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FILED:FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM PM| INDEX INDEX NO. NO. 59189/2017 59189/2017NYSCEFNYSCEF DOC. DOC. NO. NO. 59 40 RECEIVED RECEIVED NYSCEF: NYSCEF: 12/13/2018 10/30/2018 11/21/2017 Visit summary -oflic it Date of service: 02/03/16 Patient G S )OB: . 3RN: SG945706 PATIENT FACILITY ENCOUNTER G 5 AppieMed Urgent Care NOTE TYPE SOAP Note DOB T (914) 668-1600 SEEN BY Nosa Ogala FNP AGE 15 yrs 504 Gramatan Avenue DATE 02/03/2016 SEX Female Mount Vernon, NY 19552 AGE AT DOS 13 yrs PRN SG945706 Electronically signedby Nosa Ogala FNP at 02/03/2016 11:23 am Chief complaint dysuria Patient identifying details and demographics FIRST NAME G SEX Female ETHNICITY Provider did not MIDDLE NAME - DATE OF BIRTH ask LAST NAME 5 DATE OF DEATH - PREF. LANGUAGE SSN - PRN SG945706 RACE Provider did not ask STATUS Active patient CONTACT INFORMATION __ ADDRESS LINE 1 80 WILLIAMS ST. CONTACT BY Mobile Phone ADDRESS LINE 2 - EMAIL - CITY MOUNT VERNON HOME PHONE STATE NY MOBILE PHONE 9177091756 ZIP CODE 10552 OFFICE PHONE - OFFICE EXTENSION - FAMILY INFORMATION NEXT OF KIN - PATIENT'S MOTHER'S MAIDEN - RELATION TO PATIENT - NAME PHONE - ADDRESS - Insurance PRIMARY PAYER PAYER Blue CrossBlue Shield of NY INSURED ID NUMBER ETR80268010 (Empire) GROUP NUMBER 720902 MM1 PRIORITY Primary EMPLOYER NAME - TYPE Other INSURANCE PAYMENT TYPE Copay RELATIONSHIP TO INSURED Self PAYMENT TYPE Fixed START DATE 01/01/2016 COPAY AMOUNT 20.00 END DATE - STATUS Active PAYMENT INFORMATION PAYMENT PRE E:1ENCE Insurance DATE OF BIRTH - Primary PATIENT'S RELATIONSHIP TO - SEX GUARANTOR SOCIAL SECURITY NUMBER - GUARANTOR NAME PRIMARY PHONE NUMBER - GUARANTOR ADDRESS - SECONDARY PHONE NUMBER - htpe://etatic.p auik ···· - 5-p; dir£ñds-.htmi?iiiPFicharts/patients/½b 5-4a12 -nna1-fa004af78783/éi c.c --P:dBE579e-3183-41c8-8.-, 1/7FILED:FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM PM| INDEX INDEX NO. NO. 59189/2017 59189/2017NYSCEFNYSCEF DOC. DOC. NO. NO. 59 40 .. . RECEIVED RECEIVED NYSCEF: NÝÊ Ê 12/13/2018 8 11/21/2017 Visit summary - Offit it Date of service: 02/03/16 Patient: G OB: RN: SG945706 Vitals for this encounter 02/03/16 11:14 AM ............. Height 64 in Pulse 104 bpm Weight 90 lb Temperature 98°F Respiratory rate O2 Saturation 98 % Pain 0 BMI 15.45 Blood pressure 98/60 mmHg Vitals flowsheet - G 12/27/16 11:43 AM Vitals Height 65 in Weight ¡ 92 lb BMI 15.31 BP 90/62 mmHg Temperature 96.8°F __.____. Pulse 126 bpm Respiraiury rate 18 bpm O2 Saturation 97 % Pain Head Circumference https://static.prad;wfusiuñ.com/óppwó;,,/index.html?#/PF/c:øpt-"^^f5dfcbe05-4a12-4c2b-80c1-fa004af78783/=n ..:-. ^279e-3183-4'tc8-8... 2/7FILED:FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM M| INDEX INDEX NO. NO. 59189/2017 59189/2017NYSCEFNYSCEF DOC. DOC. NO. NO. 59 40 RECEIVED RECEIVED NYSCEF: 12/13/2018 NYSCEF: 10 0/2018 11/21/2017 Visit süiiiñiõif - Offic it Date of service: 02/03/18 Patient: G S . .)OB: RN: SG945706 Chronic Diagnoses ACTIVE DIAGNOSES STARY STOP No activediagnoses siisiuruCAL DIAGNOSES START STOP (N39.0) Urinary tract infecnGñ_ site not specified 02/03/2016 12/27/2016 Acute Diagnoses ACTIVE DIAGNOSE5 START (R07.0) Pain in throat (j06.9) Acute upper respiratory infection, unspecified HISTORICAL DIAGNOSES START STOP (R11.2) Nausea with vomiting, unspecified 10/23/2016 12/27/2016 (R10.9) Unspecified abdominal pain 10/23/2016 12/27/2016 Drug Allergies ACTIVE ALLERGlES SEVERITY/REACTIONS ONSET Patient has no known drug allergies Food Allergies ACTIVE ALLERGlES SEVERiTV/icEACTIONS ONSET No food allergies recorded Envirmntal Allergies ACTIVE ALLERGlES . . SEVERITY/REACTIONS ONSET No environmental allergies recorded hups://steW.practicefusion.nn.'s Jein/index.html?#/PF/charts/patients/SafeMOW12-4c2b-80ct-wmaF878^/iioomitsdedGG'u79e-3183-41c8-8... 