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(FILED: KINGS COUNTY CLERK 0970572014 09:43 AM INDEX NO. 508131/2014NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 09/05/2014SUPREME COURT OF THE STATE OF NEW YORK Index No.:COUNTY OF KINGS Date Filed:anna nnn nnn be xJENNIFER PARKER,SUMMONSPlaintiff, Plaintiff designatesKINGS County asthe place of trial.-against-The basis of venue isPlaintiff's residence.THE LITTLE GYM INTERNATIONAL, INC. andTHE LITTLE GYM OF BENSONHURST, INC,,Plaintiff resides inKINGS CountyDefendants.X COUNTY OF KINGSTo the above named Defendant(s)YOU ARE HEREBY SUMMONED to answer the Complaint in this actionand to serve a copy of your answer, or, if the Complaint is not served with thisSummons, to serve a Notice of Appearance on the Plaintiff's attorney(s) within 20days after the service of this Summons, exclusive of the day of service (or within 30days after the service is complete if this summons is not personally delivered to youwithin the State of New York); and in case of your failure to appear or answer,judgment will be taken against you by default for the relief demanded in theComplaint.Dated:Mineola, New YorkJuly 9, 2014 Yours, etc.,THE BON RNO LAW FIRM, PLLCBy:250 Mineola BoulevardMineola, New York 11501516-741-4170Qur File No.:5930.JFDefendants’ addresses:THE LITTLE GYM INTERNATIONAL, INC.c/o New York Secretary of StateTHE LITTLE GYM OF BENSONHURST, INC.c/o New York Secretary of StateSUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS Index No.:nn xJENNIFER PARKER,VERIFIEDPlaintiff, COMPLAINT-against-THE LITTLE GYM INTERNATIONAL, INC. andTHE LITTLE GYM OF BENSONHURST, INC.,Defendants.Plaintiff, complaining of the defendants, upon information and belief, allegesthe following:1. That at all times hereinafter mentioned, Plaintiff, JENNIFER PARKER,was and is a resident of the County of KINGS.2s That at all times hereinafter mentioned, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., was and still is a foreign business dulyauthorized to conduct business, and regularly conducting business, within theState of New York.3. That at all times hereinafter mentioned, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., was and still is a foreign businesscorporation duly authorized to conduct business, and regularly conductingbusiness, within the State of New York.4, That at all times hereinafter mentioned, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., was and still is a domestic corporation dulyauthorized to conduct business within the State of New York.AS AND FOR A FIRST CAUSE OF ACTIONAGAINST DEFENDANT, THE LITTLE GYM INTERNATIONAL, INC.5. That the plaintiff repeats each and every allegation previously allegedin this complaint as if the same were separately enumerated hereunder.6. That on and prior to November 6, 2013, there existed a premiseslocated at 8681 18th Ave, Brooklyn, NY 11214.7 That on and prior to November 6, 2013, at said premises was abusiness known as “The Little Gym of Bay Ridge-Bensonhurst.”8. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, was the owner of the aforementioned premises.9. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, operated the aforementioned premises.10. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, managed the aforementioned premises.11. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, maintained the aforementioned premises.12. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, controlled the aforementioned premises.13; That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, occupied the aforementioned premises.14. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, supervised the aforementioned premises.15: That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, inspected the aforementioned premises.16. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, repaired the aforementioned premises.TZ. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, was conducting a business at the aforementioned premises.18. That on and prior to November 6, 2013, it was the duty and obligationof the Defendant, THE LITTLE GYM INTERNATIONAL, INC., its agents,servants, employees and/or franchisees, to keep and maintain theaforementioned premises in a reasonably safe condition so that the premiseswould not be dangerous to those who would reasonably be expected to bethere.19. That on and prior to November 6, 2013, it was the duty and obligationof the Defendant, THE LITTLE GYM INTERNATIONAL, INC., its agents,servants, employees and/or franchisees, to own, operate, maintain, control,conduct, and supervise its business operations and employees in a reasonablysafe manner so that the premises would not be dangerous to those who wouldreasonably be expected to be there.20. That prior to November 6, 2013, the plaintiff, JENNIFER PARKER,enrolled her infant child into a program at the “The Little Gym of Bay Ridge-Bensonhurst” which was to take place at the aforementioned premises.21. That on and prior to November 6, 2013, it was the duty and obligationof the Defendant, THE LITTLE GYM INTERNATIONAL, INC., its agents,servants, employees