in the proceedings unless the default is set aside or judgment is entered(i.e., the latter giving the defendant the right to appeal). (Devlin v. Kearny MesaAMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) Due process would not beserved by allowing a plaintiff to give a defendant notice of a motion, but then cut off itsright to defend itself regarding that motion. Plaintiff has lodged the papers necessary toobtain a default judgment against defendant, which will be processed in due course.After judgment has been obtained, plaintiff may proceed with all post-judgmentenforcement procedures which are available. 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 8/12/24 . (Judge’s initials) (Date)
Ruling
Wallace vs. Winco Foods, LLC, et al.
Aug 17, 2024 |23CV-0203366
WALLACE VS. WINCO FOODS, LLC, ET AL.Case Number: 23CV-0203366This matter is on calendar for a trial setting conference. The litigation is not at issue. Only Defendant WinCoFoods, LLC has appeared. The matter is continued to Monday, October 21, 2024, at 9:00 a.m. in Department63 for status of service and responsive pleadings and, if appropriate, trial setting. The Court expects Plaintiff toget the matter at issue prior to the next hearing. No appearance is necessary on today’s calendar.
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MOJICA, HILARIE Et Al v. LOPEZ-DIAZ, LEONARDO Et Al
Jan 16, 2024 |Barbara Bailey Jongbloed |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6139573-S
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ZEPEDA, RUBEN v. CLAUDIO ADORNO, ADIEL
Aug 09, 2024 |H13 - Housing - Small Claims Housing - Rent and/or Damages |NHH-CV24-5006780-S
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HARRISON, CAMISHA v. MAGALIK, MEGAN Et Al
Aug 12, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |UWY-CV24-6079448-S
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TRI-STATE SEYMOUR NORTH MANAGEMENT, LLC v. SUNSHINE FARMS PROPERTIES, LLC
Apr 01, 2024 |H13 - Housing - Small Claims Housing - Rent and/or Damages |AAN-CV24-6055435-S
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HANDY, BRANDON v. AVIS BUDGET GROUP, INC.
Feb 13, 2024 |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV24-6140334-S
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PISANI, CHRIS Et Al v. MARTIN, JUSTIN Et Al
Oct 10, 2023 |Matthew E. Frechette |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV23-6136705-S
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CESANA, SUSANNE v. NEW HAVEN PARKING AUTHORITY
Aug 14, 2024 |T12 - Torts - Defective Premises - Public - Other |NNH-CV24-6146485-S
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TEESDALE, REGINA Et Al v. GINTER, HAROLD E.
Mar 13, 2023 |John F. Cronan |V01 - Vehicular - Motor Vehicles - Driver and/or Passenger(s) vs. Driver(s) |NNH-CV23-6136492-S