SUMMONS + COMPLAINT June 18, 2020 (2024)

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FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------------------X SUMMONS PROGRESSIVE SPECIALTY INSURANCE COMPANY, Plaintiff, Index No.: -against- JACKSON POSY (POLICY #921220972), The basis of the venue designated is: Nassau (the “Policy Defendant”) County -and- Plaintiff’s places of business ANDREW DOWD MD, BKC CHIROPRACTIC OFFICES, P.C CPLR §§ 503(A) CENTRAL PARK PHYSICAL MEDICINE, P.C. ELMWOOD PARK MEDICAL GROUP PC GIL GAL PHYSICAL THERAPY P.C. MANHATTAN'S HANDS OF HOPE P.T., P.C. NEW SENSE ACUPUNCTURE P.C. NEW YORK MEDICAL & DIAGNOSTIC CARE P.C. RF CHIROPRACTIC IMAGING, P.C. TRIBOROUGH ORTHOPEDICS, P.C. and ULTIMATE MASSAGE THERAPY, P.C. (collectively the “Provider Defendants”) Defendants. --------------------------------------------------------------------------------X TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY SUMMONED to Answer the Complaint in this action and to serve a copy of your answer or, if the Complaint is not served with this Summons, to serve a Notice of Appearance, on the Plaintiff’s Attorney(s) within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty 30 days after the service is complete if this Summons is not personally delivered to you within the State of New York); and in case of your failure to appear, or Answer, judgment will be taken against you by default for the relief demanded in this Complaint. Dated: Garden City, New York June 18, 2020 1 1 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 McCORMA , ÎŽ'EI By: Mri'sioffh IV1lazzo, Ès Attorneys for Plaintiff Progressive Specialty insurance Company 1035 Stewart Avenue, Second Floor Garden City, New York, 11530 (516) 505-0600 File No. V-4223.dj TO: P_OL_ICY DEFENDANT JACKSON POSY 29 WARWICK DRIVE CHAMBERSBURG, PENNSYLVANIA, 17201 JACKSON POSY 110™ 109-12 STREET HOLLIS AVENUE QUEENS VILLAGE, NEW YORK, 11420 JACKSON POSY 110™ 109-12 STREET HOLLIS, NEW YORK, 11429 TO: PROVIDER DEFENDANTS (Via Secretary of State) BKC CHIROPRACTIC P.C. 17217 JAMAICA AVE. JAMAICA, NEW YORK, 11432 CENTRAL PARK PHYSICAL MEDICINE, P.C. 509 AVALON PINES DR CORAM, NEW YORK, 11727 ELMWOOD PARK MEDICAL GROUP PC 2488 GRAND CONCOURSE BRONX, NEW YORK, 10458 GIL GAL PHYSICAL THERAPY P.C. 110-11 LIBERTY AVENUE JAMAICA, NEW YORK, 11419 MANHATTAN'S HANDS OF HOPE P.T., P.C. 2155 E 24TH ST BROOKLYN, NEW YORK, 11229 2 2 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 NEW SENSE ACUPUNCTURE P.C. 21974 A 64TH AVE BAYSIDE, NEW YORK, 11364-2246 NEW YORK MEDICAL & DIAGNOSTIC CARE P.C. 221 CENTER STREET WILLISTON PARK, NEW YORK, 11596 RF CHIROPRACTIC IMAGING, P.C. C/O BUSINESS FILINGS INCORPORATED 187 WOLF ROAD SUITE 101 ALBANY, NEW YORK, 12205 TRIBOROUGH ORTHOPEDICS, P.C. 1030 SHERIDAN AVENUE BRONX, NEW YORK, 10456 ULTIMATE MASSAGE THERAPY, P.C. 898 EAST 40TH STREET BROOKLYN, NEW YORK, 11210 TO: PROVIDER DEFENDANTS ANDREW DOWD MD 3771 NESCONSETT HWY, SUITE 213 SOUTH SETAUKET, NEW YORK, 11720 ANDREW DOWD MD 19 SEACLIFF PLACE MILLER PLACE, NEW YORK, 11764 ANDREW DOWD MD 46-04 31ST AVE LONG ISLAND CITY, NEW YORK, 11103 3 3 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------------------X VERIFIED PROGRESSIVE SPECIALTY INSURANCE COMPANY, COMPLAINT Plaintiff, -against- JACKSON POSY (POLICY #921220972), (the “Policy Defendant”) -and- ANDREW DOWD MD, BKC CHIROPRACTIC OFFICES, P.C CENTRAL PARK PHYSICAL MEDICINE, P.C. ELMWOOD PARK MEDICAL GROUP PC GIL GAL PHYSICAL THERAPY P.C. MANHATTAN'S HANDS OF HOPE P.T., P.C. NEW SENSE ACUPUNCTURE P.C. NEW YORK MEDICAL & DIAGNOSTIC CARE P.C. RF CHIROPRACTIC IMAGING, P.C. TRIBOROUGH ORTHOPEDICS, P.C. and ULTIMATE MASSAGE THERAPY, P.C. (collectively the “Provider Defendants”) Defendants. --------------------------------------------------------------------------------X Plaintiff, PROGRESSIVE SPECIALTY INSURANCE COMPANY (hereinafter referred to as “PROGRESSIVE”), by and through its attorneys, McCORMACK, MATTEI & HOLLER, hereby seeks, inter alia, a declaration of the rights and obligations of the parties, and in furtherance thereof, alleges and shows to the Court upon information and belief, as follows: I. INTRODUCTION 1. PROGRESSIVE contends that the insured, JACKSON POSY, was involved in a scheme to deceptively procure a policy of insurance from PROGRESSIVE with the intent to obtain insurance benefits that the Defendants would not otherwise be entitled to receive. PROGRESSIVE further contends that JACKSON POSY made material misrepresentations of fact and false and/or duplicitous statements in the procurement of the subject policy of insurance. 2. The actions of JACKSON POSY in deceitfully procuring the subject policy of 4 4 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 insurance is contrary to public policy and in direct contradiction to the provisions of the applicable policy of insurance or any applicable endorsem*nts or amendments. The Defendants, therefore, are not entitled to insurance coverage from PROGRESSIVE. 3. PROGRESSIVE has received multiple claims stemming from a purported motor vehicle incident of October 5, 2018 (PROGRESSIVE claim number 18-2960537) which seeks thousands of dollars for medical and other services purportedly rendered to JACKSON POSY by the Provider Defendants. 4. JACKSON POSY is reported to have been involved in a motor vehicle incident on October 5, 2018 (PROGRESSIVE claim number 18-2960537). A copy of the Police Accident Report regarding this incident is annexed hereto as Exhibit “A”. 5. The Provider Defendants alleged to have provided medical and/or No-Fault treatment to JACKSON POSY. 6. The various Provider Defendants are healthcare providers who purportedly received assignments of benefits from JACKSON POSY for the right to recover benefits under the No-Fault Regulations of New York and the New York Insurance Law. 7. The Provider Defendants have submitted claims to PROGRESSIVE for medical and other services purportedly provided to JACKSON POSY. 8. As set forth in greater detail herein, PROGRESSIVE conducted an investigation wherein it was determined that JACKSON POSY made material misrepresentations of fact and/or deceitful statements in the procurement of the subject policy of automobile insurance. 9. Due to the fact that the subject policy was procured by the false statements and material misrepresentations of JACKSON POSY, PROGRESSIVE seeks a declaratory judgment as to the following relief: (a) That PROGRESSIVE is not obligated to provide any coverage, reimbursem*nts, or pay any monies, sums, or funds to any of the Defendants named herein for any and all No-Fault related services for which claims/bills have been, or may in the future be, submitted by the Defendants to the Plaintiff, by or on behalf of JACKSON POSY; (b) That PROGRESSIVE is not obligated to provide any first party coverage or reimbursem*nts, including, but not limited to, Mandatory Personal Injury Protection benefits, Medical Expenses Coverage benefits, Uninsured/Underinsured Motorist benefits, Collision Coverage, and Property Damage Liability coverage to any of the Defendants named herein, for the incident of October 05, 2018; 5 5 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 (c) That JACKSON POSY perpetrated a scheme to deceive and/or falsely procure a policy of insurance from PROGRESSIVE by knowingly submitting an application for insurance that contained material misrepresentations of fact and false and/or deceitful statements; (d) That JACKSON POSY continued to perpetrate a scheme to deceive PROGRESSIVE by knowingly representing that JACKSON POSY is a resident of the Borough of Chambersburg, Franklin County, Pennsylvania; (e) That JACKSON POSY breached the Policy of Insurance issued by PROGRESSIVE by willfully failing to cooperate pursuant to the terms and conditions of the Policy of Insurance; (f) That the Defendants lack standing to seek or receive No-Fault reimbursem*nts for any bill submitted by or on behalf of JACKSON POSY, as the Policy Defendant perpetrated a scheme to deceive and/or falsely procure a policy of insurance from PROGRESSIVE by knowingly submitting an Application for Insurance that contained material misrepresentations of fact and false and/or deceitful statements; (g) That the Defendants lack standing to seek or receive No-Fault reimbursem*nts for any bill submitted by or on behalf of JACKSON POSY, as the Policy Defendant perpetrated a scheme to deceive PROGRESSIVE by knowingly making material misrepresentations of fact and false and/or deceitful statements in the filing and/or presentation of the claim; (h) For such other and further relief as this Court deems just, proper and equitable. II. PARTIES A. PLAINTIFF 10. PROGRESSIVE SPECIALTY INSURANCE COMPANY is a foreign corporation authorized to engage in the business of insurance in the State of New York that has transacted and continues to transact business in the State of New York. B. DEFENDANTS 11. That at all times hereinafter mentioned, Defendant, JACKSON POSY, is a natural person residing in the County of Queens, State of New York, at 109-12 110TH Street, Hollis Avenue, Queens Village, New York 11420. 6 6 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 12. At the time JACKSON POSY procured the subject policy of insurance with PROGRESSIVE, the Policy Defendant materially represented that they resided in Franklin County, State of Pennsylvania, at 29 Warwick Drive, Chambersburg, Pennsylvania 17201. 13. Upon information and belief, Defendant, ANDREW DOWD, MD, is purportedly an independent medical practitioner which is transacting or has transacted business in the State of New York. 14. Upon information and belief, Defendant, BKC CHIROPRACTIC P.C., is purportedly a domestic professional corporation organized and existing under the laws of the State of New York. 15. Upon information and belief, Defendant, CENTRAL PARK PHYSICAL MEDICINE, P.C., is purportedly a domestic professional corporation organized and existing under the laws of the State of New York. 16. Upon information and belief, Defendant, ELMWOOD PARK MEDICAL GROUP PC, is purportedly a foreign business corporation organized and existing under the laws of the State of New York. 17. Upon information and belief, Defendant, GIL GAL PHYSICAL THERAPY P.C., is purportedly a domestic professional corporation organized and existing under the laws of the State of New York. 18. Upon information and belief, Defendant, MANHATTAN'S HANDS OF HOPE P.T., P.C., is purportedly a domestic professional corporation organized and existing under the laws of the State of New York. 19. Upon information and belief, Defendant, NEW SENSE ACUPUNCTURE P.C., is purportedly a domestic professional corporation organized and existing under the laws of the State of New York. 20. Upon information and belief, Defendant, NEW YORK MEDICAL & DIAGNOSTIC CARE P.C., is purportedly a domestic professional corporation organized and existing under the laws of the State of New York. 21. Upon information and belief, Defendant, RF CHIROPRACTIC IMAGING, P.C., is purportedly a domestic professional corporation organized and existing under the laws of the State of New York. 7 7 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 22. Upon information and belief, Defendant, TRIBOROUGH ORTHOPEDICS, P.C., is purportedly a domestic professional corporation organized and existing under the laws of the State of New York. 23. Upon information and belief, Defendant, ULTIMATE MASSAGE THERAPY, P.C., is purportedly a domestic professional corporation that is transacting, or has transacted business in the State of New York. III. VENUE 24. Venue is appropriate in Nassau County pursuant to Section 503(a) of the New York Civil Practice Law and Rules since PROGRESSIVE and its parent/sister companies conduct business in Nassau County and maintain an office within Nassau County. ALLEGATIONS COMMON TO ALL CAUSES OF ACTION IV. AN OVERVIEW OF THE NEW YORK STATE NO-FAULT LAWS 25. PROGRESSIVE underwrites automobile insurance in the State of New York. 26. New York’s No-Fault laws are designed to ensure that injured victims of motor vehicle accidents have an efficient mechanism to pay for and receive the health care services that they need. Under New York’s Comprehensive Motor Vehicle Insurance Reparations Act (N.Y. Ins. Law §§ 5101, et seq.) and the regulations promulgated pursuant thereto (11 N.Y.C.R.R. §§ 65, et seq.) (collectively referred to as the “No-Fault Laws”), automobile insurers are required to provide Personal Injury Protection Benefits (“No-Fault Benefits”) to insureds. 