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FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ARK615 DOE, Index No. 951075/2021 Mot. Seq. No. 2 Plaintiff, Justice Judge Alexander M. Tisch v. ARCHDIOCESE OF NEW YORK THE CAPUCHIN FRANCISCAN FRIARS A/K/A THE CAPUCHIN FATHERS PROVINCE OF ST. JOSEPH; THE CAPUCHIN FRANCISCAN FRIARS A/K/A THE CAPUCHIN FATHERS PROVINCE OF ST. MARY D/B/A PROVINCE OF ST. MARY OF THE CAPUCHIN ORDER; OUR LADY OF SORROWS A/K/A PROVINCE OF ST. JOSEPH OF THE CAPUCHIN ORDER; and DOES 1-5 whose identities are unknown to Plaintiff, Defendants. PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS 1 1 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 PRELIMINARY STATEMENT Plaintiff was sexually assaulted as a child by a trusted priest at his home parish, Our Lady of Sorrows, in the Archdiocese of New York (“Archdiocese”). As set forth in Plaintiff’s lawsuit, at the time of the abuse, the priest was employed by the Archdiocese, the Capuchin Franciscan Friars, and Our Lady of Sorrows. The Complaint states causes of action for negligence, negligent retention, and negligent training and supervision. In response to the Complaint, the Archdiocese has moved to dismiss based on Plaintiff’s failure to identify the priest who abused him by name at the pleading stage. Defendants Capuchin Franciscan Friars Province of St. Joseph (“Province of St. Joseph”)1 and the Capuchin Franciscan Friars Province of St. Mary (“Province of St. Mary”)2 have both cross-moved to dismiss Plaintiff’s Complaint incorporating and adopting the arguments of the Archdiocese. For the reasons set forth herein, Defendants’ Motions should be denied. First, as this Court decided in another CVA case, the failure to identify a priest-abuser by name in the complaint is not grounds for dismissal. See O’Brien v. Archdiocese of New York, et. al., No. 950092/2020 (Sup Ct. N.Y. Cnty., Aug. 16, 2021) (attached as Exhibit A to Affirmation of Trusha Goffe). In O’Brien, the Court held that discovery is necessary before disputes regarding the identity of the priest and subsequent liability can be reconciled and denied the Archdiocese’s motion to dismiss. Id. Defendants offer nothing to support departure from this Court’s prior decision. For this reason alone, the Motions should be denied. 1 The Capuchin Franciscan Friars Province of St. Joseph’s cross-motion relies entirely on the arguments made by the Archdiocese. Each of those arguments are addressed in this Memorandum of Law. 2 The Capuchin Franciscan Friars Province of St. Mary’s cross-motion also contains substantially similar arguments to those made by the Archdiocese. Any additional arguments made by the Province of St. Mary are also addressed in this Memorandum of Law. 2 2 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 Second, Plaintiff’s Complaint sufficiently states claims against Defendants for negligence, negligent training and supervision, and negligent retention, in accordance with New York’s pleading standard. Nothing more is required at this stage of the litigation. Finally, discovery is necessary before a conclusive determination as to Defendants’ liability can be made. Here, the Archdiocese asks this Court to ignore the structure and hierarchy of the Roman Catholic Church, which requires that clerics working within the geographic boundaries of a diocese receive permission from that diocese’s bishop. See Affidavit of Thomas Doyle at p. 6 (Goffe Affirm. Ex. B).3 Those entrusted with children meaning pastors, assistant pastors, religious and lay teachers, and those working in Catholic schools, parishes or other diocesan institutions, are all subject to the bishop’s authority as they fulfill their obligations. Id. The bishop’s responsibility creates “direct and primary authority over all ministerial or apostolic works that take place in a diocese whether they are performed by diocesan priests or religious order members.” Id. In the case of religious order members, “they are answerable to the bishop” in addition to their religious superior. Id. Essentially, religious order members, like this priest, have two bosses while working within a diocese: his religious order superior and the bishop of the diocese in which he is working. Like the Archdiocese here, other dioceses have tried to disavow their duties involving priests operating within their geographic territory without success. For example, in Doe 30 v. Diocese of Duluth, et. al., No. 62-CV-14-871, slip op. (Dist. Ct. Ramsey Cnty., Aug. 21, 2015), a diocese moved for summary judgment, making similar assertions that it was not liable for abuse 3 Father Thomas Doyle is a Catholic priest of the Dominican religious order and was previously retained by counsel for Plaintiffto provide expert testimony. Fr. Doyle’s opinions regarding the structure of the Catholic Church in America, the relationship between dioceses and religious orders, and the well-known hazard of child sex abuse by Catholic clergy are relevant to this case. 3 3 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 committed by a priest who operated within its geographic territory. The court found that deposition and expert testimony supported the plaintiff’s position that a religious order cleric could not work in that diocese without the diocese’s approval, and was subject to that diocese’s training and policies. Doe 30 v. Diocese of Duluth, et. al., No. 62-CV-14-871, slip op. (Dist. Ct. Ramsey