This case was last updated from Los Angeles County Superior Courts on 06/05/2021 at 04:33:09 (UTC).

SIMONE FEE VS MALIBU WINES

Case Summary

On 02/08/2018 SIMONE FEE filed a Personal Injury - Other Personal Injury lawsuit against MALIBU WINES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and DANIEL M. CROWLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3487

  • Filing Date:

    02/08/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CHRISTOPHER K. LUI

DANIEL M. CROWLEY

 

Party Details

Plaintiff and Petitioner

FEE SIMONE

Defendants and Respondents

DOES 1 TO 25

WINES MALIBU

MALIBU WINE HIKES (DOE 1)

MALIBU WINE HIKES DOE 1

ASHLEY AVIATION INC.

THE SEMLER COMPANIES/MALIBU

ASHLEY AVIATION INC.[DOE 3]

THE SEMLER COMPANIES/MALIBU [DOE 2]

MALIBU WINES

Defendants and Cross Plaintiffs

ASHLEY AVIATION INC.

THE SEMLER COMPANIES/MALIBU

Cross Defendant

ROES 1-50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BHAVSAR CHET R. ESQ.

BHAVSAR CHETAN RAMESH ESQ.

BHAVSAR CHETAN R. ESQ.

Defendant and Respondent Attorneys

BARDO EVAN L.

BARDO EVAN LEE

Cross Plaintiff Attorney

MILLS HEATHER LYNN

 

Court Documents

Separate Statement

12/29/2020: Separate Statement

Declaration - DECLARATION OF CHET R. BHAVASR IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

12/29/2020: Declaration - DECLARATION OF CHET R. BHAVASR IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Other - - AFFIDAVIT COMPENDIUM OF EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

12/29/2020: Other - - AFFIDAVIT COMPENDIUM OF EVIDENCE IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Reply - REPLY OF THE SEMLER COMPANIES/MALIBU AND ASHLEY AVIATION, INC.'S TO PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL IME

1/8/2021: Reply - REPLY OF THE SEMLER COMPANIES/MALIBU AND ASHLEY AVIATION, INC.'S TO PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL IME

Minute Order - MINUTE ORDER (DEFENDANTS SEMLER AND ASHLEY AVIATION, INC.'S MOTION FOR SUMM...)

1/11/2021: Minute Order - MINUTE ORDER (DEFENDANTS SEMLER AND ASHLEY AVIATION, INC.'S MOTION FOR SUMM...)

Notice of Ruling

1/12/2021: Notice of Ruling

Proof of Service (not Summons and Complaint)

10/26/2020: Proof of Service (not Summons and Complaint)

Separate Statement

10/26/2020: Separate Statement

Declaration - DECLARATION OF HEATHER L. MILLS IN SUPPORT OF DEFENDANTS TSC/MALIBU AND AAI'S MSJ

10/26/2020: Declaration - DECLARATION OF HEATHER L. MILLS IN SUPPORT OF DEFENDANTS TSC/MALIBU AND AAI'S MSJ

Request for Judicial Notice

10/26/2020: Request for Judicial Notice

Minute Order - MINUTE ORDER (COURT ORDER)

3/26/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Answer

7/22/2019: Answer

Proof of Personal Service

6/24/2019: Proof of Personal Service

Proof of Personal Service

4/3/2019: Proof of Personal Service

Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR AN ORDER TO SERVE THE SUMMONS AND COMPLAINT ON THE SECRETARY OF STATE

3/13/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION FOR AN ORDER TO SERVE THE SUMMONS AND COMPLAINT ON THE SECRETARY OF STATE

DEFENDANT MALIBU WINE HIKES' ANSWER TO COMPLAINT

6/1/2018: DEFENDANT MALIBU WINE HIKES' ANSWER TO COMPLAINT

AMENDMENT TO COMPLAINT -

4/16/2018: AMENDMENT TO COMPLAINT -

SUMMONS -

2/8/2018: SUMMONS -

54 More Documents Available

 

Docket Entries

  • 11/19/2021
  • Hearing11/19/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 11/05/2021
  • Hearing11/05/2021 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/09/2021
  • Hearing09/09/2021 at 1:30 PM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 06/18/2021
  • Hearing06/18/2021 at 11:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Informal Discovery Conference (IDC)

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  • 04/19/2021
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 04/07/2021
  • Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 02/08/2021
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Order to Show Cause Re: Dismissal - Not Held - Taken Off Calendar by Court

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  • 02/01/2021
  • DocketNotice of Ruling; Filed by The Semler Companies/Malibu [Doe 2] (Defendant); Ashley Aviation, Inc.[Doe 3] (Defendant)

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  • 01/28/2021
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Simone Fee (Plaintiff)

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  • 01/15/2021
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Compel (Independent Medical Examination) - Held - Motion Granted

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72 More Docket Entries
  • 06/01/2018
  • DocketProof of Service by 1st Class Mail

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  • 06/01/2018
  • DocketDEFENDANT MALIBU WINE HIKES' ANSWER TO COMPLAINT

