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On this day personally appeared KENNETH ALAN TOTZ, DO, JD, FACEP, who, being “My name is Kenneth Alan Totz. I am over the age of twenty-one (21) years, of soundmind, capable of making this Affidavit, and do hereby state the following:eeeeeeeeeeeeeeNN bv < een 1 AvancedTrauma Life Support (ATLS) Instructor at Tulane University Medical Center in New Orleans,Louisiana, The Memorial Hermann Life Flight Program, and Ben Taub General Hospital for thelast 23+ years teaching physicians, nurses, nurse practitioners, and physician assistants the widelypreferred ATLS method of approaching all types of trauma. I have accumulatedpracticing hours in emergency departments throughout the United States and have surpassed150,000 patient contacts as an emergency physician. During my clinical practice, I spent nine yearsas an associate professor of emergency medicine for The University of Texas at HoustonEmergency Medicine Residency Program in very busy Level 1 and Level 3 trauma centers.Administratively, I spent over five years working as a medical director with First ChoiceEmergency Room, a division of Adeptus Health. In this role, I was actively seeing patients in theemergency department, providing peer review for the doctors under my supervision, as well asoverseeing the dayday administrative operations. For the hospital system, which included onehospital and twentyone freestanding emergency departments, I served as the chairman of the peerreview and grievance committees. These leadership positions obligated me to evaluate and addressany clinical or billing complaints that were generated from the thousands of patients seen eachmonth in our clinical settings. All cases were individually reviewed by myself and the committeesfor any deviation from the standard of medical care patient harm, and/or billingLastly, I currently serve as an independent mediator for The American Health Lawyers Association(AHLA) and The Texas State Office of Administrative Hearings (SOAH) assisting with a widearray of medical and network balance billing disputes between insurance companies. Th allow me to see firsthand whatcompanies are paying, what providers are charging, and what each party acceptsusual, customary, and reasonable for services rendered. eeeeeeeeeeeeee | of my opinions contained herein are based oneeRoutine and common practice in the billing/coding industry requires an initial analysis ofeach medical charge based on the: (1) Actual medical service provided based on thespecific CPT/HCPCS codes (if available), (2) Year the service was provided, and (3) Zipcode region in which the service was provided. Each charge is then looked up in reputableresources routinely and commonly used in the medical and billing coding industry such asContext 4 Healthcare Decision Point Fee Viewer (online charge percentiles) or the MedicalFees Directory (hard copy form of Context 4 Healthcare Decision Point Fee Viewer) toprovide a statistically broad scope of representative that correspond to each uniquegeographic region. In the rare event that a service is not found in the above resources, thenalternative resources noted below are accessed to provide available charges and/orreimbursem*nts. Additionally, in an effort to provide what is routine and common practicein the billing/coding industry, the usual, customary, and reasonable for the 75percentile is conveyed. Furthermore, since each is rarely, and not necessarily, areflection of the the service examined, each service is assigned a usual,customary, and reasonable based on government (see CMS. gov physicianfee schedule) and peer reviewed literature in the billing/coding industry (see billingresources below). Should a private insurance payor adjust the bills herein, that amount, willby default, be construed as the usual, customary, and reasonable charge andThe following billing and medical resources have been utilized in forming the bases formy opinions, but may have individually been employed in whole, in part, or none at all, inllison, Amber, et al. A: Anal. Usual, Customary and Reasonable C arges in LifeCare Planning. International Association Rehab Profe jonals. Volume Number 2,Usual and Customary Survey Revised January Texas Department of Insurance have personally reviewed copies the records that JOSE ANGEL SALINAS Houston Methodist Baytown Hospital (HMH - Baytown) Houston Pain Relief& LLC C/O Country Wide LAR Origin MRI and Diagnostics Origin Spine Institute Celebrity Spine River Oaks Hospital Advanced Diagnostics dba Chopra Imaging (Advanced Surgeons & Physician10. AD Hospital East, LLC11. Cardiovascular Clinic of Texas c/o Care CapitalHMH - Baytown There were CPT codes ciated with the individualcharges in the billing affidavit presented to me. Where possible, clarity and uniformity, supplied CPT codes most closely aligned with the description charges in the affidavit. $1,075.00. The usual, customary, and reasonable this CPT code in the 77521 zip code was The usual, customary, and this CPT code in the 77521 zip code wascharge of $ was not reasonable at the time and place the service wasHC LSpine (72100): The usual, customary, and reasonablethis CPT code in the zip code was $140.00. The usual, customary, and for this CPT code in the zip code was $120.00.The charge of $ was not reasonable at the time and place the service wasHC Knee ( The usual, customary, and reasonablethis CPT code in the zip code was $135.00. The usual, customary, and for this CPT code in the zip code was $120.00.The charge of $ was not reasonable at the time and place the service wasHC TSpine ( The usual, customary, and reasonablethis CPT code in the zip code was $115.00. The usual, customary, and for this CPT code in the zip code was $75.00. Thecharge of $ was not reasonable at the time and place the service wasER Level 3 Facility Fee (9928 The usual, customary, and reasonable for this CPT code in the zip code was $580.00. The usual, customary,and reasonable for this CPT code in the zip code was$260.00. The charge of $ was not reasonable at the time and place theThe usual, customary, and reasonable for this CPTcode in the zip code was $1.00. The usual, customary, and reasonable for this CPT code in the zip code was $0.50. The charge of was not reasonable at the time and place the service was provided. The chargeHot/Cold Pack Tx (10 x $25)(97010): The usual, customary, and for this CPT code in the 7 zip code was $35.00. The usual,customary, and reasonable for this CPT code in the 7 zip codewas $8.00. The charge of $ was reasonable at the time and place the servicewas provided, but this charge is above the usual, customary, and reasonableMuscle Stim Tx (25 x $50)(97014): The usual, customary, and for this CPT code in the 7 zip code was $1,250.00. Theusual, customary, and reasonable for this CPT code in the 7zip code was $200.00. The charge of $1,2 was reasonable at the time and placethe service was provided, but this charge is above the usual, customary, andMechanical Traction Tx (3 x $65)(97012): The usual, customary, and for this CPT code in the 7 zip code was $1,0.00. Theusual, customary, and reasonable for this CPT code in the 7zip code was $8.00. The charge of $ was not reasonable at the time andTherapeutic Massage (9 x $450.00. The usual, customary, and this CPT code in the 77055 zip code was The usual,customary, and reasonable this CPT code in the 77055 zip code The charge 50.00 was not reasonable at the time and place the charge wasEval/Mgmt (99203): The usual, customary, and reasonablethis CPT code in the 77055 zip code was The usual, customary, and this CPT code in the 77024 zip code was $176.00. $250.00 was reasonable at the time and place the service wasprovided, but