Cnty., Aug. 21, 2015) (Goffe Affirm. Ex. C, pp. 18-19). The disputed evidence demonstrated an issue of fact for the jury.4 The Archdiocese offers nothing to refute these fundamental principles, which govern the structure of the Roman Catholic Church and the Archdiocese’s responsibility for religious order clerics like this priest cannot be factually determined until after discovery has occurred. For these reasons, Defendants’ Motions should be denied. LEGAL STANDARD On a CPLR § 3211(a)(7) motion to dismiss for failure to state a cause of action, a court must give the pleading a liberal construction, accept the facts as alleged in the complaint as true, and afford the plaintiff the benefit of every possible favorable inference. J.P. Morgan Sec. Inc. v. Vigilant Ins. Co., 21 N.Y.3d 324, 334 (2013) (reversing an order of the Appellate Division and denying a motion to dismiss because defendants had not met their heavy burden under CPLR § 3211); Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 (2001) (reversing an order of the Appellate Division and denying a motion to dismiss). “In deciding such a pre-answer motion, the court is not authorized to assess the relative merits of the complaint’s allegations against the defendant’s contrary assertions or to determine whether or not plaintiff has produced evidence to support his claims” Salles v Chase Manhattan Bank, 300 A.D.2d 226, 228 (1st Dept 2002). 4 This case was ultimately tried in November 2015 and resulted in a $7,000,000 verdict. The jury found the diocese’s negligence contributed to 60 percent of the damages, resulting in a judgment against that diocese for $4,899,600. 4 4 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 To succeed on this motion, Defendant carries the heavy burden of “demonstrate[ing] that, based upon the four corners of the complaint liberally construed in favor of the plaintiff, the pleading states no legally cognizable cause of action. Leon v. Martinez, 84 N.Y.2d 83, 87-88 (1994). “The sole criterion is whether from the complaint’s four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law.” Operative Cake Corp. v. Nassour, 801 N.Y.S.2d 358 (2d Dep’t 2005) (internal quotations and citations omitted). In reviewing allegations, a court must keep in mind that the fundamental question is “whether plaintiffs have a cause of action, not whether they have properly labeled or artfully stated one.” Al Rushaid v. Pictet & Cie, 28 N.Y.3d 316, 326, (2016). Additionally, the Court of Appeals has further held that “[i]f any portion of a cause of action is sufficient, it should not be dismissed on a motion.” Lacks v. Lacks, 12 N.Y.2d 268, 271 (1963) (emphasis added). Further, “the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party” and a plaintiff will not be penalized because he or she has not made an evidentiary showing in support of the complaint. Sokol v. Leader, 904 N.Y.S.2d 153 (2d Dep’t 2010); Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976).Whether a plaintiff “will ultimately be able to prove its claims, of course, plays no part in the determination of a pre-discovery CPLR 3211 motion to dismiss.” Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 827 N.Y.S.2d 231 (2d Dep’t 2006). When documentary evidence is submitted, the moving party bears the burden of showing that the evidence conclusively refutes plaintiff’s allegations under CPLR § 3211(a)(1). AG Capital Funding Partners, L.P. v. State Street Bank and Trust Co., 5 N.Y.3d 582 (2005); see also Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128 (1st Dep’t 2014). A motion to dismiss based on documentary evidence must be denied if the evidence does not 5 5 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 unequivocally establish that the defendant is entitled to judgment as a matter of law, particularly if discovery may “flesh out” disputed or missing details in the evidence. Basis Yield Alpha Fund, 115 A.D.3d at 140-41. Here, the four corners of Plaintiff’s Complaint set forth the required elements of each stated cause of action and the documentary evidence submitted by the Province of St. Mary does not unequivocally refute Plaintiff’s claims. As such, Defendants’ Motions should be denied. Alternatively, if this Court were to decide that any additional facts must be pled, Plaintiff respectfully requests leave to amend the Complaint pursuant to CPLR § 3025. ARGUMENT I. PLAINTIFF’S CLAIMS HAVE BEEN SUFFICIENTLY STATED UNDER NEW YORK’S PLEADING STANDARDS. In considering Defendants’ Motions, it is crucial that the Court take into account the individual and societal harms that the Child Victim Act (“CVA”) sought to remedy. The Legislature passed the CVA with the dual goals of (1) providing survivors of child sexual abuse an opportunity to seek accountability, truth, and justice from the institutions that failed to protect them as children; and (2) enhancing public safety by exposing to the public the identities of child sexual abusers, kept secret for decades by the institutions that sheltered said abusers. The Senate Committee Report provides the following justification, in part, for the passage of the CVA: Passage of the Child Victims Act will finally allow justice for past and future survivors of child sexual abuse, help the public identify hidden child predators through civil litigation discovery, and shift the significant and lasting costs of child sexual abuse to the responsible parties. 