3/7FILED:FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM PM INDEX INDEX NO. NO. 59189/2017 59189/2017NYSCEFNYSCEF DOC. DOC. NO. NO. 59 40 RECEIVED RECEIVED NYSCEF: 12/13/2018 NYSCEF: 10/30/ 018 11/21/2017 Visit sum-ary -Of& it Date of service: 02/03/16 Patient: G DOB RN: SG945706 Active Medications MEDICATION SIG START/STOP ASSOCIATED DX Ibuprofen 100 MG/5ML Oral Suspension 15 ml po every 8 hour as - - needed EScript: 12/27/16 Prescriber Nadeem Shahid MD Refills: 0 Quantity: 100 Pseuduephed-Bromphen-DM (Bromfed - - 10 ml orally every 6 hours as DM) 30-2-10 MG/5ML Oral Syrup needed = EScript: 12/27/16 Prescriber: Nadeem Shahid MD Refills: 0 Quantity: 100 EScript: Quantity- 12/27/16 Prescriber Nadeem Shahid MD Refills: 0 100 Historical Medications MEDICATION SIG START/STOP ASSOCIATED DX Ciprofloxacin HCI (Cipro) 500 MG Oral - - every 12 hours x 5 days 02/03/16 Tablet 02/07/16 " EScript: 02/03/16 Prescriber. Nosa Ogala NP Refills: 0 Quantity: 10 Phenazopyr|dinê HCI (Pyridium) 100 MG Take 1 tablet (100 mg) by 02/03/16 - - Oral Tablet mouth 3 times per day for 2 02/04/16 days after meals EScript: 02/03/16 Prescribêr: Nosa Ogala NP Refills: 0 Quantity: 6 Immunizations DATE VACCINE SOURCE LOT EXPIRES COMMENT NUMBER No immuriizations recorded for this patient. Smoking History Never smoker Effective date: 02/03/2016 Gender identity No gender identity available for this patient Sexual orientation No sexual orientation available for this patient hMps://etat½.prect!cefur!en.ccm!a .html?#/PF/ch=t';:"ands/5dfcbe05-4a12-4c2b-80ci-fa004af78783/en --2·±!ed09579e-3183-41c8-8,.. 4/7FILED:FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM PM INDEX INDEX NO. NO. 59189/2017 59189/2017NYSCEFNYSCEF DOC. DOC. NO. NO . 59 40 RECEIVED NYSCEF: 12/13/2018 11/21/2017 Visit summary - Offic it Date of service: 02/03/16 Patient G . )OB: RN: SG945706 Past medical history MAjOR EVENTS none ONGOING MEDICAL PROBLEMS none FAMILY HEALTH HISTORY none PREVENTIVE CARE UTD as per patient Family health history DIAGNOSIS ONSET DATE No Family health history recorded Advance Directive DIRECTIVE RECORDED No advance directives recorded for this patient. !mp'2-*able devices No implantable devices recorded Active Goals DESCRIPTION . .. . . EFFECTIVEDATE No active goals recorded Inactive Goals DESCRIPTION EFFECTIVEDATE No inactive goals recorded Subjective 13 y/o female ts today for c/o pain on urination preser x 5 days. Pt reports having urinary frequency and hesitancy along with pain. She also noticed urinary odor. Denies any fever, chills, back pain, abdominal pain or tenderness. Review of Systems GENERAL- Denies weight loss, fatigue, fever, chills, weakness, difficulty sleeping PULMONARY- Denies cough, hemoptysis, SOB, DOE, wheezing or tachypnea CARDIOVASCULAR- Denfes CP, tightness, palpitations, dizziness, peripheral edema, syncope, PND, órthõpñêa Gl- Denies heartburn, nausea, vomiting. diarrhea, constipation, abdominal pain, melena or hematochezia. Denies cüñstipatica or change in appetite. Denies abdominal masses. GU- + burning on urination, frequency, urgency and hesitancy. Denies suprapubic scemfort. +dysuria. Denies hematuria, incontinence or abnormal discharge REPRODUCTIVE- Denies rashes, lesions, discharge, pruritus, erythema or edema. Denies being sexually active. However, mom https://static.practiceksi012:-..'c;;:/ehr/index.html?#/PF!&endpetieids/Cdid,oGG4a12-4c2b-80c1-fa004af78783/enc=t;td09b79e-3183-41c8-8... 5/7FILED:FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM PM| INDEX INDEX NO. NO. 59189/2017 5918 9/2017NYSCEFNYSCEF DOC. DOC. NO. NO. 59 40 Ofile" RECEIVED RECEIVED NYSCEF: 12/13/2018 NYSCEF: 10/3 / 018 11/21/2017 Visit summary - it Date of service: 02/03/16 Patient: OB: RN: SG945706 was in room and pt agreed that she may stay. MS- Denies myalgias, stiffness, swelling, decreased back pain, flank pain, recent trauma movement, NEURO- Denies weakness, numbrtess, tingling, tremor, seizures, fainting, loss of balance ENDOCRINE- Denies hot flashes, recent weight loss or weight gain, frequent urination, change in appetite, excessive thirst, sweating, heat or cold intolerance Objective objective GENERAL- AAOx3, appearsto be well, NAD, Euthymic mood and affect, VS WNL Afebrile HEART- s1,s2, no murmurs, gallops or rubs. No peripheral edema.or jVD. LUNGS- CTA bilaterally, no wheezing, rales or rhonchi. ABDOMEN- Soft, NTND, +BS x 4 quadrants. No pain or guarding. No abdominal masses palpated. No suprapubic têñderñêss GENITAL- Deferred SKIN- no rashes or abnormai lesions noted. PROCEDURE NOTE UA obtained. Showed +2 leu, +3 Blood. +odor observed during testing. Assessment Dysuria, likely due to UTI Diagnoses attached to this encounter: UTI [ICD-10: N39.0], [1CD-9: 599.0], [SNOMED: 68566005] Plan 