This case was last updated from Los Angeles County Superior Courts on 06/20/2019 at 02:14:34 (UTC).

IDA MCGOWAN VS MODA TRANSPORTATION LLC ET AL

Case Summary

On 12/14/2017 IDA MCGOWAN filed a Personal Injury - Other Personal Injury lawsuit against MODA TRANSPORTATION LLC. 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, PATRICIA D. NIETO and MARGARET MILLER BERNAL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6776

  • Filing Date:

    12/14/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GEORGINA T. RIZK

PATRICIA D. NIETO

MARGARET MILLER BERNAL

 

Party Details

Plaintiff and Petitioner

MCGOWAN IDA

Defendants and Respondents

FIGUEROA JAVIER

GOINGS & GOINGS INC

MODA TRANSPORTATION LLC

DOES 1 TO 25

GOINGS & GOINGS INC. A CALIFORNIA

VILLA ELENA CONVALESCENT HOSPITAL INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

VAZIRI SIAMAK ESQ.

FORMICA STEFANO GIUSEPPE

ZENG BENJAMIN ESQ.

Defendant and Respondent Attorneys

KRACHT MATTHEW JOHN

HEATH STEPHEN BOYD

LEWIS BRISBOIS BISGAARD & SMITH LLP

BAYLES SCOT CLARK

 

Court Documents

PROOF OF SERVICE SUMMONS

1/23/2018: PROOF OF SERVICE SUMMONS

Unknown

2/21/2018: Unknown

Unknown

2/21/2018: Unknown

DEFENDANT GOINGS AND GOINGS INC'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF 'S

2/21/2018: DEFENDANT GOINGS AND GOINGS INC'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF 'S

DEFENDANT GOINGS & GOINGS, INC. DBA PROGRESSIVE HEALTH CARE (ERRONEOUSLY SUED AS GOINGS & GOINGS, INC.)'S REPLY IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

3/21/2018: DEFENDANT GOINGS & GOINGS, INC. DBA PROGRESSIVE HEALTH CARE (ERRONEOUSLY SUED AS GOINGS & GOINGS, INC.)'S REPLY IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

Unknown

5/10/2018: Unknown

Minute Order

5/10/2018: Minute Order

Unknown

6/14/2018: Unknown

Notice of Ruling

6/15/2018: Notice of Ruling

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

9/18/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Motion to Strike (not initial pleading)

10/25/2018: Motion to Strike (not initial pleading)

Reply

12/13/2018: Reply

Unknown

1/18/2019: Unknown

Opposition

2/26/2019: Opposition

Minute Order

3/12/2019: Minute Order

Notice of Ruling

3/14/2019: Notice of Ruling

Notice of Ruling

4/18/2019: Notice of Ruling

Motion for Leave

6/5/2019: Motion for Leave

129 More Documents Available

 

Docket Entries

  • 06/17/2019
  • Objection (MODA TRANSPORTATION, LLC?S OBJECTION TO PLAINTIFF?S MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT); Filed by MODA TRANSPORTATION LLC (Defendant)

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  • 06/14/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 06/14/2019
  • Opposition (To Plantiff's Motion for Lea Ve to Fileto Tidrd Amended Complaint; Memorandum of Points and Authorities in Support Thereof; Declaration Of Scot Bayles); Filed by GOINGS & GOINGS, INC (Defendant); VILLA ELENA CONVALESCENT HOSPITAL, INC. (Defendant)

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  • 06/12/2019
  • Notice of Stay of Proceedings (Bankruptcy); Filed by MODA TRANSPORTATION LLC (Defendant)

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  • 06/07/2019
  • Notice of Stay of Proceedings (Bankruptcy); Filed by GOINGS & GOINGS, INC (Defendant); VILLA ELENA CONVALESCENT HOSPITAL, INC. (Defendant)

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  • 06/05/2019
  • Motion for Leave (Motion for Leave to File Third Amended Complaint); Filed by IDA MCGOWAN (Plaintiff); GOINGS & GOINGS, INC (Defendant); GOINGS & GOINGS, INC., a California (Defendant) et al.

