On 04/16/2018 CHRISTOPHER VEKLOTZ filed a Personal Injury - Other Personal Injury lawsuit against JOSE GONZALEZ. This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, HUEY P. COTTON, MICHAEL J. CONVEY, KRISTIN S. ESCALANTE, THERESA M. TRABER and MARK A. BORENSTEIN. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Van Nuys Courthouse East
Los Angeles, California
GEORGINA T. RIZK
HUEY P. COTTON
MICHAEL J. CONVEY
KRISTIN S. ESCALANTE
THERESA M. TRABER
MARK A. BORENSTEIN
PROVIDENCE WEST VALLEY
SILVER AGE NONE-EMERGENCY MEDICAL TRANSPO
WEST VALLEYIDENCE OPCO LLC
DOES 1 TO 60
WEST VALLEY POST ACUTE
VALLEY PROVIDENCE WEST
ACUTE WEST VALLEY POST
WEST VALLEYIDENCE OPCO LLC DBA WEST VALLEY POST ACUTE
WEST VALLEYIDENCE OPCO LLC DBA WEST VALLEY POST ACUTE DBA PROVIDENCE WEST VALLEY
SILVER AGE NONE-EMERGENCY MEDICAL TRANSPORTATION
VAISMAN AN INDIVIDUAL MILANA
HOMAMPOUR ARASH ESQ.
SITAR LAURA K. ESQ.
MURPHY PEARSON BRADLEY & FEENEY
SITAR LAURA KAREN ESQ.
SAALFELD BRYAN LELAND
HANCOCK AARON C
DUFFY JOHN J.
9/25/2020: Amended Complaint - AMENDED COMPLAINT (3RD)
9/15/2020: Reply - REPLY REPLY TO OPPOSITION BY PLAINTIFFS TO DEFENDANTS' DEMURRER TO PLAINTIFFS' SECOND AMENDED COMPLAINT
7/28/2020: Notice Re: Continuance of Hearing and Order
4/30/2020: Notice of Motion
4/14/2020: Notice - NOTICE NOTICE OF CONTINUED MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT HEARING AND ORDER
2/19/2020: Notice - NOTICE AMENDED NOTICE OF DEMURRER
1/17/2020: Memorandum of Points & Authorities
12/16/2019: Notice - NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE
8/29/2019: Notice - NOTICE OF RULING ON PLAINTIFFS EX PARTE APPLICATION TO LIFT STAY, ADVANCE CMC, AND SEEK LEAVE TO AMEND COMPLAINT
5/13/2019: Case Management Statement
4/4/2019: Notice - NOTICE NOTICE OF REASSIGNMENT
3/27/2019: Reply - REPLY TO DEFENDANT SILVER AGE NONE-EMERGENCY TRANSPORTATION'S OPPOSITION TO PLAINTIFFS' MOTION SEEKING LEAVE TO AMEND THEIR COMPLAINT
1/31/2019: Notice of Lodging - DEFENDANT WEST VALLEYIDENCE OPCO LLC dba WEST VALLEY POST ACUTES NOTICE OF LODGMENT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES
1/31/2019: Declaration - DECLARATION OF VIRGINIA DENISE GARCIA IN SUPPORT OF DEFENDANT WEST VALLEYIDENCE OPCO, LLC dba WEST VALLEY POST ACUTE'S MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
2/13/2019: Motion for Leave to Amend - Motion for Leave to Amend Motion for Leave to Amend Complaint
3/11/2019: Opposition - OPPOSITION OPPOSITION TO PLAINTIFF'S MTN FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
7/26/2018: PROOF OF SERVICE SUMMONS -
Hearing06/21/2021 at 10:00 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Jury TrialRead MoreRead Less
Hearing06/08/2021 at 08:30 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Final Status ConferenceRead MoreRead Less
Hearing01/14/2021 at 09:00 AM in Department U at 6230 Sylmar Ave., Van Nuys, CA 91401; Mandatory Settlement Conference (MSC)Read MoreRead Less
Docketat 08:30 AM in Department U, Theresa M. Traber, Presiding; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
DocketNotice of Posting of Jury Fees; Filed by Jose Gonzalez (Defendant); Silver Age None-Emergency Medical Transportation (Defendant); Milana Vaisman, an individual (Defendant)Read MoreRead Less
DocketAmended Complaint ( (3rd)); Filed by Jennifer Cuff (Plaintiff); Christopher Veklotz (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department U, Theresa M. Traber, Presiding; Further Status Conference - HeldRead MoreRead Less
Docketat 08:30 AM in Department U, Theresa M. Traber, Presiding; Hearing on Motion to Strike (not anti-SLAPP) - without Demurrer - HeldRead MoreRead Less
Docketat 08:30 AM in Department U, Theresa M. Traber, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - HeldRead MoreRead Less