and/or franchisees, to exercise reasonable care withrespect to the supervision of the plaintiff's infant child when the child was intheir care and custody in relation to the aforementioned program.22. That on and prior to November 6, 2013, dangerous conditions existedupon the aforementioned premises, including a step stool or steps and parallelbars, staircase/steps next to the parallel bars, and other dangerous conditionsincluding inadequate supervision of the plaintiff's child.23. That on November 6, 2013, the Defendant, THE LITTLE GYMINTERNATIONAL, INC., its agents, servants, employees and/or franchisees,failed to maintain the aforementioned premises in a reasonably safe condition.24. That on November 6, 2013, the Defendant, THE LITTLE GYMINTERNATIONAL, INC., its agents, servants, employees and/or franchisees,failed to properly and adequately supervise the plaintiff's infant child.2b.. That on and prior to November 6, 2013, Defendant, THE LITTLE GYMINTERNATIONAL, INC., its agents, servants, employees and/or franchisees,created the aforementioned dangerous conditions.26. That on and prior to November 6, 2013, Defendant, THE LITTLE GYMINTERNATIONAL, INC., its agents, servants, employees and/or franchisees,created a danger to the plaintiff’s infant child which, in turn, invited rescue bythe plaintiff.27. That on and prior to November 6, 2013, Defendant, THE LITTLE GYMINTERNATIONAL, INC., its agents, servants, employees and/or franchisees,created a danger to the plaintiff. |28. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, had notice of the aforementioned dangerous conditions andinadequate supervision.29. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, failed to remedy or repair or inspect for the aforementioneddangerous conditions.30. That on November 6, 2013, the Plaintiff, JENNIFER PARKER, waslawfully upon the aforementioned premises when she observed her infantchild climbing the aforementioned step stool or steps next to theaforementioned parallel bars without proper and adequate supervision by thedefendant, its agents, servants, employees and/or franchisees.31. That as a result of this observation, the plaintiff, JENNIFER PARKER,then attempted to rescue her child or otherwise prevent her child from beinginjured when she encountered the aforementioned dangerous conditions,including the low set parallel bars and steps, and was caused to trip, fall andsustain severe and permanent injuries.32. That as a result of the foregoing, the Plaintiff was caused to sustainsevere and permanent injuries.33. That the aforementioned incident and the injuries sustained by thePlaintiff were caused solely by the negligence of the Defendant, THE LITTLEGYM INTERNATIONAL, INC., its agents, servants, employees and/orfranchisees, as aforesaid, and without any negligence on the part of theplaintiff.34. That by reason of the foregoing, the Plaintiff, JINNIFER PARKER, hasbeen damaged in a sum that exceeds the jurisdictional limits of all lowerCourts.AS AND FOR A SECOND CAUSE OF ACTIONAGAINST DEFENDANT, THE LITTLE GYM OF BENSONHURST, INC.35. That the plaintiff repeats each and every allegation previously allegedin this complaint as if the same were separately enumerated hereunder.36. That on and prior to November 6, 2013, there existed a premiseslocated at 8681 18th Ave, Brooklyn, NY 11214.37. That on and prior to November 6, 2013, at said premises was abusiness known as “The Little Gym of Bay Ridge-Bensonhurst.”38. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, was the owner of the aforementioned premises.39. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, operated the aforementioned premises.40. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, managed the aforementioned premises.41. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, maintained the aforementioned premises.42. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, controlled the aforementioned premises.43. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, occupied the aforementioned premises.44. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, supervised the aforementioned premises.45. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, inspected the aforementioned premises.46. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, repaired the aforementioned premises.47. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, was conducting a business at the aforementioned premises.48. That on and prior to November 6, 2013, it was the duty and obligationof the Defendant, THE LITTLE GYM OF BENSONHURST, INC., its agents,servants, employees and/or franchisees, to keep and maintain theaforementioned premises in a reasonably safe condition so that the premiseswould not be dangerous to those who would reasonably be expected to bethere.49. That on and prior to November 6, 2013, it was the duty and obligationof the Defendant, THE LITTLE GYM OF BENSONHURST, INC,, its agents,servants, employees and/or franchisees, to own, operate, maintain, control,conduct, and supervise its business operations and employees in a reasonablysafe manner so that the