1) Cipro x 5 days. Encouraged to eat yogurt daily to avoid Yeast infection- 2) Pyridium for dysuria 3) Ur.Ine culture sent 4) Increase oral intake 5) Educated on causes on UTI and how to prevent 6) RTC if symptoms worsen or persist Medications attached to this encounter Pyridium 100 MG Oral Tablet Take 1 tablet (100 mg) by mouth 3 times per day for 2 days after meals (start date: 2/3/2016) (stop date: 2/4/2016) prescription: qty 6 of 100 MG Take 1 tablet (100 mg) by mouth 3 times per day for 2 days after meals (NO refills) Cipro 500 MG Oral Tablet every 12 hours ×5 days (start date: 2/3/2016) (stop date: 2/7/2016) prescription: qty 10 of 500 MG every 12 hours x 5 days (NO refills) Orders LAB ORDERS . . . No orders attached to this encounter. IMAGING ORDERS No orders attached to this encounter. Screenings/interventic=/assessments No scrGêñingslintervêñticas/asse':smania recorded. Observations apscEcd_mic- h?pe:!!et comf:, :f -idâRhtml?#IP FIcho- . bù‰|Gaii.,b605-4a12-4c2b-80ci-fa004af78782'cr.cve=s/÷ 9579e-3183-41c8-8... 6/7FILED:FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM PM| INDEX INDEX NO. NO. 59189/2017 59189/2017NYSCEFNYSCEF DOC. DOC. NO. NO . 59 40 RECEIVED NYSCEF: 12/13/2018 11/21/2017 visit summary - offk st Date of service: 02/03/16 Patient DOB: RN: SG945706 No observations recorded. Quality of care Medication Reconciliation Patient Decision Alds / Education Materials Given Care plan No care plan recorded. Addenda ADDENDUM STATUS SOURCE DATE/TIME Spoke with mother on 2/10. Morn came Accepted by Nosa Ogala NP NP 02/11/2016 10;25 am into office for results. Informed that culture was + for e.coli. Antibiotics already given. States that her daughter feels much better. Verbalized understanding of results. Qpracticefusion https://static-pra st m:cn com!:g:$ y h¬mü#jiai-icharts/patients/Sdfcbe05-4a12-4c2b-80c1-fa004a178783'==_-. b79â-3183-41c8-8... 7/7FILED: WESTCHESTER[FILED:WESTCHESTER COUNTY COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03: 43 AM INDEX INDEX NO. 59189/2017 NO. 59189/2017 PM|NYSCEFNYSCE DOC.. NO. NO. 59 40 Encounter - Office' . Date of service: 10/23/16 Patient: OB: RECEIVED NYSCEF: 12/13/2018 S 2 m PATIENT FAClLITY ENCOUNTER AppleMed Urgent Care NOTE TYPE SOAP Note DOB T (914) 668-1600 FNP- SEEN BY Gaveral Douglas AGE 15 yrs 504 Gramatan Avenue BC SEX Female Mount Vernon, NY 10552 DATE 10/23/2016 PRN SG945706 AGE AT DOS 13 yrs Electronically signed by Gaveral Douglas FNP-BC at 10/23/2016 07:48 pm Chief complaint pt co stomach pain and vomiting Patient identifying details and demographics FIRST NAME SEX Female ETHNICITY Provider did not MIDDLE NAME DATE OF BIRTH 10/26/2002 ask LAST NAME DATE OF DEATH - PREF. LANGUAGE - SSN - PRN SG945706 RACE Provider did not ask STATUS Active patient CONTACT INFORMATION . .. ._ . ADDRESS LINE 1 80 WILLIAMS ST. CONTACT BY Mobile Phone ADDRESS LINE 2 EMAIL - CITY MOUNT VERNON HOME PHONE - STATE NY MOBILE PHONE 9177091756 ZIP CODE 10552 OFFICE PHONE - OFFICE EXTENSION - FAMILY INFORMATION NEXT OF KIN PATIENT'S MOTHER'S MAIDEN - RELATION TO PATIENT - NAME PHONE ADDRESS - Insurance PRIMARY PAYER PAYER Blue Cross Blue Shield of NY (NSURED ID NUMBER ETR80268010 (Empire) GROUP NUMBER 720902 MM1 PRIORITY EMPLOYER NAME - Primary TYPE Other INSURANCE PAYMENT TYPE Copay RELATIONSHIP TO INSURED Self PAYMENT TYPE Fixed START DATE 01/01/2016 COPAY AMOUNT 20.00 END DATE - STATUS Active PAYMENT INFORMATION PAYMENT PREFERENCE Insurance DATE OF BIRTH - Primary PATIENT'S RELATIONSHIP TO - SEX - GUARANTOR SOCIAL SECURITY NUMBER - GUARANTOR NAME - PRIMARY PHONE NUMBER - GUARANTOR ADDRESS - SECONDARY PHONE NUMBER - https://staSc.predeefusiona·,m/as,.2. . éAhimi?itiP Fichan:;|ps":r's..'Gdfcbe05-4a12-4c2b-80c1-faO04af78783/encountc/bEGc:313 "S° 170c-bb... 1/7 FILED: FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM PM| INDEX INDEX NO. NO. 59189/2017 59189/2017 NYSCEF NYSCEF DOC. D C. NO. NO. 59 40 aces- ' RECEIVED NYSCEF: 12/13/2018 11/9/2 17 tr -Office 3ate of service: 10/23/16 Patient G S )B: PRN: SG945706 Vitals for this encounter 10/23/16 6:44 PM Height 65 in 100 lb F- Temperature 97.80 °F Pulse 85 bpm Respiratory rate 18 bpm O2 Saturation 99 % Pain 6 BMI 16.64 Blood pressure 113/78 mmHg Vitals flowsheet - G 12/27/16 ! 