This case was last updated from Los Angeles County Superior Courts on 03/09/2022 at 16:24:58 (UTC).

ASHLEY HEARD, ET AL. VS CITY OF LONG BEACH, ET AL.

Case Summary

On 10/03/2019 ASHLEY HEARD filed a Personal Injury - Other Personal Injury lawsuit against CITY OF LONG BEACH. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE, EDWARD B. MORETON, EDWARD B. MORETON, JR., WILLIAM A. CROWFOOT, DAVID J. COWAN and SERENA R. MURILLO. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******5469

  • Filing Date:

    10/03/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

EDWARD B. MORETON

EDWARD B. MORETON, JR.

WILLIAM A. CROWFOOT

DAVID J. COWAN

SERENA R. MURILLO

 

Party Details

Plaintiffs

HEARD ASHLEY

HEARD JASON

Defendants and Cross Plaintiffs

NEUTRON HOLDINGS INC. DBA LIME

CITY OF LONG BEACH

URBAN COMMONS INTERNATIONAL DBA THE QUEEN MARY

URBAN COMMONS INTERNATIONAL DOE 1 DBA

URBAN COMMONS INTERNATIONAL DOE 1 DBA THE QUEEN MARY

URBAN COMMONS QUEENSWAY LLC DOE 1 DBA THE QUEEN MARY

Cross Defendants and Defendants

CITY OF LONG BEACH

URBAN COMMONS INTERNATIONAL DOE 1 DBA THE QUEEN MARY

URBAN COMMONS QUEENSWAY LLC DOE 1 DBA THE QUEEN MARY

Attorney/Law Firm Details

Plaintiff Attorneys

DELUCA PHILIP P.

DELUCA PHILIP PAUL ESQ.

Defendant and Cross Defendant Attorneys

GARCIA RICHARD

TROTTER CHELSEA N.

CUSTUREA ANDREEA VIRGINIA

ZAMCZYK BRADLEY MARC

BEHAR JEFFREY

CUSTUREA ANDREEA VIRGINIA ESQ.

WARD KELLY ANN ESQ.

BEHAR JEFFREY STEVEN ESQ.

Defendant and Cross Plaintiff Attorney

WARD KELLY ANN ESQ.

 

Court Documents

Notice of Ruling

2/17/2022: Notice of Ruling

Minute Order - MINUTE ORDER (COURT ORDER RE: IDC CONTINUANCE)

2/28/2022: Minute Order - MINUTE ORDER (COURT ORDER RE: IDC CONTINUANCE)

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

3/1/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

3/1/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Motion for Leave to File a Cross-Complaint

3/2/2022: Motion for Leave to File a Cross-Complaint

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 03/03/2022

3/3/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 03/03/2022

Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

3/3/2022: Minute Order - MINUTE ORDER (NUNC PRO TUNC ORDER)

Minute Order - MINUTE ORDER (HEARING ON DEFENDANT AND CROSS-COMPLAINANT NEUTRON HOLDINGS, ...)

2/4/2022: Minute Order - MINUTE ORDER (HEARING ON DEFENDANT AND CROSS-COMPLAINANT NEUTRON HOLDINGS, ...)

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

2/14/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Informal Discovery Conference Form for Personal Injury Courts

1/28/2022: Informal Discovery Conference Form for Personal Injury Courts

Informal Discovery Conference Form for Personal Injury Courts

1/20/2022: Informal Discovery Conference Form for Personal Injury Courts

Motion to Continue Trial Date

1/11/2022: Motion to Continue Trial Date

Request for Judicial Notice

12/10/2021: Request for Judicial Notice

Separate Statement

12/10/2021: Separate Statement

Motion for Summary Judgment

12/10/2021: Motion for Summary Judgment

Declaration - DECLARATION DECLARATION OF ANTHONY MALDONADO

12/10/2021: Declaration - DECLARATION DECLARATION OF ANTHONY MALDONADO

Proof of Service (not Summons and Complaint)

12/10/2021: Proof of Service (not Summons and Complaint)

Brief - BRIEF DEFENDANT AND CROSS-COMPLAINANT NEUTRON HOLDINGS, INC. DBA LIME'S COMPENDIUM

12/10/2021: Brief - BRIEF DEFENDANT AND CROSS-COMPLAINANT NEUTRON HOLDINGS, INC. DBA LIME'S COMPENDIUM

64 More Documents Available

 