27. No-Fault Benefits include up to $50,000.00 per insured for necessary expenses that are incurred for healthcare goods and services. In addition to reimbursem*nt for healthcare goods and services, insured parties may receive up to $2,000.00 per month to cover loss of earnings from work as an element of their $50,000.00 maximum benefit. 28. An insured can assign his/her right to No-Fault Benefits to health care service providers in exchange for those services. Pursuant to a duly executed assignment, a health care provider may submit claims directly to an insurance company and receive payment for necessary goods and medical services provided, using the claim form required by the New York State Department of Insurance (known as the “Verification of Treatment by Attending Physician or Other Provider for Health Service,” or, more commonly known as an “NF-3 form.” 29. In the alternative, healthcare providers sometimes submit claims using the Health Care Financing Administration Insurance Claim Form (known as the “HCFA-1500 form”). 8 8 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 30. Pursuant to Section 403 of the New York State Insurance Law, the NF-3s and HCFA-1500 Forms submitted by healthcare providers to PROGRESSIVE, and to all other insurers, must be verified subject to the following warning: Any person who knowingly and with the intent to defraud any insurance company or other person files an application for insurance or statement of claim containing any materially false information, or conceals for the purpose of misleading, information concerning any fact material thereto, commits a fraudulent insurance act, which is a crime. V. FRAUD AND/OR MATERIAL MISREPRESENTATIONS IN THE PROCUREMENT OF THE POLICY OF INSURANCE UNDER NEW YORK LAW 31. The general rule in New York allows a policy of insurance to be voided if the insured fraudulently concealed a material fact in applying for insurance coverage. Vehicle and Traffic Law § 313 supplants an insurance carrier’s common-law right to cancel an automobile insurance contract retroactively on the grounds of fraud or misrepresentation. See: Liberty Mutual Ins. Co. v. McClellan, 512 N.Y.S. 2d 161 (N.Y. App. Div. 2nd Dep’t 1987). 32. It is well-settled that a No-Fault insurer may void a policy if the insurer can demonstrate that the insured committed a material misrepresentation at the time the insured applied for automobile insurance or if the insured made a misrepresentation which, had the insurer been advised of the truth, the insurer would not have issued the subject insurance policy or would have issued the subject insurance policy at a higher premium, AA Acupuncture Service, P.C. v. Safeco Ins. Co. of America, 25 Misc. 3d 30, 887 N.Y.S. 2d 739 (App. Term 1st Dep’t 2009). 33. “[W]hen the insured [or the insured assignee] brings an action to recover benefits under a policy [of insurance], the insurance carrier may assert as an affirmative defense that the insured’s misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured.” Ins. Co. of North America v. Kaplun, 713 N.Y.S. 2d 214, 218 (N.Y. App. Div. 2nd Dep’t 2000) citing DiDonna v. PROGRESSIVE Mut. Auto. Ins. Co., 687 N.Y.S. 2d 175 (N.Y. App. Div. 2nd Dep’t 1999). 34. Where it is established that an assignor misrepresented their residence in connection with the issuance of the insurance policy in question, they become ineligible to receive first-party No-Fault benefits and the health care provider may not recover. Central Radiology Services, P.C. v. Commerce Ins. Co., 31 Misc.3d 146 (A), 930 N.Y.S. 2d 173 (Table), 2011 N.Y. Slip Op. 50948 (U), 2011 WL 2089709 (App. Term 2d, 11th & 13th Dists. May 23, 9 9 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 2011). 35. The standard for determining residency for purposes of insurance coverage “requires something more than temporary or physical presence and requires at least some degree of permanence and intention to remain.” Gov’t Employees Ins. Co. v. Paolicelli, 303 A.D. 2d 633 (App. Div., 2d Dep’t., 2003); Allstate Ins. Co. v. Rapp, 7 A.D. 3d 302 (App. Div., 1st Dep’t, 2004); Neary v. Tower Ins., 94 A.D. 3d 725 (App. Div., 2d Dep’t, 2012). 36. “Just as the public interest is not disserved by a suit brought by the insurer against its insured who fraudulently procured the policy, neither is it disadvantaged if the insurer is relieved of a claim asserted against it by such an insured. If it is established… that plaintiff acquired his [or her] policy by fraudulent means, denying plaintiff the right to recover would not impinge in any way upon the protection the policy accords innocent victims, would not subvert the statutory proscription against retroactive cancellation and would comport with elementary fairness.” Kaplun, 713 N.Y.S. 2d 218. 37. Additionally, “only innocent third parties who are injured are protected, and not a health care provider who deals with the assignor-insured at its peril in accepting an assignment of the insured's no-fault benefits.” A.B. Medical Services PLLC a/a/o Ioffe v. Commercial Mut. Ins. Co., 820 N.Y.S. 2d 378, 381-382 (N.Y. App. Term, 2nd Dep’t 2006). 38. A misrepresentation is material when the “facts misrepresented would have led to a refusal by the insurer to make such contract.” DiDonna, 687 N.Y.S. 2d 175, 176 citing Insurance Law § 3105(b). 39. An insurer may assert misrepresentation or fraud as an affirmative defense in an action by an insured to recover benefits under an insurance policy. Matter of Insurance Co. of North America v. Kaplun, 713 N.Y.S. 2d 218 (N.Y. App. Div. 2nd Dep’t 2000); Matter of Liberty Mut. Ins. Co. v. McClellan, 512 N.Y.S. 2d 161 (N.Y. App. Div. 2nd Dep’t 1987). VI. FRAUD AND/OR MATERIAL MISREPRESENTATIONS IN PROCUREMENT OF THE POLICY OF INSURANCE UNDER PENNSYLVANIA STATE LAW 40. It is the long-standing common-law tradition in [the commonwealth of Pennsylvania] to allow contracts, including automobile insurance policies, to be rescinded ab initio, on the basis of fraud or material misrepresentation. See e.g., Metropolitan Property and Liability Insurance Co. v. Insurance Commissioner of Pennsylvania (Edgar Miller), 525 Pa. 306, 308, 580 A.2d 300, 301 (1990); Prudential Insurance Co. v. Pagano, 407 Pa. 473, 181 A.2d 319 10 10 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 (1962); Allstate Insurance Co. v. Stinger, 400 Pa. 533, 163 A.2d 74 (1960). In other words, if a customer had misrepresented facts to the insurer which were material to the insurer's acceptance of their application, then the insurer traditionally was allowed to rescind the contract. 41. Rescission of a contract and cancellation of a contract are two separate and distinct legal concepts. A rescission amounts to the unmaking of a contract and is not merely a termination of the rights and obligations of the parties towards each other, but is an abrogation of all rights and responsibilities of the parties towards each other from the inception of the contract. It is a form of retroactive relief. Cancellation is an act destroying the force and effectiveness of the contract, and is a form of prospective relief, affecting the future rights and obligations of the parties towards each other. Metropolitan Property & Liability Insurance Company v. Commonwealth of Pennsylvania, Insurance Commissioner, 97 Pa. Commw. 219, 223, 509 A.2d 1346, 1348 (1986), aff'd by an equally divided court, 517 Pa. 218, 535 A.2d 588 (1987) (Bonnie Beck). 42. Under Act 78, an automobile insurer may elect to cancel or refuse to renew a policy based on a number of criteria, including fraud or material misrepresentation. 40 P.S. §§ 1008.4-1008.5. However, Act 78 is silent as to an insurer's privilege to rescind a policy ab initio. 40 P.S. §§ 1008.1-1008.11. 43. Act 78 was intended to be a comprehensive codification of automobile insurance policy termination procedures and supersedes common-law remedies. Metropolitan Property and Liability Insurance Co. v. Insurance Commissioner of Pennsylvania (Bonnie Beck), 517 Pa. 218, 535 A.2d 588 (1987). 44. Act 78 insurance termination procedures are not applicable until 60 days after the binding of the policy. During that 60 days, common law termination remains available to an insurer. 40 P.S. § 1008.6 (3). This 60-day period was intended to provide time for examining insurance applicants' credentials because of the contemporary practice of granting insurance to customers "on-the-spot." See Klopp v. Keystone Insurance Companies, 595 A.2d at 4. 45. Accordingly, the common-law right to rescind a contract ab initio is intact within the 60-day grace period. Id. However, upon the expiration of the 60 days, Act 78 provides the exclusive procedure for automobile insurance policy termination. Id. 46. 40 P.S. § 1008.4(3) specifically includes fraud in the inducement as a basis to cancel an insurance policy. 11 11 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 47. It is well established that "where the execution of a contract of insurance has been induced by fraudulent misrepresentations of the insured, the insurer may secure its cancellation." Tudor Ins. Co. v. Township of Stowe, 697 A.2d 1010 (Pa. Super. 1997) (quoting New York Life Insurance Co. v. Brandwene, 221, 316 Pa. 218, 172 A. 669, 669 (Pa. Super. 1934)). 48. The burden of proving fraud is on the insurer who must prove, by clear and convincing evidence, that on the application, the insured knowingly made false statements or knowingly failed to disclose information which was material to the risk against which the insured sought to be protected. Id. at 1016. VII. PURSUANT TO NEW YORK COURTS’ APPLICATION OF OUT OF STATE INSURANCE PROVISIONS, PENNSYLVANIA STATE LAW MUST APPLY 49. Where there is a conflict of law relating to a Policy of Insurance, the conflict must be resolved by the application of the conflict of law principles relevant to contracts, although the claims arose out of a motor vehicle accident in the State of New York. 50. In resolving the conflicts of laws relating to contracts, New York Courts apply the center of gravity approach, considering such significant contacts as: 1) the place of contracting; 2) the place of negotiation and performance; 3) the location of the subject matter of the contract; and 4) the domicile or place of business of the contracting parties. Integon Insurance Company v. Garcia, 721 N.Y.S.2d 669 (2d Dept 2001); Zurich Insurance Company v. Shearson Lehman Hutton, 84 N.Y.2d 309 (1994). 