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  • 06/01/2018
  • DocketAnswer; Filed by SKB Experiences, LLC dba Malibu Wine Hikes Erroneously Sued As Malibu Wine Hikes (Doe 1) (Defendant)

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  • 06/01/2018
  • DocketProof of Service (not Summons and Complaint); Filed by SKB Experiences, LLC dba Malibu Wine Hikes Erroneously Sued As Malibu Wine Hikes (Doe 1) (Defendant)

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  • 04/16/2018
  • DocketAmendment to Complaint; Filed by Simone Fee (Plaintiff)

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  • 04/16/2018
  • DocketAMENDMENT TO COMPLAINT

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  • 02/08/2018
  • DocketSUMMONS

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  • 02/08/2018
  • DocketCOMPLAINT FOR DAMAGES: 1. STRICT LIABILITY 2. NEGLIGENCE

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  • 02/08/2018
  • DocketSummons; Filed by Simone Fee (Plaintiff)

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  • 02/08/2018
  • DocketComplaint; Filed by Simone Fee (Plaintiff)

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Tentative Rulings

b'

Case Number: BC693487 Hearing Date: August 3, 2021 Dept: 28

Motion to Quash Subpoena

Having reviewed the motion, Opposition, and Reply, the Court rules as follows.

BACKGROUND

On February 8, 2018, Plaintiff Simone Fee (“Plaintiff”) filed a Complaint against Defendants Malibu Wines and DOES 1- 25, inclusive, alleging 2 causes of action arising from an injury Plaintiff on a safari at Defendant’s premises on February 13, 2016.

On January 8, 2019, Plaintiff filed an amendment, naming DOE 2 as The Semler Companies / Malibu (“Semler”).

Also on January 8, 2019, Plaintiff named DOE 3 as Ashley Aviation, Inc. (“AAI”).

On June 25, 2021, Plaintiff filed this instant motion to quash.

On July 21, 2021, Defendants Semler & AAI filed an Opposition.

On July 27, 2021, Plaintiff filed a Reply.

Trial is set for November 19, 2021.

PARTY’S REQUEST

Plaintiff requests the Court grant the motion to quash the subpoena for Plaintiff’s medical records.

LEGAL STANDARD

Code of Civil Procedure section 1987.1 grants the trial court authority to quash a subpoena when necessary. Section 1987.1 states, “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

DISCUSSION

Plaintiff suffered injuries when she was attacked by a water buffalo during a safari. Plaintiff testified at deposition that she had consulted two medical providers for psychological injuries related to the incident. Plaintiff refused to permit the disclosure of the records, and on June 1, 2021, Defendants Semler and AAI served subpoenas for the psychological records.

Plaintiff contends that Plaintiff has since requested that Defendants withdraw the subpoena, informing Defendants that she is not seeking any damages for any psychological injuries, would not be calling a psychological expert at trial, and would enter a stipulation to these terms. Plaintiff contends that Defendant has nevertheless refused to withdraw the subpoena. Plaintiff argues that the subpoenas violate Plaintiff’s right to privacy under the California Constitution. Plaintiff additionally contends that because she is not seeking psychological damages, the subpoenas are requesting information that is irrelevant.

“The public interest in preserving confidential, personnel information generally outweighs a private litigant’s interest in obtaining that information.” (Life Technologies Corp. v. Sup. Ct. (2011) 197 Cal.App.4th 640, 652.) “Plaintiff is not compelled, as a condition to entering the courtroom, to discard entirely her mantle of privacy. . . Defendant is required to make an actual showing that the information is directly relevant and must demonstrate that the need for such information is compelling.(Vinson v. Superior Court (1987) 43 Cal.3d 833, 841-842.)

In Opposition, Defendants acknowledge that Courts must balance the right of civil litigants with the need for discovery of private documents but contend that the records requested are directly relevant to the action Plaintiff has brought. Defendant contends that features of Plaintiff’s medical and psychological history will be directly relevant to the determination of whether Plaintiff’s emotional distress can be properly attributed to the incident in question. Plaintiff is requesting damages for a lifetime of pain management. Part of Plaintiff’s claim states that Plaintiff will require ablations for the remainder of her life, which is estimated to total somewhere between $1,167,000.00 and $2,022,800.00. Defendants contend that in his Court-ordered IME, Dr. Gerald Sacks determined that Plaintiff’s current pain complaints are not caused by injuries sustained from the subject incident, but rather from prior psychological and psychiatric conditions. Defendants contend that the disclosure of these records are essential to the resolution of this matter, and that the requests are no more intrusive than necessary. Defendants argue that Plaintiff has put her own medical records at issue here through the generality of her complaint and damages, and that Defendants have a compelling interest in the documents that would override Plaintiff’s privacy interests.