11:43 AM Vitals Height 65 in Weight 92 Ib 15.31 BP 90/62 mmHg Temperature 96.8°F Pulse 126 bpm Respiratory rate 18 bpm 97 % Pain Head Circumference.- httpe://etatic practicefusion.com/agp; 1:._.C.._ -html9#/PF/charts/patients/5dfcbe05-4a12-4c2b-80c1-fa004auo e::3n L±:h95ca918-9f68-470c-bb... 2/7FILED:FILED: WESTCHESTER COUNTY WESTCHESTER COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28 03:43 AM P INDEX NDE NO. NO 59189/2017 5918 9 2017NYSCEFNYSCEF DOC. DOC. NO. NO. 59 40 RECEIVED RECEIVED NYSCEF: 12/13/2018 NYSCEF: 10/30/2018 11/9/2017 Encounter-Office Oateofservice: 10/23/16 Patient: _)B: RN: SG945706 Chronic Diagnoses ACTNE DIAGNOSES START STOP No active diagnoses HISTORICAL DIAGNOSES START ........___2.TOP (599.0) UTI 02/03/20I6 12/27/2016 Acute Diagnoses ACTIVE DIAGNO5ES START STOP (462) Sore throat (465.9) URI HISTORICAL D!AGNORFS START STOP (787.01) Nausea with vomiting 10/23/2016 12/27/2016 (789.00) Abdominal pain 10/23/2016 12/27/2016 Drug Allergies ACTIVE ALLERG!ES SMRW/MIONS OM Patient has no known drug allergies . . ............ ....... Food Allergies ACTIVE ALLERGlE5 SEVERITY/REACTIONS ONSET No food allergies recorded Environmental Allergies ACTIVÈÂLÈRGlES SEVERITY/REACTIONS ONSET No envircrunental allergies recorded hups:!!steUc.practicefmion ..¿_c,_t?.dndax.himi?itiPFicharts/patients/5dfebe05-4a12-4c2b40ci-fa004af78783/encounter!b95ce918-9f68-470c-bb... 3/7FILED: WESTCHESTER[FILED:WESTCHESTER COUNTY COUNTY CLERK CLERK 12/13/2018 10/30/2018 09:28
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Ruling
RONY ISSAC MONTES VS CHRISTOPHER TSUNGLUNG HO
Aug 28, 2024 |Renee C. Reyna |23STCV09679
Case Number: 23STCV09679 Hearing Date: August 28, 2024 Dept: 29 Montes v. Ho 23STCV09679 Defendants Motion for Summary Judgment TENTATIVE The Motion for Summary Judgment, filed by Christopher Tsunglung Ho, is GRANTED. Background On May 1, 2023, Plaintiff Rony Issac Montes (Plaintiff) filed his complaint against Christopher Tsunglung Ho (Defendant) and Does 1 through 50 for Motor Vehicle Negligence and General Negligence stemming from an auto accident occurring May 1, 2021. Defendant filed his answer on October 19, 2023. On March 12, 2024, the Court granted the motion of Plaintiffs counsel to be relieved as counsel. Plaintiff has been representing himself, in pro per, since that time. On June 7, 2024, the Court granted Defendants motion for an order deeming Plaintiff to have admitted the truth of the matters specified in Defendants Requests for Admission (Set One.) On June 11, 2024, Defendant filed this motion for summary judgment. No opposition has been filed. Legal Standard The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.) A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) The party opposing a motion for summary judgment or summary adjudication may not simply rely upon the allegations or denials of its pleadings but must instead set forth the specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Request for Judicial Notice Defendant requests judicial notice of four documents from the Courts file. The request is granted. Discussion Plaintiff asserts a motor vehicle negligence and general negligence causes of action against Defendant. The basic elements of a cause of action for negligence are: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Romero v. Los Angeles Rams (2023) 91 Cal.App.5th 562, 567.) On June 7, 2024, the Court GRANTED Defendants motion for an order deeming Plaintiff to have admitted the matters specified in Defendants Requests for Admissions (Set One). The following were deemed admitted by Plaintiff: (1) REQUEST FOR ADMISSION NO. 1: Admit that plaintiff RONY ISAAC MONTES was not injured as a result of the automobile accident of May 11, 2021. (2) REQUEST FOR ADMISSION NO. 2: Admit that plaintiff RONY ISAAC MONTES has not had any physical complaints as a result of the automobile accident of May 11, 2021. (3) REQUEST FOR ADMISSION NO. 3: Admit that plaintiff RONY ISAAC MONTES has not had any mental complaints as a result of the automobile accident of May 11, 2021. (4) REQUEST FOR ADMISSION NO. 4: Admit that plaintiff RONY ISAAC MONTES has not had any cognitive complaints as a result of the automobile accident of May 11, 2021. (5) REQUEST FOR ADMISSION NO. 5: Admit that plaintiff RONY ISAAC MONTES has not had any emotional complaints