This case was last updated from Los Angeles County Superior Courts on 10/17/2021 at 05:01:27 (UTC).

CARLOS MENDEZ VS SCOTT EWASKO

Case Summary

On 05/05/2021 CARLOS MENDEZ filed a Personal Injury - Other Personal Injury lawsuit against SCOTT EWASKO. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7001

  • Filing Date:

    05/05/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

SERENA R. MURILLO

 

Party Details

Cross Defendant and Plaintiff

MENDEZ CARLOS

Cross Plaintiff and Defendant

EWASKO SCOTT

Attorney/Law Firm Details

Cross Defendant and Plaintiff Attorney

PETERSON JARED

Cross Plaintiff and Defendant Attorney

SKLAN JEFFREY F.

 

Court Documents

Proof of Service (not Summons and Complaint)

10/14/2021: Proof of Service (not Summons and Complaint)

Stipulation - No Order - STIPULATION - NO ORDER STIPULATION TO FILE AMENDED CROSS-COMPLAINT AND TAKE CURRENT DEMURRER OFF CALENDAR

10/4/2021: Stipulation - No Order - STIPULATION - NO ORDER STIPULATION TO FILE AMENDED CROSS-COMPLAINT AND TAKE CURRENT DEMURRER OFF CALENDAR

Demurrer - without Motion to Strike

9/20/2021: Demurrer - without Motion to Strike

Notice and Acknowledgment of Receipt

8/20/2021: Notice and Acknowledgment of Receipt

Cross-Complaint

8/9/2021: Cross-Complaint

Answer

8/9/2021: Answer

Summons - SUMMONS CROSS-COMPLAINT

8/11/2021: Summons - SUMMONS CROSS-COMPLAINT

Notice of Ruling - NOTICE OF RULING ON DEFENDANT'S DEMURRER AND MOTION TO STRIKE

7/29/2021: Notice of Ruling - NOTICE OF RULING ON DEFENDANT'S DEMURRER AND MOTION TO STRIKE

Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE MOTION TO STRIKE ALLEGATIONS OF E...)

7/27/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO STRIKE MOTION TO STRIKE ALLEGATIONS OF E...)

Opposition - OPPOSITION OPPOSITION TO DEMURRER AND MOTION TO STRIKE

7/14/2021: Opposition - OPPOSITION OPPOSITION TO DEMURRER AND MOTION TO STRIKE

Request for Judicial Notice

6/10/2021: Request for Judicial Notice

Demurrer - with Motion to Strike (CCP 430.10)

6/10/2021: Demurrer - with Motion to Strike (CCP 430.10)

Motion to Strike (not initial pleading)

6/10/2021: Motion to Strike (not initial pleading)

Declaration - DECLARATION DECLARATION OF JEFFREY F. SKLAN RE COMPLIANCE AS TO MEET AND CONFER REQUIREMENTS C.C.P. 430.41

6/10/2021: Declaration - DECLARATION DECLARATION OF JEFFREY F. SKLAN RE COMPLIANCE AS TO MEET AND CONFER REQUIREMENTS C.C.P. 430.41

Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES {\PAR}

5/25/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR [PI GENERAL ORDER], STANDING ORDER RE PI PROCEDURES AND HEARING DATES {\PAR}

PI General Order

5/25/2021: PI General Order

Notice and Acknowledgment of Receipt

5/10/2021: Notice and Acknowledgment of Receipt

Civil Case Cover Sheet

5/5/2021: Civil Case Cover Sheet

10 More Documents Available

 

Docket Entries

  • 05/01/2024
  • Hearing05/01/2024 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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  • 11/02/2022
  • Hearing11/02/2022 at 08:30 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 10/19/2022
  • Hearing10/19/2022 at 10:00 AM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/02/2021
  • Hearing12/02/2021 at 1:30 PM in Department 29 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Demurrer - without Motion to Strike

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  • 10/14/2021
  • DocketProof of Service (not Summons and Complaint); Filed by Scott Ewasko (Cross-Complainant)