In Reply, Plaintiff argues that her pain was specifically articulated in the medical examination performed by Dr. Sacks, where she stated that the pain was a “searing, shooting pain” going from the left side of her neck to her head, as well as a shooting pain “from her left arm to her left hand, wrists, and fingers of her left hand.” She claimed electrical sensations in the same areas. Plaintiff argues that there were no active complaints of psychiatric or psychological injuries from the incident that were made to Dr. Sacks. Dr. Sacks believed Plaintiff’s psychological history of anxiety and depression where magnifying and exacerbating her perception of discomfort. Plaintiff contends that Defendant fails to show a compelling need for the medical records based only on the belief that past mental conditions were exacerbating current physical pain.

The Court is persuaded by Plaintiff’s argument. The medical examiner’s opinion that Plaintiff’s past diagnoses of depression & anxiety are known to exacerbate perceptions of discomfort may indeed make evidence relevant; however, Defendants must demonstrate a heightened standard of a compelling reason for disclosure where evidence is subject to a privacy right. Plaintiff has not put her psychological conditions at issue; the mere allegation that past mental conditions have been known to exacerbate physical pain is not sufficient to demonstrate a compelling need for “any and all documents and medical, mental health, psychiatric, and psychological records” pertaining to all aspects of Plaintiff’s past care.

Therefore, the motion will be GRANTED.

CONCLUSION

Plaintiff’s Motion to Quash Subpoena is GRANTED.

Plaintiff is ordered to give notice.

The parties are directed to the header of this tentative ruling for further instructions.

'b'

Case Number: BC693487 Hearing Date: August 2, 2021 Dept: 28

\r\n\r\n

Motion to Quash Subpoena

\r\n\r\n

Having reviewed the motion,\r\nOpposition, and Reply, the Court rules as follows.

\r\n\r\n

BACKGROUND

\r\n\r\n

On February 8, 2018, Plaintiff Simone Fee\r\n(“Plaintiff”) filed a Complaint against Defendants Malibu Wines and DOES 1- 25,\r\ninclusive, alleging 2 causes of action arising from an injury Plaintiff on a\r\nsafari at Defendant’s premises on February 13, 2016.

\r\n\r\n

On January 8, 2019,\r\nPlaintiff filed an amendment, naming DOE 2 as The Semler Companies / Malibu\r\n(“Semler”).

\r\n\r\n

Also on January 8,\r\n2019, Plaintiff named DOE 3 as Ashley Aviation, Inc. (“AAI”).

\r\n\r\n

On June 25, 2021,\r\nPlaintiff filed this instant motion to quash.

\r\n\r\n

On July 21, 2021,\r\nDefendants Semler & AAI filed an Opposition.

\r\n\r\n

On July 27, 2021,\r\nPlaintiff filed a Reply.

\r\n\r\n

Trial is set for\r\nNovember 19, 2021.

\r\n\r\n

PARTY’S REQUEST

\r\n\r\n

Plaintiff requests the\r\nCourt grant the motion to quash the subpoena for Plaintiff’s medical records.

\r\n\r\n

LEGAL STANDARD

\r\n\r\n

Code of Civil Procedure\r\nsection 1987.1 grants the trial court authority to quash a subpoena when\r\nnecessary. Section 1987.1 states, “If a subpoena requires the attendance\r\nof a witness or the production of books, documents, or other things before a court,\r\nor at the trial of an issue therein, or at the taking of a deposition, the\r\ncourt, upon motion reasonably made by any person described in subdivision (b),\r\nor upon the court’s own motion after giving counsel notice and an opportunity\r\nto be heard, may make an order quashing the subpoena entirely, modifying it, or\r\ndirecting compliance with it upon those terms or conditions as the court shall\r\ndeclare, including protective orders. In addition, the court may make any\r\nother order as may be appropriate to protect the person from unreasonable or\r\noppressive demands, including unreasonable violations of the right of privacy\r\nof the person.”

\r\n\r\n

DISCUSSION

\r\n\r\n

Plaintiff suffered\r\ninjuries when she was attacked by a water buffalo during a safari. Plaintiff testified at deposition that she had\r\nconsulted two medical providers for psychological injuries related to the\r\nincident. Plaintiff refused to permit the disclosure of the records, and on\r\nJune 1, 2021, Defendants Semler and AAI served subpoenas for the psychological\r\nrecords.

\r\n\r\n

Plaintiff contends that Plaintiff has since requested\r\nthat Defendants withdraw the subpoena, informing Defendants that she is not\r\nseeking any damages for any psychological injuries, would not be calling a\r\npsychological expert at trial, and would enter a stipulation to these terms.\r\nPlaintiff contends that Defendant has nevertheless refused to withdraw the\r\nsubpoena. Plaintiff argues that the subpoenas violate Plaintiff’s right to\r\nprivacy under the California Constitution. Plaintiff additionally contends that\r\nbecause she is not seeking psychological damages, the subpoenas are requesting\r\ninformation that is irrelevant.