as a result of the automobile accident of May 11, 2021. (6) REQUEST FOR ADMISSION NO. 6: Admit that plaintiff RONY ISAAC MONTES did not receive any consultation or examination or treatment from any healthcare provider as a result of the automobile accident of May 11, 2021. (7) REQUEST FOR ADMISSION NO. 7: Admit that plaintiff RONY ISAAC MONTES did not incur any medical expenses as a result of the automobile accident of May 11, 2021. (8) REQUEST FOR ADMISSION NO. 8: Admit that plaintiff RONY ISAAC MONTES will not incur any medical expenses into the future as a result of the automobile accident of May 11, 2021. (9) REQUEST FOR ADMISSION NO. 9: Admit that plaintiff RONY ISAAC MONTES did not have any loss of earnings as a result of the automobile accident of May 11, 2021. (10) REQUEST FOR ADMISSION NO. 10: Admit that plaintiff RONY ISAAC MONTES will not have any loss of earnings as a result of the automobile accident of May 11, 2021. (11) REQUEST FOR ADMISSION NO. 11: Admit that Defendant CHRISTOPHER TSUNGLUNG HO was not negligent with respect to the automobile accident of May 11, 2021. (12) REQUEST FOR ADMISSION NO. 12: Admit that Defendant CHRISTOPHER TSUNGLUNG HO was not at fault for the automobile accident of May 11, 2021. (13) REQUEST FOR ADMISSION NO. 13: Admit that Defendant CHRISTOPHER TSUNGLUNG HO is not responsible for any damages alleged by plaintiff RONY ISAAC MONTES in connection with the automobile accident of May 11, 2021. (14) REQUEST FOR ADMISSION NO. 14: Admit that plaintiff RONY ISAAC MONTES is 100% at fault for causing the automobile accident of May 11, 2021. (15) REQUEST FOR ADMISSION NO. 15: Admit that plaintiff RONY ISAAC MONTES is solely negligent for causing the automobile accident of May 11, 2021. (16) REQUEST FOR ADMISSION NO. 16: Admit that plaintiff RONY ISAAC MONTES did not have any property damage as a result of the automobile accident of May 11, 2021. (17) REQUEST FOR ADMISSION NO. 17: Admit that plaintiff RONY ISAAC MONTES did not have any economic damages as a result of the automobile accident of May 11, 2021. (18) REQUEST FOR ADMISSION NO. 18: Admit that plaintiff RONY ISAAC MONTES will not have any economic damages in the future as a result of the automobile accident of May 11, 2021. (19) REQUEST FOR ADMISSION NO. 19: Admit that plaintiff RONY ISAAC MONTES did not have any non-economic damages as a result of the automobile accident of May 11, 2021. (20) REQUEST FOR ADMISSION NO. 20: Admit that plaintiff RONY ISAAC MONTES will not have any non-economic damages into the future as a result of the automobile accident of May 11, 2021. (21) REQUEST FOR ADMISSION NO. 21: Admit that plaintiff RONY ISAAC MONTES did not have any loss of use as a result of the automobile accident of May 11, 2021. (22) REQUEST FOR ADMISSION NO. 22: Admit that the automobile accident of May 11, 2021 was not a substantial factor in causing any harm to plaintiff RONY ISAAC MONTES. (23) REQUEST FOR ADMISSION NO. 23: Admit that the automobile accident of May 11, 2021 was not a substantial factor in causing any injury to plaintiff RONY ISAAC MONTES. (Exhs. 4 & 5.) The Court may take judicial notice of admissions that contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605.) Moreover, if a party does not move the trial court to allow for withdrawal or amendment of an admission, the admission is conclusively established against that party in the action. (See Joyce v. Ford Motor Co. (2011) 198 Cal.App.4th 1478, 1489.) [A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) In this case, the Court has already ordered that Plaintiff is deemed to have admitted (among other things) that Defendant was not negligent in the accident at issue and that the accident did not cause Plaintiff to suffer any injuries. Based on the foregoing, Defendant has presented admissible evidence that one or more elements of each cause of action in the complaint cannot be established. As there are no triable issues of material fact, and as Defendant has shown that he is entitled to judgment as a matter of law, Defendants motion for summary judgment is GRANTED. Conclusion The Court GRANTS Defendants motion for summary judgment. Moving Party is to provide notice.
Ruling
TIMOTEO O PRECIADO, AN INDIVIDUAL VS DIANA RODRIGUEZ SUASTEGUI, AN INDIVIDUAL, ET AL.
