MOTION TO COMPEL - DEFENDANTS MOTION TO COMPEL EXPERT INTERROGATORY ANSWERS FROM PLAINTIFF March 03, 2022 (2024)

Case

MARQUEZ CABRICES, ANDREINA VALENTINA vs. MARSHALL, MADGE

Jun 07, 2024 |GENTILE, GEOFFREY H |Premises Liability - Residential |24001359CA

Case

PAILLE, TYLER ALAN vs. LASTRA, RAMON

Case

ERDMAN, PHILIP vs. RUE HOMES, LLC, A FLORIDA LIMITED LIABILITY COMPAN

Case

COTE, JAMES LEE vs. WILLIAMS, JOHN CALLIE

Case

LOUIS, LYNN vs. REBELLO, JOSEPH

Case

HITT, JIMMY vs. MASK, TATIANA M

Case

RAMOS, WENDY vs. WALLACE, PHYLLIS

Case

VOORHEES, DANIEL vs. FIRSTKEY HOMES, LLC

Jun 13, 2024 |GENTILE, GEOFFREY H |Premises Liability - Residential |24001394CA

Case

DALE, STEPHEN vs. RAYBURN, LARRY

Ruling

WINNY BAMBICO ET AL VS. SONIC.NET, LLC ET AL

Aug 05, 2024 |CGC22602897

Matter on the Law & Motion calendar for Monday, August 5, 2024, Line 4. 25 - PLAINTIFF WINNY BAMBICO AND JAMESON BAMBICO's Motion To Compel Defendant Sonic.Net, Inc. To Provide Verifications To Form Interrogatories, Set One. The judge pro tem's report and recommendation is adopted. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely 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, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org 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. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and attaches a copy of the report and recommendation and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or 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. =(302/RBU)

Ruling

FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)