51. As to insurance contracts specifically, significance has been attached to the “local law of the state which the parties understood was to be the principal location of the insured risk * * * unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 [of the Restatement] to the transaction and the parties.” (Zurich Ins. Co. v. Shearson Lehman Hutton, supra, at 318, 618 N.Y.S.2d 609, 642 N.E.2d 1065, quoting Restatement [Second] of Conflict of Laws § 193). 52. In the case of a noncommercial vehicle, which is by its nature mobile, the principal location of the insured risk is the place where the vehicle is to be principally garaged. See Restatement [Second] of Conflict of Laws, § 193. 53. The subject policy is a Pennsylvania Insurance Policy issued based on information produced by JACKSON POSY indicating that the policy would be utilized to insure vehicles driven and garaged supposedly in the State of Pennsylvania. 12 12 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 54. At the time of Inception, PROGRESSIVE, through one of its affiliates, PROGRESSIVE SPECIALTY INSURANCE COMPANY, who issues Policies of Insurance in the State of Pennsylvania, issued such a policy designed to insure vehicles driven and garaged in the State of Pennsylvania, and designed to encompass and conform to the laws of the State of Pennsylvania. 55. Hence, the insurance contract at issue was written to conform to Pennsylvania State Law, written by an insurance company doing business in the State of Pennsylvania, obtained by a party who represented he was a resident of Pennsylvania, for an insured vehicle that was represented to be principally garaged in the State of Pennsylvania. Therefore, it is evident that Pennsylvania would clearly have the most significant contacts with the parties and the contract, meaning Pennsylvania State Law should apply in this instance. VIII. THE SUBJECT MOTOR VEHICLE INCIDENT PROGRESSIVE CLAIM NUMBER 18-2960537 DATE OF LOSS – OCTOBER 5, 2018 56. PROGRESSIVE claim number 18-2960537 involves an alleged motor vehicle incident, which occurred on October 5, 2018, under policy number 921220972. On that date, it is alleged that the 2016 Nissan Altima vehicle insured by JACKSON POSY, bearing Vehicle Identification Number 1N4AL3APXGC279271, was involved in a motor vehicle incident. 57. At the time of the incident, the PROGRESSIVE insured vehicle was operated by JACKSON POSY. The insured vehicle was involved in a purported incident with an adverse vehicle driven and owned by Balwinder Singh. This action seeks no relief as to the driver of this adverse vehicle or any of the occupants in the adverse vehicle. IX. INSURANCE POLICY INFORMATION 58. Prior to October 5, 2018, JACKSON POSY procured, or caused to be procured, an automobile policy of insurance from PROGRESSIVE for a 2016 Nissan Altima bearing policy number 921220972. A copy of the subject policy, along with the relevant policy amendments and endorsem*nts and declarations page, is annexed hereto as Exhibit “B”. 59. The Defendants have sought to obtain benefits under the applicable policy of insurance and its amendments and endorsem*nts for differing types of coverage. The applicable policy provisions, GENERAL DEFINITIONS (P. 1), PART II-FIRST PARTY BENEFITS COVERAGE (P. 7-11), PART IV-DAMAGE TO A VEHICLE (P. 16-23), PART VI-DUTIES IN CASE OF AN ACCIDENT OR LOSS (P. 25), PART VII-GENERAL PROVISIONS (P. 26- 13 13 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 31), are annexed hereto as part of Exhibit “B.” X. PLAINTIFF’S FACTUAL INVESTIGATION PROGRESSIVE CLAIM NUMBER 18-2960537 DATE OF LOSS – OCTOBER 5, 2018 60. Prior to and upon receiving notice of the subject incident, PROGRESSIVE began an investigation to verify, among other things, the facts surrounding the loss as well as the injuries allegedly sustained, and the medical treatment allegedly rendered. Additionally, PROGRESSIVE sought to verify the garaging address of the subject 2016 Nissan Altima. 61. When procuring the subject policy of insurance, JACKSON POSY utilized an address of 29 Warwick Drive, Chambersburg, Pennsylvania 17201. However, PROGRESSIVE’s investigation concluded that, at all times, JACKSON POSY resided and garaged the subject vehicle in Queens, New York. 62. As a result of the subject automobile incident, PROGRESSIVE began to receive extensive billing from various medical providers. All of the facilities are/were providing medical treatment to JACKSON POSY within the five boroughs of the City of New York. PROGRESSIVE’s investigation further uncovered that not a single medical provider submitted any billing for medical treatment rendered in the State of Pennsylvania. 63. Progressive’s investigation uncovered that during the presentation of this claim, JACKSON POSY filled out an NF-2 (New York Motor Vehicle No-Fault Insurance Law – Application for Motor Vehicle No-Fault Benefits) Application, where the Defendant, admits to having a principle garaging address of 109-12 110 Street, Queens Village, New York 11429. A copy of JACKSON POSY’s New York Motor Vehicle No-Fault Insurance Law – Application for Motor Vehicle No-Fault, is collectively annexed hereto as Exhibit “C.” 64. PROGRESSIVE’s investigation uncovered that as part of the services rendered by Dr. Andrew J. Dowd, MD, JACKSON POSY was provided durable medical equipment. A delivery acknowledgment receipt of this durable medical equipment, signed by JACKSON POSY, lists his address as 109-12 110 St, Queens Village, NY 11420. 65. Additionally, Progressive’s investigation discovered that all of the medical billing received by PROGRESSIVE lists JACKSON POSY’s suspected address in Queens, New York. 66. PROGRESSIVE’s investigation further uncovered that from March 03, 2019 through July 07, 2019, the POSY 2016 Nissan Altima was sighted on twenty-four (24) separate occasions to be within the State of New York. PROGRESSIVE’s investigation could not find 14 14 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 one sighting of the POSY 2016 Nissan Altima in the State of Pennsylvania. 67. Upon information and belief, JACKSON POSY’s 2016 Nissan Altima was garaged in Queens County, New York and not Franklin County, Pennsylvania from the date of the policy inception on April 24, 2018, through November 19, 2018, when the policy was canceled for reasons of non-payment. 68. Based upon the discrepancies set forth above, as part of the investigation, PROGRESSIVE requested that JACKSON POSY submit additional verification that the insured vehicle is being garaged in Chambersburg, Pennsylvania on November 5, 2018, November 6, 2018, and December 6, 2018, pursuant to PART VII—GENERAL PROVISIONS of the PROGRESSIVE Policy issued to JACKSON POSY. PART VII—GENERAL PROVISIONS FRAUD OR MISREPRESENTATION This policy was issued in reliance upon the information provided on your insurance application. We may void this policy at any time during the first 59 days, including after the occurrence of an accident or loss, if you: 1. made incorrect statements or representations to us with regard to any material fact or circ*mstance; 2. concealed or misrepresented any material fact or circ*mstance; or 3. engaged in fraudulent conduct; at the time of application. This means that we will not be liable for any claims or damages that would otherwise be covered 69. During the course of Progressive’s investigation, the Defendant, JACKSON POSY submitted multiple documents in an attempt to verify the garaging address of the POSY 2016 Nissan Altima. According to the PROGRESSIVE investigation, JACKSON POSY presented, among other things, a UPS paystub for the period of April 29, 2018 to May 05, 2018, a copy of his Pennsylvania driver’s license, EZ Pass statements from April 01, 2018 through September 30, 2018, Bank Account Statements from March 2018 to June 2018, and Nissan Service records for the POSY 2016 Nissan Altima. 70. PROGRESSIVE’s investigation revealed that the bank statements submitted by JACKSON POSY do not support his Pennsylvania residency since almost all listed transactions occurred in the State of New York. 71. JACKSON POSY provided a copy of his prior insurance policy issued by MetLife for the period of September 18, 2017 through September 18, 2018. PROGRESSIVE’s investigation uncovered that the policy lists JACKSON POSY’s address as 21421 111th Rd, 15 15 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 Queens Village, New York 11429. 72. PROGRESSIVE’s investigation further revealed the E-Z Pass records submitted by JACKSON POSY show that all tolls were incurred in New York or New Jersey. There were no records of the E-Z Pass being used on any bridge or toll in the State of Pennsylvania. 73. To date, JACKSON POSY has failed to adequately submit the requested additional verification. PART VI – DUTIES IN CASE OF AN ACCIDENT OR LOSS” states, in relevant part: PART VI – DUTIES IN CASE OF AN ACCIDENT OR LOSS A person seeking coverage must: 1. cooperate with us in any matter concerning a claim or lawsuit; 2. provide any written proof of loss we may reasonably require; 3. allow us to take signed and recorded statements, including sworn statements and examinations under oath, which we may conduct outside the presence of you or any other person seeking coverage, and answer all reasonable questions we may ask as often as we may reasonably require; XI. FRAUD AND/OR MATERIAL MISREPRESENTATION IN THE APPLICATION 74. Upon information and belief, JACKSON POSY misrepresented that the 2016 Nissan Altima would be principally garaged in Chambersburg, Pennsylvania, in order to obtain insurance on the subject 2016 Nissan Altima at a lower rate and/or lower premium than would have been charged had JACKSON POSY obtained the applicable policy of insurance using the actual garaging address in Queens, New York. 75. Had PROGRESSIVE known that the subject vehicle was actually being garaged in Queens, New York, as opposed to being garaged in Chambersburg, Pennsylvania as represented, PROGRESSIVE would not have issued the subject policy of insurance. 76. The misrepresentation by JACKSON POSY constitutes a material misrepresentation in the application for insurance. 77. By reason of said material misrepresentation in the application for insurance made by JACKSON POSY, Plaintiff is not obligated to pay any first-party benefits and/or first-party claims or any sums, monies, damages and/or awards on any first-party claims to JACKSON POSY, in connection with any such first-party claim(s) arising out of, or asserted in connection with, the motor vehicle incident of October 5, 2018. 78. By reason of the material misrepresentation in the application for insurance made by JACKSON POSY, Plaintiff is not obligated to pay any first-party benefits, first-party claims, 16 16 of 28FILED: NASSAU COUNTY CLERK 06/18/2020 04:53 PM INDEX NO. 606038/2020NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/18/2020 sums, monies, damages and/or awards asserted or filed by any of the Provider Defendants arising out of, or in connection with, the motor vehicle incident of October 5, 2018. 79. The material misrepresentation and false statements in the application for insurance, made by JACKSON POSY precludes recovery by ANDREW DOWD MD, BKC CHIROPRACTIC OFFICES, P.C, CENTRAL PARK PHYSICAL MEDICINE, P.C., ELMWOOD PARK MEDICAL GROUP PC, GIL GAL PHYSICAL THERAPY P.C., MANHATTAN'S HANDS OF HOPE P.T., P.C., NEW SENSE ACUPUNCTURE P.C., NEW YORK MEDICAL & DIAGNOSTIC CARE P.C., RF CHIROPRACTIC IMAGING, P.C., TRIBOROUGH ORTHOPEDICS, P.C. and

