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FILED: NEW YORK COUNTY CLERK 04/19/2023 01:32 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 04/19/2023FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK. --------------------------------------------------------------------X ANONYMOUS Index No. Plaintiff, -against- COMPLAINT ENTERPRISE PARKING SYSTEMS 11 LLC., d/b/a ENTERPRISE PARKING and GERARDO BATISTA Defendants. --------------------------------------------------------------------X Plaintiff Anonymous, by her attorneys, L & D LAW P.C., upon information and belief complains of the Defendants as follows: NATURE OF THE CASE 1. Plaintiff Anonymous (hereinafter “Plaintiff”) complains pursuant to the New York State Executive Law Art. 15, Section 2 and pursuant to NEW YORK CITY ADMINISTRATIVE CODE SECTION §8-101 and to remedy violations of state common law as a result of being intimidated, discriminated against, and refused a public accommodation by the Defendants on the basis of sex. Plaintiff further complains pursuant to NEW YORK CITY ADMINISTRATIVE CODE SECTION §8-902, the “Victims of Gender-Motivated Violence Protection Act” along with all other applicable state and local civil statutes and common laws. PARTIES 2. Plaintiff Anonymous is an individual woman who lawfully sought public accommodation at Enterprise Parking which has an address for the purposes of business located at 505 W. 1 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 37th St., New York, NY 10018. 3. Defendant Enterprise Parking Systems 11 LLC, (hereinafter “Enterprise Parking”) was and is a Domestic Limited Liability Company which is authorized to conduct business in the State and City of New York. 4. Defendant Enterprise Parking owns and operates a number of parking garages throughout the City of New York and therefore Defendants are an “owner, lessee, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation” as defined in New York State’s Executive Law, Article 15, § 296 and New York City Administrative Code Section §8-101. 5. Defendant Gerardo Batista is a male, and a resident of the State of New York who is the General Manager of the Enterprise Parking location at 505 W. 37th Street, New York, NY 10018. STATEMENT OF FACTS 6. Plaintiff Anonymous has resided at 505 W. 37th Street, New York, NY for ten years. During her years as a resident, she utilized the Enterprise Parking garage which is located in the same building. 7. The parking garage is directly connected to Plaintiff’s building and can be accessed by using a key fob at the lower level of the building. 8. Defendant Batista, has and currently acts as a Supervisor and General Manager for this particular garage. 9. Upon information and belief, Defendant Batista has been the Supervisor and Manager of such a location since the beginning of Plaintiff’s residency. 10. On or about November 12, 2021, at or around 2:00 P.M. EST, Plaintiff went down to the 2 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 parking garage to retrieve a keychain from the parking garage attendants’ booth. The Plaintiff’s vehicle had been parked in the spot from the day before. 11. Plaintiff discovered that after handing over her car, she needed a key that was located on a key chain that she left when valet parking her vehicle. 12. At or around this time, Plaintiff’s 2015 white Range Rover was valet parked and, in the possession, and exclusive control of Defendants. 13. Upon information and belief, Defendants’ employees and/or Defendant Batista, maintained the keys for Plaintiff’s vehicle. 14. At or around this time, after realizing a key was missing, Plaintiff went down to the concourse level and entered the Enterprise Parking garage. 15. As Plaintiff approached the main attendant’s booth, she realized no one was present and waited for an attendant to arrive. 16. Shortly thereafter, Defendant Batista arrived and came right up to the Plaintiff. 17. Plaintiff advised Defendant Batista that she needed her keychain and respectfully requested that Defendant Batista retrieve such keychain which would normally be located in the attendants’ booth. Alternative Plaintiff requested that the vehicle be brought to the main level of the garage so that the Plaintiff could get her keychain. 18. In response, Defendant Batista said “come with me,” at which point the Plaintiff followed Defendant Batista to the lower level of the garage where all the cars were parked. 19. The Plaintiff was a bit shocked when Defendant Batista asked the Plaintiff to accompany him to the car because in Plaintiff’s experience, attendants usually brought any missing item or keychain directly to the Plaintiff and/or similarly situated customers. 20. As Plaintiff followed Defendant Batista down the parking garage ramp and towards 3 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 Plaintiff’s car, the two engaged in a conversation over Plaintiff’s friend, who was charged $500.00 for allegedly parking an oversized vehicle. Plaintiff complained to Defendant Batista regarding such a charge. 21. In response to Plaintiff’s complaint, Defendant Batista advised the Plaintiff that if there were any other parking issues going forward, the Plaintiff should contact Defendant Batista directly. 22. Oddly, Defendant Batista handed the Plaintiff his phone and requested that the Plaintiff put her number into the phone. 23. The events that unfolded next, can only be describe as egregious, heinous and unlawful. 24. As the Plaintiff entered her number, she stood in shock as she realized that Defendant Batista already had the Plaintiff’s numbered stored under “Anonymous Fuss…white Land Rover.” 25. However, at no point in time did the Plaintiff ever give Defendant Batista her number. Additionally, Plaintiff’s only contact with Defendant Batista or any of Defendant’s employees was through Defendants’ main business line. 26. Plaintiff texted herself from the Defendant’s phone and sought to file an immediate complaint, however, the Plaintiff still needed her key. 27. As the two approached the car, the Defendant opened the door on the driver’s side to retrieve her keychain and handed in to the Plaintiff. At this point, as the Plaintiff attempted to separate her keys, Defendant Batista aggressively approached the Plaintiff, and attempted to kiss the Plaintiff on the mouth without consent. 28. Plaintiff immediately ordered Defendant Batista to “stop” and further exclaimed “what are you doing!” 29. At this point, the Plaintiff was shaking, just trying to remove her key from the key ring. 4 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 Immediately, Defendant Batista groped the Plaintiff, aggressively placed his right hand under the Plaintiff’s tank top and groped the Plaintiff’s bare left breast. 30. The Plaintiff struggled to move away, but Defendant Batista’s sexual predatory assault continued. 31. Defendant Batista again attempted to grab the Plaintiff and kiss her. The Plaintiff whipped her head back in an attempt to get away, but the Defendant pushed up against the Plaintiff’s breasts and managed to kiss the right side of Plaintiff’s face. 32. Next, the Defendant tightened his grip on the Plaintiff and forcefully pulled her closer. The Plaintiff attempted to pull back and turn away but was in a state of shock. The Plaintiff was shaking uncontrollably and was just trying to put her keychain back into the vehicle Then, Defendant Batista, hovering over the Plaintiff, facing her back side, with an erect penis, groped and assaulted the Plaintiff again by pushing his erect penis against the Plaintiff’s back and buttocks while exclaiming “Don’t you want this…Don’t you like me…What’s wrong baby…You’re not attracted to me?” 33. The Plaintiff wanted to scream, but Defendant’s sexual assault left the Plaintiff in complaint shock as silence. Nevertheless, Plaintiff knew she had to immediately flee the scene of the assault. Plaintiff specifically told the Defendant “STOP…This isn’t funny!” 