DocketOrder (re: Defendants' Demurrer & Motion to Strike); Filed by ClerkRead MoreRead Less
DocketAnswer; Filed by West Valleyidence Opco, LLC (Defendant); WEST VALLEY POST ACUTE (Legacy Party)Read MoreRead Less
DocketProof-Service/Summons; Filed by Jennifer Cuff (Plaintiff); Christopher Veklotz (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Jennifer Cuff (Plaintiff); Christopher Veklotz (Plaintiff)Read MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketReceipt; Filed by Christopher Veklotz (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR WRONGFUL DEATH AND SURVIVOR ACTION DAMAGES ETC.Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Jennifer Cuff (Plaintiff); Christopher Veklotz (Plaintiff)Read MoreRead Less
Case Number: BC702368 Hearing Date: September 23, 2020 Dept: U
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT
CHRISTOPHER VEKLOTZ, an individual; and JENNIFER CUFF, an individual,
JOSE GONZALEZ, an individual; SILVER AGE NON-EMERGENCY MEDICAL TRANSPORTATION, a corporation; MILANA VAISMAN, an individual; and DOES 1 through 60, inclusive,
CASE NO: BC702368
[TENTATIVE] ORDER RE: DEFENDANTS’ DEMURRER & MOTION TO STRIKE
September 23, 2020
Christopher Veklotz and Jennifer Cuff (Plaintiffs) initiated this lawsuit against Jose Gonzalez (Gonzalez), Silver Age Non-Emergency Medical Transportation (Silver Age), Milana Vaisman (Vaisman) (collectively, Defendants), and Does 1 through 60, on April 16, 2018. Plaintiffs’ operative second amended complaint (SAC) alleges claims for wrongful death and survivor action damages via: (1) negligence; (2) common carrier violation of DPA - Civil Code section 54, et seq.; (3) violation of the Unruh Act – Civil Code section 51, et seq.; and (5) elder abuse (neglect) in violation of Welfare & Institutions Code section 15600, et seq.
Silver Age and Vaisman are the registered and licensed owners of the 2012 FordE1500 (the vehicle). (FAC, ¶ 5.) Vaisman is the sole owner and operator of Silver Age. (Ibid.) Gonzalez was employed by Silver Age and was driving the vehicle within the course and scope of his employment at the time of the incident on November 16, 2017. (Ibid.)
Plaintiffs are the children, lawful heirs, and successors in interest of decedent Joseph Veklotz (decedent). (Id., ¶ 1.) Decedent passed away on December 2, 2017 after being involved in the automobile accident while riding as a passenger in Silver Age’s vehicle on November 16, 2017. (Id., ¶¶ 1, 13.) Gonzalez improperly, or failed to, secure decedent and his wheelchair while negligently operating the vehicle. Gonzalez brought the vehicle to a quick and sudden stop, causing decedent to fall out of his wheelchair because he was improperly secured. Decedent sustained fatal injuries as a result of this fall when he struck his head causing his brain to bleed. (Id., ¶ 13.)
It is alleged that Silver Age and Vaisman are vicariously liable for Gonzalez’s negligent operation and failure to properly secure decedent in the vehicle. (Ibid.) Silver Age and Vaisman negligently hired, trained, and employed Gonzalez because Gonzalez was not taught how to properly secure passengers. (Id., ¶ 14.)
On January 17, 2020, Defendants filed this demurrer to Plaintiffs’ fourth, fifth, and sixth causes of action pursuant to Code of Civil Procedure section 430.10(e) on the grounds that: (1) Plaintiffs have not pled denial or interference with a public accommodation or transportation: (2) Plaintiffs’ have not pled intentional discrimination; and (2) the Elder Abuse Act does not authorize an independent cause of action and Plaintiffs’ allegations only amount to ordinary negligence. Defendants also filed an accompanying motion to strike pursuant to Code of Civil Procedure section 435 and 436.
II. LEGAL STANDARD
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, at p. 747.)
B. Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)
C. Leave to Amend
“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)
A. Meet & Confer Requirement
Before filing a demurrer or motion to strike, the moving party is required to meet and confer with the party who filed the pleading for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 & 435.5.) Defendants have satisfied this requirement. Defense counsel, Aaron Hancock (Hancock), sent a draft of this pleading to Plaintiffs’ counsel, Danielle Lincors (Lincors), on January 16, 2020. Hancock and Lincors discussed Defendants’ objections to the SAC on January 17, 2020, but no resolution was reached. The demurrer and motion to strike ensued. (Hancock declaration, ¶ 2.)
B. Fourth Cause of Action – California Disabled Persons Act
Civil Code section 54.1(a)(1) provides:
Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians' offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation (whether private, public, franchised, licensed, contracted, or otherwise provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.
Civil Code sections 54 through 55.2 are intended to secure to disabled persons the “same right as the general public to the full and free use” of facilities open to the public. (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 263, citing Civ. Code § 54(a).) Civil Code section 54.1 states that “[i]ndividuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, . . . and privileges of all common carriers, . . . modes of transportation . . . , places of public accommodation, . . . and other places to which the general public is invited . . . .” (Civ. Code, § 54.1(a)(1).) “Full and equal access” is defined by Civil Code section 54.1 to mean access that complies with the regulations developed under the federal Americans with Disabilities Act of 1990 (42 U.S.C., §§ 12111–12117), or under state statutes, if the latter impose a higher standard. (Civ. Code, § 54.1(a)(3).) “Access” refers not only to entry into a building but, more broadly, to the use of all facilities made available for general public use, such as restrooms, parking, and fixtures within a building. (Urhausen, supra, 155 Cal.App.4th at 261 citing Gunther v. Lin (2006) 144 Cal.App.4th 223, 231.)
Civil Code section 54.3 creates a private cause of action for damages under the Disabled Persons Act (DPA): “[a]ny person or persons, firm or corporation who denies or interferes with admittance to or enjoyment of the public facilities as specified in Sections 54 and 54.1 or otherwise interferes with the rights of an individual with a disability under Sections 54, 54.1 and 54.2 is liable for each offense for the actual damages . . . .” (Civ. Code, § 54.3(a).) Civil Code section 55 authorizes a private action for injunctive relief to correct violations of the DPA. (Civ. Code, § 55; Urhausen, supra, 155 Cal.App.4th at 261.)
Here, Plaintiffs allege “[d]ecedent was denied the full and equal enjoyment of and access to Defendants’ services, facilities, privileges, advantages or accommodations in violation of the Disabled Persons Act.” (FAC, ¶ 22.) Plaintiffs continue by pleading that decedent had the right to “use the transportation services provided to him in a safe manner as all other persons are transported. However, [Defendants] failed to safely transport passengers with disabilities, secure wheelchairs, secure the disabled passengers, and provide proper training to drivers.” (Id., ¶ 23.) Decedent fell from his wheelchair because Gonzalez failed to secure the shoulder and lap belt. (Id., ¶ 25.)
Defendants contend Plaintiffs do not plead denial of or interference with access to an accommodation or transportation as is required to recover damages under this provision. Decedent was allowed access to the public transport vehicle operated by Silver Age and, it was while riding as a passenger, that decedent was injured.
The FAC shows that Plaintiffs do not allege that decedent was denied access to the use of the vehicle as a passenger, but rather, that Gonzalez’s failure to properly secure decedent denied decedent the safe use of the vehicle afforded to other passengers who were not in wheelchairs. This does not demonstrate a defect in the vehicle as public transportation, but rather, negligence on the part of Gonzalez in administering the public accommodation. “The phrase ‘denied equal access’ necessarily implies that either the structure of the public facility, or some policy of its operator, precluded equal access.” (Urhausen, supra, 155 Cal.App.4th at 263.) Plaintiffs do not allege that any aspect of the vehicle itself denied decedent equal access. Instead, Plaintiffs plead that the vehicles’ belts were not used properly by Gonzalez. This shows that “a policy of the operator” precluded decedent from equal access to the vehicle.
Plaintiffs allege that 13 C.C.R. section 1269.1 requires Defendants to equip the vehicle with a securement system to ensure wheelchairs remain restrained during transportation. Pursuant to 13 C.C.R. section 1229, Defendants were required to ensure that the vehicle’s driver could properly operate the wheelchair securitization equipment. Thus, Plaintiffs allege that, because Silver Age and Vaisman failed to properly train Gonzalez on how to use the securitization equipment to restrain decedent’s wheelchair during transport, Defendants denied decedent equal access to the vehicle.
