**STRICKEN FROM RECORD**MOTION TO EXPEDITE SETTLEMENT; MOTION TO WAVE ATTORNEY'S FEES; MOTION FREEDOM FROM MENTAL TORTURE. SEE 12/3/2023 ORDER November 02, 2023 (2024)

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Ruling

LATRICE HARRIS VS LYNWOOD UNIFIED SCHOOL DISTRICT, ET AL.

Aug 29, 2024 |24STCV00756

Case Number: 24STCV00756 Hearing Date: August 29, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING LATRICE HARRIS, Plaintiff, v. LYNWOOD UNIFIED SCHOOL DISTRICT, et al., Defendants. Case No: 24STCV00756 Hearing Date: August 29, 2024 Calendar Number: 4 Defendant Lynwood Unified School District (LUSD) demurs to the Complaint filed by Plaintiff Latrice Harris. LUSD demurs to the first, second, third, and fourth claims as to Defendant Brenda Romero, and to the fifth claim as to itself. The Court SUSTAINS the demurrer to the first, second, third, and fourth claims with respect to Romero only WITHOUT LEAVE TO AMEND. Romero, the individual, should not be a party to the claims asserted in this lawsuit. The claims stand against LUSD, which did not demur to them. The Court SUSTAINS the demurrer to the fifth claim with respect to LUSD WITH LEAVE TO AMEND. Plaintiff may amend within 10 days. Background This is an employment case. The following facts are taken from the allegations of the Complaint, which the Court accepts as true for purposes of the demurrer. Plaintiff worked for LUSD from 2017 to 2023 as a Benefit and Payroll Manager and Benefit and Risk Manager. Plaintiff alleges that from around August 2022 until June 2023, Plaintiff was subject to discrimination based on race and color by her supervisor Brenda Romero. Plaintiff alleges that Romero called her derogatory terms, including racial slurs, and encouraged other employees to file meritless complaints against Plaintiff. Plaintiff alleges that Romero told Plaintiff that Romero was going to get Plaintiff fired or make Plaintiffs working conditions intolerable. Plaintiff alleges that LUSD constructively terminated her in June 2023. Plaintiff alleges that in October 2001, Ms. Rodriguez, a candidate for the LUSD school board who was later elected to the board, told the board that their job was to get rid of black people, using a racial slur. Plaintiff alleges that since the time of Rodriguezs election to the board, LUSD has targeted black employees in the district for harassment, intimidation, removal, and demotion based on their race. Plaintiff filed this action against LUSD and Romero on January 10, 2024, raising claims for (1) discrimination based on race; (2) discrimination based on color; (3) retaliation in violation of FEHA; (4) failure to prevent discrimination, harassment, and retaliation; and (5) intentional infliction of emotional distress (IIED). LUSD demurred to the complaint on July 23, 2024. The hearing date was set for August 15, 2024. Plaintiff did not file an opposition prior to August 15, 2024. On August 13, 2024, two days before the scheduled hearing, Plaintiff filed a First Amended Complaint (FAC). On August 15, 2024, Plaintiff did not appear at the hearing because Plaintiffs counsel assumed that the FAC would moot the demurrer and that the demurrer would therefore be taken off calendar. Plaintiffs counsel had another hearing on the same day, which ran the full day. The Court continued the hearing to August 29, 2024. On August 22, 2024, five court days before the August 29, 2024 hearing, Plaintiff filed an opposition. On August 23, 2024, LUSD filed a reply. Legal Standard As a general matter, 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 pleading alone, and not the evidence or facts alleged. (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaints properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Discussion The First Amended Complaint A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading. (Code Civ. Proc., § 472, subd. (a).) Plaintiffs opposition was due 9 days before the August 15, 2024 hearing. (Code Civ. Proc., § 1005, subd. (b).) In the absence of a stipulation or court order, Plaintiffs FAC was therefore not timely filed and is therefore not operative. The operative pleading at issue on this demurrer remains the original Complaint. If Plaintiff wishes to amend the Complaint to add her negligent hiring, retention, and supervision claim, she must file a motion for leave to amend. Discrimination Based on Race First Claim To establish a claim for discrimination, a plaintiff must show that (1) [the plaintiff] was a member of a protected class, (2) [the plaintiff] was qualified for the position he sought or was performing competently in the position [they] held, (3) [the plaintiff] suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circ*mstance suggests discriminatory motive. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.) LUSD demurs only as to Romero. [I]ndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts. (Reno v. Baird (1998) 18 Cal.4th 640, 663.) Plaintiff does not argue that Romero is a proper defendant in this action. Plaintiff argues that she only seeks to impose liability on LUSD through the doctrine of respondeat superior and not Romero. However, Plaintiffs Complaint names Romero individually as a defendant for all of the first four claims. The Court therefore sustains the demurrer to this claim with respect to Romero without leave to amend. Discrimination Based on Color Second Claim As discussed above, non-employer individuals cannot be sued for discrimination under FEHA. The Court therefore sustains the demurrer to this claim with respect to Romero without leave to amend. Retaliation Third Claim The elements of a cause of action for failure to prevent harassment or retaliation are: (1) actionable discrimination or harassment by employees or nonemployees; (2) defendants legal duty of care toward plaintiff (i.e., defendant is the plaintiffs employer); (3) breach of that duty (i.e., failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.) [T]he same rule applies to actions for retaliation that applies to actions for discrimination: The employer, but not nonemployer individuals, may be held liable. (Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1160.) The Court therefore sustains the demurrer to this claim with respect to Romero without leave to amend. Failure to Prevent Discrimination, Harassment, and Retaliation Fourth Claim The elements of a cause of action for failure to prevent harassment or retaliation are: (1) actionable discrimination or harassment by employees or nonemployees; (2) defendants legal duty of care toward plaintiff (i.e., defendant is the plaintiffs employer); (3) breach of that duty (i.e., failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring); (4) legal causation; and (5) damages to plaintiff. (Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.) FEHAs requirement to take all reasonable steps to prevent harassment and discrimination falls on employers, and not non-employer individuals. (Gov. Code, § 12940, subds. (j)(1) [An entity shall take all reasonable steps to prevent harassment from occurring.], (k) [[It is unlawful] [f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.].) The Court therefore sustains the demurrer to this claim with respect to Romero without leave to amend. Intentional Infliction of Emotional Distress Fifth Claim The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.) Whether a defendants conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.) [T]here is no common law tort liability for public entities in California; such liability is wholly statutory. (In re Groundwater Cases (2007) 154 Cal.App.4th 659, 688.) Except as otherwise provided by statute & [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (Gov. Code, § 815.) [B]ecause under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) This means that, to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819.) Since the duty of a governmental agency can only be created by statute or enactment, the statute or enactment claimed to establish the duty must at the very least be identified. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) Plaintiff fails to identify a statute setting forth the applicable duty for her IIED claim. Plaintiff argues that she identifies Government Code, section 815.2, subd. (a), which holds public entities liable for injuries caused by their employees within the scope of employment. Plaintiff only raises this statute in the FAC, which is not the operative complaint and not the subject of this demurrer. The Court therefore sustains the demurrer to this claim with respect to LUSD with leave to amend.