2019 New York Senate Bill No. 2440; 2019 Legis. Bill Hist. NY S.B. 2440 (emphasis added)..The Assembly Committee Report expands upon the Legislature’s justification for enacting the CVA: 6 6 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 The societal plague of sexual abuse against minors is now well-documented. Also well-established is how certain abusers—sometimes aided by institutional enablers and facilitators—have been successful in covering up their heinous acts against children, either by guile, threats, intimidation, and/or attacks on child victims. . . . The [CVA] is a legislative acknowledgement of the unique character of sex crimes against children, which can have a multitude of effects upon victims, including being justifiably delayed in otherwise timely taking action against their abusers and/or those who facilitated their abuse. . . . In sum, it was an extraordinary confluence of events which resulted in the systematic sexual abuse of minors coming to light, and this has resulted in [the CVA], which seeks to allow victims to have their day in court and prove their claims. 2019 New York Assembly Bill No. 2683; 2019 Legis. Bill Hist. NY A.B. 2683 (emphasis added). Since the CVA’s passage, courts have recognized the crucial role of civil discovery in effectuating the CVA’s goals. See, e.g., Doe v. Good Samaritan Hosp., 115 N.Y.S.3d 853, 859 (Sup. Ct. Nassau Cnty. Dec. 3, 2019) (“The public interest and the purpose of the CVA is in allowing the case to be determined on its merits, after the parties have had an opportunity to fully and fairly litigate the issues.”); ARK31 Doe v. Archdiocese of New York, et al., No. 950052/2019, 2019 WL 5858094, at *3 (Sup Ct. N.Y. Cnty. Nov. 8, 2019) (“Ultimately, in this court’s view, the public has an interest in seeing this case determined on its merits, after the parties have had an opportunity to fully and properly litigate the issues presented.”). Indeed, this Court addressed this very same issue in denying defendants’ motion to dismiss in another CVA case where Plaintiff did not identify their abuser by name in the Complaint. See O’Brien v. Archdiocese of New York, et. al. (Sup. Ct. N.Y. Cnty., No. 950092/2020, Aug. 16, 2021) (Goffe Affirm. Ex. A). In O’Brien, the Court stated that while “the identity of the abuser is unknown,” “plaintiff has sufficiently pled that the abuse occurred by a priest on the premise of [the parish]” and “the identity of the priest may or may not be revealed through discovery.” Id. at p. 4. In denying defendants’ motion, the Court held that “discovery will be necessary before the parties’ 7 7 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 significant disputes on the identity of the priest … can be reconciled.” Id. at p. 4. O’Brien is squarely on point and supports denying Defendants’ Motions here. Other courts in New York have held that similar allegations are sufficient to withstand a motion to dismiss in CVA cases. See McGlory v. Rochester City Sch. Dist. et. al., No. E2021006373 (Sup. Ct. Monroe Cnty. Jan. 2, 2022) (dismissal not appropriate where the identity of the abuser is within the possession of the defendant and is easily discoverable) (Goffe Affirm. Ex. D); AL 236 Doe v. Diocese of Ogdensburg, et al., No. EFCV-20-158250 (Sup. Ct. St. Lawrence Cnty. March 17, 2021) (denying motion to dismiss where the complaint identified the sexual abuser as “Father John Doe”) (Goffe Affirm. Ex. E). In sum, sound policy reasons and the decisions of this Court and others around the state support allowing Plaintiff’s case to proceed in discovery. Dismissing Plaintiff’s Complaint at this pre-discovery stage would perpetuate the very wrongs the CVA was enacted to remedy. II. PLAINTIFF’S COMPLAINT SUFFICIENTLY ALLEGES NEGLIGENCE CAUSES OF ACTION. Plaintiff’s claims for Negligent Retention, Negligent Training and Supervision, and Negligence have been sufficiently pled in the Complaint in accordance with New York’s liberal pleading standards.5 Again, unsurprisingly, this Court and others have found allegations similar to those pled here to be sufficient to withstand a motion to dismiss in CVA actions. See Digorgio v. 5 Many of the cases cited by Defendants involve summary judgement after discovery has been completed. Because none of these cases support dismissal at this pre-discovery stage, they are entirely unhelpful to the issue before this Court. See Doe v. Rohan, 17 A.D.3d 509 (2nd Dep’t 2005) (granting summary judgment where the plaintiff failed to come forward with evidence that defendants knew or should have known or propensity to commit misconduct); Laniox v. City of New York, 170 A.D.3d 519 (1st Dep’t 2019) (granting summary judgment in favor of the housing authority where there was no evidence that the assailant was a lawful invitee on the premises); Capobianco v. Marchese, 125 A.D.3d 914 (2d Dep’t 2015) (reversing lower court’s denial of summary judgment where after discovery, plaintiff had failed to identify any employee negligently hired or supervised and never addressed those causes of actions in her oppositions to defendant’s motion for summary judgment); Sita v. Long Island Jewish-Hillside Med. Ctr., 22 A.D.3d 743 (2d Dep’t 2005) (same); Brandy B. v. Eden Cent. Sch. Dist., 15 N.Y.3d 297 (2010) (granting summary judgment after completion of discovery where evidence was insufficient to establish knowledge). 