34. Plaintiff managed to pull away and she hastily walked towards the side door exit. Defendant Batista walked step in step with the Plaintiff, as Plaintiff tried to use her key fob to get out of the garage. 35. Contemporaneous with trying to use her fob to exit the side door, the Plaintiff noticed that her key fob did not work. At this time, Defendant Batista again put his hand up the Plaintiff’s tank top and groped her bare left breast. 5 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 36. Defendant Batista then attempted to digitally penetrate the Plaintiff by placing his hand down the Plaintiff’s leggings. 37. While Defendant Batista had his hand down the Plaintiff’s leggings, Defendant Batista then moved his hand to grope the Plaintiff’s right buttocks. 38. Defendant Batista then tried to digitally penetrate, assault and rape the Plaintiff by grabbing her crotch. 39. Plaintiff pushed the Defendant away from her, pulled herself away, and again made multiple attempts to open the door which would not open. At this point, Defendant Batista backed off and Plaintiff bolted towards the original ramp that Defendant Batista led her down earlier. 40. As Plaintiff hastily moved up the ramp, Plaintiff made eye contact with another attendant that Plaintiff observed to be in shock on account of the fact that Plaintiff was walking up the ramp. 41. The above observation made of the attendant was because Plaintiff later learned that she was in a restricted area of the parking garage where customers were not permitted access. 42. The Plaintiff made her way back to her apartment where she broke down and took time to regain her composure after the heinous sexual assault committed by Defendant Batista. 43. Plaintiff thereafter made her way down to the lobby and explained to one of the porters, Troy, that an employee in the parking garage was wildly inappropriate with her. He recommended she report it to the manager Gerrardo. 44. The Plantiff asked one of the porters (Troy) whether they knew the Defendant’s last name because during and prior to the assault, Plaintiff only knew the individual Defendant as “Gerrardo.” 6 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 45. As Plaintiff spoke with the porter, she advised him that Defendant Batista was the one who was wildly inappropriate with the Plaintiff. In response, the porter recommended that the Plaintiff make a protected complaint with management of Enterprise Parking. 46. Unfortunately for the Plaintiff, Defendant Batista was the management, leaving Plaintiff feeling helpless and victimized. 47. On or about November 12, 2021, Plaintiff’s friend went down to the garage to get the Defendant’s last name and on November 13th, 2021, Plaintiff’s friend called one of the Defendant’s garage managers to report the incident since Plaintiff could not even gather the words. Plaintiff was present and a party to this call. 48. Plaintiff’s friend requested Defendant Batista’s last name (still unknown at the time), however, the other garage Manager (Juan Carlos), refused to release the name. 49. Plaintiff further advised her other friend, Lloyd, of the incident that occurred. On or about November 13, 2021, Lloyd also called the Defendant’s other garage Manager (Juan Carlos), and requested that all camera footage be preserved. In response, Juan Carlos requested that the Plaintiff call directly, despite the fact that Plaintiff was left in a catatonic state following the incident of sexual assault perpetrated by Defendant Batista. 50. On or about November 14, 2021, the Plaintiff gathered enough courage to directly contact Defendant’s Manager Juan Carlos. However, no one answer the Plaintiff’s call and Plaintiff was forced to leave a voicemail. 51. At or around this same time, Plaintiff was very distraught and Defendants’ actions forced the Plaintiff to leave her apartment and return to her Long Island residence. 52. On or about November 15, 2021, Manager Juan Carlos returned the Plaintiff’s call. Plaintiff advised Juan Carlos that she needed to file complaints and requested Defendant Batista’s 7 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 last name. Juan Carlos again refused to provide any name but stated in sum and substance that he contacted Defendant Batista over the weekend, who denied that the incident ever occurred. This seemed to satisfy Defendant Juan Carlos. 53. Plaintiff was shocked to hear Juan Carlos’ response, and then further inquired about the protocol for customers entering the garage’s lower level restricted area, and whether it was common protocol for customers to be brought down there. 54. In response, Juan Carlos advised that it was unsafe for customers to be on the lower level and that it would be extremely dangerous because of moving cars that went up and down the ramp. 55. Juan Carlos further advised the Plaintiff that he would report the incident to his superiors. 56. At or around this same time, Juan Carlos did in fact report the incident and subsequently provided the Plaintiff with their email address: info@enterpriseparking.com. 57. On or about November 15, 2021, Plaintiff reported the sexual assault and further requested that all camera footage be preserved. 58. In response, on or about November 15, 2021, Defendant’s Controller, Megan emailed the Plaintiff asking for an email, which outlined the chain of events as they occurred on the day of the sexual assault. By November 17th, Controller Megan called the Plaintiff and followed up with an email. 59. Plaintiff provided such a narrative, detailing the sexual assault incident. 60. Despite documentation and evidence that Plaintiff submitted such a narrative detailing the sexual assault, on or about December 2, 2021, Defendants stated that they did not receive any statement. 61. Upon information and belief, Defendants never took any corrective or preventative 8 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 measures to protect the Plaintiff. 62. Upon information and belief, Defendants never reprimanded, disciplined or terminated Defendant Batista. 63. Upon information and belief, Defendants may have transferred Defendant Batista, but the Defendant is still believed to be working for Defendant Enterprise’s company. 64. Upon information and belief, Defendants launched a faulty investigation and/or fabricated an investigation in which they refused to acknowledge that the sexual assault incident occurred. 65. Defendants claimed by way of email to take all allegations seriously, however, on or about December 9, 2021, Defendants’ representative Megan emailed the Plaintiff to advise her that Defendants were “unable to conclude any wrong doing” and further advised “there is nothing further, we can do as a company.” 66. Instead of taking preventative and corrective measures to address the sexual assault and discrimination, Defendants instead retaliated against the Plaintiff by leveling the Plaintiff with frivolous late parking garage fees, which Plaintiff was forced to address. 67. As a result of the discriminatory actions of Defendants, Plaintiff was forced to cancel her monthly parking garage membership. 