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CAUSE NO.15-07-07376 KAITLYNN K. BUSCHER § IN THE DISTRICT COURT VS. § MONTGOMERY COUNTY, TEXAS TONIA M. GONZALES 410" JUDICIAL DISTRICT PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT — COMES NOW KAITLYNN K. BUSCHER, (hereinafter “Plaintiff”) and files this, Plaintiff's Motion for Summary Judgment and would respectfully show the Court as follows: I. SUMMARY 1 Plaintiff would show that, on or about March 21, 2014, Tonia M. Gonzales (hereinafter “Defendant”) was, amongst other things, negligent and/or negligent per se, which was the proximatecause of an accident between the vehicle carrying Plaintiff and the vehicle driven by Defendant(collectively the “Parties”).2 Due to Defendant’s wrongful conduct, Plaintiff has and continues to suffer injury, including,but not limited to, bodily injury, reasonable and necessary doctors and medical expenses, physical andmental pain, suffering, and anguish, diminishment to her abilities to administer her own needs,diminishment her ability to perform customary household needs, diminishment to her eaming capacity. IL EVIDENCEExhibit -1: Kaitlyn K. Buscher’s Affidavit in Support of Plaintiff's Motion for Summary JudgmentExhibit -2: Plaintiff's RFA, RFP, and Interrogators to DefendantExhibit -3: Affidavit of Billing Records Custodian of Interventional Spine of TexasExhibit -4: Affidavit of Billing Records Custodian of Gulf Coast Center for Neurological DisordersExhibit -5: Affidavit of Billing Records Custodian of The Woodlands Open MRIExhibit -6: Affidavit of Billing Records Custodian of Affiliates of Family MedicineExhibit -7: Affidavit of Billing Records Custodian of Cole Rehabilitation Plaintiff's Motion for Summary Judgment Page 1 of 9JI. MATERIAL Facts 3 On or about March 21, 2014, Plaintiff was operating her vehicle in a reasonable, safe, and legal manner on FM 1488 near Mansions Blvd. in Montgomery County, Texas.! Plaintiff brought her vehicle to a stop at a red stop light when Defendant violently and unexpectedly struck Plaintiff's vehicie from behind causing injuries to Plaintiff? 4 Although Plaintiff was obeying all of the laws of Texas, Defendant barreled into the rear of Plaintiff’s vehicle, and ultimately the Plaintiff.3 5. Nothing Plaintiff did caused or contributed to this occurrence. The collision addressed above, and the resulting personal injuries suffered by the Plaintiff were proximately caused by the negligence of Defendant Tonia Gonzales.4 6 Plaintiff would further show that on the occasion in question the Defendant was guilty of various acts, wrongs, omissions, and statutory violations including, but not limited to, the following: a. failing to apply the brakes to the vehicle in order to avoid the collision; b, failing to keep such a look out as a person of ordinary prudence would have kept under similar circ*mstances; failing to turn the direction of the vehicle away from the Plaintiff's vehicle, in order to avoid the accident; failing to use due care to avoid the collision; failing to identify, predict, decide and execute evasive maneuvers appropriately in order to avoid collision; failing to control the speed of the vehicle, in violation of Texas Transportation Code § 545.351; failing to maintain a safe following distance, in violation of Texas Transportation Code § 545.062; Each of these acts, omissions, and/or statutory violations, singularly or in combination with others, constituted negligence, which proximately caused the collision and the injuries and damages for which Plaintiff suffers. 1 Exhibit “1”? Exhibit “1”3 Exhibit “1”4 Byhibit “2” Plaintiff's Motion for Summary Judgment Page 2 of 97. Plaintiff's injuries are the proximate cause of the above-referenced wrongful conduct of Defendant’. As a matter of fact, by way of deemed admissions Defendant has admitted to her negligence being the proximate cause of the Collision. ‘Additionally, Defendant has further admitted that her negligence caused Plaintiff's injuries and the treatment of those injuries and medical bills she incurred were both reasonabie and necessary.’ 8 Plaintiff's injuries include, but are not limited to: Plaintiffs physical injury to her back and neck area; Plaintiff's pain and suffering; Plaintiff's medical expenses due to her Injuries; Plaintiff's diminished capacity; and Plaintiff's mental anguish.’ 9 As a direct result of the Collision and the resulting injuries suffered by Plaintiff, Plaintiff has become subject to medical bills for the following amounts, and owed to the following medical providers: Interventional Spine of Texas - $27,875.30;° Gulf Coast Center for Neurological Disorders - $292.34; # The Woodlands Open MRI - $3,700.00;"! Affiliates of Family Medicine - $798.82.00;!? and Cole Rehabilitation - $2,681.25; 10. Plaintiff's damages, not including her pain and suffering, mental anguish, and diminished capacity, equals thirty five thousand three hundred and forty seven dollars and seventy one cents ($35,347.71), and Defendant's above-referenced wrongful conduct was the proximate and/or direct cause of my damages. “ TV. ARGUMENTS & AUTHORITY 11. Plaintiff fully incorporates by reference for all purposes the forgoing facts into this section of $ Exhibits “1” & “2” © Exhibit “2” 7 Exhib’ * 5 Exhibits I, 63” 66", ape ° Exhibits “3 10 Exhibits “1° & “4” 1 Exhibits “1” & “5”2 Exhibits “1” “6° “qe13 Exhibits “1” 14 Byhihite “1 9" 6g gy cage gn _g ug Plaintiff's Motion for Summary Judgment Page 3 of 9Plaintiff's Motion for Summary Judgment. V. SUMMARY JUDGMENT 12. Plaintiff's Motion for Summary Judgment should be granted upon Plaintiff showing the Court that there is not genuine issue of material fact regarding Defendant’s liability to Plaintiff, and that Plaintiff is entitled to summary judgemeni as a matter of iaw.'5 Upon Plaintiff meeting the above- referenced burden of proof for summary Judgment, the burden shifts to Defendant, and Defendant must successfully produce summary-judgment evidence raising an issue of fact as to Plaintiffs causes of action and/or Defendant’s affirmative defenses.!® 13. Plaintiff would show that each and every element of Negligence and/or Negligence Per Se may be proved by Plaintiff, and as such Defendant will be unable to provide the Court with a single issue of material fact as to Defendant’s liability to Plaintiff. Therefore, Plaintiff's Motion for SummaryJudgment should in all things be granted against Defendant. VI. DEFENDANT IS LIABLE TO PLAINTIFF FOR NEGLIGENCE 14. Plaintiff would show that Defendant is liable to Plaintiff for the cause of action of negligence,as Defendant’s wrongful conduct meets each and every element necessary to prove a claim ofnegligence. Further, Plaintiff would state that Defendant has admitted by way of her deemedadmissions that she is liable for her negligent acts.'7 Lastly, Defendant has not provided any evidenceto support that Plaintiff injuries occurred from an incident unrelated to the Collision.15. A cause of action for negligence exists when the plaintiff can prove that 1) a defendant owed alegal duty to the plaintiff, 2) the defendants breached the duty, and 3) the breach was the proximatecause of the plaintiff's injury.'* A defendant owes a duty of care to the general public, when itreasonably appears that in the exercise of their lawful rights the general public may be injured by a'S TRCP 166a(c); Provident Life & Ace. Ins. v. Knott, 128 8.W.3d 211, 215-16 (Tex.2003); M.D. Anderson Hosp. &Tumor Inst.v Willrich, 28 §.W 3d 22, 23 (Tex.2000).'6 M.D. Anderson Hosp. & Tumor Inst.v Willrich, 28 S.W 3d 22, 23 (Tex.2000); City of Houston v. Clear Creek BasinAuth,, 589 8.W.2d 671, 678 (Tex1979)."7 Exhibit “2”'8 Nabars Drilling USA_Inc v Escoto, 288 SW 4d 401, 404 (Tex.2009) Plaintiff's Motion for Summary Judgment Page 4 of 9dangerous condition that was created by the defendant;'° to avoid a foreseeable risk of injury to other;”° to take affirmative action to control or avoid increasing the danger from a condition that has at least been partially created by the defendant’s conduct;?! and/or to not place others in harm’s way of a foreseeable criminal activity.” 16. Here, Defendant owed a duty of care to Plaintiff in that Defendant was driving a motorized vehicle and Plaintiff was driving another vehicle in direct proximity to Defendant! Plaintiff had an absolute right to be present on the road as the passenger in a motorized vehicle and Defendant created a dangerous condition which caused harm to Plaintiff.