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FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------X MARIAH MAISONET, a minor by her Mother and Natural Guardian Cynthia Arocho and CYNTHIA AROCHO, individually, Plaintiff, Index No. 705565/2017 -against- THE CITY OF NEW YORK, CVS PHARMACY, INC. and 83-02 ATLANTIC AVENUE ASSOC., LLC, Defendants. --------------------------------------X PLEASE TAKE NOTICE, that pursuant to the CPLR, demand is hereby made upon you to serve a response to the following combined demands: NOTICE PURSUANT TO CPLR 2103(e) NOTICE FOR DISCOVERY & INSPECTION ARTICLE 31 CPLR NOTICE OF DEMAND DEMAND FOR DISCOVERY OF EXPERT WITNESSES DEMAND FOR COLLATERAL SOURCE INFORMATION NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION Dated: June 5, 2017 Jericho, New York Yours, etc., JACO ~Q & SCHW~T7~, LLP A HENR~,~J. CER ITZ, SQ. Attorneys f r De ndant, 83-02 Atlan is A enue Assoc., LLC 99 Jericho Turnpike, Suite 200 Jericho, NY 11753 (516) 536-0900 Our File No.: MMM20004 1 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 To: Bachu Law Group 87-46 Van Wyck Expressway Kew Gardens, NY 11418 (718) 297-6400 Attorneys for Plaintiff CVS Pharmacy, Inc. c/o CT Corporation System 111 Eight Avenue, New York, NY 10011 Defendant 2 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------X EARL MELVIN, Plaintiff, Index No. 703619/2017 -against- GRANCOLOMBIA REALTY, INC., Defendant. --------------------------------------X NOTICE PURSUANT TO CPLR 2103(e) PLEASE TAKE NOTICE, that pursuant to CPLR 2103(e), demand is hereby made upon you to supply the undersigned, in writing, with a list of those parties who have appeared in the action and the names and addresses of their attorneys. NOTICE FOR DISCOVERY & INSPECTION ARTICLE 31 CPLR PLEASE TAKE NOTICE, that the plaintiff herein, pursuant to Section 3101 et seq. and Rule 3120 of the CPLR is required to produce and allow discovery, inspection and copying to be made by the defendant herein and the defendant's attorneys of the following items, writings and objects maintained, controlled or supervised by the plaintiff or its attorneys, agents, servants and/or employees: In lieu of strict compliance with the terms and conditions of this Notice, the undersigned will accept clearly legible photocopies of the said items, if received by the undersigned at least five (5) days prior to the return date thereof, together with a letter from the plaintiff's attorney advising as to the completeness of the items provided. PLACE OF DISCOVERY: JACOBSON & SCHWARTZ, LLP 99 Jericho Turnpike, Suite 200 Jericho, New York 11753 (516) 536-0900 DATE & TIME OF DISCOVERY: July 7, 2017 at 2:00 p.m. 3 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 1. The names and addresses of all persons who were e yewitnesses to the occurrence. (Zellman v. Metropolitan Transit Authority, 40 A.D.2d 258). 2. The names and addresses of all persons who will testify on the issue of notice, actual notice or constructive, concerning the condition of the premises as alleged in the complaint. (Zayas v. Morales, A.D.2d 610). 3. Any written or recorded statement taken of the defendant or its agents, servants, employees or representatives by the plaintiff or plaintiff's representatives, or the defendant or defendant's representatives. 4. All photographs which the plaintiff will allege fairly and accurately depict the condition of the premises at the time and place of the happening of the occurrence, with one of the photographs containing in red pencil an "X" marking the actual location of the accident. 5. Photographs of the plaintiff and conditioned complained of. 6. A true copy of any accident report concerning this occurrence in the custody and control of plaintiff made in the ordinary course of business, pursuant to CPLR 3101(g). 7. Any contracts, leases or documents which will be relied upon with respect to any claim of any party to this action. 8. If a hearing was held before any administrative body or physical examination of the plaintiff was conducted by a physician for any administrative body, a full and complete record of such hearing with regard to the plaintiff's claim as it is related to this action, together with a copy of the medical examination made in connection with such hearing. 9. As to all co-defendants -- set forth policy limits covering your defendant with respect to this occurrence. PLEASE TAKE FURTHER NOTICE, that photostatic copies of said documents may be sent to the undersigned instead of appearing at the aforesaid time and place. The foregoing demand is a continuing demand. In the event any of the above items are obtained after service of this 4 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 demand, they are to be furnished to this office pursuant to this demand. NOTICE OF DEMAND PLEASE TAKE NOTICE, that pursuant to the applicable Rules you are hereby required to serve upon the undersigned within twenty (20) days after receipt of this notice the following: 1. The names and addresses of all physicians or other health care providers of every description who have consulted, examined or treated the plaintiff for each of the conditions allegedly caused by, or exacerbated by, the occurrence described in the complaint including the date of such treatment or examination. 2. Duly executed and acknowledged written authorizations directed to any hospital, clinic or other health care facility in which the injured plaintiff herein is or was confined due to the occurrence set forth in the complaint so as to permit the securing of a copy of the entire hospital record or records including x-rays and technician's reports. 3. Duly executed authorizations and acknowledged written authorizations to allow the defendant to obtain the complete office medical records relating to plaintiff of each health care provider identified in "1" above. 4. Copies of all medical reports received from health care providers identified in "1" above. These shall include a detailed recital of the injuries and conditions as to which testimony will be offered at the trial, referring to and identifying those x-rays and technician's reports which will be offered at trial. 5. In the event plaintiff claims exacerbation of a pre- existing injury, demand is hereby made for duly executed and acknowledged written authorizations to allow defendant to obtain complete pharmacy or drug store records with respect to any drugs prescribed for plaintiff for one year prior to the occurrence described in the complaint to the present date. 6. Duly executed authorizations with respect to any osteopaths, chiropractors and/or other licensed medical professionals who have rendered treatment to plaintiff with respect to any conditions pre-existing or preceding the events 5 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 complained of in the complaint involving disease, disability or injury (or, if applicable, prior psychiatric or psychological disorders) which in any way is alleged to have been aggravated or exacerbated or to have caused any increase in the sequels of those injuries or conditions allegedly resulting from the events complained of in the within action. 7. Duly executed authorizations with respect to any hospitals, clinics or other similar health care providers which have rendered treatment to plaintiff with respect to any condition pre-existing or preceding the events complained or in the complaint involving disease, disability or injury (or, if applicable, prior psychiatric or psychological disorders) which in any way is alleged to have caused any increase in the sequels of those injuries or conditions allegedly resulting from the events complained of in the within action. 8. Copies of plaintiff's income tax returns for a three (3) year period preceding the date of the accident as set forth in plaintiff's complaint. 9. If a claim has or will be made pursuant to the terms of the Worker's Compensation Law, with respect to each and every application: a. set forth the name, address, policy number and claim number to which a claim has been or will be made, together with the Worker's Compensation Board file number; and b. set forth duly executed and acknowledged written authorizations enabling the undersigned to obtain the records relating to the plaintiff from each company identified in the response to paragraph 11(a). 