Aug 07, 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

FREDERICKSON,

Aug 06, 2024 |CIVSB2413636

PROCEDURAL/FACTUAL BACKGROUND 2 Currently before this Court is a motion to compel arbitration filed by Defendants’Koelsch Senior Communities, LLC and Koerick Sterling Commons G.P.—Victorville LLC dbaSterling Commons. This action was commenced on April 18, 2024, by Plaintiffs Merle R. Frederickson,deceased, by and through his personal representative, Bonnie Frederickson, and individually byBonnie Frederickson, Brant Frederickson, Roger Frederickson and Dawn Vannatta (collectively,“Plaintiffs”) asserting causes of action for (1) statutory elder abuse/neglect; (2) negligence; and(3) wrongful death. The complaint alleged Merle R. Frederickson (“Merle” or “Decedent”) was a custodialcare resident of Koerick Sterling Commons GP-Victorville dba Sterling Commons (“SterlingCommons”) as a dependent adult as defined in the California Welfare and Institutions Code, §§15610.23, 15610.27. Bonnie Frederickson (“Bonnie”) was and is the surviving wife of Merle.Brant, Roger and Dawn are the adult surviving children of Merle. 1 The first cause of action for statutory elder abuse/neglect and violations of Welfare &Institutions Code, §§ 15600, et seq., and the second cause of action for negligence were assertedby Merle. The third cause of action for wrongful death was asserted by all Plaintiffs but Merle. On June 24, 2024, Defendants Koelsch Senior Communities, LLC and Koerick SterlingCommons GP—Victorville LLC dba Sterling Commons (collectively for this motion,“Defendants”), filed this present petition to compel arbitration. The motion was submittedtogether with the declaration of Lara A Ajello, Esq. On June 27, 2024, Plaintiffs filed an opposition. On July 16, 2024, Defendants filed a reply1 Because several of the parties share the same last name, the court will use first names for the purpose of clarity.The court means no disrespect. 3 The Court is currently scheduled to hear this motion on August 6, 2024. DISCUSSIONStatement of Law. The Federal Arbitration Act (“FAA”) [9 U.S.C. §1, et. seq.] authorizes enforcement ofarbitration clauses unless grounds exist in law or equity for the revocation of any contract. 9U.S.C. §2. In situations governed by the FAA, conflicting state law is preempted in either stateor federal courts. (Volt Info. Sciences, Inc. v. Board of Trustees of Leland Stanford JuniorUniversity (1989) 489 U.S. 468, 477.) To compel arbitration, a finding must be made that an agreement exists for arbitrationbetween the parties and the agreement covers the dispute. (AT&T Technologies, Inc. v.Communications Workers of America (1986) 475 U.S. 643, 648-49.) The enforcement of an arbitration clause is a matter of ordinary state-law contractprinciples. (AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1745 (“Concepcion”).)Arbitration agreements are on equal footing with other contracts and should be enforcedaccording to their terms. (Id. at p. 1745.) Thus, arbitration agreements can be declaredunenforceable on contract defenses of fraud, duress, or unconscionability. (Id. at p. 1746.)State rules of procedure, including those governing petitions to compel arbitration, apply in statecourt proceedings except where such rules would defeat the purpose of the federal law.(Rosenthal v. Great Western Fin. Sec. Corp. (1996) 14 Cal.4th 394, 409-410.) Any doubt aboutthe arbitrability of a dispute under the FAA is resolved in favor of arbitration. (Concepcion,supra, 475 U.S. at p. 650.) Under Code of Civ. Proc. section 1281.2, a party to an arbitration agreement may moveto compel arbitration if the other contractual party refuses to arbitrate, and the court shall orderthe parties to arbitrate if it determines that an agreement to arbitrate exists unless: 4 (a) The right to compel arbitration has been waived by the petitioner, (b) Ground exists for the revocation of the agreement, or (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. The party may also seek a stay of pending litigation either by itself or in conjunction witha petition to compel contract arbitration. A stay must be granted where a court has previouslyordered arbitration of the dispute or an application for such an order has been made but not ruledupon. (Code of Civ. Proc., §1281.4.) California law favors the enforcement of valid arbitration agreements. (Ericksen,Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 320; In reTobacco I (2004) 124 Cal.App.4th 1095, 1103.) Any doubts about arbitration will be resolvedagainst the party asserting a defense to arbitration, whether the issue is the construction ofcontract language, waiver, delay, or any like defense to arbitrability. (Erickson, supra, 35 Cal.3dat p. 320; In re Tobacco I, supra, 124 Cal.App.4th at p. 1103.) The court must determine when a party seeks to compel arbitration whether an agreementexists, if any defense to its enforcement is raised, and whether the agreement is enforceable.(Rosenthal v. Great Western Fin. Sec. Corp., supra, 14 Cal.4th 394, 413.) The petitioner bearsthe burden of proving the existence of the arbitration agreement by the preponderance of theevidence. (Id.) The party raising a defense to enforcement bears the burden of producingevidence and proving by the preponderance of the evidence any fact necessary to the defense.(Id.) The trial court’s role is to resolve these factual issues. (Id. at p. 414.)Analysis The agreement is attached to the declaration of Lora A. Ajello, Esq. as Ex. A. Theagreement states: 5 AGREEMENT TO ARBITRATE DISPUTES (RELATED TO MEDICAL CARE) OPTIONAL FOR RESIDENTS AND COMMUNITY. It is understood that any dispute related to or arising out of the residency and care of Merle Frederickson at (“Resident”) Sterling Commons (the “Community” will be determined by binding arbitration. before q single, neutral arbitrator, and not by a trial to a judge or jury. The Community, Resident and Dawn VanNatta (the “Responsible Party”) agree that any and all claims, causes of action ‘and/or disputes concerning—Resident's stay at the Community, including but not limited to any action for breach of contract, for injury or death arising from allegations of neglect, negligence or intentional acts, for any statutory violation such as those which may exist for elder abuse will be determined by binding arbitration, and not by or through the judicial process. Provided, however, that any action