* Defendant created a dangerous condition by committing the following acts: a. failing to apply the brakes to the vehicle in order to avoid the collision; b failing to keep such a look out as a person of ordinary prudence would have kept under similar circ*mstances; failing to tum the direction of the vehicle away from the Plaintiff's vehicle, in order to avoid the accident; failing to use due care to avoid the collision; failing to identify, predict, decide and execute evasive maneuvers appropriately in order to avoid collision; failing to control the speed of the vehicle, in violation of Texas Transportation Code § 545.351; failing to maintain a safe following distance, in violation of Texas Transportation Code § 545.062; 17. The foregoing acts are in their very nature breaches of the duty owed to Plaintiff and the generalpublic, when Defendant is operating a motorized vehicle. Further, many of the foregoing actions ofDefendant were statutory violations, which foreseeably would place another driver like Plaintiff inharm’s way. Defendant has provided an admission as to liability as to her negligent action(s).18. Here, Defendant’s wrongful conduct actually caused Defendant to violently collide withPlaintiff's vehicle, which in tum caused Plaintiff to suffer the injuries complained of in the above-' Buchanan vy, Rose, 159 S.W.2d 109, 110 (Tex.1942).20 £1 Chico, Corp. v. Poole, 732 8.W.2d 306, 311 (Tex.1987).7" 7d. at 311-12; See Newsom v. B.B., 306 S.W.3d 910, 914 (Tex. App.-Beaumont 2010).2 Doe v. Franklin, 930 $.W.2d 921, 928-29 (Tex.App. — El Paso 1996, no writ).mlExhib its “1” yy ‘ Exhibits “1” “oy Plaintiff's Motion for Summary Judgment Page 5 of 9entitled and numbered cause.”* Plaintiff did not suffer from any of her injuries before the Collision, and Plaintiff did not suffer a new injury after the Collision. 19. Lastly, Defendant has failed to provide any and all evidence that would support the affirmative defense that Plaintiff's injuries occurred in whole or in part from actions unrelated to Defendant’s breach of her duty of care to Plaintiff. Defendant has also failed to provide any evidence showing that Defendant is not liable for the amount of expenses billed by Plaintiff's medical providers. 20. For these reasons, Plaintiff's Motion for Summary Judgment should in all things be granted. VII. DEFENDANT IS LIABLE TO PLAINTIFF FOR NEGLIGENCE PER SE 21. Plaintiff will show that Defendant is liable to Plaintiff for the cause of action of negligence per se, as Defendant’s wrongful conduct meets each and every element necessary to prove a claim of negligence per se.° Further, Plaintiff would state that Defendant has not provided any evidence to support that Plaintiff injuries occurred from an incident unrelated to the Collision, or that Defendant is not liable for the amount of money billed by Plaintiff's medical providers. 22. Defendant is liable for the cause of negligence per se if: Plaintiff belongs to a class of persons that the statute was meant to protect, and Plaintiff's injury was the type that the statue was meant to protect; the statute is one for which tort liability may be imposed when violated; Defendant violatedthe statute without excuse; and Defendant’s conduct was the proximate cause of Plaintiffs injury2”Texas has extensive case law regarding the statutory duties placed upon an individual operating amotorized vehicle, recognizing a statutory duty of care for the following actions: failing to maintain a safefollowing distance” and failing to control the speed of the vehicle. »23. Here, Defendant was operating her vehicle in a manner inconsistent with and in violation ofthe laws of the state of Texas. Defendant’s illegal and wrongful conduct while operating her vehicle at25 Bxhibits “1” “gn26 Exhibits “1” “gn27 Perry v. S.N., 9T3 S.W.2d 301, 305 (Tex.1998); Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 549 (Tex.1985).?8 Texas Trans. Code §545,062; Louisiana-Pacific Corp. v. Knighten, 976 S.W.24 674, 675 (Tex. 1998).29 Texas Trans. Code §545 351> Barden, Inc v Price 939 SW 2d 247, 249-51 (Tex App. - Amarilla 1997) Plaintiff's Motion for Summary Judgment Page 6 of 9the time of the Collision, included, but is not limited to, the following: a. failing to control the speed of the vehicle, in violation of Texas Transportation Code § 545.351; b. failing to maintain a safe following distance, in violation of Texas Transportation Code § 545.062; 24. Plaintiff was a driver on a Texas road at the time of the Collision, and as such was a person meant to benefit from the protection of the foregoing statutes. The Texas Transportation Code and Section 49.04 of the Texas Penal Code were meant to protect people enjoying the benefits of Texas roadways, such as Plaintiff, from the exact injury in which Plaintiff suffered.°° That is the foregoing statutes were passed to prevent injury to persons and property traveling on Texas roadways from injury caused by the conduct defined as unreasonable under statute. » 25. Further, Defendant's above-referenced wrongful conduct was the proximate and/or direct cause of Plaintiffs injuries.” Plaintiff came to a complete stop at a stop light, in complete conformity with the laws of the state of Texas.** Suddenly and violently, Defendant committing the above-referenced conduct slammed into the Plaintiff from behind,” Plaintiff immediately began to suffer from the injuries subject to the above- entitled and numbered cause at the time of the Collision. Further, Plaintiff did not suffer from any of her injuries before the Collision, and Plaintiff did not suffer a new injury after the Collision. » 26, Lastly, Defendant has failed to provide any and all evidence that would support the affirmative defense that Plaintiff's injuries occurred in whole or in part from actions unrelated to Defendant’sbreach of her duty of care to Plaintiff. Defendant has also failed to provide any evidence showing thatDefendant is not liable for the amount of expenses billed by Plaintiffs medical providers.27. For these reasons, Plaintiff's Motion for Summary Judgment should in all things be granted. VILL PLAINTIFF’S DAMAGES28. Plaintiff would show that the certain damages are owed by Defendant, as the damages were the>° See Borden, Inc. at 249-51; Castro at 575; Louisiana-Pacific Corp. at 675; Craker at 447; and Omega Contracting,Inc. v. Torres, 191 S.W.3d 828, 840 (Tex.App. — Fort Worth2006, no pet.).31 7d,32 Exhibits “1 & “2”33 Exhibit “1”34 Exhibit “1”35 Dehibit “1 Plaintiffs Motion for Summary Judgment Page 7 of 9result of Defendant’s wrongful and/or illegal conduct. Plaintiff has attached the affidavits concerning cost and necessity of services as Exhibits “3” through “7”, and fully incorporates herein for all purposes. Plaintiff's medical expenses, made necessary due to the injury suffered by Plaintiff and caused by Defendant, equate to thirty five thousand three hundred and forty seven dollars and seventyone cenis ($35,347.71), and therefore Defendant is responsible for the entirety of this amount.29. Plaintiff specifically requests that the Court grant Plaintiff's Motion for Summary Judgment asto the damages listed above, but that the issue of damages only decided in part as to the damagesactually listed in this Plaintiff's Motion for Summary Judgment. It is Plaintiffs contention that furtherdamages are owed due to Defendant’s wrongful and/or illegal conduct, and as such the issue of furtherdamages should be left open to be determined at another time.30. For these reasons, Plaintiff's Motion for Summary Judgment should in all things be granted IX. CONCLUSION31. Defendant is liable to Plaintiff for negligence and negligence per se, as Defendant has met eachand every element of these causes of action. Further, Defendant has failed to provide evidence refutingany and all claims made by Plaintiff or to support Defendant’s affirmative defenses. Further, Defendantis the sole proximate cause of the damages and injuries suffered by Plaintiff.32. Defendant owes Plaintiff for, amongst other things, Plaintiff's medical expenses as suchdamages were the result of the injuries suffered by Plaintiff and caused by Defendant’s wrongful and/orillegal conduct. Further, Defendant has failed to provide evidence refuting Plaintiff's medical expenses. X. PRAYER WHEREFORE, Plaintiff respectfully requests that the Court set this Plaintiff's Motion forSummary Judgment for a hearing, and upon the reading of the pleadings and argument of counsel findthat Plaintiff's