this charge is above the usual, customary, and reasonableEval/Mgmt (99214): The usual, customary, and reasonablethis CPT code in the 77055 zip code was The usual, customary, and this CPT code in the 77055 zip code was $110.00.The charge 0.00 was not reasonable at the time and place the service was charge was Active passive ROM, Stationary Bike, Theraband (70 x The usual, customary, and reasonable this CPTcode in the 77055 zip code was The usual, customary, and reasonable this CPT code in the 77055 zip code was The charge $5,250.00 was reasonable at the time and place the service was provided, but this the usual, customary, and reasonable$50.00. The usual, forCPT code in the zip code was $110.00. The usual, customary, and for this CPT code in the zip code was $89.00. The chargeEval/Mgmt (2 x The usual, customary, and for this CPT code in the zip code was The usual, for this CPT code in the zip code$220.00. The charge of was reasonable at the time the Minor Emergency:New Pt Eval/Mgmt (99204): The usual, customary, and reasonable this CPT code in the 77024 zip code was The usual, customary,and reasonable this CPT code in the 77024 zip code was$260.00. The charge $575.00 was not reasonable at the time and place the servicecharge wasEst Pt Eval/Mgmt (99214): The usual, customary, and reasonable this CPT code in the 77024 zip code was The usual, customary, and this CPT code in the 77024 zip code was $110.00.The charge $475.00 was not reasonable at the time and place the service was charge wasMuscle Rub There was not an adequate description this product toThe usual, customary, and reasonable in the 77024 zip code was in the 77024 zip code was $11.00.$145.15 was not reasonable at the time and place the service was charge was The usual, customary, and reasonable in the 77024 zip in the 77024 zip code was$107.42 was not reasonable at the time and place the service was charge was $90.91. The usual, customary, and reasonable in the 77024 zip code The usual, in the 77024 zip code was $3.00.The charge$90.91 was not reasonable at the time and place the service was charge was The usual, customary, and reasonable in the 77024 zip in the 77024 zip code was$171.32 was not reasonable charge was $98.94. The usual, customary, and reasonable in the 77024 zip code wasThe charge of $ was not reasonable at the time and place the service wasCyclobenzaprine 10mg (60): The usual, customary, and reasonable for this in the 77024 zip code was $16.00. The usual, customary, for this in the 77024 zip code was $8.00. The chargeof $155.13 was not reasonable at the time and place the service wasCT CSpine (72125): The usual, customary, and reasonablethis CPT code in the 77024 zip code was $1,275.00. The usual, customary, and for this CPT code in the 77024 zip code was $The charge of $ was not reasonable at the time and place the service wasCT LSpine (72131): The usual, customary, and reasonablethis CPT code in the 77024 zip code was $1,320.00. The usual, customary, and for this CPT code in the 77024 zip code was $The charge of $ was not reasonable at the time and place the service wasCT Knee (73700): The usual, customary, and reasonable for thisCPT code in the 77024 zip code was $1,210.00. The usual, customary, and for this CPT code in the 77024 zip code was $360.00.The charge of $ was not reasonable at the time and place the service wasInject Spine Lumbar (Level 1 The usual,customary, and reasonable for this CPT code in the 770 zip code was.00. The usual, customary, and reasonable for this CPT codein the 770 zip code was $0.00. The charge of $ was not reasonable at The usual, customary, and reasonable for this CPT code in the 77090 zip code was $435.00. The usual, customary,and reasonable for this CPT code in the 77090 zip code was$260.00. The charge of $ was not reasonable at the time and place the service The usual, customary, and reasonable for this CPT code in the 77090 zip code was $190.00. The usual, customary,and reasonable for this CPT code in the 77090 zip code was $90.00.The charge of $ was not reasonable at the time and place the service wasInjection TF Epidural With Imaging Guidance Lumbar Single Level The usual, customary, and reasonablefor this CPT code in the 77090 zip code was $1,950.00. The usual, customary, and for this CPT code in the 77090 zip code was $590.00.The charge of $ was not reasonable at the time and place the service wasEval/Mgmt (11/18/2022) (99213): $475.00. The usual, customary, and reasonable for this CPT code in the 77090 zip code was $190.00. The usual, customary, and reasonable for this CPT code in the 77090 zip code was $90.00. The charge of $475.00 was not reasonable at the time and place the service was Injection TF Epidural With Imaging Guidance Lumbar Single Level (11/18/2022) (64483,50): $12,750.00. The usual, customary, and reasonable for this CPT code in the 77090 zip code was $1,950.00. The usual, customary, and reasonable for this CPT code in the 77090 zip code was $590.00. The charge of $12,750.00 was not reasonable at the time and place Eval/Mgmt (12/6/2022) (99213): $475.00. The usual, customary, and reasonable for this CPT code in the 77090 zip code was $190.00. The usual, customary, and reasonable for this CPT code in the 77090 zip code was $90.00. The charge of $475.00 was not reasonable at the time and place the service wasCelebrity Spine & Joint: Eval/Mgmt ( $825.00. The usual, customary, and reasonable this CPT code in the zip code was The usual, customary, and reasonable this CPT code in the zip code was The charge $825.00 was not reasonable at the time and place the service charge wasat the $1,000.00. with CPT 99205 or 99487, of reimbursem*nt for a procedureEEG (2/16/2023was $450.00. The charge of $4,000.00 was not reasonable at the time and place theservice was provided. The charge was excessive.FS Clinic (3/1/ Date)(99496): $1,170.00. The usual, customary, this CPT code in the zip code wascustomary, and reasonable this CPT code in thezip code The charge of $1,170.00 was not reasonable at the time andplace the charge was Clinic (99204): $1,100.00. The usual, customary, and reasonable this CPT code in the zip code was The usual, customary, and reasonable this CPT code in the zip code was The charge of $1,100.00 was not reasonable at the time and place service was charge was Treatment or Obs (G0463): This is a redundant charge same service using an alternate coding scheme (HCPCS vs. CPT) and is $1,250.00. The usual, customary, and reasonable this CPT code in the zip code was The usual, customary, and reasonable this CPT code in the zip code was The charge of $1,250.00 was not reasonable at the time and place service was charge wasTreatment or Obs (G0463): $525.00. This is a redundant charge for thesame service using an alternate coding scheme (HCPCS vs. CPT) and is is an unrecognizable code and nonreimbursable $50.00. This is an unrecognizable code and nonreimbursableIV Therapy This charge is not allowable without a Level Facility Fee (99284, 25): $5,450.00. The usual, customary, and this CPT code in the zip code was $1,000.00.The usual, customary, and reasonable this CPT code in zip code was The charge $5,450.00 was notreasonable at the time and place the service was provided. The charge wasER Level Professional Fee (99284, 26): $3,750.00. The usual,customary, and reasonable this CPT code in the zip code The usual, customary, and reasonableCPT code in the zip code was The chargenot reasonable at the time and place the service was provided. The chargeE/M Visit (99215): The usual, customary, and reasonable for this CPT code in the 77027 zip code was $365.00. The usual,customary, and reasonable for this CPT code in the 77027zip code was $5.00. The charge of $ was not reasonable at theComplex Chronic Care (99487): The usual, customary, and for this CPT code in the 77027 zip code was $165.