premises would not be dangerous to those who wouldreasonably be expected to be there.50. That prior to November 6, 2013, the plaintiff, JENNIFER PARKER,enrolled her infant child into a program at the “The Little Gym of Bay Ridge-Bensonhurst” which was to take place at the aforementioned premises.51. That on and prior to November 6, 2013, it was the duty and obligationof the Defendant, THE LITTLE GYM OF BENSONHURST, INC., its agents,servants, employees and/or franchisees, to exercise reasonable care withrespect to the supervision of the plaintiff's infant child when the child was intheir care and custody in relation to the aforementioned program.52. That on and prior to November 6, 2013, dangerous conditions existedupon the aforementioned premises, including a step stool or steps and parallelbars, staircase/steps next to the parallel bars, and other dangerous conditionsincluding inadequate supervision of the plaintiff's child.53. That on November 6, 2013, the Defendant, THE LITTLE GYM OFBENSONHURST, INC., its agents, servants, employees and/or franchisees,failed to maintain the aforementioned premises in a reasonably safe condition.54, That on November 6, 2013, the Defendant, THE LITTLE GYM OFBENSONHURST, INC., its agents, servants, employees and/or franchisees,failed to properly and adequately supervise the plaintiff's infant child.55. That on and prior to November 6, 2013, Defendant, THE LITTLE GYMOF BENSONHUBST, INC., its agents, servants, employees and/or franchisees,created the aforementioned dangerous conditions.56. That on and prior to November 6, 2013, Defendant, THE LITTLE GYMOF BENSONHURST, INC., its agents, servants, employees and/or franchisees,created a danger to the plaintiff’s infant child which, in turn, invited rescue bythe plaintiff.57. That on and prior to November 6, 2013, Defendant, THE LITTLE GYMOF BENSONHURST, INC., its agents, servants, employees and/or franchisees,created a danger to the plaintiff.58. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, had notice of the aforementioned dangerous conditions andinadequate supervision. |59. That on and prior to November 6, 2013, the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, failed to remedy or repair or inspect for the aforementioneddangerous conditions.60. That on November 6, 2013, the Plaintiff, JENNIFER PARKER, waslawfully upon the aforementioned premises when she observed her infantchild climbing the aforementioned step stool or steps next to theaforementioned parallel bars without proper and adequate supervision by thedefendant, its agents, servants, employees and/or franchisees.61. That as a result of this observation, the plaintiff, JENNIFER PARKER,then attempted to rescue her child or otherwise prevent her child from beinginjured when she encountered the aforementioned dangerous conditions,including the low set parallel bars and steps, and was caused to trip, fall andsustain severe and permanent injuries.62. That as a result of the foregoing, the Plaintiff was caused to sustainsevere and permanent injuries.63. That the aforementioned incident and the injuries sustained by thePlaintiff were caused solely by the negligence of the Defendant, THE LITTLEGYM OF BENSONHURST, INC., its agents, servants, employees and/orfranchisees, as aforesaid, and without Any negligence on the part of theplaintiff.64. That by reason of the foregoing, the Plaintiff, IINNIFER PARKER, hasbeen damaged in a sum that exceeds the jurisdictional limits of all lowerCourts.AS AND FOR A THIRD CAUSE OF ACTIONAGAINST ALL DEFENDANTS65. That the plaintiff repeats each and every allegation previously allegedin this complaint as if the same were separately enumerated hereunder.66. That on and prior to November 6, 2013, it was the duty and obligationof the Defendants, their agents, servants, employees and/or franchisees, tooperate their business, supervise the child participants under their custody andcare, and to arrange their exercise equipment in a reasonably safe manner sothat those persons who would be expected to be present at its premises andobserving their activities would not be subjected to dangerous and hazardousconditions.67. That on and prior to November 6, 2013, it was the duty and obligationof the defendants, their agents, servants, employees and/or franchisees, toown, operate, maintain, control, conduct, and supervise their businessoperations and employees in a reasonably safe manner so that its premiseswould not present dangerous and hazardous conditions to those who wouldreasonably be expected to be there.68. That prior to November 6, 2013, the plaintiff, JENNIFER PARKER,enrolled her infant child into a program at the “The Little Gym of Bay Ridge-Bensonhurst” which was to take place at the aforementioned premises.69. That on and prior to November 6, 2013, it was the duty and obligationof the defendants, their agents, servants, employees and/or franchisees, toexercise reasonable care with respect to their supervision of the plaintiff'sinfant child when the child was in their care and custody in relation to theaforementioned program and activities.70. That on