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  • 05/30/2019
  • at 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 05/23/2019
  • at 10:30 AM in Department C; Ruling on Submitted Matter

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  • 05/23/2019
  • Notice of Ruling; Filed by IDA MCGOWAN (Plaintiff)

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  • 05/23/2019
  • Minute Order ( (Ruling on Submitted Matter: HEARING DATE OF 5/9/19;)); Filed by Clerk

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195 More Docket Entries
  • 01/23/2018
  • Rtn of Service of Summons & Compl

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  • 01/23/2018
  • Proof-Service/Summons; Filed by IDA MCGOWAN (Plaintiff)

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  • 01/23/2018
  • PROOF OF SERVICE SUMMONS

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  • 01/23/2018
  • Proof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 12/14/2017
  • Complaint

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  • 12/14/2017
  • Complaint filed-Summons Issued

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  • 12/14/2017
  • Civil Case Cover Sheet; Filed by IDA MCGOWAN (Plaintiff)

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  • 12/14/2017
  • UNLIMITED COMPLAINT FOR DAMAGES: 1, NEGLIGENCE ;ETC

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  • 12/14/2017
  • Complaint; Filed by IDA MCGOWAN (Plaintiff)

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  • 12/14/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC686776    Hearing Date: December 12, 2019    Dept: SEC

MCGOWAN v. MODA TRANSPORTATION, LLC

CASE NO.:  BC686776

HEARING: 12/12/19

JUDGE OLIVIA ROSALES

#7

TENTATIVE ORDER

  1. Defendant VILLA ELENA CONVALESCENT HOSPITAL, INC.’s Demurrer to Plaintiff’s Fourth Amended Complaint is SUSTAINED without leave to amend.

  1. Defendant VILLA ELENA CONVALESCENT HOSPITAL, INC.’s Motion to Strike Portions of Plaintiff’s Fourth Amended Complaint is GRANTED without leave to amend.

  2. Defendant GOINGS & GOINGS, INC.’s Demurrer to Plaintiff’s Fourth Amended Complaint is SUSTAINED without leave to amend.

  1. Defendant GOINGS & GOINGS, INC.’s Motion to Strike Portions of Plaintiff’s Fourth Amended Complaint is GRANTED without leave to amend.

  1. Defendant MODA TRANSPORTATION, LLC’s Demurrer to Plaintiff’s Fourth Amended Complaint is SUSTAINED without leave to amend.

Moving Parties to give Notice.

Defendant GOINGS & GOINGS, INC.’s request for judicial notice is GRANTED. Cal. Ev. Code §452.

This elder abuse action was filed by Plaintiff IDA MCGOWAN on December 14, 2017. The relevant facts, as alleged, are as follows: “On December 16, 2015, Plaintiff was to be transported from the GOINGS/VILLA ELENA FACILITY to another location to receive dialysis treatment by Defendant FIGUEROA, within the course and scope of his employment with Defendant MODA. Defendant FIGUEROA transported Plaintiff to the front entrance of the Villa Elena Healthcare Center in a wheelchair, where there was no wheelchair ramp. Despite knowing that doing so would subject Plaintiff to a foreseeable and unreasonable risk of injury and harm, Defendant FIGUEROA ignored those risks and proceeded to attempt to push Plaintiff down a set of stairs, whereupon Plaintiff fell to the ground and suffered substantial injuries.” (4AC ¶17.) “At all times relevant, the GOINGS/VILLA ELENA DEFENDANTS were aware of and/or had notice of the fact that the front entrance of the Villa Elena Healthcare Center is used by residents/patients, including dependent and elderly persons like Plaintiff, and persons who transport residents/patients, including dependent and elderly persons like Plaintiff, and persons who transport residents/patients, specifically including the MODA DEFENDANTS. They further knew that the effect and impact of the absence of wheelchair ramps at that entrance would subject resident/patients to a foreseeable and unreasonable risk of injury and harm, and failed to take reasonable steps to exercise their duty of care owed to resident/patients to prevent them from suffering that foreseeable and unreasonable risk of injury and harm.” (4AC ¶18.) “At all times relevant, the MODA DEFENDANTS also knew that attempting to transport a resident/patient in a wheelchair by thumping the wheelchair down a set of stairs would expose them to a foreseeable and unreasonable risk of injury and harm.” (4AC ¶19.)