68. As a result of Defendants’ actions, Plaintiffs felt extremely humiliated, degraded, victimized, embarrassed, and emotionally distressed. 69. As a result of Defendants’ harassment, discriminatory and intolerable treatment, Plaintiffs suffered and continue to suffer from anxiety and severe emotional distress. 70. As Defendants’ conduct has been malicious, willful, outrageous, and conducted with full knowledge of the law, Plaintiff demands Punitive Damages against all Defendants jointly 9 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 and severally. AS A FIRST CAUSE OF ACTION VIOLATION OF NEW YORK STATE EXECUTIVE LAW, ARTICLE 15, § 296 71. Plaintiff repeats and realleges each and every allegation made in the complaint as if they were set forth herein fully at length. 72. The term "place of public accommodation, resort or amusem*nt" shall include, regardless of whether the owner or operator of such place is a state or local government entity or a private individual or entity, except as hereinafter specified, all places included in the meaning of such terms as: …garages, all public conveyances operated on land or water or in the air, as well as the stations and terminals thereof; travel or tour advisory services, agencies or bureaus; public halls, public rooms, public elevators, and any public areas of any building or structure. 73. Under Executive Law Article 15, § 296 (b) It shall be illegal “to discriminate against any person because of his or her race, creed, color, disability, national origin, sexual orientation, gender identity or expression, military status, age, sex, marital status, lawful source of income or familial status in the terms, conditions or privileges of any publicly-assisted housing accommodations/public accommodations or in the furnishing of facilities or services in connection therewith. 74. Defendants violated NYS HRL Exec. Law 296 by discriminating against the Plaintiff in a public/housing accommodations setting. AS A SECOND CAUSE OF ACTION FOR DISCRIMINATION UNDER THE NEW YORK CITY ADMINISTRATIVE CODE SECTION §8-101 (EMPLOYER LIABILITY). 10 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 75. Defendants violated NYS HRL Exec. Law 296 by discriminating against the Plaintiff in a public/housing accommodations setting. 76. Plaintiff repeats and realleges each and every allegation made in the complaint as if they were set forth herein fully at length. 77. Employer liability for discriminatory conduct by employee, agent or independent contractor. a. An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of any provision of this section other than subdivisions one and two of this section. b. An employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of subdivision one or two of this section only where: (1) the employee or agent exercised managerial or supervisory responsibility; or (2) the employer knew of the employee's or agent's discriminatory conduct, and acquiesced in such conduct or failed to take immediate and appropriate corrective action; an employer shall be deemed to have knowledge of an employee's or agent's discriminatory conduct where that conduct was known by another employee or agent who exercised managerial or supervisory responsibility; or (3) the employer should have known of the employee's or agent's discriminatory conduct and failed to exercise reasonable diligence to prevent such discriminatory conduct. 78. Defendant Enterprise Parking is liable for discriminating against the Plaintiff based on the law set forth herein. AS A THIRD CAUSE OF ACTION FOR DISCRIMINATION/AIDING AND ABETTING UNDER THE NEW YORK CITY ADMINISTRATIVE CODE SECTION §8-101(6) (AS AGAINST INDIVIDUAL DEFENDANT BATISTA and DEFENDANT JUAN CARLOS) 79. Plaintiff repeats and realleges each and every allegation made in the complaint as if they were set forth herein fully at length. 11 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 80. It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this chapter, or to attempt to do so. 81. Defendant Batista did aid and abet the unlawful conduct cited herein. 82. Defendant Juan Carlos did aid and abet Defendant Batista’s conduct by refusing to take immediate preventative and corrective measure to protect the Plaintiff against further discrimination. AS A FOURTH CAUSE OF ACTION FOR NEGLIGENCE NEGLIGENT HIRING/TRAINING/RETENTION/SUPERVISION 83. Plaintiff hereby incorporates by reference all preceding paragraphs as if fully set forth herein. 84. Defendants owed Plaintiff a legal duty of care. Defendants placed their employees in a position to cause foreseeable harm which the Plaintiff would have been spared had the Defendants taken reasonable care in supervising or retaining the employee. 85. The Defendants knew or should have known of their employees’ propensity for the conduct that caused the injury. 86. But-for the Defendants’ breach of duty owed to Plaintiff, and Plaintiff’s detrimental reliance thereon, Plaintiff would not have suffered the harm alleged herein. 87. Defendants were negligent in the hiring, training, supervision and retention of said employees. 88. As a direct and proximate cause of Defendants’ wrongful conduct, Plaintiff has suffered and will continue to suffer emotional distress, mental anguish, and other damages for which Plaintiff is entitled to compensatory, equitable and other lawfully available relief in an amount to be proven at trial. AS A FIFTH CAUSE OF ACTION UNDER 12 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 N.Y.C. ADMINISTRATIVE CODE §8-903-6 ALSO KNOWN AS THE GENDER-MOTIVATED VIOLENCE ACT (“GMVA”) (As Against Defendant Batista) 89. Plaintiff repeats and realleges each and every allegation contained in the preceding paragraphs of the Complaint as set forth at length herein. 90. In relevant part, GMVA, N.Y.C. Code § 8-904 provides, “[A]ny person claiming to be injured by an individual who commits a crime of violence motivated by gender as defined in section 8-903 of this chapter, shall have a cause of action against such individual.” 91. Section 8-903 defined “crime of violence” as “an act or series of acts that would constitute a misdemeanor or felony against the person as defined in state or federal law…if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges.” 92. Section 8-903 also provides that such an act is “motivated by gender” if it is “committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.” 93. In this case, Defendant Batista (i) committed an act that constituted a felony when (ii) he presented a serious risk of physical injury and did in fact physically injure the Plaintiff when he sexually assaulted Plaintiff (iii) on account of her gender, (iv) when sexual advances were rejected and Defendant Batista developed or already had an animus toward the Plaintiff’s gender, (v) which resulted in serious injury to the Plaintiff who was in fact a female. 94. Defendant Batista is liable to the Plaintiff under the GMVA in which Plaintiff claims damages in an amount to be determined at trial. AS A SIXTH CAUSE OF ACTION UNDER CIVIL ASSAULT (As Against Defendant Batista) 95. Plaintiff repeats and realleges each and every allegation contained in the preceding 13 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 paragraphs of the Complaint as set forth at length herein. 