Preview
FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF ONEIDA CRAIG S. ROZYCKI, ATTORNEY AFFIRMATION Plaintiff, -against- Index No.: EFCA2023-001384 RYAN P. HALPIN and HALPIN'S FUEL SERVICE INC., Defendants. Patrick D. Slade, Esq., hereby affirms the following to be true under the penalties of perjury pursuant to CPLR 2106: 1. I am an attorney duly admitted to practice law before the courts of the State of New York and am an attorney with the law firm of Harding Mazzotti, LLP, attorneys for the Plaintiff Craig S. Rozycki (“Plaintiff”) in the above-referenced caption. As such, I am fully familiar with the facts and circ*mstances surrounding this litigation. 2. I make this Affirmation in opposition to Defendants’ Motion for Summary Judgment seeking an Order pursuant to CPLR §3212 granting Defendants’ summary judgment dismissing the Complaint, on the ground that Plaintiff did not sustain a qualifying “serious injury” as defined by Insurance Law § 5102 (d) as a result of the motor vehicle accident, together with such other and further relief as the Court deems just and proper. 3. I also make this Affirmation in support of Plaintiff’s Cross-Motion for Summary Judgment seeking an Order to pursuant to CPLR §3212 finding that Plaintiff sustained a qualifying “serious injury” as defined by Insurance Law § 5102 (d) as a result of the motor vehicle accident. 1 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 4. This is a personal injury action resulting from a rear-end motor vehicle crash that occurred on September 20, 2021. (See Exhibit C – Police Accident Report; Exhibit A - Plaintiff’s Second Supplemental Bill of Particulars at ¶s 1-4). 5. As a result of the crash, Plaintiff alleges that he sustained a significant disfigurement, a permanent loss of use of a body organ, member, function, or system, a permanent consequential limitation of use of a body organ or member in his cervical spine, a significant limitation of use of a body function or system in his cervical spine1, aggravation to his previously asymptomatic cervical spine was so severe that he required surgery and that his economic loss is greater than basic economic loss as defined in subdivision (a) of 5102 of the New York Insurance Law. (See Exhibit A - Plaintiff’s Second Supplemental Bill of Particulars at ¶s 12; 16; 17). 6. In the instant motion, Defendants move for summary judgment, seeking dismissal of the Complaint, on the ground that Plaintiff did not sustain a qualifying “serious injury” as defined by Insurance Law § 5102 (d). In support, Defendants submit the No-Fault IME reports of Douglas Petroski, M.D. (Exhibit H) and Edward L. Mills, M.D. (Exhibit I). Plaintiff’s chief complaints involved neck pain and right shoulder pain. Both reports measured range-of-motion deficits in Plaintiff’s neck and right shoulder. (Exhibits H & I). Neither Dr. Petroski’s report, nor Dr. Mills’ report, offers any opinion anywhere on causation as it relates to the neck and back injuries from the rear-end crash, and Plaintiff’s complaints of pain and range of motion deficits, and nowhere do they refute that prior to the rear-end crash at issue, Plaintiff was completely asymptomatic related to his neck or right shoulder pain and range-of-motion deficits. (Exhibit H). Further, Dr. Petroski indicates under “Treatment” “…recommendation is for to follow-up with the treating physician within 6 weeks 1 Although Plaintiff clearly claims, ‘a significant limitation of use of a body function or system in his cervical spine’, Defendants’ motion completely fails to address this claim. Defendants’ failure to address this claim mandates denial of the Defendants’ motion on this basis alone. 2 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 to discuss surgical options,…” (Exhibit H). Likewise, Dr. Mills “recommended Mr. Rozycki, to follow up with treating physician to discuss alternative treatment option to the cervical spine…In my opinion, the claimant may also benefit from cervical spine surgery.” (Exhibit I, p. 5). 7. Plaintiff underwent a three level C4-7 Anterior Cervical Discectomy and Fusion on April 11, 2022 with insertion of biomechanical spacer titanium coated Peek at C4-5, C5-6, C5-7. (Exhibit B – Affirmation of Dr. Popper at Exhibit B, including operative report). 8. In opposition to the instant motion, Plaintiff submits the affirmation of the treating surgeon Dr. Popper. (Exhibit B). In sum, as further detailed in his affirmation and below, it is Dr. Popper’s opinion, within a reasonable degree of medical certainty, that Craig Rozycki’s injuries are causally related to the motor vehicle collision of September 20, 2021 and that his underlying degenerative disc disease and cervical osteoarthritis were asymptomatic prior to this collision, and that his spine was not compressed, but the trauma of this collision disturbed the stability in his neck, causing his post-collision symptoms and limitations, compressing his spinal cord and necessitating his fusion surgery. (Exhibit B). Defendants’ motion must be denied where: (a) Defendants failed to establish a prima facie case of entitlement to judgment as a matter of law that Plaintiff did not sustain a qualifying “serious injury” as defined by Insurance Law § 5102 (d); (b) The diminished range of motion in Plaintiff's cervical spine and right shoulder as objectively measured and recorded in the examining physician’s medical reports submitted by Defendants serve to support Plaintiff's claim of a serious injury such that Defendants are not entitled to summary judgment dismissing Plaintiff's claim of serious injury to his cervical spine; (c) Objective evidence of injury to the cervical spine with nerve root compression are causally connected to the September 20, 2021 rear-end crash by Dr. Popper as acute traumatic injuries and described as the source of the Plaintiff’s post-accident pain and limited range of motion and an explanation that the Plaintiff was previously asymptomatic and the accident aggravated an underlying pre-existing condition, 3 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 rendering the plaintiff symptomatic, establishes causation and that Plaintiff meets “serious injury”; (d) together with such other and further relief as the Court deems just and proper. 9. In support of this cross-motion, the affirmation of the treating surgeon Dr. Joseph Popper establishes that Plaintiff did indeed sustain a qualifying “serious injury” as defined by Insurance Law § 5102 (d) as a result of the motor vehicle accident, warranting summary judgment in favor of Plaintiff on this issue. ARGUMENT POINT I DEFENDANTS FAILED TO ESTABLISH A PRIMA FACIE CASE OF ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW THAT PLAINTIFF DID NOT SUSTAIN A QUALIFYING “SERIOUS INJURY” AS DEFINED BY INSURANCE LAW § 5102 (D) A. DEFENDANTS UTTERLY FAILED TO ADDRESS PLAINTIFF’S CLAIM OF A ‘SIGNIFICANT LIMITATION OF USE OF A BODY FUNCTION OR SYSTEM’ IN HIS CERVICAL SPINE AND SUBMITTED NO EVIDENCE THAT PLAINTIFF DID NOT SUSTAIN A ‘SIGNIFICANT DISFIGUREMENT’ 10. As an initial point, here Defendants failed to address that claim by Plaintiff, set forth in his Supplemental Bill of Particulars, that his injuries qualify as a serious injury within the meaning of Insurance Law § 5102 (d), under the significant limitation of use of a body function or system in his cervical spine category. (See Exhibit A - Plaintiff’s Second Supplemental Bill of Particulars at ¶s 12; 16; 17). Indeed, the attorney affirmation erroneously states that “Plaintiff alleges the following categories of the serious injury threshold: significant disfigurement; permanent consequential use; and 90/180.” (Affirmation of Philip C. Barth, III, Esq. dated June 14, 2024, at ¶ 14). The affirmation and memorandum of law utterly fail to include and address in any of the arguments raised the claim set forth by Plaintiff’s Supplemental Bill of Particulars, that 4 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 Plaintiff sustained a significant limitation of use of a body function or system in his cervical spine. Defendants’ failure to address the claim set forth in Plaintiff’s Supplemental Bill of Particulars requires denials of their motion. (See Accompanying Memorandum of Law). 11. Moreover, any belated attempt by Defendants to cure this deficiency, in making its prima facie showing on the motion, by submitting new evidence for the first time in reply would be improper and must be rejected. (See Accompanying Memorandum of Law). 12. Further, on their summary judgment motion, Defendants have the initial obligation to show its entitlement to judgment as a matter of law. (See Accompanying Memorandum of Law). Thus, it is Defendants' burden to show that plaintiff did not suffer a ‘significant disfigurement’ as alleged. (See Accompanying Memorandum of Law). As for Defendants argument here that Plaintiff did not sustain a significant disfigurement, Defendants motion wholly fails to include a shred of evidence to support this argument. It is well-established that a defendant"cannot obtain summary judgment by pointing to gaps in plaintiff['s] proof" to satisfy its prima facie burden. (See Accompanying Memorandum of Law). Rather, it is incumbent upon Defendants, as the movants with the burden of demonstrating judgment as a matter of law, to demonstrate through admissible proof, that there is no disputed issue of fact. A movant must affirmatively eliminate all material issues of fact to meet its prima facie burden. (See Accompanying Memorandum of Law). As a general rule, a party does not meet its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense. (See Accompanying Memorandum of Law). 