This case was last updated from Los Angeles County Superior Courts on 08/01/2021 at 19:09:21 (UTC).

EMMA MARTIN, ET AL. VS BENJAMIN LANDA, ET AL.

Case Summary

On 05/21/2020 EMMA MARTIN filed a Personal Injury - Elder/Dependant Adult Abuse lawsuit against BENJAMIN LANDA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GREGORY W. ALARCON. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******9545

  • Filing Date:

    05/21/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Elder/Dependant Adult Abuse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GREGORY W. ALARCON

 

Party Details

Petitioners

MARTIN EMMA

SESSINGHAUS KATHRYN

GAGLIANO ELIZABETH

Respondents

SOLERO FILART MARCEL ADRIAN

LANDA BENJAMIN

SERRANO POAST ACUTE LLC DBA HOLLYWOOD HEALTH CARE CENTER AKA SERRANO HEALTHCARE AKA SERRANO NORTH CONVALESCENT HOSPITAL

SERRANO POST ACUTE LLC DBA HOLLYWOOD PREMIER HEALTH CARE CENTER AKA SERRANO HEALTHCARE AKA SERRANO NORTH CONVALESCENT HOSPITAL

Attorney/Law Firm Details

Petitioner Attorney

MURPHY ANNE MARIE

Respondent Attorneys

CRUZ KIM SUZANNE

CRUZ KIM S.

WASHINGTON CHRISTOPHER G.

WILSON WILLIAM

 

Court Documents

Notice of Ruling

7/29/2021: Notice of Ruling

Order - ORDER RE DEMURRERS AND MOTIONS TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT

7/29/2021: Order - ORDER RE DEMURRERS AND MOTIONS TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT

Notice - NOTICE OF TRIAL SCHEDULE

7/29/2021: Notice - NOTICE OF TRIAL SCHEDULE

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); CAS...)

7/29/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); CAS...)

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

7/29/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Posting of Jury Fees

7/27/2021: Notice of Posting of Jury Fees

Notice of Intent to Appear by Telephone

7/16/2021: Notice of Intent to Appear by Telephone

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR STAY OF PROCEEDINGS)

7/13/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR STAY OF PROCEEDINGS)

Notice - NOTICE OF CONTINUANCE OF CMC

7/9/2021: Notice - NOTICE OF CONTINUANCE OF CMC

Notice of Intent to Appear by Telephone

7/6/2021: Notice of Intent to Appear by Telephone

Reply - REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STAY PENDING APPEAL OF REMAND

7/6/2021: Reply - REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO STAY PENDING APPEAL OF REMAND

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

6/23/2021: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Amended Complaint - FIRST AMENDED COMPLAINT

6/30/2021: Amended Complaint - FIRST AMENDED COMPLAINT

Notice - NOTICE OF RULING RE COURT'S ORDER CONTINUING DEFENDANTS' DEMURRERS AND MOTIONS TO STRIKE TO 7-29-21

6/30/2021: Notice - NOTICE OF RULING RE COURT'S ORDER CONTINUING DEFENDANTS' DEMURRERS AND MOTIONS TO STRIKE TO 7-29-21

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); HEA...)

6/30/2021: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10); HEA...)

Notice Re: Continuance of Hearing and Order

7/1/2021: Notice Re: Continuance of Hearing and Order

Declaration - DECLARATION DECLARATION OF ANNE MARIE MURPHY IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS SERRANO POST ACUTE LLC AND BENJAMIN LANDAS MOTION TO STAY CASE PENDING APPEAL OF REMAND

6/29/2021: Declaration - DECLARATION DECLARATION OF ANNE MARIE MURPHY IN SUPPORT OF PLAINTIFFS OPPOSITION TO DEFENDANTS SERRANO POST ACUTE LLC AND BENJAMIN LANDAS MOTION TO STAY CASE PENDING APPEAL OF REMAND

Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS SERRANO POST ACUTE LLC AND BENJAMIN LANDAS MOTION TO STAY CASE PENDING APPEAL OF REMAND RULING

6/29/2021: Opposition - OPPOSITION PLAINTIFFS OPPOSITION TO DEFENDANTS SERRANO POST ACUTE LLC AND BENJAMIN LANDAS MOTION TO STAY CASE PENDING APPEAL OF REMAND RULING

80 More Documents Available

 

Docket Entries

  • 08/29/2022
  • Hearing08/29/2022 at 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

    Read MoreRead Less
  • 08/15/2022
  • Hearing08/15/2022 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

    Read MoreRead Less
  • 06/22/2022
  • Hearing06/22/2022 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

    Read MoreRead Less
  • 07/29/2021
  • Docketat 08:30 AM in Department 56; Case Management Conference - Held

    Read MoreRead Less
  • 07/29/2021
  • Docketat 08:30 AM in Department 56; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Held

    Read MoreRead Less
  • 07/29/2021
  • DocketNotice (of Trial Schedule); Filed by Emma Martin (Petitioner); Elizabeth Gagliano (Petitioner); Kathryn Sessinghaus (Petitioner)

    Read MoreRead Less
  • 07/29/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore

    Read MoreRead Less
  • 07/29/2021
  • DocketMinute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10); Cas...)); Filed by Clerk

    Read MoreRead Less
  • 07/29/2021
  • DocketOrder Re Demurrers and Motions to Strike Plaintiff's First Amended Complaint; Filed by Clerk

    Read MoreRead Less
  • 07/29/2021
  • DocketNotice of Ruling; Filed by Benjamin Landa (Respondent); Serrano Post Acute LLC (Respondent)

    Read MoreRead Less
97 More Docket Entries
  • 07/02/2020
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Serrano Poast Acute LLC (Respondent)

    Read MoreRead Less
  • 07/01/2020
  • DocketNotice of Removal to Federal Court; Filed by Serrano Poast Acute LLC (Respondent)

    Read MoreRead Less
  • 06/16/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

    Read MoreRead Less
  • 06/10/2020
  • DocketProof of Personal Service; Filed by Emma Martin (Petitioner); Elizabeth Gagliano (Petitioner); Kathryn Sessinghaus (Petitioner)