8 8 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 The Roman Catholic Diocese of Brooklyn, 2021 WL 1578326 (Sup. Ct. N.Y. Cnty. April 22, 2021); JAS#4 Doe v. Enlarged City Sch. Dist. of Middletown, 195 A.D.3d 595 (2d Dep’t 2021) (affirming lower court’s holding that plaintiff’s complaint adequately pled causes of action against the district for negligent hiring, negligent training and supervision, and negligent retention); ARK3 Doe v. Diocese of Rockville Centre, et. al., No. 900010/2019 (Sup. Ct. Nassau Cnty. May 13, 2020) (denying defendant’s motion to dismiss plaintiff’s negligent retention, negligent training and supervision, and negligence claims brought under the Child Victims Act)(Goffe Affirm. Ex. F); Torrey v. Portville Central Sch., No. 88476, 2020 WL 856432 (Sup. Ct. Cattaraugus Cnty. Feb. 21, 2020) (denying school district’s motion to dismiss negligence claims arising from sexual abuse of a student by a teacher). The Court should do the same here, as Plaintiff’s Complaint sufficiently states each claim asserted against Defendants. A. Claims of Negligent Retention, and Negligent Training and Supervision Were Properly Pled. New York has long held that an employer can be held liable for the sexual abuse of a minor by one of its employees by nature of its employment relationship under theories of negligent retention, negligent training, and negligent supervision. Kenneth R. v. Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791 (2d Dep’t 1997) (citing Hall v. Smathers, 240 N.Y. 486 (1925); Sharon B. v. Reverend S., 665 N.Y.S.2d 139 (4th Dep’t 1997); see also Hicks v. Berkshire Farm Ctr. & Services for Youth, 999 N.Y.S.2d 879 (3d Dep’t 2014). These claims were properly pled in this Complaint. To state a claim for negligent training and supervision, “it must be demonstrated that the employer ‘knew or should have known of the employee’s propensity for the conduct which caused the injury and that the allegedly deficient supervision or training was the proximate cause of such injury.” Hicks, 999 N.Y.S.2d at 879; see also N.Y. Pattern Jury Instr. – Civil 2:240. With regard 9 9 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 to negligent retention, “[t]he employer's negligence lies in having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of the employee.” Johansmeyer v New York City Dept. of Educ., 85 N.Y.S.3d 561, 565 (2d Dep’t 2018). The elements of each of these claims were pled in the Complaint. 1. The Complaint Sufficiently States That Defendants Knew or Should Have Known That This Priest Posed A Risk of Sexual Abuse. Plaintiff’s Complaint alleges that Defendants knew or should have known of the risk this priest posed to children. In this regard, Defendants argue for a heightened pleading standard at the motion to dismiss stage, contrary to New York law. See Digiorgio v. Roman Catholic Diocese of Brooklyn, 2021 WL 1578326 (Sup. Ct. N.Y. Cnty. April 22, 2021) (“contrary to [defendant’s] assertions, there is no statutory requirement that causes of action sounding in negligent hiring, negligent retention, or negligent supervision be pleaded with specificity.”). Defendants misdirect the Court to Naegele v. Archdiocese of N.Y., 39 A.D.3d 270 (1st Dept. 2007) but Naegele does not support their argument. There, the plaintiff argued that the Archdiocese had notice that a monsignor would exercise undue influence over an elderly patient to obtain a large sum of money because Archdiocesan priests and pastors are modestly paid, and the Archdiocese knows that priests accept money and things of value from parishioners. Id. The inferences sought by that plaintiff –that the archdiocese knew or should have known that its priest would steal from an elderly parishioner – did not follow from the allegation that priests are known to accept money and gifts from parishioners. In stark contrast here, Plaintiff alleges that Defendants knew or should have known of the priest’s propensity to commit the precise harm that he caused, child sex abuse. As such, Naegele is distinguishable and does not provide a basis to dismiss Plaintiff’s Complaint. 10 10 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 Defendants also cite Chagnon v. Tyson, 11 A.D.3d 325 (1st Dep’t. 2004), Gaspard v. Ditmas Gas Corp., 145 A.D.3d 860 (2nd Dep’t 2016) and Sheila C. v Povich, 11 A.D.3d 120 (1st Dep’t. 2004), as support for the notion that Plaintiff’s inability to name his abuser without discovery requires dismissal at this early stage. However, none of these cases support their argument. Chagnon is factually distinguishable. There, the plaintiff sued for personal injuries arising out of a brawl and made a singular, blanket allegation that the defendant was liable for the batteries of “their agents, servants, and/or employees”. Chagnon, 11 A.D.3d 325. The Court held that this blanket allegation was insufficient to avoid dismissal. Id. Here, Plaintiff alleges that he was harmed by a specific priest employed by Defendants. However, without discovery, he is unable to identify the priest by name. This is not fatal to the notion that Defendants knew or should have known of the priest’s propensity to abuse Plaintiff. Additionally, Gaspard was not granted on the pleadings but rather because the plaintiff had failed to comply with discovery demands. Unlike the plaintiff in Gaspard, Plaintiff here has not had an opportunity to engage in discovery at this early stage. Finally, in Sheila C., the Court ordered dismissal because the plaintiff