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $145.00. The charge of $ was not reasonableClinic (G0444): $300.00. This is a redundant charge for the same serviceusing an alternate coding scheme (HCPCS vs. CPT) and is thus notBrief Emotional/Behav Assmt (96127): The usual, customary,and reasonable for this CPT code in the 77027 zip code was $30.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $8.00. The charge of $ was not reasonable atTreatment or Obs (G0463): $525.00. This is a redundant charge for thesame service using an alternate coding scheme (HCPCS vs. CPT) and is $1,000.00. This is not an active or valid CPT code and thusLevel 5 Office Visit (99205): The usual, customary, and for this CPT code in the 77027 zip code was $505.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $235.00. The charge of $ was notreasonable at the time and place the service was provided. The charge wasEKG (93005): The usual, customary, and reasonablethis CPT code in the 77027 zip code was $.00. The usual, customary, and for this CPT code in the 77027 zip code was.00. The charge of $ was not reasonable at the time and place theTreatment or Obs (G0463): $525.00. This is a redundant charge for thesame service using an alternate coding scheme (HCPCS vs. CPT) and isClinic Visit (99213): The usual, customary, and reasonable for this CPT code in the 77027 zip code was $190.00. The usual,customary, and reasonable for this CPT code in the 77027zip code was $110.00. The charge of $ was not reasonable at the timeTreatment or Obs (G0463): $525.00. This is a redundant charge for the same service using an alternate coding scheme (HCPCS vs. CPT) and isAdvanced Surgeons & Physicians Network Advanced Medical Group Initial Hospital Care (99222): The usual, customary, and for this CPT code in the 77027 zip code was $395.00. The usual, customary, and reasonable for this CPT code in the 77027 zip code was $175.00. The charge of $ was not reasonable Initial Hospital Care (99222): $800.00. This is a redundant charge for the Initial Hospital Care (99223): $1,000.00. This is a redundant charge for $1,000.00. This is not an active or valid CPT code and thus Complex Chronic Care (99487): $700.00. This is a redundant charge for Prolonged Services (99354): This is a redundant charge for the Prolonged Services (99358): The usual, customary, and for this CPT code in the 77027 zip code was $260.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $75.00. The charge of $1,000.00 was not reasonableat the time and place the service was provided. The charge was excessive.Initial Hospital Care (99222): $800.00. This is a redundant charge forInpt Consultation The usual, customary, for this CPT code in the 77027 zip code wasThe usual, customary, and for this CPT codethe 77027 zip code was $75.00. The charge of was notSubsequent Hospital Care/Day The usual, for this CPT code in the 77027 zip code wasThe usual, customary, and for this CPT codethe 77027 zip code was $75.00. The charge of was notSubsequent Hospital Care/Day The usual, for this CPT code in the 77027 zip code wasThe usual, customary, and for this CPT codethe 77027 zip code was $150.00. The charge of was notProlonged Services (99358): $1,000.00. The usual, customary, and for this CPT code in the 77027 zip code was $260.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $75.00. The charge of $1,000.00 was not reasonableProlonged Services (99359): $500.00. This is a redundant charge for theSubsequent Hospital Care/Day (99233): $950.00. The usual, customary,and reasonable for this CPT code in the 77027 zip code was $340.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $150.00. The charge of $950.00 was not reasonableProlonged Services (99358): $1,000.00. The usual, customary, and for this CPT code in the 77027 zip code was $260.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $75.00. The charge of $1,000.00 was not reasonableProlonged Services (99359): $500.00. This is a redundant charge for theEEG (2/16/2023 Service Date)(95816, 26): $900.00. The usual,customary, and reasonable for this CPT code in the 77027 zip codewas $235.00. The usual, customary, and reasonable for thisCPT code in the 77027 zip code was $75.00. The charge of $900.00 was notreasonable at the time and place the service was provided. The charge wasSubsequent Hospital Care/Day (99233): The usual, customary,and reasonable for this CPT code in the 77027 zip code was $340.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $150.00. The charge of $ was not reasonableProlonged Services (99358): The usual, customary, and for this CPT code in the 77027 zip code was $260.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $75.00. The charge of $ was not reasonableProlonged Services (99359): $500.00. This is a redundant charge for theSubsequent Hospital Care/Day (99232): $750.00. This is a redundantSubsequent Hospital Care/Day (99233): The usual, customary,and reasonable for this CPT code in the 77027 zip code was $340.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $150.00. The charge of $ was not reasonableProlonged Services (99358): The usual, customary, and for this CPT code in the 77027 zip code was $260.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $75.00. The charge of $ was not reasonableProlonged Services (99359): $500.00. This is a redundant charge for theHospital Discharge (99239): The usual, customary, and for this CPT code in the 77027 zip code was $370.00.The usual, customary, and reasonable for this CPT code inthe 77027 zip code was $130.00. The charge of $ was notreasonable at the time and place the service was provided. The charge wasClinic (99205): The usual, customary, and reasonablefor this CPT code in the 77027 zip code was $505.00. The usual, customary,and reasonable for this CPT code in the 77027 zip code was$235.00. The charge of $1,250.00 was not reasonable at the time and placeTreatment or Obs (G0463): $525.00. This is a redundant charge for the same service using an alternate coding scheme (HCPCS vs. CPT) and is New Pt Eval/Mgmt (99204): The usual, customary, and reasonable this CPT code in the 77054 zip code was The usual, customary, and reasonable this CPT code in the 77054 zip code was The charge $500.00 was not reasonable at the time and place the service charge was EKG (93000): $125.00. The usual, customary, and reasonable this CPT in the 77054 zip code was The usual, customary, and reasonable this CPT code in the 77054 zip code was The charge of $125.00 was not reasonable at the time and place the service was provided. The The opinions rendered in this case are the opinions of the undersigned. This evaluationhas been conducted on the basis of the medical record documentation provided with theassumption that the material is true and correct. opinion is based on clinical assessment ofthe patient's records and documentation. A copy of my Curriculum Vitae, as, is attached hereto, and is incorporated by reference as if fully set forth herein.XHIBIT “A”Kenneth Alan Totz DO, JD, FACEP, CLCP Board Certified Emergency Physician Attorney/Mediator/Arbitrator Certified Life Care Planner (CLCP) Email: kenmarsam@comcast.net Mobile: 713-446-1202 Curriculum Vitae pril 17, 2023 r. Kenneth Alan Totz, DO, JD,FACEP , CLCPHouston, TXMobile: (713)-446-1202 mail: kenmarsam@comcast.netBACKGROUND:Birthplace: Houston, TX 11-22-68.Undergraduate College: St. Edward’s University 3001 S. Congress Ave. Austin, TX 78704 (512)-448-8458 - BA Biology 8/87-12/91.Medical SchoolMidwestern University (Chicago College of Osteopathic Medicine) 515 St. Downers Grove, ILL 60515 (630)-515-7600 D.O. 8/93-6/97. nsitional Internship: Portsmouth Naval Hospita620 John Paul Jones C ircle Portsmouth, VA 23708 7/97-6/98.Flight Surgery Training: Naval OperationsMed ical Institute¢NOMI) Pensacola, Fla. (850)-452-2457- 8/98-2/99.Active Duty Navy: 6/97-6/02U.S. Navy Reserve: 6/93-6/97 & 6/02-6/05Resident in Emergency Medicine: University of Texas at Houston, 6431 Fannin, 4Floor JIL, Houston, TX 77030 7/02-6/05. (713)-500-7863Chief Residentin Emergency Medicine: University of Texas at Houston, 7/04-6/05Law School: Concord Law School at Purdue University obal: 4/14- 6/18Admitted to California Bar: 5/2019Mediator: Texas State Office of Admin strative Hearings (SOAH), American HealthLawyers Association (AHLA)Emergency Medicine Expert Reviewer: The Texas Medical BoardThe Arizon a ardof Osteopathic ner in Medici ne and SurgeryMedical rector: Career Step, LLC online pre hospital medical education(20present)Certified Life Care Planner 1/2022-present)Medical Director ExclusIV Wellness Drip Therapy (2/2022 - present)Executive Medical Director ACLS.com: Online BLSACLS Neonatal Resuscitation,PALS tificationsCERTIFICATIONS: BLS: Exp.