    Read MoreRead Less
  • 06/08/2020
  • DocketProof of Personal Service; Filed by Emma Martin (Petitioner); Elizabeth Gagliano (Petitioner); Kathryn Sessinghaus (Petitioner)

    Read MoreRead Less
  • 06/08/2020
  • DocketProof of Personal Service; Filed by Emma Martin (Petitioner); Elizabeth Gagliano (Petitioner); Kathryn Sessinghaus (Petitioner)

    Read MoreRead Less
  • 05/21/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less
  • 05/21/2020
  • DocketComplaint; Filed by Emma Martin (Petitioner); Elizabeth Gagliano (Petitioner); Kathryn Sessinghaus (Petitioner)

    Read MoreRead Less
  • 05/21/2020
  • DocketCivil Case Cover Sheet; Filed by Emma Martin (Petitioner); Elizabeth Gagliano (Petitioner); Kathryn Sessinghaus (Petitioner)

    Read MoreRead Less
  • 05/21/2020
  • DocketSummons (on Complaint); Filed by Emma Martin (Petitioner); Elizabeth Gagliano (Petitioner); Kathryn Sessinghaus (Petitioner)

    Read MoreRead Less

Tentative Rulings

Case Number: 20STCV19545 Hearing Date: January 6, 2022 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

EMMA MARTIN, etc., et al.,

Plaintiffs,

vs.

SERRANO POST ACUTE LLC, et al.,

Defendants.

CASE NO.: 20STCV19545

[TENTATIVE] ORDER RE: MOTION FOR TRIAL PREFERENCE

Date: January 6, 2022

Time: 8:30 a.m.

Dept. 56

Judge: Holly J. Fujie

MOVING PARTY: Plaintiffs

RESPONDING PARTIES: Defendants Serrano Post Acute LLC and Benjamin Landa (“Opposing Defendants”)

The Court has considered the moving, opposition and reply papers.

BACKGROUND

Plaintiffs filed this survivor action alleging misconduct in a nursing facility at the outset of the COVID-19 pandemic that resulted in the death of Vincent Paul Martin (“Vincent Martin”). Plaintiffs filed a motion for trial preference (the “Motion”) requesting that the Court issue an order of trial preference that requires that the trial in this matter occur within 120 days of the date of this order. Plaintiffs argue that: (1) the age and health of Plaintiff Emma Martin (“Martin”) require that the Court issue a trial preference order under California Code of Civil Procedure (“CCP”) section 36, subdivision (a); and (2) the circumstances of this case warrant the Court’s exercise of its discretionary power to order a trial preference under CCP section 36, subdivision (e). A hearing date of April 6 has been reserved for a motion for summary judgment; if it is filed it will be due by approximately January 16. Trial is currently set for August 29, 2021. If this Motion were granted, the last day on which trial could be held would be 120 days from today.

REQUEST FOR JUDICIAL NOTICE

Opposing Defendants’ Request for Judicial Notice is GRANTED.

DISCUSSION

A trial preference may be granted based on the health of a party. (Heda v. Superior Court (1990) 225 Cal.App.3d 525.) CCP section 36, subdivision (a) functions to safeguard litigants beyond a specified age against the legislatively acknowledged risk that death or incapacity might deprive them of the opportunity to have their case effectively tried and the opportunity to recover their just measure of damages or appropriate redress. (Kline v. Superior Court (1991) 227 Cal.App.3d 512, 515.) The provision was enacted for the purpose of assuring that an aged or terminally ill plaintiff would be able to participate in the trial or his or her case and be able to realize redress upon the claim asserted. (Looney v. Superior Court (1993) 16 Cal.App.4th 521, 532.) The provision safeguards a legislatively acknowledged substantive right of older litigants to trial and to obtain a full measure of damages during the litigant’s lifetime. (Vinokur v. Superior Court (1988) 198 Cal.App.3d 500, 502.)

Under CCP section 36, subdivisions (a)(1) and (2), a party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant upon making both of the following findings: (1) the party has a substantial interest in the action as a whole; and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation. Where a motion for trial preference is made pursuant to CCP section 36, subdivision (a), the attorney for the party seeking preference may submit an affidavit in support of the motion based on information and belief as to the medical diagnosis and prognosis of any party. (CCP 36.5.)

CCP section 36, subdivision (e) gives a court discretion to order a trial preference if the party moving for the preference has demonstrated that the interests of justice will be served by granting the preference.

ANALYSIS

Martin is over 70 years old. (Declaration of Carlos Urzua (“Urzua Decl.”) 4; Declaration of Emma Martin (“Martin Decl.”) 2.)[1] At Martin’s last medical visit in June 2021, several medical issues were addressed, including: (1) DM2 W Diabetic Dyslipidemia; (2) Diabetes Type 2, without retinopathy; (3) screening for diabetic foot disease; (4) essential hypertension; (5) ventricular premature beats; and (6) atherscelerosis of aorta. (Martin Decl. 6.) As a result of her medical issues, Martin takes several medications, including metformin, glipizide, bisoprolol, losartan, simvastatin and aspirin. (Martin Decl. 7.) Martin has substantial interest in this action as a whole, as she brought the action following the death of her husband, Vincent Martin. (Urzua Decl. 6.) Plaintiffs’ counsel asserts that Martin’s age and health are such that a preference is necessary. (Urzua Decl. 7.)

Plaintiffs also argue that in addition to being entitled to a trial preference due to Martin’s age and health, the circumstances of this case justify a discretionary grant of trial preference because: (1) a preference is appropriate to safeguard the rights provided under the Dependent Adult and Elder Abuse Act; (2) Defendants have delayed trial; and (3) a preference would not prejudice Defendants.

In their opposition, (the “Opposition”), Opposing Defendants argue that Plaintiffs have not adequately demonstrated their entitlement to a trial preference under CCP section 36, subdivision (a) because they did not provide information regarding the prognosis or severity of Martin’s conditions. (Opposition 3:9-28.) Opposing Defendants additionally refute the grounds Plaintiffs presented to support a discretionary grant of trial preference under CCP section 36, subdivision (e), arguing that they were exercising their rights by seeking to remove the case to federal court rather than improperly delaying litigation and that they would be prejudiced by a trial preference as this case deals with novel legal questions. (See Opposition 6:8-18, 11:21-26.)

