On 02/15/2018 CHARLES BENJAMIN filed a Personal Injury - Motor Vehicle lawsuit against CITY OF DOWNEY. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, MARGARET MILLER BERNAL and PAUL BRUGUERA. The case status is Other.
Los Angeles County Superior Courts
Los Angeles, California
GEORGINA T. RIZK
MARGARET MILLER BERNAL
DOES 1 TO 100
GONZALEZ GABRIEL ELISEO BRIZUELA
EVANS NATALLIE LYNNE
DOWNEY CITY OF
MV TRANSPORTATION INC
CITY OF DOWNEY
EVANS NATLIE LYNNE
NEWKIRK WILLIAM H. ESQ.
NEWKIRK WILLIAM HENRY ESQ.
LYNBERG & WATKINS A PROFESSIONAL CORP
GOLDSTEIN JENNIFER M.
WOOD SMITH HENNING & BERMAN LLP
HERZOG VANESSA KATHRYN
HARRELL SHELTON FRANKLIN JR
GOLDSTEIN JENNIFER MARIE
HERZOG ESQ. VANESSA KATHRYN
CULP MELISSA DAWN
LYNBERG & WATKINS A PROFESSIONAL CORP
WOOD SMITH HENNING & BERMAN LLP
GOLDSTEIN JENNIFER MARIE
HERZOG ESQ. VANESSA KATHRYN
8/18/2020: Request for Dismissal - REQUEST FOR DISMISSAL WITH PREJUDICE AS TO CROSS COMPLAINT FILED BY CITY OF DOWNEY & NATALIE LYNNE EVANS, ON 02/28/2019.
7/6/2020: Notice of Ruling
6/17/2020: Notice - NOTICE DEFENDANT CITY OF DOWNEYS NOTICE OF WITHDRAWAL OF MOTIONS TO COMPEL PLAINTIFFS RESPONSES TO DEFENDANTS SPECIAL INTERROGATORIES, SET THREE
6/5/2020: Motion re: - MOTION RE: TO CONTEST THE DETERMINATION OF GOOD FAITH SETTLEMENT
2/24/2020: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF MELISSA D. CULP RE AMENDED JOINT STIPULATION TO CONTINUE TRIAL BY ALL PARITES IN SUPPORT OF DEFENDANTS CITY OF DOWNEY AND NATALIE LYNNE EVANS U
2/11/2020: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO DEFENDANT CITY OF DOWNEY AND NATALIE LYNNE EVANS' MOTION FOR SUMMARY ADJUDICATION OF PLAINTIFFS' SECOND CAUSE
11/12/2019: Notice of Ruling
2/22/2019: Order - Order re: ruling on matter submitted
1/30/2019: Notice of Ruling
1/17/2019: Notice - Notice of Continuance of Hearing
1/15/2019: Minute Order - Minute Order (Hearing on Motion to Compel Discovery (not "Further Discovery"))
1/8/2019: Minute Order - Minute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10) to P...)
10/26/2018: Motion for Trial Preference
10/29/2018: Motion to Strike (not initial pleading) - Amended Motion to Strike (not initial pleading)
11/7/2018: Notice of Continuance - Notice of Continuance of Hearing of Defendants MV Transportation, Inc's Demurrer to Plaintiffs First Amended Complaint
10/12/2018: Minute Order - (Court Order Setting Case Management Conference/Trial Setting ...)
Docketat 10:30 AM in Department C; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) - Not Held - Vacated by CourtRead MoreRead Less
Docketat 1:30 PM in Department C; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketRequest for Dismissal (With Prejudice as to Cross Complaint filed by City of Downey & Natalie Lynne Evans, on 02/28/2019.); Filed by City of Downey (Cross-Complainant)Read MoreRead Less
DocketRequest for Dismissal (With Prejudice as to Cross Complaint filed by Gabriel Eliseo Brizuela Gonzalez, on 7/26/2018); Filed by Gabriel Eliseo Brizuela Gonzalez (Cross-Complainant)Read MoreRead Less
DocketNotice (of Motion for Determination of Good Faith Settlement Off Calendar); Filed by Gabriel Eliseo Brizuela Gonzalez (Defendant)Read MoreRead Less
DocketRequest for Dismissal (With Prejudice as to Entire Action of All Parties and All Causes of Action); Filed by Charles Benjamin (Plaintiff); Maria Benjamin (Plaintiff)Read MoreRead Less
DocketNotice (Of Change Of Firm Name); Filed by Gabriel Eliseo Brizuela Gonzalez (Defendant)Read MoreRead Less
Docketat 09:30 AM in Department F; Jury Trial ((time estimate for trial is 7-10 days)) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:00 AM in Department F; Order to Show Cause Re: (regarding answer/responsive pleading by cross defendants Natalie Evans and City of Downey and MV Transportation on the cross complaint of Brizuela) - HeldRead MoreRead Less
Docketat 10:00 AM in Department F; Trial Setting Conference - Held - ContinuedRead MoreRead Less
DocketCross-Complaint GABRIEL ELISEO BRIZUELA GONZALEZRead MoreRead Less
DocketDefendant's Claim and Order to Go to Small Claims Court (Small Claims) (First)Read MoreRead Less
DocketFIRST AMENDED COMPLAINT; Filed by Charles Benjamin (Plaintiff); Maria Benjamin (Plaintiff)Read MoreRead Less
DocketAmended Complaint; Filed by Charles Benjamin (Plaintiff); Maria Benjamin (Plaintiff)Read MoreRead Less
DocketProof-Service/Summons; Filed by Charles Benjamin (Plaintiff); Maria Benjamin (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGESRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketSummons; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketComplaint; Filed by Charles Benjamin (Plaintiff); Maria Benjamin (Plaintiff)Read MoreRead Less
Case Number: BC694207 Hearing Date: February 25, 2020 Dept: SEC
BENJAMIN v. CITY OF DOWNEY, et al.