\r\n\r\n

“The public interest in preserving confidential,\r\npersonnel information generally outweighs a private litigant’s interest in\r\nobtaining that information.” (Life Technologies Corp. v. Sup. Ct. (2011)\r\n197 Cal.App.4th 640, 652.) “Plaintiff is not compelled, as a condition to\r\nentering the courtroom, to discard entirely her mantle of privacy. . .\r\nDefendant is required to make an actual showing that the information\r\nis directly relevant and must demonstrate that the need for such information is\r\ncompelling.(Vinson v. Superior Court (1987) 43 Cal.3d 833,\r\n841-842.)

\r\n\r\n

In Opposition, Defendants acknowledge that Courts must\r\nbalance the right of civil litigants with the need for discovery of private\r\ndocuments but contend that the records requested are directly relevant to the\r\naction Plaintiff has brought. Defendant contends that features of Plaintiff’s\r\nmedical and psychological history will be directly relevant to the\r\ndetermination of whether Plaintiff’s emotional distress can be properly\r\nattributed to the incident in question. Plaintiff is requesting damages for a\r\nlifetime of pain management. Part of Plaintiff’s claim states that Plaintiff\r\nwill require ablations for the remainder of her life, which is estimated to\r\ntotal somewhere between $1,167,000.00 and $2,022,800.00. Defendants contend\r\nthat in his Court-ordered IME, Dr. Gerald Sacks determined that Plaintiff’s\r\ncurrent pain complaints are not caused by injuries sustained from the subject\r\nincident, but rather from prior psychological and psychiatric conditions.\r\nDefendants contend that the disclosure of these records are essential to the\r\nresolution of this matter, and that the requests are no more intrusive than necessary.\r\nDefendants argue that Plaintiff has put her own medical records at issue here\r\nthrough the generality of her complaint and damages, and that Defendants have a\r\ncompelling interest in the documents that would override Plaintiff’s privacy\r\ninterests.

\r\n\r\n

In Reply, Plaintiff\r\nargues that her pain was specifically articulated in the medical examination\r\nperformed by Dr. Sacks, where she stated that the pain was a “searing, shooting\r\npain” going from the left side of her neck to her head, as well as a shooting\r\npain “from her left arm to her left hand, wrists, and fingers of her left\r\nhand.” She claimed electrical sensations in the same areas. Plaintiff argues\r\nthat there were no active complaints of psychiatric or psychological injuries\r\nfrom the incident that were made to Dr. Sacks. Dr. Sacks believed Plaintiff’s\r\npsychological history of anxiety and depression where magnifying and exacerbating\r\nher perception of discomfort. Plaintiff contends that Defendant fails to show a\r\ncompelling need for the medical records based only on the belief that past\r\nmental conditions were exacerbating current physical pain.

\r\n\r\n

The Court is persuaded\r\nby Plaintiff’s argument. The medical examiner’s opinion that Plaintiff’s past\r\ndiagnoses of depression & anxiety are known to exacerbate perceptions of\r\ndiscomfort may indeed make evidence relevant; however, Defendants must\r\ndemonstrate a heightened standard of a compelling reason for disclosure where\r\nevidence is subject to a privacy right. Plaintiff has not put her psychological\r\nconditions at issue; the mere allegation that past mental conditions have been\r\nknown to exacerbate physical pain is not sufficient to demonstrate a compelling\r\nneed for “any and all documents and medical, mental health, psychiatric, and\r\npsychological records” pertaining to all aspects of Plaintiff’s past care.

\r\n\r\n

Therefore, the motion\r\nwill be GRANTED.

\r\n\r\n

CONCLUSION

\r\n\r\n

Plaintiff’s Motion to\r\nQuash Subpoena is GRANTED.

\r\n\r\n

Plaintiff is ordered to\r\ngive notice.

\r\n\r\n

\r\n\r\n

The parties are directed to the header of this tentative ruling for further\r\ninstructions.

\r\n\r\n'

Case Number: BC693487    Hearing Date: January 15, 2021    Dept: 28

Motion to Compel Independent Medical Examination

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On February 8, 2018, Plaintiff Simone Fee filed a complaint against Defendant Malibu Wines and Does 1 to 25 for (1) strict liability and (2) negligence.  The complaint alleges Plaintiff was present on Defendants’ property where the animals were maintained as part of a wine/safari tour and was injured when a water buffalo rammed Plaintiff with its head as Plaintiff attempted to touch the water buffalo’s head at the tour guide’s encouragement.  

On April 16, 2018, Plaintiff filed an amendment to complaint, substituting in Malibu Wine Hikes for Doe 1.  

On January 8, 2019, Plaintiff filed amendments to the complaint, substituting in The Semler Companies/Malibu and Ashley Aviation, Inc. for Does 2 and 3, respectively.  

On July 22, 2019, The Semler Companies/Malibu and Ashley Aviation, Inc. filed a cross-complaint against Roes 1 through 50 for (1) indemnity, (2) contribution and apportionment, and (3) declaratory relief. 

On September 17, 2020, Plaintiff filed an amendment to the complaint, correcting Malibu Wine Hikes to SKB Experiences, LLC dba Malibu Wine Hikes.  

On December 22, 2020, Defendants The Semler Companies/Malibu and Ashley Aviation, Inc. filed a motion to compel a second independent medical examination of Plaintiff.  