Docket Entries

  • 04/13/2023
  • Hearing04/13/2023 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 03/30/2023
  • Hearing03/30/2023 at 10:00 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/10/2023
  • Hearing01/10/2023 at 1:30 PM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 09/29/2022
  • Hearing09/29/2022 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 05/10/2022
  • Hearing05/10/2022 at 1:30 PM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Leave to File a Cross-Complaint

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  • 03/23/2022
  • Hearing03/23/2022 at 11:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)

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  • 03/03/2022
  • Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Nunc Pro Tunc Order

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  • 03/03/2022
  • DocketCertificate of Mailing for ((Nunc Pro Tunc Order) of 03/03/2022); Filed by Clerk

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  • 03/03/2022
  • DocketMinute Order ( (Nunc Pro Tunc Order)); Filed by Clerk

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  • 03/02/2022
  • DocketMotion for Leave to File a Cross-Complaint; Filed by City of Long Beach (Defendant); Urban Commons Queensway, LLC (Doe 1) (Defendant)

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77 More Docket Entries
  • 11/13/2019
  • DocketProof of Service by Substituted Service; Filed by Ashley Heard (Plaintiff); Jason Heard (Plaintiff)

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  • 11/04/2019
  • DocketPI General Order; Filed by Clerk

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  • 11/04/2019
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 10/23/2019
  • DocketProof of Personal Service; Filed by Ashley Heard (Plaintiff); Jason Heard (Plaintiff)

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  • 10/17/2019
  • DocketNotice of Posting of Jury Fees; Filed by Ashley Heard (Plaintiff); Jason Heard (Plaintiff)

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  • 10/11/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Ashley Heard (Plaintiff); Jason Heard (Plaintiff)

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  • 10/03/2019
  • DocketCivil Case Cover Sheet; Filed by Ashley Heard (Plaintiff); Jason Heard (Plaintiff)

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  • 10/03/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 10/03/2019
  • DocketSummons (on Complaint); Filed by Ashley Heard (Plaintiff); Jason Heard (Plaintiff)

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  • 10/03/2019
  • DocketComplaint; Filed by Ashley Heard (Plaintiff); Jason Heard (Plaintiff)

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Tentative Rulings

Case Number: *******5469    Hearing Date: February 13, 2020    Dept: 27

[TENTATIVE] ORDER RE: MOTION TO COMPEL ARBITRATION

On October 3, 2019, plaintiffs Ashley Heard (“Ashley”) and Jason Heard (“Jason”) filed this action against defendants City of Long Beach and Neutron Holdings, Inc. dba Lime (“Lime”). Lime offers electric scooter rentals through a smartphone application. Ashley alleges that on July 3, 2019, she was operating a Lime electric scooter when she suddenly hit a large and deep pothole causing her to fall from the scooter and sustain severe injuries. Lime moves to compel arbitration.

The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. (Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1363.) A contract is not formed without mutual assent. (Civ. Code, ;; 1550, 1565.) “Contracts formed on the Internet come primarily in two flavors: ‘clickwrap’ (or ‘click-through’) agreements, in which website users are required to click on an “I agree” box after being presented with a list of terms and conditions of use; and ‘browsewrap’ agreements, where a website’s terms and conditions of use are generally posted on the website via a hyperlink at the bottom of the screen.” (Nguyen v. Barnes & Noble, Inc. (9th Cir. 2014) 763 F.3d 1171, 1176.) Registering for and using an account via a smartphone application can in certain circumstances constitute an agreement to arbitration. (Meyer v. Uber Technologies, Inc. (2nd Cir. 2017) 868 F.3d 66, 80 [applying California law].)

Lime submits the declaration of Kevin J. Bajurin, a Lime legal data specialist, to describe the process a customer must go through to rent and use a Lime scooter. He explains a user must register with the Lime app, which includes pressing a “NEXT” button. Under that button is that statement, “By signing up, I confirm that I am at least 18 years old, and that I have read and agreed to Lime’s User Agreement & Terms of Service.” Bajurin attaches a copy of the User Agreement and Terms of Service he states was in effect and which contained an arbitration agreement. Throughout his declaration, Bajurin refers to a plaintiff named Liam O’Connell. Bajurin states he reviewed Lime’s records pertaining to that plaintiff and the arbitration agreement in effect on October 5, 2018 when O’Connell registered for the Lime app. Bajurin does not mention Ashley, Ashley’s records, if and when Ashley registered for a Lime account, or what arbitration agreement was in effect when Ashley registered (assuming she had).