The Court finds that Plaintiff has pled a valid claim under the Disabled Persons Act. Defendants’ failure to provide Gonzalez with adequate training on using the securitization equipment interfered with the decedent’s full and equal use of Defendants’ vehicle. Even though the decedent was allowed access to Defendants’ vehicle, because of Defendants’ failed training practices, he was not allowed access to and use of the vehicle that was equal to that of a passenger who is not confined to a wheelchair. Demurrer to this claim is overruled.
C. Fifth Cause of Action – California Unruh Act
Civil Code section 51 et seq. requires as showing that a business establishment intentionally denied plaintiff either full and equal accommodations, advantages, facilities, privileges, or services, based on the plaintiff’s disability. Here, Plaintiffs allege that Defendants discriminated against decedent in violation of the Unruh Act by failing to provide reasonable and safe accommodations for decedent while he was a passenger in the vehicle. It is undisputed that decedent was physically disabled and that Silver Age is a business establishment.
Defendants argue Plaintiffs do not plead that Defendants intentionally discriminated against decedent based on his physical disability. They also contend that Plaintiffs have failed to plead the limited exception to intentional conduct where there are “discriminatory effects of architectural, transportation, and communication barriers” as provided in Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 670.
Plaintiffs plead that Defendants’ failure to abide by 13 C.C.R. sections 1269.1 and 1229, and failure to train Gonzalez on how to use shoulder and lap belts to restrain passengers for safe transport, caused decedent to fall from his wheelchair and sustain fatal injuries. While the vehicle was equipped with the wheelchair securitization system, Defendants’ failure to properly use it and train Gonzalez on how to use it only affected those confined to a wheelchair like decedent. A passenger not confined to a wheelchair would not be impacted by Defendants’ failure to use and train on the wheelchair equipment. Only passengers confined to a wheelchair depend on Defendants to secure them and their wheelchairs and, thus, only they are affected by Defendants’ noncompliance. If decedent had not been confined to wheelchair, Defendants’ noncompliance would not have applied to him. As Defendants’ failure to abide by regulations discriminated against decedent because he was physically disabled and did not apply to all passengers of the vehicle, Plaintiffs have pled intentional discrimination.
Accordingly, Defendants’ demurrer to this claim is overruled.
D. Sixth Cause of Action – Elder Abuse
The elements of elder abuse include:
(1) Defendant had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care;
(2) Defendant knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs;
(3) Defendant denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either:
a. with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice); or
b. with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness); and
(4) The neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering.
(Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407.)
The Elder Abuse Act “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.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) “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.” (Ibid.)
Here, Plaintiffs plead that Defendants assumed and were responsible for decedent’s safety when transporting him to and from his medical appointments. (SAC, ¶ 30.) Defendants knew decedent was disabled and dependant on them for his basic needs of safe transport and securement in his wheelchair. (Id., ¶ 31.) Gonzalez’s failure to properly secure decedent in his wheelchair was done with disregard for the high probability that decedent would be injured if caused to fall from his wheelchair. (Id., ¶ 37.)
In response to Defendants’ contention that decedent was not in the care and custody of Defendants, Plaintiffs respond that Defendants had transported decedent multiple times and knew he was a disabled, elder confined to a wheelchair. Decedent had just completed dialysis prior to the accident and Defendants were in the business of transporting those in a weakened state unable to care for themselves.
Therefore, Plaintiffs have sufficiently pled a claim for elder abuse against Defendants. Demurrer to this claim is overruled.
E. Motion to Strike
Defendants move to strike all references and requests for punitive damages, references and requests for enhanced remedies under the Welfare & Institutions Code, and attorneys’ fees and statutory penalties under the Unruh Act and Disabled Persons Act. As Plaintiffs have sufficiently pled each of these claims against Defendants, the Court will not strike these requests for damages at this time.
For the foregoing reasons, Defendants’ demurrer to the fourth, fifth, and sixth causes of action is OVERRULED.
Defendants’ motion to strike is DENIED.
Plaintiffs are ordered to give notice of the Court’s ruling.
DATED: September 23, 2020
Hon. Theresa M. Traber
Judge of the Superior Court