brought by the Community to evict Resident from the Community is not subject to this Arbitration Agreement. Each party shall bear its own costs and fees in connection with the arbitration, including but not limited to, attorneys’ fees. Any award granted in arbitration is intended to be final and birding and enforceable in any court of competent jurisdiction. All matters relating to any arbitration shall be confidential. The parties acknowledge and agree that this agreement to arbitrate touches and concerns interstate commerce is and governed by the Federal Arbitration Act. The arbitration shall allow for reasonable discovery and be conducted in accordance with the procedures set forth in the ‘Federal Arbitration Act. The Resident and Responsible Party each: acknowledges that he or she has the option of not signing this Arbitration Agreement. The execution of this Arbitration Agreement is voluntary and not a precondition to admission to the Community. This Arbitration Agreement binds the parties, including the heirs, representatives, agents, executors, administrators, successors, family members, and assigns of such parties. The parties’ selection of arbitration is supported by the Community's philosophy of providing independence and freedom of choice for Resident and the mutual desire to efficiently resolve disputes quickly and avoid significant legal fees. The terms of this Arbitration Agreement are severable, if any term or provision is determined to be illegal unenforceable, the remaining terms and provisions of this agreement shall remain in full force and effect. RESPONSIBLE PARTY HAS THE AUTHORITY TO BIND HIMSELF/HERSELF AND RESIDENT. The Agreement was signed by Dawn VanNatta and Debra Newlin as CommunityRepresentative and is dated May 20, 2023. Exhibit B has a Durable Power of Attorney forHealth Care. It appoints Bonnie L. Frederickson with the first alternate agent as BrantFrederickson and Dawn J. Vannatta as the second alternative agent. This agreement was signedon October 10, 2011 and notarized. At that time, Merle also granted a durable power of attorneywith Bonnie as his agent. 6 Another document appears to have been signed by Merle on July 7, 2021 and appointsDawn, without an alternate. The document reads: Tell the person you choose what healthcare treatments you want. The person you choose will be your agent. He or she will have the right to make decisions for your healthcare. If you DO NOT choose someone to make decisions for you, write NONE on the line for the agent’s name. I, Mere R. Frederickson, appoints the person named in this document to be my agent to make mv healthcare decisions. This document is a Durable Power of Attorney for Healthcare Decisions. My agent’s power shall not end if I become incapacitated or if there is uncertainty that I am dead. This document revokes any prior Durable Power of Attorney for Healthcare Decisions. My agent may not appoint anyone else to make decisions for me. My agent and caregivers are protected from any claims based on following this Durable Power of Attorney for Healthcare. My agent shall not be responsible for any costs associated with my care. I give my agent full powers to make all decisions for me about my healthcare, including the power to direct the withholding or withdrawal of life prolonging treatment, including artificially supplied nutrition and hydration/tube feeding. My agent is authorized to -Consent, refuse, or withdraw consent to any car, procedure, treatment, or service to diagnose, trat or maintain a physical or mental condition, including artificial nutrition and hydration; Permit, refuse, or withdraw permission to participate in federally regulated research related to my condition or disorder; -Make all necessary arrangements for any hospital, psychiatric treatment facility, hospice, nursing home, or other healthcare organization; and, employ or discharge healthcare personnel (any person who is authorized or permitted by the laws of the state to provide healthcare services) as he or she shall deem necessary for my physical, mental, or emotional well-being; -Request, receive, review and authorize sending any information regarding my physical or mental health, or my personal affairs, including medical and hospital records: and execute any releases that may be required to obtain such information; -Move me into or out of any State or institution; -Take legal action, if needed; -Make decisions about autopsy, tissue and organ donation, and the disposition of my body in conformity with state law; and -Become my guardian if one is needed. In exercising this power, I expect my agent to be guided by my directions as we discussed them prior to this appointment and/or to be guided by my Healthcare Directive (see reverse side). IF you DO NOT want the person (agent) you name to be able to do one or other of the above things. Draw a line through the statement and put your initials at the end of the line. Agent's name: Dawn J VanNatta, [her phone, email and address] If you do not want to name an alternate, write “none.” Alternate Agent's name NONE Execution and Effective Date of Appointment My agent's authority is effective immediately for the limited purpose of having full access to my medical records and confer with my healthcare providers and me about my condition. My agent's 7 authority to make all healthcare and related decisions for me is effective when and only when I cannot make my own healthcare decisions. SIGN HERE for the Durable Power of Attorney and/or Healthcare Directive forms. Many states require notarization. It is recommended for the residents of all states. Please ask two persons to witness your signature who are not related to you or financially connected to your estate.Does the FAA apply? The FAA applies to arbitration clauses involving interstate commerce.(9 U.S.C. §2; Aviation Data, Inc. v. American Express Travel Related Services Company, Inc.