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Ruling

LARRY CARLON, ET AL. VS ESTATE OF JONATHAN PATRICK TATONE, DECEASED, ET AL.

Aug 20, 2024 |21STCV36657

Case Number: 21STCV36657 Hearing Date: August 20, 2024 Dept: F43 Dept. F43 Date: 8-20-24 Case #21STCV36657, Larry Carlon, et al. vs. Estate of Jonathan Patrick Tatone, et al. Trial Date: 4-28-25 MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES MOVING PARTY: Defendant County of Los Angeles RESPONDING PARTY: Plaintiff Larry Carlon RELIEF REQUESTED Plaintiffs Further Responses to Defendants Special Interrogatories RULING: Motion is granted. SUMMARY OF ACTION AND ANALYSIS On October 5, 2021, Plaintiff Larry Carlon (Plaintiff) filed this wrongful death case against Defendant County of Los Angeles (Defendant). Defendant propounded discovery on Plaintiff, including special interrogatories and requests for production of documents. Because Plaintiff is the father of the adult decedent who is the subject of the wrongful death action, Defendant seeks information as to whether Plaintiff was financially dependent upon the decedent. Plaintiff served responses to Defendants special interrogatories and requests for production on March 6, 2024. This motion concerns the special interrogatories. Plaintiff objected to and refused to respond to Defendants Special Interrogatories Nos. 30 through 44. The parties engaged in substantial meet and confer efforts in order to resolve the issues present. They were unsuccessful, so Defendant filed this motion on July 23, 2024. Special Interrogatories 30 through 44 seek information related to the bank accounts, investment accounts, retirement accounts, retirement-related payments, sources of financial gain (on or after January 1, 2016, until June 1, 2021), and real property, as well as the balances and values of those accounts and property as of June 1, 2021. Defendant argues that the information it seeks through the special interrogatories is highly relevant. Defendant also argues that Plaintiff must provide full responses, as the right to privacy does not justify Plaintiffs failure to respond and the special interrogatories are not overly broad. Plaintiff argues in his opposition that the special interrogatories do not seek highly relevant information and that the right to privacy justifies his objections. He also argues that the interrogatories are overbroad. Defendants reply reasserts the arguments made in its motion. ANALYSIS A party may obtain discovery related to any matter, not privileged, that is relevant to the litigation, provided the matter is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) When a responding partys objections and responses to interrogatories are without merit and/or too general, a party may move to compel further responses for good cause. (CCP § 2030.300.) The good cause requirement is met by a showing of relevance. (TBG Ins. Servs. Corp. v. Superior Court (2022) 96 Cal.App.4th 443, 448.) Relevance in this context is broad. (Id.) Evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. (Id.) Under the Legislatures very liberal and flexible standard of relevancy, any doubts as to relevance should generally be resolved in favor of permitting discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 542 (quoting Pac. Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173).) Courts presume all relevant nonprivileged evidence in a partys possession is discoverable. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Relevance of the Special Interrogatories Defendant argues that the disputed special interrogatories are relevant because they seek information that it argues is necessary in determining whether Plaintiff was financially dependent on the decedent. That is a requirement for a wrongful death action pursuant to CCP § 377.60. Plaintiff argues that the information sought by Defendant is not relevant because Defendant seeks details about owned businesses, income, investments, properties owned, and loans made by the decedent to his parents. Plaintiffs argues that this information is not determinative of whether Plaintiff had some expectancy to have some financial dependence on his son for the necessities in life. Plaintiff further argues that the focus should be on the support provided by the decedent to his father, the Plaintiff, rather than the overall financial status of Plaintiff. Next, Plaintiff argues that the actions by the decedent right before his death evidence a commitment to provide for both his parents for the necessities of life, due to his parents age and medical complications. Defendant argues in reply that the information it seeks is highly relevant because [P]arents cannot be considered dependent for purposes of the wrongful death statute unless they were actually dependent, to some extent, upon the decedent for the necessaries of life. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 189 (citation omitted).) Plaintiff brought his wrongful death claim based on his assertion that he was financially dependent on the decedent. Therefore, information concerning Plaintiffs financial accounts and the amount of money in those accounts is highly relevant to the lawsuit. It is not enough for him to say that he was financially dependent on the decedent; he needs to demonstrate it through evidence of his own financial condition at that time. Right of Privacy The constitutional right of privacy is not absolute. (Hill v. Natl Collegiate Athletic Assn (1994) 7 Cal.4th 1, 38; see John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199 (a partys privacy interests may have to give way to [the] opponents right to a fair trial (citation omitted))). A party who asserts a right to privacy must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circ*mstances; and (3) conduct by defendant constituting a serious invasion of privacy. (Hill, 7 Cal.4th at 35-37.) However, even if the threshold Hill requirements are established, a court must then balance the right of privacy against the need for disclosure. (Id.) Courts . . . place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion . . .. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) Courts allow discovery into a partys finances where the finances are relevant to the case. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 91-92 (financial information that goes to the cause of action at issue is generally discoverable).) In this case, Plaintiffs financial information is directly relevant to the case. Any privacy interests that Plaintiff might have in that information is overcome by the need for disclosure. Additionally, there is already a protective order in place in this case, so any doubts about the privacy of the information may be resolved by the protective order. Breadth of the Interrogatories Plaintiff argues that the special interrogatories are overbroad because they seek financial information spanning from January 1, 2016, through June 1, 2021. However, only Special Interrogatories Nos. 39 and 40 deal with this longer time period, and those interrogatories seek sources of financial gain over that time period. The rest of the interrogatories only seek information on accounts and real property as of June 1, 2021. These requests are not overbroad, as they deal with a specific relevant time period or a specific date in time. Conclusion Based on the foregoing, the Court finds that Defendants Special Interrogatories are relevant, do not violate Plaintiffs privacy interests, and are not overly broad. ORDER Defendants motion to compel further responses to Special Interrogatories Nos. 30 through 44 is granted. Plaintiff is ordered to provide responses to Special Interrogatories Nos. 30 through 44 within 30 days. Moving party to give notice. Dept. F43 Date: 8-21-24 Case #21STCV36657, Larry Carlon, et al. vs. Estate of Jonathan Patrick Tatone, et al. Trial Date: 4-28-25 MOTIONS TO COMPEL FURTHER DISCOVERY RESPONSES MOVING PARTY: Defendant County of Los Angeles RESPONDING PARTY: Plaintiff Bonnie Carlon RELIEF REQUESTED Plaintiffs Further Responses to Defendants Special Interrogatories RULING: Motion is granted. SUMMARY OF ACTION AND ANALYSIS On October 5, 2021, Plaintiff Bonnie Carlon (Plaintiff) filed this wrongful death case against Defendant County of Los Angeles (Defendant). Defendant propounded discovery on Plaintiff, including special interrogatories and requests for production of documents. Because Plaintiff is the mother of the adult decedent who is the subject of the wrongful death action, Defendant seeks information as to whether Plaintiff was financially dependent upon the decedent. Plaintiff served responses to Defendants special interrogatories and requests for production on March 6, 2024. This motion concerns the special interrogatories. Plaintiff objected to and refused to respond to Defendants Special Interrogatories Nos. 30 through 44. The parties engaged in substantial meet and confer efforts in order to resolve the issues present. They were unsuccessful, so Defendant filed this motion on July 23, 2024. Special Interrogatories 30 through 44 seek information related to Plaintiffs bank accounts, investment accounts, retirement accounts, retirement-related payments, sources of financial gain (on or after January 1, 2016, until June 1, 2021), and real property, as well as the balances and values of those accounts and property as of June 1, 2021. Defendant argues that the information it seeks through the special interrogatories is highly relevant. Defendant also argues that Plaintiff must provide full responses, as the right to privacy does not justify Plaintiffs failure to respond and the special interrogatories are not overly broad. Plaintiff argues in her opposition that the special interrogatories do not seek highly relevant information and that the right to privacy justifies his objections. She also argues that the interrogatories are overbroad. Defendants reply reasserts the arguments made in its motion. ANALYSIS A party may obtain discovery related to any matter, not privileged, that is relevant to the litigation, provided the matter is admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) When a responding partys objections and responses to interrogatories are without merit and/or too general, a party may move to compel further responses for good cause. (CCP § 2030.300.) The good cause requirement is met by a showing of relevance. (TBG Ins. Servs. Corp. v. Superior Court (2022) 96 Cal.App.4th 443, 448.) Relevance in this context is broad. (Id.) Evidence is relevant if it might reasonably assist a party in evaluating its case, preparing for trial, or facilitating a settlement. (Id.) Under the Legislatures very liberal and flexible standard of relevancy, any doubts as to relevance should generally be resolved in favor of permitting discovery. (Williams v. Superior Court (2017) 3 Cal.5th 531, 542 (quoting Pac. Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173).) Courts presume all relevant nonprivileged evidence in a partys possession is discoverable. (Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) Relevance of the Special Interrogatories Defendant argues that the disputed special interrogatories are relevant because they seek information that it argues is necessary in determining whether Plaintiff was financially dependent on the decedent. That is a requirement for a wrongful death action pursuant to CCP § 377.60. Plaintiff argues that the information sought by Defendant is not relevant because Defendant seeks details about owned businesses, income, investments, properties owned, and loans made by the decedent to his parents. Plaintiff argues that this information is not determinative of whether Plaintiff had some expectancy to have some financial dependence on her son for the necessities in life. Plaintiff further argues that the focus should be on the support provided by the decedent to his mother, the Plaintiff, rather than the overall financial status of Plaintiff. Next, Plaintiff argues that the actions by the decedent right before his death evidence a commitment to provide for both his parents for the necessities of life, due to his parents age and medical complications. Defendant argues in its reply that the information it seeks is highly relevant because [P]arents cannot be considered dependent for purposes of the wrongful death statute unless they were actually dependent, to some extent, upon the decedent for the necessaries of life. (Soto v. BorgWarner Morse TEC Inc. (2015) 239 Cal.App.4th 165, 189 (citation omitted).) Plaintiff brought her wrongful death claim based on her assertion that she was financially dependent on the decedent. Therefore, information concerning Plaintiffs financial accounts and the amount of money in those accounts is highly relevant to the lawsuit. It is not enough for her to say that she was financially dependent on the decedent; she needs to demonstrate it through evidence of her own financial condition at that time. Right of Privacy The constitutional right of privacy is not absolute. (Hill v. Natl Collegiate Athletic Assn (1994) 7 Cal.4th 1, 38; see John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199 (a partys privacy interests may have to give way to [the] opponents right to a fair trial (citation omitted))). A party who asserts a right to privacy must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circ*mstances; and (3) conduct by defendant constituting a serious invasion of privacy. (Hill, 7 Cal.4th at 35-37.) However, even if the threshold Hill requirements are established, a court must then balance the right of privacy against the need for disclosure. (Id.) Courts . . . place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion . . .. (Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) Courts allow discovery into a partys finances where the finances are relevant to the case. (Rawnsley v. Superior Court (1986) 183 Cal.App.3d 91-92 (financial information that goes to the cause of action at issue is generally discoverable).) In this case, Plaintiffs financial information is directly relevant to the case. Any privacy interests that Plaintiff might have in that information is overcome by the need for disclosure. Additionally, there is already a protective order in place in this case, so any doubts about the privacy of the information may be resolved by the protective order. Breadth of the Interrogatories Plaintiff argues that the special interrogatories are overbroad because they seek financial information spanning from January 1, 2016, through June 1, 2021. However, only Special Interrogatories Nos. 39 and 40 deal with this longer time period, and those interrogatories seek sources of financial gain over that time period. The rest of the interrogatories only seek information on accounts and real property as of June 1, 2021. These requests are not overbroad, as they deal with a specific relevant time period or a specific date in time. Conclusion Based on the foregoing, the Court finds that Defendants Special Interrogatories are relevant, do not violate Plaintiffs privacy interests, and are not overly broad. ORDER Defendants motion to compel further responses to Special Interrogatories Nos. 30 through 44 is granted. Plaintiff is ordered to provide responses to Special Interrogatories Nos. 30 through 44 within 30 days. Moving party to give notice.