Lime has not satisfied its burden of proving that Ashley agreed to arbitrate. First, nothing in the Bajurin declaration refers to Ashley. Second, Ashley does not allege that she rented or reserved the scooter, only that she was operating it, which allows the possibility that someone else registered with the Lime app, rented the scooter, and then handed it over for her use. There is no evidence that Ashley herself registered for an account and agreed to the User Agreement and Terms of Service. Third, even if at some point Ashley had registered via the Lime application, Lime presents no evidence of the arbitration agreement in effect on the date she registered. The Court cannot infer the existence of an arbitration agreement between Ashley and Lime merely from the fact that Ashley was operating a Lime scooter, or infer that Ashley consented to an arbitration agreement that contained the same terms as the agreement Bjurin states was in effect on October 5, 2018. (Adajar v. RWR Homes, Inc. (2008) 160 Cal.App.4th 563, 570 [court cannot infer existence or terms of arbitration agreement based on sample arbitration agreement].)

In its reply papers, Lime attaches an email in which Plaintiffs’ counsel lists Ashley’s email address and phone number and states “this information shows Ms. Heard’s rental of a Lime Scooter.” Assuming this email is sufficient to prove that at some point Ashley registered with the Lime application, it does not establish the date when she registered, whether an arbitration agreement was in effect when she registered, or the terms of any such arbitration agreement. (Ibid.)

In addition, Lime does not discuss any grounds for arbitrating Jason’s claim for loss of consortium.

As the party moving to compel arbitration, Lime has the burden to show that Plaintiffs consented to arbitrate. Lime did not satisfy that burden. Therefore, Lime’s Motion to compel arbitration is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.


Case Number: *******5469    Hearing Date: March 16, 2021    Dept: 29

Ashley Heard et al. v. City of Long Beach, et al.

Motion to Appear at IME filed by Defendant/Cross-Complainant

Plaintiff is ordered to appear for the IME but may appear remotely. 

Defendant’s Motion is DENIED. 

Plaintiff is ordered to give notice. 

I. Legal Standard 

A court order is required to obtain a party’s mental examination.  (Code Civ. Proc. ; 2032.310(a).)  Such an order may be made only after notice and hearing, and for “good cause shown.”  (Code Civ. Proc., ;; 2032.310(c), 2032.320(a).) 

The motion must state the time, place, identity and specialty of the examiner, and the “manner, conditions, scope and nature of the examination.”  (Code Civ. Proc., ; 2032.310(b).)  “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”  (Code Civ. Proc., ; 2032.320(d).)  “The court is to describe ;in detail ;who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed.  The way to describe these ‘diagnostic tests and procedures’—fully ;and ;in detail—is to list them by name.”  (Carpenter v. Superior Court ;(2006) 141 Cal.App.4th 249, 260.) 

The moving party must support their motion with a meet and confer declaration.  (Code Civ. Proc., ; 2032.310(b).)  A meet and confer declaration must state facts “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” ; (Code Civ. Proc., ; 2016.040.) 

The examination will be limited to whatever condition is “in controversy” in the action. ; (Code Civ. Proc., ; 2032.020(a).)  This means that the specific injury or subject of the litigation must be directly invoked by the examination.  (See ;Roberts v. Superior Court ;(1973) 9 Cal.3d 330, 337.)  By alleging a causal link between the emotional distress and the defendant's conduct, a plaintiff “implicitly claims it was not caused by a preexisting mental condition, thereby raising the question of alternative sources for the distress.”  (Vinson v. Superior Court ;(1987) 43 Cal.3d 833, 840.)  However, a mental examination is only appropriate where the plaintiff alleges continuing emotional distress.  (Doyle v. Sup. Ct. (Caldwell) ;(1996) 50 Cal.App.4th ;1878, 1886-1887.)  “While a plaintiff may place his mental state in controversy by a general allegation of severe emotional distress, the opposing party may not require him to undergo psychiatric testing solely on the basis of speculation that something of interest may surface.”  (Vinson, ;supra, 43 Cal.3d at 840.) 

II. Discussion 

The Court notes that Defendant met and conferred in good faith prior to filing the instant Motion.  (See Lascola Decl., ¶ 6, Exh. C.)   