Plaintiffs submitted a supplemental declaration of Carlos Urzua in support of their reply brief (the “Reply”). The general rule of motion practice is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Points raised for the first time in a reply brief will ordinarily not be considered because such consideration would deprive the respondent of an opportunity to counter the argument. (Id.) Whether to accept new evidence with the reply papers is vested in the trial court’s sound discretion. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.) The Court exercises its discretion and considers the evidence presented for the first time in the Reply in ruling on the Motion.

The Court finds that the Motion and the supporting declarations fail to establish that Martin’s health is such that not granting trial preference would prejudice her interest in the litigation. The evidence submitted in support of the Motion is insufficiently specific to establish the necessity for a trial preference. The Urzua and Martin Declarations indicate that Martin has health conditions and takes medication but provide no information regarding how the conditions affect her ability to participate in the litigation such that her interest in the litigation would be prejudiced in the absence a trial preference. Even the declaration submitted with the Reply states only generally that as a result of those matters discussed above, “Mrs. Martin’s medical conditions have and will inevitably worsen” [Reply Declaration of Carlos Urzua (“Reply Decl.”), 4], since May of 2020, her “physical and mental health, including memory and attentiveness, have… began [sic] to fade” [Reply Decl., 5] and at her deposition in November 2021 “she was no longer able to give her best testimony” and a second session was set for November 16, 2020 [sic] [Reply Decl., 11], none of which evidence supports a finding that advancing the current trial date by three months will be necessary to prevent prejudicing the party’s interest in the litigation serve the interests of justice under CCP 36(a).

The Court further declines to issue a discretionary trial preference under CCP section 36, subdivision (e).

The Court therefore DENIES the Motion without prejudice.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 6th day of January 2022

Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Motion and Urzua Declaration state that Martin is 84 years old, while the Martin Declaration states that she is 82 years old.

b"

Case Number: 20STCV19545 Hearing Date: December 1, 2021 Dept: 56

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

SUPERIOR COURT OF THE STATE OF CALIFORNIA

\r\n\r\n

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n
\r\n

EMMA MARTIN, etc., et al.,

\r\n

\r\n

Plaintiffs,

\r\n

vs.

\r\n

\r\n

SERRANO POST ACUTE LLC, et al.,

\r\n

\r\n

Defendants.

\r\n
\r\n

\r\n
\r\n

\r\n CASE NO.: 20STCV19545

\r\n

\r\n

[TENTATIVE] ORDER RE: DEMURRER AND\r\n MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT

\r\n

\r\n

Date: \r\n December 1, 2021

\r\n

Time: 8:30 a.m.

\r\n

Dept. 56

\r\n

Judge: Holly J. Fujie

\r\n

\r\n
\r\n\r\n

\r\n\r\n

MOVING PARTIES: Defendants Serrano Post Acute LLC (“HPHC”) and Benjamin\r\nLanda (collectively, “Moving Defendants”)

\r\n\r\n

\r\n\r\n

RESPONDING PARTY: Plaintiffs Emma Martin (“Ms. Martin”), Elizabeth\r\nGagliano and Kathryn Sessinghaus (“Sessinghaus”) (collectively, “Plaintiffs”)

\r\n\r\n

\r\n\r\n

The Court has considered the moving, opposition and reply papers.

\r\n\r\n

\r\n\r\n

BACKGROUND

\r\n\r\n

Plaintiffs filed this survivor\r\naction alleging misconduct in a nursing facility at the outset of the COVID-19\r\npandemic that resulted in the death of Vincent Paul Martin (“Mr. Martin”). The currently operative second amended\r\ncomplaint (the “SAC”) states causes of action for: (1) violations of the Elder\r\nand Dependent Adult Civil Protection Act (the “Elder Abuse Act”); (2) negligence;\r\n(3) wrongful death; (4) fraudulent concealment; and (5) fraudulent\r\nmisrepresentation. Moving Defendants\r\nfiled a demurrer (the “Demurrer”) to the fourth and fifth causes of action on\r\nthe grounds that: (1) Plaintiffs failed to allege sufficient facts to state a\r\ncause of action for each claim; and (2) the pleadings for each claim are\r\nuncertain. Moving Defendants also filed\r\na motion to strike portions of the SAC (the “Motion”).

\r\n\r\n

\r\n\r\n

REQUEST\r\nFOR JUDICIAL NOTICE

\r\n\r\n

Moving Defendants’ Request for\r\nJudicial Notice is GRANTED.

\r\n\r\n

\r\n\r\n

DEMURRER

\r\n\r\n

Meet and Confer

\r\n\r\n

The meet and\r\nconfer requirement has been met with respect to both the Demurrer and Motion.

\r\n\r\n

\r\n\r\n

Legal Standard

\r\n\r\n

A demurrer tests\r\nthe sufficiency of a complaint as a matter of law. (Durell\r\nv. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) The court accepts as true all material\r\nfactual allegations and affords them a liberal construction, but it does not\r\nconsider conclusions of fact or law, opinions, speculation, or allegations\r\ncontrary to law or judicially noticed facts. \r\n(Shea Homes Limited Partnership v.\r\nCounty of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer, the complaint\r\nmust be construed liberally by drawing reasonable inferences from the facts\r\npleaded. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) A demurrer will be sustained without leave to\r\namend if there exists no reasonable possibility that the defect can be cured by\r\namendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

\r\n\r\n

\r\n\r\n

DISCUSSION

\r\n\r\n

Fourth\r\nCause of Action: Fraudulent Concealment

\r\n\r\n

The elements of fraudulent\r\nconcealment are: (1) the defendant must have concealed or suppressed a material\r\nfact; (2) the defendant must have been under a duty to disclose the fact to the\r\nplaintiff; (3) the defendant must have intentionally concealed or suppressed\r\nthe fact with the intent to defraud the plaintiff; (4) the plaintiff must have\r\nbeen unaware of the fact and would not have acted as he did if he had known of\r\nthe concealed or suppressed fact; and (5) as a result of the concealment or\r\nsuppression of the fact, the plaintiff suffered damage. (Boschma v. Home Loan Center, Inc\r\n(2001) 198 Cal.App.4th 230, 248.) A duty\r\nto speak may arise in four ways: (1) by statute or other prescriptive law; (2)\r\nby contractual undertaking; (3) as an incident of a relationship between the\r\ndefendant and the plaintiff; or (4) as a result of other conduct by the\r\ndefendant that makes it wrongful for him to remain silent. (Blickman Turkus, LP v. MF Downtown\r\nSunnyvale, LLC (2008) 162 Cal.App.4th 858, 867.)