Ruling

HICKS vs MT RUBIDOUXIDENCE OPCO, LLC

Aug 27, 2024 |CVRI2302801

DEMURRER ON 2ND AMENDEDCOMPLAINT FOR MEDICALHICKS VS MTMALPRACTICE (OVER $25,000) OFCVRI2302801 RUBIDOUXIDENCE OPCO,SHIRLEY HICKS BY RIVERSIDELLCEQUITIES, LLC, SUN MARMANAGEMENT SERVICESMOTION TO STRIKE ANSWER ON 2NDAMENDED COMPLAINT FOR MEDICALHICKS VS MTMALPRACTICE (OVER $25,000) OFCVRI2302801 RUBIDOUXIDENCE OPCO,SHIRLEY HICKS BY RIVERSIDELLCEQUITIES, LLC, SUN MARMANAGEMENT SERVICESTentative Ruling:The Court overrules Defendants’ Riverside Equities, LLC and Sun Mar Management ServicesDemurrer to the Second Amended Complaint.The Court denies Defendants’ Motion to Strike Portions of the Second Amended Complaint.Moving Defendants shall file an answer in 30 days.Factual/Procedural ContextOn 10/31/2023, Plaintiff Shirley Hicks (“Decedent”), by and through her Successor-in-Interest,Latish Hicks (“Plaintiffs”), filed their First Amended Complaint (“FAC”) 1 against Defendants MtRubidouxidence Opco, LLC; Providence Group of Southern California, LLC; and ProvidenceGroup, Inc. (collectively, “Jurupa Defendants”), alleging (1) elder abuse, (2) negligence, (3)negligent hiring, supervision, and retention, (4) violation of Residents’ Rights 2 and (5) wrongfuldeath. That same day, Plaintiffs filed Doe Amendments, adding Riverside Equities, LLC as Doe101, and Sun Mar Management Services as Doe 102. 3On 4/24/2024, the Court sustained Defendants Riverside Equities, LLC (“Riverside Equities”) andSun Mar Management Services’ (“Sun Mar”) (collectively “Defendants”) demurrer to the entireFAC on the grounds of uncertainty. The Court found that Plaintiffs improperly lumped allDefendants together and asserted all allegations against all “Defendants,” rendering the FACuncertain. The Court thus granted 20 days leave to amend.On 5/14/2024, Plaintiffs filed their operative Second Amended Complaint (“SAC”), alleging thesame five causes of action.DemurrerDefendants now demur to the entire SAC on the grounds that the causes of action alleged thereinfail to state a cause of action against them and are uncertain. Specifically, Defendants argue that(1) the entire SAC is uncertain as to Defendants; (2) Sun Mar owed no duty to Plaintiffs; (3) theSAC fails to allege with the requisite specificity that Defendants are alter egos of any Co-Defendants; and (4) all of the causes of action are insufficiently pled against Defendants.In opposition, Plaintiffs argue that all of their causes of action are sufficiently pled againstDefendants. Plaintiffs thus ask the Court to overrule the demurrer in its entirety. Alternatively,Plaintiffs ask the Court for leave to amend to cure any deficiencies.Motion to StrikeDefendants concurrently move to strike portions of the SAC seeking attorney’s fees and costs, aswell as exemplary and punitive damages on the grounds that Plaintiffs have failed to plead anycause of action for which attorney’s fees and costs and exemplary and punitive damages areavailable.In opposition, Plaintiffs argue that their elder abuse cause of action supports their prayer forattorney’s fees and punitive damages. They argue that they have pled sufficient facts constituting“neglect” and “recklessness, oppression, fraud, and malice” with the requisite specificity. Theyalso argue that they have sufficiently pled corporate ratification/authorization.Analysis1. Demurrer1On 5/26/2023, Plaintiff filed her initial Complaint against Defendants, alleging a single cause of action fornegligence.2This cause of action is alleged only against Jurupa Defendants and Riverside Equities, LLC.3Plaintiff also added Riverside Healthcare System, LP as Doe 103 and HCA Healthcare, Inc. as Doe 104. On 4/4/2024,Plaintiff dismissed HCA Healthcare, Inc. from the case without prejudice.A general demurrer lies where the pleading does not state facts sufficient to constitute a cause ofaction. (CCP § 430.10(e).) A special demurrer lies where a pleading is uncertain, ambiguous andunintelligible. (CCP § 430.10(f)). A demurrer can be used only to challenge defects that appearon the face of the pleading under attack, or from matters outside the pleading that are judiciallynoticeable. (Blank vs. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a complaint under thesestandards, if there is any valid cause of action stated, even if not the one intended, the complaintis sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the causeof action is tested by presuming all of the material factual allegations in the complaint are true.(Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966–67.) “The complaint must be construedliberally . . . with a view to substantial justice between the parties.” (CCP § 452; Gressley v.Williams (1961) 193 Cal.App.2d 636, 639.) If the complaint fails to state a cause of action, thecourt must grant the plaintiff leave to amend if there is a reasonable possibility that the defect canbe cured by amendment. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)A. UncertaintyDefendants first argue that the SAC remain uncertain because Plaintiffs continue to lumpDefendants under a singular umbrella and use the term “Mission Defendants” throughout the SACwithout giving any credence to the fact that they are wholly separate entities and facilities withabsolutely no cross-over. (Demurrer 6:10–13.) They argue that all referenced misconduct in theSAC occurred while Decedent was under the care of Co-Defendant Providence of SouthernCalifornia, LLC, which Plaintiffs allude to in their SAC. (Id. at 6:13–15.)A demurrer for uncertainty is a special demurrer that is disfavored and strictly construed because“ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Fin. Indus.Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) To sustain a demurrer for uncertainty, thecomplaint must be so vague or ambiguous that the defendant cannot reasonably respond.”(Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4thc 612, 614.)Here, the SAC alleges that Defendants, “each of them, was the owner, operator and/or licenseeof Mission Care Center located at 8487 Magnolia Ave., Riverside, CA 92504”; that Decedent wasadmitted to Mission Care Center on 6/14/2022; and that Decedent was transferred to theRiverside Healthcare Systems, LP (“RHS”) on 6/27/2022. (SAC ¶¶ 11–12, 113.) It alleges thatDefendants “failed to provide adequate personal hygiene and instead repeatedly left [Decedent]lying flat on her back for extended and unacceptable periods of time, failed to properly turn andreposition her, failed to ensure that she received adequate hydration and nutrition to stave off skinbreakdown that eventually turned into numerous painful pressure sores, including an unstageablebuttock pressure injury, and a painful Stage IV pressure sore on her buttock, and painful right andleft heel deep tissue injuries.” (SAC ¶¶ 43, 109, 119.) It further alleges that, due to Defendants’understaffing (both in quality and number of staff) Decedent was left unsupervised and developednumerous pressure sores with tragic consequences. (Id. at ¶¶ 111–112, 121, 137.)Based on the above allegations, unlike their earlier complaint, Plaintiffs no longer lump togetherall Defendants, which was the basis of the Court’s prior order sustaining the special demurrer tothe FAC. Instead, Plaintiffs allege that Decedent was under Defendants’ care since 6/14/2022during which time she developed numerous pressure sores, worsening deterioration of existingbuttock sores, and abdominal abscess, which led to her injuries and her death. (Id. at ¶¶ 110–173.)Accordingly, the Court finds that for pleading purposes, Plaintiff’s complaint is sufficient, and thusthe Court overrules Defendants’ demurrer on these grounds.B. Duty Owed by Sun MarDefendants next argue that Sun Mar cannot be held liable because Sun Mar owed no duty toPlaintiffs as “Sun Mar is unequivocally not the licensee in this matter.” (Defs.’ Demurrer 7:20–21.)Here, as discussed above, the SAC alleges that Defendants, “each of them, was the owner,operator, and/or licensee of Mission Care Center, located at 8487 Magnolia Ave., Riverside, CA92504”; that Decedent was admitted to the Mission Care Center on 6/14/2022; that Defendantswere obligated to furnish Decedent with continuous care and supervision; and that Defendantsfailed to provide adequate supervision and were understaffed, resulting in Decedent’s injuries anddeath. (SAC ¶¶ 11–12, 45, 111, 113, 119, 126.) The Court accepts these allegations as true,(People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777), and as suchthe demurrer on this ground is also overruled.C. Alter EgoDefendants further argue that the SAC fails to plead with the requisite specificity that Defendantswere an alter egos of any Co-Defendants.Here, the SAC alleges that “there existed a unity of interest and ownership between [RiversideEquities] and [Sun Mar] such that any individuality and separateness between them did notexist[.]” (Id. at ¶ 23.) It alleges that “each of the individual [Defendants] controlled, dominated,managed and operated the entity [Defendants] and commingled personal assets and businessassets to suit their convenience,” and that “the entity [Defendants] were a mere shell,instrumentality, conduit, or skeletal framework used by the individual [Defendants] for personalpurposes and the individual [Defendants] are the alter egos of the entity [Defendants].” (Id.) Inother words, Plaintiffs are alleging that Defendants were alter egos of each other, not that theywere alter egos of any Co-Defendants. The demurrer on this ground is overruled.D. Elder Abuse (1st Cause of Action)Defendants demur to the first cause of action for elder abuse on the grounds that (1) Sun Mar didnot have custody of Decedent to be liable for this cause of action as she was a patient and underthe care of Co-Defendants’ facilities; and (2) the facts alleged in the SAC do not constitute thetype of egregious misconduct contemplated by the elder abuse act.The Elder Abuse and Dependent Adults Act (“Act”) does not apply unless the defendant had asubstantial caretaking or custodial relationship, involving ongoing responsibility for one or morebasic needs, with the elder patient. (Winn v. Pioneer Med. Grp., Inc. (2016) 63 Cal.4th 148, 152.)Here, as discussed above, although the SAC does not allege that Sun Mar had a custodialrelationship with Decedent, it does allege that Decedent was admitted to Mission Care Center(Riverside Equities), which Sun Mar had control over the staff and expenditures on the facilityresidents. (See SAC ¶¶ 160–162.) Plaintiffs have also set forth sufficient allegations to establishan alter ego relationship between Riverside Equities and Sun Mar. Thus, the first argument (thatSun Mar lacked custody of Decedent) is not persuasive.Defendants’ second argument (that the facts alleged in the SAC do not constitute the type ofegregious misconduct contemplated by the Act) also fails. To state a cause of action for elderabuse under the Act the plaintiff must plead facts showing two elements: (1) the defendant hassubjected elder to statutorily-defined physical abuse, neglect, or financial abuse; and (2) thedefendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse.(Welf. & Inst. Code § 15657.)Neglect under the Act is not negligence in the undertaking of medical services, but rather concernsthe fundamental failure to provide custodial care. (Delaney v. Baker (1999) 20 Cal.4th 23,34.) “Neglect” includes only “acts of egregious abuse.” (Id. at 35.) The high standard imposedby Welf. & Inst. Code § 15657 protects health care providers from liability under the statute “foracts of simple or even gross negligence.” (Covenant Care, Inc. v. Sup. Ct. (2004) 32 Cal.4th 771,785.) “Recklessness” under the Act is more than “inadvertence, incompetence, unskillfulness, ora failure to take precautions” but rather rise to a level of a “‘conscious choice of a course of action. . . with knowledge of the serious danger to other involved in it.’” (Delaney, supra, 20 Cal.4th at31–32.) Neglect includes, among other things, the failure to assist in personal hygiene, the failureto provide medical care for physical and mental needs, the failure to protect from health and safetyhazards. (Welf. & Inst. Code § 15610.57(b).) The statutory definition of “neglect” speaks of thefailure to provide medical care rather than the substandard performance of medical care.In Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406, the Court ofAppeals explained, in sustaining a demurrer to an elder abuse cause of action, that: “The plaintiffmust allege (and ultimately prove by clear and convincing evidence) facts establishing that thedefendant (1) had responsibility for meeting the basic needs of the elder or dependent adult, suchas nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder ordependent adult unable to provide for his or her own basic needs; and (3) denied or withheldgoods or services necessary to meet the elder or dependent adult’s basic needs, either withknowledge that injury was substantially certain to befall the elder or dependent adult (if theplaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability ofsuch injury (if the plaintiff alleges recklessness).” (Id. at 406–07.)Here, the SAC alleges the following. Decedent, who 83 years old at the time, was whollydependent on Defendants (¶¶ 38, 110, 113); Decedent experienced neglect due to understaffing(in number and competency) such that not only did her initial pre-existing would deteriorate underDefendants’ care, but she developed additional pressure sores because there were neitherenough staff to reposition her every two (2) hours or they were unskilled at doing so (¶¶ 109, 116–119); and that Decedent suffered injuries and eventually died at their facility (¶ 126). It furtheralleges that Defendants knew Decedent’s health and safety would be at risk as an elderly if shewas not provided with necessary supervision, medical care and services (¶¶ 123–124); thatdespite this, Defendants routinely withheld care and services (¶¶ 44, 110, 112, 116–117, 120–121, 124, 254); and that as a result, Decedent developed severe deep pressure ulcers on her leftbuttock and both heels, among other injuries (¶¶ 112–113, 115–116).They further allege that on admission to Defendants’ facility, Defendants ignored Decedent’sneeds, and allowed her to remain flat on her back, thereby worsening the pressure ulcer on herbuttocks and developing new, additional pressure sores, leading to tissue death, such that sherequired surgery for the wound. (SAC ¶¶ 43, 109, 116–117, 119–122, 133–143, 152.) They allegethat Defendants consistently failed to properly evaluate Decedent’s clinical condition and pressureulcer risk factors; define and implement interventions consistent with her needs, individual goals,and recognized standards of practice; monitor and evaluate the impact of the interventions orrevise the interventions as appropriate as it related to Decedent. (Id. at ¶¶ 109–145.) They