Here, the parties do not dispute whether Plaintiff is required to submit to an IME for a psychiatric evaluation.  (Lascola Decl., ¶ 5; Pl. Opp. p. 3.)  The dispute between the parties is whether she is required to appear in-person or can appear remotely.  (Def. Mot. p. 1.) 

Defendant contends that good cause exist for an in-person IME to determine and evaluate the existence and severity of Plaintiff’s claims.  (Def. Mot. p. 2.)  Defendant further contends that it is entitled to discover the level of Plaintiff’s cognitive function prior to the incident, the existence of any pre-existing psychiatric condition, and the nature and extent of Plaintiff’s current and future alleged mental and emotional injuries.  (Id.)  Defendant explains that the IME will consist of a psychiatric interview and tests that will measure Plaintiff’s cognitive function.  (Id. at p. 3-4.)  Defendant contends that its expert will be allowed only one opportunity to conduct the IME, so it is imperative that the examination go forward.  (Id. at p. 4.)  Defendant contends that if it is not able to conduct the IME in-person it will be severely prejudiced.  (Id.

Here, Plaintiff has agreed to submit to an IME and has agreed to the scope of the same.  Defendants have not provided facts to the Court that suggest that Dr. Manuel Saint Martin will face hurdles or complications if he conducts the IME remotely.  Defendant also has not pointed the Court to any authority suggesting that Plaintiff is required to appear in-person to the IME.  Here, Plaintiff has provided facts to suggest that if she were ordered to appear at an in-person IME, she runs the risk of contracting COVID-19 and putting her son at risk for severe illness and/or serious complications because of his diabetes.  Plaintiff has shown that there is good cause to deny Plaintiff’s motion to an in-person IME.  Thus, Plaintiff is ordered to appear for the IME but may appear remotely. 

For the foregoing reasons, Defendant’s Motion is DENIED.  

III. Conclusion 

Plaintiff is ordered to appear for the IME but may appear remotely. 

Defendant’s Motion is DENIED

Plaintiff is ordered to give notice.  


Case Number: *******5469 Hearing Date: February 4, 2022 Dept: 29

Legal Standard

Irrespective of whether it is contested, a party seeking a continuance of the trial date must do so upon noticed motion or ex parte application. (Cal. Rules of Court, Rule 3.1332(b).)

Although disfavored, the trial date may be continued for “good cause,” which includes (without limitation): (1) unavailability of trial counsel or witnesses due to “death, illness, or other excusable circumstances”; (2) the addition of a new party depriving the new party (or other parties) from conducting discovery and preparing for trial; (3) “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”; or (4) “[a] significant, unanticipated change in the status of the case” preventing it from being ready for trial. (Id., Rule 3.1332(c).)

Other relevant considerations may include: “(1) The proximity of the trial date; [ ] (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; [ ] (3) The length of the continuance requested; [ ] (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; [ ] (5) The prejudice that parties or witnesses will suffer as a result of the continuance; [ ] (6) 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; [ ] (7) The court's calendar and the impact of granting a continuance on other pending trials; [ ] (8) Whether trial counsel is engaged in another trial; [ ] (9) Whether all parties have stipulated to a continuance; [ ] (10) 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 [ ] (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Id., Rule 3.1332(d).)

Discussion

Defendant Lime moves to continue the trial date and related dates, arguing that the last day for a hearing on a motion for summary judgment is February 25, 2022, due to the trial date of March 29, 2022, but when Defendant went to schedule a hearing on its motion for summary judgment, the earliest available date was January 10, 2023. Further, there are some open discovery issues between Plaintiffs and Lime that need to be resolved, and which are likely to require the parties to schedule an Informal Discovery Conference, and, perhaps, motions to compel further responses. Moreover, this matter is stayed as to Defendant Urban Commons Queensway, LLC pursuant to its bankruptcy filing. Additionally, the parties have stipulated to a continuance of the trial date to February 10, 2023.

The Court finds there is good cause to continue trial. The Court notes that although there has been a previous continuance, granting the continuance will allow Defendant Lime’s motion for summary judgment to be heard, and Plaintiffs to engage in discovery, as it has not been completed. Further, the parties have stipulated to a trial continuance. Thus, trial is continued to February 10, 2023.

Conclusion

Accordingly, Defendant’s motion to continue trial is GRANTED. Trial is continued to April 13, 2023 at 8:30 a.m. Final Status Conference is continued to March 30, 2023 at 10:00 a.m. All motion and discovery cut off dates to correlate with new trial date. Moving party to give notice.


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