10. If a disability claim has been made or will be made pursuant to the terms of the Social Security Laws, with respect to each and every application: a. set forth the claim office, the address and the claim number assigned; and b. set forth duly executed and acknowledged written authorizations enabling the undersigned to obtain the records relating to the plaintiff. 6 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 11. Duly executed and acknowledged authorizations permitting the defendant to obtain the employment records of plaintiff for the three year period prior to the date of the incident complained of. PLEASE TAKE FURTHER NOTICE, that failure to comply with this notice will serve as a basis for a motion to preclude the plaintiff upon the trial of this action from offering proof relative to medical damages if such authorizations and certificates are not forthcoming within twenty (20) days after service of a copy of the within notice. PLEASE TAKE FURTHER NOTICE, that this is a continuing demand and should any of the information requested become available to or known in the future, then you are required to furnish same at such time. DEMAND FOR DISCOVERY OF EXPERT WITNESSES PLEASE TAKE NOTICE that pursuant to CPLR 3101(d), you are hereby required to furnish the attorneys for the defendant, with discovery as to each person whom you expect to call as an expert regarding the following at the office of the defendant's attorney, LAW OFFICES OF JACOBSON & SCHWARTZ, LLP, 99 Jericho Turnpike, Suite 200, Jericho, New York on or before July 7, 2017 at 10:00 a.m. in the forenoon of that day. 1. State the name and address of every expert retained or employed by you in anticipation of this litigation or preparation for trial whom you expect to call as a witness at the trial: a. the subject matter on which the expert is expected to testify; b. the substance of the facts and opinions to which the expert is expected to testify; c. a summary of the grounds for each opinion; d. a brief chronological resume of the witness' educational background, including the associations or societies or which the expert is a member, and as to medical personnel, the names and addresses of all hospitals on 7 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 which staffs such experts are or where such medical experts have courtesy privileges or act as consultants; and e. whether each named expert will testify as an expert at the trial of this case. 2. With respect to any and all proposed medical expert witnesses, indicate: a. the area of expertise; b. educational background, including the names and addresses of each medical school attended; c. the names and addresses of each hospital to which an internship and residency was served and the dates thereof; d. the name and address of each hospital in which privileges of admitting patients is extended, and the nature of the privilege; e. the state or states in which this individual was licensed to practice; f. each state in which this individual is actively engaged in the practice of medicine; g. societies which each said expert is a member of and the date of each membership; h. the present board certifications and/or qualifications, if any, and the dates given to each proposed expert witness; i. the subject matter on which each expert is expected to testify, including each alleged departure from good and accepted medical practice to which said expert will testify; and j. the substance of these facts and opinions to which each expert is expected to testify, including a summary of his or her backgrounds for each opinion. 8 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 3. If you expect to call an economist or actuary, state: a. a specific description of the losses for which such calculations will be made (i.e., present value of the loss of future earnings, present value of the loss of second job earnings, present value of future medical expenses, etc.) b. the undiscounted amount of such loss; c. the present value of the dollar amount of such loss; d. the discount rate applied by such person to determine present value and the reason for such rate; e. the number of years involved in such discounting process and the opinions and facts on which the economist bases the determination of that number of years; f. with regard to testing concerning a growth of future income greater than the income earned by the plaintiff when last employed, state the growth rate for such income as estimated by such person, the opinions and facts on which that estimate is based and specifying the publication and location by the defendant; g. specify each factor other than those which have been noted above, which the person has used in calculating the set amount of the present value of the loss and identify specifically the source of material and page number on which such person bases his opinion or draws the facts on which he relied; h. with regard to any information secured from any test, publication, graph, chart or study other than that as already designated above upon which the expert relied in reaching his conclusions, describe or designate such publication or matter in writing with sufficient specifically to permit its identification and location; 9 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 i. in detail state precisely the manner in which the person reached his or her conclusion showing the mathematical calculations involved; j. with regard to any report; memoranda; or any other matter in writing showing in whole or in part the expert's conclusions or the facts upon which such conclusions were based, state the date of such writing and the names and addresses of persons having copies of it. 4. State the names, addresses and qualifications of all expert witnesses and other persons known to you to have made studies or analysis as to the cause of the alleged injury involved herein. This defendant will object, at the time of trial, to the testimony of any witnesses or the introduction of any documents or the offer of evidence in support of any claim as to which the material sought herein has not been supplied or produced in accordance with this notice of demand. The foregoing Notice of Demand is a continuing Notice of Demand. In the event any of the above items are obtained after service of this Notice of Demand, they are to be furnished to this office within thirty (30) days of receipt by the plaintiff or its attorneys. Objections will be made at the time of trial to the testimony of any persons not identified hereunder of information documents, photographs, physicians, medical reports or records not furnished pursuant to this Notice of Demand. DEMAND FOR COLLATERAL SOURCE INFORMATION S I R S: PLEASE TAKE NOTICE, that demand is hereby made upon the attorney for the plaintiff that he serve upon the undersigned a statement, in conformity with CPLR Section 4545(c), stating whether any part of the cost of medical care, dental care, custodial care, rehabilitation services, loss of earnings or other economic loss sought to be recovered herein was replaced or indemnified, in whole or in part, from any collateral source such as insurance, social security (except those benefits provided under title 18 of the Social Security Act), ~~orker's 10 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 Compensation, or employee benefit programs, and, if so, the full name and address of each organization or program providing such replacement or indemnification, together with an itemized statement of the amount in which each such claimed item of economic loss was replaced or indemnified by each such organization or program. Demand is additionally made for duly executed and acknowledged original written authorization s) permitting the undersigned to inspect and copy any records reflecting any collateral source or payment in response to the foregoing demand. PLEASE TAKE FURTHER NOTICE, that your failure to comply with the foregoing within twenty (20) days will serve as the basis of a motion for appropriate relief and/or sanctions pursuant to the CPLR. CPLR X3017 DEMAND PLEASE TAKE NOTICE, that pursuant to CPLR ~3017(c) demand is hereby made upon you to serve a supplemental demand within fifteen (15) days of this demand setting forth the total damages to which plaintiff(s) deems himself entitled. NOTICE TO TAKE DEPOSITION UPON ORAL EXAMINATION S I R S PLEASE TAKE NOTICE, that pursuant to Article 31 of the Civil Practice Law and Rules the testimony, upon oral examination of the Plaintiff as adverse party witnesses will be taken before a Notary Public who is not an attorney, or employee of an attorney, for