96. Assault is commonly defined under NYS law as an intentional attempt or threat to inflict injury on another person, • Coupled with an apparent ability to cause the harm, • Which creates a reasonable apprehension of bodily harm or offensive contact in the victim 97. In this case, Defendant Batista did in fact attempt to inflict injury on the Plaintiff by attempting to digitally penetrate the Plaintiff while groping her buttocks and breasts. AS A SEVENTH CAUSE OF ACTION UNDER CIVIL BATTERY (As Against Defendant Batista) 98. Plaintiff repeats and realleges each and every allegation contained in the preceding paragraphs of the Complaint as set forth at length herein. 99. Civil Battery is defined as (i) the intentional touching of, or application of force to, the body of another person, in a harmful or offensive manner, and without the victim’s consent. 100. In this case, Defendant Batista intentionally touched and forced himself upon the Plaintiff without Plaintiff’s consent. 101. Defendant Batista is liable to the Plaintiff for Battery. AS AN EIGHTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (As Against Defendant Batista) 102. Plaintiff repeats and realleges each and every allegation contained in the preceding paragraphs of the Complaint as set forth at length herein. 103. Intentional infliction of emotional distress is defined as (i) Repugnant and shocking conduct, (ii) Done intentionally, or with disregard for the very high risk of causing debilitating emotional distress, (iii) causation and (iv) Actual debilitating and harmful 14 of 15FILED: NEW YORK COUNTY CLERK 04/19/2023 04/28/2022 01:32 04:45 PM INDEX NO. 155233/2022NYSCEF DOC. NO. 24 2 RECEIVED NYSCEF: 04/19/2023 06/22/2022 emotional distress. 104. Defendant Batistas intentional and/or reckless unlawful conduct was repugnant and shocking, done intentionally and/or with reckless disregard and was the actual cause of debilitating and harmful emotional distress as against the Plaintiff. 105. Defendant Batista is liable to the Plaintiff for intentional infliction of emotional distress. JURY DEMAND Plaintiff demands a trial by jury. WHEREFORE, Plaintiff demands judgment against the defendants jointly and severally herein in an amount which exceeds the jurisdictional limitations of all lower courts which would otherwise have jurisdiction over this, together with the interest, costs and disbursem*nts of this action. Dated: New York, NY June 22, 2022 Respectfully Submitted L & D LAW P.C. Attorneys for Plaintiff(s) ___/s/_____________________ Paul Liggieri, Esq. 11 Broadway, Ste. 615 New York, New York 10004 (212) 374-9786 15 of 15
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Neither party disputes that the information conveyed tothe F.B.I. was erroneously made as the District Attorney’s Office investigator was relyingon information which had been incorrectly entered into its internal database.Anti-SLAPP A SLAPP suit (Strategic Litigation Against Public Participation) is a suit brought“primarily to chill the valid exercise of constitutional rights of freedom of speech andpetition for redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) The anti-SLAPP statute permits a defendant whose free speech rights and/or rightto petition have been infringed to move the court to strike the SLAPP suit. The anti-SLAPPstatute may be invoked to challenge suits based on four different categories of speech: (1) statements made before a legislative, executive, judicial, or other official proceeding; (2) statements made in connection with an issue being considered by a legislative, executive, or judicial body; (3) statements made in a public forum or in connection with an issue of public interest; OR (4) any other conduct in furtherance of the exercise of the constitutional right of petition or free speech, in connection with an issue of public interest.(Code Civ. Proc., § 425.16, subd. (e).) Categories (a) and (b) are NOT limited to issues of public interest, while categories(c) and (d) ARE limited to issues of public interest. (Ibid.) The anti-SLAPP is one of the few motions where the burden is on the party opposingthe motion. First, the defendant must make a prima facie showing that plaintiff’s lawsuitarises from “an act in furtherance of a person’s right of petition or free speech under theUnited States or California Constitutions in connection with a public issue,” as defined insubdivision (e). Once defendants make such prima facie showing, the burden shifts tothe plaintiff to establish a “probability” that it will prevail on whatever claims are assertedagainst the defendants. (See Code Civ. Proc., § 425.16, subd. (b); Dixon v. Superior Court(1994) 30 Cal.App.4th 733, 744.) The plaintiff must show: (1) a legally sufficient claim (i.e.,a claim which, if supported by facts, is sustainable as a matter of law); and (2) that theclaim is supported by competent, admissible evidence within the declarant’s personalknowledge. (See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78Cal.App.4th 562, 568.)First Prong The moving party only needs to make a prima facie showing that the cause ofaction arises from constitutionally protected free speech or petition activity. (GovernorGray Davis Committee v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.) A claim is only subject to the anti-SLAPP statute if the protected activity forms thebasis for the claim. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th1057, 1062.) The act underlying the cause of action must have been in furtherance ofthe free speech or right of petition. (Id. at 1063.) Here, defendant has made a prima facie showing that the first and third causesof action arise from a protected activity. Specifically, defendant has made a prima facieshowing that the communication by the Fresno County District Attorney’s Officeinvestigator to the F.B.I. regarding the status of charges brought against plaintiff is aprotected activity. Here, plaintiff specifically alleges that the F.B.I. commenced aninternal investigation relating to his employment because of the charges. (FAC, ¶ 25.)Plaintiff suggests that this internal investigation does not constitute an official proceeding.However, plaintiff’s position is entirely unsupported as it appears to imply that the F.B.I. isnot a governmental agency under these circ*mstances. The F.B.I. is a governmentagency under the umbrella of the Department of Justice. (28 U.S.C. §§ 531 et seq.) TheF.B.I.’s internal investigation is an official proceeding. (Hansen v. California Dept. ofCorrections and Rehabilitation (2008) 171 Cal.App.4th 1537, 1544; Shaddox v. Bertani(2003) 110 Cal.App.4th 1406, 1415.) Furthermore, when the F.B.I. makes a request forinformation regarding individuals under investigation, including for its own employmentpurposes, criminal justice agencies are obligated to comply with such requests. (5U.S.C.A. § 9101.) As such, defendant was obligated to provide the requested informationto the F.B.I. Defendant has met the threshold required that the causes of action arise from aprotected activity.Second Prong If the moving party can meet the first prong, then the burden shifts to the opposingparty to show a probability that he will prevail on the claims based on protected activityasserted against the moving party. (See Code Civ. Proc., 425.16, subd. (b).) Theopposing party must produce evidence which would be admissible at trial. (Chavez v.Mendoza (2001) 94 Cal.App.4th 1083, 1087.) The probability of prevailing is established ifthe opposing party presents evidence which would result in a judgment for the opposingparty, if believed by the trier of fact. (Thomas v. Quintero (2005) 126 Cal.App.4th 635,637.) In considering this issue, the court looks at the pleadings and evidentiary submissionsof the parties, without weighing the credibility or strength of competing evidence.