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  • 10/04/2021
  • DocketStipulation - No Order (Stipulation to File Amended Cross-complaint and Take Current Demurrer Off Calendar); Filed by Scott Ewasko (Defendant)

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  • 09/20/2021
  • DocketDemurrer - without Motion to Strike (TO DEFENDANT SCOTT EWASKO?S CROSSCOMPLAINT;); Filed by Carlos Mendez (Cross-Defendant)

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  • 08/20/2021
  • DocketNotice and Acknowledgment of Receipt; Filed by Scott Ewasko (Cross-Complainant)

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  • 08/11/2021
  • DocketSummons (Cross-Complaint); Filed by Scott Ewasko (Defendant)

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  • 08/09/2021
  • DocketCross-Complaint; Filed by Scott Ewasko (Defendant)

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7 More Docket Entries
  • 06/10/2021
  • DocketDeclaration (DECLARATION OF JEFFREY F. SKLAN RE COMPLIANCE AS TO MEET AND CONFER REQUIREMENTS C.C.P. 430.41); Filed by Scott Ewasko (Defendant)

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  • 06/10/2021
  • DocketRequest for Judicial Notice; Filed by Scott Ewasko (Defendant)

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  • 05/25/2021
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates {\par}); Filed by Clerk

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  • 05/25/2021
  • DocketPI General Order; Filed by Clerk

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  • 05/10/2021
  • DocketNotice and Acknowledgment of Receipt; Filed by Carlos Mendez (Plaintiff)

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  • 05/05/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 05/05/2021
  • DocketSummons (on Complaint); Filed by Carlos Mendez (Plaintiff)

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  • 05/05/2021
  • DocketCivil Case Cover Sheet; Filed by Carlos Mendez (Plaintiff)

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  • 05/05/2021
  • DocketCivil Case Cover Sheet; Filed by Carlos Mendez (Plaintiff)

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  • 05/05/2021
  • DocketComplaint; Filed by Carlos Mendez (Plaintiff)

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Tentative Rulings

b'

Case Number: 21STCV17001\t\t\t Hearing Date: July 27, 2021 Dept: 29

TENTATIVE

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Defendant Scott Ewasko’s Demurrer to Complaint is OVERRULED.

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Defendant’s Motion to Strike is DENIED.

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Legal\r\nStandard

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Demurrer

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A demurrer for sufficiency tests whether the\r\ncomplaint states a cause of action. (Hahn\r\nv. Mirda (2007) 147 Cal.App.4th 740, 747.) \r\nWhen considering demurrers, courts read the allegations liberally and in\r\ncontext. (Taylor v. City of Los\r\nAngeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be\r\napparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004)\r\n116 Cal.App.4th 968, 994.) “A demurrer\r\ntests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects\r\nappear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984)\r\n153 Cal.App.3d 902, 905.) “The only\r\nissue involved in a demurrer hearing is whether the complaint, as it stands,\r\nunconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

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Before filing a demurrer, the\r\ndemurring party is required to meet and confer with the party who filed the\r\npleading demurred to for the purposes of determining whether an agreement can\r\nbe reached through a filing of an amended pleading that would resolve the\r\nobjections to be raised in the demurrer. \r\n(Code of Civ. Proc. § 430.41.)

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Motion to Strike

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Any party, within the time allowed to respond to a pleading may\r\nserve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435(b)(1); Cal. Rules\r\nof Court, rule 3.1322(b).) The court\r\nmay, upon a motion or at any time in its discretion and upon terms it deems\r\nproper: (1) strike out any irrelevant, false, or improper matter inserted in\r\nany pleading; or (2) strike out all or any part of any pleading not drawn or\r\nfiled in conformity with the laws of California, a court rule, or an order of\r\nthe court. (Code Civ. Proc. §\r\n436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a\r\npleading which is not essential to the claim is surplusage; probative facts are\r\nsurplusage and may be stricken out or disregarded”].)