any party or prospective party herein and is not a person who would be disqualified to act for any reason, at Supreme Court, Queens County, 88-11 Sutphin Blvd., Jamaica, New York on the 7th day of August, 2017, in the fore noon of that day with respect to evidence material and necessary in the prosecution - defense of this action. All relevant facts and circ*mstances in connection with the accident which occurred on the 14th day of March, 2016. That the said person to be examined is required tc produce at such examination the following: 11 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 All material, medical reports, x-rays, MRI films and documents relative to the subject occurrence. Dated: June 5, 2017 Jericho, New York Yours, etc., JACOBS~N & SCHW,A1~'Z, LL HENl~(Y J. CF~R~TZ, ES'Q. Attorneys ~fo Defendant, 83-02 Atlantic Avenue Assoc., LLC 99 Jericho Turnpike, Suite 200 Jericho, NY 11753 (516) 536-0900 Our File No.: MMM20004 To: Bachu Law Group 87-46 Van Wyck Expressway Kew Gardens, NY 11418 (718) 297-6400 Attorneys for Plaintiff CVS Pharmacy, Inc. c/o CT Corporation System ll1 Eight Avenue, New York, NY 10011 Defendant 12 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06 AM INDEX NO. 705565/2017 NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 06/08/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------X MARIAH MAISONET, a minor by her Mother and Natural Guardian Cynthia Arocho and CYNTHIA AROCHO, individually, , Plaintiff, Index No. 705565/2017 -against- DEMAND PURSUANT TO MANDATORY INSURER THE CITY OF NEW YORK, CVS PHARMACY, REPORTING LAW INC. and 83-02 ATLANTIC AVENUE Section 111 Of ASSOC., LLC, Public Law 110-173 Defendant. --------------------------------------X PLEASE TAKE NOTICE, that pursuant to the Mandatory Insurer Reporting Law (Section 111 of Public Law 110-173), you are required to provide the following information if plaintiff is pursuing a claim for bodily injury, medical payments, workers' compensation or no-fault benefits: 1. Has the plaintiff(s) made a claim or does the plaintiff(s) intend to make a claim for Medicare and/or Medicaid Benefits? 2. If your response to number 1 is in the affirmative, please provide the following information for each plaintiff receiving benefits: a. First and last name; b. Gender; c. Date of birth; d. Social Security Number; and 13 of 16 FILED: QUEENS COUNTY CLERK 06/08/2017 11:06
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RODOLFO ?PUEY? QUINONES, JR. VS CLAIRE CONTRERAS
Jul 10, 2024 |24STCV05330
Case Number: 24STCV05330 Hearing Date: July 10, 2024 Dept: 55 NATURE OF PROCEEDINGS: BACKGROUND RODOLFO PUEY QUINONES, JR. (Plaintiff) filed a Complaint for Defamation against Claire Contreras aka Maharlika (Defendant), alleging that Defendant made defamatory statements about Plaintiffs business and connections with the Philippines government on her YouTube channel. See Complaint, ¶ 31 (listing alleged statements). Defendant brings a SLAPP motion requesting an order striking the Complaint, or any of the alleged statements. Plaintiff opposes the motion. LEGAL STANDARD As to motions made under Code of Civil Procedure section 425.16 (SLAPP), courts first decide whether moving parties have made a prima facie showing that the attacked claims arise from a protected activity, including defendants right of petition, or free speech, under a constitution, in connection with issues of public interest. E.g., Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5. In determining that first step, judges are not limited to considering pleadings, but also may consider the moving and opposing parties filed evidence to ascertain the conduct or communications upon which liability is allegedly based. All One God Faith, Inc. v. Organic and Sustainable Industry Standards, Inc. (2010) 183 Cal.App.4th 1186, 1200 (determination of whether the SLAPP statute applies is based primarily on reviewing the complaint, but also documents filed in opposition to the extent that they might give meaning to the words in the complaint.). In determining whether the SLAPP statute applies, courts consider whether a defendantthrough public or private speech or conductparticipated in, or furthered, the discourse that makes an issue one of public interest. FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 154. An issue need not be significant one in which the public takes an interest in order to be protected by the SLAPP statute. Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042 (finding public interest in prominent businessman and celebrity, among the Finnish public). [C]onsumer information that goes beyond a particular interaction between the parties and implicates matters of public concern that can affect many people is generally deemed to involve an issue of public interest for purposes of the anti-SLAPP statute. Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1366. The SLAPP statute applies to defamation cases involving an issue of public interest. Hecimovich v. Encinal School Parent Teacher Org. (2012) 203 Cal.App.4th 450, 464-65. "Consumer information ..., at least when it affects a large number of persons, also generally is viewed as information concerning a matter of public interest." Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898. If moving parties successfully have shifted the burden, then opposing parties must demonstrate a probability of prevailing on the merits of the complaint. Equilon Ent., LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67. To establish such a probability, a plaintiff must demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts, which, if credited by the trier of fact, is sufficient to sustain a favorable judgment. Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1435; Navellier v. Sletten (2002) 29 Cal.4th 82, 88. In the context of an anti-SLAPP suit, courts must consider the pertinent burden of proof in ascertaining whether the plaintiff has shown a probability of prevailing which analyses turn upon the burdens applicable as to the elements of the particular causes of action. Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1578. EVIDENTIARY RULINGS AND REQUEST FOR JUDICIAL NOTICE The Court sustains Plaintiffs evidentiary objections to the Declarations of Claire Contreras, Jeffrey Lewis, Charlyn Bjerg, and Anna Maurera. The Court sustains Defendants objections to the Declaration of Rodolfo Puey Quinones. The Court grants Plaintiffs request for judicial notice of the complaint filed in another plaintiffs federal case against the same defendant. Giles v. Horn (2002) 100 Cal.App.4th 206, 228 (waiver by no objection to judicial notice). ANALYSIS 1. First Step Defendant contends that a certified translated transcript of the video at issue proves that Defendant did not make the statements alleged in the Complaint. E.g., Reply, 2:3-4. Alternatively, Defendant argues that (1) the statements were made in a public forum, (2) the statements concerning Plaintiffs involvement in public corruption in the Philippines is a matter of public interest, (3) and Defendant is engaged in news gathering that is protected activity. In contrast, Plaintiff filed a declaration stating that he personally observed the alleged statements made in the subject video. Also, Plaintiff asserts that, as a fashion designer whose only association with politics is that some of his clients happen to be politicians or married to politicians, does not fall within the scope of the SLAPP statute. In determining whether the first step has been established, i.e. the arising from element of the anti-SLAPP statute, a court must consider the pleadings and any supporting and opposing affidavits stating the facts upon which alleged liability is based. Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 443-444. A showing that a defendant did not do an alleged activity is not a showing that the alleged activity is a protected activity. Ibid., at 446. When compared to the allegations and Plaintiffs declaration, Defendants certified transcript more convincingly shows that the Complaint is not made upon any protected communications, because Defendant never said the statements. Therefore, the Court determines that Defendants admission that the alleged statements never happened means that Defendant failed to meet the initial burden of SLAPP step 1 to show protected statements. Second Step A court need not reach the second prong of the SLAPP analysis if the first prong (arising from protected conduct) was not satisfied. Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 801. Nevertheless, the Court considers the second step of the SLAPP analysis. The elements of a claim of a claim for defamation are: Intentional publication by defendant; of statement of fact; that is false; defamatory; unprivileged; and has a natural tendency to injure or that causes special damages. E.g., Taus v. Loftus (2007) 40 Cal.4th 683, 720. Defendant reasons that Plaintiff cannot satisfy the second step of the SLAPP analysis, because (1) as a public figure Plaintiff fails to meet his burden of proving actual malice for a defamation claim (i.e., that Defendant harbored doubt as to truth of the statements), (2) the statements are truthful opinions, (3) Plaintiff failed to timely request a retraction in order to recover presumed damages, and (4) Plaintiff is libel-proof due to a bad reputation discovered by counsels Google search of links on the Internet. Public Figure Malice Plaintiff contends he is not a limited public figure, as a clothing designer who sometimes sells clothes to government members. Alternatively, Plaintiff asserts that there is no evidence that Defendant made any effort to verify or investigate her statements, which constitutes malice. For SLAPP motions involving a defamation claim, public figures must prove by clear and convincing evidence that statements were made with knowledge of falsity, or reckless disregard for truth. Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577. Dicta in an opinion indicates that parties opposing SLAPP motions need not evidence malice, where parties being a public figure is not established as a matter of law or is in dispute. See Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988, fn.7. A limited public figure (one voluntarily injected, or drawn into, a public controversy for a limited range of issues) suing for defamation must show the defendants knowledge of falsity, or reckless disregard for truth to the extent the communication relates to the figures role in a public controversy. McGarry v. Univ. Of San Diego (2007) 154 Cal.App.4th 97, 113-114 (McGarry). See also Khawar v. Globe Internat. (1998) 19 Cal.4th 254, 263, 265 (involuntary limited public figure must have purposefully engaged in activity inviting criticism, or have acquired substantial media access in relation to the controversy); Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1164 (possible to become a public figure by being drawn into a particular public controversy without purposeful action & for an individual who & has acquired such public prominence in relation to the controversy as to permit media access sufficient to effectively counter media-published defamatory statements.); Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 88, 90 (gross negligence is not actual malice, but instead defendants must have had knowledge of falsity or doubt of the truth, and failures to investigate must be purposeful avoidance of truth or of knowledge of facts which could confirm probable falsity); Collins v. Waters (2023) 92 Cal.App.5th 70, 80 (In the context of a special motion to strike,& plaintiffs & must establish only a probability they can produce clear and convincing evidence of actual malice.). Here, the Court determines that that Plaintiff is at least an involuntary, limited public figure involved in the clothing designing business in connection with high-ranking government officials, and that Defendant acted with malice in the sense of Defendants lack of effort to obtain information as to the truth or falsity of the asserted facts that Defendant declares she never made. Therefore, the Court concludes that Plaintiff satisfied the burden to show sufficient merit of the claim for defamation against a limited public figure. Truthful Opinions Plaintiff contends that admissible evidence shows the falsity of statements of fact, via his declaration. See Plaintiffs decl. ¶¶ 8-13. Opinions are protected communications unless a reasonable fact finder could find, under the totality of circ*mstances, that they imply a provably false assertion of fact. Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 798. See also Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1356 (in determining opinion, question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.); Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1175 (comments impliedly based upon undisclosed facts, may constitute actionable assertions of fact and not pure opinion, depending upon all of the circ*mstances, but the particular comments such as "crook" found to constitute mere opinion in the context of "juvenile name-calling"); Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1372 (in determining libel, judges consider insinuations and implications reasonably drawn from the communications). Here, the Court decides that, under all the alleged, and evidenced, circ*mstances, Plaintiff met the burden to prove that the statements containing some opinions are actionable, because the whole context of the video contains statements or implications of asserted facts made in support of the opinions that Plaintiff has declared are false. Hence, the Court concludes that Plaintiff met the burden to show actionable opinions. Timely Retraction and Damages Plaintiff argues that slander per se is actionable without proof of special damage, and general damages are presumed as a matter of law (citing Moranville v. Aletto (1957) 153 Cal.App.2d 667, 672). Alternatively, Plaintiff states that both damage types are shown by Plaintiffs declaration. Case law is fairly clear that YouTube postings are not covered by Civil Code Section 48a. A close examination of the cases reveals the scope of section 48a is determined by the type of media involved, and not upon specific content. Therefore we cannot conclude the statute only applies to visual and sound broadcasting which is engaged in the business of rapid and immediate dissemination of the news. The language of the statute clearly applies to all types of television shows. Kalpoe v. Superior Court (2013) 222 Cal.App.4th 206, 217. It is not the intent of the Legislature that Section 48a of the Civil Code should apply to periodicals that publish at longer than weekly intervals, nor is it the intent of the Legislature that Section 48a of the Civil Code should apply to casual postings on a social networking Internet Web site, chat room, electronic bulletin board, discussion group, online forum, or other related Internet Web site. Stats. 2015, ch. 343, § 1. The correction statute provides that in an action for damages for the publication of a libel in a newspaper or of a slander by radio broadcast, the plaintiff, in order to be permitted to seek more than special damages, must serve & a written notice specifying the statements claimed to be libelous and demanding that they be corrected. This notice and demand must be served within 20 days after knowledge&. 6A Cal. Jur. 3d Assault and Other Willful Torts § 240. The Court concludes as a matter of law that Civil Code Section 48a does not apply to YouTube videos of livestreams. Therefore, Plaintiff meets the burden to show recoverability of at least presumed, general damages, notwithstanding the Court sustaining evidentiary objections to proffered proof of damages such as to Plaintiffs business. Ultimately, that means that the defamation claim does not fail for lack of damages. See, e.g., McGarry v. Univ. Of San Diego (2007) 154 Cal.App.4th 97, 112 (statements that charge directly without a need for explanation are libelous per se, as to which pleading and proving special damages is not required). Libel-Proof Evidence Plaintiff states that California law does not recognize any libel proof doctrine. Further, Plaintiff contends that counsels declaration is not competent evidence of Plaintiffs reputation. Defendant relies upon cites to nongoverning federal cases in asserting a libel-proof defense. Federal case law is not binding upon California courts and may be only persuasive in some circ*mstances. Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 61. Additionally, Defendants attorney declaration, setting forth Google search results, does not constitute competent evidence of Defendants reputation. In sum, the Court reasons that there is no libel-proof defense applicability here. CONCLUSION Therefore, the Court denies the motion based upon Defendants burden failure as to step 1, or alternatively, Plaintiffs burden success as to step 2.