November 6, 2013, the Defendant, THE LITTLE GYM OFBENSONHURST, INC., its agents, servants, employees and/or franchisees,failed to properly and adequately supervise the plaintiff's infant child, failed tooperate its business activities in a reasonable and safe manner, and arranged itsexercise equipment in such a place and manner and configuration, all of whichcreated dangerous and hazardous conditions at their premises.Te That on and prior to November 6, 2013, the defendants, their agents,servants, employees and/or franchisees, created the aforementioneddangerous and hazardous conditions.72. That on and prior to November 6, 2013, the defendants, their agents,servants, employees and/or franchisees, created a danger to the plaintiff'sinfant child which, in turn, invited rescue by the plaintiff.73. That on and prior to November 6, 2013, the defendants, their agents,servants, employees and/or franchisees, created a danger to the plaintiff.74. That on and prior to November 6, 2013, the defendants, their agents,servants, employees and/or franchisees, had notice of the aforementioneddangerous conditions and negligent supervision.19: That on and prior to November 6, 2013, the defendants, their agents,servants, employees and/or franchisees, failed to remedy or repair or inspectfor the aforementioned dangerous conditions and negligent supervision.76. That on November 6, 2013, the Plaintiff, JENNIFER PARKER, waslawfully upon the aforementioned premises when she observed her infantchild about to encounter dangerous and hazardous conditions without anysupervision by the defendants, their agents, servants, employees and/orfranchisees.77. That as a result of this observation, the plaintiff, JENNIFER PARKER,then attempted to rescue her child or otherwise prevent her child from beinginjured when she encountered the aforementioned dangerous conditions, andwas caused to trip, fall and sustain severe and permanent injuries.78. That as a result of the foregoing, the Plaintiff was caused to sustainsevere and permanent injuries. |79. That the aforementioned incident and the injuries sustained by thePlaintiff were caused solely by the negligence of the defendants, their agents,servants, employees and/or franchisees, as aforesaid, and without anynegligence on the part of the plaintiff.80. That by reason of the foregoing, the Plaintiff, JENNIFER PARKER, hasbeen damaged in a sum that exceeds the jurisdictional limits of all lowerCourts.AS AND FOR A FOURTH CAUSE OF ACTIONAGAINST ALL DEFENDANTS81. That plaintiff repeats, reiterates, and realleges each and every previousallegation of this Complaint with the same force and effect as if separatelyenumerated hereunder.82. That on and prior to November 6, 2013, and at all times hereinaftermentioned, the defendants had a duty and Sbeatinn to exercise reasonable carewith respect to the hiring, screening, employing, training, management, retention,control and supervision of its employees.83. That on and prior to November 6, 2013, and at all times hereinaftermentioned, the defendants, their agents, servants, and/or employees were negligent,reckless and careless in the hiring, screening, employing, training, retention,management, control and supervision of their employees, agents, and/or servants.84. That the aforesaid accident occurred solely and wholly as a result ofthe negligence of the defendants, their its agents, servants, and/or employees, asaforesaid, without any contributory negligence on the part of the plaintiff.85. That as a result of the foregoing, the plaintiff has been injured anddamaged in an amount that exceeds the Junisdicfonal limits of all lower courts.WHEREFORE, the Plaintiff demands | judgment over and against thedefendants in all causes of action in amounts that exceed the limits of all lowerjurisdictions, together with interest, costs and disbursem*nts and attorneys’ fees.Dated: Mineola, New York |September 4, 2014 . |THE BONGIORNO LAW FIRM, PLLCNIFER PARKER250 Mineola Blvd.| Mineola, New York 11501(516) 741-4170| Our File No.:5930.JFATTORNEY VERIFICATIONSTATE OF NEW YORK } |} SS:COUNTY OF NASSAU }I, the undersigned, an attorney admitted to practice in the courts of New YorkState, state that I am the attorney of record for the plaintiff in the within action; Ihave read the foregoing COMPLAINT and knpw the contents thereof; the same istrue to my knowledge, except as to those [matters therein alleged to be oninformation and belief, and as to those matters IIbelieve it to be true. The reason thisVerification is made by me and not by the plaintiff is because the plaintiff resides ina county other than the one in which your affiant maintains his office.I affirm that the foregoing statements are true, under the penalties of perjury.Dated: Mineola, New YorkSeptember 4, 2014SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF KINGS Index No.:JENNIFER PARKER,Plaintiff,-against-THE LITTLE GYM INTERNATIONAL, INC. andTHE LITTLE GYM OF BENSONHURST, INC.,Defendants.— owSUMMONS and VERIFIED COMPLAINTTHE BONGIORNO LAW FIRM, PLLCAttorneys for PlaintiffJENNIFER PARKER250 Mineola BoulevardMineola, New York 11501(516) 741-4170ATTORNEY CERTIFICATION: Pursuant to NYCRR 130-1.1, the undersigned, anattorney admitted to practice in the Courts of the State of New York, certifies, to thebest of his knowledge after reasonable inquiry, that the copéentions contained in theannexed documents are not frivolous. |Dated:Mineola, New York By:September 4, 2014 |ESQ.PLEASE TAKE NOTICE_—_ NOTICE OF ENTRY that the within is a true copy of aentered in the office of the clerk of the within named Court on—_— NOTICE OF SETTLEMENT that an Order of which the within is a true copywill be presented for settlement to the Hon. one of the judges of thewithin named Court, onTHE BONGIORNO LAW FIRM, PLLCAttorneys for Plaintiff