Ruling

S. C. vs COUNTY OF SANTA CRUZ

Aug 22, 2024 |22CV02216

22CV02216S.C. v. COUNTY OF SANTA CRUZ DEFENDANT COUNTY’S MOTION TO COMPEL INITIAL RESPONSES TO FORM INTERROGATORIES (SET ONE), SPECIAL INTERROGATORIES (SET ONE), REQUEST FOR PRODUCTION OF DOCUMENTS (SET ONE), AND FOR MONETARY SANCTIONS DEFENDANT COUNTY’S MOTION TO HAVE MATTERS DEEMED ADMITTED AND FOR MONETARY SANCTIONS The motion compelling initial discovery responses is granted. The motion to deem factsadmitted is denied without prejudice provided plaintiff complies with this order. Form interrogatories, special interrogatories, and request for production: DefendantCounty seeks initial responses to form interrogatories – general, special interrogatories andrequests for production (sets one) from Plaintiff S.C. The discovery was served on 11/8/23.(Doodha Declaration, Exs. A-C.) Plaintiff obtained several extensions with a final responsedeadline of 3/7/24. (Doodha Decl., ¶¶ 3-7.) Plaintiff has not served any responses to any of thediscovery requests. (Reply at 2.) Requests for admission: County also moves to have matters deemed admitted sinceplaintiff also failed to serve any responses to the requests for admission (set one) served on4/19/24. County’s reply argues that terminating sanctions are appropriate but neither of its noticesof motion sought that type of sanction. “A request for a sanction shall, in the notice of motion,identify every person, party, and attorney against whom the sanction is sought, and specify thetype of sanction sought.” (CCP § 2023.040.) As to all four sets of discovery, plaintiff’s counsel declared she learned in July 2024 thatplaintiff is presently incarcerated and that she had not heard from plaintiff since August 2023.(Lafrades Decl. ¶ 3.) Counsel insists though that her office’s failure to properly calendar theresponses resulted in plaintiff’s failure to respond. ((Lafrades Decl. ¶¶ 2-5.) The court orders plaintiff to provide verified code-compliant responses withoutobjections to form interrogatories – general (set one), special interrogatories (set one), requestsfor production (set one), and requests for admission (set one) no later than Friday, 9/13/24. Nofurther extensions will be permitted. Page 3 of 4 The court imposes monetary sanctions in the amount of $1,100.00 ($220/hr for fivehours) against plaintiff pursuant to CCP § 2023.010(d) (failing to respond). Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formalorder incorporating, verbatim, the language of any tentative ruling – or attaching andincorporating the tentative by reference - or an order consistent with the announced ruling of theCourt, in accordance with California Rule of Court 3.1312. Such proposed order is requiredeven if the prevailing party submitted a proposed order prior to the hearing (unless thetentative is simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in theimposition of sanctions following an order to show cause hearing, if a proposed order is nottimely filed. Page 4 of 4

Ruling

ANA MASSIEL GARCIA CASTRO VS MARVIN ANTONIO HERNANDEZ, ET AL.