Aug 28, 2024 |Renee C. Reyna |23STCV24624
Case Number: 23STCV24624 Hearing Date: August 28, 2024 Dept: 29 Preciado v. Suastegui 23STCV24624 Plaintiffs Motion for Trial Preference Tentative The hearing on the motion is continued. Background On October 10, 2023, Timoteo Preciado (Plaintiff) filed a complaint against Diana Rodriguez Suastegui, Diego Alquicira (collectively Defendants), and Does 1 through 25 for motor vehicle negligence and general negligence arising out of an accident occurring on January 19, 2023. On December 11, 2023, Plaintiff filed a First Amended Complaint (FAC). On January 5, 2024, Defendants filed their answer to the FAC. On July 30, 2024, Plaintiff filed a motion for trial preference. No opposition has been filed. Legal Standard Code of Civil Procedure section 36, subdivision (a) provides: 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 it 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 partys interest in the litigation. A motion for a preference must be supported by a declaration of the moving party [stating] that all essential parties have been served with process or have appeared. (Code Civ. Proc., § 36, subd. (c)(1). The motion may be supported by a declaration by the attorney for the party seeking the preference based upon information and belief as to the medical diagnosis and prognosis of any party. (Code Civ. Proc., § 36.5.) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a partys attorney, or upon a showing of good cause stated in the record. (Code Civ. Proc., § 36, subd. (f).) Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party. (Ibid.) Discussion Plaintiff seeks an order for trial preference under Code of Civil Procedure section 36, subdivision (a) based on his age and health. Plaintiffs counsel has submitted a declaration that states that Plaintiff is 78 years old and has severe issues with back pain (and other issues) and can barely walk. (Garcia Decl., ¶¶ 2-3 & Exh. A.) Epidural injections and chiropractic treatment have had minimal effect. (Id., ¶¶ 3, 5 & Exhs. A, C.) Two neurosurgeons have recommended surgery. (Id., ¶¶ 4-5 & Exhs. B, C.) The motion for a trial preference is not opposed. The Court finds, on this record, that Plaintiff has a substantial interest in this action and that, given Plaintiffs health, a preference may be necessary to prevent prejudicing Plaintiffs interest in the litigation. Code of Civil Procedure section 36, subdivision (c)(1), however, establishes a mandatory requirement that a party seeking a preference submit a declaration stating that all essential parties have been served with process or have appeared. (Code Civ. Proc., § 36, subd. (c)(1). This is a mandatory statutory requirement, necessary to prevent potential prejudice to parties who have not yet been served or appeared. Accordingly, the Court continues the hearing so that Plaintiff may submit the required a supplemental declaration addressing the requirements of subdivision (c)(1). Conclusion The Court CONTINUES the hearing on Plaintiffs motion for preferential trial setting for approximately 21 days. Moving Party is to give notice.
Ruling
BERJ PARSEGHIAN VS FLY BY JING, INC., ET AL.
Aug 27, 2024 |24STCV02895
Case Number: 24STCV02895 Hearing Date: August 27, 2024 Dept: 55 Background Plaintiff Berj Parseghian (Plaintiff) filed a complaint against Defendants, Fly by Jing Inc, Costco Wholesale Corporation, and Doe defendants 1 to 100, alleging violations of Proposition 65, Health and Safety Code, section 25249.5 et seq. (Proposition 65). Plaintiff claims that Defendants failed to provide required warnings for chemicals listed on a product they manufacture or sell. Costco demurs to the complaint. Plaintiff opposes. Judicial Notice The Court grants Costcos RJN regarding both Office of Environmental Health Hazard Assessments (OEHHA) Final Statements of Reasons, Plaintiffs pre-suit notice of violation and Plaintiffs complaint. The Court denies Costcos RJN regarding another trial courts ruling. Legal Standard Demurrers are to be sustained where a pleading fails to plead adequately any essential element of the cause of action. Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880. Analysis 1. Whether Pre-suit Notice Must State the Basis of Costos Liability as a Retail Seller of Consumer Products. Under Proposition 65, retail sellers are only responsible for providing a warning of consumer product exposure when at least one of five enumerated circ*mstances exist. Cal. Code Regs., tit., 27, § 25600.2, subd. (e). Private persons may bring suit for failure to warn of chemical exposure under certain circ*mstances. Health & Saf. Code, § 25249.7, subd. (d)(1). To do so they must give notice to the Attorney General and any local prosecutor in whose jurisdiction the violation occurred sixty days before filing the action. Ibid. Such notice must provide adequate information from which to allow the recipient to assess the nature of the alleged violation, as set forth in [California Code of Regulations, title 27, section 25903, subdivision (b)(2)]. Section 25903, subdivision (b)(2), establishes general notice requirements which must be included regardless of the type of violation and specific requirements for consumer product, environmental and occupational violations. These requirements shall not be interpreted to require more than reasonably clear information, expressed in terms of common usage and understanding, on each of the indicated topics. Cal. Code Regs., tit. 27, § 25903. Additionally, Health and Safety Code section 25249.7, subdivision (d)(1), requires the notice to include a certificate of merit from the noticing party or their attorney, stating that the they consulted with at least one expert who reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action. If a court subsequently determines that there was no actual or threatened exposure to a listed chemical, the court may, upon the motion of that alleged violator or upon the courts own motion, review the basis for the & certificate of merit& . Health & Safety Code, § 25249. 