Motion for Summary Judgment is in all things should be granted as to the following: a. Defendant is liable to Plaintiff for the causes of action of negligence and negligence per se; b. Defendant is responsible for the entire amount of medical expenses suffered by Plaintiff as ‘Plaintiff's Motion for Summary Judgment Page 8 of 9a result of Defendant’s wrongful and/or illegal conduct; c. Defendant’s liability as to other damages shall be left open to determine at a later time; and d. for such other and further relief, at law or in equity, to which Plaintiff is justly entitled. Respectfully submitted, HOPE & CAUSEY, P. C. Derek Causey State Bar No. 24073490 P. O. Box 3188 Conroe, Texas 77305-3188 (936) 441-4673 - Metro (936) 441-4674 - Telecopier ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that on the 23" day of March, 2016, a true and correct copy of the forgoingwas transmitted to counsel of record as follows: Mark E. Yborra Via Facsimile at 832-675-0805 Levine & Clinebell 50 Briar Hollow Lane, Suite 505 W Houston, Texas 77027 Derek M, Causey Plaintiff's Motion for Summary Judgment Page 9 of 9EXHIBIT 1CAUSE NO. 15-07-07376KAITLYNN K. BUSCHER § IN THE DISTRICT COURTVS. § MONTGOMERY COUNTY, TEXASTONIA M. GONZALES § 4i0™ JUDICIAL DISTRICT KAITLYNN K, BUSCHER’S AFFIDAVIT IN SUPPORT OF PLAINTIFF'S PARTIAL MOTION FOR SUMMARY JUDGMENTBefore me, the undersigned authority, personally appeared Kaitlyn K. Buscher who, being byme duly sworn, deposed as follows: 1 “My name is Kaitlynn K Buscher, I am at least 18 years old, of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated. | am making this affidavit in support of Plaintiff's Motion for Summary Judgment." "On or about March 21, 2014, at or around 08:45 a.m., I was operating a white Chevy Cruze on West FM 1488. I was properly restrained and I was operating the vehicle in a reasonable, safe, and legal manner.” "Although I was obeying all of the laws of Texas, Defendant suddenly and violently struck the white Chevy Cruze I was operating with her vehicle. At the time of the impact, I was stopped at a red stop light, per the traffic laws of Texas, when the vehicle driven by Defendant barreled into the rear of the white Chevy Cruze I was driving (the "Collision")." "I did not contribute to the Collision in any way, and Defendant's wrongful conduct, included, but was not limited to: a. failing to apply the brakes to the vehicle in order to avoid the collision; b. failing to keep such a lookout as a person of ordinary prudence would have kept under similarcirc*mstances; failing to turn the direction of the vehicle away from the Plaintiff's vehicle, in order to avoid the accident; failing to use due care to avoid the collision; failing to identify, predict, decide and execute evasive maneuvers appropriately in order to avoid collision; failing to control the speed of the vehicle, in violation of Texas Transportation Code § 545.351;g. failing to maintain a safe following distance, in violation of Texas Transportation Code § 545.062; "My injuries are the proximate cause of the above-referenced wrongful conduct of Defendant. My injuries include, but are not limited to: physical injury to my neck and back area; pain and suffering; medical expenses due to my injuries; diminished capacity; and mental anguish." "Asa direct result of the Collision and the resulting injuries I suffered, I have become subject to medical bills for the following amounts, and owed to the following medical providers: a. Interventional Spine of Texas - $27,875.30; b Gulf Coast Center for Neurological Disorders - $292.59; Cc. The Woodlands Open MRI - $3,700.00; d. Affiliates of Family Medicine - $798.82; and c. Cole Rehabilitation - $2,681.25; "My damages, not including my pain and suffering, mental anguish, and diminished capacity, equals thirty five thousand three hundred and forty seven dollars and seventy one cents ($35,347.71), and Defendant's above-referenced wrongful conduct was the proximate and/or direct cause of my damages." "Idid not suffer from any other injury before the Collision, and I did not suffer a new injury after the Collision." "Further Affiant sayeth naught." Le itlynw’K Buscherswo RN TO and SUBSCRIBED BEFORE ME by the said Kaitlynn K. Buscher on this? f day of March , 2016. TRACY ANN BAKER Notary Public. State of Texas My Commission Expires December 17, 2017 (ae Baker Notary’s Printed NameMy Commission Expires: ¢. 17, 2017EXHIBIT 2HOPE & CAUSEY, P.C. Attomeys At Lew Derek Causey 100 Interstate 45 N % Suite 600 derek@hope-causey.com Attorney at Law P.O. Box 3188 Phone (936) 441-4673 Conroe, Texas 77305-3188 Fax (936) 441-4674 November 24, 2015 Mark E. Yborra VIA FACSIMILE: (832)675-0805 Levin & Clinebell 50 Briar Hollow Lane, Ste 505W Houston, Texas 77027 RE: CAUSE NO. 15-07-97376; KAITLYNN K, BUSCHER VS. TONIA M. GONZALES; IN THE 410TH JUDICIAL DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS Dear Mr. Yborra: Attached please find the following discovery documents propounded to the Defendant pursuant to Rules 192, 196, 197, and 191.5 of the Texas Rules of Civil Procedure: ° Plaintiff's First Set of Requests for Admission; e Plaintiff's First Series of Interrogatories; and, e Plaintiff's First Set af Request for ProductionHard copies will not follow.Sincerely,HOPE & CAUSEY, P.C.Derek A.Derek M. CauseyDMC/ksAttachmentsNO. 150707376 KAITLYNN BUSCHER § IN THE DISTRICT COURT OF § VS. § MONTGOMERY COUNTY, TEXAS TONIA GONZALES § 410" JUDICIAL DISTRICT PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSIONS TO: Defendant, Tonia Gonzales, by and through her attorney of record, Mark E. Yborra, Levin & Clinebell, 50 Briar Hollow Lane, Suite 505W, Houston, Texas 77027 Pursuant to Rule 198 of the Texas Rules of Civil Procedure, Plaintiff, Kaitlynn Buscher, files her Request for Admissions as to relevant facts. You are hereby notified that unless you servewritten answers or objections within fifty (30) days of your receipt of the Plaintiff's Request forAdmissions that each of the matters of which an admission is requested will be admitted withoutthe necessity ofa court hearing. The facts are admitted as follows:1.) Admit that Plaintiff was not at fault for causing this accident.RESPONSE:2.) Admit that the vehicle you were driving struck Plaintiff's vehicle on the date of this incident.RESPONSE:3.) Admit that you had permission to drive the vehicle you were driving at the time of this accident.RESPONSE:4.) Admit that you failed to operate your vehicle in a reasonably prudent manner during thiscollision.RESPONSE:5.) Admit that but for your acts or omissions this collision would not have occurred.RESPONSE: 6.) Admit that no other person or entity contributed to causing this collision, RESPONSE: 7.) Admit that the police were called following this accident. RESPONSE: 8.) Admit that Plaintiff was injured as a result of this collision. RESPONSE: 9.) Admit that the vehicle you were driving received damage to its front as a result of this collision. RESPONSE: 10.) Admit that significant injury can occur in a collision of this degree.RESPONSE:11.) Admit that Plaintiff incurred medical bills for the treatment of injuries sustained in thiscollision.RESPONSE:12.) Admit that the medical bills incurred by Plaintiff in treating the injuries caused by thiscollision are reasonable expenses for necessary medical care.RESPONSE:13.) Admit that Plaintiff endured physical pain and mental anguish as a result of the injuriessustained in this collision.RESPONSE: 14.) Admit that Plaintiff will endure physical pain and mental anguish in the future as a result ofthe injuries sustained in this collision.RESPONSE:Respectfully submitted, HOPE & CAUSEY, P. C. Devel ML. Corey Derek M. Causey State Bar No. 24073490 P. O. Box 3188 Conroe, Texas 77305-3188 (936) 441-4673 - Metro (936) 441-4674 — Telecopier derek@hope-causey.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Pursuant to Rule 191.5 of the Texas Rules of Civil Procedure, | hereby certify that thePlaintiff's Request for Admissions has been delivered to all interested parties on November 24,2015, correctly addressed as follows: VIA Facsimile: (832) 675-0805 Mark E. Yborra Levin & Clinebeli 50 Briar Hollow Lane, Suite 505W. Houston, Texas 77027 Dorck M. Causey Derek CauseyNO. 