allegethat Defendants and their managing agents knew of their unlawful practices, yet failed to act,resulting in Decedent’s injuries. (Id. at ¶¶ 125, 135, 140, 142, 144, 148, 170, 172.) They furtherallege that, had there been sufficient staff to comply with applicable rules, laws, and regulationsand to provide care to Decedent as should have been specifically called for by Defendants’facility’s care plans, then Decedent would not have suffered painful injuries, including pressureulcers and death alleged herein; that Decedent would have received proper assistance so as toprevent the suffering of the painful injuries alleged herein; that Decedent would have receivedadequate supervision to protect her from health and safety hazards; and that as a direct result ofDefendants’ failure to comply with applicable rules, laws, and regulations, Decedent did notreceive proper care, which led to her injuries alleged in this case. (Id. at ¶¶ 118, 120–145.)Based on the above, the Court finds the SAC sufficiently alleges facts to state a cause of actionfor elder abuse based upon neglect. The Act defines “neglect” as the negligent failure of anyperson having the care and custody of an elder to exercise the degree of care that a reasonableperson in a like position would exercise. The SAC alleges not only that Decedent suffered fromsevere pressure sores, but that Defendants knew that Decedent was at risk for skin breakdownand pressure sores, yet they failed to provide the necessary care and supervision to prevent herinjuries and ultimate death. It further alleges that Defendants failed to develop and/or implementa comprehensive skin breakdown care plan, failed to assess Decedent’s limitations, and failed toprovide all necessary physical skin breakdown interventions. It alleges that Decedent developedpressure sores and suffered catastrophic injuries because Defendants failed to provide adequatesupervision and were understaffed.The SAC also sufficiently alleges recklessness or oppression, fraud, or malice by Defendants toconstitute a cause of action for elder abuse. It alleges that Defendants knew that Decedent’shealth and safety would be put at great risk if she was not provided with the necessary supervisionand services that were promised and required by law. (SAC ¶ 123.) Plaintiff alleges that not onlydid Defendants withhold such care and services from Decedent, but they failed to provide her withthe minimum care mandated by law despite knowing that it was substantially certain thatDecedent would suffer injury due to the failure to provide the care and services she needed. (Id.at ¶ 124.) It alleges that the ongoing and repeated nature of Defendants’ failure to provide suchservices and care demonstrates that they acted with a conscious disregard of the high probabilitythat Decedent would suffer injury because of their failure to provide the care and services sheneeded. (Id.) It further alleges that Defendants were aware that Decedent required more care andsupervision than that which they could or would provide at their facility due to insufficiency of staff,in both number and training. (Id. at ¶ 140.) But to increase their monetary intake, Defendantsretained Decedent as a resident, thereby causing her injury and death. (Id.)At this stage of the proceedings, the Court finds that these allegations are sufficient to establishnot only actionable “neglect” under the Act, but also recklessness on the part of Defendants.Accordingly, the Court overrules Defendants’ demurrer to the first cause of action.E. Negligence and Negligent Hiring, Supervision, and Retention (2nd and 3rd Causes ofAction)Defendants argue that the second and third causes of action for negligence and negligent hiring,supervision, and retention fail because Plaintiffs improperly lump Defendants under a singularumbrella and use the term “Mission Defendants” throughout the SAC, and all referencedmisconduct in the SAC occurred while Decedent was under the care of Co-Defendant Providenceof Southern California, LLC. These arguments have already been addressed and rejected above.Accordingly, the Court overrules Defendants’ demurrer to the second and third causes of action.F. Violation of Residents’ Rights (4th Cause of Action)Defendants argue that the fourth cause of action for violation of Residents’ Rights under Health& Safety Code § 1430(b) is insufficiently pled against them because the SAC contains no factsregarding the specific rights of Decedent that was violated by them. Again, they argue that allreferenced misconduct in the SAC occurred while Decedent was under the care of Co-DefendantProvidence of Southern California, LLC, which Plaintiffs allude to in the SAC but convolute bylumping all Defendants together under the term “Defendants.” As discussed above, this argumentis not persuasive.The SAC no longer lumps all Defendants together under the term “Defendants,” but includessufficient allegations regarding moving Defendants’ conduct in support of this cause of action (i.e.,pattern and practice of violating basic rights of residents). (See SAC ¶¶ 11–12, 113, 128, 149–150, 280–281, 285.) Accordingly, the Court overrules Defendants’ demurrer to the fourth causeof action.G. Wrongful Death (5th Cause of Action)Defendants finally argue that the fifth cause of action for wrongful death is uncertain and isinsufficiently pled because the SAC fails to define what the wrongful conduct is that is beingclaimed to have resulted in Decedent’s death. They argue that, because the facts regarding thewrongful conduct/injury do not naturally give rise to an inference of causation, Plaintiffs mustprovide “facts” that provide a causal connection between Decedent’s cause of death and thealleged wrongful acts or omissions of Defendants. Defendants argue that Plaintiffs failed to do so,and thus the claim fails. Again, this argument is without merit. Unlike their earlier complaint, theSAC includes sufficient allegations regarding moving Defendants’ conduct that supports thiscause of action (i.e., that because Defendants failed to provide adequate supervision and wereunderstaffed, Decedent’s pressure ulcers developed and/or worsened while under their care,resulting in her injuries and ultimate death). (See SAC ¶¶ 11–12, 109, 113–180.)Accordingly, the Court overrules Defendants’ demurrer to the fifth cause of action.2. Motion to StrikeDefendants concurrently seek to strike portions of the SAC seeking attorney’s fees and costs, aswell as exemplary and punitive damages on the grounds that Plaintiffs have failed to plead anycause of action for which attorney’s fees and costs and exemplary and punitive damages areavailable.In the SAC, Plaintiffs seek attorney’s fees and costs under Welf. & Inst. Code § 15657(a) for thefirst and second causes of action, and under Health & Safety Code § 1430(b) for the fourth causeof action. Because the elder abuse cause of action and violation of Resident’s Rights remainviable, the motion to strike the prayer for attorney’s fees and costs, sought under the Elder AbuseAct and Health & Safety Code § 1430(b) should be denied.Moreover, as discussed above, the SAC’s allegations are sufficient to support an elder abusecause of action. Such conduct is essentially equivalent to conduct that would support recovery ofpunitive damages. (Covenant Care, supra, 32 Cal.4th at 789.) Thus, the motion to strike prayerfor punitive damages is denied as Plaintiffs have alleged sufficient facts to state a claim for saiddamages.