failed to allege that the employer knew or should have known of their employee’s propensity for the sort of conduct that caused plaintiff’s injury. Sheila C., 11 A.D.3d 120. While the Court noted that the plaintiff did not identify the alleged abuser, it was not the reason for dismissal. Here, Plaintiff’s Complaint clearly alleges that Defendants knew and should have known of their employee’s propensity to sexually abuse children. Specifically, the Complaint alleges that the risk of the wrongful act, childhood sexual abuse by its agents, including the priest who abused Plaintiff, was foreseeable to Defendants. Further, the Complaint explicitly alleges facts that support the proposition that the risk child sexual abuse was foreseeable. It states that Defendants knew or should have known of the risk posed by this 11 11 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 priest and that he posed a danger to children before he sexually assaulted Plaintiff. (Compl. ¶¶43- 46). The Complaint also states that Defendants knew or should have known that they had numerous agents who had sexually molested children and that child molesters have a high rate of recidivism. (Compl. ¶ 46). Under the CPLR and the case law, these allegations meet the pleading requirement for these causes of action such that these Motions must be denied. See Kenneth R., 654 N.Y.S.2d at 794 (“[T]here is no statutory requirement that causes of action sounding in negligent hiring, negligent retention or negligent supervision be pleaded with specificity.”). For these reasons, Plaintiff’s Complaint sufficiently sets forth claims for negligent retention and negligent training and supervision. B. The Negligence Claim is Properly Pled and is Distinct from the Claims of Negligent Retention and Negligent Training and Supervision. Plaintiff’s Complaint also states a claim for negligence separate from its claims based on the employment of the priest-abuser. To establish a prima facie case of negligence in New York, “a plaintiff must demonstrate that the defendant owed a duty of reasonable care, a breach of that duty, and a resulting injury proximately caused by that breach.” Elmaliach v. Bank of China Ltd., 971 N.Y.S.2d 504 (1st Dep’t 2013). “The threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party.” Id. The questions of foreseeability and causation are “generally and more suitably entrusted to fact finder adjudication.” Palka v. Servicemaster Mgmt. Serv. Corp., 83 N.Y.2d 579, 585 (1994). Here, the Complaint states several grounds upon which Defendants owed a duty of care. First, Defendants had a duty to protect all children who attended its parishes and participated in its programs from generally foreseeable dangers. Second, Defendants had a duty to protect against foreseeable harm by third parties like this priest. Third, Defendants had a duty to protect Plaintiff because of a special relationship with Plaintiff. Fourth, Defendants owed Plaintiff a duty of care 12 12 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 because the presence of this priest was a dangerous condition on its premises. On any of these bases, Plaintiff’s Complaint sufficiently states a cause of action for negligence such that Defendants’ Motions should be denied. 1. Defendants Had A Duty To Properly Supervise Children Participating In Its Programs and Under Its Care. As alleged in Plaintiff’s Complaint, Defendants owed a duty to protect children attending its parishes and participating in its programs, including Plaintiff, from injuries resulting from general dangers that were foreseeable. (Compl. ¶¶ 32-38). The duty “derives from the simple fact that a school, in assuming physical custody and control over its students, effectively takes the place of the parents and guardians.” Jones v. Roman Catholic Archdiocese of N.Y., 918 N.Y.S.2d 398, (Sup. Ct. N.Y. Cnty. 2010) (denying summary judgment and holding that a fact finder could reasonably conclude that the parish’s “failure to notice the plaintiff’s absence constituted breaches of the duty of a parent of ordinary prudence”); see also Nash v. Port Wash. Union Free School Dist., 83 A.D.3d 3136, 146 (“As a general matter, [s]chools are under a duty to adequately supervise their students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.”); see also Mirand v. City of New York, 84 N.Y.2d 44, 49 (1994) (holding that schools are under a duty to adequately supervise students in their charge); see also Peter T. v. Children's Vil., Inc., 819 N.Y.S.2d 44, 46-47 (2d Dep’t 2006) (holding that a special in loco parentis relationship existed between a treatment center and a minor plaintiff where the child alleged that a volunteer sexually abused him); Doe v. Bronx Preparatory Charter Sch., 193 A.D.3d 591 (1st Dep’t 2021); Peter T. v. Children's Vil., Inc., 819 N.Y.S.2d 44, 46-47 (2d Dep’t 2006) (holding that a special in loco parentis relationship existed between a treatment center and a minor plaintiff where the child alleged that a volunteer sexually abused him). 