Aug 21, 2024 |24PSCV00350

Case Number: 24PSCV00350 Hearing Date: August 21, 2024 Dept: G Defendant L.A. Specialty Produce Co. Inc.s Demurrer to First Amended Complaint Respondent: Plaintiff Ana Massiel Garcia Castro Defendant L.A. Specialty Produce Co. Inc.s Motion to Strike Portions of Plaintiffs First Amended Complaint Respondent: Plaintiff Ana Massiel Garcia Castro Defendant Marvin Antonio Hernandezs Demurrer to First Amended Complaint Respondent: Plaintiff Ana Massiel Garcia Castro Defendant Marvin Antonio Hernandezs Motion to Strike Portions of Plaintiffs First Amended Complaint Respondent: Plaintiff Ana Massiel Garcia Castro TENTATIVE RULING Defendant L.A. Specialty Produce Co. Inc.s Demurrer to First Amended Complaint is OVERRULED. Defendant L.A. Specialty Produce Co. Inc.s Motion to Strike Portions of Plaintiffs First Amended Complaint is GRANTED with twenty (20) days leave to amend. Defendant Marvin Antonio Hernandezs Demurrer to First Amended Complaint is OVERRULED. Defendant Marvin Antonio Hernandezs Motion to Strike Portions of Plaintiffs First Amended Complaint is GRANTED with twenty (20) days leave to amend. BACKGROUND This is a personal injury action arising from a motor vehicle collision. In May 2022, Plaintiff Ana Massiel Garcia Castro was involved in a motor vehicle collision with Defendant Marvin Antonio Hernandez on Azusa Avenue near State Route 60. On February 2, 2024, Garcia Castro filed a complaint against Hernandez, Westrux International, Inc. (Westrux), and Does 1-20, alleging causes of action for (1) motor vehicle negligence and (2) general negligence. On June 7, 2024, Garcia Castro filed a First Amended Complaint (FAC) against Hernandez; Westrux; L.A. Specialty Produce Co. Inc. (L.A. Specialty Produce), doing business as Vesta Foodservice; and Does 1-50, alleging the following causes of action: (1) negligence, (2) negligent entrustment, and (3) negligent hiring, retention, and supervision. On July 17, 2024, Hernandez, Westrux, and L.A. Specialty Produce filed the present demurrers and motions to strike. Prior to filing on July 9, 2024, Hernandez and L.A. Specialty Produces counsel met and conferred telephonically with Garcia Castros counsel and was unable to reach a resolution. (Ball Decl., ¶ 2.) On August 6, 2024, Garcia Castro dismissed Westrux from the present action, rendering Westruxs demurrer moot. A hearing on the present demurrers and motions to strike is set for August 21, 2024, along with a case management conference and OSC Re: Default/Default Judgment. REQUESTS FOR JUDICIAL NOTICE Hernandez and L.A. Specialty Produce request the court take judicial notice of a traffic crash report prepared by the California Highway Patrol. While the court GRANTS these requests and takes judicial notice of the existence of this report pursuant to Evidence Code section 452, subdivision (c), the court declines to take judicial notice of the truth of the matters asserted within this report. DEMURRERS Hernandez demurs to Garcia Castros first cause of action for negligence while L.A. Specialty Produce demurs to Garcia Castros second cause of action for negligent entrustment and third cause of action for negligent hiring, retention, and supervision. For the following reasons, the court OVERRULES both demurrers in their entirety. Legal Standard A party may demur to a complaint on the grounds that it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, at p. 747.) Negligence (First Cause of Action) Hernandez argues Garcia Castros first cause of action for negligence fails because it does not allege sufficient facts to establish a breach of the duty of care. (Demurrer, p. 6:15-7:8.) The court disagrees. Legal Standard The basic elements of a negligence claim are (1) duty, (2) breach, (3) causation, and (4) damages. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.) Because [a]llegations of negligence have long been exempted from the code pleading requirement to state the facts constituting the cause of action, it may be pleaded generally. (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 102.) Discussion In this case, the FAC alleges Hernandez unsafely, negligently, and carelessly changed lanes and collided with Garcia Castro. (FAC, ¶ 10.) At the time of the collision, the FAC alleges Hernandez was operating a truck without the proper commercial license. (FAC, ¶ 19.) While Hernandez argues the allegations regarding Hernandezs lack of licensure are insufficient to establish breach, Hernandezs demurrer fails to address the explicit allegation that Hernandez made an unsafe, negligent, and careless lane change. And to the extent Hernandez may claim this allegation is too general or conclusory, the court notes such general pleading is allowed when alleging a cause of action for negligence. Accordingly, Hernandezs demurrer to this cause of action is OVERRULED. Negligent Entrustment, Hiring, Supervision, and Retention (Second and Third Causes of Action) L.A. Specialty Produce contends Garcia Castros second cause of action for negligent entrustment and third cause of action for negligent hiring, supervision, and retention fail because they do not allege L.A. Specialty Produce knew or should have known that Hernandez was unfit or incompetent to drive. (Demurrer, p. 7:5-13, 8:1-8.) The court disagrees. Legal Standard The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employers hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.) Likewise, one may be held liable for negligently entrusting a vehicle to one who is incompetent, unfit, or inexperienced. (Allen v. Toledo (1980) 109 Cal.App.3d 415, 420.) Discussion In this case, the FAC alleges L.A. Specialty Produce knew or should have known that Hernandez was unfit to drive the truck in question because Hernandez did not have the proper commercial license, training, and skills to operate that truck. (FAC, ¶ 30, 34, 48.) The court finds these allegations sufficient. Accordingly, L.A. Specialty Produces demurrer to this cause of action is OVERRULED. MOTIONS TO STRIKE Hernandez and L.A. Specialty Produce move to strike punitive damages from Garcia Castros FAC. For the following reasons, the court GRANTS their motions. Legal Standard Motion to Strike Upon a partys motion or the courts own motion, the court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).) An immaterial or irrelevant allegation includes (1) An allegation that is not essential to the statement of a claim or defense, (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint. (Code Civ. Proc., § 431.10.) Punitive Damages Civil Code section 3294 allows punitive damages when a plaintiff establishes by clear and convincing evidence that a defendant is guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) For the purposes of determining punitive damages, malice is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (Civ. Code, § 3294, subd. (c)(2).) Lastly, fraud is defined as an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).) In addition to the requirement that the operative complaint set forth the elements as stated in section 3294, it must include specific factual allegations showing that defendants conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. (Todays IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) Furthermore, [p]unitive damages may not be pleaded generally. (Ibid.) Discussion In this case, the FAC alleges Garcia Castro acted in conscious and reckless disregard for the safety of motorists by willfully operating a truck without the proper commercial license and engaging in unsafe lane changes. (FAC, ¶ 22-23.) The FAC alleges L.A. Specialty Produce acted in conscious and reckless disregard for the safety of motorists by willfully allowing Hernandez to operate their truck without the proper commercial license because it was more cost effective than hiring a properly licensed driver. (FAC, ¶ 38-41.) The FAC also alleges L.A. Specialty Produces executives, directors, officers, and managers were aware of these actions and ratified them. (FAC, ¶ 42-43.) An actor's conduct is in reckless disregard of the safety of another if he intentionally does an act or fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize that the actors conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him. (McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 299-300.) Here, while driving a truck without the proper commercial license and making an unsafe lane change could constitute negligent conduct and creates a risk of danger or injury, it does not involve a high degree of probability that substantial harm will result. Notably, while the FAC alleges Hernandez lacked the proper commercial license, it does not allege Hernandez lacked any training or had no experience in operating trucks. The allegation that Hernandez was operating a truck that was heavier than the type of truck Hernandez was licensed or allowed to operate does not create the same substantial risk of harm that would exist if Hernandez had no qualifications or experience to operate any type of truck. Similarly, the conclusory allegation that Hernandez made an unsafe lane change without any additional facts does not establish if Hernandezs lane change created a high probability of substantial harm. While Garcia Castro may plead negligence generally, specificity is required if Garcia Castro seeks to impose punitive damages. Accordingly, Hernandez and L.A. Specialty Produces motions are GRANTED with leave to amend. CONCLUSION Based on the foregoing, Hernandez and L.A. Specialty Produces demurrers to Garcia Castros FAC are OVERRULED. Furthermore, Hernandez and L.A. Specialty Produces motions to strike portions of Garcia Castros FAC are GRANTED with twenty (20) days leave to amend.

Ruling

LUZ QUEVEDO PEREZ, ET AL. VS BRIANA LATRISE KAMARA

Aug 20, 2024 |Renee C. Reyna |22STCV34958

Case Number: 22STCV34958 Hearing Date: August 20, 2024 Dept: 29 Perez v. Kamara 22STCV34958 Plaintiffs motion to amend default judgment. Tentative The motion is granted. Background On November 2, 2022, Luz Quevedo Perez, Gabriela Hernandez Perez, and Gabriela Perez Soto (collectively Plaintiffs) filed a complaint against Briana Latrise Kamara (Defendant) and Does 1 through 15 for motor vehicle negligence and general negligence arising out of an automobile accident occurring on October 15, 2022. Defendant did not appear. On October 23, 2023, default was entered against Defendant. On June 28, 2024, the Court granted the request for entry of default judgment. On July 31, 2024, Plaintiffs filed this motion for amendment of judgment. Legal Standard When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code. (Code Civ. Proc., § 187.) Discussion Plaintiffs request the Court to amend the judgment for default entered on June 28, 2024. Plaintiff seeks to correct a clerical error, as Plaintiffs omitted the name of Defendant in Section 5(a) of the judgment. (Motion, 1:20-24.) Plaintiffs cite Code of Civil Procedure section 187 as a means to amend the judgment. (See also Code Civ. Proc., § 473, subd. (d).) As this is a clerical amendment to correct an error in the judgment, the motion is granted. Conclusion The Court GRANTS the motion to amend the default judgment order. The Court GRANTS the request for entry of the proposed revised judgment submitted on July 31. Moving Party is ordered to give notice to anyone who has appeared in this matter.

Ruling

RICKEY BALL, AN INDIVIDUAL VS MARIA DE LOURDES MEDRANO BERNARDINO, AN INDIVIDUAL, ET AL.