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CCP section 435.5 requires that, before\r\nfiling a motion to strike, the moving party shall meet and confer¿in person or\r\nby telephone¿with the party who filed the pleading that is subject of the\r\nmotion for the purpose of determining whether an agreement can be reached that\r\nwould resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 435.5.)

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Discussion

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Request for\r\nJudicial Notice

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Defendant requests judicial notice of (1) selected pages of\r\nPlaintiff’s November 5, 2020 preliminary hearing testimony in Case number\r\nYA101204-01 and (2) selected pages of Plaintiff’s February 26, 2020 sworn\r\nstatement taken prior to the filing of this action. Defendant’s request is denied.

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Defendant asserts these documents are judicially noticeable as\r\ncourt records. While court records are\r\njudicially noticeable pursuant to Evidence Code section 452(d), Defendant has\r\nfailed to show that these testimonies are actually part of any court\r\nrecords. That testimony was taken in\r\nlitigating or investigating a case does not mean that the testimony is part of\r\nthe court’s records. In fact, defense\r\ncounsel discloses that Plaintiff’s February 26, 2020 sworn statement was taken\r\nat his office. There are no indications\r\nthe testimonies were ever submitted to the court or incorporated as part of the\r\nCourt’s records for the testimonies to be considered court records.

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Even if Defendant had shown that the testimonies are judicially\r\nnoticeable as court records, the Court notes that it may only take judicial\r\nnotice of the existence of the testimonies. \r\nThe Court may not take judicial notice of the truth of its contents,\r\nmeaning the Court may not take judicial notice of the truth of any statements\r\nPlaintiff made during the testimonies. (Herrera v. Deutsche Bank National Trust Co.\r\n(2011) 196 Cal.App.4th 1366, 1375; Lockley\r\nv. Law Office of Contrell, Green, Pekich, Cruz & McCort (2001) 91\r\nCal.App.4th 875, 885.)

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Defendant argues that even if the sworn statement is rejected as a\r\ncourt record, it still bears sufficient reliability. This is not a valid ground to take judicial\r\nnotice of the sworn statement.

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The Court also notes that in seeking judicial notice of\r\nPlaintiff’s preliminary hearing testimony and Plaintiff’s sworn statement,\r\nDefendant is essentially turning the demurrer into an evidentiary hearing. A demurrer may not be turned into an evidentiary\r\nhearing as the purpose of a demurrer is to test the legal sufficiency of the\r\ncomplaint. (Richtek USA, Inc. v. uPI Semiconductor Corporation (2015) 242\r\nCal.App.4th 651, 660.) Thus, even if\r\nthere were valid grounds to take judicial notice of Plaintiff’s preliminary\r\nhearing testimony and Plaintiff’s sworn statement, the Court finds it would be\r\nimproper under the circumstances to take judicial notice of the testimony and\r\nsworn statement for the purposes of Defendant’s demurrer. Rather, Defendant’s reliance on Plaintiff’s\r\ntestimony and sworn statement to assert self-defense would be a more proper\r\nsubject for summary judgment.

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Demurrer

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Defendant demurs to the assault, battery, and intentional\r\ninfliction of emotional distress causes of action asserted in Plaintiff’s\r\ncomplaint. Defendant argues that\r\nPlaintiff is not entitled to relief as to any of these claims because Defendant\r\ncan avail himself of the affirmative defense of self-defense on the face of\r\nPlaintiff’s pleading and judicially noticed facts.

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In order to sustain a demurrer upon an\r\naffirmative defense, the affirmative defense must clearly appear on the face of\r\nthe complaint. (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631,\r\n635.) “A demurrer based on an\r\naffirmative defense cannot properly be sustained where the action might be barred by the defense, but is\r\nnot necessarily barred.” (Id.)

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Here, Defendant relies on his request\r\nfor judicial notice to support his argument that self-defense bars Plaintiff’s\r\nclaims for relief. As Defendant’s\r\nrequest for judicial notice is denied, Defendant’s argument lacks support. The Court notes that even if Defendant’s\r\nrequest for judicial notice was granted, Plaintiff’s statements are\r\ninsufficient to show that self-defense would necessarily bar Plaintiff’s\r\nclaims. A review of the allegations in\r\nthe complaint also does not reveal a basis for finding self-defense as a bar to\r\nPlaintiff’s claims. The demurrer thus\r\ncannot be sustained on grounds that the affirmative defense of self-defense\r\nbars Plaintiff’s claims.