13. Here, Defendants have completely failed to meet their burden in moving for summary judgment by pointing to gaps in its opponent's proof on the claim that Plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) under the category of significant 5 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 disfigurement. Accordingly, Defendants’ motion for summary judgment must be denied in its entirety where by establishing that any one of several injuries sustained in an accident is a serious injury within the meaning of Insurance Law § 5102(d), Plaintiff is entitled to seek recovery for all injuries incurred as a result of the accident. (See Accompanying Memorandum of Law). B. THE PHYSICIAN REPORTS RELIED UPON BY DEFENDANTS DO NOT DISPUTE THAT THE MOTOR VEHICLE COLLISION CAUSED PLAINTIFF’S INJURIES AND THEMSELVES CONFIRM SIGNIFICANT RANGE OF MOTION DEFICITS 14. Moreover, Defendants also fail to make a prima facie showing of entitlement to judgment as a matter of law where Defendants rely upon the examination report of Dr. Petroski and Dr. Mills, who neither make any finding that the motor vehicle collision did not cause Plaintiff’s cervical injuries, pain and range of motion deficits and who both documented and objectively measured significantly diminished range of motion in Plaintiff’s cervical spine and right shoulder even before his cervical fusion surgery. The affirmed defense medical examination report of Dr. Petroski dated February 15, 2022, related to an evaluation of Plaintiff on February 9, 2022, demonstrates that Dr. Petroski, using a hand-held goniometer, objectively measured Plaintiff’s range of motion with deficits in cervical range of motion as follows: flexion – normal 50 degrees; Claimant 40 degrees; extension – normal 60 degrees; Claimant 25 degrees; right rotation – normal 80 degrees; Claimant 35 degrees; left rotation – normal 80 degrees; Claimant 45 degrees; right lateral flexion – normal 45 degrees; Claimant 30 degrees; left lateral flexion – normal 45 degrees; Claimant 30 degrees. (Exhibit H, p. 3). 15. Dr. Petroski also objectively measured Plaintiff’s range of motion with deficits in the right shoulder range of motion as follows: abduction – normal 180 degrees; Claimant 150 degrees; forward flexion – normal 180 degrees; Claimant 150 degrees; Internal Rotation – normal 6 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 80 degrees; Claimant 35 degrees; External Rotation – normal 90 degrees; Claimant 45 degrees. (Exhibit H, p. 3). 16. Dr. Mills, in his examination report dated April 6, 2022, measured similar deficits with Plaintiff’s cervical range of motion. (Exhibit I). Dr. Mills found the cervical range of motion demonstrates flexion to 20 degrees (50 degrees normal), extension to 20 degrees (60 degrees normal), right lateral flexion to 15 degrees (45 degrees normal) and left lateral flexion to 20 degrees (45 degrees normal), and right rotation to 0 degrees (80 degrees normal) and left rotation to 30 degrees (80 degrees normal). (Exhibit I, p. 4). 17. Likewise, Dr. Mills found deficits with Plaintiff’s right shoulder range of motion. (Exhibit I, p. 4). Range of motion demonstrates forward elevation to 80 degrees (180 degrees normal), internal rotation to 70 degrees (70 degrees normal), and external rotation (with the arm in 0 degrees of abduction) to 60 degrees (90 degrees normal). (Exhibit I, p. 4). 18. It is well established that “to prove the extent or degree of physical limitation, an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury. . . . An expert’s qualitative assessment of a plaintiff’s condition also may suffice, provided that the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, purpose and use of the affected body order member, function or system. (See Accompanying Memorandum of Law). 19. The use of a handheld goniometer to determine range of motion is a sufficient objective test on its own to determine whether a party has sustained a serious injury as long as the results are compared to what is a normal range of motion. (See Accompanying Memorandum of Law). 20. As indicated above, the Defendants’ own submissions by examining physicians found deficits in range of motion in the cervical spine and right shoulder. Dr. Petroski’s and Dr. Mill’s own 7 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 objective measurements demonstrate significant range of motion deficits in Plaintiff’s cervical spine and right shoulder as compared to that of normal range of motion. 21. Here the record supports a finding that Plaintiff was asymptomatic prior to the accident and experienced the immediate onset of pain upon the accident. 22. Moreover, Dr. Popper made objective findings of Plaintiff’s current range of motion limitations to support his opinion that the injury was acute, significant, and proximately caused by the motor vehicle accident. Dr. Petroski and Dr. Mills failed to account for the absence of pain in plaintiff's spine and right shoulder or absence of range of motion deficits prior to the accident. Thus, these doctors’ findings and opinion are insufficient to establish prima facie that plaintiff's pain and range of motions deficits are unrelated to the accident. POINT II THE PHYSICIAN AFFIRMATION OF DR. POPPER DEMONSTRATES THAT PLAINTIFF SUSTAINED A QUALIFYING “SERIOUS INJURY” AS DEFINED BY INSURANCE LAW § 5102 (D), IN PARTICULAR WHERE PLAINTIFF WAS ASYMPTOMATIC BEFORE THE MOTOR VEHICLE COLLISION, REQUIRING DENIAL OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 23. If the Court finds that the moving party establishes its entitlement to judgment through the tender of admissible evidence, the burden shifts to the nonmoving party to raise a triable issue of fact. (See Accompanying Memorandum of Law). Recognizing that summary judgment is a "drastic remedy," courts also are required upon a defendant's motion for summary judgment to view the evidence in the light most favorable to the plaintiff. (See Accompanying Memorandum of Law). 24. Insurance Law § 5102 (d) provides, inter alia: ‘Serious injury’ means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or 8 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 system; or a medically determined injury or impairment of a non- permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment." 25. Here, plaintiff claims that he sustained a serious injury under the following categories of Insurance Law § 5102 (d): Plaintiff sustained a significant disfigurement as a result of the accident in the form of surgical scarring on the anterior aspect of his neck; plaintiff sustained a permanent loss of use of a body organ, member, function or system; plaintiff sustained a permanent consequential limitation of use of body organ or member in his cervical spine; and plaintiff sustained a significant limitation of use of a body function or system in his cervical spine. (Exhibit A - Plaintiff’s Second Supplemental Bill of Particulars dated May 20, 2024). 26. To the extent that Defendant's motion is predicated on its claim that Plaintiff's injuries are related to degenerative conditions that are not causally related to the subject motor vehicle collision, Dr. Popper affirms that based upon the medical records and objectively measured significant range of motion loss, it is his opinion within a reasonable degree of medical certainty that the motor vehicle collision that occurred on September 20, 2021 was the competent producing cause of Mr. Rozycki neck and right shoulder pain immediately following the rear-end crash. (Exhibit B - Popper Aff.). Dr. Popper also affirms within a reasonable degree of medical certainty, that Craig S. Rozycki suffered an acute, traumatically induced injury to his cervical spine, specifically, cervical sprains and strains and resulting spinal cord compression and radicular symptoms were caused and greatly exacerbated by the trauma of the September 20, 2021 motor vehicle collision. (Id.). It is further his medical expert opinion, within a reasonable degree of medical certainty, that all of the medical treatment, including the three-level cervical fusion procedure that he performed on April 11, 2022, were medically necessary and causally related to 9 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 the injuries Mr. Rozycki sustained as a result of the motor vehicle collision that occurred on September 20, 2021. (Id.). Additionally, it is his medical opinion, within a reasonable degree of medical certainty, that Mr. Rozycki will have permanent range of motion losses, in his cervical spine as a result of the motor vehicle collision that occurred on September 20, 2021, that necessitated the cervical fusion procedure. (Id.). 27. Therefore, Dr. Popper concludes that within a reasonable degree of medical certainty, that as a result of the injuries Mr. Rozycki sustained from the September 20, 2021 motor vehicle crash he sustained a “serious injury” as defined by New York Insurance Law Section 5102 (d) in the form of a permanent consequential limitation of use of a body system (musculoskeletal and neurological system, i.e., cervical spine) due to permanent range of motion losses in the cervical spine; that as a result of the injuries Mr. Rozycki sustained from the September 20, 2021 motor vehicle crash he sustained a “serious injury” as defined by New York Insurance Law Section 5102 (d) in the form of a significant limitation of use of a body function of system (musculoskeletal and neurological system, i.e., cervical spine) due to permanent range of motion losses in the cervical spine. (Exhibit B). 28. Thus, the issue distills to whether there is a question of fact as to the existence and extent of any injuries, or any aggravation or exacerbation of pre-existing injuries, causally related to the motor vehicle accident. 