(2007) 152 Cal.App.4th 1522, 1534.) “Involving commerce” is the equivalent of the term“affecting commerce,” which is a term of art ordinarily signals the broadest permissible exerciseof Congress’s commerce clause power. (Citizens Bank v. Alafabco, Inc. (2003) 439 U.S. 52, 56.)The Defendant bears the burden of demonstrating FAA coverage by declarations and otherevidence. (Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101;Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 213-14.) If an arbitration agreementprovides for the FAA to govern, then it governs. (Cronus Investments, Inc. v. ConciergeServices (2005) 35 Cal.4th 376, 394; Aviation Data, Inc. v. American Express Travel RelatedServices Co., Inc. (2007) 152 Cal.App.4th 1522, 1534-35.) Here, the agreement states it isgoverned by the FAA, and so the FAA applies.Is there an agreement to arbitrate? “The right to arbitration depends on a contract. [Citations.]Accordingly, a party can be compelled to submit a dispute to arbitration only where he hasagreed in writing to do so. [Citation.]’ (Boys Club of San Fernando Valley, Inc. v. Fidelity &Deposit Co. (1992) 6 Cal.App.4th 1266, 1271, 8 Cal.Rptr.2d 587, fn. omitted.) In a motion tocompel arbitration, ‘the party seeking arbitration bears the burden of proving the existence of anarbitration agreement by a preponderance of the evidence, and the party opposing arbitrationbears the burden of proving by a preponderance of the evidence any defense, such asunconscionability. [Citations.]’ [Citations omitted] ‘In California, [g]eneral principles of contract 8law determine whether the parties have entered a binding agreement to arbitrate.’ [Citations.].”(Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 172–73; Flores v. Nature'sBest Distribution, LLC (2016) 7 Cal.App.5th 1, 8-9 [“‘W]hen a petition to compel arbitration isfiled and accompanied by prima facie evidence of a written agreement to arbitrate thecontroversy, the court itself must determine whether the agreement exists and, if any defense toits enforcement is raised, whether it is enforceable. Because the existence of the agreement is astatutory prerequisite to granting the petition, the petitioner bears the burden of proving itsexistence by a preponderance of the evidence.’ (Rosenthal v. Great Western Fin. SecuritiesCorp. (1996) 14 Cal.4th 394, 413 [58 Cal. Rptr. 2d 875, 926 P.2d 1061].)’”].) A party to a written contract is charged with having read and understood its contents andin the absence of fraud, coercion or excusable neglect may not avoid the terms. (Randas v.YMCA (1993) 17 Cal.App.4th 158, 163; Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586,1590.) Once a party introduces a valid agreement to arbitrate, arbitration must be ordered unlessthe opposing party can establish a defense. (Pinnacle Museum Tower Assn. v. Pinnacle MarketDevelopment (US), LLC (2012) 55 Cal.4th 223, 236 [“The party seeking arbitration bears theburden of proving the existence of an arbitration agreement, and the party opposing arbitrationbears the burden of proving any defense, such as unconscionability. [Citation.]”.) Here, there is a written contract between Dawn and the facility, but there is no contractbetween Merle and the facility. The question becomes whether Dawn has the ability to bindMerle to the arbitration agreement. The agent identified in a health care power of attorney may bind the principal toarbitration when such is part of the health care decision. (Garrison v. Superior Court (2005) 132Cal.App.4th 253, 265-66.) A health care decision is one made by a patient or the patient’s agent 9regarding the patient’s health care, including selecting and discharging health care providers andinstitutions. (Prob. Code, §4617, subd. (a).) The decision for placement in a residential carefacility would fall within a health care decision. (Hutcheson v. Eskaton FountainWood Lodge(2017) 17 Cal.App.5th 937, 947, 950-51, 957 [“The Legislature intended that a decision to admitsomeone to a residential care facility for the elderly for the provision of health care is a healthcare decision under the HCDL, and it required that such a health care decision, if made pursuantto a power of attorney, be made pursuant to a health care POA.”]; Garrison, supra, 132Cal.App.4th at p. 266.) However, as stated in Harrod v. County Oaks Partners, LLC (2024) 15 Cal.5th 939, acase recently decided by the California Supreme Court, an agent pursuant to a power for healthcare cannot bind a principal to a contract for arbitration because the decision to enter into anarbitration agreement is not a health care decision. (Harrod, supra, at 946-947.) The agreementDawn signed was an Agreement to Arbitrate Disputes (Related to Medical Care) Optional forResidents and Community. The agreement was not mandatory and not necessary for healthcaredecision making. Here, the document was a power of attorney for healthcare purposes. The first line statesMerle appoints the person to be “agent to make my heath care decision.” It then states “ThisDocument is a Durable Power of Attorney for Healthcare Decisions.” It was notarized. Rightabove where Merle signed the document it states, “My agent's authority to make all healthcareand related decisions for me is effective when and only when I cannot make my own healthcaredecisions.” The “take legal action, if needed” appears to be solely for healthcare purposes.There was no ability to enter into contracts which is differentiated by the general Power ofAttorney granted to Bonnie in October 2011, which discussed real estate transactions and all 10Merle’s financial matters, and allowed contracts. (See Ajello Decl., Ex. A.) “Even the strongpolicy in favor of arbitration does not extend to those who are not parties to an arbitrationagreement or who have not authorized anyone to act for them in executing such agreement.”(County of Contra Costa v. Kaiser Foundation Health Plan, Inc. (1996) 47 Cal.App.4th 237,245.) In summary, Dawn held the power of attorney for healthcare decisions only. Dawn didnot have the authority to bind Merle to the subject arbitration agreement. This by itself is anindependent basis to deny Defendants’ Petition to compel arbitration in its entirety. However, and separately, the arbitration agreement does not apply to the heirs’ separatewrongful death causes of action. A patient's agreement under Code of Civil Procedure, section1295, to arbitrate medical malpractice claims against a doctor or hospital covers all of thepatient's wrongful death claimants, including any spouse or heirs of the patient and any children,at least when the language of the agreement manifests an intent to bind these claimants. (See,e.g., Ruiz v. Podolsky (2010) 50 Cal.4th 838, 841, 854 (“Ruiz”) [“We hold that all wrongfuldeath claimants are bound by arbitration agreements entered into pursuant to section 1295, atleast when, as here, the language of the agreement manifests an intent to bind these claimants.This holding carries out the intent of the Legislature that enacted section 1295 and relatedstatutes.”].) Wrongful death causes of action are individual causes of action. (See Code Civ. Proc.,§377.60.) Plaintiffs cite Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th835 and Daniels v. Sunrise Senior Living, Inc. (2013) 212 Cal.App.4th 674 (Daniels). A casewhich proceeded both Avila and Daniels is Bush v. Horizon West (2012) 205 Cal.App.4th 924(Bush). All three cases allege a cause of elder abuse. 