13 13 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 Here, Defendants undertook the care and supervision of children in its parishes, and thus, had a duty to properly supervise Plaintiff and protect him from foreseeable harm. 2. Defendants Had a Duty to Control the Conduct of This Priest to Protect Plaintiff from Foreseeable Harm. Plaintiff’s Complaint alleges negligence arising out of Defendant’s duty to control the conduct of this priest as it had a special relationship with him. The duty to control the conduct of a third person is grounded in the Restatement (Second) of Torts § 315, which New York has followed. See Schrempf v. State, 486 N.Y.S.2d 572 (4th Dep’t 1985), rev’d. on other grounds, 66 N.Y.2d 289 (1985). There are two elements of this duty: a special relationship between the defendant and the third party, and the foreseeability of the harm. Id. This “special relationship” between Defendants and this priest embraces the concept of Defendants’ ability to control this priest’s conduct to prevent him from causing foreseeable harm to others. Defendants had a duty, and the ability, to control the conduct of the priest in this case. The Complaint alleges that “Defendant owed Plaintiff a duty to protect Plaintiff from harm because each Defendant had a special relationship with Fr. Doe.” (Compl. ¶31). The Complaint further alleges that “Defendants owed Plaintiff a duty to control the conduct of Fr. Doe because each Defendants had complete ability to control Fr. Doe’s access to children like Plaintiff to prevent the foreseeable harms associated with childhood sexual abuse.” (Compl. ¶33). Accordingly, given the Defendants’ special relationship with this priest, they had the duty to control his actions. Defendants’ failure to control this priest’s conduct caused the sexual abuse of Plaintiff and resulting injuries. 3. Defendants Owed Plaintiff A Duty Based on Its Special Relationship with Plaintiff. Defendants also owed a duty because they had a special relationship with Plaintiff. This 14 14 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 duty stems from Defendants taking physical custody of Plaintiff. “The actor who takes custody of a child is properly required to give him the protection which the custody or manner in which it is taken has deprived him.” Logan v. City of New York, 543 N.Y.S.2d 661 (1st Dep’t 1989). “The traditional master-servant relationship, the relationship between parent and child, or the relationship between common carrier and its passenger are examples of such relationships.” Purdy v Pub. Adm'r of Westchester County, 72 N.Y.2d 1, 8 (1988) (a duty to control the conduct of others exists where there is “a relationship between the defendant and plaintiff requiring defendant to protect the plaintiff from the conduct of others”). Plaintiff’s Complaint alleges a special relationship between Defendants and Plaintiff. (Compl. ¶¶31-32). As a Catholic youth parishioner, Plaintiff was dependent on Defendants and Defendants had custody of Plaintiff and responsibility for Plaintiff. (Compl. ¶¶24, 34-36). This relationship gives rise to an in loco parentis duty. See Pratt v. Robinson, 39 N.Y.2d 554, 560, 349 N.E.2d 849, 852 (1976). Accordingly, the special relationship required Defendants to protect Plaintiff from foreseeable harm. 4. Defendants Failed to Protect Plaintiff from a Foreseeable Dangerous Condition on Its Premises. Finally, this priest posed a dangerous condition on Defendants’ property and Defendants owed a duty to those it invited onto its property, like Plaintiff. A defendant is liable as a result of a dangerous condition on its premises where “the defendant either created the condition, or had actual or constructive notice of it and failed to remedy itwithin a reasonable time.” Melo v. LaGuardia Fitness Ctr. Corp., 898 N.Y.S.2d 625, 626 (2d Dep’t 2010) (reversing a Supreme Court order granting summary judgment to gym owner where plaintiff slipped on the floor of his gym). Furthermore, New York Courts have repeatedly held that organizations can be subject to premises liability in cases where assailants are unidentified. Torres v. New York City Hous. Auth., 93 N.Y.2d 15 15 of 20 FILED: NEW YORK COUNTY CLERK 04/06/2022 03:20 PM INDEX NO. 951075/2021 NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 04/06/2022 828, (1999) (Plaintiff raised a triable issue of fact as to whether institutional defendants were liable for the conduct of unidentified assailants); see also Bennett v. Twin Parks Ne. Houses, Inc., 93 N.Y.2d 860 (1999); Reynolds v. New York City Hous. Auth., 707 N.Y.S.2d 52 (1st Dep’t 2000) (Defendant landlord’s motion for summary judgment denied in spite of the fact that assailant was unidentified). Here, the Complaint alleges that a general risk of sexual abuse created a dangerous condition on the premises of Defendants’ property. (Compl. ¶¶38-39). Defendants knew or should have known that this priest posed a dangerous condition on its property, that it had numerous other sexually abusive agents, and that its policies and procedures regarding the safety at its facilities were insufficient. (Compl. ¶¶38-39, 46). Yet, Defendants failed to protect Plaintiff, despite the foreseeable risk of sexual abuse on its property. On each of these bases, Defendants owed Plaintiff a duty of care. As alleged in the Complaint, Defendant breached its duty of care, resulting in the sexual abuse of Plaintiff by this priest. These allegations, pled in the Complaint, are sufficient under New York law, to withstand Defendants’ Motions to Dismiss. III. DISCOVERY IS NECESSARY PRIOR TO A DETERMINATION ON THE FACTUAL ISSUES RAISED BY THE DEFENDANTS The Archdiocese asks this Court to ignore the fact that it and its co-De
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ROSEVIANNEY C OGUMSI VS RICHARD DALE GENTILE, D.D.S., ET AL.