Trial is scheduled for April 19, 2021

PARTIES’ REQUEST

Defendants The Semler Companies/Malibu and Ashley Aviation request for an order compelling Plaintiff Simone Fee to comply with Defendants’ Demand for Independent Medical Examination to be completed by Pain Management specialist Dr. Gerald Sacks.  

LEGAL STANDARD

In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.  (2) The examination is conducted at a location within 75 miles of the residence of the examinee.”  (Code Civ. Proc., § 2032.220, subd. (a).)  “If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.”  (Code Civ. Proc., § 2032.310, subd. (a).)  “The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.”  (Code Civ. Proc., § 2032.320, subd. (a).)  “If a defendant who has demanded a physical examination under this article, on receipt of the plaintiff’s response to that demand, deems that any modification of the demand, or any refusal to submit to the physical examination is unwarranted, that defendant may move for an order compelling compliance with the demand.”  (Code Civ. Proc., § 2032.250, subd. (a).)  

DISCUSSION

Good cause exists for a second medical examination of Plaintiff due to the substantial and significant change in Plaintiff’s medical condition and the injuries at issue.  

Plaintiff filed the Complaint on February 18, 2018.  Defendants were named in this action on January 8, 2019.  Defendants subsequently conducted discovery, including serving form interrogatories in which Plaintiff identified her injuries as follows: neck pain, left arm pain, left hand numbness, muscle spasms, and headaches.  (Bhavsar Decl., Exh. A.)  Plaintiff also identified in her responses that she had consulted Dr. Bahman Shamloo for pain management treatment on 11/9/16. 12/2/16. 1/10/17, 3/14/17, 6/6/17, 7/5/17, 9/12/17 10/20/17, 1/16/18, 5/17/18, and 5/3/19.  Plaintiff also stated that Dr. Shamloo recommended “additional ablations, stem cell treatment, Botox injections, continued use of Gabapentin and additional physical therapy.”  Those responses were served on November 18, 2019.  (Id.)  

Plaintiff underwent an independent medical examination with Dr. Barry Ludwig on February 6, 2020.  (Mills Decl., ¶ 6.)  However, on February 20, 2020, and prior to a March 27, 2020 mediation between the parties and after the deposition of Dr. Pahvani Gunter (Plaintiff’s treating neurologist), Plaintiff was recommended by Dr. Shamloo for long term and lifelong treatment for Plaintiff’s injuries.  (Mills Decl., Exh. 3.)  Defendants assert that Defendants were first presented this information when served with Plaintiff’s mediation brief.  (Id.)  Defendants argue that they were presented for the first time with the opinion of Dr. Shamloo in his long term and lifelong treatment recommendation, which was not mentioned during Dr. Gunter’s deposition.  (Id., ¶ 8.)  Thus, due not only to the passage of time but the significant change in Plaintiff’s diagnosis of her medical condition and the recommendation for lifelong treatment,  good cause exists for a second medical examination of Plaintiff.  

As an alternative to denying Defendants’ motion, Plaintiff argues that the examination with Dr. Gerald M. Sacks, M.D. should be substantively limited to the objections raised in Plaintiff’s response to Defendants’ Demand for Medical Examination.  However, laws governing the conduct of independent medical examinations are set forth in Code of Civil Procedure Section 2032.510, et seq.  Therefore, the Court will not limit the medical examination based solely on Plaintiff’s objections.  

CONCLUSION

The motion is GRANTED. Plaintiff is ordered to appear for Defendants’ second independent medical examination with Dr. Gerald M. Sacks, M.D. on February 17, 2020, unless the parties stipulate in writing to an alternative mutually convenient date and time.  

Defendants The Semler Companies/Malibu and Ashley Aviation are to give notice.  

The parties are directed to the header of this tentative ruling for further instructions.  

Case Number: BC693487    Hearing Date: January 11, 2021    Dept: 28

  1. Motion for Summary Judgment, or in the Alternative, Summary Adjudication

  1. Joinder to Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the movingopposition, and reply papers, the Court rules .

BACKGROUND

On February 8, 2018, Plaintiff Simone Fee filed a complaint against Defendant Malibu Wines and Does 1 to 25 for (1) strict liability and (2) negligence.  The complaint alleges Plaintiff was present on Defendants’ property where the animals were maintained as part of a wine/safari tour and was injured when a water buffalo rammed Plaintiff with its head as Plaintiff attempted to touch the water buffalo’s head at the

On April 16, 2018, Plaintiff filed an amendment to complaint, substituting in Malibu Wine Hikes for Doe 1.

On January 8, 2019, Plaintiff filed amendments to complaint, substituting in The Semler Companies/Malibu and Ashley Aviation, Inc. for Does 2 and 3, respectively.

On July 22, 2019, The Semler Companies/Malibu and Ashley Aviation, Inc. filed a cross-complaint against Roes 1 through 50 for (1) indemnity, (2) contribution and apportionment, and (3) declaratory relief.