(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) A plaintiff's complaintneed only be shown to have “minimal merit”. (Soukup v. Law Offices of Herbert Hafif(2006) 39 Cal.4th 260, 279; Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 95.) Here, plaintiffhas alleged the first cause of action for defamation based on libel and the third causeof action for intentional interference with prospective economic advantage againstdefendant Fresno County. Both of these claims are based on a communication madeby a Fresno County District Attorney’s Office investigator to an F.B.I. agent regarding thestatus of criminal prosecution involving plaintiff. Libel is a “false and unprivileged publication … which causes him to be shunnedor avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.)Here, the third cause of action for interference with prospective economic advantage isbased on the same acts alleged in the libel cause of action. As such, it is derivative ofthe libel cause of action. (Lee v. Fick (2005) 135 Cal.App.4th 89, 93, 98.) Defendantacknowledges that the communication was based on erroneous information, but assertsthat plaintiff cannot prevail on these causes of action because the statement, whileerroneous, is privileged and the government has immunity. Civil Code section 47, subdivision (b) provides that statements made in legislative,judicial, other official proceedings, or in the initiation or course of proceedings authorizedby law are privileged publications. Statements made in furtherance of a governmentalinvestigation are privileged under Civil Code section 47. (Braun v. Bureau of State Audits(1998) 67 Cal.App.4th 1382, 1389-1390.) While plaintiff asserts that the Braun case isinapplicable here because it was specifically about investigative audits pursuant to theReporting of Improper Governmental Activities Act, this argument lacks merit. Indeed,Braun specifically notes that its decision is consistent with many other cases involvingcommunications to official agencies. (Ibid.) As discussed above, the F.B.I.’s internalinvestigation is an official proceeding. As such, the communication is subject to theprivilege here. Civil Code section 47, subdivision (c) also provides privilege for communicationsmade without malice to a person interested in the communication (1) by a person whois also interested or (2) has a reasonable ground for supposing the motive of thecommunication to be innocent or (3) who is requested by the interested person to givethe information. Malice is defined as being motivated by hatred or ill will, or by a showingthe defendant lacked reasonable grounds for belief in the truth of the publication andacted in reckless disregard of the plaintiff’s rights. (Rockridge Trust v. Wells Fargo, N.A.(2013) 985 F.Supp.2d 1110, 1159.) Plaintiff argues that he should be permitted to conductdiscovery regarding whether defendant’s investigator acted with malice. However, thisdisregards that the investigator has provided her declaration where she clarifies that anF.B.I. agent sought information about plaintiff’s criminal matter, that she reviewed theinternal database, and conveyed the information contained in the database afterconfirming she was sending it to a valid email address for the F.B.I. (See Nadeau Decl.)Additionally, even if discovery might assist plaintiff here, defendant has establishedprivilege based on subdivision (b). Government Code section 815 articulates that public entities are not liable forinjury except where provided for by statute. Plaintiff argues that Government Codesection 815.2 is applicable, which provides for liability for acts and omissions of publicentity employees where personal liability could attach to the employee. Plaintiff arguesthat the pleadings do not include any facts about the investigator’s job duties. However,this too disregards that the investigator has provided a declaration which explicitly statesthat as part of her job duties, she is “tasked with responding to requests for criminal caseinformation from federal and state law enforcement agencies, including responding tosuch inquiries made via telephone.” (Nadeau Decl., ¶ 3.) Plaintiff fails to recognize thatCode of Civil Procedure section 425.16, subdivision (b)(2) specifically provides that thecourt is to consider the pleadings and any supporting or opposing declarations in an anti-SLAPP motion. Plaintiff’s argument here is without merit as the investigator’s declarationclarifies the job duties, including reporting to agencies such as the F.B.I. Public employees are not liable for injuries caused by instituting or prosecutingjudicial or administrative proceedings within the scope of their employment. (Gov. Code,§ 821.6.) The court in Leon v. County of Riverside (2023) 14 Cal.5th 910, 922 recentlyclarified that Government Code section 821.6 “is more aptly characterized as providingimmunity against liability for claims of injury based on tortious or wrongful prosecution.”The immunity applies if the conduct alleged “was the institution or prosecution of anofficial proceeding.” (Ibid.) Critically here, the communication was the investigatorreporting the results of the judicial proceedings to the F.B.I. While the court in Leon clarifies that Government Code section 812.6 “does notbroadly immunize police officers or other public employees for any and all harmfulactions they may take in the course of investigating a crime,” Leon does not clearlyaddress the question of reporting the results of a completed judicial proceeding. (Id. atp. 915.) The court in Leon did not challenge the long held understanding thatprosecuting “an action is not merely to commence it, but includes following it to anultimate conclusion.” (Id. at p. 920, quoting Black’s Law Dict. (4th ed. 1951) p. 1385, col.1;see 12 Oxford English Dict. (2d ed. 1989) p. 662.) The court in Leon also noted its previousruling in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710 which provided thatholding a person in jail beyond the person’s sentence was not subject to GovernmentCode section 812.6 immunity. (Leon v. County of Riverside, supra, 14 Cal.5th at p. 920.) That said, Leon specifically notes its disapproval of Ingram v. Flippo (1999) 74Cal.App.4th 1280. (Leon v. County of Riverside, supra, 14 Cal.5th at p. 930.) In Ingram,the communication at issue was a letter and press release made by a district attorneyregarding minor violations of the Brown Act by members of a school board which did notresult in criminal proceedings. (Ingram v. Flippo, supra, 74 Cal.App.4th at p. 1283-1285.)In determining that Government Code section 812.6 applied and the communicationwas therefore immune, Ingram relied on Kayfetz v. State of California (1984) 156Cal.App.3d 491, Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, and CitizensCapital Corp. v. Spohn (1982) 133 Cal.App.3d 887. Defendant here also relies on Kayfetzand Cappuccio, which have not been directly overruled, but, in light of the Leon court’sexplicit disapproval of Ingram, this court is not inclined to find the immunity applies here.Ultimately, the Civil Code section 47, subdivision (b) privilege applies and therefore thecourt does not need to apply this immunity in order to grant the anti-SLAPP motion. Here, defendant has met its burden in showing the causes of action arise fromprotected activity and plaintiff cannot demonstrate a likelihood of prevailing on themerits where the communication at issue was privileged.Demurrer In light of the above, the court need not reach the merits of the demurrer. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 08/26/24 . (Judge’s initials) (Date)