7, subd. (h)(2). However, it shall be disclosed to the court in an in-camera proceeding at which the moving party shall not be present. Ibid. If the court finds that there was no credible factual basis for the certifiers belief that an exposure to a listed chemical had occurred or was threatened, then the action shall be deemed frivolous. Ibid. Notice is a condition precedent to establishing a citizen's right to proceed in the public interest on that matter, and to collect funds for the public treasury, the notice requirement should not be dismissed as a mere technicality. Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4th 953, 963 (quoting, Off. of Environ. Health Hazard Assessment, Final Statement of Reasons Adopting Section 12903, Notices of Violation (1997)). The parties do not dispute that Plaintiffs pre-suit notice did not identify the basis for Costcos liability as a retail seller under California Code of Regulations, title 27, section 25600.2, subd. (e). Rather, they dispute whether the Plaintiff was required to do so. This is an issue of first impression. When no reported California decision or administrative interpretation of a regulation exists, courts interpret the regulation in accordance with applicable rules of statutory construction. Baker v. Pacific Oaks Education Corp. (2024) 99 Cal.App.5th 77, 91 (quoting Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1235). Courts give the regulatory language its plain, commonsense meaning and [i]f possible & must accord meaning to every word and phrase in the regulation, and we must read regulations as a whole so that all of the parts are given effect. Id. (quoting Butts v. Board of Trustees of California State University (2014) 225 Cal.App.4th 825, 83). After considering the parties arguments, and the relevant statutory and regulatory language, the Court concludes that Plaintiffs were not required to identify an applicable 25600.2, subdivision (e), provision in their pre-suit notice. Section 25903, subdivision (b), is the regulation that establishes the requirements for pre-suit notice. Nothing in that section references section 25600.2, subdivision (e), or the conditions under which a retail seller may be responsible for warning for consumer product exposure. While Defendants are correct that section 25903, subdivision (b)(2), requires the notice provide adequate information from which to allow the recipient to assess the nature of the alleged violation the adequacy of the information is determined in reference to the enumerated notice requirements in section 25903. Furthermore, the regulation specifically states that the description of the violation requirement shall not be interpreted to require more than reasonably clear information, expressed in terms of common usage and understanding, on each of the indicated topics. Because the provisions of section 25600.2, subdivision (e), are not among those indicated topics, they are not required as part of the description of the violation in the notice. See Cal. Code. Regs., tit. 27, § subd. (b)(2). Likewise, the certificate of merit is not required to articulate an applicable 25600.2, subdivision (e), provision. See Health & Saf. Code, § 25249.7, subd. (d)(1), (describing the requirements of the certificate of merit). The certificate of merit requires the person executing it to consult with an expert regarding the exposure to the listed chemical. Ibid. The certificate speaks to the merit of claim in terms of a credible factual basis for the certifiers belief that an exposure & occurred or was threatened. Health & Saf. Code, § 25249.7 subd. (h)(2). Moreover, the certificate is not required to include the factual basis, and the alleged violator is not entitled to see them, even if the court determines there was no actual or threatened exposure. Health & Saf. Code, § 25249.7, subd. (h)(2). Because no statute or regulation requires the pre-suit notice or certificate of merit to identify an applicable section 25600.2, subdivision (e), provision, Costcos demurrer on that basis is overruled. 2. Whether the Basis for A Retailers Liability is an Essential Element of the Cause of Action. Costco also argues that the complaint fails to allege facts establishing one or more of section 25600.2, subdivision (e)s, five situations imposing Proposition 65 liability on the retailer. Plaintiff acknowledges that the complaint does not allege facts establishing 25600.2, subdivision (e), applies, but argues that it should be allowed discovery to establish these facts and that this issue should be addressed at summary judgment. The Court disagrees. Retail sellers have no liability for failing to warn of chemical exposure in consumer products under Proposition 65, except under the specific circ*mstances enumerated in 25600.2(e). Therefore, a cause of action against a retailer under Proposition 65 must allege facts sufficient to establish that one or more of the section 25600.2, subdivision (e), circ*mstances apply. Because establishing at least one of the 25600.2 , subdivision (e), scenarios is an essential element of the cause of action, the Court sustains the demurrer with leave to amend. Conclusion The Court sustains the demurrer with 20 days leave to amend.
Ruling
VANN vs RIVERSIDE HEALTHCARE SYSTEM, L.P.
Aug 29, 2024 |CVRI2400082
DEMURRER ON COMPLAINT FORVANN VS RIVERSIDE OTHER PERSONALCVRI2400082 HEALTHCARE SYSTEM, INJURY/PROPERTYL.P. DAMAGE/WRONGFUL DEATH TORT(OVER $35,000) OF KENNETH VANNTentative Ruling: Overruled.
Ruling
TIMOTHY AVALOS VS ENOVATIVE GROUP, INC., ET AL.
Aug 27, 2024 |Renee C. Reyna |20STCV30553
Case Number: 20STCV30553 Hearing Date: August 27, 2024 Dept: 29 Avalos v. Enovative Group 20STCV30553 Defendants Motion to Continue Trial Tentative The motion is denied as moot. The relief requested in the motion has already been granted. Moving party to give notice.