Aug 21, 2024 |22STCV13792
Case Number: 22STCV13792 Hearing Date: August 21, 2024 Dept: 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHEAST DISTRICT ROSEVIANNEY C. OGUMSI, Plaintiff(s), vs. RICHARD DALE GENTILE, D.D.S., et al., Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 22STCV13792 [TENTATIVE] ORDER RE: DEFENDANT RICHARD DALE GENTILE, D.D.S.S MOTION FOR SUMMARY JUDGMENT Dept. 3 8:30 a.m. August 21, 2024 I. INTRODUCTION Plaintiff Rosevianney C. Ogumsi (Plaintiff) filed this action on April 26, 2022. In the operative Second Amended Complaint (SAC), Plaintiff asserts claims against moving defendant Richard Dale Gentile, D.D.S. (Defendant) for professional negligence, intentional infliction of emotional distress (IIED), negligent infliction of emotional distress (NIED), unlawful, unfair, and/or fraudulent business practices in violation of Business and Professions Code section 17200 et seq. (UCL), and defamation. On February 6, 2023, the Court sustained Defendants demurrer to Plaintiffs defamation claim. On May 31, 2024, Defendant filed this motion for summary judgment to address the four remaining causes of action asserted in the SAC. Defendant argues that Plaintiffs first cause of action for professional negligence fails because no act or omission was a substantial factor in causing or contributing to any injury or damage to Plaintiff, nor has Plaintiff suffered any damages as a result of any act or omission. Defendant argues that Plaintiffs second cause of action for IIED fails because Defendant did not engage in any extreme or outrageous conduct and Plaintiff did not suffer any damages. Defendant argues that Plaintiffs third cause of action for NIED fails because Plaintiff did not suffer any mental or emotional distress. Defendant argues that Plaintiffs fourth cause of action for violation of the UCL fails because he: (1) timely provided Plaintiff with her dental and medical records as requested, (2) did not commit fraud, and (3) did not commit any act or omission which caused Plaintiff to suffer any injury or damages. II. LEGAL STANDARD In reviewing a motion for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponents claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) A defendant moving for summary judgment has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) To meet this burden of showing a cause of action cannot be established, a defendant must show not only that the plaintiff does not possess needed evidence but also that the plaintiff cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action. (Ibid.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) III. EVIDENTIARY OBJECTIONS AND REQUESTS FOR JUDICIAL NOTICE Defendant objects to Plaintiffs Declaration. The Court SUSTAINS the objections to the entire declaration on the grounds that it is unexecuted and therefore fails to comply with Code of Civil Procedure section 2015.5. The Court further sustains Defendants objections to Paragraphs 10, 13, 18, 19, 29, 30, 31 through 34, 39, 40, 43 through 50 as inadmissible insofar as they contradict Plaintiffs deemed admissions. IV. DISCUSSION Defendant relies on Plaintiffs deemed admissions to argue that she has admitted that: (1) the INCIDENT did not cause [her] to suffer any injury, harm or damage and (2) [she] [has] not suffered any mental or emotional distress due to the INCIDENT. (Compendium of Exhibits, Exs. L; UMF Nos. 47, 49, 50.) The requests for admission were propounded by co-defendants Heydar Shahrokh and Heydar Shahrokh, D.D.S., Inc. dba Comfort Dental Center, and deemed admitted in a minute order dated September 25, 2023. (Exs. 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Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928 [discussing NIED as claim to recover damages for emotional distress on a negligence claim].) Plaintiff has admitted, by judicial order, that she did not suffer any mental or emotional distress. Defendant thus shows that Plaintiff cannot prevail on her IIED and NIED claims. Last, a claim for unfair competition in violation of the UCL may only be brought by an individual who has suffered injury in fact and has lost money or property as a result of the unfair comptition. (Bus. and Prof. Code, § 17204.) Because Plaintiff admits she has suffered no injury or damages, Defendant meets his burden to show that she cannot establish her UCL claim. Plaintiff opposes the motion with an unexecuted declaration in which she describes the damage to her teeth and gums caused by Defendants provision of care. But the declaration is inadmissible for being procedurally defective. Also, Plaintiff did not move to withdraw the deemed admissions pursuant to Code of Civil Procedure section 2033.300. Therefore, she is precluded from introducing any evidence which contradicts her deemed admissions since matters that are admitted or deemed admitted through RFA discovery devices are conclusively established in the litigation and are not subject to being contested through contrary evidence. [Citation.] (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775.) VI. CONCLUSION In light of the foregoing, the Motion for summary judgment is GRANTED. Moving party to give notice. Dated this 21st day of August 2024 William A. Crowfoot Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.
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PERKINS vs VALLEY WIDE TOWING LLC
Aug 22, 2024 |CVRI2305865
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Ruling
VANESSA WILLIAMS VS JUANA LIZETH GARCIA APARICIO, ET AL.