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Defendant also argues that Plaintiff\r\ncannot maintain his IIED claim because Defendant’s conduct of defending himself\r\nis objectively reasonable and the record at the preliminary hearing shows that\r\nPlaintiff’s injuries were not caused by Defendant but by his own instigation of\r\nthe chain of events that led to the scuffle. \r\nAgain, Defendant’s arguments are unsupported as his request for judicial\r\nnotice has been denied. As noted, even\r\nif Defendant’s request was granted, Plaintiff’s statements are insufficient to\r\nshow Defendant was acting in self-defense. \r\nDefendant has thus failed to demonstrate that Plaintiff’s IIED claim\r\nfails at this stage of the action.

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Accordingly, the demurrer to complaint\r\nis overruled.

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Motion to\r\nStrike

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Defendant moves to strike paragraphs 21, 27, 33, and prayer\r\nrequest #3—i.e., allegations pertaining to and the prayer for punitive damages.

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California Civil Code section 3294 authorizes the recovery of\r\npunitive damages in non-contract cases where “the defendant has been guilty of\r\noppression, fraud, or malice . . . .” \r\n(Civ. Code § 3294(a).) “‘Malice’\r\nmeans conduct which is intended by the defendant to cause injury to the\r\nplaintiff or despicable conduct which is carried on by the defendant with a\r\nwillful and conscious disregard of the rights or safety of others.” (Id.\r\n§ 3294(c)(1).) “‘Oppression’ means\r\ndespicable conduct that subjects a person to cruel and unjust hardship in\r\nconscious disregard of that person’s rights.” \r\n(Id.,§ 3294(c)(2).) Punitive damages thus require more than the\r\nmere commission of a tort. (Taylor v. Superior Court (1979) 24\r\nCal.3d 890, 894-95.) Specific facts must\r\nbe pleaded in support of punitive damages. \r\n(Hillard v. A.H. Robins Co.\r\n(1983) 148 Cal.App.3d 374, 391-92.)

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Plaintiff alleges that when the parties’ vehicles were stopped at\r\na red light Defendant grabbed an extendable steel baton and got out of his\r\nvehicle knowing his vehicle and the surrounding vehicles were blocking\r\nPlaintiff’s escape. (Complaint, ¶\r\n9.) Plaintiff alleges that Defendant\r\napproached Plaintiff’s vehicle brandishing the weapon and beat Plaintiff with\r\nthe steel baton, swinging the steel baton at Plaintiff’s head and upper body,\r\nbreaking Plaintiff’s clavicle, and causing other damage. (Id.) Plaintiff alleges that, notwithstanding\r\nPlaintiff’s efforts to defend himself by grabbing Defendant in a bear hug,\r\nDefendant kept beating Plaintiff with the steel baton. (Id.) Plaintiff alleges that Defendant then stomped\r\non his leg, breaking it. (Id.) \r\nPlaintiff alleges Defendant left Plaintiff lying in the middle of the\r\nstreet and fled the scene. (Id., ¶ 10.) These allegations are sufficient to show Defendant\r\nacted with malice and support a claim for punitive damages.

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Defendant relies on the statements in Plaintiff’s preliminary\r\nhearing testimony and Plaintiff’s sworn statements to support his contention\r\nthat Plaintiff failed to plead sufficient facts to support punitive\r\ndamages. As Defendant’s request for\r\njudicial notice of those documents has been denied, Defendant’s contention is\r\nunsupported.

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Accordingly, the motion to strike is denied.

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Conclusion

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Based on the foregoing, Defendant’s demurrer to complaint is\r\nOVERRULED.

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Defendant’s motion to strike is DENIED.

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Moving party is ordered to give notice.

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