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Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice. (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.) A. Defendants Request for Judicial Notice is Granted. Plaintiffs argue that the demurrer is based solely on impermissible use of extrinsic evidence, an unsigned, unauthenticated paper (see Defendants Demurrer) which must not be considered. (Opposition at p. 4.) The unsigned, unauthenticated paper is a copy of the Trust Transfer Deed recorded on May 23, 2018 as document number 20180509199. The Court may take judicial notice of the existence and recordation of real property records, including deeds of trust, when the authenticity of the documents is not challenged, as well as a variety of matters that can be deduced from the documents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) [A] court may take judicial notice of the fact of a documents recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the documents legally operative language, assuming there is no genuine dispute regarding the documents authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face. (Id. at p. 265.) The request for judicial notice is granted to the extent explained above. B. The Deed Does Not Show that Defendant Lacks Any Interest in the Property. Defendant argues that it did not own, possess, or control the property. (See Demurrer at p. 7.) The Trust Transfer Deed reflects a conveyance of real property from JOAN H. PLOTKIN, Trustee of the PLOTKIN TRUST AGREEMENT dated August 28, 1991 to JOAN H. PLOTKIN, Trustee of the SURVIVORS TRUST under the PLOTKIN TRUST AGREEMENT dated August 28, 1991 on May 16, 2018. The legal effect of the Deed is a transfer of the property on May 16, 2018. It does not show that Defendant had no interest in the property at any time thereafter until the September 5, 2020 fire. The demurrer is overruled on this ground. C. Plaintiffs Negligence Causes of Action Are Duplicative. Defendant argues that the causes of action for negligence per se (second cause of action), negligent hiring (third cause of action), and negligent infliction of emotional distress (fourth cause of action) are duplicative of the first cause of action for negligence. (Demurrer at pp. 7-89) Plaintiffs first four cases of action all allege different theories of negligence and should be combined into a single cause of action for negligence. The demurrer is sustained on this ground. D. There Are No Facts About Defendants Conduct. Defendant argues that there are no allegations about its involvement in any wrongdoing or any relationship with Plaintiffs. (See Demurrer at pp. 7-14.) Plaintiffs sued Joan Plotkin and Doe Defendants, and they later identified Defendant as Doe 3. The allegations that all Does are responsible for Plaintiffs harm and that they are the agents, servants, employees, and/or joint venturers of their co-defendants are conclusory and lack facts. (FAC ¶¶ 7-8.) Each cause of action is brought against All Defendants. However, Plaintiffs specifically seek equitable relief, monetary and punitive damages against Defendant JOAN PLOTKIN, a California landlord. (FAC ¶ 1.) The landlords failed to properly fix the roof, the absence of a swamp cooler caused an electrical fire, and the negligence and lack of care by the landlord caused this situation which led to the fire. (See, e.g., FAC ¶¶ 19, 24, 27; 31, 35, 40.) The lack of maintenance, the poor conditions, and the fire gave rise to all of Plaintiffs damages. (See, e.g., FAC ¶ 50, 62, 69, 77, 85, 97.) There are no specific facts about Defendants involvement. The demurrer to all causes of action is sustained on this ground. E. Conclusion Defendant Milner Roofing Inc.s demurrer is SUSTAINED with 30 days leave to amend. On January 11, 2024, the Court sustained Joan Plotkins demurrer to the third, fourth, fifth, seventh, and tenth causes of action with 30 days leave to amend. Plaintiffs did not timely file an amended complaint. Joan Plotkin then filed an answer to the remainder of the FAC on March 7, 2024. Accordingly, this orders grant of leave to amend is limited to the allegations about demurring Defendant Milner Roofing Inc. Moving party to give notice. Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar. Dated this 29th day of August 2024 Hon. Thomas D. Long Judge of the Superior Court
Ruling
Maria Aguilar Barajas, et al. vs Eduardo Flores, et al.