Ruling
ZACOYA GOODE, A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, ASHLEY ROBERSON VS LOS ANGELES UNIFIED SCHOOL DISTRICT, A PUBLIC ENTITY
Aug 27, 2024 |24CMCV00078
Case Number: 24CMCV00078 Hearing Date: August 27, 2024 Dept: A 24CMCV00078 Zacoya Goode, a minor, v. Los Angeles Unified School District Tuesday, August 27, 2024, at 8:30 a.m. [TENTATIVE] ORDER GRANTING Plaintiffs Motion for Trial Preference I. BACKGROUND The complaint alleges that Plaintiff, Zacoya Goode (Plaintiff), was four years old and attending Avalon Gardens Elementary School operated by Defendant, when Plaintiff suffered injury on the playground. Plaintiff alleges claims for negligence and dangerous condition of public property. II. ARGUMENTS The minor Plaintiff, through her Guardian ad Litem, moves for trial preference as she is under 14 years of age and has a substantial interest in the case as a whole. Preference is necessary to avoid prejudice against her interest. Defendant has been served. In opposition, Defendant argues that while Plaintiff is technically entitled to a preferential trial setting, Defendant asks the court to consider that the investigation of this matter can only be provided by Defendants employees, who may not be available during the summer months. Assuming the court grants the motion, Defendant asks the court to set trial for more than 120 days after the motion is granted. In reply, Plaintiff argues that there is no authority to extend the 120-day time frame for setting trial. Preference is mandatory if the criteria are met. Failure to complete discovery does not affect the Plaintiffs right to a preference. III. DISCUSSION A plaintiff under 14 years of age in a civil action to recover damages for wrongful death or personal injury shall be entitled to a preferential trial setting unless the court determines that "the party does not have a substantial interest in the case as a whole. " (Code Civ. Proc., § 36 subd. (b).) Plaintiff is presently four years old and is the only Plaintiff in this action with any interest. Plaintiffs counsel affirms that Defendant filed its answer on May 15, 2024. (Michael Justice decl., ¶¶ 3 and 13.) The court has no discretion to deny the motion if statutory criteria are met. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.) Defendant concedes that the Plaintiff is technically entitled to preference, but argues that it will not be able to conduct investigation while important witnesses are not available. (Opp., Martha Cohen decl., ¶ 3.) Given the statutes mandatory language, the court has no discretion to deny the motion so long as statutory criteria are met. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224.) IV. CONCLUSION Accordingly, Plaintiffs motion for a preferential trial setting is GRANTED. The court is required to set trial for not more than 120 days from the date of the hearing. (Code Civ. Proc., § 36 subd. (f).) There shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party's attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party. (Id.) The 120th day from the date of the hearing falls on Wednesday, December 25, 2024; the next court day is Thursday, December 26, 2024. (Code Civ. Proc., § 12a ["If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday."].) Accordingly, the court sets the following dates: Trial: DECEMBER 23, 2024 FSC: DECEMBER 18, 2024
Ruling
ARIEL BONILLA VS EMANATE HEALTH MEDICAL CENTER, ET AL.
Aug 27, 2024 |21STCV31000
Case Number: 21STCV31000 Hearing Date: August 27, 2024 Dept: 28 Having considered the moving papers, the Court rules as follows. BACKGROUND On August 23, 2021, Plaintiff Ariel Bonilla filed this action against Defendants Emanate Health Medical Center dba Emanate Health Queen of the Valley Medical Center, Anela Puljic, M.D., Patrick Maloney, M.D., and Does 1-100 for health care provider negligence leading to injury or death under Civil Code section 3333.1. On December 1, 2021, Defendants Emanate Health Queen of the Valley Hospital (erroneously sued as Emanate Health Medical Center dba Emanate Health Queen of the Valley Medical Center), Anela Puljic, M.D., and Patrick Maloney, M.D. filed an answer. On June 25, 2024, Defendant Emanate Health Medical Center (Defendant) filed a motion for an order directing a non-party's compliance with a subpoena duces tecum. The motion was set for hearing on August 7, 2024. The Court continued the hearing to August 27, 2024. No opposition was filed. Trial is currently scheduled for March 10, 2025. PARTYS REQUEST Defendant asks the Court to compel Norma Salceda, M.D.s compliance with a deposition subpoena for the production of Plaintiffs medical records. LEGAL STANDARD California Rules of Court, rule 3.1346, provides: A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record. (Cal. Rules of Court, rule 3.1346 (Rule 3.1346).) DISCUSSION Defendant asks the Court to compel non-party Norma Salceda, M.D.s compliance with a deposition subpoena for medical records. The proof of service for Defendants motion states that Defendant served the motion on Norma Salceda, M.D., by U.S. mail. Under Rule 3.1346, however, Defendant was required to personally serve the moving papers on Dr. Salceda unless Dr. Salceda agree[d] to accept service by mail or electronic service at an address or electronic service address specified on the deposition record. Defendant has not shown that Dr. Salceda agreed to accept service by mail at the address listed in the proof of service. The Court denies the motion. CONCLUSION The Court DENIES Defendant Emanate Health Medical Centers motion to compel non-party Norma Salceda, M.D.s compliance with a deposition subpoena for business records. Moving party is ordered to give notice of this ruling. Moving party is ordered to file a proof of service of this ruling with the Court within five days.
Ruling
SALCEDO vs PITA STREET, INC
Aug 29, 2024 |CVRI2103980
MOTION TO COMPEL DEFENDANTNISHANT PATEL TO RESPOND TOSALCEDO VS PITA STREET, PLAINTIFF'S DEMAND FORCVRI2103980INC PRODUCTION OF DOCUMENTS;AND AN AWARD OF MONETARYSANCTIONS BY MERILYN SALCEDOTentative Ruling:GRANT
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