- 2/2025 PALS: Exp.- 2/2025 ACLS: Exp.- 2 CPR/NRP: Exp.- 3/2024 ATLSProvider& ATLS Instructor : (12/05/1999-12/05/2023) Board Certification: American Boar f Emergency Medicine (AB (06/14/2006-12/3 1/2026) California Bar Examination: Passed 2/2019 Basic Mediation Certificate7/2019 Basic Arbitration Certificate: 11/2019Certified Life Care Planner (CLCP): 1/2022LICENSES & IDENTIFIERS Current TX license: L122Exp ~ 2/28/2024 Current CO icense: 0058656 Exp.- 4/30/2025 Current AZ license: 008075 Exp.- 5/1/2024 Fellow of The American College of Emergency Physicians (FACEP): 10/29/2008- Pre nt ember Stte Bar of Calif orn - 2019-PresentFLIGHT SURGE OR PERIENCE:Active duty Fli t Surgeon Navy at NavAir Station, New Orleans : 400 Russell Avenue Building 41 New Orleans, LA 70143 (504)-678-3660: ight Surgery/General Practicecli (2/ 99-6/02).EMERGENCY MEDICINE WORK EXPERIENCE:Mainland Medical Center: 6801 Emmett F. Lowry Expressway Texas City, T (409)938-5000: (4/05-12/08)West Houston Medical Center: 12141 Richmond Avenue Houston, 77082 (281)588-8110: (9/05-12/08)mori al Herma n Southwest Hospital: 7600 Beechnut Street Houston, TX 77074 (713)- 456-5000: (8/07-3/12)Memorial Hermann spitalTMC : 6411 Fann Street Houston, TX 77030 (713)704- 4000: (1/06-3/2012)Houston Methodis ugar Land Hospital: 16655 Southwest F ay ugar Lan 77479 (281)- 274-7000: (10/06-5/2014)Houston thodist Hospital : 6565 Fannin Street Houston, TX 77030 (713)441-2160: (10/06-5/2014)Lyndon Baines Johnson Hospital: 5656 Kelley Street Houston, T 7026-1967 (713)- 566-5000: (1/06-10/15) irst Choice mergency Room (Medical Director): 9530 Jones Rd. Houston, TX 71065 (832) 756-2040: (1/2015-6/1/2020 (facity closed) )First Texas Hospital9922 Louetta Rd, Houston, TX 77070: (346) 206-2300: (9/16- 8/2020 (facility closed))Memorial Regional Health: 750 Hospital Loop, Craig, 81625: (970)826-3105: (12/17- 12/22)Arizona General H__ pital: 9130 E.Elliot ., Mesa, AZ 85212: (480) 410-4500 (4/2019 — 5/2022)Big Bend Regional Medical Center:2600 N HWYAlpine, TX United States 79830-2002: 432-837-3447 2/19-present)Baylor St. Luke’Eme rgencyCent er: 11713 Shadow Creek Pkwy Pearland, TX 77584: 713-793-4600 (10/2020-8/2022)Altus Lumberton Hospital: 137 N LHS Dr. Lumberton, TX 77657: 409-440-3621. 2/2020-5/2022)The Medical Center of Southeast Texas Beaumont Campus: 6025 Metropolitan Dr. Beaumont, TX 77706. 409-617-7700. 2/2021-present) fe Savers Emergency Room3820 N Shepherd Dr. Ste A Houston, TX 77018(281- 937-2800) (3/2022-present)Texas Emergency Care: 19143 W Lake Houston Pkwy Atascocita, TX 77346: (281- 238-5005) (12/2022-present) EDICINE WORK EXPERIENCE:City of Houston:ETHAN Telemed ine project- aluate and disposition pat ts to care. (09/2014-present)Doctor on Demand: Telemedicine. Evaluate and make final patient dispositions. (07/2018-present) EDICAL/LEGAL PUBLICATIONS & PRESENTATIONS: The Epic, Journal of the Government Ser ces Chapter of ACEP. “Pain, paresthesias, paralysis, pallor, pulselessness, plaintiff (How you can avoid the last sign of compartment syndrome).” 2001 Annals of ergency Medicine ages in Emergency Medicine(Scrotal hematoma). Apr2004. Vol.43, Issu. 4, Page 533. nals of Emergency Medici . Images in Emergency Medicine (Diaphragmatic rupture). December 2004. Vol. 44, Issue 6, Page 664. ol NeeParen ta onsent To Treat? March 8, 2016 Lectureto First Choice ER Med cal Director’s meeting. Malpract e Insurance & Contract Clauses. May 10, 2016 Lecture to First Choice Medical Director’s meeting. EMTALA Update. September 13, 2016 Lectureto Fir st Choice Medical Director’s mee g Advan irectives Lecture. November 15, 2016 Lecture to First Ch Medical Di ctor’s meeting. Medical Negligence and Tort Reform Lecture. March 7, 2017 Lecture to Fir Choi Medical D irector’s meeting. TMB Trou es Lecture. May 9, 2017 Lec _ re to First Choice Medical Direc or’s meeting. Health Care Fraud cture. July 11, 2017 Lecture to First C e Medical Director’s meeting.EMphasis on Emergency Medicine in Texas. “Suspected child abuse reporting in xas.” November 2018.ACEP No “Peer- view Paranoia.” November 2018, Vol. 37, No. 11.EMphasis on ergency Medicine in Texas. “Involunta hiatric Admissionin Texas... YOU CAN’T DO THAT!” February 2019. EP Now“The Updated National Practitioner Data ank Reporting equirementsFebr uary 2019, Vol. 38, No. 02.EMphasis on Emergency Medicine in Te . “The Texas Medical Board & You” 12019.EMphasis on Emergency Medicine in Texas TMB Pain Management Rules”June 2019.ACEP Now. “United States Const tion Versus FDA, Off Discussions MayNo Longer Be Faux Pas.” June 2019, Vol. 38, No. 6. sk Management Monthly (podcast) GuesExpert Speaker . 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Heart AttackEssentials For Lawyers (continuing legal education webinar ). American Board of Professional Liability Attorneys(ABPLA) April 13, 2023.PITAL AD_INISTR_ TIVE EXPERIENCE: Chief Resident in Emer ncy Medicine. University of Texas at Houston, 7/04- 6/05 Medical ire tor First Choice rgency Room Jones Rd. location (1/2015 — 6/1/2020 (facility qd)Chairman,Firs t Texas Hosp 1 Cy Fair ievance ommittee (9/2016 — 8/2020 (facility closed)) Cha man, Fir Texas Hospital Cy Fair r Revi ew ommittee (9/2016 — 8/2020 aci lity closed)) Baylor St. Luke’Houston, TX Peer Revie w Committee (10/2020- 8/2022)PROFESSIONAL ORGANIZATION MEMBERSHIPS: erican College of Emergency Physic ns Texas College of E ergency Physicians American Health Lawy Associatio American Bar Associat American Socie for Healthcar sk Management Texas Association of diators International Association of Rehabilitation Professionals National Association of Mobile Integrated Healthcare ProvidACADEMIC AWAR Rookie of e orE xcellence in Academics, Clin cal Performance and adership. 2002-2003 UT Hou rgency Medicine ney Academic E ellen Award. 2004-2005 U_ T Houston Department of E rgency Medicine Emergency Physician of th 2008: MethodisSugar Land Hospital Emergency Physician of the Year 2009: The M tho stH_pital- Houston, TX Physi an of the year 2011: Memorial Herm n Sou t Hospital n, TX istinguished sc rt March 2015 Concord Law School at Purdue versity Glob De ’s List June 2018 Concord Law School at Purdue University Global ncord Law School at Purdue Unive ity Global graduate th honorsPERSONAL ICADEVICPATE TS: tent #7,921,847- Device and m rpla ng within patient an eral tube after endotracheal intubation. Patent #8,863,746 B2- Continuation in part. Deviand me od forp cing in a patient an ral tube after racheal in bation.
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Ruling
JOSUE MOLINA SANCHEZ, ET AL. VS CITY OF LOS ANGELES, ET AL.