150707376 KAITLYNN BUSCHER § IN THE DISTRICT COURT OF VS. MONTGOMERY COUNTY, TEXAS TONIA GONZALES 410" JUDICIAL DISTRICT PLAINTIFF’S FIRST SERIES OF INTERROGATORIES TO: Defendant, Tonia Gonzales, by and through her attorney of record, Mark E. Yborra, 1S Levin & Clinebell, 50 Briar Hollow Lane, Suite 505W, Houston, Texas 77027 COMES NOW Kaitlynn Buscher, Plaintiff in the above styled and numbered cause of action and pursuant to Rules 192 and 197 of the Texas Rules of Civil Procedure, files the attached Interrogatories. You are advised that your answers to such Interrogatories shall be answered separately andfully, in writing, and under oath fifty (30) days from the date of the service of these Interrogatories.Your answer to an Interrogatory shall be preceded by the question or Interrogatory to which theanswer pertains; if there is insufficient space for your answers, please use another page. TheseInterrogatories and your sworn answers may be offered as evidence at the trial of this cause. Underthe Texas Rules of Civil Procedure, you are further charged with the duty to amend or supplementyour answers, not less than thirty (30) days prior to the beginning of trial, if you later obtaininformation upon the basis of which you (a) know that the answer was incorrect when made, or{b) know that though correct when made is no longer true and the circ*mstances are such that afailure to amend is in substance misleading.Respectfully submitted, HOPE & CAUSEY, P. C. Derek Di. Causey Derek M. Causey State Bar No. 24073490 P. O. Box 3188 Conroe, Texas 77305-3188 (936) 441-4673 - Metro (936) 441-4674 - Facsimile dereck@hope-causey.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Pursuant to Rule 191.5 of the Texas Rules of Civil Procedure, I hereby certify that thePlaintiff's First Series of Interrogatories has been delivered to all interested parties on November24, 2015, correctly addressed as follows: VIA Facsimile: (832) 675-0805 Mark E. Yborra Levin & Clinebell 50 Briar Hollow Lane, Suite 505W Houston, Texas 77027 Derek Ml. Causey Derek CauseyFIRST SERIES OF INTERROGATORIES TO TONIA GONZALES: Definitions and Instructions: The following definitions are incorporated in this set of Interrogatories and all questions are to be answered in accordance with these definitions. A) The term "person" shall mean the plural as well as the singular and include: natural persons, corporations, firms, associations, partnerships, joint ventures or any other form of legal business entity and governmental agencies, departments, units or other subdivisions. B) The term "healthcare provider" shall refer to any doctor, physician, osteopath, chiropractor, dentist, practitioner of the healing arts or any other person who renders any type of medical service. Pursuant to the provisions of the Texas Rules of Civil Procedure, you will be required to supplement your response to these interrogatories. 1 Please state your full name, address, occupation, and present employment. ANSWER: 2 State whether you were the operator or an occupant of a vehicle that was involved in a collision on the day of the incident in question. ANSWER: 3 State the name and address of the owner and all occupants of the vehicle that you were operating at the time of the collision.ANSWER:4. State where you had been just prior to the collision, where you were going at the time of the collision, and the purpose of the trip.ANSWER:5 State the name and address of each person, including experts, having any knowledge of relevant facts related to the collision that is the basis of this suit, its cause or the damages resulting from it.ANSWER:6 State the name and address of any potential party to this lawsuit, not already a party hereto, ANSWER: 7 State the full name, address, and qualifications of each expert who may be called as an expert witness at the trial of this case, the subject matter concerning which the expert will testify, the mental impressions and opinions held by the expert and the facts known to the expert (regardless of when the factual information was acquired) which relate to or form the basis of the mental impressions and opinions held by the expert, and a summary of the grounds for such opinions expected to be expressed by such expert. ANSWER: 8 Please state whether you have a copy of any statement that the Plaintiff has previously made concerning the action or its subject matter and that is in your possession, cusiody, or control. (For the purpose of this question, a statement previously made is: (1) a written statement signed or otherwise adopted or approved by the person making it; or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.)ANSWER:9 Describe any insurance agreement under which any insurance business may be liable to satisfy part or all of the judgment that may be entered in this action, or to indemnify or reimburse for payments made to satisfy the judgment, by stating the name of the person insured, the name of the insurer, and the amount of any liability insurance coverage.ANSWER:10. Describe in your own words how the collision occurred and state what the claim or contention of the Defendant will be regarding any cause or contributing cause of the collision.ANSWER:MM. State the speed of your vehicle at all times material to the collision in question, including specifically your speed at the time of impact. If your brakes were on at the time of impact, please state your speed before applying your brakes.ANSWER:12. State in detail what intoxicating beverages, if any, you had consumed and what drugs or medications, if any, you had taken during the twenty-four-hour period immediately preceding the collision. ANSWER: 13, Describe in detail what damage, if any, was done to your vehicle in the collision, and give the cost of repair of your vehicle. ANSWER: i4, Describe in detail what injuries, if any, you received in the collision. ANSWER: 15, Describe in detail any conversations you have had with the Plaintiff or Plaintiffs representative following the collision in question. ANSWER: 16. Describe any information you have indicating, or any reason you have to believe, that there was any defect or failure on the part of any vehicle or equipment involved in the collision.ANSWER:17, Did you receive a traffic citation as a result of this collision, and if so, what was the citation for?ANSWER:18. If you did receive a traffic citation, describe the traffic citation you received as a result of this collision by stating the name and location of the court involved, the violations of the law charged in that citation, and the daic, place, and manner (i.e. type of plea, bail, forfeit, trial, etc.) of disposition of the citation.ANSWER;19. Were you employed at the time of this collision?ANSWER;20, State whether you were acting within the course and scope of any employment, agency, or service at the time of collision, and describe how so.ANSWER:21, Describe any criminal record you may have in the 10 years leading up to this incident, including the nature of the charge, date and place of arrest, and conviction, ifany.ANSWER:22. State whether you were using a cellular device at the time of the wreck? If so, please state the person’s name, address and telephone number to whom you were communicating.ANSWER:23. State whether you were you using a cellular device in any manner at the time of the wreck, including text messaging, using the internet, or using any phone application.ANSWER:THE STATE OF TEXASCOUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared TONIA M.GONZALES, known to me to be the person whose name is subscribed to the foregoing Defendant'sAnswers to Plaintiff Interrogatories and states that they are true and correct and within her personalknowledge. TONIA M. GONZALES SWORN TO and SUBSCRIBED BEFORE ME by the said Tonia M. Gonzales on this __ day of » 2015. NOTARY PUBLIC IN AND FOR. THE STATE OF TEXASMy Commission Expires:NO. 150707376 KAITLYNN BUSCHER § IN THE DISTRICT COURT OF VS. § MONTGOMERY COUNTY, TEXAS TONTA GONZALES § 410" JUDICIAL DISTRICT PLAINTIFF'S FIRST SET OF REQUEST FOR PRODUCTION TO: Defendant, Tonia Gonzales, by and through her attorney of record, Mark E. Yborra. 