Ruling

KRYSTAL RENEE CASTRO, ET AL. VS THOMAZ PHILLIP COUSSEAU, ET AL.

Case Number: 21STCV31342 Hearing Date: August 27, 2024 Dept: 29 Castro v. Cousseau 21STCV31342 Motion to be Relieved as Counsel, filed by Plaintiffs Counsel Albert Abkarian & Associates. Background On August 24, 2021, Krystal Renee Castro, Victor Andres Avila, Brisstelle Avila, and Viktor Amias Avila filed a complaint against Thomaz Phillip Cousseau, Nissan North America Inc., and Rebecca Diane Mullin (collectively Defendants) for negligence cause of action arising out of an automobile collision on July 18, 2020. On October 26, 2021, Defendants filed an answer. In June 2023, the Court granted the petition for approval of minors compromises in this case. An OSC re proof of deposit was set and continued several times; in the interim, it appears that counsel has been unable to communicate with the client (guardian ad litem). On June 20, 2024, Albert Abkarian & Associates (Counsel) filed a motion to be relieved as counsel for Plaintiff Krystal Renee Castro (Plaintiff). No opposition has been filed. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code of Civ. Proc., § 284(b).) An attorney is permitted to withdraw where conflicts between the attorney and client make it unreasonable to continue the representation. (See Cal. Rules of Prof. Conduct 3-700(C)(1).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.136(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 Counsel has filed the Notice, Declaration, and Order to be Relieved as Counsel. However, Counsel fails to include all future hearings, including the OSC re Proof of Deposit set for September 25, 2024, on both the Declaration and Order. Moreover, the Court has the following additional concerns: (1) a guardian ad litem cannot represent a minor without counsel, and granting the motion could leave the case in an uncertain state; and (2) it is unclear to the Court whether the settlement funds have been paid and, if so, whether they have been deposited into a blocked account as ordered. Accordingly, the motion is DENIED without prejudice. Conclusion The motion to be relieved as counsel is DENIED without prejudice. Moving counsel to give notice.

Ruling

SPEARS vs KHANCHUSTAMBHAM

Aug 27, 2024 |CVSW2207256

SPEARS VS MOTIONS TO COMPEL AND FORCVSW2207256KHANCHUSTAMBHAM MONETARY SANCTIONSTentative Ruling: GRANT all three motions. The request for admissions are deemed admittedand plaintiff shall produce verified responses to all outstanding discovery, without objection,within 30 days. GRANT $885 sanctions, payable within 30 days. CONTINUE TSC to December18, 2024.