Aug 30, 2024 |23CV-04351
23CV-04351 Maria Aguilar Barajas, et al. v. Eduardo Flores, et al.Order to Show Caue re: DismissalAppearance required. Parties who wish to appear remotely must contact the clerk of thecourt at (209) 725-4111 to seek permission and arrange for a remote appearance. Appearto address Plaintiff’s failure to appear at the June 25, 2024, Case ManagementConference and at the July 31, 2024, Order to Show Cause re: Sanctions. Absent anappearance by Plaintiff and a showing of good cause, this matter will be DISMISSEDWITHOUT PREJUDICE.
Ruling
BYRD vs YANEZ
Aug 26, 2024 |CVPS2403104
Motion to be Relieved as Counsel forCVPS2403104 BYRD vs YANEZZACHARY BYRDTentative Ruling: Grant. No opposition was filed. The Court will sign the proposed order lodged at thetime the motion was filed. Counsel are reminded that they are not relieved until proof of service of thesigned order upon their client has been filed with the Court.
Ruling
JUAN PEREZ ROJAS, ET AL. VS CALIFORNIA DEPARTMENT OF TRANSPORTATION, ET AL.
Aug 28, 2024 |Renee C. Reyna |21STCV40615
Case Number: 21STCV40615 Hearing Date: August 28, 2024 Dept: 29 This matter has been transferred to a different department. The hearing must be renoticed in the new department.Moving party to give notice.
Ruling
JOHN ROE VS MADELINE ISABEL CORDOBA, ET AL.
Aug 29, 2024 |22STCV32918
Case Number: 22STCV32918 Hearing Date: August 29, 2024 Dept: 14 #13 Case Background Plaintiff alleges that Defendants falsely accused him of giving one of the Defendants herpes. Defendants allege that Plaintiff did in fact give this woman herpes. The relevant procedural history is as follows: On October 14, 2022, Plaintiff filed his First Amended Complaint (FAC) for (1) Defamation, (2) Libel, (3) Slander, (4) Intentional Infliction of Emotional Distress (IIED), (5) Fraudulent Concealment, (6) Civil Extortion, and (7) Libel against Defendants Madeline Isabel Cordoba (Cordoba), Justin Daily (Daily), Reed Aljian (Aljian), and Daily Aljian LLP (Firm).1 The first five causes of action are asserted against Defendant Cordoba only. The last two causes of action are asserted against the Attorney Defendants only. On August 22, 2023, Plaintiff filed his Second Amended Complaint (SAC) for (1) Defamation, (2) Libel, (3) Slander, (4) Intentional Infliction of Emotional Distress (IIED), (5) Civil Code § 1708.85, and (6) Negligence against Defendant Cordoba. On April 18, 2023, Defendant Cordoba filed her First Amended Cross-Complaint (Cross-Complaint) for (1) Sexual Battery, (2) Intentional Misrepresentation, (3) Concealment, (4) Negligent Misrepresentation, (5) Negligence, and (6) IIED against Plaintiff and ROES 1-35. On February 27, 2024, the Court granted Plaintiffs motion for a protective order. On June 5, 2024, Plaintiff filed this motion to seal. Instant Pleading Plaintiff moves to seal documents he filed in support of his motion for summary judgment or summary adjudication. Decision Plaintiffs motion to seal the documents submitted in support of his motion for summary judgment or summary adjudication is GRANTED. The Court orders Exhibits H, I, J, K, L, and M to the Declaration of Michael Killingsworth submitted in support of Plaintiffs motion for summary judgment or summary adjudication sealed. Discussion Pursuant to California Rules of Court Rule 2.550 the court may seal a record only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. (Cal. Rules of Court, rule 2.550(d).) In Hinshaw v. Superior Court (1996) 51 Cal.App.4th 233, 242, the court stated that private, non-governmental parties have a privacy interest in maintaining confidentiality of settlement agreements that contain personal financial information. The sealing of court documents is not permitted solely based on the agreement of the parties "without a specific showing of serious injury." (Huffy Corp. v. Superior Court (2003) 112 Cal.App.4th 97, 106.) Regarding the serious injury, "[b]road allegations of harm, bereft of specific examples or articulated reasoning, are insufficient." (Huffy, supra, 112 Cal.App.4th at p. 106) (quoting In re Cendant Corp. (3d Cir. 2001) 260 F.3d 183, 