Jul 30, 2024 |20STCV07830
Case Number: 20STCV07830 Hearing Date: July 30, 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: July 30, 2024 CASE NUMBER: 20STCV07830 MOTIONS: Petition for Minors Compromise MOVING PARTY: Petitioner Patricia Reyes-Uribe OPPOSING PARTY: Unopposed The Court has reviewed the Petition to Approve Compromise of Pending Action of a Minor, filed on by Petitioner Patricia Reyes-Uribe (Petitioner) on behalf of Claimant Eligh Molina, age 8. The Court denies the petition without prejudice for the following reasons. Petitioner states that Claimant was involved in a motor vehicle accident when he was two years old. The medical records in attachment 8 show that Claimant was taken to the emergency department on the date of the accident. The records show Claimant had a lip contusion and was instructed to follow-up with a primary care physician in 1-2 days. (Petition, pdf., p. 23.) There are no records of a follow-up examination. Nevertheless, Petitioner asserts Claimant is recovered. However, given the type of incident, the Court requires a more recent medical record/report verifying Claimants current condition, or other evidence that claimant is fully recovered. Petitioner must provide attachment 11b(6), describing the reasons for varying settlements of Claimant and the other plaintiffs. Attachment 12b(4)(c) must include the most recent DHCS letter showing the $49.60 lien amount. Since it appears Petitioners attorney is representing other parties in this case besides Claimant, the response in item 17e must be changed and applicable attachment must be provided. In MC-351, Petitioner should include the information from attachment18b(5) in item 8b(2). Accordingly, the Court denies the petition without prejudice. Petitioner shall give notice and file a proof of service of such.
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S. T., ET AL. VS SANTA MONICA MALIBU UNIFIED SCHOOL DISTRICT, ET AL.
Jul 30, 2024 |Echo Dawn Ryan |22STCV27553
Case Number: 22STCV27553 Hearing Date: July 30, 2024 Dept: 26 07/30/24 Dept. 26 Rolf Treu, Judge presiding S.T., et al. v. SANTA MONICA-MALIBU UNIFIED SCHOOL DISTRICT, et al. (22STCV27553) Counsel for Plaintiffs/moving party: Christa Ramey, Esq. and Schyler Katz, Esq. (Abir Cohen Treyzon Salo, LLP) Counsel for Defendant/opposing party: Harry W. Harrison, Esq., Emily S. Beck, Esq., and Dana H. Furman, Esq. (Tyson & Mendes) MOTION TO COMPEL FURTHER PRODUCTION OF DOCUMENTS FROM DEFENDANT TO PLAINTIFFS REQUEST FOR PRODUCTION OF documents PURSUANT TO THE NOTICE OF DEPOSITION OF THE PERSON MOST QUALIFIED FOR DEFENDANT (filed 06/07/24) TENTATIVE RULING The motion to compel further production of documents is GRANTED IN PART. I. BACKGROUND On August 23, 2022, Plaintiff S.T. (S.T.), a minor individual, by and through his guardian ad litem, Sandra T., filed a Complaint against Defendants Santa Monica Malibu Unified School District, Laura Simone, Laura Paule Sheahan, Shaun Simone, Jeffrey Keller, Xaiver Jauregui, Stacy Low, and Does 1 through 50, alleging causes of action for: (1) Negligence; (2) Negligence/Statutory Negligence; (3) Negligent Hiring, Retention, Supervision, and Training; and (4) Unruh Act Violation. The complaint arises from Plaintiff S.T. being bullied as a student at Santa Monica High School. (Complaint, ¶ 17.) On September 8, 2022, Plaintiff C.R. (C.R.), a minor individual, by and through his guardian ad litem, Sherley R. filed a Complaint in LASC Case No. 22SMCV01521, C.R. v. Santa Monica Malibu Unified School District, et al., against Defendants Santa Monica Malibu Unified School District, Laura Simone, Laura Paule Sheahan, Shaun Simone, Jeffrey Keller, Xaiver Jauregui, Stacy Low, Antonio Shelton, and Does 1 through 50, alleging causes of action for: (1) Negligence; (2) Negligence/Statutory Negligence; and (3) Negligent Hiring, Retention, Supervision, and Training. The complaint in LASC Case No. 22SMCV01521 arises from Plaintiff C.R. being bullied as a student at Santa Monica High School. On October 13, 2022, the instant action and LASC Case No. 22SMCV01521 were deemed related, with the instant action being deemed the lead case. (10/13/22 Minute Order.) On January 5, 2023, Plaintiff S.T. filed the operative First Amended Complaint against Defendants Santa Monica Malibu Unified School District, Laura Simone, Laura Paule Sheahan, Shaun Simone, Jeffrey Keller, Xaiver Jauregui, Stacy Low, and Does 1 through 50, alleging causes of action for: (1) Negligence; and (2) Negligent Hiring, Retention, Supervision, and Training. Also, on January 5, 2023, in LASC Case No. 22SMCV01521, Plaintiff C.R. filed a First Amended Complaint alleging causes of action for: (1) Negligence; and (2) Negligent Hiring, Retention, Supervision, and Training. On January 31, 2023, pursuant to a request for dismissal filed by Plaintiff S.T., Defendants Xavier Jauregui, Stacy Low, Laura Simone, Laura Paule Sheahan, and Jeffrey Keller were dismissed without prejudice. On February 1, 2023, Defendant Santa Monica Malibu Unified School District (Defendant) filed an Answer to the respective complaints filed by Plaintiff S.T. and Plaintiff C.R. On July 20, 2023, a Stipulation for Protective Order and Order was entered into in the instant action between Plaintiff S.T. and Defendant. On September 29, 2023, after hearing oral argument, the Court granted the motion to consolidate filed by Plaintiff S.T. and Plaintiff C.R. (collectively, Plaintiffs). (09/29/23 Minute Order.) As such, the instant action and LASC Case No. 22SMCV01521 were consolidated with the instant action being deemed the lead case. (09/29/23 Minute Order.) On June 7, 2024, Plaintiffs filed a Motion to Compel Further Production of Documents from Defendant to Plaintiffs Request for Production of Documents Pursuant to the Notice of Deposition of the Person Most Qualified for Defendant, arguing that: · Defendant failed to produce all responsive documents. · Plaintiffs have properly and timely brought their motion pursuant to the Code of Civil Procedure. · Plaintiffs counsel complied with their meet and confer obligation. · The Court has authority to compel further production of documents in response to Plaintiffs request for production. · Federal law allows disclosure of the records sought pursuant to a judicial order. · The documents sought are directly relevant to the subject matter of this litigation and do not constitute a serious invasion of privacy. · The protective order in place protects the privacy concerns. In opposition, Defendant argues that: · There is no legal or factual basis to compel the production of documents nos. 1 and 2. · There is no legal or factual basis to compel the production of documents nos. 5, 6, 9, and 10. · Non-party student records requested in nos. 3, 4, 7, and 8 require consent or court order prior to production. On reply, Plaintiffs argue that: · There is a stipulated protective order between the parties. · There is no obligation that Plaintiff provide notice to non-parties of the motion. II. ANALYSIS A. Legal Standard for Motion to Provide Further Responses to a Request for Production of Documents Under Code Civ. Proc. § 2017.010, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. (Code Civ. Proc., § 2017.010.) If, after service, of a deposition notice, a party to the action . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . or tangible thing described in the deposition notice, the party giving notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document . . . or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) To justify the production of documents at deposition, a party must set forth specific facts showing good cause. (Code Civ. Proc., § 2025.450, subd. (b).) If a deponent fails to answer any question or to produce any document . . . under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (Code Civ. Proc., § 2025.480, subd. (a).) A motion brought pursuant to Code Civ. Proc. § 2025.480 shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.480, subd. (b).) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection to the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a)(1)-(3).) A motion brought pursuant to CCP § 2031.310 shall set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) B. Meet and Confer Requirement The Court finds that the meet and confer requirement has not been met. (Katz Decl., ¶¶ 7-9; Exs. D, E, and F.) While Plaintiffs counsel does provide evidence of meet and confer discussions concerning student disciplinary records, Plaintiffs counsels meet and confer correspondence does not reference discussions as to employee disciplinary records or disciplinary action taken against employees. (Id.) Moreover, the meet and confer correspondence does not evidence any communications as to policies, procedures, notices, and/or directives concerning student discipline or employee discipline at Santa Monica High in effect from 2021 to the present. (Id.) The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) Here, although requesting further responses to RFP Nos. 1-10, Plaintiffs have failed to provide evidence of meet and confer discussions as to RFP Nos. 1, 2, 5, 6, 9, and 10. Given that Plaintiffs are seeking to compel further responses to a request for production of documents, Plaintiffs were required to provide a sufficient meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) C. Evidence in Support of the Motion According to the declaration of Schyler S. Katz (Katz) submitted in support of Plaintiffs motion, on March 7, 