IRVING BROWN VS IMPULSE AMBULANCE INC ET AL

Tentative Rulings

Case Number: BC692347    Hearing Date: January 11, 2021    Dept: 29

Plaintiff Irving Brown’s Motion to File a First Amended Complaint is GRANTED. (Code Civ. Proc. §§ 473, subd. (a); 576.) Plaintiff must file the first amended complaint forthwith; IT WILL NOT be deemed filed.

The complaint in this action was filed on January 31, 2018. Plaintiff Irving Brown alleges he was injured in an automobile accident caused by the negligence of Defendants Impulse Ambulance, Inc., Edmundo Chu and Does 1-10. The complaint further alleges that

-- Chu and Does 1-5 were the operator[s] of the motor vehicle[s] that acted negligently in causing the accident;

-- Impulse Ambulance, Inc. and Does 6-10 were the employer of Chu and Does 1-5 and that Chu and/or Does 1-5 were acting in the course and scope of the employment at the time of the incident;

-- Impulse Ambulance, Inc. and Does 6-10 were the owners of the vehicle who had given Chu permission to operate the vehicle and also negligently entrusted the vehicle to him.

Plaintiff asserts causes of action for motor vehicle negligence and general negligence.

In May and August 2018, the complaint was amended to substitute in Defendants Sparkletts and DS Services of America, Inc. as Does 1 and 2, respectively. DS Services of America, Inc. answered on November 2018.

In May 2018, Defendants Ambulnz Heath LLC dba Impulse Ambulance (erroneously sued and served herein as Impulse Ambulance, Inc.) and Edmund Choo (erroneously served and sued herein as Edmundo Chu) answered Plaintiff’s complaint and filed a cross-complaint against Sparkletts and Roes 1-50, for indemnity and contribution. The cross-complaint alleged that cross-defendants owned, operated and/or maintained a Sparkletts vehicle and negligently parked the vehicle in a location where the accident occurred, causing or contributing to Plaintiff’s injuries or damages. DS Services of America, Inc. was substituted in as Roe 1, and answered on February 25, 2019.

In November 2018, Defendant DS Services of America, Inc. (“DS Services”) filed a cross-complaint against Ambulnz Health LLC and Edmund Choo, seeking indemnity and contribution.

On November 18, 2020, Defendant DS Services of America, Inc. filed a motion for summary judgment against Plaintiff on the ground DS Services of America, Inc. had no duty to Plaintiff as it was not the driver or owner of the vehicle that Plaintiff hit and was not the employer of Choo. The motion further argues that Plaintiff’s complaint does not properly allege that DS Services’ Sparklett’s truck had been negligently parked, but even if, hypothetically, that had been alleged, Choo’s negligence was a superseding cause of the accident.

On December 3, 2020, Plaintiff sought leave to file an amended complaint to more clearly articulate the theory against DS Services, specifically that DS Services “was the employer of Sandro Plascencia, who, while in the course and scope of his employment, negligently operated and parked a vehicle owned by DS Services that caused the subject collision and Plaintiff’s injuries.”

The court grants leave to amend pursuant to Code of Civil Procedure sections 473, subdivision (a) and 576. The record makes clear that the amended complaint simply articulates more clearly the theory against DS Services on which the parties had proceeded in this litigation. DS Services will not suffer prejudice from the court granting leave to amend. Indeed, the cross-complaint filed by Ambulnz Heath LLC and DS Services acknowledged in its summary judgment motion that it understood that Plaintiff’s theory against DS Services was that the Sparklett’s truck had been improperly parked. The court finds DS Services’ position wholly disingenuous.

On the court’s own motion, the court takes DS Services’ motion for summary judgment off calendar as MOOT. To the extent that DS Services needs additional time to re-file the summary judgment motion so that it may be timely heard before trial, DS Services may apply ex parte for an order continuing the trial date and specially setting the date for the hearing on the motion for summary judgment.

DS Services’ objections to the declaration of David Blain are OVERRULED.

Moving party is ordered to give notice.

Case Number: BC692347    Hearing Date: February 06, 2020    Dept: 2

Brown v. Impulse Ambulance Inc. et al.

The unopposed Motion to Be Relieved as Counsel for Plaintiff Irving Brown is GRANTED. Counsel has complied with the requirements of Cal Rules of Court 3.1362. The order shall be effective upon the filing of a proof of service of the signed order on the client. Cal Rules of Court 3.1362(e).  Counsel remains counsel of record until the proof of service is filed.

Moving party is ordered to give notice.

Case Number: BC692347    Hearing Date: January 06, 2020    Dept: 2

Brown v. Impulse Ambulance Inc. et al.

The unopposed Motion to Be Relieved as Counsel for Plaintiff Irving Brown is GRANTED.  Counsel has complied with the requirements of Cal Rules of Court 3.1362. The order shall be effective upon the filing of a proof of service of the signed order on the client. Cal Rules of Court 3.1362(e).  Counsel remains counsel of record until the proof of service is filed.

Moving party is ordered to give notice.