29. In order to establish a permanent consequential limitation or a significant limitation of use, the medical evidence submitted must contain objective, quantitative evidence with respect to diminished range of motion or a qualitative assessment comparing the plaintiff’s present limitations to the normal function, purpose and use of the affected body organ, member, function or system. (See Accompanying Memorandum of Law). 10 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 30. Here Dr. Petroski’s and Dr. Mills’s documented and objectively measured significant diminished range of motion in plaintiff’s cervical spine, measured even before the necessary and casually relate cervical fusion surgery, actually serves to support Plaintiff’s claim of a serious injury such that Defendants are not entitled to summary judgment dismissing the Plaintiff’s claim of a serious injury. 31. Significantly, whereas here, a defendant has raised the argument that the plaintiff suffered from preexisting degenerative disc disease as demonstrated through MRI finding, it has been aptly held that an explanation that the plaintiff was previously asymptomatic and the accident aggravated an underlying pre-existing condition, rendering the plaintiff symptomatic, is sufficient to defeat defendant’s motion. (See Accompanying Memorandum of Law) 32. In this case, as demonstrated through his records, and the affirmation of Dr. Popper, Mr. Rozycki never had any neck pain or pain radiating from his neck into his back before the motor vehicle collision of September 20, 2021. (Exhibit B). Dr. Popper opines that while the MRI showed degenerative changes in his spine, these changes were asymptomatic up until he was hit from behind in the car crash on September 20, 2021. (Exhibit B). Accordingly, where the record demonstrates that Plaintiff was previously asymptomatic and the accident aggravated an underlying pre-existing condition, rendering the plaintiff symptomatic, this is sufficient to establish causation and defeat defendant’s motion. (See Accompanying Memorandum of Law) 33. Here, Dr. Poppers opined, that within a reasonable degree of medical certainty, that as a result of the injuries Mr. Rozycki sustained from the September 20, 2021 vehicle crash, he sustained a “serious injury” as defined by New York Insurance Law Section 5102 (d). (Exhibit B) 11 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 34. Further, the cervical range of motion findings of Dr. Mills and Dr. Petroski, objectively measured with a goniometer, represent significant range of motion loss from the normal ranges of motion. 35. Dr. Popper opined that as a result of the injuries Mr. Rozycki sustained from the September 20, 2021 motor vehicle collision she sustained a “serious injury” as defined by New York Insurance Law Section 5102 (d) in the form of a significant limitation of use of a body function of system (musculoskeletal and neurological system, i.e., cervical spine) due to permanent range of motion losses in the lumbar spine. (Exhibit B) 36. Here, Dr. Popper opined, with a reasonable degree of medical certainty, that Craig Rozycki sustained a “serious injury” as defined within 5102(d) of the Insurance Law, caused by the motor vehicle collision of September 20, 2021 in the form of a permanent injury to his cervical spine/neck as a result of the September 20, 2021 motor vehicle collision; that Mr. Rozycki suffers from a significant limitation of use of his cervical spine/neck and the musculoskeletal and motor and systems in that area; that Mr. Rozycki suffers from a permanent consequential limitation of use of his cervical spine and head; and that Mr. Rozycki has permanent, significant limitations of his cervical spine and head. (Exhibit B). 37. Dr. Popper asserts that when he examined Mr. Rozycki at their first appointment and performed some neurological testing, Mr. Rozycki had a positive Spurling sign, weakness in wrist extension and altered sensation in the C6 nerve distribution. All of these positive findings constitute objective medical evidence that Mr. Rozycki had nerve root compression in his cervical spine and were consistent with the MRI findings. Compression of the nerve root manifests as pain, which can cause radiating pain to other parts of the body like Mr. Rozycki experienced, and consequently also limits range of motion. Because Mr. Rozycki had no prior history of neck pain, 12 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 radiating pain, or limitations to his range of motion of his neck, it is Dr. Popper’s opinion, within a reasonable degree of medical certainty, that the motor vehicle collision of September 20, 2021, caused and greatly exacerbated the nerve root compression in Mr. Rozycki’s cervical spine causing him to suffer and experience pain, radiating pain and deficits in this cervical range of motion after the motor vehicle collision. (Exhibit B). 38. Dr. Popper further states that when he saw Mr. Rozycki on January 25, 2022, on examination he again had a positive Spurling sign, weak wrist extension and altered sensation in the C6 distribution. This time, he also had a positive Hoffman’s sign and triceps weakness which is further objective medical evidence of a spinal cord injury in the cervical region. Because these were all new symptoms that manifested only after the motor vehicle collision on September 20, 2021, it is Dr. Popper’s opinion, within a reasonable degree of medical certainty, that the motor vehicle collision caused and greatly exacerbated his spinal cord injury. (Exhibit B). 39. At that point, based upon the MRI findings, the positive neurological findings and the lack of any improvement through conservative treatment, Dr. Popper felt that Mr. Rozycki’s best treatment option was surgery. He recommended an anterior cervical discectomy and fusion (ACDF) surgery from the C4 level through the C7 level as well bilateral anterior osteotomies at C5-6 and C6-7 and the insertion of biomechanical spacers at C4-5, C5-6 and C6-7 and installation of a separate plate and screws on the anterior aspect of his neck. (Exhibit B). Mr. Rozycki underwent the surgery by Dr. Popper on April 11, 2022 at Nathan Littauer Hospital. (Exhibit B). 40. The cervical fusion procedure with internal fixation, necessitated by the motor vehicle collision of September 20, 2021, necessarily resulted in at least a 37.5% decrease from the normal in the range of motion of Mr. Rozycki’s cervical spine. (Exhibit B). 13 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 41. It is Dr. Popper’s opinion, to a reasonable degree of medical certainty, that the cervical sprains and strains and resulting spinal cord compression and radicular symptoms were caused and greatly exacerbated by the trauma of the September 20, 2021 motor vehicle collision. It is also his opinion, to a reasonable degree of medical certainty, that the trauma of the September 20, 2021 motor vehicle collision caused a stretching/tearing of the ligaments and muscles in Mr. Rozyckis’s neck that disrupted the previous stability there, as he had been asymptomatic before the motor vehicle collision on September 20, 2021, and directly caused the post-collision spinal cord compression described above (which necessitated surgery). It is further Dr. Popper’s opinion, to a reasonable degree of medical certainty, that, absent the trauma of this motor vehicle collision, Mr. Rozycki would not have required surgery. It is also his opinion, to a reasonable degree of medical certainty, that absent the trauma of this motor vehicle collision, the post-collision symptoms Mr. Rozycki experienced would not have surfaced and he would have remained asymptomatic. (Exhibit B). 42. A court deciding a summary judgment motion should not make credibility determinations when competing expert opinions are offered. (See Accompanying Memorandum of Law). Indeed, it is well settled that conflicts in the evidence on a factual issue, including dueling expert witness opinions, may not be resolved on summary judgement, as the evaluation of competing expert opinions falls to the jury. (See Accompanying Memorandum of Law). 43. In short, in this action, Plaintiff’s treating physician has provided sufficient proof to demonstrate that Mr. Rozycki sustained a “serious injury” as defined by Insurance Law 5102(d) causally related to the crash. As such, Defendants’ motion must be denied. 14 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 POINT III PLAINTIFF DID SUSTAIN A QUALIFYING “SERIOUS INJURY”, AS DEFINED BY INSURANCE LAW § 5102 (D), AS A MATTER OF LAW 44. Plaintiff has submitted proof in admissible form, through the affirmation of Dr. Joseph Popper, that he sustained a “serious injury” as defined by Insurance Law § 5102(d). As outlined above, Dr. Popper opines that based upon objective medical evidence and his examinations and treatment of Mr. Rozycki, that Mr. Rozycki sustained a significant limitation of use of use cervical spine and a permanent consequential limitation of use of his cervical spine as a direct result of the subject motor vehicle collision. 45. There is no sufficient contrary medical evidence to raise a question of fact that he sustained a qualifying “serious injury”. The IME reports submitted by Defendants were drafted prior to Plaintiff’s 3 level cervical fusion and do not address the permanent and significantly diminished range of motion he now has to live with as a result. These IME reports acknowledge that he sustained a cervical injury and that he required further treatment but dismissively relate his ongoing issues to degenerative conditions without commenting on the fact that his neck had been asymptomatic for his entire life prior to the crash. 46. Plaintiff is therefore entitled to an Order finding, as a matter of law, that he sustained a qualifying “serious injury” as a result of the subject motor vehicle collision. WHEREFORE, Plaintiff respectfully requests an Order, 1.) denying Defendants’ motion for summary judgment in its entirety and 2.) granting summary judgment in favor of Plaintiff finding that he sustained a qualifying “serious injury” as defined by Insurance Law § 5102(d) as a result of the subject motor vehicle collision and for such other and further relief as the Court deems just and proper. 15 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 Dated: August 28, 2024 BY: ____________________________________ Patrick D. Slade, Esq. HARDING MAZZOTTI, LLP Attorneys for Plaintiff 1 Wall Street P.O. Box 15141 Albany, NY 12212-5141 (518) 862-1200 Patrick.Slade@1800LAW1010.com 16 of 17FILED: ONEIDA COUNTY CLERK 08/28/2024 10:00 AM INDEX NO. EFCA2023-001384NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/28/2024 CERTIFICATION OF WORD COUNT Pursuant to section 202.8-b of the Uniform Civil Rules, I hereby certify that the number of words in this document is 4,759 words, and the document complies with the work count limit of 7,000, exclusive of caption and signature lines. I have relied upon the word count of the word- processing system used to prepare the document. Dated: August 28, 2024 __________________________________ Patrick D. Slade, Esq. 17 of 17