Ruling
KELLY LANGE, AN INDIVIDUAL, ET AL. VS BEL-AIR COUNTRY CLUB, A CALIFORNIA CORPORATION
Aug 26, 2024 |Renee C. Reyna |21STCV44719
Case Number: 21STCV44719 Hearing Date: August 26, 2024 Dept: 29 Lange v. Bel-Air Country Club 21STCV44719 Defendants Motion to Compel Plaintiff to Sign Authorization for Release of Medicare Records Tentative The motion is denied. Background On December 7, 2021, Kelly Lange and James Everling (collectively Plaintiffs) filed a complaint against Bel-Air Country Club (Defendant) and Does 1 through 50, asserting causes of action for premises liability and general negligence arising out of incident in which, Plaintiffs allege, both Plaintiff fell on a dance floor on December 7, 2019. On May 10, 2022, Defendant filed its answer. On July 24, 2023, Defendant filed a cross-complaint against The Thalians (Thalians); Jimmy Carnelli Music & Entertainment, Inc. dba Jimmy Carnelli Entertainment (Carnelli); and Roes 1 through 25. On August 14, 2023, Plaintiffs amended their complaint to name Thalians as Doe 1 and Carnelli as Doe 2. On September 25, 2023, Thalians filed an answer to Plaintiffs complaint and Carnelli filed an answer to Defendants cross-complaint. On June 14, 2024, Defendant filed this motion for an order compelling Plaintiffs to sign a HIPAA Authorization for Release of Records. Defendants also seek certain other relief and monetary sanctions. On July 10, Plaintiffs filed an opposition, along with their own request for sanctions. Defendant filed a reply on July 16. This motion was initially set for hearing on July 23 and was continued to August 26. Legal Authority The process by which a party may obtain discovery from a person who is not a party to the action is through a deposition subpoena. (Code Civ. Proc., § 2020.010, subd. (b).) Personal service of the deposition subpoena on the non-party is required. (Code Civ. Proc., § 2020.220, subd. (b).) A deposition subpoena may command any of the following: (a) Only the attendance and testimony of the deponent &. (b) Only the production of business records for copying &. (c) The attendance and the testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. (Code Civ. Proc., § 2020.020.) If a deponent on whom a deposition subpoena has been served fails to attend a deposition or refuses to be sworn as a witness, the court may impose on the deponent the sanctions described in Section 2020.240 [contempt and an action for civil damages under section 1992]. (Code Civ. Proc., § 2025.440, subd. (b).) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (Code Civ. Proc., § 2025.480, subd. (a).) Except as specifically modified by the Civil Discovery Act, the provisions of Code of Civil Procedure sections 1985 through 1997 apply to deposition subpoenas. (Code Civ. Proc., § 2020.030.) Code of Civil Procedure section 1987.1, subdivision (a), states: If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. Discussion There is no express provision in the Civil Discovery Act (or anywhere else in the Code of Civil Procedure) for a party to seek an order, or a court to make an order, compelling a party to sign an authorization for the release of their medical records. Generally, courts lack the power to order civil discovery by a method that is not authorized in the Code of Civil Procedure. (Haniff v. Super. Ct. (2017) 9 Cal.App.5th 191, 200.) Defendant contends the Court has authority, citing Evidence Code sections 991, 996, and 999. These code provisions relate to the Physician Patient Privilege and do not grant (expressly or impliedly) the Court authority to order Plaintiffs to sign an authorization for release of records. The Court is aware of three appellate cases in California that mention this issue, but none address it directly, and none are on point. In each case, the superior court had issued an order compelling a party to provide an authorization for disclosure of medical records, but in neither case did the Court of Appeal directly address whether the superior court had acted properly in doing so (or had the authority to do so). For example, in Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913, the Court of Appeal affirmed a sanction against a party who had violated the court order to provide the authorization, without ruling on whether the underlying order was properly issued. In Coats v. K-Mart Corp. (1989) 215 Cal.App.3d 961, the issue on appeal related to the statute of limitations, although the superior court had issued an order for a compelled authorization for the records of a decedent. And in Little v. Superior Court (1968) 260 Cal.App.2d 311, the Court of Appeal reversed (on other grounds) a judgment of contempt for failing to comply with an order for a compelled authorization.) Of course, cases do not provide authority or guidance on issues that the appellate court did not address or decide. There is a statutorily authorized procedure for obtaining records from a non-party: issuing and enforcing a subpoena, whether under Code of Civil Procedure section 1987.1 or section 2020.020. Indeed, in the Miranda case, the Court of Appeal was puzzled regarding why this standard procedure had not been followed. (Miranda, supra, 117 Cal.App.4th at p. 918 fn. 2.) Given the absence of statutory authority to compel an authorization and the presence of an express statutory alternative, the Court sees no basis to conclude that it has an implied power to compel a party to provide an authorization for the release of their medical records. In its reply, Defendant argues for the first time that the presence of a statutory alternative is illusory, as a Medicare attorney has advised that Medicare will simply ignore state court subpoenas and state court orders. That may or may not be Medicares litigation position, but this court has ample authority to issue orders against any nonparty witness (whether a private citizen or a state or federal government agency) that fails to comply with a subpoena. To the extent that there is any implied authority in this area (a proposition as to which the Court expresses some skepticism), it would apply only if and when all alternatives are exhausted: that is, after a subpoena is issued, the agency fails to comply, the party issuing a subpoena seeks and obtains a court order directing the agency to comply, the agency still refuses to comply, and the other express enforcement mechanisms set forth in the Code of Civil Procedure are ineffective in obtaining the agencys compliance. Accordingly, Defendants request for an order compelling Plaintiffs to provide authorizations is denied. The other relief sought in Defendants motion is also denied. Other discovery tools (including interrogatories and requests for production) appear to be available for Defendant to seek the requested information. Both parties requests for sanctions are denied. Defendants request is denied as it has not successfully made a motion to compel. Plaintiffss request is denied because the Court finds that, given the uncertainty surrounding this issue and the lack of clear appellate authority, Defendants conduct in bringing this motion, although unsuccessful, was substantially justified. Conclusion The Court DENIES Defendant Bel-Air Country Clubs motion. The Court DENIES both requests for sanctions. Moving party to provide notice.