\r\n\r\n

\r\n\r\n

Moving Defendants argue that\r\nPlaintiffs failed to adequately allege that they were under any duty to\r\ndisclose. They argue that under Moore\r\nv. Regents of University of California (1990) 51 Cal.3d 120, no fiduciary\r\nduty exists between a hospital and its patients. (See Demurrer 3:23-4:3.) Moving Defendants further assert that they\r\nowed no duty to Plaintiffs because there was no regulatory requirement imposing\r\na duty to advise patients’ families or residents about the extent of COVID-19\r\nspread in a skilled nursing facility. \r\n(Demurrer 4:3-5.) Moving\r\nDefendants additionally contend that the SAC contains conclusions regarding\r\nfraudulent intent rather than actual facts. (Demurrer 4:15-17.)

\r\n\r\n

\r\n\r\n

In their Opposition (the\r\n“Opposition”), Plaintiffs argue that the SAC adequately alleges facts to\r\nsupport the existence of a legal duty to disclose through their contractual\r\nrelationship with Plaintiffs and as a result of their conduct which made it\r\nwrongful for them to remain silent. \r\n(Opposition 7:20-23.)

\r\n\r\n

\r\n\r\n

The Court finds that the SAC fails\r\nto adequately plead facts to show the existence of a legal duty to disclose\r\nrequired to state a cause of action for fraudulent concealment. The FAC does not allege the existence of a contractual\r\nor other transactional relationship between Plaintiffs and Moving Defendants\r\nwhich would impose a duty to disclose. \r\nThe caselaw cited by Plaintiffs to support the imposition of a duty to\r\ndisclose presupposes the existence of a contractual relationship, which has not\r\nbeen alleged in the SAC.

\r\n\r\n

\r\n\r\n

The Court therefore SUSTAINS the\r\nDemurrer to the fourth cause of action with 20 days leave to amend.

\r\n\r\n

\r\n\r\n

Fifth\r\nCause of Action: Fraudulent Misrepresentation

\r\n\r\n

The elements of fraudulent misrepresentation are: (1) misrepresentation;\r\n(2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4)\r\njustifiable reliance; and (5) resulting damage. \r\n(Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018)\r\n19 Cal.App.5th 399, 428.) Each element must\r\nbe alleged with particularity. (Id.) The facts required to be pled are facts that\r\nshow how, when, where, to whom, and by what means the representations were\r\ntendered. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Less specificity is required when pleading\r\nfraud when it appears from the nature of the allegations that the facts lie\r\nmore in the knowledge of the opposite party. \r\n(See Miles v. Deutsche Bank National Trust Co. (2015) 236\r\nCal.App.4th 394, 403.)

\r\n\r\n

\r\n\r\n

Moving Defendants argue that the SAC alleges insufficiently specific\r\nfacts to state a cause of action for fraudulent misrepresentation.

\r\n\r\n

\r\n\r\n

In relevant part, the SAC alleges that by the first week of March\r\n2020, Plaintiffs were told that HPHC was no longer allowing visitors in its facility. (SAC ¶ 64.) \r\nAs such, Plaintiffs were left to rely on representations made by HPHC\r\nstaff regarding Mr. Martin’s condition and care. (SAC ¶ 67.) In mid-March 2020, HPHC assured families of\r\nresidents that the risk of residents catching COVID-19 was low and that it was\r\nmaking enormous efforts to protect residents, including work restrictions and\r\npersonal protective equipment (“PPE”), which Plaintiffs contend was a\r\nmisrepresentation. (SAC ¶ 79, 114.) On or about April 1, 2020, staff called Ms. Martin\r\nand informed her that Mr. Martin had a fever, was not eating or drinking, and\r\nwas confused. (SAC ¶ 68.) Though Ms. Martin had regularly called HPHC\r\nto check in on Mr. Martin in March 2020, this was the first time she or anyone\r\nin the family was informed that he was sick. \r\n(SAC ¶ 69.) Before April 1, 2020,\r\nHPHC staff represented to Plaintiffs on multiple occasions that Mr. Martin was\r\n“doing ok” (or other words to that effect). \r\n(SAC ¶ 172.)

\r\n\r\n

\r\n\r\n

Also on April 1, 2020, Sessinghaus called HPHC and spoke with\r\nDirector of Nursing Elizabeth Edra (“Edra”), who repeated the information\r\nprovided to Ms. Martin and added that Mr. Martin had a fever of 100-101 degrees\r\nand was having trouble breathing. (SAC ¶\r\n70.) During this conversation, Edra\r\ninitially informed Sessinghaus that there was at least one case of COVID-19 in\r\nHPHC but later admitted that there were actually four active cases. (SAC ¶\r\n72.) Edra also told Sessinghaus that HPHC was\r\nmanaging the situation by segregating residents with COVID-19 in a separate\r\nside of the facility, which Plaintiffs later learned was false. (SAC ¶ 73.) When a funeral home picked up Mr.\r\nMartin’s body after he died, the funeral home was not informed that Mr. Martin\r\nwas suspected of succumbing to COVID-19 and did not know to wear PPE. (SAC ¶ 97.)

\r\n\r\n

\r\n\r\n

The Court finds that the SAC alleges\r\nadequate facts to state a claim for intentional misrepresentation. While not every instance of misrepresentation\r\non the part of HPHC is specifically pleaded with regard to the individual\r\nmaking the representations or the date of the representations, Plaintiffs\r\nallege information conveyed in phone calls on April 1, 2020, one of which was\r\nwith Edra, that contained allegedly false representations regarding the\r\nprecautions taken to protect residents generally and Mr. Martin specifically\r\nfrom contracting COVID-19.