5 Levin & Clinebell, 50 Briar Hollow Lane, Suite 505W, Houston, Texas 77027 COMES NOW Kaitlyn Buscher, Plaintiff in the above styled and numbered cause of action and, pursuant to Rules 192 and 196 of the Texas Rules of Civil Procedure, files her First Set of Request for Production of the following: 1 A copy of the Defendant’s driver's license. RESPONSE: 2 A copy of the title to the vehicle Defendant was driving at the time of the incident in question.RESPONSE:3 Any and all photographs that Defendant has of the vehicle, parties, or scene in question following the collision.RESPONSE:4 Any and all expert reports that have been prepared in connection with this lawsuit or the incident giving rise to this lawsuit, if the expert is expected to or may testify in this cause as an expert, If any such expert has not prepared a report, request is hereby made that one be prepared and furnished to Plaintiff's attorney.RESPONSE:5 Any and all expert reports that were or will be relied upon in whole or in part by any testifying expert in this case.RESPONSE:6 Any and all work papers, notes, and documents in the file of any expert witness who is expected to testify, or in the file of any expert witness who has written a report that is or will be relied upon in whole or in part by a testifying expert. RESPONSE: 7 A curriculum vitae or resume for each individual whom you may call as an expert witness at the trial of this case. RESPONSE; 8 All documents or tangible things prepared by any expert whom you expect to call as a witness, including but not limited to those that would include his or her report, factual observations, opinions, conclusions, photographs, field notes, calculations, models, and exhibits. RESPONSE: 9. A copy of any damage appraisals made of the vehicles involved in the collision. RESPONSE: 10. A copy of any repair invoices of the vehicles involved in the collision.RESPONSE:Il. Any and all insurance agreements or policies under which any person or entity carrying on an insurance business may be liabie to satisfy part or all of a judgment that may be rendered im this action or to indemnify or reimburse for payments made to satisfy the judgment, including but not limited to any liability insurance policy covering Defendant or the automobile being driven by Defendant at the time in question.RESPONSE:12, Copies of any and all statements previously made by Plaintiff concerning the subject matter of this lawsuit, including any written statement signed or otherwise adopted or approved by the Plaintiff hereto and any stenographic, mechanical, electrical, or other type of recording or any transcription thereof made by Plaintiff hereto and contemporaneously recorded,RESPONSE:13. Any drawings, maps, or sketches of the scene of the accident that has been made the basis of this lawsuit.RESPONSE:14, A copy of your employment contract that would govern any relationship between you and your employer. RESPONSE: 15. Any settlement agreements wherein you have arrived at a settlement or agreement between you and any other person, whether a party to this lawsuit, regarding, or pertaining to the incident made the basis of this lawsuit or any damages resulting therefrom. RESPONSE: 16. A copy of any surveillance movies or photographs that have been made of Plaintiff. RESPONSE: 17, Any and all photographs that Defendant has of the vehicle involved in the collision in question, RESPONSE: 18. Any and all photographs that Defendant has of the scene of the accident or any other photographs relating to this case. RESPONSE: 19, Copies of any witness statements that are relevant to the collision in question that are not privileged by law.RESPONSE:20, A copy of any movies, videotapes, or other reproduction of the accident scene.RESPONSE:21, A copy of any survey or plat made of the accident scene.RESPONSE:22. Any and all books, documents, photographs, or other tangible things that may be used at the time of trial, which may give a bearing on this cause of action.RESPONSE:23. Please produce detailed billing for any cellular or wireless communications device that you were using or had access to for the hour prior to and the two (2) hour period following thetime of the incident in question. If you do not have detailed billing or in the alternative, please execute the attached authorization. RESPONSE: 24. A true and correct copy of your complete driving record. In lieu of your complete driving record, execute an authorization permitting Plaintiff to obtain a copy of the same. For convenience, an authorization is provided herein. RESPONSE: 25, All documents and tangible items to support Defendant’s claims that: a. plaintiff was negligent; b, a third-party was responsible; or c this accident occurred because of a sudden emergency, unavoidable accident, or any other inferential rebuttal and/or affirmative defense raised. RESPONSE: 26. Produce any and all records and information received on Plaintiff/s through any depositions on written questions.RESPONSE: The requested documents and materials shall be produced for inspection and copying at thelaw offices of HOPE & CAUSEY, P.C., at the address of P. O. Box 3188, 100 Interstate 45 N,Suite 600, Conroe, Texas, 77305-3188, at 5:00 o'clock p.m., fifty (30) days from the date of yourreceipt of these requests; or copies of the documents and items may be attached to your writtenresponse, Under the Texas Rules of Civil Procedure, you are further charged with The Duty toSupplement your answers, not less than thirty (30) days prior to the beginning of trial, if you laterobtain information upon the basis of which you (a) know that the answer was incorrect when made,or (b) know that though correet when made is no longer true and the circ*mstances are such that afailure to amend is in substance misleading; or (c) as otherwise required.Respectfully submitted, HOPE & CAUSEY, P. C. Derek ML. Causey Derek M. Causey State Bar No. 24073490 P. O. Box 3188 Conroe, Texas 77305-3188 (936) 441-4673 - Metro (936) 441-4674 — Telecopier derek@bhope-causcy.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Pursuant to Rule 191.5 of the Texas Rules of Civil Procedure, ] hereby certify that thePlaintiff's First Set of Request for Production has been delivered to all interested parties onNovember 24, 2015. correctly addressed as follows: VIA Facsimile: (832} 675-0805 Mark E. Yborra Levin & Clinebell 50 Briar Hollow Lane, Suite 505W Houston, Texas 77027 Derok M. Causey Derek Causeynome Save Time - Request Your TEXAS DPS “H Driver Record Online www.texasonline.com
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Ruling
Eric Amadei vs Timothy Morgan, ESQ, et al
Jul 10, 2024 |23CV00719
23CV00719AMADEI v. MORGAN (UNOPPOSED) MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED IN PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE AND FOR MONETARY SANCTIONS The unopposed motion is granted. Plaintiff seeks an order deeming the truth of all matters specified in his requests foradmissions, set one, propounded on defendant Morgan. Plaintiff also seeks monetary sanctions inthe amount of $2,145.00. I. Legal Authority Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), if a party fails toserve a timely response to requests for admission, the requesting party may move for an orderthat the genuineness of any documents and the truth of any matter specified in the request bedeemed admitted, as well as for monetary sanctions. Code of Civil Procedure section 2033.280, subdivision (c) requires the court to make thisorder “unless it finds that the party to whom the requests for admission have been directed hasserved, before the hearing on the motion, a proposed response to the requests for admission thatis in substantial compliance with Section 2033.220. It is mandatory that the court impose amonetary sanction under Chapter 7 (commencing with Section 2023.010) on the party orattorney, or both, whose failure to serve a timely response to requests for admission necessitatedthis motion.” II. Discussion Page 2 of 3 Pursuant to the Discovery Act, the court shall order the requests for admission asadmitted unless code-compliant responses are served before the hearing. (Code of Civ. Proc. §2033.280, subd. (c).) Plaintiff served requests for admissions, set one on April 5, 2024, via electronic service,on defendant. (Ex. 2 to Dec. of U. Singh.) Defendant failed to respond to the requests and has notcommunicated with plaintiff’s counsel regarding the requests. (Dec. of U. Singh at ¶ 8.) The court deems admitted all matters specified in requests for admissions, set one,attached to the Declaration of Mr. Singh as Ex. 2. (Code Civ. Proc. § 2033.280, subd. (b).) Thiswill be the order of the court unless defendant serves, before the hearing on the motion, aproposed response to the requests for admissions that is in substantial compliance with Code ofCivil Procedure section 2033.220. The court imposes monetary sanctions against defendant Morgan in the amount of$1,195.00, payable no later than July 31, 2024.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.