Ruling
ROSALES, GEETANGALY PRASAD vs TURLOCK UNIFIED SCHOOL DISTRICT
Aug 27, 2024 |CV-23-003274
CV-23-003274 – ROSALES, GEETANGALY PRASAD vs TURLOCK UNIFIED SCHOOL DISTRICT – Defendant’s Demurrer to the Second Amended Complaint – OVERRULED.Defendant's Demurrer to the Second Amended Complaint for Damages is OVERRULED. Preliminarily, Defendant’s reply brief’s table of contents and table of cases appear unrelated to this case.“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) The Court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)Defendant’s primary argument is that Government Code § 831.7 grants them immunity as a matter of law.Section 831.7 grants immunity when a participant is involved in a “hazardous recreational activity” which includes “[w]ater contact activities.” Perry v. East Bay Regional Park Dist. (2006) 141 Cal.App.4th 1 holds (probably in dicta) that swimming without a lifeguard is in fact definitionally a hazardous recreational activity under the code.Nonetheless, the district may have an obligation to its students – probably even its trespassing students – under Constantinescu v. Conejo Valley Unified School District, (1993) 16 Cal.App.4th 1466. It cites with approval the California Law Revision Committee’s statement that “where it is reasonably foreseeable that persons to whom a lower standard of care is applicable – such as children – may be exposed to a substantial risk of injury from the property, the public entity should be required to take reasonable precautions,” offering an example: “Thus, a public entity may be expected to fence a swimming pool[.]”Here, there was fencing, but the question of the adequacy of the fencing is addressed in the Second Amended Complaint. It also alleges that a school function, a football game was in progress. These allegations defeat the demurrer. Defendant is ordered to file an answer within 15 days of this ruling.Defendant asserts that Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492 renders Plaintiff a trespasser ineligible to sue. But Bartell specifically uses the language that this exemption applies when the student is on the premises “apart from school-related activities and functions which require persons to be on school grounds.Defendant aptly cites to Bartell at 499-500: Even though a harm may be foreseeable, as under plaintiffs' pleadings it was here, a concomitant duty to forestall and prevent the harm does not automatically follow. (Internal Citations Omitted.) Rather, the question is whether the risk of harm is sufficiently high and the amount of activity needed to protect against harm sufficiently low to bring the duty into existence, a threshold issue of law which requires the court to consider such additional factors as the burdensomeness of the duty on defendant, the closeness of the relationship between defendant's conduct and plaintiff's injury, the moral blame attached to defendant's conduct and plaintiff's injury, and the prevention of future harm.Here, such an analysis is different than Bartell’s, which would have required a full lockdown. In this case, prevention would have involved having a person present or fixing known issues prior to the swimming accident. If there had not been a simultaneous event going on, Defendant would have been immune.Defendant cites to cases and asserts “The Courts are very clear that the duty of a school to its students ends after school hours unless it is a school sponsored athletic practice.” This is not at all clear to this particular Court. Consider a simple case where a drama club production is put on in the school auditorium after hours. The auditorium floor has some standing slick spot where a student – whether in or out of the club - trips and falls. It seems unlikely that this is exempted.This is a close case at the demurrer stage, but I find that Defendant is not facially exempted from liability based on Plaintiff’s pleadings. Defendant is to file an Answer within 15 days. The matter is set for Case Management Conference on November 18, 2024, at 2:00 p.m. in Department 21.
Ruling
HERNANDEZ vs LOPEZ
Aug 29, 2024 |CVRI2402735
Motion to Strike Complaint on Complaintfor Auto (Over $35,000) of FABIANCVRI2402735 HERNANDEZ vs LOPEZHERNANDEZ by ANTHONY DANIELLOPEZTentative Ruling:This action arises from a motor vehicle accident that occurred on 6/18/2022, wherein Plaintiff,who was a passenger in a vehicle driven by Defendant, sustained injuries when Defendant’svehicle hit a hydrant, struck a fence and overturned multiple times. (Compl. 5.) Plaintiff allegesthat, at the time of the accident, Defendant was driving at approximately 60 mph in a 45-mphzone, was ignoring traffic control signs, and was intoxicated with a blood alcohol level exceedingthe legal limit. (Id. at 6.) He alleges that Defendant’s actions were done with absolute andconscious disregard and callous indifference to the rights and safety of other persons, and thatDefendant knowingly and willingly became intoxicated with the full knowledge that his intoxicationrendered him physically unfit to operate a motor vehicle safely. (Id.)On 5/15/2024, Plaintiff filed a Complaint against Defendant, alleging (1) motor vehicle, (2) generalnegligence, and (3) punitive and exemplary damages.***Defendant now moves to strike punitive damages from the Complaint on the grounds that it failsto set forth facts sufficient to support a claim for punitive damages. Specifically, Defendant arguesthat the Complaint fails to allege facts sufficient to constitute malice or oppression. He furtherargues that Plaintiff’s allegations as to his intoxication is insufficient to support an award of punitivedamages.In opposition, Plaintiff argues that his claim for punitive damages has been properly pled, and thatless particularity is required where Defendant has superior knowledge of the facts and is put onnotice through specific allegations of the basis for such claim. He further argues that hisallegations regarding Defendant’s conduct is sufficient to allege malice in accordance withCalifornia law and to provide Defendant with notice of the issues sufficient for him to prepare adefense.In reply, Defendant argues that Plaintiff failed to properly serve him with the opposition, and thus,should not be considered. He further argues that the Complaint and opposition do not allege anyfacts that support a finding of malice against him. He thus asks the Court to grant the motion, andstrike Plaintiff’s claim for punitive damages without leave to amend. By presenting a substantivereply, Defendant waived any defect or irregularity in services, and thus, the Court will exercise itsdiscretion to consider the opposition. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)Analysis1. Meet and ConferDefendant satisfied his obligation to meet and confer via telephone in accordance with CCP §435.5(a), and filed an appropriate declaration in accordance with CCP § 435.5(a)(3). (SeeBarcena Decl. ¶ 3 [stating that the parties’ counsel met and conferred over the phone on7/25/2024, but they were not able to reach an agreement].)2. Motion to StrikeThe court may, upon a motion made pursuant to CCP § 435: (a) Strike out any irrelevant, false,or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawnor filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP § 436.)On a motion to strike, as with a demurrer, the court reads the allegations of the complaint as awhole, and accepts the facts alleged as true. (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253,1255.) A motion to strike is the proper vehicle to attack a punitive damages claim where the factsalleged do not rise to the level of fraud, malice or oppression. (CCP §§ 435–436; Turman v.Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) If the defect in the pleading iscorrectible, leave to amend should be granted. (Grieves v. Sup. Ct. (1984) 157 Cal.App.3d 159,168.)3. Punitive DamagesTo support a demand for punitive damages under Civ. Code § 3294, a plaintiff must plead andprove facts demonstrating malice, oppression, or fraud as defined in Civ. Code § 3294(c). “Malice”is defined as “conduct which is intended by the defendant to cause injury to the plaintiff ordespicable conduct which is carried on by the defendant with a willful and conscious disregard ofthe rights or safety of others,” while “oppression” is defined as “despicable conduct that subjectsa person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code§§ 3294(c)(1)–(2).) Despicable conduct is conduct that is base, vile or contemptible. (CollegeHospital, Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 725.)The mere allegation that an intentional tort was committed is not sufficient to warrant an award ofpunitive damages. (Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 894.) “There must be circ*mstancesof aggravation or outrage, such as spite or malice or a fraudulent or evil motive on the part ofdefendant, or such conscious and deliberate disregard for the interests of others that his conductmay be called willful or wonton.” (Id. at 894–95 [citation and internal quotation marks omitted];see also G.D. Searle & Co. v. Sup. Ct. (1975) 49 Cal.App.2d 22, 29; Smith v. Sup. Ct. (1992) 10Cal.App.4th 1033, 1041–42.) Thus, punitive damages may be recovered for a non-intentional tortwhere a plaintiff pleads and proves that the defendant acted with “conscious disregard of therights and safety of others.” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299[quoting Gawara v. United States Brass Corp. (1998) 63 Cal.App.4th 1341, 1361].) “In order tojustify an award of punitive damages on this basis, the plaintiff must establish that the defendantwas aware of the probable dangerous consequences of his conduct, and that he willfully anddeliberately failed to avoid those consequences.” (Taylor, supra, 24 Cal.3d at 895–96.)Plaintiff in the present case allege the following: at the time of the accident, Defendant was drivinga vehicle on the public streets and highways at an excessively high speed above the speed limit,ignoring traffic control signs, and driving while intoxicated with a blood alcohol level exceedingthe legal limit; specifically, Defendant sped down a two-lane roadway at speed exceeding 60 mphin a 45-mph zone, hit a hydrant, struck a fence and overturned multiple times, causing physicalharm to Plaintiff, including spinal paralysis; all of this was done with absolute and consciousdisregard and callous indifference to the rights and safety of other persons on public streets andhighways; Defendant knowingly and willingly became intoxicated with the full knowledge that hisintoxication rendered him physically unfit to operate a motor vehicle safely; the Riverside CountyDistrict Attorney charged Defendant with a violation of Veh. Code § 23152(b), for driving with ablood alcohol level exceeding the legal limit; and Defendant was convicted of driving under theinfluence arising out of this case. (Compl. 6.)While general allegations of intoxication without more do not adequately support a demand forpunitive damages (Dawes v. Sup. Ct. (1980) 111 Cal.App.3d 82, 88–90), the allegations aboveare sufficient under Taylor to state a claim for punitive damages. Accordingly, Defendant’s motionto strike is denied.Summary:DENY Defendant’s motion to strike Plaintiff’s allegations and prayer for punitive damages.
Ruling
FCS057573 - PEREZ, HEIDI JUDITH VS BOOKER, WESLEY (DMS)
Aug 27, 2024 |FCS057573
FCS057573Motions for ContemptTENTATIVE RULING:Petitioner’s “motions” for contempt are denied.No affidavit of the facts constituting any contempt has been presented to thecourt. The filing of a sufficient affidavit is a jurisdictional prerequisite to acontempt proceeding. (Code Civ. Proc. § 1211(a); Koehler v. Superior Court(2010) 181 Cal.App.4th 1153, 1169; Oil Workers Int’l Union v. Superior Court(1951) 103 Cal.App.2d 512, 541.) Page 1 of 1
Ruling
JOSHUA MICHAEL FURMAN VS SHUM YIN WU
Aug 28, 2024 |Renee C. Reyna |23STCV30525
Case Number: 23STCV30525 Hearing Date: August 28, 2024 Dept: 29 Furman v. Wu 23STCV30525 Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Devin A. Cutting Tentative The motion is granted. Background On December 14, 2023, Joshua Michael Furman (Plaintiff) filed a complaint against Shum Yin Wu (Defendant) for motor vehicle negligence cause of action arising out of an automobile accident occurring on December 31, 2021. On June 5, 2024, Devin A. Cutting of Bish & Cutting, APC (Counsel) filed this motion to be relieved as counsel for Plaintiff. No opposition has been filed. The hearing on this motion was continued from July 22 to August 28. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.1362(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) Discussion Counsel has filed the Notice, Declaration, and Order to be Relieved as Counsel for Plaintiff. In the Declaration, Counsel contends there has been a breakdown of the attorney-client relationship. Counsel has served Plaintiff by mail, and confirmed Clients address within 30 days of filing this motion by telephone. All substantive and procedural requirements are satisfied. The Court finds that due to the breakdown of the attorney-client relationship, Counsel has established good cause to be relieved as counsel. Accordingly, the motion is GRANTED. Conclusion The motion to be relieved as counsel is GRANTED. The order is effective upon filing with the Court a proof of service showing service of the signed order (not just the minute order) on the clients. Moving counsel to give notice.
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