CASE NO.: BC694207
JUDGE: OLIVIA ROSALES
Defendants City of Downey and Evans’s motion for summary adjudication of Plaintiffs’ second cause of action is GRANTED.
Moving Parties to give NOTICE.
Defendants City of Downey and Evans move for summary adjudication of Plaintiff’s second cause of action for Elder Abuse.
Defendants’ objections are overruled.
The Second Amended Complaint (“SAC”) alleges that on 12/10/17, Defendants negligently entrusted, managed, maintained, drove, operated, controlled and supervised the operation of their respective vehicles, causing a head-on vehicle collision, thereby proximately causing injuries and damages. Based on these facts, the SAC asserts causes of action for:
2. Elder Abuse
3. Loss of Consortium
4. Loss of Consortium
A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)
“Abuse of an elder or a dependent adult” means any of the following: (1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (3) Financial abuse.” (Welf. & Inst. Code § 15610.07(a).)
Plaintiffs’ SAC at ¶¶ 33 and 36 allege that Plaintiffs’ Elder Abuse claim is based on Welf. & Inst. Code 15610.07(a)(2).
Defendants contend summary adjudication is warranted because: 1) Plaintiffs were not deprived of any goods or services necessary to avoid physical harm or mental suffering; and 2) City is not in a “caretaking or custodial relationship” with Plaintiffs.
Deprivation of Goods or Services
“Goods and services necessary to avoid physical harm or mental suffering” the deprivation of which may amount of “elder abuse” are defined in Welf. & Inst. Code, § 15610.35 as including: (a) The provision of medical care for physical and mental health needs. (b) Assistance in personal hygiene. (c) Adequate clothing. (d) Adequately heated and ventilated shelter. (e) Protection from health and safety hazards. (f) Protection from malnutrition, under those circumstances where the results include, but are not limited to, malnutrition and deprivation of necessities or physical punishment. (g) Transportation and assistance necessary to secure any of the needs set forth in subdivisions (a) to (f), inclusive. “‘Deprivation’ means the action of depriving or fact of being deprived; the taking away of anything enjoyed; dispossession, loss.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 861.)
Moving Defendants contend Plaintiffs suffered no “deprivation” of any goods or services necessary to avoid physical harm or mental suffering. (Welf. & Inst. Code, § 15610.07(a)(2).) Plaintiffs’ SAC alleges that Defendants owed a duty to provide transportation and assistance, and Defendants provided the requested service. Defendants submit the following evidence:
· City operated a Dial-a-Ride service, which provided transportation service within the City for seniors and disabled persons at a discounted rate. (Defense Separate Statement (“DSS”) 2.)
· Natalie Evans worked for the Downey Dial-a-Ride as a part-time driver. (DSS 5.)
· Evans also drives a school bus for the Downey Unified School District, which she has done for the last 29 years. (Evans Decl. ¶ 1). Evans maintains all the certifications and training necessary to operate a school bus and Dial-a-Ride transit vehicle. (Evans Decl. ¶ 4). Pertinent to the time of the incident, Ms. Evans held a valid California Special Driver Certificate (School Bus Certificate) and a Class B Commercial License and passenger endorsement, which qualified her to both drive a school bus as well as other vehicles, including a paratransit vehicle.
· On the morning of the incident, Evans picked up Charles and Maria Benjamin at their home in the City of Downey in the Dial-a-Ride vehicle and drove them to Our Lady of Perpetual Help Church in Downey where she dropped them off as per their scheduled request. (DSS 7; Evans Decl. ¶ 8).
· Evans picked up Charles and Maria Benjamin in the subject Dial-a-Ride vehicle from Our Lady of Perpetual Help Church in Downey as per their scheduled request to return home. (DSS 8; Evans Decl. ¶ 9). Plaintiff was wearing his seat belt at the time of the accident. (Charles Depo. 47:6.)