Ruling
CARLOS MENDOZA VS ALEJANDRO GOMEZ
Jul 10, 2024 |24PSCV00199
Case Number: 24PSCV00199 Hearing Date: July 10, 2024 Dept: 6 CASE NAME: Carlos Mendoza v. Alejandro Gomez Motion to Compel Further Responses to Form Interrogatories, Special Interrogatories, and Requests for Production of Documents TENTATIVE RULING The Court DENIES Plaintiffs motions and further DENIES Plaintiffs requests for monetary sanctions. Defendant is ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a motor vehicle personal injury action. On January 19, 2024, plaintiff Carlos Mendoza (Plaintiff) filed this action against defendant Alejandro Gomez (Defendant) and Does 1-10, alleging a cause of action for motor vehicle negligence. On June 3, 2024, Plaintiff filed motions to compel Defendants further responses to Plaintiffs Form Interrogatories, Special Interrogatories, and Requests for Production of Documents. On June 26, 2024, Defendant opposed the motions. On July 2, Plaintiff replied. LEGAL STANDARD Interrogatories Code of Civil Procedure section 2030.300(a) provides that on receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Code of Civil Procedure section 2030.300(d) further provides that [t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.300, subd. (d).) Requests for Production of Documents Code of Civil Procedure section 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. Code of Civil Procedure section 2031.310(h) further provides that the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) DISCUSSION Meet and Confer A motion to compel further responses requires the parties to meet and confer before bringing such a motion. (Code Civ. Proc., § 2030.300, subd. (b)(1).) Counsel for Plaintiff provided a declaration indicating Plaintiffs efforts to meet and confer. (Berjis Decl., ¶ 9.) Unable to resolve their disagreement, the parties proceeded to an Informal Discovery Conference on May 1, 2024. (Minute Order (5/1/24).) At the IDC, pursuant to the agreement of counsel, the Court ordered Defendant to serve supplemental responses by May 22, 2024. (Ibid.) The Court finds Plaintiffs meet-and-confer efforts satisfactory. Analysis Plaintiff propounded his first sets of Form Interrogatories, Special Interrogatories, and Requests for Production of Documents on February 8, 2024. (Berjis Decl., ¶ 3.) Despite Defendants request for a three-week extension, Plaintiff granted Defendant a two-week extension to respond. (Id., ¶¶ 4, 5.) On March 28, 2024, the day that Defendants responses were due, Defendant requested another extension. (Id., ¶ 6.) Plaintiff refused because Defendant did not provide any explanation as to why another extension was needed. (Id., ¶ 7.) That same day, Defendant served responses to Plaintiffs Form Interrogatories, Special Interrogatories, and Requests for Production of Documents. (Id., ¶ 8.) Defendant objected to every single request and interrogatory, except Form Interrogatory No. 1.1. (Ibid.) On June 3, 2024, Plaintiff moved to compel further responses. On June 26, 2024, Defendant filed oppositions. Defendant contends that Plaintiffs motions are now moot because Defendant served further responses on June 24, 2024. (Rabbani Decl., Exh. A, Proof of Service.) Plaintiffs counsel, in reply, stated that they never received the further responses. Instead, Defendants further responses were only made available because they were attached to Defendants oppositions. Plaintiff states that some of the responses that Defendant ultimately provided are sufficient, but others remain inadequate. Plaintiff maintains his request for an order compelling Defendants further responses to: Request for Production of Documents and Things Nos. 3, 4, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 21, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, and 43; Special Interrogatories Nos. 5, 8, 23, 25, 26, 27, 28, 29, 34, 35, 36, 37, 40, 41, and 47; and Form Interrogatories Nos. 2.3(b), 2.4, 2.5(b) and (c), 2.6, 2.7(d), 7.1, 12.5, 12.6, 14.1, 20.2(a), (c), (e), (f) and (g), 20.5, 20.8(a), (b) and (c), and 20.9. A motion to compel further production must set forth specific facts showing good cause justifying the discovery sought by the inspection demand. (See, e.g., CCP § 2031.310(b)(1).) Plaintiff has not identified why further responses should be required of Defendant. In his moving papers, Plaintiff merely stated in a conclusory manner that the documents sought will not only help evaluate Plaintiffs case, but it is most certainly necessary in facilitating a settlement in this matter. (RPD Motion, 8:3-4.) In reply, the only reason Plaintiff provided for granting the motions is that Defendants responses are not in substantial compliance. (RPD Reply, 4:12.) This falls short of the specific facts standard. Further, there is no separate statement identifying the particular responses and reasons for compelling further responses. Based on the foregoing, the Court denies Plaintiffs motions. The Court further DENIES Plaintiffs requests for monetary sanctions. Based on the declarations of Elham R. Rabbani, the Court finds that given the circ*mstances regarding the unavailability of attorneys, and given the early stage of this case and the lack of cooperation in granting the requested extensions, that the imposition of monetary sanctions would be unjust. CONCLUSION The Court DENIES Plaintiffs motions and further DENIES Plaintiffs requests for monetary sanctions. Defendant is ordered to give notice of the Courts ruling within five calendar days of this order.
Ruling
H. N. vs Scotts Valley Unified School District, et al
Jul 10, 2024 |22CV01828
22CV01828H.N. v. SCOTTS VALLEY UNIFIED SCHOOL DISTRICT, et al. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONSUMMARY OF RULING: Defendants’ motion for summary judgment/adjudication is granted on the grounds thatdefendants District, Krause and Wahl have established a complete defense to the action sincethey are immune pursuant to Government Code §§ 820.2, 815.2, and 855.4. The motion is granted as to defendant Gelter since plaintiff’s evidence fails to establishshe is liable for false imprisonment, negligence, intentional infliction of emotional distress, anyBane Act violation, or civil rights violations. I. BACKGROUND Plaintiff is a minor who was enrolled in first grade at Brook Knoll Elementary School in2022. Through his parental guardian he alleges a variety of harm, all related to actions by schoolemployees related to COVID-19 protocols and their impact on him. His causes of action are falseimprisonment, negligence, intentional infliction of emotional distress, violations of Civil Code§52 (Bane Act), and civil rights violations (First and Fourteenth Amendments of the USConstitution; Cal. Constitution, Art. I, section 2(a); and Education Code § 48907(a)). Defendants Scotts Valley Unified School District (“District”), Tanya Krause(superintendent), Joshua Wahl (principal), and Meghann Gelter (teacher) move for summaryjudgment or summary adjudication on the grounds they are immune from liability based uponGovernment Code §§ 820.2, 855.4, 818.2, and 820.4; that no false imprisonment occurred due toH.N.’s parental consent; negligence and intentional infliction of emotional distress fail since theDistrict’s and its employees’ measures were within a school’s customary supervisory duties andwere reasonable; and the Bane Act and civil rights claims fail since plaintiff had noconstitutional right to enter school unmasked or without participating in COVID-19 testing,defendants’ measures were reasonable, and the District is permitted to exclude students whor*fuse to comply with public health and safety measures related to communicable disease.1 Plaintiff’s allegations deal with the school’s implementation of COVID-19 protocolsrelated to his unvaccinated status and refusal to test over a two-month period in early 2022 –such as requiring him to remain home for 10 days despite no exposure, allegedly berating him to1 An additional defendant, Nadia Oskolkoff (Director of Student Services), was not included in defendants’ answerto the FAC and there is no default or dismissal in the court record. Defendants fail to mention her in their briefingand plaintiff identifies her only in his Bane Act claim arguing she called the police on him. (Opp. at 14.) Page 2 of 18wear a mask outdoors at recess, sequestering him from his peers with a 1:1 aide (even when heearned Student of the Week), sending him to the nurse when he refused to use hand sanitizer andasked to wash his hands instead, sending him to the principal’s office when he refused to wear amask (nearly every day), taking him aside and telling him not to discuss his family’s decisions infront of his peers, refusing to allow him to hold a sign at recess he made that said, “END THISNONSENSE,” and accusing him of disrupting class. (First Amended Complaint (“FAC”) ¶¶14-59) II. MOTION A. Moving papers Defendants’ motion is based primarily on applicable governmental immunities: • Government Code §§ 820.2, 815.22 – public employees immune for discretionary acts, and where a public employee is immune, the entity is as well. Defendants argue that all of their acts dealing with plaintiff and his unvaccinated status and refusal to mask or stay home required the exercise of discretion (making a conscious policy decision, balancing risks and advantages). (UMF 3, 4.) • § 855.4 – decisions to perform or not to perform acts promoting public health by preventing disease that is the result of discretion vested with the public entity; the district and its staff’s decisions as to how to protect plaintiff’s, and others’, health and provide plaintiff instruction when he refused to vaccinate, mask or stay home. (UMF 6, 7.) • § 818.2 – public entity not liable for adopting or failing to adopt an enactment or failing to enforce any law; here, the adoption of the Cal. Dept. of Public Health’s (“CDPH”) masking and quarantining policies for schools. (UMF 9, 10.) • § 820.4, Education Code § 44805 – immunity for acts or omissions, exercising due care, in the execution or enforcement of any law; district’s and staff’s enforcement of CDPH’s mandates and district policies and protocols for testing, masking and quarantining. (UMF 12-15.) As for false imprisonment (first cause of action), the district argues none of its conduct inseparating plaintiff from his classmates in the principal’s office or an unused classroom wasunlawful and therefore this claim fails. Since the district is required to supervise students at alltimes and to enforce rules and regulations for their protection, and students are required to be intheir classroom participating in a non-disruptive manner, defendants argue that their acts to2 All future statutory references are to the Government Code, unless otherwise stated. Page 3 of 18separate plaintiff and provide him instruction apart from his classmates was lawful. (UMF 17-24.) Defendants contend negligence (second cause of action) also fails since there is noevidence they breached their duty in supervising plaintiff while he was on school grounds. Theyexercised reasonable care in plaintiff’s supervision and did not breach their standard of care,which is that of a person of ordinary prudence, charged with comparable duties. (Hoyem v.Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513; C.A. v. Wm. S. Hart Union HighSch. Dist. (2012) 53 Cal.4th 861, 869.) While he was separated from others, defendantsaccommodated him by giving him a one-on-one substitute, schoolwork to complete, breaks,recess, and the ability to participate in his student of the week award presentation (conductedoutside). (UMF 25-29.) The intentional infliction of emotional distress (“IIED”) claim (third cause of action)allegedly fails since there is no evidence that defendants acted with extreme and outrageousconduct with the intention of causing emotional distress or realization that harm would result.Instead, they accommodated plaintiff’s refusal to comply with the COVID-19 protocols while hewas at school. (UMF 30-32.) Defendants argue the Bane Act claim (fourth cause of action) fails because there is noevidence that by threats or coercion, defendants intended to deprive plaintiff of his rights securedby federal or state law. They argue plaintiff’s conduct was not protected free speech since hisand his parents’ conduct were unquestionably disruptive to the orderly operation of the school, inviolation of Education Code § 48907. They contend plaintiff did not have any right to defy theCOVID-19 protocols and remain in school with his classmates. Further, plaintiff did not believeany defendant would commit violence against him and no defendant threatened or committedviolence against him. Even if plaintiff and his parents were offended by the COVID-19 protocolsand resulting measures to protect plaintiff and others, courts permit the exclusion of studentswho refuse to comply with public health and safety measures designed to prevent the spread ofcommunicable disease. (Love v. State Dept. of Education (2018) 29 Cal.App.5th 980, 990; Brownv. Smith (2018) 24 Cal.App.5th 1135, 1146.) (UMFs 33-36.) The civil rights violations alleged in the fifth cause of action must fail, defendants argue,because they were required to comply with and enforce the CDPH school mandates, and thosemandates were lawfully adopted via the governor’s emergency executive orders. (640 Tenth LPv. Newsom (2022) 78 Cal.App.5th 840, 855.) Defendants complied with those mandates and theirobligation to provide an alternative educational setting to plaintiff when he refused to complywith them. There is no evidence their actions constituted civil rights violations. (UMF 37-39.) B. Opposition Page 4 of 18 Plaintiff argues there are disputed material facts related to all his causes of action. Healleges defendants would not allow him on campus despite him not being sick and not needing toquarantine, and choosing to not use masks, tests or vaccines. In response to these choices,plaintiff says he was “punished, humiliated, ostracized, falsely imprisoned, and bullied byeducators,” that he was emotionally traumatized and requires therapy, and that he no longertrusts adults. He goes on to argue that defendants weaponized local government agencies – localpolice, the county superintendent, and president of the school board – against him and his family.He contends that his father’s interaction with a local police officer during a traffic stop, thecounty superintendent’s offer to involve the police regarding the family’s disruptive behavior,and the board member’s consideration of making a CPS report, support his weaponizationtheory. He argues immunity does not apply because defendants merely regurgitated CDPHprotocols and did not actually make any policy decisions; that defendants’ acts have nothing todo with public health but are instead tortious conduct; that they do not enjoy immunity for theiradoption of the enactment (CDPH mandates) since they are not law enforcement and there wasno “law” to enforce; and they were not exercising due care in the execution of a law since therewas no “law.” Plaintiff insists neither he nor his parents consented to his confinement and separationfrom his classmates, so his false imprisonment claim survives. He argues there are disputedmaterial facts as to whether defendants had any lawful privilege to separate plaintiff. Hecontends that defendants breached their duty to him in failing to use ordinary care by segregatingand discrimination against him, that there is evidence defendants’ conduct was extreme andoutrageous, and that threats of violence are not required to establish a Bane Act claim. Plaintiffthen argues that defendants punitively enforced the COVID-19 recommendations, which werenot approved through any due process requirements of the APA and had no force and effect oflaw. C. Reply On reply, defendants restate their arguments on immunity and clarify that discretionaryacts are those that require personal deliberation, decision and judgment and not merely theperformance of an act in which the actor is left without choice. (Johnson v. State of California(1968) 69 Cal.2d 782, 788.) Defendants argue they were faced with decision-making whenplaintiff refused to wear a mask, and that the CDPH mandates did not actually describe specificactions for how to respond to students who failed to comply. (Defendants’ RJN nos. 5-7.)Instead, district employees were left to figure out how to respond and how to accommodate usingtheir judgment. They argue these judgments and decisions were based on the goal of protectingthe school community by reducing the risk of threat of contagious and infection disease, thereby Page 5 of 18invoking immunity under § 855.4. (See Schmidt v. City of Pasadena (C.D. Cal. Mar. 21, 2024,
Ruling
BRENDA OWEN, AN INDIVIDUAL, ET AL. VS 365 CALIFORNIA BLVD, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |24STCV01173
Case Number: 24STCV01173 Hearing Date: July 9, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING BRENDA OWEN, Plaintiff, v. 365 CALIFORNIA BLVD, LLC, et al., Defendants. Case No: 24STCV01173 Hearing Date: July 9, 2024 Calendar Number: 13 Plaintiff Brenda Owen (Plaintiff) moves for an order setting this case for trial preference. The Court GRANTS Plaintiffs motion. Background This is a landlord-tenant case. Plaintiff, Jeff Owen (Owen), and Lawrence OBrien (collectively, Plaintiffs) filed this action non January 17, 2024, raising claims for (1) harassment in violation of Pasadena Municipal Code, section 1806, subd. (g); (2) retaliation in violation of Pasadena Municipal Code, section 1806, subd. (h); (3) negligence; (4) negligent hiring and supervision; (5) breach of implied warranty of habitability; (6) tortious breach of implied warranty of habitability; (7) breach of implied covenant of quiet enjoyment; (8) elder abuse; (9) retaliation under Civil Code, section 1942.5; (10) willful interruption of services under Civil Code, section 789.3; (11) violation of Civil Code, section 1940.2; (12) intentional infliction of emotional distress (IIED); and (13) unfair business practices. Owen and OBrien have resolved their claims and will be dismissing their claims, leaving Plaintiff Brenda Owen as the only remaining Plaintiff. Plaintiff moved for trial preference on May 31, 2024. No party filed an opposition. Legal Standard Actions can be set for trial preference under several circ*mstances. First, [a] party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. (Code Civ. Proc., § 36, subd. (a).) Second, [a] civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision. (Code Civ. Proc., § 36, subd. (b).) Third, [i]n its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference. (Code Civ. Proc., § 36, subd. (d).) Fourth, [n]otwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (Code Civ. Proc., § 36, subd. (e).) When a court grants a request for a preference, the court shall set the matter for trial not more than 120 days from the date and there shall be no continuance beyond 120 days, barring specified circ*mstances. (Code Civ. Proc. § 36, subd. (f).) Discussion Plaintiff seeks a setting of preference under the first statutory ground. Plaintiff is over 70 years of age. (Owen Decl. ¶ 2.) As the remaining Plaintiff, she has a substantial interest in the case as a whole. Plaintiff alleges that she has been injured by Defendants alleged failure to maintain Plaintiffs unit at a property that is owned and managed by Defendants and by Defendants alleged ongoing harassment of Plaintiff. Plaintiffs health has declined significantly over the past year and a half. Plaintiff has experienced a sustained increase in her blood pressure as well as blood pressure spikes. (Owen Decl. ¶ 13; Reid Decl. ¶¶ 13, 16.) Plaintiffs consistently elevated blood pressure has led to Plaintiffs hospitalization in February 2023. (Owen Decl. ¶¶ 7, 13.) These health changes have been debilitating due to Plaintiffs age and have led to an overall decline in health. (Owen Decl. ¶¶ 14-15.) The Court therefore finds that Plaintiffs health is such that a setting of trial preference is necessary in order to protect her interest in this litigation. Every Defendant has appeared and answered. Having found that the statutory requirements are met, the Court grants Plaintiffs request for a setting of trial preference.