Related Contentin Oneida County
Case
SHANNE,VALERIE v. BEARD,MICHAEL
Mar 03, 2015 |Clark, Hon. Bernadette T. |Tort-Motor Vehicle |Tort-Motor Vehicle |CA2011-000950
Case
John Doe v. The House Of Good Shepherd, Catholic Church Of St. John The Baptist
Aug 14, 2020 |Jeffrey Tait |Torts - Child Victims Act |Torts - Child Victims Act |EFCA2020-001619
Case
TODD,PATRICIA M/WILLIAM R TODD v. ZIMBLER,DONALD L/T.C.PETERS PRINTIN
Jan 19, 2018 |Gall, Hon. Erin P. |Tort-Motor Vehicle |Tort-Motor Vehicle |CA2017-002599
Case
CARDONA,SAMUEL/CHRISTINE CARDONA v. SANTIAGO,ZULMA I/JOSEPH J TIMPANOAS ADMI
Sep 30, 2015 |Clark, Hon. Bernadette T. |Tort-Motor Vehicle |Tort-Motor Vehicle |CA2014-001798
Case
PEKMEZ,RASEMA/ESAD PEKMEZ v. NAGI,ZAKARIA/MANSOOR NAGI
Mar 17, 2014 |Hester, Hon. Samuel D. |Tort-Motor Vehicle |Tort-Motor Vehicle |CA2011-000810A
Case
DAMSKY,BARRY/CYNTHIA DAMSKY v. THOMAS,ROBERT L
Apr 08, 2014 |MacRae, Hon. Patrick F. |Tort-Motor Vehicle |Tort-Motor Vehicle |CA2013-000692
Case
Julia K. Collins v. County Of Oneida
Aug 21, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |EFCA2024-002340
Case
ALVAREZ,CASIANO/ANA ABREU v. MILLER,RANDY J/DEER VIEW FARMS INC
May 23, 2016 |MacRae, Hon. Patrick F. |Tort-Motor Vehicle |Tort-Motor Vehicle |CA2015-001838
Case
Jan 26, 2001 |Siegel, Hon. Norman I. |Tort-Motor Vehicle |Tort-Motor Vehicle |00-0959
Ruling
Janet Mlynar vs California Earthquake Authority, et al
Aug 20, 2024 |19CV03844
19CV03844MLYNAR v. CALIFORNIA EARTHQUAKE AUTHORITY et al PLAINTIFF’S MOTION FOR PROTECTIVE ORDER Plaintiff’s motion for a protective order is denied. “Where a party must resort to thecourts, ‘the burden is on the party seeking the protective order to show good cause for whateverorder is sought.’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2016) 223Cal.App.4th 261, 318.) Plaintiff has not demonstrated good cause for a protective order to haltthe deposition of David Bonowitz. I. BACKGROUND AND MOTION This case stems from the 2014 Napa earthquake. Plaintiff Janet Mlynar’s (“Mlynar”)home was insured for earthquake damage by CEA and CSAA. CEA issued a homeowner’spolicy to Mlynar thought its participating insurer, CSAA. After the earthquake, Mlynarsubmitted an earthquake claim under the CEA policy. Defendant Ronald Cook is an attorneyretained by CSAA to assist regarding the earthquake claim. The claim, for a variety of contestedreasons, was not resolved right away but instead there were numerous inspections regarding thescope and extent of the alleged damage to the home. Checks were issued to Mlynar but nevernegotiated by her, and again, the reasons why are in dispute. The claim also went through anappraisal process. In March 2023, defendant CEA subpoenaed certain documents of Mr. Bonowitz, astructural engineer who was previously hired by Mlynar in 2016; a copy of the subpoena wasserved on plaintiff’s counsel. Mr. Bonowitz produced the documents requested. Mlynar did notobject. (Dec. of Amato ¶ 3.) CEA then noticed his deposition, serving the notice on April 24,2024. Mlynar did not object. (Dec. of Amato at ¶ 5, Ex. 4.) The deposition began on May 10,2024, and lasted about an hour before Mr. Dobrin, Mlynar’s counsel, halted the deposition,stating Mlynar’s former counsel, Mr. Greenburg, may have intended Mr. Bonowitz to beconsidered a retained expert and that his [Mr. Bonowitz’s] prior work on the case was part ofconfidential settlement negotiations. He indicated his intention to move for a protective order.Mlynar filed this motion on July 18, 2024. Mlynar moves for a protective order pursuant to Code of Civil Procedure section2025.420, subd. (a)-(b), seeking an order that the deposition of Mr. Bonowitz, not take placeunless Mlynar discloses him as an expert witness for trial. Mlynar asserts a protective order is Page 1 of 6necessary to protect her from “unwarranted annoyance”, “oppression”, or “undue burden”. Shecontends Mr. Bonowitz was her expert consultant for the sole purpose of confidential settlementcommunications with CEA and CSAA. According to Mlynar, during the claim’s adjustmentprocess, the parties’ experts attempted to agree upon a “repair protocol” so that she could receiveCEA funds to start repairs on her home. The parties could not reach an agreement and proceededthrough the JAMS appraisal process. Mr. Dobrin attaches the following in support of Mlynar’s motion, along with requests forjudicial notice: • Exhibit A is an 11/22/16 email from Mr. Greenburg to defendant Cook which states “Confidential Settlement Communication” and enclosed Mr. Bonowitz’s schematic for removal of plaster walls at the property. • Exhibit B is a recent email chain concerning the deposition of Mr. Bonowitz. • Exhibit C is an email dated 9/26/17, with the subject line “Confidential Settlement Communication.” • Exhibit D are two emails dated 10/4/17 between defendant Cook and Greenburg with the subject line “Confidential Settlement Communication.” • Exhibit E is an email dated 8/8/18 from Mr. Greenburg to CSAA adjustor Vicki Miller with the subject line “Confidential Settlement Communication”, attaching Mlynar’s contractor/architect’s [Avelar] repair estimate and scope of work. • Exhibit F is a partial copy of the subpoena served on Mr. Bonowitz in 2023 by CEA. • Exhibit G is a letter dated 8/7/18 from Mr. Greenburg to CSAA. II. OPPOSITION BY CEA The opposition sets out four arguments: (1) Mr. Bonowitz was Mlynar’s engineeringconsultant during the presentation of the earthquake claim – not during the lawsuit and he wasnot retained in anticipation of the appraisal proceeding; (2) Mr. Bonowitz’s testimony is notrelated to a settlement offer or demand. He is expected to confirm his 2018 writing in which headvised Mlynar there was no structural damage to her property due to the earthquake; (3) theresults of Mr. Bonowitz’s destructive testing of the framing beneath the plaster walls at Mlynar’sproperty was intended to be shared with CSAA, which was adjusting the claim; and (4) to theextent there was an attorney-work product protection of Mr. Bonowitz’s testimony, Mlynarwaived such protections when her attorneys did not object to the production of his entire file inresponse to a subpoena. III. DISCUSSION Page 2 of 6 Code of Civil Procedure section 2025.420, subdivision (a) states, “[b]efore, during, orafter a deposition, any party, any deponent, or any other affected natural person or organizationmay promptly move for a protective order. The motion shall be accompanied by a meet andconfer declaration under Section 2016.040.” Subdivision (b) states, in part, “[t]he court, for goodcause shown, may make any order that justice requires to protect any party, deponent, or othernatural person or organization from unwarranted annoyance, embarrassment, or oppression, orundue burden and expense.” California Evidence Code section 1152, Admissibility of Evidence subdivision (a) states,in part, that “[e]vidence that a person has, in compromise or from humanitarian motives,furnished or offered or promised to furnish money or any other thing, act, or service to anotherwho has sustained or will sustain or claims that he or she has sustained or will sustain loss ordamage, as well as any conduct or statements made in negotiation thereof, is inadmissible toprove his or her liability for the loss or damage or any part of it.” First, the emails referenced by Mlynar, though titled “Confidential SettlementCommunications” do not appear to include any specific offers to settle her claim. Second, CEApoints out that this section of the Evidence Code pertains to the admissibility of evidence, anddoes not reference limiting the scope of a deposition. Mlynar has not provided a basis for herassertion that Evidence Code section 1152 insulates the deposition testimony of a third-partywitness. Further, even assuming any protections existed for Mr. Bonowitz’s work and testimony,there have been multiple instances of waiver. “[T]he attorney work product privilege is subject tothe same waiver principles applied to the attorney-client privilege. ‘Waiver of work productprotection, though not expressly defined by statute, is generally found under the same set ofcirc*mstances as waiver of the attorney-client privilege—by failing to assert the protection, bytendering certain issues, and by conduct inconsistent with claiming the protection. Waiveralso occurs by an attorney's voluntary disclosure or consent to disclosure of the writing to aperson other than the client who has no interest in maintaining the confidentiality of the contentsof the writing.’