On September 17, 2020, Plaintiff filed an amendment to complaint, correcting Malibu Wine Hikes to SKB Experiences, LLC dba Malibu Wine Hikes.

On October 26, 2020, Defendants The Semler Companies/Malibu (“Semler”) and Ashley Aviation, Inc. (“AAI”) Defendant SKB Experiences, LLC dba Malibu Wine Hikes (“Hikes”) filed a joinder to Semler and AAI’s motion on the same date.

On December 29, 2020, Plaintiff filed opposition papers to Semler and AAI’s motion and Hikes’ joinder to Semler and AAI’s motion.

On January 6, 2021, Defendants Semler and AAI filed reply papers.  Defendant Hikes filed reply papers on the same date.

Trial is set for April 19, 2021.

PARTYS

Defendants Semler and AAI move for entry of summary judgment in their favor on grounds that Plaintiff’s claims are barred by the doctrine of primary assumption of risk, water buffalo are not considered wild animals for strict liability purposes, and Defendants were not the owner of the water buffalo. Alternatively, Defendants move for summary adjudication.

Defendant Hikes seeks to join Semler and AAI’s motion for summary judgment and for entry of summary judgment, or in the alternative, summary adjudication, on grounds that Plaintiff’s claims are barred by the doctrine of primary assumption of risk and water buffalo are not considered wild animals for strict liability purposes.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) subd(p)(2).) Ibid.) Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivisupra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

DEFENDANTS THE SEMLER COMPANIES/MALIBU AND

Evidentiary Objections

Defendants have submitted ten evidentiary objections to Plaintiff’s evidence.  Objections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are OVERRULED. Wood’s statement regarding Micah Semler telling her that the water buffalo charged him and he had to jump over the pen fence to get away from the animal is not hearsay as it is being offered to show prior notice or knowledge of dangerous

Request for Judicial Notice

Defendants Semler and AAI request judicial notice of the complaint, Plaintiff’s amendment to complaint adding Semler as Doe 2, Plaintiff’s amendment to complaint adding AAI as Doe 3, and Defendants’ answer. GRANTED.

Plaintiff has requested judicial notice of the complaint, Plaintiff’s amendment to complaint adding Semler as Doe 2, and Plaintiff’s amendment to complaint adding AAI as Doe 3. GRANTED.

Primary Assumption of Risk

The primary assumption of risk doctrine was developed in recognition that some activities are inherently dangerous such that the defendant has no duty to protect the plaintiff from those inherent dangers.  (Nalwa v. Cedar Fair, L.P. Knight v. Jewett Id. Id. Kahn v. East Side Union High School Dist. increase Id. Moser v. Ratinoff Id.

“‘[W]hether Moser, supra, 105 Cal.App.4th at 1219-20 (quoting Knight, supra, 3 Cal.4th at 309).)  “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’”  (Nalwa, supra, 55 Cal.4th at 1156 (quoting Beninati v. Black Rock City, LLC Knight Id.

The primary assumption of risk is a complete defense to strict liability for injuries caused by a dangerous animal.  (Rosenbloom v. Hanour

Defendants argues the primary assumption of risk applies because injuries are an inherent risk involved with interacting with and attempting to pet a large horned animal. Whether the primary assumption of risk doctrine applies depends on whether the receational activity involves an inherent risk of injury. The activity at issue here is wine hike where the participants can approach penned animals.  (Complaint, ¶¶ 8-10; Plaintiff’s Separate Statement of Disputed and Undisputed Material Facts (“Plaintiff’s UMF”) Nos. 1-4.)

The Court finds that participating in a hike where one can pet a water buffalo does not carry an inherent risk of especially where the defendants assure the Plaintiff that there is no risk in petting the  animal.  The primary assumption of risk doctrine thus does not apply in this case.  Defendants are not entitled to summary judgment on this ground.

Strict Liability

Strict liability is imposed on individuals who keep a naturally dangerous animal.  (Rosenbloom v. Hanour Thomas v. Stenberg Baugh v. Beatty 1949) 91 Cal.App.2d 786, 791.)

  1. Whether Water Buffalo Are Considered Wild Animals

Defendants contend strict liability does not apply because water buffalo are not wild animals.

Defendants rely on Health & Safety Code section 113795 to support their contention.  Health & Safety Code section 113795 provides that a water buffalo is a “game animal”.  (Health & Safety Code, § 113795(b).)  Section 113795 is part of the California Retail Food Code, the purpose of which is to “safeguard public health and provide to consumers food that is safe, unadulterated, and honestly presented through adoption of science-based standards.”  (Id., § 113703.)  The provision is not to define “wild animal” for purposes of tort liability.  Los Angeles County Ordinance section 10.08.170 defining “livestock” also does not define “wild animal” for purposes of tort liability.  

Rather, for strict liability purposes, “[a] wild animal is one that belongs to a category of animals that have not generally been domesticated and thus are likely to injure persons if not restrained.”  (Gaab Defendants have not provided evidence demonstrating water buffalo are domesticated animals and unlikely to injure people if not restrained.  Defendants have thus failed to meet their burden of demonstrating that water buffalo are not wild animals for strict liability purposes.