11 In Bush, the patient, by and through her daughter guardian ad litem, sued the defendantfor elder abuse, fraud, and violations of the Patient’s Bill of Rights. (Bush, supra, 205Cal.App.4th at pp. 926-927.) The daughter also alleged, in her individual capacity, a cause ofaction for negligent inflection of emotional distress. (Id. at p. 927.) The defendants moved tocompel arbitration based on an arbitration agreement between the patient and the defendant, andwhich had been signed by the daughter in her capacity as the patient’s legal representative.(Ibid.) The trial court denied the motion, which the Bush court affirmed. First, it held the Supreme Court’s holding in Ruiz did not apply since neither the patientnor daughter asserted any claims against the defendants for medical malpractice. (Bush, supra,205 Cal.App.4th at p. 930.) Even though the arbitration provision was drafted to comply withsection 1295 of the Code of Civil Procedure, which governs arbitration clauses in medicalmalpractice actions, “[t]he fact that the arbitration agreement was drafted to comply with thatstatute does not somehow make that statute applicable in a case like this where medicalmalpractice is not asserted.” (Ibid.) “[I]n bringing her claim for negligent infliction of emotionaldistress, [the daughter] is not acting as a representative or heir of [the patient]; she is acting forherself, pursuing her own claim based on the emotional distress she allegedly sustained as aconsequence of witnessing the injury to her mother caused by defendants’ alleged misconduct.Nothing in section 1295 or the arbitration agreement here compels the conclusion that theSupreme Court’s decision in Ruiz applies to a case like this, where neither medical malpracticeor wrongful death is at issue.” (Id. at p. 931.) Less than a year after Bush, the Court of Appeal, Fourth District, Division Two, issued itsopinion in Daniels. In Daniels, the daughter, in her capacity as the decedent’s successor-in-interest, sued a residential care facility for elder abuse, negligence, breach of contract, and willful 12misconduct. (Daniels, supra, 212 Cal.App.4th at pp. 676-678.) In her personal capacity, thedaughter also alleged a cause of action for wrongful death. (Id. at pp. 676, 678.) The defendantsmoved to compel arbitration pursuant to an arbitration clause in the residency agreement, andwhich the daughter executed as the decedent’s attorney in fact. Under that arbitration clause, allclaims related to the care the decedent received from defendant were subject to bindingarbitration, and the clause was expressly binding on the decedent’s “spouse, heirsrepresentatives, executors, administrators, successors, and assigns, as applicable….” (Id. at pp.676, 678.) The trial court denied the petition since (1) the daughter did not sign the residencyagreement in her personal capacity and was therefore a third party to the agreement (Code Civ.Proc., § 1281.2, subd. (c)), such that she could not be compelled to arbitrate her wrongful deathclaim, and (2) there was a possibility of conflicting rulings on common issues of fact and law ifthe elder abuse claims were arbitrated but the wrongful death claim was not, and the Danielscourt affirmed. (Daniels, supra, 212 Cal.App.4th at pp. 676-679.) In concluding the “wrongful death claim is personal to [daughter] and lies independent ofthe survivor claims,” the Daniels court rejected the defendants’ argument that, although thedaughter did not sign the residency agreement in her personal capacity, she still “effectivelyagreed to arbitrate her wrongful death claim because (1) she signed the residency agreement; (2)the arbitration clause of the agreement encompasses all claims ‘arising from or related to’ thecare and services [the decedent] received at [the defendant]; (3) the wrongful death claim isbased on the inadequate care [the decedent] allegedly received at [the defendant]; and (4) thearbitration clause is binding on [the decedent’s] heirs, including [daughter].” (Daniels, supra,212 Cal.App.4th at pp. 680-681.) It explained, “[b]ecause [daughter] signed the residencyagreement solely as [decedent’s] agent and not in her personal capacity, there is no basis to infer 13that [daughter] agreed to arbitrate her wrongful death claim … The agreement does not indicatean intent to bind third parties with claims independent of the survivor claims, such as wrongfuldeath claimants. (Id. at p. 681.) The Daniels court also distinguished Ruiz and Herbert v. Superior Court (1985) 169Cal.App.3d 718 (Herbert), as both cases involved arbitration agreements governed by section1295 of the Code of Civil Procedure, which, as noted, applied to medical services contracts withhealth care providers. (Daniels, supra, 212 Cal.App.4th at pp. 681-683, 685-686.) First, thearbitration clause in decedent’s residency agreement with the defendant did not manifestly intendto bind third party wrongful death claimants. (Id. at p. 683.) “More generally, we disagree thatRuiz should be extended to arbitration agreements not governed by section 1295, or that areentered into with a person other than a health care provider for claims other than medicalmalpractice.” (Ibid.) The Daniels court recognized there was no “statutory analog to section1295, applicable to [a residential care facility for the elderly] or to claims other than professionalnegligence, that is designed to facilitate informed decision making on the part of the resident inentering into the arbitration agreement as section 1295 does for persons who agree to arbitratemedical malpractice claims against licensed health care providers.” (Id. at p. 684.) In addition, the Daniels court concluded the trial court did not abuse its discretion inrefusing to compel arbitration since, “if the survivor claims are ordered to arbitration but[daughter’s] wrongful death claim was not, there is a possibility of inconsistent rulings