[Citations.] Thus disclosure to a third party will waive the work product privilegeunless the disclosure was coerced.” (Regents of University of California v. Superior Court (2008)165 Cal. App. 4th 672, 678-679.) (Emphasis added.) In March 2023, CEA subpoenaed Mr. Bonowitz’s files related to his work at Mlynar’sproperty and a copy of the subpoena was served on her counsel. Mr. Bonowitz produced thedocuments requested. Mlynar did not object. (Dec. of Amato ¶ 3.) His deposition was noticed forApril 24, 2024, with all counsel, including Mlynar’s attorney, copied and again, Mlynar did notobject. (Dec. of Amato at ¶ 5, Ex. 4.) Finally, Mr. Bonowitz’s site visit notes were already Page 3 of 6disseminated as exhibits to a deposition of plaintiff’s contractor and as an exhibit to CEA’smotion for summary judgment. The motion is denied. The court declines to award sanctions. PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE FILED 7/18/24 1. Order on Motion for Summary Judgment in this case. Denied. The court need not take judicial notice of records in its own case file. 2. Declaration of Janet Mlynar in support of her Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 3. Declaration of Jon-Marc Dobrin in Support of Plaintiff’s Responses to Separate Statement of Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. 4. Plaintiff Janet Mlynar’s Response to Undisputed Material Facts of Defendants CSAA Insurance Exchange and California Earthquake Authority in Support of their Motions for Summary Judgment and/or Adjudication. Denied. The court need not take judicial notice of records in its own case file. PLAINTIFF JANET MLYNAR’S ADDENDUM TO REQUEST FOR JUDICIAL NOTICE FILED 7/30/24 Ex. UU Redacted emails and report of defendants’ appraiser, Thad Eaton. Denied. PLAINTIFF JANET MLYNAR’S SECOND ADDENDUM REQUEST FOR JUDICIAL NOTICE FILED 8/9/24 Ex. A copies of CSAA’s claim file produced in this action regarding CSAA’s redacted communications with its contractors Shaun Piazza and its engineer Peter Shandlin and the “Confidential Settlement Communication” from Mlynar’s attorney Greenburg with CSAA adjustor Vikki Miller. Denied.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 the Page 4 of 6prevailing 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.
Ruling
Knox vs. Mohamud, et al.
Aug 21, 2024 |23CV-0202275
KNOX VS. MOHAMUD, ET AL.Case Number: 23CV-0202275Tentative Ruling on Order to Show Cause Re: Sanctions: An Order to Show Cause Re: Sanctions issued toPlaintiff Jamaal Knox and Counsel Beverly Law Firm for failing to appear at the trial setting conference on June17, 2024. The June 17, 2024 hearing date was set by the April 29, 2024 tentative ruling which became the finalorder of the Court. Counsel was present when the April 29, 2024 hearing was calendared. Despite being timelynoticed of the Order to Show Cause Re: Sanctions, Plaintiff did not file a written response. Ther Court thereforeissues sanctions as against Plaintiff Jamaal Knox and Counsel Beverly Law Firm, in the amount of $250.00. Thismorning’s Review Hearing at 9:00 a.m. is confirmed.****************************************************************************************** 9:00 a.m. – Review Hearings******************************************************************************************
Ruling
KASSANDRA GOMEZ ET AL VS. GARY F. GROSSMAN ET AL
Aug 21, 2024 |CGC23608087
Matter on the Discovery Calendar for Wednesday, Aug-21-2024, Line 4, CATHERINE DELCIN'S Motion Of Attorney For An Order To Vacate And Set Aside Order Under Cal. Civ. Proc. 473. [PART ONE OF TWO] Pro Tem Judge Matthew Kahn, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: The motion is GRANTED. Based on the materials submitted with the motion, it does not appear that, at the time Pro Tem Deol granted Cross-Complainants' motion for sanctions on June 20, 2024, Pro Tem Deol had been apprised by counsel for Cross-Complainants that Ms. Declin's motion to be relieved as counsel of record for Embattle Protective Services ("Embattle") had been granted on May 15, 2024. It likewise appears, based on the materials submitted with the motion, that Ms. Declin did not have notice of Pro Tem Deol's tentative ruling granting said motion nor the opportunity to be heard to contest it. The notice of motion did state that sanctions would be sought against Ms. Declin in her capacity as Embattle's counsel, but by the time the motion came on for hearing Ms. Declin had not been Embattle's counsel for over a month and so reasonably would not have expected the motion to continue to seek relief as to her personally. While Cross-Complainants contend that Ms. Declin was only relieved as counsel for Embattle in its capacity as a "Defendant," but not in its capacity as a "Cross-Defendant," the materials submitted with the motion do not support that interpretation. Further, it appears that, before her motion to be relieved as counsel of record for Embattle was granted, Ms. Declin acted appropriately to protect her client's interests by serving objections-only discovery responses in a period when her client would not respond to her in order to avoid her client waiving its right to object. Accordingly, good cause exists to vacate and set aside Pro Tem Deol's June 20, 2024 sanctions order under Code of Civil Procedure section 473, subdivision b. [END OF PART ONE OF TWO] =(525/JPT)
Ruling
Animal Legal Defense Fund vs Foster Poultry Farms
Aug 21, 2024 |20CV-02493
20CV-02493 Animal Legal Defense Fund v. Foster Poultry FarmsThe Motion to Compel Real Party In Interest City of Livingston to Provide Further DiscoveryResponses to Plaintiff’s Request for Admission, Set One and Request for Monetary Sanctions inthe Amount of $1,405.05, filed June 21, 2024.The Joint Statement Filed by the Parties on August 14, 2024, advises the Court that allmatters relating to this motion have been resolved except the issue of sanctions. TheCourt compliments the parties on resolving the discovery issues and GRANTS theRequest for sanctions in the amount of $1,405.05 on the grounds that the bulk of theissues raised in Opposition by Real Party in Interest, the City of Livingston were litigatedwithout substantial justification. Sanctions will be paid by September 30, 2024.Plaintiff's Motion to Compel Real Party in Interest The City of Livingston to Provide FurtherResponses to Interrogatories Set One, and Request for Monetary Sanctions in the Amount of$2,374.91 filed June 21, 2024The Joint Statement Filed by the Parties on August 14, 2024, advises the Court that allmatters relating to this motion have been resolved except the issue of sanctions. TheCourt compliments the parties on resolving the discovery issues and GRANTS theRequest for sanctions in the amount of $2,374.91 on the grounds that the bulk of theissues raised in Opposition by Real Party in Interest, the City of Livingston were litigatedwithout substantial justification. Sanctions will be paid by September 30, 2024.Plaintiff’s Motion to Compel Real Party in Interest The City of Livingston to Provide FurtherDiscovery Responses to Plaintiff’s Second Request for Production of Documents and Requestfor Monetary Sanctions of $4,902 filed June 21, 2024The Joint Statement Filed by the Parties on August 14, 2024, advises the Court that allmatters relating to this motion have been resolved except the issue of sanctions. TheCourt compliments the parties on resolving the discovery issues and GRANTS theRequest for sanctions in the amount of $4,902.00 on the grounds that the bulk of theissues raised in Opposition by Real Party in Interest, the City of Livingston were litigatedwithout substantial justification. Sanctions will be paid by September 30, 2024.Defendant’s Motion to Seal Exhibits Filed with Plaintiff’s Motion for Summary JudgmentThe Motion to Seal Exhibits filed with Plaintiff’s Motion for Summary Judgment isGRANTED without prejudice to the right to unseal once the lawfulness of Defendant’sprocesses have been resolved. The Court conditioned Plaintiff’s authorization toconduct discovery of private information by issuing an appropriate protective orderwhich is effectively defeated by attaching that discovery to documents available to thepublic. The purpose of the order limiting disclosure to the sensitive information toPlaintiff was for the sole purpose of permitting a fair adjudication of Plaintiff’s claims, notas a device for disclosing non-public information to the general public. Accordingly, theMotion to Seal Exhibit attached to Plaintiff’s Motion for Summary Adjudication isGRANTED without prejudice to the right to unseal certain documents once thelawfulness of Plaintiff’s processes have determined. SUPERIOR COURT OF CALIFORNIA COUNTY OF MERCED Mandatory Settlement Conference Hon. Brian L. McCabe Courtroom 8 627 W. 21st Street, Merced Wednesday, August 21, 2024 9:00 a.m. The following tentative rulings shall become the ruling of the court unless a party gives notice of intention to appear as follows: 1. You must call (209) 725-4111 to notify the court of your intent to appear. 2. You must give notice to all other parties before 4:00 p.m. of your intent to appear. Per California Rules of Court, rule 3.1308(a)(1), failure to do both items 1 and 2 will result in no oral argument. Note: Notifying Court Call (the court’s telephonic appearance provider) of your intent to appear does not satisfy the requirement of notifying the court. IMPORTANT: Court Reporters will NOT be provided; parties wanting a hearing transcript must make their own arrangements.Case No. Title / Description
Ruling
FERNEY PINTO SANTANDER VS EMMA REYES, ET AL.