Aug 21, 2024 |21STCV40967
Case Number: 21STCV40967 Hearing Date: August 21, 2024 Dept: 28 Having considered the documents submitted in support of the request for default judgment, the Court rules as follows. BACKGROUND On November 5, 2021, Plaintiff Vanessa Williams (Plaintiff) filed this action against Defendants Rapid Sameday Logistics, LLC (Rapid), Juana Lizeth Garcia Aparicio (Garcia), and Does 1-100 for motor vehicle tort and general negligence. On January 5, 2024, Plaintiff filed a proof of service showing personal service of the summons, complaint, statement of damages, and other documents on Rapids agent for service on January 4, 2024. On January 8, 2024, Plaintiff filed a proof of service showing substituted service on Garcia of the summons, complaint, statement of damages, and other documents on January 7, 2024. On March 8, 2024, the clerk entered Rapids default and Garcias default. On July 16, 2024, the Court dismissed the Doe defendants without prejudice at Plaintiffs request. Also on July 16, 2024, Plaintiff filed a request for Court judgment against Rapid and Garcia. PARTYS REQUEST Plaintiff Vanessa Williams asks the Court to enter a default judgment against Defendants Rapid Sameday Logistics, LLC, and Juana Lizeth Garcia Aparicio and award Plaintiff $608,987.92, consisting of $107,365.00 in special damages, $500,000.00 in general damages, and $1,622.92 in costs. LEGAL STANDARD A. Default judgment [With exceptions that do not apply here,] [a] party seeking a default judgment on declarations must use mandatory Request for Entry of Default (Application to Enter Default) (form CIV-100) . . . The following must be included in the documents filed with the clerk: (1) Except in unlawful detainer cases, a brief summary of the case identifying the parties and the nature of plaintiff's claim; (2) Declarations or other admissible evidence in support of the judgment requested; (3) Interest computations as necessary; (4) A memorandum of costs and disbursem*nts; (5) A declaration of nonmilitary status for each defendant against whom judgment is sought; (6) A proposed form of judgment; (7) A dismissal of all parties against whom judgment is not sought or an application for separate judgment against specified parties under Code of Civil Procedure section 579, supported by a showing of grounds for each judgment; (8) Exhibits as necessary; and (9) A request for attorney fees if allowed by statute or by the agreement of the parties. (Cal. Rules of Court, rule 3.1800(a).) B. Damages On a request for default judgment, [w]here a cause of action is stated in the complaint, plaintiff merely needs to introduce evidence establishing a prima facie case for damages. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 5:213.1, p. 5-56 (Cal. Practice Guide), citing Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361 [trial court erred in applying preponderance of the evidence standard].) The relief granted to a plaintiff upon entry of a defendant's default cannot exceed the amount demanded in the complaint or, for personal injury cases where damages may not be stated in the complaint, the amount listed in the statement of damages. (Code Civ. Proc., §§ 580, subd. (a), 585, subd. (b).) The notice requirement of section 580 was designed to insure fundamental fairness. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 494.) The statute insures that defendants in cases which involve a default judgment have adequate notice of the judgments that may be taken against them. [Citation.] If a judgment other than that which is demanded is taken against him, [the defendant] has been deprived of his day in courta right to a hearing on the matter adjudicated. (Id. at p. 493.) A trial court exceeds its jurisdiction if it awards damages in excess of the amount specified in the complaint or statement of damages. (Id. at p. 494.) DISCUSSION Plaintiff requests $95,000.00 in future medical expenses (as part of Plaintiff's request for $107,365.00 in special damages). But Plaintiff's declaration lists only $55,000.00 to $70,000.00 in future medical expenses. (See Williams declaration ¶ 13.) Plaintiff also asks the Court to award $500,000.00 in general damages. Plaintiff has not presented evidence supporting a general damages award of $500,000.00. Plaintiffs request for costs includes $245.00 for an appearance attorney. (Plaintiffs Default Judgment Brief p. 5.) This expense is not a recoverable cost under Code of Civil Procedure section 1033.5, subdivision (a). Plaintiff also requests $250.00 in costs for copies, scanning, and postage. (Plaintiffs Default Judgment Brief p. 5.) Under Code of Civil Procedure section 1033.5, subdivision (b)(2), [p]ostage, telephone, and photocopying charges are not allowable as costs except when expressly authorized by law. The Court denies the application for default judgment without prejudice. CONCLUSION The Court DENIES without prejudice Plaintiff Vanessa Williamss application for default judgment against Defendants Rapid Sameday Logistics, LLC, and Juana Lizeth Garcia Aparicio filed on July 16, 2024. Plaintiff is ordered to give notice of this ruling.
Ruling
Knox vs. Mohamud, et al.
Aug 22, 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
Janet Mlynar vs California Earthquake Authority, et al
Aug 19, 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
Dana Sneed vs. KIRSTEN KORFHAGE
Aug 14, 2024 |C22-01974
C22-01974CASE NAME: DANA SNEED VS. KIRSTEN KORFHAGE*HEARING ON MOTION FOR DISCOVERY TO COMPEL THE DEPOSITION OF THE PERSON MOSTKNOWLEDGEABLE OF SUNRISE SENIOR LIVING MANAGEMENT, INC RE COMMUNITY PERFORMANCEAUDITSFILED BY: SNEED, DANA*TENTATIVE RULING:*The court was under the impression the moving party had requested these motions (Line 2 as well) bewithdrawn. On August 12, 2024, the opposing side informed the court that the matters should still beheard. The motions were vacated in the Case Management System and, if done erroneously, theywill be continued to September 25, 2024, when another motion is scheduled. The court wouldappreciate clarity from the parties in the future. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/14/2024
Ruling
Moniz vs. Harnden, et al.
Aug 22, 2024 |23CV-0202881
MONIZ VS. HARNDEN, ET AL.Case Number: 23CV-0202881This matter is on calendar for a trial setting conference. The litigation is at issue. The Court designates this matteras a Plan II case and intends on setting the matter for trial no later than February 24, 2025. Neither party hasposted jury fees. The parties are granted 10 days leave to post jury fees. A failure to post jury fees in that timewill be deemed a waiver of the right to a jury. The parties are ordered to meet and confer prior to the hearingregarding proposed dates for trial. An appearance is necessary on today’s calendar.
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