on theclaims given that they are the claims [] based on the allegation that [decedent] receivedinadequate care at [the defendant]. [Citations.]” (Daniels, supra, 212 Cal.App.4th at p. 686.) Thiswas because the daughter was “a third party to the arbitration agreement, and the trial court 14reasonably determined there was a danger of inconsistent rulings of fact or law if the survivorclaims were ordered to arbitration but the wrongful death claim was not.” (Id. at p. 687.) In 2018, the Court of Appeal, Fourth District, Division Three, issued its opinion in Avila.In Avila, the patient executed a statutory power of attorney form, which named his son as hisagent. (Avila, supra, 20 Cal.App.5th at p. 838.) The day after patient had been admitted to thehealth care facility and had begun receiving care, the son signed an arbitration agreement onpatient’s behalf, and the agreement encompassed any legal claim or civil claim arising out of thepatient’s hospitalization, including claims by the patient’s spouse, legal representative, agent, orheir. (Ibid.) Patient died within five days of admission, and the son, both as patient’s successor-in-interest and in his individual capacity, filed a complaint against the health care facility. (Avila,supra, 20 Cal.App.5th at pp. 838-839.) The first cause of action for negligence/willfulmisconduct, as well as the second cause of action for elder abuse and neglect, were brought onbehalf of both plaintiffs. (Id. at p. 839.) The third cause of action for wrongful death was filed onson’s behalf only. (Ibid.) Defendant subsequently filed a petition to compel arbitration, whichthe trial court denied because defendant failed to show a valid arbitration agreement with respectto son. (Avila, supra, 20 Cal.App.5th at p. 839.) The trial court also exercised its discretion undersection 1281.2, subdivision (c), refusing to order the arbitration of the remaining claims giventhe risk of inconsistent rulings. (Ibid.) The Avila court affirmed. It first recognized the key issue was whether the son, whosigned the agreement as patient’s agent, not in his individual capacity, was bound by theagreement. (Avila, supra, 20 Cal.App.5th at p. 841.) The Avila court explained a wrongful deathclaim is an independent claim that creates a new action in favor of the decedent’s heirs, and that 15is distinct from any injury the deceased might have maintained had he or she survived. (Id. at p.844.) Noting the similarities to Daniels, the Avila court concluded “there is simply no evidencethat when [son] signed the agreement as his father’s agent, he had any intent to waive his right toa jury trial for any personal claims. Accordingly, we find the trial court did not err by finding thatno agreement to arbitrate existed as to [son].” (Id. at p. 845.) Here, the Agreement, which was separate from any admission or residency agreement,was signed by Dawn. Although the Agreements includes the language enumerated in section1295, subdivision (b) of the Code of Civil Procedure, as in Bush, Plaintiffs’ Complaint does notassert causes of action for medical malpractice. Therefore, “[t]he fact that the arbitrationagreement was drafted to comply with [section 1295 of the Code of Civil Procedure] does notsomehow make that statute applicable in a case like this where medical malpractice is notasserted.” (Bush, supra, 205 Cal.App.4th at p. 930; see Daniels, supra, 212 Cal.App.4th at pp.683-684; see Avila, supra, 20 Cal.5th at pp. 841-843 [since plaintiffs did not assert a cause ofaction for medical malpractice, their claim was not one within the ambit of section 1295].) Further, while the Agreement stated it encompassed claims of the heirs, Daniels andAvila make clear a wrongful death causes of action is an independent claim in favor of heirs, arebased on the heirs’ independent pecuniary injury, and are distinct from any claim Decedentmight have maintained had he survived. (Avila, supra, 20 Cal.App.5th at p. 844; Daniels, supra,212 Cal.App.4th at pp. 680-681.) Avila states, “If the primary basis for the wrongful death claim sounds in professionalnegligence as defined by MICRA, then section 1295 applies. If, as plaintiffs claim here, theprimary basis is under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst.Code, § 15600 et seq.) (the Act), then section 1295 does not apply and neither does Ruiz's 16exception to the general rule that one who has not consented cannot be compelled to arbitrate.(Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 842 [230Cal.Rptr.3d 42].) Avila, further states, “Neglect includes the failure to assist in personal hygiene,or in the provision of food, clothing, or shelter; the failure to provide medical care for physicaland mental health needs; the failure to protect from health and safety hazards; and the failure toprevent malnutrition or dehydration.” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88[50 Cal. Rptr. 3d 266].) Under the Act, neglect “‘refers not to the substandard performance ofmedical services but, rather, to the “failure of those responsible for attending to the basic needsand comforts of elderly or dependent adults, regardless of their professional standing, to carryout their custodial obligations.” [Citation.] Thus, the statutory definition of “neglect” speaks notof the undertaking of medical services, but of the failure to provide medical care.’” (Sababin, atp. 89.)” (Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 843.)Plaintiffs assert Decedent received substandard care and Defendant failed to monitor, superviseand care for Decedent. (Comp. ¶¶ 28, et seq.) Thus, the wrongful death cause of action is not subject to the arbitration provision. (Avila,supra, 20 Cal.App.5th at pp. 841-843; Daniels, supra, 212 Cal.App.4th at pp. 683-684; Bush,supra, 205 Cal.App.4th at pp. 930-931 [arbitration agreements not governed by section 1295 donot extend to wrongful death claims].) Additionally, and as in Daniels, if the survivor claims(elder abuse/neglect and negligence causes of action) are ordered to arbitration but the wrongfuldeath claim is not, there is a possibility of inconsistent rulings of law and fact. (Daniels, supra,212 Cal.App.4th at p. 686.) Therefore, the court exercises its discretionary authority anddeclines to compel arbitration. CONCLUSION 17 Based on the foregoing, the Court DENIES Defendants’ petition to compel arbitration.Plaintiffs’ counsel is ordered to provide notice. 18