Aug 21, 2024 |23NWCV00250
Case Number: 23NWCV00250 Hearing Date: August 21, 2024 Dept: SEC SANTANDER VS EMMA REYESCASE NO.: 23NWCV00250 HEARING:¿ 8/21/24 @ 10:30 A.M. #5 TENTATIVE ORDER Defendants motion for leave to file cross-complaint is DENIED. Moving party to give notice. This is a habitability action. Defendant moves for leave to file a cross-complaint. Legal Standard A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint. (Code Civ. Proc., §§ 412.20(a)(3), 428.50(a), 432.10.) Any other cross-complaint may be filed at any time before the court has set a trial date. (Code Civ. Proc., § 428.50, subd. (b).) Permissive Cross-Complaint If a party fails to file a cross-complaint, whether through oversight, inadvertence, mistake, neglect, or other cause within the time limits described above, must obtain permission from the court to file the cross-complaint. (Code Civ. Proc., §§ 426.50, 428.50, subd. (c).) The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. (Code Civ. Proc., § 426.50.) This subdivision shall be liberally construed to avoid forfeiture of causes of action. (Ibid.) Compulsory Cross-Complaint Cross-claims against complainants arising from the same transaction or series thereof, existing at the time of filing an answer, are compulsory. (Code Civ. Proc., § 426.30, subd. (a); Al Holding Co. v. OBrien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313-14.) Leave to file a cross-complaint must be granted absent bad faith. (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 99.) A determination that the petitioner acted in bad faith may be premised on substantial injustice or prejudice to the opposing party. (Foot's Transfer & Storage Co. v. Super. Ct. (1980) 114 Cal.App.3d 897, 902.) Discussion Here, Defendant does not state what causes of action she wants to assert in a cross-complaint. Thus, based on Defendants papers, the Court cannot know whether the proposed cross-complaint is permissive or compulsory. Assuming Defendants cross-complaint is permissive, Defendant does not state if not filing the cross-complaint earlier was due to her oversight, inadvertence, mistake, neglect, or another reason. But Defendant asserts that Plaintiff will not suffer prejudice because this case is still in its discovery stage. In opposition, Plaintiff states that Defendant has not filed and served a proposed cross-complaint. The Court does not have enough information about why Defendant wants to file a cross-complaint or what the cross-complaint will assert. Thus, it cannot determine whether Defendant is acting in bad faith. The motion is DENIED.
Ruling
KYUNG SIL KIM, AN INDIVIDUAL VS HYO RANG LEE, M.D., AN INDIVIDUAL
Aug 21, 2024 |Renee C. Reyna |21STCV20011
Case Number: 21STCV20011 Hearing Date: August 21, 2024 Dept: 29 Kim v. Lee 21STCV20011 Defendants Motion for Terminating and Evidence Sanctions Tentative The request for terminating sanctions is denied. The request for evidence sanctions is granted in part. Background On May 27, 2021, Kyung Sil Kim (Plaintiff) filed a complaint against Hyo Rang Lee, M.D. (Defendant) and Does 1 to 100 for Medical Malpractice/Professional Negligence arising from a procedure performed on February 25, 2020. On October 3, 2023, Defendant filed his answer. On March 15, 2024, the Court granted Defendants motion for an order deeming Plaintiff to have admitted the truth of the matters specified in Defendants Requests for Admission (Set One). On April 2, 2024, the Court granted Defendants motion to compel Plaintiff to provide initial responses to Defendants Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production (Set One). Plaintiff did not comply with this order. (Rubaum Decl., ¶ 3.) On July 17, 2024, Defendant filed what appear to be two identical motions for evidentiary and terminating sanctions. No opposition has been filed. Legal Standard When a plaintiff fails to obey an order compelling answers to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2030.290, subd. (c).) When a plaintiff fails to obey an order compelling responses to requests for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2031.300, subd. (c).) In Chapter 7 of the Civil Discovery Act, section 2023.030 provides for monetary, evidence, issue, and terminating sanctions for any misuse of the discovery process, [t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title. A misuse of the discovery process is defined to include (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).) The Civil Discovery Act provides for an escalating and incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Lopez, supra, 246 Cal.App.4th at p. 604.) But where discovery violations are 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. (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.) The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Courts orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.) A terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified. (Newland, supra, 40 Cal.App.4th at p. 615.) Discussion Plaintiff has violated a court order and has failed to comply with the obligations imposed on all parties under the Civil Discovery Act to respond to written discovery. This is substantial discovery abuse. Serious sanctions are warranted for this conduct. The Court also notes that Plaintiff did not oppose the last two discovery motions and did not appear at either hearing. Plaintiff did not oppose this motion, even though Defendants seeks terminating sanctions. Plaintiff has not appeared at a court hearing since October 2023. After more than three years of litigation, there is an open question as to whether Plaintiff has essentially abandoned this matter. For terminating sanctions, however, a party must present evidence of repeated and willful misuse of the discovery process, as well as evidence that less severe sanctions have not (or likely will not) lead to compliance with the discovery rules. Defendant has not, on this record at this time, made such a showing. There has not been a showing of a history or pattern of willful abuse or repeated violations that have not been (or cannot be) cured by lesser sanctions. Moreover, a discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge, supra, 238 Cal.App.4th at p. 1194.) Here, at this time, a terminating sanction would create such a windfall for Defendant. Accordingly, Defendants requests for terminating sanctions are DENIED. In the alternative, Defendant seeks an order imposing an evidence sanction on Plaintiff. Given Plaintiffs failure to provide even initial responses to basic discovery, such an order is appropriate to protect Defendant from unfair prejudice and proportional to Plaintiffs misconduct. The request is granted in part. The Court orders, as an evidence sanction, that Plaintiff may not use, at or before trial, any document responsive to Defendants Requests for Production (Set One), Nos. 1-49, that Plaintiff has not produced in discovery in this matter prior to August 21, 2024. The denial of Defendants request for terminating sanctions and further evidence sanctions is denied without prejudice; Defendant may renew the request if there is additional misuse of the discovery process by Plaintiff. Conclusion Defendant Hyo Rang Lee, M.D.s motion for sanctions is GRANTED IN PART and DENIED IN PART. The Court DENIES Defendants request for terminating sanctions The Court GRANTS in part Defendants request for evidentiary sanctions. The Court orders, as an evidence sanction, that Plaintiff may not use, at or before trial, any document responsive to Defendants Requests for Production (Set One), Nos. 1-49, that Plaintiff has not produced in discovery in this matter prior to August 21, 2024. Moving Party is ordered to give notice.
Ruling
MARIO RODRIGUEZ VIRGEN, ET AL. VS UBER TECHNOLOGIES, INC., ET AL.