Ruling
MENDOZA-LOPEZ vs FILICE
Jul 10, 2024 |SCV-273607
SCV-273607, Mendoza-Lopez v. FiliceDefendants Ariana Lucia Filice, Charles Filice, and Vanessa Lind’s motion for order compellingPlaintiffs Mendoza-Lopez and Saavedra-Aguilera’s depositions is DENIED as moot becausePlaintiffs’ depositions already took place on June 26. However, requested sanctions are awardedin the amount of $1,310.00 as it was only after four months of defense counsel’s efforts toschedule the depositions and the filing of this motion that Plaintiffs agreed to a deposition date.Defendants’ unopposed motion to continue trial is GRANTED. The motion was made on thegrounds that Plaintiffs’ depositions were not taken despite over four months of attempts toschedule them with Plaintiffs objecting without offering alternate dates. Though the partiesresolved the issues because the depositions already took place, Defendants argue that additionaldiscovery is necessary after Plaintiffs depositions. As this is the first request by any party tocontinue trial and it does not appear to the Court that any party will be prejudiced by continuingthe trial date, the Court will grant the unopposed motion to continue trial per California Rules ofCourt, rule 3.1337.The trial date currently set for September 13, 2024, is hereby VACATED. A new trial date isnow set for February 28, 2025, at 8:30 a.m. in Dept. 17.Moving party shall submit a written order to the Court consistent with this tentative ruling on thetwo motions and in compliance with Rule of Court 3.1312(a) and (b).
Ruling
ANGELICA RODRIGUEZ VS RACHEL CARTER, ET AL.
Jul 10, 2024 |22STCV34586
Case Number: 22STCV34586 Hearing Date: July 10, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: July 10, 2024 CASE NUMBER: 22STCV34586 MOTIONS: Motion for Terminating Sanctions MOVING PARTY: Defendants Rachel Carter and Andre Carter OPPOSING PARTY: None BACKGROUND Defendants Rachel Carter and Andre Carter (Defendants) move for terminating sanctions against Plaintiff Angelica Rodriguez (Plaintiff) for failure to comply with the Courts May 3, 2024 discovery order. No opposition has been filed. LEGAL STANDARD To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose&sanctions against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc. section 2023.030.) The court may impose a terminating sanction for misuse of the discovery process by any of the following: (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) An order staying further proceedings by that party until an order for discovery is obeyed; (3) An order dismissing the action, or any part of the action, of that party; (4) An order rendering a judgment by default against that party. (Code Civ. Proc. § 2023.030(d).) Failing to respond or to submit to an authorized method of discovery, or disobeying a court order to provide discovery, constitutes a misuse of the discovery process. (Code Civ. Proc., § 2023.010, subd. (d), (g).) The trial court may order a terminating sanction for discovery abuse after considering the totality of the circ*mstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery. (Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390, quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246.) Generally, [a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Los Defensores, supra, 223 Cal. App. 4th at p. 390 [citation omitted].) Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders. (Los Defensores, supra, 223 Cal.App.4th at p. 390 citing Lang, supra, 77 Cal.App.4th at pp. 1244-1246 [discussing cases]; see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 [terminating sanctions imposed (by striking the defendants Answer and subsequently granting default judgment) after defendants failed to comply with one court order to produce discovery]; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 [terminating sanctions imposed against the plaintiff for failing to comply with a discovery order and for violating various discovery statutes].) DISCUSSION On October 30, 2023, Defendants served Demand for Production of Documents, Set One, Specially Prepared Interrogatories, Set One, and Form Interrogatories, Set One, on Plaintiff. (Kothary Decl. ¶ 2.) On May 3, 2024, the Court granted Defendants unopposed motions to compel Plaintiffs written discovery responses. Counsel for Plaintiff did not appear at the hearing. The Court ordered Plaintiff to serve verified responses, without objections, within 20 days. The Court further granted monetary sanctions against Plaintiff and her counsel of record, jointly and severally, in the amount of $718.50. The monetary sanctions were due within 30 days. On May 8, 2024, Defendants served electronic notice of the order on Plaintiffs counsel. Defendants filed the instant motion on June 10, 2024, arguing that Plaintiff has not complied with the Courts order by serving the discovery or paying the sanctions. (Kothary Decl. ¶ 5.) The Court finds that Plaintiff has not complied with the May 3, 2024 order. Plaintiff also has failed to respond to discovery that was served in October 2023, over eight months ago. Plaintiff does not oppose this motion and therefore fails to set forth reasons for the discovery abuse. Additionally, it does not appear that lesser sanctions would induce compliance. Accordingly, the Court grants the motion. CONCLUSION Therefore, Defendants motion for terminating sanctions is GRANTED. The complaint as to Defendants Rachel Carter and Andre Carter is dismissed without prejudice. As the only remaining defendants are unnamed Doe defendants, the Court dismisses the entirety of the complaint. All dates are advanced and vacated. Defendants shall provide notice of the Courts ruling and file a proof of service of such.
Ruling
Bailey vs. Shasta Union High School District, et al.
Jul 10, 2024 |23CV-0203011
BAILEY VS. SHASTA UNION HIGH SCHOOL DISTRICT, ET AL.Case Number: 23CV-0203011This matter is on calendar for review. The matter was stayed following a stipulation of the parties due to a relatedFederal Action. Nothing has been filed informing the Court of the status of the Federal Action. An appearanceis necessary on today’s calendar.