Ruling

TYKESE DAVIS, ET AL. VS LANCASTER INN, UNKNOWN ENTITY, ET AL.

Aug 06, 2024 |23AVCV00585

Case Number: 23AVCV00585 Hearing Date: August 6, 2024 Dept: A14 Background This is a wrongful death action. Plaintiffs Tykese Davis, as an individual and as a success in interest of Anna Cotton (Tykese[1]), and Eric Terell Davis, as an individual and as a successor in interest of Anna Cotton (Eric and collectively Plaintiffs), allege that Anna Cotton (Decedent) stayed at Defendant Lancaster Inn, located at 43530 17th St W, Lancaster, CA 93534, on a date not specified and, while there, Defendants Lancaster Inn, and Ajay H. Patel and Jagruti A. Patel as trustees of the Shivrani Trust (collectively in their capacities as trustees as Shivrani Trust), owed a duty to exercise reasonable care to keep Lancaster Inns premises in a reasonable safe condition; and to take reasonable action to eliminate, cure and/or give adequate notice of any dangerous conditions at Lancaster Inns premises so as to avoid subjecting guests and/or customers, including Decedent, to a foreseeable risk of harm. Plaintiffs further allege that there was a breach of this duty through numerous separate and distinct conditions including, but not limited to, a structure fire at Lancaster Inn that spread throughout Decedents hotel room and the premises not properly maintained, cleaned, and/or protected which led to Decedents untimely death. On May 31, 2023, Plaintiffs filed their Complaint alleging one cause of action for Wrongful Death Negligence/Premises Liability. On February 28, 2024, Shivrani Trust filed its Answer and a Cross-Complaint. On May 17, 2024, Shvrani Trust filed its First Amended Cross Complaint (FACC) alleging three causes of action for (1) Express Written Indemnity, (2) Full or partial Equitable Indemnification, (3) Declaratory Relief, and (4) Breach of Contract against Cross-Defendant Chamunda LLC (Chamunda). On June 14, 2024, Chamunda filed its Demurrer to the FACC. On July 25, 2024, Shivrani Trust filed its Opposition. On July 30, 2024, Chamunda filed its Reply. ----- Legal Standard Standard for Demurrer A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (Cal. Code Civ. Proc. § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Id.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿¿ ¿¿¿¿¿¿ A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Thus, no matter how unlikely or improbable, plaintiffs allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal.3d at p. 318.)¿ ¿¿¿¿¿¿¿ Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer¿ if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿ ------ Meet and Confer Requirement¿ Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (Cal. Code Civ.¿Proc. §430.41 and §435.5.)¿ The Court notes that this requirement has been met. (See Danielle M. Boyd ¶¶ 4-6.)¿ ----- Discussion Application As an initial matter, Chamundi argues that the Court should disregard Shivrani Trusts Opposition as it was due July 24, 2024. All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . .before the hearing. (Cal. Code Civ. Proc. § 1005(b).) Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. (Ibid.) The hearing is set for August 06, 2024. Monday, July 22, 2024, was deemed a Court holiday due to the recent Ransomware attack on the Court. Accordingly, the Opposition was due on July 24, 2024. The Opposition was filed on July 25, 2024. No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate. (Cal. Rules of Court, Rule 3.1300.) Chamunda filed a Reply on the merits. As such, the Court considers the untimely Opposition. Chamunda demurs to the first three causes of action in the FACC. i. First Cause of Action (Express Written Indemnity) and Second Cause of Action (Full or Partial Indemnity) Chamunda argues that the allegations in the FACC for the First Cause of Action are vague the agreement was made at an unknown time; the Premises is not defined; the allegations do not state whether the contract was for Lancaster Inn; there is no date regarding whether Chamunda performed the tortious actions; and there are no facts as to the what, when, who, or where in regard to the unknown dangerous condition and the express contract. Chamunda contends that the same argument, lack of facts pled, affects the Second Cause of Action, and that the Second Cause of Action is premised on legal conclusions. The Shivrani Trust presents that there is no challenge to the sufficiency of the Fourth Cause of Action (Breach of Contract) which sets forth the lease agreement; that the fire occurred at the subject premises, caused by a dangerous condition; that Chamunda was operating the subject premises at the time with a duty to maintain it in a safe condition; and, under Californias fair notice pleading standards do not require that Cross-Complainants identify the specific negligent act that Cross-Defendant committed, when it was committed, or by whom. The Shivrani Trust argues that the Second Cause of Action clearly sets forth Chamundas Lease Agreement for the subject premises where the fire that allegedly led to Decedents untimely death and Chamundas obligations arise from the Lease Agreement and its use of the subject premises. Chamundas Reply emphasizes that the FACC does not, in the relevant paragraphs, show where the alleged lease defines the contractual term Premises; the Opposition does not clarify where in the FACC the fire is alleged to be the dangerous condition, and this position is not supported by the face of the operative pleading because there are no factual allegations as to how, what actions, or what inactions are attributed to Chamunda that resulted in the fire; and the FACC does not contain the dates that Chamunda performed the unknown actions or inactions. Chamunda argues that when a complaint fails to state what the defendant did wrong and the nature of the relationship between the defendants act and the injuries suffered by the plaintiff a demurrer should be sustained and the current FACC lack of facts renders the FACC too vague to provide sufficient notice about this cause of action. Chamunda further argues that the Second Cause of Action is premised on legal conclusions. In general, indemnity refers to the obligation resting on one party to makegood a loss or damage another party has incurred. Historically, the obligation of indemnity took three forms: (1) indemnity expressly provided for by contract (express indemnity); (2) indemnity implied from a contract not specifically mentioning indemnity (implied contractual indemnity); and (3) indemnity arising from the equities of particular circ*mstances (traditional equitable indemnity). [¶] Although the foregoing categories of indemnity were once regarded as distinct, we now recognize there are only two basic types of indemnity: express indemnity and equitable indemnity. Though not extinguished, implied contractual indemnity is now viewed simply as a form of equitable indemnity. (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) The subject premises in the FACC is 43530 17th St. W, Lancaster, CA 93534. (FACC ¶ 5.) This is the same location as in the Complaint. (See Complaint ¶ 8.) The FACC also states: At the time of the subject incident which led to Plaintiffs decedents death, Cross- Defendant CHAMUNDA, LLC was operating a motel called the Lancaster Inn. The fire that occurred at the Lancaster Inn arose from Cross-Defendants use of the subject property. (FACC ¶7.) Chamundas argument regarding whether the contract was for Lancaster Inn is refuted by the allegations within the FACC. The First and Second Causes of action are premised on an alleged contract which states. The pleading reads in relevant part: Prior to the incident that is the basis of the Plaintiffs Complaint, Cross-Complainants entered into a lease agreement with Cross-Defendant CHAMUNDA, LLC wherein Cross-Defendant agreed to defend and indemnify Cross-Complainant from and against any and all liabilities, responsibilities or claims arising from (a) Lessees use and occupancy of the Premises; or (b) the conduct of Lessees business; or (c) from any activity, work or thing done, permitted or suffered by Lessee in or about the Premises, or (d) any breach or default in the performance of any obligation to be performed by Lessee under the terms of this Lease or arising from any act, neglect, fault or omission of Lessee or Lessees Representatives& (FACC ¶ 6.) The Fourth Cause of Action (Breach of Contract) pleads the contract at issue. It reads, in relevant part: Specifically, Par. 18 of the Lease Agreement states: Lessee [CHAMUNDA, LLC] shall indemnify, defend, and hold Lessor and Lessors Representatives harmless from any and all liabilities, responsibilities, or claims arising from (a) Lessees use and occupancy of the Premises; or (b) the conduct of Lessees business, or (c) from any activity, work or thing done, permitted or suffered by Lessee in or about the Premises& 22. Further, Par. 6 of the Lease Agreement requires Cross-Defendant CHAMUNDA, LLC to maintain the premises in good repair. A. Land. The Lessee [CHAMUNDA, LLC] must keep the Land in good order and condition and ensure that it is good order and condition when this Lease ends. Lessee must maintain the overall appearance of the Land, including but limited to [sic] landscaping, parking lot, fencing and pedestrian access, in an attractive condition so as to enhance the general appearance of the Premises. B. Building. The Lessee must keep the interior and exterior of the Building clean and in good repair and condition and ensure they are clean and in good repair and condition when this Lease ends. Without limiting Lessees obligation under this clause, the Lessee must when necessary clean down and repaint all parts of the exterior and interior of the Building in good and workman like manner& E. Lessee shall immediately maintain and repair, at its sole cost and expense, the Premises& (FACC ¶¶21-22.) There appears to be a contract; however, there are no dates related to the contract to sow that the contract covered the date of the alleged incident in Plaintiffs Complaint, and Chamundas name is written in brackets, suggesting that the wording of the contract does not include Chamundas name at those relevant sections. There are no facts alleged as to what led to the fire that caused Decedents untimely death other than a dangerous condition. California law emphasizes ultimate fact pleading (with some exceptions, notably for fraud and related torts) in ordinary and concise language, and the test for adequacy is not absolute but "whether the pleading as a whole apprises the adversary of the factual basis of the claim. [Citations.] (Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 690.) While the facts pled allege a contract with an indemnity clause, it noticeable apparent that the facts pled lack facts which show that the contract applies to the date specified in the action and, most importantly, a showing of fault on the part of the indemnitor. (See Bailey v. Safeway, Inc. (2011) 199Cal.App.4th 206, 217 [The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is . . . equitably responsible].) Rather, the facts pled simply admit that a fire broke out at Lancaster Inn during Chamundas use and a contract covering an unknown period includes an indemnity clause. There is no notice to Chamunda of what it did wrong or what the dangerous condition was that could lead to fault on its part. While this ambiguity may stem from the Complaint itself, it is the FACC that is at issue for this Demurrer. Accordingly, the Demurrer to the First and Second Causes of Action is SUSTAINED. ii. Third Cause of Action (Declaratory Relief) Chamunda argues that the Third Cause of Action incorporates the first two causes of action and, as such, is not viable for the same reasons. The Shivrani Trust argues that the Third Cause of Action is sufficiently pled for the same reasons as the First and Second Causes of Action. Chamunda, in reply, reiterates its moving paper arguments. As the arguments presented turn fully on the arguments for the First and Second Causes of Action, the Court incorporates its analysis, ante, for this cause of action. Accordingly, the Demurrer for the Third Cause of Action (Declaratory Relief) is SUSTAINED. ----- Leave to Amend Chamunda requests that the Court deny leave to amend. Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California law leave to amend is liberally granted, leave to amend should not be granted where, in all probability, amendment would be futile. (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685).¿ A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim. (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿¿¿¿¿ Here, it is clear that an amendment may rectify the deficiencies with the FACC as the amendment may include more factual allegations (e.g., incorporation of the contract itself which would include the date, more facts to provide notice as to what the dangerous condition was). Accordingly, the Court allows leave to amend. ----- Conclusion Cross-Defendant Chamunda, LLCs Demurrer is SUSTAINED with leave to amend. Defendants/Cross-Complainants Ajay Patel and Jaruti Patel, Trustees of the Shirvrani Trust, Dated July 9, 2018 are to file an amended cross-complaint within 30 days of this Court Order. [1] Plaintiffs share the same surname. The Court refers to each individually by their first name for the purpose of clarity. No disrespect is intended.