Aug 19, 2024 |23STCV20913
Case Number: 23STCV20913 Hearing Date: August 19, 2024 Dept: 28 Having considered the moving, opposition, and reply papers, the Court rules as follows. BACKGROUND On August 30, 2023, Plaintiffs Mario Rodriguez Virgen (Plaintiff) and Brayan Rodriguez Ramirez filed this action against Defendants Uber Technologies, Inc. (Uber), Rasier, LLC (Rasier), Rasier-CA, LLC (Rasier-CA), Jensen Alan Jimerson (Jimerson), Tatiana Ikonnikova (Ikonnikova), and Does 1-100 for negligence and negligence per se. On November 6, 2023, Uber, Rasier, and Rasier-CA filed an answer. On November 9, 2023, the Court dismissed Ikonnikova without prejudice at Plaintiffs request. On November 15, 2023, Jimerson filed an answer. On January 22, 2024, the Court signed the parties stipulated protective order. On June 13, 2024, Jimerson filed a motion to compel Plaintiff to attend a neuropsychological examination or in the alternative to exclude experts. The motion was set for hearing on July 15, 2024. On July 1, 2024, Plaintiff filed an opposition. On July 8, 2024, Jimerson filed a reply. The Court continued the hearing to August 19, 2024. Trial is currently scheduled for February 26, 2025. PARTIES REQUESTS Jimerson asks the Court to compel Plaintiff to appear for a neuropsychological exam with David M. Lechuga, Ph. D., at 13 Orchard Road, Suite 103, Lake Forest, CA 92630, on a mutually agreeable date or in the alternative to exclude Plaintiffs treating or expert physicians. Plaintiff asks the Court to order that Plaintiff may record the entire examination using audio technology and that Jimerson must provide Plaintiffs counsel the raw data within 30 days of the examination. LEGAL STANDARD Code of Civil Procedure section 2032.310 provides: (a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action. (Code Civ. Proc., § 2032.310.) Code of Civil Procedure section 2032.320 provides in part: (a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. * * * (d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (Code Civ. Proc., § 2032.320, subds. (a), (d).) DISCUSSION A. Neuropsychological examination Jimerson noticed a neuropsychological examination of Plaintiff with neuropsychologist David M. Lechuga, Ph. D. Plaintiff agreed to appear for a neuropsychological examination but only on the condition that Jimerson produce the raw data from the examination and an audio recording of the examination to Plaintiffs attorney. Jimerson asks the Court to compel Plaintiff to attend a neuropsychological examination without requiring Jimerson to comply with Plaintiffs requested conditions. It is undisputed that Plaintiff has placed his neuropsychological condition at issue, supporting Jimersons request for leave to conduct a neuropsychological examination. The Court finds good cause and grants Defendants motion for leave to conduct Plaintiffs neuropsychological examination, subject to the following conditions. B. Audio recording Jimerson contends: [A]s part of the diagnosis of a potential patient, confidential tests, developed by others, are utilized by Dr. Lechuga. These tests are protected by copyright and trade secrecy laws, as well as ethical requirements governing the practice of psychology, which prohibits the disclosure of the specific components of the test, including the recording of neuropsychological test administration procedures. These same laws and ethical requirements do not permit neuropsychologists like Dr. Lechuga to turn over raw data from the neuropsychological examination to legal counsel (plaintiff or defense), or to anyone who is not a licensed neuropsychologist. This would include prohibiting Plaintiffs Counsel or representative from recording the actual testing of Plaintiff. (Motion p. 12.) Code of Civil Procedure section 2032.530, subdivision (a), provides that The examiner and examinee shall have the right to record a mental examination by audio technology. (Code Civ. Proc., § 2032.530, subd. (a).) [S]ince section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording. (Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 837 (Randys Trucking).) By its terms, Code of Civil Procedure section 2032.530, subdivision (a), allows Plaintiff to use audio technology to record the examination without imposing any limitations. Jimerson cites no legal authority that would allow the Court to limit Plaintiffs rights under Code of Civil Procedure section 2032.530, subdivision (a). The Court orders that Plaintiff may record all portions of the mental examination by audio technology. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 8:1595, p.8I-25 [Both the examiner and the examinee have the right to record the entire examination by audio (but not video) technology].) The information contained in the audio recording will be governed by the stipulated protective order entered on January 22, 2024 (or another protective order to be submitted to the Court). C. Raw data In Randy's Trucking, supra, 91 Cal.App.5th 818, the trial court granted the defendants motion to compel the plaintiffs mental examination by a neuropsychologist. (Id. at p. 824.) The court denied the defendants request to transfer the testing information to the plaintiffs expert rather than the plaintiffs counsel. (Id. at p. 832.) Instead, the court ordered the neuropsychologist to provide an audio recording of the examination and all raw data to the plaintiffs counsel within 30 days after the examination subject to a protective order. (Ibid.) The defendants petitioned for a writ of mandate. (Id. at p. 825.) The Court of Appeal denied writ relief. (Randys Trucking, supra, 91 Cal.App.5th at p. 825.) The court observed, [t]here is no statutory authority . . . precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination. (Id. at p. 834, citing Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 271.) And given the trial courts broad discretion in discovery matters, the trial court . . . has the power to order disclosure of test materials and data to plaintiffs attorney. (Id. at p. 835.) Therefore, the trial court had discretion to order the production to the plaintiffs counsel of the raw data and audio recording. (Id. at p. 837.) The defendants argued the trial court abused its discretion because the need to protect the neuropsychologist from violating her ethical and professional obligations outweighed the plaintiffs need for the raw data and audio recording. (Randys Trucking, supra, 91 Cal.App.5th at p. 837.) But the neuropsychologist did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs attorney subject to a protective order. (Id. at pp. 837-838.) The Court of Appeal reasoned that, [w]ithout the raw data and audio recording, [the plaintiffs] cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologists opinion. (Randys Trucking, supra, 91 Cal.App.5th at p. 838.) Moreover, the plaintiffs should not be forced to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, the attorney must themselves possess more than a second-hand understanding of the information being scrutinized. (Ibid.) Here, Jimerson has submitted a declaration from Dr. Lechuga, which incorporates a Collective Statement on Importance of Protection of Psychological Testing Materials (Collective Statement). The Collective Statement asserts that [p]rotective orders issued by a judge are insufficient to ensure test security because attorneys are motivated to violate the protective order, disclosure even under a protective order creates opportunities for other non-psychologists to misuse the information, and enforcement of the protective order is impracticable. Plaintiff, on the other hand, asserts that he needs the raw data for the same reasons the Court of Appeal summarized in Randys Trucking: to prepare for an conduct an effective cross-examination of the defendant's expert. (Opposition p. 6, citing Randys Trucking, supra, 91 Cal.App.5th at p. 838.) The Court has weighed Dr. Lechugas concerns (which are based on an assumption that the protective order will be ineffective) against Plaintiffs need to prepare for and effectively conduct Dr. Lechugas cross-examination. The Court concludes that Plaintiff has a legitimate need for the raw data and Dr. Lechugas concerns about maintaining test security can be satisfied with a protective order. The Court exercises its discretion and orders release of the raw data to Plaintiffs attorney subject to the January 22, 2024 protective order (or another protective order to be submitted to the Court). D. Tests Dr. Lechuga may conduct only the following tests: Victoria System Validity Test (VSVT) Test of Memory Malingering (TOMM) Dot Counting Test (OCT) The b Test Green Memory Test (GMT) Validity Indicator Profile (VIP) Structured Inventory of Malingered Symptomatology (SIMS) Mini-Mental Status Examination (MMSE) Wechsler Adult Intelligence Scale - 4 (WAIS-IV) Wide Range Assessment Test - 4 (WRAT4) Wechsler Abbreviated Scale of Intelligence (WASHI) Wechsler Test of Adult Reading (WT AR) Reitan-Klave Sensory-Perceptual Examination Finger Tapping Test (FTT) Grooved Pegboard (GPB) Hand Dynamometer (HD) Multilingual Aphasia Examination (MAE) Boston Naming Test, Second Edition (BNTZ) Expressive Vocabulary Test - 2 (EVTZ) Peabody Picture Vocabulary Test - 4 (PPVT4) Visual Form Discrimination (VFD) Hooper Visual Organization Test (VOT) Rey Complex Figure Test (RCFT) California Verbal Learning Test - II (CVL T-3) Wechsler Memory Scale - IV (WMS-IV) Wide Range Assessment of Memory and Learning - 2 (WRAML-2) Color Trails Test (CTT) Trail Making Test, Part A and Part B (TMT A/B) Delis-Kaplan Executive Function Systems (D-KEFS) Conners Continuous Performance Test - Ill (CPT-3) Wisconsin Card Sorting Test (WCST) Ruff Neurobehavioral Inventory (RNBI) Neurobehavioral Functioning Inventory (NFI) Pain Patient Profile (P3) Minnesota Multiphasic Personality Inventory - 2 (MMPl-2) Minnesota Multiphasic Personality Inventory - 2 RF (MMPl-2RF) Neuropsi Atenci6n y Memoria Neuropsi Evaluaci6n Neuropsicolgica Breve en Espanol (Denominaci6n, Repetici6n, and Comprensi6n subtests) Personality Assessment Inventory (PAI) Trauma Symptom lnventory-2 (TSI) Detailed Assessment of Posttraumatic States (DAPS) Neuropsychological Assessment Battery (NAB) Neuropsychological Impairment Scale (NIS) Posttraumatic Diagnostic Scale (PDS) Posttraumatic Stress Disorder Checklist, 5th Edition (PCL-V) CONCLUSION The Court GRANTS in part Defendant Jensen Alan Jimersons motion for leave to conduct Plaintiff Mario Rodriguez Virgen neuropsychological examination with neuropsychologist David M. Lechuga, Ph. D., at 13 Orchard Road, Suite 103, Lake Forest, CA 92630, on a mutually agreeable date within 30 days of the hearing on this motion. The tests and procedures will be limited to those set forth above. Plaintiff Mario Rodriguez Virgen may record all portions of the neuropsychological examination by audio technology. The information contained in the audio recording will be governed by the stipulated protective order entered on January 22, 2024 (or another protective order to be submitted to the Court). Within 30 days of the examination, Defendant Jensen Alan Jimerson will produce to counsel for Plaintiff Mario Rodriguez Virgen the raw data from the neuropsychological examination, subject to the January 22, 2024 protective order (or another protective order to be submitted to the Court). Moving party is ordered to give notice of this ruling. Moving party is ordered to file the proof of service of this ruling within five days.