Aug 21, 2024 |Renee C. Reyna |21STCV46360

Case Number: 21STCV46360 Hearing Date: August 21, 2024 Dept: 29 Ball v. Bernardino 21STCV46360 Defendants Motion to Compel Plaintiff to Respond to Form Interrogatories (Set One) Defendants Motion to Compel Plaintiff to Respond to Special Interrogatories (Set One) Defendants Motion to Compel Plaintiff to Respond to Request for Production (Set One) Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Elina Shakhbazyan of Downtown LA Law Group. Tentative The motions are granted. Background On December 20, 2021, Rickey Ball (Plaintiff) filed a complaint against Maria De Lourdes Medrano Bernadino, Francisco Estrada Perez (collectively, Defendants), and Does 1 to 50 for motor vehicle negligence and general negligence arising out of an accident occurring on January 5, 2020. On September 6, 2023, Defendants filed an answer. There are four motions set for hearing on August 21. On June 13, 2024, Defendants filed three motions to compel Plaintiffs responses to Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production (Set One). Plaintiff filed a combined opposition on July 9, 2024. No reply was filed. The hearings on these motions were initially scheduled for July 22 and were continued to August 21. On June 14, 2024, Elina Shakhbazyan of Downtown LA Law Group (Counsel) filed a motion to be relieved as counsel for Plaintiff. No opposition has been filed. The hearing on this motion was initially scheduled for July 18 and was continued to August 21. Legal Standard Motions to Compel A party must respond to interrogatories within 30 days after service. (Code Civ. Proc., § 2030.260, subd.(a).) If a party to whom interrogatories are directed does not provide a timely response, the propounding party may move for an order compelling response to the interrogatories. (Id., § 2030.290, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2030.290; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2030.290, subd. (a).) When a party moves to compel initial responses to interrogatories, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes [the motion], unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.290, subd. (c).) A party must respond to requests for production of documents within 30 days after service. (Code Civ. Proc., § 2031.260, subd.(a).) If a party to whom requests for production of documents are directed does not provide timely responses, the requesting party may move for an order compelling response to the demand. (Id., § 2031.300, subd. (b).) There is no time limit for a motion to compel initial responses, and no meet and confer efforts are required. (See id., § 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.) Nor must a separate statement be filed. (Cal. Rules of Court, rule 3.1345(b)(1).) In addition, a party who fails to provide a timely response generally waives all objections. (Code Civ. Proc., § 2031.300, subd. (a).) When a party moves to compel initial responses to requests for production, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes [the motion], unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.300, subd. (c).) In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.010, subdivision (d), defines [m]isuses of the discovery process to include [f]ailing to respond to or to submit to an authorized method of discovery. Where a party or attorney has engaged in misuse of the discovery process, the court may impose a monetary sanction in the amount of the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. (Code Civ. Proc., § 2023.020, subd. (a).) Motion to be Relieved as Counsel The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.136(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, rule 3.1362(e)). Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) Discussion Motions to Compel On September 6, 2023, Defendants served Plaintiff with discovery including Form Interrogatories, Special Interrogatories, and Request for Production. (Goodwin Decls., ¶ 2 & Exhs. A.) Plaintiff has not responded. (Id., ¶ 5.) Defendants need not show anything more. The motions to compel Plaintiff to respond to the Form Interrogatories, Special Interrogatories, and the Request for Production are GRANTED. Defendants do not seek sanctions. Motion to be Relieved as Counsel Counsel has filed the Notice, Declaration, and Order to be relieved as counsel. On the Declaration, Counsel states there has been a breakdown in of the attorney-client relationship. Counsel served Plaintiff by mail and electronic mail at Plaintiffs last known email address. Counsel further attempted to confirm the Plaintiffs current address by mailing the motion papers to the last known address with return receipt requested, called Plaintiffs last known telephone number, sent Plaintiff contact letters, left voicemails and ran a TLO search. The Order includes all future hearing dates. The Court finds Counsel has established good cause to be relieved due to the breakdown of the attorney-client relationship. Accordingly, the motion is GRANTED. Conclusion The Court GRANTS the Motions to Compel Plaintiff Rickey Ball to Respond to Form Interrogatories (Set One), Special Interrogatories (Set One), and Requests for Production (Set One). The Court ORDERS Plaintiff to serve code compliant, written, verified responses, without objection, to Defendants Form Interrogatories within 21 days of notice of this order. The Court ORDERS Plaintiff to serve code compliant, written, verified responses, without objection, to Defendants Special Interrogatories within 21 days of notice of this order. The Court ORDERS Plaintiff to serve code compliant, written, verified responses, without objection, to Defendants Requests for Production within 21 days of notice of this order. The motion to be relieved as counsel is GRANTED. The order is effective upon the filing with the Court of proof of service showing service of the signed order on Plaintiff. Defendants are ORDERED to give notice as to the motions to compel. Plaintiff's Counsel is ORDERED to give notice as to the motion to be relieved.

Ruling

MARIA MELENDEZ VS EDGAR WINTON PALMER, ET AL.

Aug 21, 2024 |23STCV13360

Case Number: 23STCV13360 Hearing Date: August 21, 2024 Dept: 32 ANDREW MCCLAVE, Plaintiff, v. LOCKTON COMPANIES, LLC PACIFIC SERIES, et al., Defendants. Case No.: 24STCV13360 Hearing Date: August 21, 2024 [TENTATIVE] order RE: defendants motion to dismiss BACKGROUND On May 29, 2024, Plaintiff Andrew McClave filed this action for declaratory relief and unfair competition against Defendants Lockton Companies, LLC Pacific Series, and Lockton Investment Advisors, LLC. Plaintiff filed this action to establish that he may freely compete against Defendants by soliciting clients from his former employment for Defendants, despite restrictive covenants contained in agreements between the parties. Plaintiff alleges that the covenants are void and unenforceable under California law. Plaintiff also alleges that the forum selection provisions are unenforceable because they violate Californias public policy. On July 15, 2024, Defendants filed the instant motion to dismiss based on forum selection clauses within the applicable contracts. Plaintiff filed his opposition on August 8, 2024. Defendants filed their reply on August 14, 2024. LEGAL STANDARD When a court . . . finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just. (Id., § 410.30, subd. (a).) The court may dismiss without prejudice the complaint in whole, or as to that defendant, when dismissal is made pursuant to Section 418.10. (Id., § 581, subd. (h).) [C]ourts possess discretion to decline to exercise jurisdiction in recognition of the parties free and voluntary choice of a different forum. (Smith, Valentino & Smith, Inc. v. Superior Court of Los Angeles County (1976) 17 Cal.3d 491, 495.) Where a plaintiff has freely and voluntarily negotiated away his right to a California forum, the forum selection clause may be given effect in the absence of a showing that enforcement of such a clause would be unreasonable. (Id. at pp. 495-96.) JUDICIAL NOTICE Defendants request for judicial notice of Exhibits 1 through 6 is granted. (See Evid. Code, § 452(d).) DISCUSSION I. Legal Framework Courts generally enforce forum selection clauses unless (a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue . . . . (Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 465.) The party opposing enforcement of a forum selection clause ordinarily bears the substantial burden of proving why it should not be enforced. (Verdugo v. Alliantgroup, L.P. (2015) 237 Cal.App.4th 141, 147.) That burden, however, is reversed when the claims at issue are based on unwaivable rights created by California statutes. In that situation, the party seeking to enforce the forum selection clause bears the burden to show litigating the claims in the contractually designated forum will not diminish in any way the substantive rights afforded under California law. (Ibid.) Here, the agreements at issue contain choice-of-law provisions stating that any dispute is to be resolved in Missouri court. Missouri has a reasonable relationship to the case because Defendants are Missouri companies. The primary issue is whether applying Missouri law would contravene fundamental California policy. II. Application to the Instant Case a. Burden Shifting Under California law, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void. (Bus. & Prof. Code, § 16600.) This is a nonwaivable statutory right. (Weber, Lipshie & Co. v. Christian (1997) 52 Cal.App.4th 645, 659.) Therefore, Defendants bear the burden of showing that litigation in Missouri will not diminish in any way the substantive rights afforded under California law. (Verdugo, supra, 237 Cal.App.4th at p. 147.) Defendants argue that the burden does not shift to them under Verdugo because that case involved a Labor Code statute with an express anti-waiver provision. (Verdugo, supra, 237 Cal.App.4th at p. 150, citing Lab. Code, §§ 219(a), 1194(a).) While Business and Professions Code section 16600 does not include its own anti-waiver provision like the one found in the Labor Code, Civil Code section 3513 provides that a law established for a public reason cannot be contravened by a private agreement. This is an express anti-waiver provision that applies to any law established for a public reason, including Business and Professions Code section 16600. (Weber, supra, 52 Cal.App.4th at p. 659.) In that sense, Section 16600 is a statute[] the Legislature enacted and specifically made unwaivable to protect California residents. (See Verdugo, supra, 237 Cal.App.4th at p. 151.) The claims at issue are based on statutory rights the Legislature has declared unwaivable. (Ibid.) That the legislative declaration comes from the Civil Code rather than the Business and Professions Code does not change the conclusion. Civil Code section 3513 is as much an express legislative declaration as any other. The cases cited by Defendants do not stand for the proposition that the burden only shifts when the statute being litigated contains its own anti-waiver provision. (See Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286; Ryze Claim Solutions LLC v. Superior Court (2019) 33 Cal.App.5th 1066.) A court's opinion is not authority for a proposition not considered in it. (People v. Anderson (2015) 232 Cal.App.4th 1259, 1275.) Olinick and Ryze do[] not affect our analysis because [they] do[] not address the issue of who carries the burden of proof in determining whether to enforce a mandatory forum selection clause. (Verdugo, supra, 237 Cal.App.4th at p. 153.) Ultimately, Business and Professions Code section 16600 is a nonwaivable statute. Therefore, the claims at issue are based on unwaivable rights created by California statutes. (Id. at p. 147.) Enforcement of the contractual forum selection and choice of law clauses would be the functional equivalent of a contractual waiver of these unwaivable rights. (See America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 5.) Accordingly, Defendants bear[] the burden to show litigating the claims in the contractually designated forum will not diminish in any way the substantive rights afforded under California law. (Verdugo, supra, 237 Cal.App.4th at p. 147.) b. Satisfying the Burden [A] defendant can meet its burden only by showing the foreign forum provides the same or greater rights than California, or the foreign forum will apply California law on the claims at issue. (Verdugo, supra, 237 Cal.App.4th at p. 157.) 1. Same or Greater Rights Unlike California law, Missouri law favors noncompete clauses. (See, e.g., Schott v. Beussink (Mo. Ct. App. 1997) 950 S.W.2d 621, 625 [Missouri courts recognize that public policy approves employment contracts containing restrictive covenants].) Defendants do not point to any Missouri statutory provision similar to Business and Professions Code section 16600. Defendants argue that Plaintiffs rights would be the same in either forum because courts in both California and Missouri will apply the same choice-of-law analysis. In particular, Defendants contend that the internal affairs doctrine will mandate Missouri law in either forum. The internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporations internal affairs. (State Farm v. Sup. Ct. (2003) 114 Cal.App.4th 434, 442.) States normally look to the State of a business incorporation for the law that provides the relevant corporate governance general standard of care. (Vaughn v. LJ Internat., Inc. (2009) 174 Cal.App.4th 213, 223.) However, an exception exists where, with respect to the particular issue, some other state has a more significant relationship & to the parties and the transaction. (Lidow v. Superior Court (2012) 206 Cal.App.4th 351, 359.) Section 16600 reflects Californias strong public policy against restrictive covenants. (Application Group v. Hunter Group (1998) 61 Cal.App.4th 881, 900.) The interests of the employee in his own mobility and betterment are deemed paramount to the competitive business interests of the employers, including out-of-state employers. (Id. at pp. 900-01.) California has a correlative interest in protecting its employers and their employees from anticompetitive conduct by out-of-state employers, such as the enforcement of restrictive covenants. (Id. at p. 901.) Thus, in Application Group, California had a greater interest in enforcing section 16600 than Maryland did in enforcing a restrictive covenant, despite Marylands interest in preventing recruitment of employees who provide unique services, and the misuse of trade secrets. (Ibid.) Here too, California arguably has a greater interest in enforcing section 16600 than Missouri does in enforcing the restrictive covenants. Accordingly, a California court may find that the internal affairs doctrine requires the application of California law to the dispute. Thus, Defendants have not shown that the choice-of-law analysis would lead to the same result in both forums. In other words, Defendants have not shown that a Missouri forum would provide the same or greater rights than a California forum. 2. Apply California Law Defendants have also not proven that a Missouri court would apply California law. In fact, Defendants concede that a Missouri court would apply Missouri law. (See Reply 9:12-13.) Defendants argue that courts in either forum would apply the same choice-of-law analysis to decide which law to apply. However, that is not the standard. Unless the law of the foreign forum provides the same or greater rights than California law (which it does not here), a defendant can only satisfy its burden by showing that the foreign forum will apply California law on the claims at issue. (Verdugo, supra, 237 Cal.App.4th at p. 157.) Because Defendants admit that a Missouri court will not apply California law, Defendants have failed to satisfy their burden. III. Plaintiffs Residence Defendants argue that Plaintiff has no interest in asserting rights under section 16600 because he resides in Oregon. However, as the court in Application Group made clear, California has a strong interest in protecting the freedom of movement of persons whom California-based employers . . . wish to employ to provide services in California, regardless of the person's state of residence or precise degree of involvement in California projects. (Application Group, supra, 61 Cal.App.4th at pp. 900-01.) Due to modern technological advancements, an employee need not reside in the same city, county, or state in which the employer can be said to physically reside. (Id. at p. 901.) [T]he enforceability of [a] noncompetition covenant does not turn on whether the recruited employee physically resides in California. The concept of employment in California is broader than that. (Id. at p. 905.) Here, Plaintiff seeks to work for a California employer. Thus, Plaintiff seeks employment in California for purposes of section 16600 regardless of Plaintiffs physical location. Defendants argue that Application Group is limited to out-of-state residents who intend to relocate to California. The court in Application Group stated no such thing, nor would such a limitation make sense in the context of the courts holding. As discussed above, the court expressly acknowledged the realities of modern employment and therefore concluded that non-California residents are equally entitled to the protections of section 16600 regardless of their physical location. Defendants cite a footnote where the court clarified that its statement of the issue encompasses . . . employees who may relocate from out of state to become California residents during the period of noncompetition. (See Application Group, supra, 61 Cal.App.4th at p. 895, fn. 9.) However, the court did not state that its holding was limited to that group of individuals. Therefore, Plaintiff is entitled to enforce section 16600 despite his Oregon residence. IV. Exception Under Section 16602.5 Defendants also argue that Section 16600 has no bearing at all because this case falls under Section 16602.5. Section 16602.5 is an exception to the general rule enumerated in Section 16600. Section 16602.5 provides that [a]ny member may, upon or in anticipation of a dissolution of, or the termination of his or her interest in, a limited liability company . . . agree that he or she or it will not carry on a similar business within a specified geographic area where the limited liability company business has been transacted, so long as any other member of the limited liability company, or any person deriving title to the business or its goodwill from any such other member of the limited liability company, carries on a like business therein. However, the restrictive covenants at issue are not limited to a specific geographic area as required under section 16602.5. There is no indication that a Missouri court would blue pencil in a geographic limitation to render it compliant with section 16602.5. While Defendants cite examples of California courts inserting geographic limitations, Defendants provide no examples of a Missouri court doing so. Defendants argue that a federal court in Kaufman v. Lockton inserted a geographic limitation by limiting the noncompete clause to 79 customer accounts. (See Def.s RJN, Ex. 6, pp. 20-21.) This does not show the court imposing a geographic limitation. The court limited the clause to 79 specific customers with whom Kaufman had personal involvement. (Ibid.) There was no mention of geographic scope. In any case, the application of exceptions such as Section 16602.5, including whether a geographic limitation may be blue penciled, is a substantive matter to be resolved at trial. It does not affect the procedural determination of where the case should be litigated. The case implicates the nonwaivable statutory right to be free from restrictive covenants even if an exception may apply. In sum, the claims at issue implicate a nonwaivable statutory right, and Defendants have not satisfied their burden of demonstrating that a Missouri forum will not diminish in any way the substantive rights afforded under California law. (Verdugo, supra, 237 Cal.App.4th at p. 147.) Therefore, the Court declines to enforce the forum selection clause. V. Stay Defendants alternatively request a stay pending the Supreme Courts resolution of the issue in EpicentRx v. Sup. Ct., S282521. The request is denied. No trial date will be set, but discovery may continue. CONCLUSION Defendants motion to dismiss or stay is DENIED.