2024, Plaintiffs served a deposition notice for Defendants Person Most Qualified (PMQ) Re: Discipline inclusive of the subject Request for Production of Documents to which Defendant objected. (Katz Decl., ¶ 4; Exs. A and B.) The deposition was set for March 25, 2024. (Katz Decl., ¶ 4.) Due to meet and confer efforts, Defendant agreed to produce two persons as its PMQ, Marae Cruce and Antonio Shelton. (Katz Decl., ¶ 5.) Ms. Cruces final portion of her deposition took place on April 11, 2024. (Katz Decl., ¶ 5.) Plaintiffs counsel and defense counsel already stipulated to a protective order, which was filed and entered by the Court on July 30, 2023. (Katz Decl., ¶ 6; Ex. C.) Plaintiffs are seeking disciplinary records of Santa Monica High students. (Katz Decl., ¶ 7.) Pursuant to the deposition notice served on Defendant, Plaintiffs seek the following categories of documents: 1. Any and all documents related to Defendants policies and procedures, notices, and/or directives concerning student discipline at Santa Monica High in effect between 2021 and the present; 2. Any and all documents related to Defendants policies and procedures, notices, and/or directives concerning employee discipline at Santa Monica High in effect between 2021 and the present; 3. Any and all documents related to discipline and/or disciplinary measures undertaken for students at Santa Monica High which in any way relates to the allegations that form the basis of Plaintiff C.R.s operative complaint; 4. Any and all documents related to discipline and/or disciplinary measures undertaken for students at Santa Monica High which in any way relates to the allegations that form the basis of Plaintiff S.T.s operative complaint; 5. Any and all documents related to discipline and/or disciplinary measures undertaken for employees at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff C.R.s operative complaint; 6. Any and all documents related to discipline and/or disciplinary measures undertaken for employees at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff S.T.s operative complaint; 7. Any and all correspondence related to discipline and/or disciplinary measures undertaken for students at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff C.R.s operative complaint; 8. Any and all correspondence related to discipline and/or disciplinary measures undertaken for students at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff S.T.s operative complaint; 9. Any and all correspondence related to discipline and/or disciplinary measures undertaken for employees at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff C.R.s operative complaint; and 10. Any and all correspondence related to discipline and/or disciplinary measures undertaken for employees at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff S.T.s operative complaint. D. Evidence in Opposition to the Motion In opposition to the motion, Defendants counsel, Dana H. Furman (Furman), provides a declaration. Counsel declares the following: she had multiple conversations with Plaintiffs counsel at the onset of this case advising her that Plaintiffs would need to obtain a consent from the parents or a court order before Defendant could release private and confidential student records for non-party students. (Furman Decl., ¶ 3; Ex. 1.) Plaintiffs served a PMQ deposition notice requesting 10 categories of records and Defendant objected. (Furman Decl., ¶ 4.) In response to RFP No. 1., Defendant agreed to produce policies and procedures related to student discipline and did, in fact, produce Bate-stamped documents in response to such request. (Furman Decl., ¶ 4.) In response to RFP No. 2, Defendant also agreed and did, in fact, product policies and procedures regarding employee discipline. (Furman Decl., ¶ 4.) Ms. Furman states that there were no meet and confer communications concerning RFP Nos. 5, 6, 9, and 10 regarding employee records, and there were no meet and confer communications regarding RFP Nos. 1 and 2, which concern policies and procedures regarding employee discipline and student discipline. (Furman Decl., ¶¶ 4, 7.) Defendant served an Amended Objection to the Deposition Notice. (Furman Decl., ¶ 9; Ex. 3.) In response to RFP No. 5, 6, 9, and 10, Defendant articulated numerous objections and indicated that it was unaware of any documents responsive to such requests. (Furman Decl., ¶ 9; Ex. 3.) E. Appropriateness of Compelling Further Responses to RFP Nos. 1-10 As to RFP Nos. 1, 2, 5, 6, 9, and 10, the Court finds that Plaintiffs motion is deficient as to such requests. Although the respective complaints do allege wrongdoing by students and employees at Santa Monica High, Plaintiffs were required to sufficiently meet and confer prior to bringing the instant motion. Defendant argues, and produces evidence through the declaration of Ms. Furman, that Plaintiffs did not meet and confer as to those categories of requests. Moreover, the Court notes that Plaintiffs motion is made pursuant to CCP § 2031.010, which concerns a party inspecting, copying, testing, or sampling documents . . . in the possession, custody, or control of any other party to the action. (Code Civ. Proc., § 2031.010, subd. (a).) Here, Defendants objected to the deposition notice. As such, Plaintiffs are moving to compel the further responses of Defendant but did not provide specific facts in the declaration of Ms. Katz showing why further production should be compelled. A party seeking to compel discovery must . . . set forth specific facts showing good cause justifying the discovery sought. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224.) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Ibid.) Thus, not only did Plaintiffs fail to properly meet and confer as to RFP Nos. 1, 2, 5, 6, 9, and 10, Plaintiffs have failed to show good cause to warrant further production as to such requests. Additionally, as to RFP Nos. 1 and 2, Defendant indicates that it produced documents in response to such requests. (Furman Decl., ¶ 4.) As such, the Court DENIES Plaintiffs motion as it concerns RFP Nos. 1, 2, 5, 6, 9, and 10. As to RFP Nos. 3, 4, 7, and 8, such requests concern discipline or disciplinary measures taken against students at Santa Monica High related to the allegations of the respective complaints. The Court notes that such information is relevant because the respective complaints allege wrongdoing against Plaintiffs perpetrated by students of Santa Monica High. Defendant does not take issue with the production of such documents. (Oppn at p. 6:19-22.) A school district is not authorized to permit access to pupil records to any person without written parental consent or under judicial order . . . . (Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1393, 1396.) A pupil record is defined as any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district. (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 752.) A pupil record is information relative to an individual pupil gathered within or without the school system and maintained within the school system. (Ibid.) As with California law, the federal Family Education Rights and Privacy Act (FERPA) provides for the privacy of education records. (Rim of the World Unified School Dist. v. Superior Court, supra, 104 Cal.App.4th 1393, 1397.) Education records are defined as documents which contain information directly related to a student or are maintained by an educational agency or institution. (Ibid.) FERPA does not actually prohibit the release of education records. Rather, FERPA conditions the availability of federal funds on conformance with its provisions. (Id. at p. 1398.) FERPA provides that [n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice permitting the release of education records . . . of students without the written consent of their parents to any individual, agency, or organization . . . . (Ibid.) Initially, the Court finds that Plaintiffs reliance on BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742 is inapposite as such case involved misconduct allegations against a school superintendent. Here, Plaintiffs are alleging that other students are perpetrators of wrongful actions. Thus, the disciplinary records sought here are pupil records as they relate to student discipline. Plaintiffs provided notice of the instant motion, via priority mail, on June 17, 2024, to the parents of the students whom disciplinary records are sought pursuant to RFP Nos. 3, 4, 7, and 8. (See 06/18/24 Proof of Service.) Given that none of the students via their parents or counsel have opposed the instant motion, the Court may authorize the release of such information pursuant to a court order. The Court finds that such information is relevant to Plaintiffs proving their claims in this action. Accordingly, the Court GRANTS Plaintiffs request to compel further verified responses to RFP Nos. 3, 4, 7, and 8. III. DISPOSITION Based on the foregoing, the Court GRANTS IN PART Plaintiffs Motion to Compel Further Production of Documents from Defendant to Plaintiffs Request for Production of Documents Pursuant to the Notice of Deposition of the Person Most Qualified for Defendant. The Court DENIES Plaintiffs request to compel further responses to RFP Nos. 1, 2, 5, 6, 9, and 10. The Court GRANTS Plaintiffs request to compel further responses to RFP Nos. 3, 4, 7 and 8 and orders Defendant to provide verified, complete, and code-compliant responses to RFP Nos. 3, 4, 7, and 8, without objections, within 30 days of the date of this order.