Plaintiff’s 4AC, filed on September 17, 2019, asserts the following causes of action: (1) Negligence; and (2) Elder Abuse.

Defendants GOINGS & GOINGS, INC. (“Goings”); VILLA ELENA CONVALESCENT HOSPITAL, INC. (“Villa Elena”); and MODA TRANSPORTATION, LLC (“Moda”) each separately demur to the second cause of action for elder abuse.

A cause of action under the Elder Abuse Act must be alleged with particularity. (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Acts that constitute mere professional negligence do not constitute elder abuse. “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve "intentional," "willful," or "conscious" wrongdoing of a "despicable" or "injurious" nature.” (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder.” (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.) “‘[T]he legislature intended the Elder Abuse Act to sanction only egregious acts of misconduct distinct from professional negligence….” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 784.) In summary, to plead a cause of action for elder abuse under the Act based on neglect, a plaintiff must allege facts establishing that the defendant: “(1) had responsibility for meeting the basic needs of the elder or dependent adult,” “(2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs”; and “(3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain…or with conscious disregard for the high probability of such injury….” (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 405-407.) A plaintiff must also allege facts demonstrating that the neglect caused the elder or dependent adult to suffer physical harm, pain, or mental suffering such that the causal link between the neglect and injury is specifically alleged. (Id at 407.) Section 15610.63(a)(1) defines neglect in relevant part as follows: “The negligent failure of any person having the care or custody of an elder or dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” Subsection (b) provides specific examples of neglect, and states in relevant part: “Neglect includes… (3) [f]ailure to protect from health and safety hazards.”

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.)

VILLA ELENA CONVALESCENT HOSPITAL, INC.’s Demurrer to Plaintiff’s Fourth Amended Complaint

Plaintiff has adequately alleged that Plaintiff was an elderly adult; who resided at the Villa Elena facility; which had responsibility for her care and/or custody; that Villa Elena failed to exercise reasonable care in protecting Plaintiff from a safety hazard (i.e., failing to provide a handicap ramp or failing to prevent persons from transporting residents by wheelchair down a flight of stairs); that Plaintiff was harmed by this neglect; and that Villa Elena’s failure to provide a ramp or prevent persons pushing wheelchairs down a set of stairs was a substantial factor in causing Plaintiff’s injuries. The issue is whether Plaintiff has alleged sufficient facts to show that Villa Elena acted with recklessness, oppression, fraud, or malice.

Here, the Court finds that Plaintiff has not sufficiently alleged that Villa Elena denied or withheld goods or services necessary to meet Plaintiff’s basic needs, with a conscious or deliberate disregard for the high degree of probability that an injury would occur. Plaintiff relies on conclusory statements, which do not suffice. (4AC ¶22.) The facts, as alleged by Plaintiff, amount to no more than mere negligence. Villa Elena’s demurrer to the second cause of action is sustained without leave to amend.

VILLA ELENA HOSPITAL, INC.’s Motion to Strike

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.) The basis for punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that the Moving Defendants’ conduct was oppressive, fraudulent, or malicious. (Smith v. Superior Court (1992) Cal.App.4th 1033, 1041-1042.) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard for the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Villa Elena moves to strike Plaintiff’s requests for enhanced and punitive damages, and attorney’s fees. The only potential bases that Plaintiff has identified for these remedies is the elder abuse claim. Given the Court’s ruling on Villa Elena’s demurrer to the 4AC, the motion to strike is granted without leave to amend.

Defendant GOINGS & GOINGS, INC.’s Demurrer to Plaintiff’s Fourth Amended Complaint

Plaintiff seeks to hold Goings liable for elder abuse as the alter ego of Villa Elena. As previously stated, the Court does not find that the 4AC adequately alleges a claim for elder abuse against Villa Elena. Therefore, the Court need not opine as to whether the 4AC sufficiently alleges that Goings is the alter ego of Villa Elena for purposes of elder abuse liability. Goings’ demurrer to the second cause of action is sustained without leave to amend.