  1. Lack of Ownership

Defendants argue they cannot be liable for strict liability because they did not own the water buffalo.

CACI 461 provides that “[p]eople

The Court finds that, to the extent Defendants’ argument only on a lack of ownership, Defendants have failed to meet their burden of demonstrating they cannot be liable for strict liability.  However, Defendants have indicated in their separate statement that they lacked both ownership and control over the animals.  (Defendant’s UMF Nos. 20-23.) The Court will thus discuss whether Defendants have met their burden of showing they did not own, keep, or control the water buffalo.

To support their lack of ownership and control, Defendants rely on the agreement entered into between them and co-defendant Hikes.  The agreement provides Hikes with use of portions of Defendants’ property for conducting its tours.  (Defendants’ Compendium of Exhibits (“Defendants’ Exhibits”), Ex. M, Agreement.)  The addendum to the agreement transferred ownership of Defendants’ animals, including water buffalo, to co-defendant Hikes and further provided that Hikes was to be solely responsible for the animals, including providing feed, maintaining appropriate and adequate pens, fencing, and barriers, and ensuring all statutory and legal requirements are met.  (Id., Ex. M, Addendum to Usage Agreement.) Id., Addendum to Usage Agreement, ¶ 6.) to show Defendants were not the owners, keepers, or controllers of the water buffalo.

In opposition, Plaintiff argues of the incident because co-defendant Hikes did not exist at the time the agreement and addendum were executed—i.e., January 1 or January 15, 2016, or even on the date of the incident—i.e., February 13, 2016. Plaintiff argues Hikes was not formed until February 22, 2016 and thus could not have acquired the property as of the date of the injury.

“A limited liability company is formed when the Secretary of State has filed the articles of organization.”  (Corp. Code, Plaintiff’s Compendium of Evidence, Ex. 14, Defendant Hikes’ Responses to Requests for Admission, Set One, No. 19.) The agreement between Defendants and co-defendant Hikes was thus entered into prior to Hikes’ formation as a limited liability company.

However, as acknowledged by Plaintiff, “a corporation can enforce preincorporation 02 Development, LLC v. 607 South Park, LLC This also applies to limited liability companies.  (Id.)  Once a limited liability company comes into existence, it can enforce any pre-organization contract made in its behalf, if it adopted or ratified it.  (Id.)  

Plaintiff argues that Defendants cannot rely on post-formation ratification because post-formation ratification cannot change the fact that at the time of injury the transactions were void and cannot retroactively transfer property rights to Hikes before its existence.  Plaintiff argues that the only effect of ratification is to allow the corporation to acquire the rights now based on the contracts that were executed before ratification.  The Court agrees.  While Semler/AAI and Hikes may be able to retroactively enforce rights between them, vis-a-vis the Plaintiff, the fact is that Semler/AAI owned the water buffalo and title for it did not transfer until Hike’s legal existence.  

In reply, Defendants argue Plaintiff has no standing to challenge the validity and enforceability of the agreement.  Defendants’ Plaintiff is not challenging the validity and enforceability of the agreement.  Rather, Plaintiff’s argument is that the agreement is not evidence that Hikes was the owner and controller of the water buffalo and Defendants were not.

Defendants also argue in reply that Hikes ratified the contract post-formation.  Defendants have failed to point to

As triable issues of material fact exist as to whether Semler and AAI owned the water buffalo, Defendants are not entitled to summary judgment or adjudication as to the strict liability claim on grounds that they did not own or control the water buffalo. ’ Joinder was limited to Semler and AAI’s arguments that plaintiff assumed the risk of her injury and that the water buffalo was not a “Wild Animal.”  Hikes did not join in the argument that it was not an owner of the animal.  Accordingly, it cannot be granted summary judgment on this basis, either,

Negligence

A landowner’s liability for injuries to person on the property depends on the balancing of a number of factors, particularly the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant, and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.  (Wiener v. Southcoast Childcare Centers, Inc.

Defendants argue they cannot be held liable for negligence because it was unforeseeable that the water buffalo would attack someone given his docile nature and lack of any prior aggressive behavior. According to Defendants’ evidence, there have been no prior incidents involving the subject water buffalo—i.e., Speeder—or any of the other water buffalo getting his horns through the fencing and no no prior incidents where Speeder attacked a guest or employee.  (Defendants Defendants’ Exhibits, Ex. F, Micah Depo., pp. 58-60; Defendants Defendants’ , Ex. J, AAI’s Responses to Plaintiff’s Special Interrogatories, Set No. One, No. 22.)  Defendants’ evidence also shows that Speeder has Exhibits, Ex. F, Micah Depo., pp.40, 59-61; Defendants’ Exhibits, Ex. I, Madison Depo, pp. 30, 44.) to meet Defendants’ burden of showing that