Ruling

SANDRA TOLEDO vs AGUSTIN AGUILAR-CONTRERAS, et al

Aug 28, 2024 |24CV00692

24CV00692TOLEDO v. AGUILAR-CONTRERAS MOTION TO BE RELIEVED AS COUNSEL- UNOPPOSED The unopposed motion to be relieved as counsel filed by Christopher Goodroe is grantedas it complies with California Rules of Court, Rule, 3.1362.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

O'CAIN, JR. VS SHIELDS NURSING CENTER, INC.

Aug 23, 2024 |MSC22-00021

MSC22-00021CASE NAME: O'CAIN, JR. VS SHIELDS NURSING CENTER, INC.*HEARING ON MOTION FOR DISCOVERY TO COMPEL WILLIAM SHIELDS' RESPONSES TO OTIS L.OCAIN'S FORM INTERROGATORIES, SET ONEFILED BY: O'CAIN, OTIS L.*TENTATIVE RULING:*Plaintiff’s motion to compel Defendant to provide responses to requests for discovery is granted.Considering the Plaintiff’s declaration, the court orders sixty days to comply with this order.Defendant shall serve code-compliant, objection free, verified responses, along with responsivedocuments for the following: Defendant shall serve responses to Plaintiff’s Form Interrogatories –Set One, Special Interrogatories – Set One, and Requests for Production of Documents – Set One,.Defendant shall serve code-compliant, objection free, verified responses, along with responsivedocuments, no later than 60 days after service of this order.The court further orders monetary sanctions pursuant to Code of Civil Procedure S. 2031.31 0(h)against Defendant in the amount of $4,500 in total ($1,500 per above referenced motion) to be paidby Defendant - William Shields to Plaintiff. Otis O’Cain’s attorney of record within 30 days of entry ofthis order.

Ruling

ZHIWEI CHEN VS VERIZON WIRELESS SERVICES, LLC

Aug 26, 2024 |23AHCV01967

Case Number: 23AHCV01967 Hearing Date: August 26, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: August 26, 2024 TRIAL DATE: No date set. CASE: ZHIWEI CHEN vs VERIZON WIRELESS SERVICES, LLC CASE NO.: 23AHCV01967 MOTION TO RECUSE JUDGE MOVING PARTY: Plaintiff Zhiwei Chen RESPONDING PARTY: N/A SERVICE: Filed July 18, 2024 OPPOSITION: None filed. REPLY: None filed. RELIEF REQUESTED Plaintiff moves to recuse Hon. Joel L. Lofton from this case. BACKGROUND This is a personal injury action arising from a semi-truck-versus-automobile accident on June 16, 2023. The complaint alleges Defendant Komilov operated a semi-truck at an unsafe speed, and entered Plaintiffs lane unsafely, and as a result collided with Plaintiffs vehicle which caused significant and debilitating injuries to Plaintiff. TENTATIVE RULING Plaintiffs motion to recuse Hon. Joel L. Lofton from this case is DENIED. LEGAL STANDARD California Code of Civil Procedure Section 170.6 allows a party who timely files an affidavit of prejudice to disqualify a judge without any showing of cause. The affidavit of prejudice is not contestable and the disqualification of the judge is automatic. (Code Civ. Proc. §170.6(a)) However, only one such peremptory challenge is allowed per side. (Code Civ. Proc. § 170.6(a)(3).) Note a peremptory challenge under section 170.6 is not the same as a motion to disqualify a judge by a party or an attorney, i.e., a challenge for cause, under section 170.1. A section 170.6 challenge must be timely. (Grant v. Sup. Ct. (2001) 90 Cal.App.4th 518, 527.) The general rule is that disqualification of the judge is permitted any time prior to the commencement of trial. (People v. Sup. Ct. (1993) 4 Cal.4th 1164, 1171.) A judge . . . of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge . . . is prejudiced against a party or attorney or the interest of party or attorney appearing in the action or proceeding. (Code Civ. Proc., § 170.6, subd. (a)(1).) A party to . . . an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge . . . before whom the action or proceeding is pending, or to whom it is assigned, is prejudice against a party . . . or the interest of the party . . . so that the party . . . cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge . . . . (Code Civ. Proc., § 170.6, subd. (a)(2).) A judge must be disqualified if [a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) Code of Civil Procedure section 170.3(c)(1) provides that if a judge who should disqualify himself fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the grounds for disqualification. Copies of the statement shall be served on each party or his or her attorney who has appeared and shall be personally served on the judge alleged to be disqualified, or on his clerk, provided that the judge is present in the courthouse or in chambers. (Code Civ. Proc., § 170.3(c)(1).) When no answer is filed in response to a statement of disqualification, the facts set out in the statement are taken as true. (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424.) If the statement is untimely filed or on its face