Ruling
MARY ANN CALIFANO VS RALPHS GROCERY COMPANY, AN OHIO CORPORATION, ET AL.
Jul 30, 2024 |23LBCV00838
Case Number: 23LBCV00838 Hearing Date: July 30, 2024 Dept: S25 Procedural Background On May 8, 2023, Plaintiff filed a complaint against Defendants Ralphs Grocery Company, Shalma Smith and Does 1 to 50, alleging negligence and premises liability causes of action. Plaintiff alleges that on or about October 19, 2022 she was at the Ralphs property located at 1050 N Western Ave San Pedro, CA 90732 (Subject Premises) and she was pushing a Ralphs shopping cart when the wheels of Ralphs shopping cart suddenly and without warning locked and halted, resulting in Plaintiffs knee slamming on the cart. (Compl., ¶¶ 1, 5, 9.) On July 31, 2023, Defendant Ralphs Grocery Company (Defendant Ralphs) filed an answer. On January 17, 2024, the Court, on its own motion, dismissed Shalma Smith pursuant to an oral request made by Plaintiff. (January 17, 2024 Order of Dismissal.) On April 5, 2024, Plaintiff made a Doe Amendment, identifying Doe 1 to Gatekeeper Systems, Inc. (April 5, 2024 Amendment to Complaint.) On May 8, 2024, the Court granted Plaintiff and Defendant Ralphs Joint Stipulation to Continue Trial, continuing the final status conference to September 20, 2024, the trial date to September 23, 2024 with all related trial deadlines to flow from the new trial date. (May 8, 2024 Order.) On May 10, 2024, Defendant Gatekeeper filed an answer. On June 24, 2024, Defendant Gatekeeper filed a motion to continue trial. As of July 24, 2024, no opposition has been filed. Legal Standard To ensure prompt dissolution of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (California Rules of Court, rule 3.1332(a).) Although continuances of trials are disfavored, the Court may grant a continuance if there is an affirmative showing of good cause requiring the continuance. (Cal. Rules of Court, rule 3.1332(c).) Although continuances of trials are disfavored, the Court may grant a continuance if there is an affirmative showing of good cause requiring the continuance. CRC Rule 3.1332(c). Factors that show good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: a. The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or b. The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. (Cal. Rules of Court, rule 3.1332(d).) These factors may include: The proximity of the trial date; whether there was any previous continuance, extension of time, or delay of trial due to any party; the length of the continuance requested; the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; the prejudice that parties or witnesses will suffer as a result of the continuance; if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; the court's calendar and the impact of granting a continuance on other pending trials; whether trial counsel is engaged in another trial; whether all parties have stipulated to a continuance; whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and any other fact or circ*mstance relevant to the fair determination of the motion or application. Parties Arguments Defendant Gatekeeper asserts that good cause exists for the Court to continue the trial date from September 23, 2024 to March 17, 2025 because: (1) Defendant Gatekeeper just entered into the case last month and will not have enough time to conduct discovery in the four months before trial in September 23, 2024; (2) there was one stipulated trial continuance prior to Defendant Gatekeepers appearance in May 2024; (3) no alternative means exist to address the limited time available for Defendant Gatekeeper to obtain discovery and prepare for trial; and (4) all parties have stipulated to this trial continuance. No opposition has been filed. Tentative Ruling Defendant Gatekeepers motion for an order continuing the trial date is GRANTED. The 9/20/24 Final Status Conference and 9/23/24 Trial dates are vacated. Case Management Conference is scheduled for October 29, 2024 at 8:30 a.m. Final Status Conference is scheduled for March 13, 2025 at 8:30 a.m. Trial is scheduled for March 24, 2025 at 9:30 a.m. All related dates and deadlines, including expert discovery, to follow the new trial date.
Ruling
Rosen, Kurt vs. Henry, Michael James Neil
Aug 12, 2024 |S-CV-0052559
S-CV-0052559 Rosen, Kurt vs. Henry, Michael James NeilNo appearance required. CMC is continued to 10/28/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Henry, Michael James NeilAdditionally, no proof of service has been filed as to Defendant(s): Henry,Michael James Neil
Ruling
MARGARET ANN GOTTFRIED VS CITY OF LOS ANGELES, ET AL.
Jul 30, 2024 |Renee C. Reyna |22STCV14593
Case Number: 22STCV14593 Hearing Date: July 30, 2024 Dept: 29 Motion for Summary Judgment filed by Defendant City of Los Angeles. Tentative Ruling The motion for summary judgment is GRANTED. Background On May 3, 2022, Margaret Ann Gottfried (Plaintiff) filed a complaint against City of Los Angeles (City), Westchester County Homeowners Association (Westchester), and Does 1 to 50 for general negligence and premises liability arising out of an incident on May 4, 2020, in which Plaintiff alleges that she tripped and fell on a raised or broken sidewalk concrete at or near 20700 Wells Drive in Woodland Hills. On May 24, 2022, Westchester filed an answer to the complaint. On June 13, 2022, City filed an answer and cross-complaint against Westchester and Roes 1 through 20. Westchester filed an answer to the cross-complaint on July 21, 2022. On January 12, 2024, City filed this motion for summary judgment. No opposition has been filed. On May 14, Westchester filed a joinder to the motion for summary judgment; the joinder was taken off calendar on July 26. Legal Standard The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.) A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) The party opposing a motion for summary judgment or summary adjudication may not simply rely upon the allegations or denials of its pleadings but must instead set forth the specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Discussion In her Complaint, Plaintiff asserts that she was injured as a result of a dangerous condition on a public sidewalk located near 20700 Wells Drive in Woodland Hills. As set forth in Government Code section 835, there are four elements for such a claim: [A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes [1] that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Govt Code, § 835; see also, e.g., Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 653; Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 753.) Here, City moves for summary judgment on the grounds (1) that the defect in the sidewalk was trivial, rather than a dangerous condition; and (2) that City did not have actual or constructive notice of the defect. The term dangerous condition means a condition of property that creates a substantial (as distinguished from a minor,¿trivial¿or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it¿will be used.¿(Gov. Code, § 830, subd. (a); see also Thimon, supra, 44 Cal.App.5th at p. 754.)¿ Public property is in a dangerous condition within the meaning of section 835 if it is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.) The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion. (Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810; accord Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110; Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757.) Plaintiff has the burden of proving the existence of a dangerous condition and each element of a cause of action under Government Code 835. A court may not presume that there was a dangerous condition merely because the plaintiff was injured. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 241 [describing such an argument as reason[ing] backwards].) A condition is not dangerous within the meaning of the statute unless it creates a hazard to those who foreseeably will use the property ... with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) The condition of the property involved should create a substantial risk of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5; accord Nunez, supra, 81 Cal.App.5th at p. 758.) Government Code section 830.2 provides that a condition is not a dangerous condition under the Government Claims Act: if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circ*mstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. (Gov. Code, § 830.2.) This statutory principle is sometimes referred to as the trivial defect doctrine. It is impossible to maintain public walkways in perfect condition. (Stack, supra, 91 Cal.App.5th at pp. 109-110; Nunez, supra, 81 Cal.App.5th at p. 758; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26.) The Government Claims Act is not intended to make public entities insurers against injuries arising from trivial defects. (Stack, supra, 91 Cal.App.5th at p. 109; Thimon, supra, 44 Cal.App.5th at p. 757.) Rather, the trivial defect doctrine shields public entities from liability for minor, trivial, or insignificant defects. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104; Kasparian, supra, 156 Cal.App.4th at p. 27.) This is not to say that it is impossible for a member of the public to trip, fall, and sustain injuries as a result of a defect that is trivial. (See Nunez, supra, 81 Cal.App.5th at pp. 759-760.) But the duty of care of a public entity (or a private landowner) does not extend to protecting pedestrians or other members of the public from minor or trivial defects. (Id. at pp. 757, 759.) The trivial defect doctrine is not an affirmative defense. It is an aspect of duty that a plaintiff must plead and prove. (Huckey, supra, 37 Cal.App.5th at p. 1104; accord Nunez, supra, 81 Cal.App.5th at p. 757.) In appropriate cases, the trial court may determine ... whether a given walkway defect was trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1104.) Where reasonable minds can reach only one conclusionthat there was no substantial risk of injurythe issue is a question of law, properly resolved by way of summary judgment. (Id. at pp. 1104-1105 (quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929).) If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1105.) In cases involving allegedly dangerous conditions on a sidewalk or other walkway, courts generally begin their analysis by considering the size of the defect. The size of the height differential, rise, or other defect is in many cases the most important factor. (Stack, supra, 91 Cal.App.5th at p. 111; see also, e.g., Huckey, supra, 37 Cal.App.5th at p. 1105 [stating that size of defect may be one of the most relevant factors].) As the Court of Appeal has explained, however, [i]n determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect. (Huckey, supra, 37 Cal.App.5th at p. 1105 [emphasis in original].) [A] tape measure alone cannot be used to determine whether the defect was trivial. (Caloroso, supra, 122 Cal.App.4th at p. 927.) Rather, a court should consider other circ*mstances which might have rendered the defect a dangerous condition at the time of the accident. (Huckey, supra, 37 Cal.App.5th at p. 1105.) These other circ*mstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrians view of the defect, the plaintiffs knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents. (Ibid.) In addition, the Court may also take into account, as part of its consideration of the totality of the circ*mstances, whether the defect was open and obvious to a person exercising due care and whether there were signs warning a person acting with due care about the danger. (Fredette, supra, 187 Cal.App.3d at pp. 131-132.) In sum, [a] court should decide whether a defect may be dangerous only after considering all of the circ*mstances surrounding the accident that might make the defect more [or less] dangerous than its size alone would suggest. (Huckey, supra, 37 Cal.App.5th at p. 1105 [quoting Caloroso, supra, 122 Cal.App.4th at p. 927]; accord Nunez, supra, 81 Cal.App.5th at p. 757.) Here, City argues the defect in the sidewalk is trivial as a matter of law. The height of the defect is, at its maximum, one and three eighths of an inch. (Defendants Statement of Undisputed Material Facts [DSUMF], No. 14.) The accident occurred during daylight hours (at approximately 8:30 am) on what Plaintiff herself described in her deposition as a beautiful day. (DSUMF, Nos. 1, 3.) There is no evidence of any obstruction of the defect. (DSUMF, Nos. 4, 8-11.) There is no evidence that there had been prior accidents at the site of the defect. (DSUMF, No. 20.) The Court has reviewed all of the admissible evidence in the record. Considering the totality of the circ*mstances, and viewing the evidence in the light most favorable to the non-moving party, the Court concludes that City has met its initial burden on summary judgment of presenting facts to show that the element of the existence of a dangerous condition in Plaintiffs claim under Government Code section 835 cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) This shifts the burden to Plaintiff to show that there is a triable issue of material fact as to the existence of a dangerous condition. (Ibid.) Plaintiff has not filed any opposition to the motion and so has not done so. Accordingly, the Court concludes that there is no triable issue as to any material fact on the element of the existence of a dangerous condition. City has shown that, as a matter of law, the condition was a trivial defect, and that therefore it is entitled to judgment as a matter of law. Citys motion for summary judgment is granted. Conclusion The Court GRANTS the motion of Defendant City of Los Angeles for summary judgment. Moving party is to give notice.
Ruling
MARCIA MINGO VS ALICIA ANN PARTNER
Jul 29, 2024 |23TRCV03433
Case Number: 23TRCV03433 Hearing Date: July 29, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Monday, July 29, 2024 Department M Calendar No. 9 PROCEEDINGS Marcia Mingo v. Alicia Ann Partner, et al. 23TRCV03433 1. Ronnivashti Whiteheads, Counsel for Plaintiff Marcia Mingo, Motion to be Relieved as Counsel TENTATIVE RULING Ronnivashti Whiteheads, Counsel for Plaintiff Marcia Mingo, Motion to be Relieved as Counsel is denied without prejudice. Background Plaintiff filed the Complaint on October 16, 2023. Plaintiff alleges the following facts. Plaintiff and Defendant were involved in a motor vehicle accident. Motion to be Relieved as Counsel Counsel states, in the declaration, valid reasons for withdrawal. Counsel states that there has been a breakdown in communication between counsel and Plaintiff. The Court finds that the attorney has filed the required declaration. The Court also finds that the attorney has shown sufficient reasons why the motion to be relieved as counsel should be granted and why the attorney brought a motion under Code of Civil Procedure § 284(2) instead of filing a consent under section 284(1). The Court finds that the attorney filed the proposed order. However, the attorney did not file the proof of service of the motion. The attorney does state that the attorney served all necessary documents but did not file the actual proof of service. Therefore, the motion to be relieved as counsel is denied without prejudice, unless moving party can produce proof of service of the motion. Ronnivashti Whitehead is ordered to give notice of the Courts ruling.
Ruling
STEVEN BRISCO, ET AL. VS FAB4 LLC, ET AL.
Jul 30, 2024 |21STCV10370
Case Number: 21STCV10370 Hearing Date: July 30, 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: July 30, 2024 CASE NUMBER: 21STCV10370 MOTIONS: Petition for Minors Compromise MOVING PARTY: Petitioner Racquel Wills OPPOSING PARTY: Unopposed The Court has reviewed the Petition to Approve Compromise of Pending Action of a Minor, filed on by Petitioner Racquel Wills (Petitioner) on behalf of Claimant Jayda Brisco, age 16. The Court denies the petition without prejudice for the following reasons. Petitioner asserts Claimant was injured in a rear-end motor vehicle accident on February 6, 2021 and had neck, low back, and head pain, headaches, and depression. Petitioner asserts Claimant is not recovered from the neck and back pain and depression, but that the symptoms are temporary. However, the medical records attached do not indicate that the injuries are temporary. In item 12b(5)(b)(iii), based on the reduction, it appears the amount paid should be $1,100. (However, the proposed order shows $1,500 being reimbursed to Advanced Imaging Center.) Additionally, the total lien amounts in item 12b5 and attachment12b(5) do not equal $14,457 as Petitioner indicates. Petitioner requests $99,000 in attorney fees which represents 33% of the gross settlement. The Court finds this to be reasonable. Accordingly, the Court denies the petition without prejudice. Petitioner shall give notice and file a proof of service of such.
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