Ruling

LOUSI SIMONIAN VS ROSTAM VARTANIAN, ET AL.

Case Number: 22STCV12180 Hearing Date: August 7, 2024 Dept: 29 Simonian v. Vartanian Case No. 22STCV12180 Defendants Motion to Continue Trial Tentative The motion is granted. Background On April 11, 2022, Lousi Simonian (Plaintiff) filed a complaint against Rostam Vartanian, Mesrop Keshishyan, Keshishyan Family Trust, and Does 1 through 50, for negligence, strict liability, and negligence per se arising out of a dog bite incident occurring on August 22, 2021. On August 22, 2023, Mesrop Keshishyan and Keshishyan Family Trust (collectively the Keshishyan Defendants) filed an answer. On January 31, 2024, the Keshishyan Defendants filed a cross-complaint against Rostam Vartanian. On May 7, 2024, the Keshishyan Defendants filed a motion for summary judgment. The motion is set to be heard on December 30, 2024. Trial is currently set for August 21, 2024. On June 3, 2024, Keshishyan Defendants filed this motion to continue trial, or in the alternative, specially set the hearing for the motion for summary judgment. No opposition has been filed. Legal Standard Code of Civil Procedure section 128, subdivision (a)(8), provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. The power to determine when a continuance should be granted is within the discretion of the trial court. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances. (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.) To ensure the prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain. (Cal. Rules of Court, rule 3.1332(a).) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules of Court, rule 3.1332(c).) The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Ibid.) Circ*mstances that may support a finding of good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).) In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. (Cal. Rules of Court, rule 3.1332(d).) California Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that the court may consider: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(d).) A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c. (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529; accord Cole v. Superior Court (2022) 87 Cal.App.5th 84, 88.) Discussion The Keshishyan Defendants request a trial continuance so that their motion for summary judgment, with a hearing scheduled for December 30, 2024, is heard before trial. Trial is currently set for August 21, 2024. In the alternative, the Keshishyan Defendants request the Court to specially set the motion for summary judgment. The request for a special setting is denied. The Court does not have dates available for a special setting of the motion. The request to continue trial is granted. Good cause has been shown. Conclusion The Court GRANTS and CONTINUES the trial to a date in late February 2025. The Final Status Conference and all deadlines are reset based on the new trial date. Moving Party is ORDERED to give notice.

Ruling

PERLA MAGENO, AN INDIVIDUAL VS A.C.J. ENTERPRISES, INC., A CALIFORNIA CORPORATION

Aug 07, 2024 |22AHCV00992

Case Number: 22AHCV00992 Hearing Date: August 7, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT PERLA MAGENO, Plaintiff(s), vs. A.C.J. ENTERPRISES, INC., et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22AHCV00992 [TENTATIVE] ORDER RE: APPLICATION FOR DEFAULT JUDGMENT Dept. 3 8:30 a.m. August 7, 2024 ) Plaintiffs application for default judgment is missing Form CIV-100 as required by California Rules of Court rule 3.1800. Accordingly, the hearing is continued to _________________at 8:30 a.m. in Department 3 of the Alhambra Courthouse. Revised/additional forms must be submitted no later than 5 court days before the hearing. Dated this 7th 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

Ward, et al. vs. Vibra Healthcare, LLC, et al.

Aug 07, 2024 |23CV-0203171

WARD, ET AL. VS. VIBRA HEALTHCARE, LLC, ET AL.Case Number: 23CV-0203171This matter is on calendar for review regarding trial setting. The previous trial date was vacatedby the Court’s order dated June 10, 2024. The Court designates this matter as a Plan II case andintends to set the matter for trial no later than March 4, 2025. Defendant has posted jury fees butPlaintiff has not. Plaintiff is granted 10 days leave to post jury fees. A failure to post jury fees inthat time will be deemed a waiver of the right to a jury. The parties are ordered to appear toprovide the Court with available trial dates.

Ruling

FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)

Aug 05, 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

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