\r\n\r\n

\r\n\r\n

The Court therefore OVERRULES the\r\nDemurrer to the fifth cause of action

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

MOTION\r\nTO STRIKE

\r\n\r\n

Legal\r\nStandard

\r\n\r\n

A motion to strike seeks either: (1) to strike\r\nany irrelevant, false or improper matter inserted in any pleading; or (2) to strike\r\nany pleading or part thereof not drawn or filed in conformity with the laws of\r\nthis state, a court rule or order of court. (Code Civ. Proc. § 436.)

\r\n\r\n

\r\n\r\n

The Motion seeks to strike\r\nthe following provisions from the SAC:

\r\n\r\n

(1) Pg. 23, lines 11-12, at\r\nParagraph 127: “as well as punitive damages in an amount to be determined\r\naccording to proof . . .”

\r\n\r\n

\r\n\r\n

(2) Pg. 23, lines 12-13, at\r\nParagraph 127: “ as well as attorney’s fees and costs pursuant to Welfare and\r\nInstitutions Code section 15657.”

\r\n\r\n

\r\n\r\n

(3) Pg. 23, lines 13-14, at\r\nParagraph 127: “Plaintiffs are entitled to recover damages for Mr. Martin’s\r\npain and suffering under Welfare and Institutions Code § 15657 (b).”

\r\n\r\n

\r\n\r\n

(4) Pg. 23, lines 15-17, at\r\nParagraph 128: “As a legal result of their recklessness, malice,

\r\n\r\n

and oppression, Plaintiffs are entitled, . . . to an award\r\nof general damages and reasonable

\r\n\r\n

attorney fees under Welfare and Institutions Code § 15657 .\r\n. .”

\r\n\r\n

\r\n\r\n

(5) Pg. 23, lines 17-18, at\r\nParagraph 128: “. . . to punitive damages under Civil Code § 3294 and to treble\r\npunitive damages under Civil Code § 3345.”

\r\n\r\n

\r\n\r\n

(6) Pg. 29, lines 7-8 at Paragraph\r\n167: “The acts and omissions here were done with recklessness and fraud within\r\nthe meaning of Welfare and Institutions Code § 15657.”

\r\n\r\n

\r\n\r\n

(7) Pg. 29, lines 8-9, at Paragraph\r\n168: “The acts and omissions here were also fraud within the meaning of Civil\r\nCode § 3294 (c)(3).”

\r\n\r\n

\r\n\r\n

(8) Pg. 29, lines 11-13, at\r\nParagraph 169: “As a legal result of the recklessness and fraud

\r\n\r\n

alleged in this complaint, Plaintiffs are entitled, in\r\naddition to special damages for the neglect

\r\n\r\n

and abuse of Mr. Martin, to an award of general damages and\r\nreasonable attorney fees under

\r\n\r\n

Welfare and Institutions Code § 15657. . .”

\r\n\r\n

\r\n\r\n

(9) Pg. 29, lines 13-14, at\r\nParagraph 169: “. . . to punitive damages under Civil Code § 3294 and to treble\r\ndamages under Civil Code § 3345.”

\r\n\r\n

\r\n\r\n

(10) Pg. 31, lines 19-20, at\r\nParagraph 191: “The acts and omissions here were done with

\r\n\r\n

recklessness and fraud within the meaning of Welfare and\r\nInstitutions Code § 15657.”

\r\n\r\n

\r\n\r\n

(11) Pg. 31, lines 19-20, at\r\nParagraph 192: “The acts and omissions here were also fraud

\r\n\r\n

within the meaning of Civil Code § 3294 (c)(3).”

\r\n\r\n

\r\n\r\n

(12) Pg. 31, lines 23-25, at\r\nParagraph 193: “As a legal result of the recklessness and fraud

\r\n\r\n

alleged in this complaint, Plaintiffs are entitled, in\r\naddition to special damages for the neglect

\r\n\r\n

and abuse of Mr. Martin, to an award of general damages and\r\nreasonable attorney fees under

\r\n\r\n

Welfare and Institutions Code § 15657. . .”

\r\n\r\n

\r\n\r\n

(13) Pg. 31, lines 25-26, at\r\nParagraph 193: “. . . to punitive damages under Civil Code § 3294

\r\n\r\n

and to treble damages under Civil Code § 3345.”

\r\n\r\n

\r\n\r\n

(14) Pg. 32, lines 6-7, Prayer for\r\nRelief: “2. Punitive damages according to proof, including treble punitive\r\ndamages per Civil Code section 3345.”; and

\r\n\r\n

\r\n\r\n

(15) Pg. 32, line 11, Prayer for\r\nRelief: “5. Attorney’s fees and costs per Welfare and

\r\n\r\n

Institutions Code section 15657 . . .”

\r\n\r\n

\r\n\r\n

\r\n\r\n

DISCUSSION

\r\n\r\n

Enhanced\r\nRemedies Under the Elder Abuse Act

\r\n\r\n

To recover\r\nthe enhanced remedies available under the Elder Abuse Act from a\r\nhealth care provider, a plaintiff must prove more than simple or even gross\r\nnegligence in the provider’s care or custody of the elder. (Carter v.\r\nPrime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th\r\n396, 405.) The plaintiff must prove\r\nby clear and convincing evidence that the defendant has been guilty of\r\nrecklessness, oppression, fraud, or malice. (Id.) Oppression,\r\nfraud, and malice involve intentional, willful, or conscious wrongdoing of a\r\ndespicable or injurious nature. (Id.) Recklessness involves\r\ndeliberate disregard of the high degree of probability that an injury will\r\noccur. (Id.) In\r\norder to obtain the Act's heightened remedies, a plaintiff must allege conduct\r\nessentially equivalent to conduct that would support recovery of punitive\r\ndamages. (Covenant Care, Inc. v.\r\nSuperior Court (2004) 32 Cal. 4th 771, 789.) Allegations of understaffing,\r\nhowever, may amount to the level of recklessness required to support an award of\r\nenhanced remedies. (See Cochrum v.\r\nCosta Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1048.)