194.) Here, Plaintiff moves to seal exhibits H, I, J, K, L, and M to the Declaration of Michael Killingsworth which he submitted in support of his motion for summary judgment or summary adjudication. These documents include: Exhibit 1: Copies of the subpoenas at issue. Exhibit H: Defendants testing results from May 13, 2022. Exhibit I: Defendants Communications to Plaintiff threatening to contact Plaintiffs workplace. Exhibit J: Medical testing results of one of Defendants other sexual partners. Exhibit K: Communications between Defendant and her doctor. Exhibit L: Communications between Defendant and Plaintiff. Exhibit M: Defendants medical records from May 25, 2022. Plaintiff argues that the documents include information marked for protection under the protective order in this action. Plaintiff seeks to seal these documents to protect Defendants rights under the protective order and to protect Plaintiffs true name and identifying characteristics. The records include medical records, sensitive communications and images, and Plaintiffs true name. It is reasonable to infer that these documents are confidential or highly confidential as defined in the protective order because the content of the documents could harm the parties reputations if they are made public. The Court finds that an overriding interest exists which overcomes the publics right to access these materials and supports sealing the records. Both parties in this action will be prejudiced if the records are not sealed. Finally, the sealing is narrowly tailored and there are no less restrictive means of achieving the overriding interest. Therefore, the motions to seal are granted. Conclusion Plaintiffs motion to seal the documents submitted in support of his motion for summary judgment or summary adjudication is GRANTED. The Court orders Exhibits H, I, J, K, L, and M to the Declaration of Michael Killingsworth submitted in support of Plaintiffs motion for summary judgment or summary adjudication sealed.
Ruling
KRYSTAL RENEE CASTRO, ET AL. VS THOMAZ PHILLIP COUSSEAU, ET AL.
Aug 27, 2024 |Renee C. Reyna |21STCV31342
Case Number: 21STCV31342 Hearing Date: August 27, 2024 Dept: 29 Castro v. Cousseau 21STCV31342 Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Albert Abkarian & Associates. Background On August 24, 2021, Krystal Renee Castro, Victor Andres Avila, Brisstelle Avila, and Viktor Amias Avila filed a complaint against Thomaz Phillip Cousseau, Nissan North America Inc., and Rebecca Diane Mullin (collectively Defendants) for negligence cause of action arising out of an automobile collision on July 18, 2020. On October 26, 2021, Defendants filed an answer. In June 2023, the Court granted the petition for approval of minors compromises in this case. An OSC re proof of deposit was set and continued several times; in the interim, it appears that counsel has been unable to communicate with the client (guardian ad litem). On June 20, 2024, Albert Abkarian & Associates (Counsel) filed a motion to be relieved as counsel for Plaintiff Krystal Renee Castro (Plaintiff). No opposition has been filed. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.136(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay 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. (Cal. Rules of Court, rule 3.1362(e).) Discussion Counsel has filed the Notice, Declaration, and Order to be Relieved as Counsel. However, Counsel fails to include all future hearings, including the OSC re Proof of Deposit set for September 25, 2024, on both the Declaration and Order. Moreover, the Court has the following additional concerns: (1) a guardian ad litem cannot represent a minor without counsel, and granting the motion could leave the case in an uncertain state; and (2) it is unclear to the Court whether the settlement funds have been paid and, if so, whether they have been deposited into a blocked account as ordered. Accordingly, the motion is DENIED without prejudice. Conclusion The motion to be relieved as counsel is DENIED without prejudice. Moving counsel to give notice.
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