· The Dial-a-Ride was traveling westbound on Florence Avenue when it entered into the left turn lane to make a left turn onto southbound Woodruff Avenue. (Evans Decl. ¶ 10). The Dial-a-Ride approached the intersection on a “yield on green” light. (Id.). While the Dial-a-Ride waited in the middle of the intersection for traffic to clear, the light phased to yellow and then to red. (Evans Decl. ¶ 13). Only at that time did Evans begin to turn her wheel to start making her left turn onto Woodruff Avenue. (Evans Decl. ¶ 13). However, the Dial-a-Ride bus was struck by the oncoming vehicle in the front left driver side driven by 19-year old Defendant Gabriel Eliseo Brizuela Gonzalez (“Brizuela”), who had recently received his driver’s license only six-months prior. (Traffic Collision Report, Ex. “D”, Culp Decl. ¶ 6; Deposition of Gabriel Eliseo Brizuela Gonzalez (“Brizuela Depo.”), 22:2-12, Ex. “E”, Culp Decl. ¶ 7; Brizuela’s California Driver’s License, Ex. “F”, Culp Decl. ¶ 8).
Plaintiffs were picked up from their home and driven to the Church, and were picked up from church en route to home. The court finds Defendants met their initial burden of establishing that they did not “deprive” Plaintiffs of transportation services or assistance.
In opposition, Plaintiffs contend that Defendants owe Plaintiffs heightened duties as “common carriers.” As this court previously ruled at the demurrer hearing, Defendant’s “common carrier” status is irrelevant to the determination of whether Defendant committed Elder Abuse. It may be relevant to Plaintiffs’ negligence cause of action, but it does not transform a Negligence cause of action into an Elder Abuse cause of action, and Plaintiffs failed to cite any legal authority supporting this contention.
Further, Plaintiffs do not dispute the fact that they were picked up and provided the very transportation services they requested.
Plaintiffs’ additional facts do not establish any deprivation of goods or services. Rather, Plaintiffs’ additional facts (PSS 1-5) concern the adequacy of the services provided, not the withholding of services. Therefore, it is undisputed that Plaintiffs were not deprived of any transportation services or assistance.
Welf. & Inst. Code 15610.17 specifically sets forth the delineated persons and agencies that qualify as “care custodians.” City-operated shuttle buses and/or bus drivers are not listed in Welf. & Inst. Code 15610.17 as “care custodians.”
In Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148, the California Supreme Court explored what sort of conduct is covered for individuals having the care or custody of an elder or dependent adult. "What [the Legislature] seem[s] to contemplate is the existence of a robust caretaking or custodial relationship —that is, a relationship where a party has assumed a significant measure of responsibility for attending to one or more of an elder's [or dependent adult's] basic needs that an able bodied and fully competent adult would ordinarily be capable of managing without assistance." (Id at 158.) The Supreme Court reversed an appellate court ruling, holding that the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. It is the nature of the elder or dependent adult's relationship with the defendant—not the defendant's professional standing—that makes the defendant potentially liable for neglect.
Defendants submit the following evidence:
· City’s Dial-a-Ride bus provided only curb-to-curb transportation services to elderly and disabled individuals, at a discounted rate, within the City of Downey. (DSS 2.)
· Passengers would schedule a pick-up or drop-off in advance. (DSS 3).
· Evans only worked part-time, typically only on weekends, for the Downey Dial-a-Ride. (DSS 5).
The court finds Defendants have met their initial burden of establishing that their relationship with Plaintiffs was not the type of “robust caretaking or custodial” relationship contemplated by the Elder Abuse Act, “where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder's basic needs.” (Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148, 158.) Defendants provided intermittent transportation services. Evans only worked part-time, and typically on weekends.
Plaintiffs’ evidence in opposition failed to create any triable issue. Plaintiffs’ evidence only addresses the adequacy of the services provided. (PSS 1-5.) Plaintiffs do not introduce any evidence of a “robust caretaking or custodial” relationship that is contemplated by the Elder Abuse Act.
Notably, Plaintiffs failed to cite any legal authority supporting the claim that “care custodians” include transportation Defendants such as movants who provide intermittent and sporadic transportation services.
Defendants’ persuasive authority, Balukjlan v. Virgin Am., Inc., 2018 WL 1242179, at *6 (N.D. Cal. Mar. 9, 2018) is the closest authority cited. There, Plaintiffs alleged a claim for Elder Abuse against Virgin America, Inc. based upon a “domestic plane flight operated by defendants, and during that plane flight he was dependent upon the airlines for medical care and care related to his basic needs… These allegations fail to establish a "substantial caretaking or custodial role," and instead describe "circumscribed, intermittent, or episodic engagement" that the Winn (Ibid.)
Accordingly, the court finds that summary adjudication of the second cause of action for Elder Abuse is warranted.
Motion is GRANTED.