Ruling
ANNUNZIATA CRUPI VS BARKHORDARIAN LAW FIRM, A CALIFORNIA CORPORATION
Aug 21, 2024 |23SMCV05527
Case Number: 23SMCV05527 Hearing Date: August 21, 2024 Dept: 205 Superior Court of California County of Los Angeles West District Beverly Hills Courthouse / Department 205 ANNUNZIATA CRUPI, Plaintiff, v. BARKHORDARIAN LAW FIRM, et al., Defendants. Case No.: 23SMCV05527 Hearing Date: August 21, 2024 [TENTATIVE] ORDER RE: PLAINTIFFS MOTIONS TO VACATE JUDGMENT OF APRIL 16, 2024 AND APRIL 26, 2024 AND MOTIONS FOR SANCTIONS BACKGROUND This is a legal malpractice action. Plaintiff Annunziata Crupi hired Defendant Barkhordarian law firm to represent her in an employment dispute with the University of Southern California (USC). (Compl. ¶ 1.) Plaintiff alleged she had been wrongfully terminated by USC and also claimed whistleblower retaliation and discrimination. (Id.) Plaintiff alleges Defendant was negligent in its representation of her in the underlying employment case by acquiescing to arbitration when the arbitration agreement was not enforceable and was repudiated by USC; failing to properly investigate the amount of damages; failing to properly allege all available claims; providing unilateral discovery to USC during settlement negotiations; asking Plaintiff to sign a settlement agreement that would have deprived Plaintiff of rightfully acquired intellectual property, would have damaged Plaintiffs career and reputation and would have subjected her to self-incrimination; requiring Plaintiff to pay its fees when Plaintiff refused to sign the settlement agreement; failing to disclose its attorneys were associated with USC, and failing to request right to sue letters from the EEOC. (Id. ¶¶ 3-19, 40, 45.) The operative complaint alleges four claims for (1) legal malpractice, (2) breach of duty, (3) fee dispute, and (4) breach of contract. Plaintiff seeks financial damage, social status damage, loss of life enjoyment, physical and mental health damage, emotional damage, possible self-incrimination, possible future conviction [and] possible death. (Id. ¶34.) Plaintiff is appearing in pro per. This hearing is on Plaintiffs motions to vacate two orders, one dated April 16, 2024 setting the trial date for February 2, 2026, and the other dated April 26, 2024, sustaining in part and overruling in part Defendants demurrer. Plaintiff argues that as to the April 16, 2024 order, the Court improperly set trial two and a half years after the date the Complaint was filed. As to the April 26, 2024 order, Plaintiff argues the Court did not have authority to rule on the demurrer because it was not served on Plaintiff. This hearing is also on Plaintiffs motions for sanctions. Plaintiff contends Defendant failed to serve her with Defendants demurrer and motion to strike, resulting in Plaintiff having to expend time filing a request for continuance of the hearing on the demurrer and this motion for sanctions. Plaintiff seeks fees for time expended, service costs and emotional distress damages, totaling $5,000. DISCUSSION Plaintiffs motion to vacate the order setting the trial date is without merit. Plaintiff argues that the Court set the trial too far out, creating hardship because Plaintiff is impoverished. In setting the trial date, the Court properly considered the factors enumerated in Cal. Rules of Court Rule 3.729 as well as both parties case management statements, which in Plaintiffs case, does not even state any preference for a trial date. Plaintiffs motion to vacate the order sustaining in part and overruling in part Defendants demurrer is similarly without merit. The motion to vacate is a disguised motion for reconsideration, and as such, was required to be filed within 10 days of the notice of entry of the April 24, 2024 order. (Code Civ. Proc., §¿1008, subd. (a).) The April 24, 2024 order was served on Plaintiff by mail on April 24, 2024, which extends the 10 days by five calendar days. (Code Civ. Proc., §¿1013, subd. (a); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) [¶] 9:326.1).) So Plaintiff was required to file her motion for reconsideration by May 9, 2024. She filed her motion on May 23, 2024. Accordingly, it is untimely. Plaintiffs motions for sanctions are equally without merit. On April 19, 2024, Plaintiff filed three motions for sanctions, all seeking the same relief on the same grounds. The Court denied one of the motions on May 14, 2024. The Court denies the two other motions as duplicative of the other motion for sanctions on which the Court has already ruled. CONCLUSION Based on the foregoing, the Court DENIES Plaintiffs motions to vacate judgment entered April 16, 2024 and April 24, 2024 and DENIES Plaintiffs motions for sanctions. IT IS SO ORDERED. DATED: August 21, 2024 ___________________________ Edward B. Moreton, Jr. Judge of the Superior Court
Document
Violet Bienkowski, Bernard Bienkowski v. Christine Savicki
Aug 11, 2023 |Peter M |Torts - Motor Vehicle |Torts - Motor Vehicle |EFCA2023-002026
Document
Carley S. Green v. Steven M. Conley, Utica Municipal Housing Authority, Municipal Housing Authority Of The City Of Utica, People First- Chancellor/Broad, Llc
Apr 18, 2023 |Peter M |Torts - Motor Vehicle |Torts - Motor Vehicle |EFCA2023-001025
Document
Kandace L. Smith as Administrator of the ESTATE OF BROOKE L. SMITH, Deceased v. Zynowij A. Jackiw a/k/a ZYN JACKIW a/k/a ZEN JACKIE d/b/a JACKIW REALTY, Jackiw Z A Income Only Trust a/k/a Z A JACKIW INCOME ONLY TRUST, City Of Utica, County Of Oneida
Sep 03, 2021 |Bernadette Clark |Torts - Other Negligence (Premises Liability) |Torts - Other Negligence (Premises Liability) |EFCA2021-002173
Document
Mar 18, 2023 |James P. McClusky |Torts - Other (premises (Slip & Fall)) |Torts - Other (premises (Slip & Fall)) |EFCA2023-000651
Document
Michelle Smith, Thomas Smith Her Husband, Husband Her v. Emergency Physician Services Of New York, P.C., Faxton-St. Luke'S Healthcare, Emergency Department, Faxton-St. Luke'S Healthcare, Mohawk Valley Health System, Scott Brehaut Md, Santos Gonzales Md, Sean Phillips Pa
Aug 04, 2018 |Bernadette Clark |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |EFCA2018-002264
Document
John Jo Springer v. Slocum Dickson Medical Group, Pllc, John Doe
Jun 20, 2022 |Bernadette Clark |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |EFCA2022-001356
Document
Sep 10, 2020 |Erin P. Gall |Torts - Asbestos |Torts - Asbestos |EFCA2020-001854
Document
Sep 10, 2020 |Erin P. Gall |Torts - Asbestos |Torts - Asbestos |EFCA2020-001854