discloses no legal grounds for disqualification, the judge against whom it is filed may strike it within 10 days after filing or service, whichever is later. (Code Civ. Proc., §170.4(b)-(c).) Orders issued by a disqualified judge are void. (Hayward v. Superior Court (2016) 2 Cal.App.5th 10, 42.) DISCUSSION As a preliminary matter, there is no proof of service establishing that Plaintiff served the motion on Defendants. While the best practice is to file the Proof of Service with the moving papers, at a minimum it must be filed no later than five court days before the time appointed for the hearing. (Cal. R. Ct. 3.1300(c).) Given the August 26 hearing date, the Proof of Service was required to be filed by August 19, 2024. The Courts records do not show the filing of the Proof of Service as of the time this tentative ruling was prepared. Therefore, due to a failure to comply with Code of Civil Procedure section 1005, the motion is properly DENIED. After a further consideration of the merits, the Court finds Plaintiffs purported disqualification motion contains a series of fatal procedural and substantive defects, including: (1) filing a motion that is not personally served on the judge; (2) seeking disqualification based merely on speculation that the judge has somehow obtained benefits from the other party and that the judge is trying to protect Verizons alleged illegal behavior (which are untrue); and (3) failing to allege any facts constituting cognizable grounds for how the judge believes his [ ] recusal would further the interest of justice pursuant to Section 170.1(a)(6)(A)(i), or how any person might reasonably entertain a doubt that the judge would be impartial pursuant to Section 170.1(a)(6)(A)(iii). In his declaration in support of the motion to recuse, Plaintiff Chen declares that he found that the judge at the hearing on May 16, 2024: (1) failed to comply with Rule Cal. R. Ct. Canon 1-3 etc.; (2) supported obstruction of justice, perjury, or filing of a false document; and (3) displayed obvious bias towards Plaintiff. (Chen Decl. ¶¶ 1-3.) Plaintiff further states that Defendant Verizons behavior violated the criminal law, the judge failed to perform his obligations, and the judges behavior tacitly supported this violation. (Chen Decl.) Plaintiff states that he believes that he has reason to believe the judge obtained benefits from the other party and that he would not have a fair and impartial trial. (Chen Decl.) Plaintiff believes he cannot have a fair and impartial trial in this courtroom. Here, the Court finds the motion lacks merit. The burden of proof is on the party seeking disqualification. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.) Speculation, unsupported conclusions and inadmissible evidence cannot justify a finding of bias which must be clearly established. (See Gray v. City of Gustine (1990) 224 Cal.App.3d 621, 631; United Farm Workers of America, AFL-CIO v. Superior Court (1985) 170 Cal.App.3d 97.) Statutes authorizing disqualification must be applied with restraint. (McClenny v. Superior Court (1964) 60 Cal.2d 677, 680.) Plaintiff takes issue with Judge Loftons ruling on his first motion for recusal, filed May 21, 2024, which held the Court cannot grant the instant motion because the notice of motion is procedurally deficient. The notice of motion does not state the location of the hearing on the instant motion. (Cal. Rules of Court, Rule 3.1110(b)(1).) 6/24/24 Minute Order. Plaintiffs declaration states the judge is trying his best to protect the defendants illegal behavior. (Chen Decl.) Plaintiff has failed to explain or offer any authority suggesting how Judge Loftons consideration of a procedural deficiency in Plaintiffs May 21, 2024 recusal motion reflects bias. Plaintiff insists that the Tentative Rulings reflect bias. But rulings, even erroneous ones, are not a basis for disqualification. See Code Civ. Proc. § 170.2(b); Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d 704, 719; People v. Guerra (2006) 37 Cal.4th 1067, 1112.) None of Judge Loftons actions in the case suggest bias pursuant to Code of Civil Procedure section 170.1(a)(6)(A)(i)-(iii). Plaintiffs speculation is irrelevant. See United Farm Workers, supra, 170 Cal.App.3d at 104 (the litigants necessarily partisan views [do] not provide the applicable frame of reference.) A personal attack on a judge and criticism of his ruling do not necessarily bias the judge and disqualify him. See Ungar v. Sarafite (1964) 376 U.S. 575, 583. As it does not appear Defendant was provided with notice, the motion is denied. Even if the court were to rule on the merits of the motion, it would be denied. CONCLUSION Plaintiffs motion is DENIED. Court to provide notice. Dated: August 26, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org