Ruling

HIBBS, ET AL VS. AGOOT, ET AL

Aug 21, 2024 |CVPM22-0199094

HIBBS, ET AL VS. AGOOT, ET ALCase Number: CVPM22-0199094This matter is on calendar for status of dismissal. The Court notes that the matter is at issue and the parties planto mediate. The matter is continued to Monday, October 7, 2024 at 9:00 a.m. in Department 63 for reviewregarding status of mediation and trial setting. If the matter does not resolve in mediation, the Court intends to seta trial date no later than April 29, 2025. The parties are ordered to meet and confer regarding proposed dates fortrial and be prepared to set a trial date at the next hearing. No appearance is necessary on today’s calendar.

Ruling

CASEY GRANT VS THOMAS GERLAD CHU

Aug 21, 2024 |23STCV22727

Case Number: 23STCV22727 Hearing Date: August 21, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: August 21, 2024 CASE NUMBER: 23STCV22727 MOTIONS: Motion to Compel Plaintiff to Appear at Deposition MOVING PARTY: Defendant Thomas Gerald Chu OPPOSING PARTY: None BACKGROUND Defendant Thomas Gerald Chu (Defendant) moves to compel Plaintiff Casey Grants (Plaintiff) deposition. Defendant also seeks monetary sanctions. No opposition has been filed. LEGAL STANDARD If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document . . . described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) A motion under subdivision (a) [above] shall comply with both of the following: 1. The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. 2. The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc., § 2025.450, subd. (b).) If a motion is granted, the court shall impose a monetary sanction in favor of that party unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the sanction unjust. (Code Civ. Proc. § 2025.450 (g).) MEET AND CONFER The Declaration of Robert M. Yoakum, Defendants counsel, sets forth sufficient facts that he has attempted to resolve the issue of scheduling Plaintiffs deposition in good faith and inquired about Plaintiffs non-appearance. (Yoakum Decl. ¶ 16.) Therefore, the meet and confer requirement is met. DISCUSSION On March 15, 2024, Defendant first noticed Plaintiffs deposition for June 6, 2024. (Yoakum Decl. ¶ 5, Exh. A.) On June 4, 2024, after Defendant contacted Plaintiffs counsel to confirm the deposition, Plaintiffs counsel responded that it was unilaterally set. No objection was served. Defendant sent emails on June 4, 2024 and June 5, 2024 inquiring about the responses, but Plaintiffs counsel did not respond. (Id. ¶ 7-10.) On June 6, 2024, Defendant obtained a certificate on non-appearance. (Id., Exh. E.) Defendant sent further emails about the non-appearance on June 6, 2024, requesting deposition dates, and again on June 28, 2024, after hearing no response. (Yoakum Decl. ¶ 12-13.) As a result, Defendant served a second notice of deposition, set for July 15, 2024. (Id., Exh. H.) On July 9, 2024, Plaintiff served an objection to the deposition based on the fact it was unilaterally set and that it called for a face-to-face deposition. (Id. ¶ 15.) On July 15, 2024, Plaintiff failed to appear. (Exh. M.) Though it appears that Plaintiff timely objected to the July 15, 2024 deposition, and while unavailability for a unilaterally selected date may be a reasonable objection, Plaintiff did not respond to requests for a mutually convenient date. This conduct undermines the validity of the objection. Additionally, though Plaintiff apparently objects that the deposition is in-person, Plaintiff has not filed an opposition and thus, fails to set forth authority in support. Furthermore, Plaintiff has not filed a motion for a protective order. Therefore, the information provided is sufficient to show that Plaintiff has failed to proceed with a noticed deposition. Accordingly, the motion to compel is granted. Defendant requests $4,526.95 in monetary sanctions representing a $250 hourly rate, the $61.95 filing fee, and $920 for each of the Certificate of Non-Appearances. (Yoakum Decl. ¶ 17.) The Court finds that sanctions are warranted, but the amount requested is excessive given the fact there was no opposition, the type of motion, and the fact counsel can appear at the hearing remotely. Therefore, the Court grants monetary sanctions in the amount of $2,651.95 (3 hours of attorney time, the filing fee, and the two certificates of non-appearance). CONCLUSION AND ORDER Accordingly, Defendants motion to compel Plaintiffs deposition is GRANTED. Plaintiff Casey Grant shall appear within 30 days notice of this order for a deposition. The Court further grants Defendants request for monetary sanctions in the reduced amount of $2,651.95 against Plaintiff. Said monetary sanctions shall be paid to counsel for Defendant within 30 days of this order. Defendant shall provide notice of the Courts ruling and file a proof of service of such.

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