\r\n\r\n

\r\n\r\n

With respect to a corporate defendant, the\r\nadvance knowledge and conscious disregard, authorization, ratification or act\r\nof oppression, fraud, or malice must be on the part of an officer, director, or\r\nmanaging agent of the corporation. (White v. Ultramar, Inc. (1999) 21\r\nCal.4th 563, 572.) Managing agents are employees who exercise substantial\r\ndiscretionary authority over decisions that ultimately determine corporate\r\npolicy. (Id. at 573.)

\r\n\r\n

\r\n\r\n

Plaintiffs’ request for enhanced remedies\r\nare largely based on allegations that HPHC was habitually understaffed, thereby\r\ncreating a risk of harm. Accepting all\r\nallegations as true and drawing all reasonable inferences in Plaintiffs’ favor,\r\nthe Court finds that the SAC adequately alleges ratification by a managing\r\nagent because it contains allegations of the exercise of discretionary\r\nauthority, including scheduling and hiring. \r\nThe Court further finds that Plaintiffs have adequately alleged a\r\npattern of understaffing to constitute recklessness for the purposes of\r\nentitlement to enhanced remedies under the Elder Abuse Act.

\r\n\r\n

\r\n\r\n

The Court therefore DENIES the Motion with\r\nrespect to the prayer for enhanced remedies under the Elder Abuse Act.

\r\n\r\n

\r\n\r\n

\r\n\r\n

\r\n\r\n

Punitive\r\nDamages

\r\n\r\n

A plaintiff may\r\nrecover punitive damages in an action for breach of an obligation not arising\r\nfrom contract when the plaintiff proves by clear and convincing evidence that\r\nthe defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).) Malice is conduct which is intended by the\r\ndefendant to cause injury to the plaintiff, or despicable conduct which is\r\ncarried on by the defendant with a willful and conscious disregard of the\r\nrights or safety of others. (Civ. Code\r\n§3294, subd. (c)(1).) Despicable conduct is conduct which is so vile,\r\nbase, contemptible, miserable, wretched or loathsome that it would be looked\r\ndown upon and despised by ordinary decent people. (Mock v. Michigan\r\nMillers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) \r\nOppression is defined as despicable conduct that subjects a person to cruel and\r\nunjust hardship in conscious disregard of that person’s rights. (Civ. Code § 3294, subd. (c)(2).) Despicable\r\nconduct is “conduct which is so vile, base, contemptible, miserable, wretched\r\nor loathsome that it would be looked down upon and despised by ordinary decent\r\npeople.” (Tomaselli v. Transamerica\r\nIns. Co. (1994) 25 Cal.App.4th 1269, 1287.) \r\nAbsent an intent to injure the plaintiff,\r\nmalice requires more than a “willful and conscious” disregard of the\r\nplaintiff’s interests; the additional component of “despicable conduct”\r\nmust be found. (College Hospital Inc. v. Superior Court (1994)\r\n8 Cal.4th 704, 725.)

\r\n\r\n

\r\n\r\n

Punitive damages\r\nthus require more than the mere commission of a tort. (See Taylor v.\r\nSuperior Court (1979) 24 Cal.3d 890, 894-95.) Mere\r\nnegligence, even gross negligence, is not sufficient to justify an award for\r\npunitive damages. (Kendall Yacht Corp. v. United California Bank (1975)\r\n50 Cal.App.3d 949, 958.) The allegations supporting a request for\r\npunitive damages must be alleged with specificity; conclusory allegations\r\nwithout sufficient facts are not enough. (Smith v. Superior Court (1992)\r\n10 Cal.App.4th 1033, 1041-1042.)

\r\n\r\n

\r\n\r\n

Plaintiffs\r\nargue that the SAC adequately alleges conduct of oppression, fraud or malice\r\nbecause it alleges that that Moving Defendants have a pattern of understaffing\r\nHPHC and hiring undertrained staff while knowing that these practices would put\r\ntheir residents at risk. (See Motion\r\nOpposition 11:5-10.)

\r\n\r\n

\r\n\r\n

The\r\nCourt finds that the SAC does not adequately state sufficient facts of\r\noppression, malice or fraud to support an award of punitive damages. The Court therefore GRANTS the Motion with\r\nrespect to the request for punitive damages with 20 days leave to amend.

\r\n\r\n

\r\n\r\n

Treble Damages

\r\n\r\n

Treble damages may\r\nbe awarded in actions brought by, or on behalf of, or for the benefit of senior\r\ncitizens or disabled person to redress unfair or deceptive acts or practices or\r\nunfair methods of competition. (Civ.\r\nCode § 3345, subd. (a).) Treble damages\r\nmay be awarded under Civil Code section 3345, subdivision (b) only if the\r\nstatute under which recovery is sought permits a remedy that is in the nature\r\nof a penalty. (Clark v. Superior\r\nCourt (20110) 50 Cal.4th 605, 614.) If\r\na cause of action is brought pursuant to a statute that allows the imposition\r\nof a fine or civil penalty or other remedy with the purpose to punish or deter,\r\nthe court may award treble damages if: (1) the defendant knew or should have\r\nknown that his conduct was directed to one or more senior citizens or disabled\r\npersons; (2) the defendant’s conduct caused one or more senior citizens or\r\ndisabled persons to suffer loss of encumbrance of a primary residence, principal\r\nemployment or source of income; substantial loss of property set aside for\r\nretirement, or for personal or family care and maintenance, or substantial loss\r\nof payments received under a pension or retirement plan; and (3) one or more\r\nsenior citizens or disabled persons are substantially more vulnerable than\r\nother members of the public to the defendant’s conduct because of age, poor\r\nhealth or infirmity and actually suffered substantial damage resulting from the\r\ndefendant’s conduct. (Civ. Code § 3345,\r\nsubd. (b).)

\r\n\r\n

\r\n\r\n

Plaintiffs request treble damages in\r\nconnection to the first, fourth and fifth causes of action. As the Elder Abuse Act permits an award of\r\nenhanced remedies, treble damages are available under the statute. As the Court granted the Demurrer to the\r\nfourth cause of action, the Court GRANTS the Motion with respect to the treble\r\ndamages sought in connection to the fraudulent concealment claim with 20 days\r\nleave to amend. Plaintiffs bring their\r\nfraudulent misrepresentation claim under common law principles and not directly\r\npursuant to a statute. Plaintiffs have,\r\nhowever, adequately pleaded their fraudulent misrepresentation claim under\r\nCivil Code section 1709. Punitive\r\ndamages may be available in fraud claims. \r\n(See Civ. Code § 3294.)