Ruling
CARLOS ADRIAN CANELA CABRERA VS WINCO HOLDINGS, INC. A CORPORATION
Jul 12, 2024 |23PSCV02261
Case Number: 23PSCV02261 Hearing Date: July 12, 2024 Dept: K Counsel for Plaintiff Carlos Adrian Cancela Cabreras (i.e., Windsor Troy) Motion to be Relieved as Counsel is GRANTED, effective upon the filing of a proof of service showing service of the signed order upon the Client at the Clients last known address. Background Plaintiff Carlos Adrian Canela Cabrera (Plaintiff) alleges that he sustained injuries in a September 21, 2021 slip and fall. On July 26, 2023, Plaintiff filed a complaint, asserting causes of action against Winco Holdings, Inc. (Defendant) and Does 1-50 for: 1. General Negligence 2. Premises Liability A Case Management Conference is set for July 12, 2024. Discussion Windsor Troy (Firm) seeks to be relieved as counsel of record for Plaintiff (Client). The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.) California Rules of Court (CRC) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as CounselCivil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure § 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as CounselCivil form (MC-052)); (3) service of the notice of motion and motion, the declaration, and the proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as CounselCivil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. Attorney Roberto Dominguez (Dominguez) represents that [t]here has been a breakdown of the Attorney-Client Relationship, that [i]rreconcilable differences have arisen between them that make it impossible for representation to continue, and that he is unable to communicate with the Plaintiff in a manner consistent with an attorney-client relationship. The motion originally came on calendar for hearing on June 12, 2024; at that time, the court noted that Dominguez had failed to complete Paragraph 3.b. of Judicial Council Form MC-052 (i.e., advising whether or not he has confirmed within the past 30 days that the Clients address is current and, if so, by what means and, if not, why he was unable to make such confirmation), continued the hearing to July 12, 2024 and instructed Dominguez (or another attorney at Firm) to file and serve a supplemental declaration on the Client and on counsel for Winco providing the information requested in Paragraph 3.b. of Judicial Council Form MC-052 forthwith. On July 1, 2024, attorney Cherilynn Heath of Firm provided a declaration, advising therein that Plaintiff had been served by mail at his last known address with copies of the motion papers served with her declaration, but that she had been unable to confirm that the address is current or to locate a more current address for Plaintiff after mailing the motion papers to Plaintiffs last known address, return receipt requested. The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have been sufficiently met. Accordingly, the motion is granted, effective upon the filing of a proof of service showing service of the signed order upon the Client at the Clients last known address.
Ruling
NELSON ROSALES VS NURBAN R. LOPEZ, ET AL.
Jul 10, 2024 |21STCV11745
Case Number: 21STCV11745 Hearing Date: July 10, 2024 Dept: B Judge/Dept.: Judge Karen Moskowitz / Dept. B Hearing Date: Wednesday, July 10, 2024 Motion Type: Motion to Bifurcate
Ruling
Luis Kutz, et al vs Jennifer Fribourgh, et al
Jul 11, 2024 |23CV01711
23CV01711KUTZ et al. v. FRIBOURGH et al. (UNOPPOSED) PLAINTIFFS’ MOTIONS TO BE RELIEVED The unopposed motions are denied without prejudice. Counsel must refile to reflectcorrect upcoming hearing dates in the declarations and proposed orders.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 1 of 1
Ruling
DAVID WOOLSEY, ET AL. VS SECURITY PAVING COMPANY, INC.; A BUSINESS OF UNKNOWN FORM, ET AL.
Jul 09, 2024 |22NWCV00987
Case Number: 22NWCV00987 Hearing Date: July 9, 2024 Dept: C WOOLSEY v. SECURITY PAVING COMPANY, INC. CASE NO.: 22NWCV00987 HEARING: 07/09/24 #6 I. Defendant RECYCLED BASE MATERIALS, INC.s Motion for Summary Judgment is GRANTED. The alternative Motion for Summary Adjudication is MOOT. II. Defendant SECURITY PAVING COMPANY, INC.s Motion for Summary Judgment is GRANTED. The alternative Motion for Summary Adjudication is MOOT. III. Defendant SULLY-MILLER CONTRACTING COMPANYS Unopposed Motion for Summary Judgment is GRANTED. The alternative Motion for Summary Adjudication is MOOT. Prevailing Parties to give notice. This personal injury action was filed on October 12, 2022 by Plaintiffs DAVID WOOLSEY, individually and as Successor in Interest to the Estate of MATTHEW WOOLSEY; and SUZANNE WOOLSEY, individually and as Successor in Interest to the Estate of MATTHEW WOOLSEY (collectively Plaintiffs). The operative First Amended Complaint (FAC) was filed on September 6, 2023. The FAC alleges the following relevant facts: On or about April 13, 2022, Decedent, who was 23 years old at the time, was working for defendant RECYCLED BASE MATERIALS, INC. utilizing the SUBJECT PRODUCT that was owned and operated by defendant SECURITY PAVING COMPANY, INC. at a worksite owned and operated by defendant BLUE DIAMOND MATERIALS, BLUE DIAMOND INGLEWOOD ASPHALT CORPORATION, and/or SULLY-MILLER CONTRACTING COMPANY located at 5625 Southern Ave., South Gate, CA 90280. (FAC ¶15.) While at the worksite, Decedent was working with the SUBJECT PRODUCT and his right arm was caught and pulled into the machine. Decedent attempted to pull his arm out of SUBJECT PRODUCT but was unsuccessful. His arm was finally able to be removed when the SUBJECT PRODUCT was turned off. (FAC ¶16.) On or about April 19, 2022, Decedent passed away as a result of injuries he sustained that were caused by the SUBJECT PRODUCT. (FAC ¶17.) The FAC asserts the following causes of action: (1) Negligence; (2) Negligence Premises Liability; (3) Strict Products Liability; (4) Negligent Products Liability; (5) Breach of Warranty; (6) Negligence; (7) Negligence; (8) Wrongful Death; and (9) Survival Action Defendants RECYCLED BASE MATERIALS, INC (RBM) and SECURITY PAVING COMPANY, INC. (Security) (collectively Defendants) separately (but identically) move for summary judgment or, alternatively, summary adjudication of the first, sixth, eighth, and ninth causes of action. Defendant SULLY-MILLER CONTRACTING COMPANY (Sully-Miller) moves for summary judgment or, alternatively summary adjudication as to the second; eighth; and ninth causes of action. Defendants RBM and SECURITYs Motion for Summary Judgment/Adjudication [A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing no triable material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party meets this burden, the burden shifts to the opposing party to make a converse prima facie showing that a triable issue of material fact exists. (Ibid.) Defendants argue that the Decedent was dually employed by Security and RBM and Plaintiffs claims are barred by the Workers Compensation Exclusivity Act. In Opposition, Plaintiffs argue that there are factual issues regarding dual employment which preclude summary judgment/adjudication. Generally, under the workers compensation doctrine, when an injured employee is entitled to recover workers compensation benefits, those benefits constitute the employees exclusive remedy against the employer and his or her employees. (Cal. Lab. Code §§3600, 3601, 3602.) The workers compensation exclusivity provisions generally preclude a civil action against an employer for physical or emotional injury resulting from wrongful conduct in the workplace. (Livitsanos v. Sup. Ct. (1992) 2 Cal.4th 744, 754.) Typically, injuries caused by employer negligence or without employer fault are subject to the WCA. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 714.) Workers compensation law recognizes that there may be cases of special/dual employment. Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employershis original or general employer and a second, the special employer. [Citation.] (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.) The possibility of dual employment is well recognized. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174.) If general and special employment exists, the injured workman can look to both employers for [workers] compensation benefits&. Thus where there is dual employment the workman is barred from maintaining an action for damages against either employer. (Id. at 175.) The primary consideration in determining whether a special employment relationship exists is whether the special employer has the right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not&. (Kowalski, supra, 23 Cal.3d at 175.) Other factors to consider when determining whether a special employment relationship exists include: (1) whether the borrowing employers control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employers work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee; and (9) whether the borrowing employer had the obligation to pay the employee. (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1250.) Generally, the question of whether an employment relationship exists is reserved for the trier of fact. (Marsh v. Tilley Street Co. (1980) 26 Cal.3d 486, 493.) Security and RBM proffer the following evidence: · Security and RBM both have Workers Compensation Insurance Coverage as required by law and are covered under the same policy and share the same business address. (SS No. 8.) · RBM and Security are affiliated entities. (SS No. 9.) · On April 21, 2021, Decedent completed and signed new hire paperwork, including, but not limited to: the cell phone safety policy; direct deposit authorization for Security; employee safety orientation, safety compliance, and procedures; meal and rest break policies, equal opportunity notice; authorization for his DMV record; voluntary self-identification documents; and emergency contact sheet. (SS No. 13.) · On the direct deposit authorization form, which was on Security letterhead, it expressly states: I (employee) Matthew Woolsey hereby authorize my employer Security Paving, inc. to make deposits and debits. (SS No. 14.) · Every single document contained in the new hire paperwork was on Security letterhead. (SS No. 15.) · In April 2022, the Decedent was sent to the jobsite where Plant 6 was going to begin a rock crushing job. (SS No. 18.) · The mobile plant was owned by Security Paving, Inc., along with the shovels and tools. (SS No. 20.) · The crew that was operating and working on the mobile plant included Nate Mesco, Timothy Reitz, Paul Bouman and Matthew Woolsey. (SS No. 22.) · Nathan Mesco was the foreman and supervisor of the four-person crew. (SS No. 23.) · As foreman, Nathan Mesco directed and authorized Matthew's job tasks. (SS No. 24.) · Nathan Mesco, Paul Bouman and Timothy Reitz were employed by Security Paving. (SS No. 27.) · Decedent was generally employed by Recycled Base Materials. His paystubs had RBM on them. (SS No. 28.) Based thereon, RBM and Security have made a prima facie showing that they dually employed Decedent and that Plaintiffs claims are barred by the Workers Compensation Exclusivity Act. The burden now shifts to Plaintiffs to raise a triable issue of material fact. In Opposition, Plaintiffs rely on the following admissible evidence: · Security did not pay Decedent. (PSS Nos. 30-37.) · Security could not terminate Decedents employment with RBM. (PSS No. 38.) · Matthew was a skilled worker. (PSS Nos. 33, 39, 42.) · Security neither supervised nor controlled Decedents work o Per the MLA, when the Union dispatches a member to work for a company, the employee works under that company's direction and that company is responsible for supervising the employee's work. (PSS No. 26.) o At the Jobsite, Decedent had specific tasks and duties which he performed independently and without direct oversight. (PSS No. 71.) o Security's Jobsite foreman did not directly oversee every task and duty that Matthew performed. (PSS No. 72.) o During a given day, the four crew members switch roles. (PSS No. 73.) o When Security contracts out Plant 6, it does not fully control the details of the crew's work activities. (PSS No. 74.) o Security just specifies the daily production results. Each crew member controls how they perform their job to achieve the most production each day. (PSS No. 75.) o At one point during the morning, Mr. Mesco went to the screen because he had not seen Matthew for a while. (PSS No. 85.) o It took at least 20 minutes for the crew to discover that Matthew was pinned by the tail pulley. (PSS No. 95.) · Rock crushing is not Securitys primary business. (PSS Nos. 14-18, 50.) · Decedent could not consent to dual employment. (PSS Nos. 27, 37) · RBM and Security did not (and could not) agree to prohibited brokering. (PSS Nos. 22-28, 134-38.) Plaintiffs concede that Decedent was an employee of RBM at the time of the subject incident. (Opp., p. 7.) Therefore, the Court determines that the Workmans Compensation Exclusivity Act applies to RBM. RBMs Motion for Summary Judgment is GRANTED. Its Motion for Summary Adjudication is MOOT. As to Security, the focus is on whether there are disputed facts regarding Securitys control over Decedent since that is the primary consideration in determining whether a special employment relationship exists. (Kowalski, supra, 23 Cal.3d at 175.) Per the MLA, when the Union dispatches a member to work for a company, the employee works under that company's direction and that company is responsible for supervising the employee's work. (PSS No. 26.) However, as Kowalski makes clear, a contract cannot affect the true relationship of the parties to it. Nor can it place an employee in a different position from that which he actually held." (Kowalski, supra, 23 Cal.3d at 176.) Thus, the terms of the MLA do not raise a triable issue of material fact regarding Securitys control over Decedent at the work site. Plaintiffs offer nothing to rebut Security and RBMs evidence that Nathan Mesco was the foreman and supervisor of the four-person crew (SS No. 23); that Nathan Mesco directed and authorized Decedent's job tasks (SS No. 24); and that Nathan Mesco, Paul Bouman and Timothy Reitz were employed by Security Paving (SS No. 27). Nathan Mescos role as Decedents supervisor is not contradicted by evidence that Decedent performed specific tasks independently (PSS No. 72) or that he was not supervised at all times (PSS No. 72). Plaintiffs do not argue that Decedent worked without supervision of any kind. Surely, he was supervised at the work site by someone. Of critical importance here, Plaintiffs offer no evidence that Decedent was actually supervised by an employee of RBM. Plaintiffs argue that RBM was Decedents only employer, and that he was not employed by Security. (Response to SS Nos. 13-18.) However, the evidence submitted by Plaintiffs merely shows Decedent was employed by RBM, not that he was only employed by RBM. Thus, the evidence submitted by Plaintiffs is not inconsistent with Decedents dual employment by RBM and Security. Plaintiffs have not met their burden of raising a triable issue of material fact regarding Decedents dual employment by RBM and