Ruling
Duffert, Raymond vs. Oakmont Junior Vikings Football and Cheer et al
Jul 22, 2024 |S-CV-0052327
S-CV-0052327 Duffert, Raymond vs. Oakmont Junior Vikings Footballand CheerNo appearance required. CMC is continued to 10/14/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Geravis, Robert; Oakmont Junior Vikings Football and Cheer;Rodriguez, RaphaelAdditionally, no proof of service has been filed as to Defendant(s): Geravis,Robert; Oakmont Junior Vikings Football and Cheer
Ruling
MORPHOS GALLERY, INC., DBA CATHARINE CLARK ET AL VS. DAVID A. KLEIN ET AL
Jul 10, 2024 |CGC23610125
Real Property/Housing Court Law and Motion Calendar for July 10, 2024 line 3. DEFENDANT BRIAN GROSS , AN INDIVIDUAL, BRIAN GROSS FINE ART, INC. DEMURRER TO AMENDED COMPLAINT is OFF CALENDAR. Parties are ordered to comply with CCP 430.41 and meet and confer in person on a mutually agreeable date the week of July 15, 2024. The Court notes that the moving papers are 17 pages long. In the future parties are ordered to comply with the CRC regarding the length of the briefs. Defendant may re-file the demurrer after satisfying meet and confer requirement. =(501/HEK) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified and the opposing party does not appear.
Ruling
FARIBA NOURIAN, AN INDIVIDUAL VS CITY OF LOS ANGELES, A PUBLIC ENTITY, ET AL.
Jul 09, 2024 |21STCV37420
Case Number: 21STCV37420 Hearing Date: July 9, 2024 Dept: B SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT FARIBA NOURIAN, Plaintiff, vs. CITY OF LOS ANGELES, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO: 21STCV37420 [TENTATIVE] ORDER RE: DEFENDANTS MOTION FOR JUDGMENT ON THE PLEADINGS Dept. B 1:30 p.m. July 9, 2024 I. BACKGROUND On October 8, 2021, Plaintiff Fariba Nourian filed a complaint against Defendants City of Los Angeles, The Gary Michael Glushon and Kristan Ann Glushon Family Trust (the Trust), Gary Michael Glushon, Kristin Ann Glushon, and Gary Michael Glushon and Kristan Ann Glushon as Trustees of the Gary Michael Glushon and Kristin Ann Glushon Family Trust, alleging causes of action for negligence and premises liability, arising out of an alleged trip and fall on an uneven and/or raised and/or deteriorating sidewalk. On May 3, 2024, Defendant the Trust filed this motion for judgment on the pleadings. No opposition has been filed. II. LEGAL STANDARD A defendant may move for judgment on the pleadings where the court has no jurisdiction of the subject of the cause of action alleged in the complaint or the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438 subd. (c)(1)(B).) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.) Such motion may be made on the same ground as those supporting a general demurrer, i.e., that the pleading at issue fails to state facts sufficient to constitute a legally cognizable claim or defense. (Ibid.) In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., § 452; see also Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled. (Duval v. Board of Tr. (2001) 93 Cal.App.4th 902, 906.) In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged. (Fire Ins. Exch. v. Superior Court (2004) 116 Cal.App.4th 446, 452.) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged complaint or be based on facts which the court may judicially notice. (§ 438(d); Tiffany v. Sierra Sands Unified School Dist. (1980) 103 Cal.App.3d 218, 225.) A motion for judgment on the pleadings normally does not lie as to a portion of a cause of action. (Ibid.) In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action. (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) III. DISCUSSION Defendant the Trust argues that the complaint does not state sufficient facts against Defendant as it is not a legal entity and cannot be sued. A trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue, be sued or defend an action. Any litigation must be maintained by, or against, the executor, administrator or trustee of the estate. (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344.) Here, the complaint names The Gary Michael Glushon and Kristan Ann Glushon Family Trust as a defendant. However, a trust is not a proper defendant. Accordingly, the motion for judgment on the pleadings is granted without leave to amend. IV. CONCLUSION Based on the foregoing, Defendants motion for judgment on the pleadings is GRANTED without leave to amend. The complaint against the Trust is DISMISSED. Defendant is ORDERED to give notice. DATED: July 9, 2024 _____________________ Karen Moskowitz Judge of the Superior Court
Ruling
GAIL WIGGAN VS INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, ET AL.
Jul 09, 2024 |22STCV28415
Case Number: 22STCV28415 Hearing Date: July 9, 2024 Dept: 52 Tentative Ruling: (1) Non-Appearance Case Review Re: Notice of Related Case; (2) Plaintiff Gail Wiggans Motion for Consolidation Notice of Related Case Defendants Safe-Guard International Products, LLC and American Credit Acceptance, LLC each filed a notice of related case for this action and Gail Wiggan v. Interinsurance Exchange of the Automobile Club, et al., No. 22STCV28591. The cases are related. The two complaints are nearly identical. Plaintiff Gail Wiggan effectively filed the same action twice. Motion to Consolidate Plaintiff Gail Wiggan moves to consolidate this action with No. 22STCV28591. Moving papers must be served (Code Civ. Proc., § 1005) on all parties who have appeared in the action (Code Civ. Proc., § 1014). Plaintiff did not file proof of service of this motion on defendants. She only filed proof of service of the corresponding motion in No. 22STCV28591. The court will deny the motion without prejudice. Disposition The court finds this action is related to Gail Wiggan v. Interinsurance Exchange of the Automobile Club, et al., No. 22STCV28591. The court hereby reassigns case No. 22STCV28591 to Department 52 at Stanley Mosk Courthouse. Plaintiff Gail Wiggans motion for consolidation is denied without prejudice. The parties are ordered to meet and confer regarding consolidation of the actions within seven days.
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