\r\n\r\n

\r\n\r\n

The SAC alleges that due to Moving\r\nDefendants’ conduct, Mr. Martin’s pension has been reduced. (SAC ¶ 107.) \r\nPlaintiffs have adequately alleged their entitlement to treble damages\r\nwith respect to the first and fifth causes of action. The Court therefore DENIES the Motion with\r\nrespect to the treble damages sought in connection to the first and fifth\r\ncauses of action.

\r\n\r\n

\r\n\r\n

Moving party is ordered to give notice of this\r\nruling.

\r\n\r\n

\r\n\r\n

In consideration of\r\nthe current COVID-19 pandemic situation, the Court¿strongly¿encourages\r\nthat appearances on all proceedings, including this one, be made\r\nby LACourtConnect if the parties do not submit on the tentative.¿¿If\r\nyou instead intend to make an appearance in person at Court on this matter, you\r\nmust send an email by 2 p.m. on the last Court day before the scheduled date of\r\nthe hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in\r\nperson.¿ The Court will then inform you by close of business that day of the\r\ntime your hearing will be held. The time set for the hearing may be at any time\r\nduring that scheduled hearing day, or it may be necessary to schedule the\r\nhearing for another date if the Court is unable to accommodate all personal\r\nappearances set on that date.¿ This rule is necessary to ensure that adequate\r\nprecautions can be taken for proper social distancing.

\r\n\r\n

\r\n\r\n

\r\n\r\n

Parties who intend to submit on this tentative must send an email to\r\nthe Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on\r\nthe court website at www.lacourt.org. If the department does not receive\r\nan email and there are no appearances at the hearing, the motion will be placed\r\noff calendar.

\r\n\r\n

\r\n\r\n

Dated\r\nthis 1st day of December 2021

\r\n\r\n

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

\r\n
\r\n

Hon. Holly J. Fujie

\r\n

Judge of the Superior Court

\r\n

\r\n
\r\n\r\n"b"

Case Number: 20STCV19545 Hearing Date: July 13, 2021 Dept: 56

\r\n\r\n

\r\n\r\n

SUPERIOR\r\nCOURT OF THE STATE OF CALIFORNIA

\r\n\r\n

FOR\r\nTHE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

\r\n\r\n

\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n
\r\n

EMMA MARTIN, et\r\n al.,

\r\n

Plaintiffs,

\r\n

vs.

\r\n

\r\n

BENJAMIN LANDA, et al.,

\r\n

\r\n

\r\n

Defendants.

\r\n
\r\n

\r\n
\r\n

\r\n CASE NO.: 20STCV19545

\r\n

\r\n

[TENTATIVE] ORDER RE:

\r\n

MOTION FOR STAY OF PROCEEDINGS

\r\n

\r\n

Date: July 13, 2021

\r\n

Time: 8:30 a.m.

\r\n

Dept. 56

\r\n

Jury Trial: TBD

\r\n

\r\n
\r\n\r\n

\r\n\r\n

MOVING PARTY: Defendants Serrano Post Acute, LLC dba\r\nHollywood Premier Healthcare Center and Benjamin Landa (collectively, “Serrano\r\nDefendants”)

\r\n\r\n

\r\n\r\n

RESPONDING PARTY: Plaintiffs\r\nEmma Martin, Elizabeth Gagliano, and Kathryn Sessinghaus, individually and as\r\nheirs of Vincent Paul Martin, deceased (collectively, “Plaintiffs”)

\r\n\r\n

\r\n\r\n

The Court has considered the moving,\r\nopposition, and reply papers.

\r\n\r\n

\r\n\r\n

BACKGROUND

\r\n\r\n

Plaintiffs’\r\noperative First Amended Complaint alleges the following causes of action: (1)\r\nviolations of the Elder and Dependent Adult Civil Protection Act; (2)\r\nnegligence; (3) wrongful death; (4) fraudulent concealment; and (5) fraudulent\r\nmisrepresentation.

\r\n\r\n

On\r\nJuly 1, 2020, Serrano Defendants filed and served a Notice of Removal to\r\nFederal Court and on July 7, 2020, Serrano Defendants filed and served a Notice\r\nto Adverse Party of Removal to Federal Court. On September 15, 2020, a Notice\r\nof Remand was filed stating that this action was remanded back to this Court\r\nfrom Federal Court pursuant to a September 10, 2020 remand order (“First Remand\r\nOrder”). On September 22, 2020, a Notice of Order Staying Enforcement of the\r\nSeptember 10, 2020 remand order was filed in this Court. The First Remand Order\r\nwas stayed until October 13, 2020.

\r\n\r\n

\r\n\r\n

On\r\nOctober 9, 2020, Serrano Defendants appealed the issuance of the First Remand\r\nOrder.

\r\n\r\n

\r\n\r\n

On\r\nJanuary 13, 2021, Serrano Defendants filed a Notice of Removal to Federal\r\nCourt. On March 29, 2021, a Notice of Remand was filed stating that this action\r\nwas remanded back to this Court from Federal Court (“Second Remand Order”).

\r\n\r\n

\r\n\r\n

On\r\nApril 22, 2021, Serrano Defendants appealed the issuance of the Second Remand\r\nOrder.

\r\n\r\n

\r\n\r\n

Serrano\r\nDefendants now move to stay proceedings in the instant action pending appeals\r\nof the First Remand Order and Second Remand Order (collectively, “Remand\r\nOrders”), which were filed in the United States Court of Appeals for the Ninth\r\nCircuit.