Ruling

ANGELL vs RIVERSIDE MUNICIPAL AUDITORIUM

Aug 26, 2024 |CVRI2301494

MOTION FOR ORDER THAT PLAINTIFFPROVIDE SECURITY FOR COSTSANGELL VS RIVERSIDECVRI2301494 PURSUANT TO CCP SECTION 1030 BYMUNICIPAL AUDITORIUMCITY OF RIVERSIDE, LIVE NATIONWORLDWIDE, INC.Tentative Ruling:The Court grants Defendant’s motion for Plaintiff to post an undertaking in the amount of$19,590.00. Said undertaking shall be posted no later than 11/1/24, the date of the trial settingconference.Factual / Procedural ContextOn March 3, 2023, Plaintiff Aaron Michael Angell (“Plaintiff”) filed a Complaint againstDefendants Riverside Municipal Auditorium (“RMA”, Fox Performing Arts Center (“Fox”), LiveNation Worldwide, Inc., erroneously sued and served as Live Nation Entertainment (“LiveNation”), and City of Riverside (the “City”) (together “Defendants”) for general negligence andpremises liability. Plaintiff alleges that on February 22, 2022, he slipped and fell on a dangerouscondition at the property located at 3485 Mission Inn Avenue, Riverside, California (the “Property”)and was seriously injured (the “incident”). (Complaint, pp. 4, 5.) Defendants owned, operated,maintained, controlled, managed, etc. the Property; they were negligent in their ownership,operation, maintenance, control, and/or management of the Property; and Defendants’negligence caused the incident and Plaintiff's injuries. (Ibid.)On October 11, 2023, Live Nation filed an Answer to the Complaint. On November 8,2023, City filed an Answer to the Complaint.***Defendants City and Live Nation now move for an order requiring Plaintiff to post securityfor their expected costs in this action pursuant to C.C.P. § 1030. They argue that Plaintiff residesin Utah, and he has no evidence of how or why he fell, so he cannot support his claims againstDefendants. They argue that the City entered into a management agreement with Live Nation in2013, so it was not involved in the concert or the operation of RMA and cannot be liable for anyalleged dangerous condition. They also argue that Live Nation had a contract with a third partyfor porter and custodial services, so it also was not involved. They further argue that an ownercan only be liable for a dangerous condition on its property if it knew or should have known of thecondition, and Plaintiff has no evidence to show Defendants knew or should have known of thealleged water spill at the Property. Finally, Defendants argue that since there is a reasonablepossibility they will prevail on Plaintiff's claims, Plaintiff should be ordered to post security in theamount of $27,090.In opposition, Plaintiff argues that he was a California resident at the time of the incidentand when he filed the lawsuit, so C.C.P. § 1030 does not apply. He also argues that Defendantshave presented no evidence on which the court can find that Plaintiff has no reasonable possibilityof prevailing, so the motion should be denied.AnalysisI. C.C.P. § 1030 StandardPursuant to C.C.P. §1030, a defendant may apply to the court by noticed motion for anorder requiring the plaintiff to file an undertaking if the plaintiff resides out of the state to securean award of costs and attorney’s fees that might be awarded in the action. (C.C.P. § 1030(a); seealso Shannon v. Sims Service Center, Inc. (1985) 164 Cal.App.3d 907, 914.) The purpose of thestatute is to secure costs in light of the difficulty of trying to enforce a costs judgment against anonresident. (Yao v. Superior Court (2002) 104 Cal.App.4th 327, 331.) Further, section 1030“acts to prevent out-of-state residents from filing frivolous lawsuits against California residents.”(Ibid.)To obtain an undertaking under section 1030, the defendant must also show by affidavitor declaration a “reasonable possibility” that it will prevail at trial, and a detailed estimate of thecosts it is likely to incur. (C.C.P. § 1030(b).) The defendant is not required to show that there isno possibility that plaintiff can prevail at trial, only that it is reasonably possible that it will win.(Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.) “Reasonable possibility” isnot defined in the statute, or any of the reported cases. In another context, however, “reasonablepossibility” under Evidence Code §1042(d) is construed to require that a defendant’s showing“must rise above the level of sheer or unreasonable speculation, and reach at least the low plateauof reasonable possibility.” (People v. Tolliver (1976) 53 Cal.App.3d 1036, 1044.) The moving partyhas the burden of proof to show a reasonable possibility of prevailing. (Shannon, supra, 164 Cal.App. 3d at 914.)II. The Court finds that Plaintiff Should Be Required to Post an Undertaking in theAmount of $19,590 Pursuant to C.C.P. § 1030A. Plaintiff Resides Outside CaliforniaC.C.P. § 1030 (a) states: “When the plaintiff in an action or special proceeding resides outof the state, or is a foreign corporation, the defendant may at any time apply to the court by noticedmotion for an order requiring the plaintiff to file an undertaking to secure an award of costs andattorney's fees which may be awarded in the action or special proceeding.” Here, Defendantspresent evidence, in the form of Plaintiff's deposition testimony and discovery responses, thatPlaintiff resides in Utah. (Decl. of Henry C. Truszkowski [“Truszkowski Decl.”], Ex. A, p. 8:19-22,Ex. E.) Plaintiff argues that he lived in California at the time he filed the lawsuit, so § 1030 doesnot apply.Plaintiff does not provide any support for the contention the statute applies only at theinception of the complaint; indeed, the statute makes no reference at all as to when a plaintiffresides out of state. Further, Defendants present evidence that Plaintiff lived in Utah in May 2022,well before he filed the present Complaint. (Supp. Decl. of Henry C. Truszkowski, Ex. F, FROGresponse no. 2.5.) Thus, Defendants have established the first prong of § 1030 – that Plaintifflives out of state.B. The Court finds there is a Reasonable Possibility Defendants Will PrevailTo require an undertaking pursuant to C.C.P. § 1030, a defendant must show that thereis a reasonable possibility it will prevail at trial. (C.C.P. § 1030 (b); Baltayan, supra, 90 Cal.App.4that 1432; Tolliver, supra, 53 Cal.App.3d at 1044.)Here, Plaintiff asserts causes of action for negligence and premises liability. “The elementsof a cause of action for premises liability are the same as those for negligence: duty, breach,causation, and damages.” (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664,671, quoting Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) To prevail on a claimfor premises liability, a plaintiff must prove that the defendant owned, leased, occupied, orcontrolled the property; defendant was negligent in the use or maintenance of the property;plaintiff was harmed; and defendant’s negligence was a substantial factor in causing plaintiff’sharm. (1-1000 CACI 1000; See also, Annocki v. Peterson Enterprises, LLC (2014) 232Cal.App.4th 32, 37.)“It is well settled that landowners owe a duty to tenants and invitees to maintain theirpremises in a reasonably safe condition.” (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1015[citation omitted].) “[A] landowner must exercise care by making reasonable inspections of thepremises to ascertain whether any dangerous conditions exist on the property … If a dangerouscondition does exist, the landowner must, use the care required of a reasonably prudent [person]acting under the same circ*mstances. … Failure to do so constitutes a breach of duty of care.”(Jones v. Awad (2019) 39 Cal.App.5th 1200, 1208 [internal quotations and citations omitted].)However, landowners are not insurers of the safety. (Ortega v. Kmart Corp. (2001) 26 Cal.4th1200, 1205.) Thus, liability cannot be imposed unless there is evidence that the owner had (1)actual knowledge of the dangerous condition or (2) have been able to discover the dangerouscondition by the exercise of ordinary care (constructive knowledge), which if known to him, wouldrealize the condition posed an unreasonable risk to the customers on premises. (Id. at 1206.)In the present case, Defendants present evidence that Plaintiff did not see the waterbefore he fell; he does not know how big the spot of water was; he doesn’t know what caused thewater to be on the ground; and Plaintiff's only evidence that Defendants had notice of the wateris his allegation that there were security guards nearby. (Truszkowski Decl., Ex. A, pp. 60:6-61:19,62:16-18; 81:11-23; Ex. D, response to SPROG nos. 22-23.) Based on the evidence presented,the Court finds that Defendants have met their burden of showing there is a reasonable possibilitythat they will prevail in this action.C. Plaintiff is Ordered to File an Undertaking in the Amount of $19,590Defendants present evidence that they expect to incur costs totaling $27,090 in defendingthis action. (Truszkowski Decl. at ¶¶ 9-10.) Of this amount, Defendants state they will spend$7,500 to retain defense experts. (Truszkowski Decl. at ¶ 9.d.) However, expert witness fees arenot recoverable unless ordered by the court. (See, C.C.P. § 1033.5 (b) [“[t]he following items arenot allowable as costs, except when expressly authorized by law: (1) Fees of experts not orderedby the court …”].) Therefore, while the Court finds that Plaintiff should be required to post anundertaking for Defendants’ costs, the Court finds Defendants’ expert witness fees shall not beincluded in that amount. Accordingly, Plaintiff should be ordered to post an undertaking in theamount of $19,590.

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