Security. Accordingly, Securitys Motion for Summary Judgment is GRANTED. The Motion for Summary Adjudication is MOOT. RBM and Securitys Identical Evidentiary Objections: 1. Overruled 2. Overruled 3. Overruled 4. Overruled 5. Sustained 6. Overruled 7. Overruled 8. Overruled 9. Overruled 10. Overruled 11. Overruled 12. Overruled 13. Overruled 14. Overruled 15. Overruled 16. Overruled 17. Overruled 18. Overruled 19. Overruled 20. Overruled 21. Overruled 22. Overruled Defendant SULLY-MILLER CONTRACTING COMPANY Unopposed Motion for Summary Judgment/Adjudication Plaintiffs allege that on April 13, 2022, the Decedent was working for RBM, while utilizing a mobile concrete/asphalt crushing plant that was owned and operated by Security, which was located on a piece of property owned by Sully-Miller. (FAC ¶15.) Plaintiffs allege that the Decedent was fatally injured after his arm was caught and pulled into a machine. FAC ¶¶16 and 17.) Defendant Sully-Miller argues that Plaintiffs are precluded from suing Sully-Miller for the Subject Incident under the Privette Doctrine. Specifically, Sully-Miller contends that RBM was an independent contractor, and its employees were not employees or agents of Sully-Miller. As of July 3, 2024, no Opposition(s) have been filed/lodged with this Court. A hirer of a contractor owes no duty of care to the contractors injured employee because the employee has an alternative remedy through the workers compensation system. (Privette v. Superior Court (1993) 5 Cal.4th 689, 696-702.) [W]hen the person injured by negligently performed contracted work is one of the contractors own employees, the injury is already compensable under the workers compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor. (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267.) It is unfair to subject the hirer to civil liability while the actor primarily responsible for the injury was subject only to the limited liability imposed by workers compensation law. (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1342.) Generally, an injured employee of an independent contractor cannot sue the landowner who hired the contractor. (Seabright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 594.) The remedy for injuries to the contractors employees is workers compensation. (Id. at 598.) A hirer of a contractor owes no duty of care to the contractors injured employee because the employee has an alternative remedy through the workers compensation system. (Privette v. Superior Court (1993) 5 Cal.4th 689, 696-702.) [W]hen the person injured by negligently performed contracted work is one of the contractors own employees, the injury is already compensable under the workers compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor. (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267.) It is unfair to subject the hirer to civil liability while the actor primarily responsible for the injury was subject only to the limited liability imposed by workers compensation law. (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1342.) Generally, an injured employee of an independent contractor cannot sue the landowner who hired the contractor. (Seabright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 594.) The remedy for injuries to the contractors employees is workers compensation. (Id. at 598.) An employer may be liable for injuries suffered by an independent contractors employees because of unsafe conditions at the worksite which the employer controlled. (See McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225-226 [claim that employer of independent contractor requested use of unsafe equipment held sufficient to show employer contributed to injuries suffered by contractors employees].); (but see Hooker v. Dept. of Transp. (2002) 27 Cal.4th 198, 214-215 [claim that employer of independent contractor permitted construction vehicles to pass by crane operator creating unsafe condition was not sufficient to show employer contributed to the contractors employees injuries.].) The principal employer is liable only insofar as its exercise of retained control affirmatively contributed to the independent contractor's employee's injuries: Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. (Hooker v. Department of Transp., supra, 27 Cal.4th at 215.) [internal quotes omitted]; (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348 [no evidence to show general contractor controlled means and methods of subcontractor's employee's work.].) When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee's injury. [¶] By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. Thus, the failure to exercise retained control does not constitute an affirmative contribution to an injury. Such affirmative contribution must be based on a negligent exercise of control. In order for a worker to recover on a retained control theory, the hirer must engage in some active participation. (Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, 1446.) [internal citations omitted.] The following facts are undisputed: · On April 20, 2022, Sully-Miller entered into an agreement with RBM for the work performed at 5625 South Gate, California 90280. (SS No. 1.) · The 2022 Agreement was for RBM to crush concrete and asphalt into base material at Sully-Millers place of business. (SS No. 3.) · Pursuant to the 2022 Agreement, RBM was an independent contractor of Sully-Miller. (SS No. 4.) · Pursuant to the 2022 Agreement, Sully-Miller did not exercise or have any control or supervision over RBM, its operations, or its employees. (SS No. 5.) · Pursuant to the 2022 Agreement, all personnel hired by RBM are considered employees, agents, or subcontractors of RBM and RBM is solely responsible for all persons it employed. (SS No. 6.) · At the time of the Subject Incident, Decedent was employed by RBM. (SS No. 10.) · None of Sully-Millers employees were involved with the Subject Incident, and Sully-Miller received no citations from OSHA. (SS No. 11.) · Sully-Miller does not perform any quality control or safety testing with respect to the mobile crushing plant that was involved in the Incident. (SS No. 24.) · The safety personnel employed by Sully Miller do not have any safety oversight on the mobile crushing plant utilized by RBM and Security. (SS No. 25.) · Sully-Miller was responsible for its employees and did not retain control of the safety of employees of Security or RBM. (SS No. 26.) · Sully-Miller does not monitor the work performed by RBM or its subcontractors or employees. (SS No. 28.) · Sully-Miller did not supervise, direct or instruct any employees of Security or RBM as to how they were to perform their work or how they were to use and/or operate the mobile crushing plant on the date of the Subject Incident. (SS No. 29.) · Sully-Miller does not determine whether RBM or Securitys employees are given certain training. (SS No. 30.) · Sully-Miller did not provide employees of RBM or Security with any equipment to perform the crushing work. Any equipment needed to perform the work was provided by RBM or Security. (SS No. 34.) Sully-Miller has carried its burden to demonstrate that it cannot be held liable for negligence under the Privette Doctrine. As such, the burden shifts to Plaintiffs to raise triable issues as to Sully-Millers liability. As indicated above, Plaintiffs do not oppose this Motion. Therefore, Plaintiffs have failed to raise any triable issues of fact as to Sully-Millers liability. Accordingly, Sully-Millers Motion for Summary Judgment is GRANTED.
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