\r\n\r\n

\r\n\r\n

DISCUSSION

\r\n\r\n

A court ordinarily has inherent\r\npower, in its discretion, to stay proceedings when such a stay will accommodate\r\nthe ends of justice. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141.) The\r\npower to stay proceedings is incidental to the power inherent in every court to\r\ncontrol the disposition of the cause on its docket with the economy of time and\r\neffort for itself, for counsel, and for litigants. (Id.) Trial courts\r\ngenerally have inherent power to stay proceedings in the interest of justice\r\nand to promote judicial efficiency. (Freiberg v. City of Mission Viejo\r\n(1995) 33 Cal.App.4th 1484, 1489.)

\r\n\r\n

\r\n\r\n

Issue No. 1: The Notice of Motion is Not Fatally\r\nDefective

\r\n\r\n

A basic tenet of\r\nmotion practice is that the notice of motion must state the grounds for the\r\norder being sought. (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277.) Code Civ. Proc. § 1010 provides\r\nthat a notice of motion must state the grounds upon which the motion is made.\r\nCal. Rules of Court, Rule 3.1110(a) provides that a notice of motion must state\r\ngrounds for issuance of the order.

\r\n\r\n

\r\n\r\n

Here, the notice of\r\nmotion is defective as the notice of motion does not state any case law or\r\nstatutory law as a basis upon which the instant motion is brought. Nonetheless,\r\nthe Court declines to deny the motion on this ground. The motion itself makes\r\nclear that Serrano Defendants seek relief under Code Civ. Proc. §§ 128(a)(8)\r\nand 187.

\r\n\r\n

\r\n\r\n

Issue No. 2: Serrano Defendants Have Not Shown Harm\r\nAbsent a Stay of Proceedings

\r\n\r\n

The suppliant for a\r\nstay must make out a clear case of hardship or inequity in being required to go\r\nforward, if there is even a fair possibility that the stay for which he prays\r\nwill work damage to someone else. (Landis v. North\r\nAmerican Co. (1936) 299 U.S. 248, 255.) In law and motion\r\npractice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

\r\n\r\n

\r\n\r\n

The Court finds that\r\nthe motion is deficient in its request for a stay of proceedings because

\r\n\r\n

Serrano Defendants failed to present any evidentiary support in support of its motion. Neither the moving nor\r\nreply papers present any declarations or evidence showing any irreparable harm\r\nor prejudice that Serrano Defendants will suffer if a stay is not granted. In\r\nsum, Serrano Defendants have only presented mere argument – and no evidentiary\r\nbasis – for the issuance of a stay.

\r\n\r\n

\r\n\r\n

Issue No. 3: Serrano Defendants Must Obtain a Stay\r\nfrom the Federal Court

\r\n\r\n

Though not raised in the papers, the Court finds\r\nthe following law and analysis relevant to this motion.

\r\n\r\n

\r\n\r\n

“The appeal of a remand order does not deprive the\r\nstate court of jurisdiction unless a stay is obtained from the federal court.\r\n(See 4 Witkin & Epstein, Cal.Criminal Law (3d ed.2000) § 6, p. 93; Fed.\r\nRules App.Proc., rule 8(a) [party must ordinarily move first for stay of order\r\nin district court and then may seek relief from court of appeals or one of its\r\njudges].)” (People v. Bhakta (2006) 135 Cal.App.4th 631, 636.)

\r\n\r\n

\r\n\r\n

In People v. Mason (1968) 259 Cal.App.2d 30, the Court of Appeal discussed a 1964\r\namendment to the federal remand statutes that gave a right to appeal from a\r\nremand order in a case that had been removed pursuant to 28 U.S.C. section 1443\r\nfor Civil Rights cases. The Court of\r\nAppeal stated: “We recognize that the legislative history of the 1964 provision\r\ndoes indicate that Congress was made aware that dilatory tactics might be\r\nutilized by this section of the Civil Rights Act…. The underlying policy of the\r\n1964 amendment can be accomplished by securing from the federal court of appeal\r\na stay order in those cases in which that court is convinced that the\r\nprobability of a reversal is great enough to justify the delay in the state\r\ncriminal trial which will result; in those cases where the removal petition was\r\nclearly frivolous, the federal court can withhold the stay and, thus, sustain\r\nthe traditional policy against undue interference with the state process or an\r\nunnecessary delay in bringing criminal cases to trial.” (Mason, supra, at 44; see also Powerex Corp. v.\r\nReliant Energy Services, Inc. (2007) 551\r\nU.S. 224, 238 [“Section 1447(d)¿reflects Congress's longstanding ‘policy of not\r\npermitting interruption of the litigation of the merits of a removed case by\r\nprolonged litigation of questions of jurisdiction of the district court to\r\nwhich the cause is removed.’”].)

\r\n\r\n

\r\n\r\n

Although Bhakta and Mason involved criminal matters, the same basic rationale applies here as\r\nwell. Regardless of the issues of appealability or the merits of the appeal,\r\nthe case has been remanded to the state court. The\r\nquestion of whether a stay pending appeal of the Remand Orders should be\r\ngranted is more properly directed to the federal court. The federal\r\ncourt is best positioned to determine whether the appeal has sufficient\r\nmerit to justify a stay.

\r\n\r\n

\r\n\r\n

Serrano Defendants have not persuasively shown\r\nthat a stay should be granted by this Court.

\r\n\r\n

\r\n\r\n

The motion is DENIED.

\r\n\r\n

\r\n\r\n

Moving\r\nParty is ordered to give notice of this ruling.

\r\n\r\n

\r\n\r\n\r\n\r\n\r\n

\r\n\r\n

Parties who intend to submit on this\r\ntentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed\r\nby the instructions provided on the court website at www.lacourt.org. If the department does not receive an email\r\nand there are no appearances at the hearing, the motion will be placed off\r\ncalendar.

\r\n\r\n

\r\n\r\n

Dated this 13th day of July 2021

\r\n\r\n

\r\n\r\n
\r\n\r\n\r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n \r\n
\r\n

\r\n
\r\n

\r\n
\r\n

\r\n
\r\n

Hon. Holly J.\r\n Fujie

\r\n

Judge of the\r\n Superior Court

\r\n

\r\n
\r\n\r\n
\r\n\r\n"
related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where SERRANO POST ACUTE LLC DBA HOLLYWOOD PREMIER HEALTHCARE CENTER is a litigant

Latest cases represented by Lawyer MURPHY ANNE MARIE