Defendant GOINGS & GOINGS, INC.’s Motion to Strike Portions of Plaintiff’s Fourth Amended Complaint

Goings moves to strike Plaintiff’s requests for enhanced and punitive damages, and attorney’s fees. The only potential bases that Plaintiff has identified for these remedies is the elder abuse claim. Given the Court’s ruling on Villa Elena and Goings’ demurrer to the 4AC, Goings’ motion to strike is granted without leave to amend.

Defendant MODA TRANSPORTATION, LLC’s Demurrer to Plaintiff’s Fourth Amended Complaint

Moda argues that it cannot be held liable for elder abuse against Plaintiff because Plaintiff does not allege the existence of a caretaking or custodial relationship between Plaintiff and Moda. This argument is well-taken. “[T]he 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.) Here, Plaintiff alleges that Moda owns and operates a medical transportation service and was supposed to transport Plaintiff from the Villa Elena facility to an appointment on the date of the subject incident. Plaintiff has not alleged the existence of an ongoing or substantial caretaking/custodial relationship between Moda and Plaintiff. Moda’s demurrer to the second cause of action is sustained without leave to amend.

Case Number: BC686776    Hearing Date: November 21, 2019    Dept: SEC

MCGOWAN v. MODA TRANSPORTATION, LLC

CASE NO.:  BC686776

HEARING: 11/21/19

JUDGE: RAUL A. SAHAGUN

#8

TENTATIVE ORDER

I. Defendant GOINGS & GOINGS, INC.’s Demurrer to Plaintiff’s Fourth Amended Complaint is CONTINUED to Thursday, December 12, 2019 at 1:30 p.m. in Dept. SE-C.

II. Defendant GOINGS & GOINGS, INC.’s Motion to Strike Portions of Plaintiff’s Fourth Amended Complaint is CONTINUED to Thursday, December 12, 2019 at 1:30 p.m. in Dept. SE-C.

III. Defendant VILLA ELENA CONVALESCENT HOSPITAL, INC.’s Demurrer to Plaintiff’s Fourth Amended Cross-Complaint is CONTINUED to Thursday, December 12, 2019 at 1:30 p.m. in Dept. SE-C.

IV. Defendant VILLA ELENA CONVALESCENT HOSPITAL, INC.’s Motion to Strike Portions of Plaintiff’s Fourth Amended Complaint is CONTINUED to Thursday, December 12, 2019 at 1:30 p.m. in Dept. SE-C.

V. Defendant MODA TRANSPORTATION, LLC’s Demurrer to Plaintiff’s Fourth Amended Complaint is CONTINUED to Thursday, December 12, 2019 at 1:30 p.m. in Dept. SE-C.

Plaintiff to give Notice.

The Court reminds counsels of the terms of the General Order Re Mandatory Electronic Filing for Civil issued by Judge Daniel J. Buckley on November 5, 2018. The Order states, in pertinent part: “Regardless of the time of electronic filing, a printed courtesy copy (along with proof of electronic submission) is required for the following documents… D. Demurrers...” (Gen. Order (d)(4)(D).) As of November 19, 2019, the Court is in receipt of the following documents: Plaintiff’s Oppositions to Defendant GOINGS & GOINGS, INC.’s Demurrer and Motion to Strike; Plaintiff’s Oppositions to Defendant VILLA ELENA CONVALESCENT HOSPITAL, INC.’s Demurrer and Motion to Strike; Defendant GOINGS & GOINGS’ INC.’s Reply papers in support of its Demurrer and Motion to Strike; and Defendant VILLA ELENA CONVALESCENT HOSPITAL, INC.’s Reply papers in support of its Demurrer and Motion to Strike. The Court has not received the following: Defendant GOINGS & GOINGS, INC. and Defendant VILLA ELENA CONVALESCENT HOSPITAL, INC.’s Moving Papers; and Defendant MODA TRANSPORTATION, LLC’s Moving and Reply Papers; and Plaintiff’s Opposition to Defendant MODA TRANSPORTATION, LLC’s Demurrer.

The parties are ORDERED to deliver courtesy copies of any missing documents directly to Dept. SE-C. on or before 2:00 p.m. on December 2, 2019.