In opposition, Plaintiff’s evidence shows that Defendants had a policy where guests were to maintain a distance of two feet from the water buffalo pen and not pet the water buffalo, the tour guides were to inform guests not to approach the water buffalo, the tour guides did not inform Plaintiff and her friends of such on the date of the incident, Defendants were unsure of how the water buffalo would be around other people, and that Speeder had previously charged at Micah Semler who had to jump over the pen fence to get away from the animal. Ex. 5, Micah Depo,, p. 40; Plaintiff’s Exhibits, Ex. 6, Madison Depo., p. 18; Plaintiff’s Exhibits, Ex. 4, Plaintiff’s Depo., pp. 120-121; Plaintiff’s Exhibits, Ex. 7, Wood Decl., ¶¶ 5, 7, 9; Plaintiff’s Exhibits, Ex. 8, Augustyn 9; Plaintiff’s Exhibits, Ex. 14, Defendant Hikes’ Responses to Request for Admissions, Set One, Nos. 13, 14.) raise er buffalo would attack someone such that Defendants owed a duty to Plaintiff to warn of such.

As triable issues of material fact exist as to foreseeability, Defendants are not entitled to summary judgment or adjudication on the negligence claim.

Motion for Summary Adjudication

Defendants move for summary adjudication in the alternative.  Defendants are not entitled to summary adjudication for the reasons stated above.

DEFENDANT SKB EXPERIENCES, LLC DBA MALIBU WINE HIKES’ MOTION

Whether Joinder is Proper

Defendant Hikes has filed a motion to join Defendants Semler and AAI’s motion for summary judgment, or in the alternative, summary adjudication.

A party may join a motion for summary judgment by filing a separate statement that identifies the evidence demonstrating that the joining party is entitled to summary judgment.  (Frazee v. Seely Id., at 636-37.)  In Frazee, the Court of Appeal found that the trial court had incorrectly granted summary judgment on a joinder because the joinder did not include a separate statement and because the joinder was untimely.

Here, Defendant Hikes has included a separate statement with its joinder.  The proof of service filed on October 26, 2020 demonstrates that Hikes has also timely served the notice of joinder.  Defendant Hikes’ joinder is thus proper.

Evidentiary Objections

Defendant Hikes has submitted ten evidentiary objections to Plaintiff’s evidence.  Objections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are OVERRULED.  As discussed, Wood’s statement regarding Micah Semler telling her that the water buffalo charged him and he had to jump over the pen fence to get away from the animal is not hearsay as it is being offered to show prior notice or knowledge of dangerous behavior by the water buffalo.

Request for Judicial Notice

Defendant Hikes requests judicial notice of Plaintiff’s amendment to complaint adding Hikes as Doe 1, Plaintiff’s amendment to complaint amending Hikes’ name as Doe 1, and Hikes’ answer.  The request is GRANTED.

Primary Assumption of Risk

Defendant Hikes argues Plaintiff’s claims are barred by the doctrine of primary assumption of risk .  Hikes’ argument is unavailing.  As discussed with Semler and AAI’s motion, the activity at issue is a wine hike where the participants can approach penned animals.  Participating in such an activity does not carry an inherent risk of injury, especially not the type of injuries Plaintiff suffered from being rammed and repeatedly smashed against the fence by an allegedly wild animal.

Additionally, as discussed, the arguments regarding Plaintiff voluntarily and consciously bringing about her injury entail secondary, not primary, assumption of risk, which has been subsumed into comparative fault. (Knight v. Jewett (1992) 3 Cal.4th 296, 314-15.)

Strict Liability

Defendant Hikes argues Plaintiff’s claim for strict liability fails because water buffalo are not considered wild animals for strict liability purposes.

Like Semler and AAI, Hikes relies on Health & Safety Code section 113795 and Los Angeles County Ordinance section 10.08.170 to support its neither Health & Safety Code section 113795 nor Los Angeles County Ordinance section 10.08.170 define “wild animal” for purposes of tort liability. Rather, for strict liability purposes, “[a] wild animal is one that belongs to a category of animals that have not generally been domesticated and thus are likely to injure persons if not restrained.”  (Gaab Hikes has not provided evidence demonstrating water buffalo are domesticated animals and unlikely to injure people if not restrained.  Defendant Hikes has thus failed to meet its burden of demonstrating that water buffalo are not wild animals for strict liability purposes.

Negligence

Defendant Hikes argues the negligence claim fails because it was unforeseeable the water buffalo would attack someone given his docile nature and lack of any prior aggressive behavior.

Hikes relies on the same evidence as relied on by Semler and AAI to support its argument, namely that there have been no prior incidents involving water buffalo Speeder or any of the other water buffalo getting his horns through the fencing and no contact with a guest, no prior incidents where Speeder attacked a guest or employee, Speeder has never exhibited any type of aggressive behavior, Speeder was docile and able to interact without issue with humans prior to the incident, and that Speeder was described to be like a big puppy dog and had even been ridden by a Malibu Wines Hikes employee.  (Defendant Hikes’ UMF Nos. 8-13.)

In opposition, Plaintiff relies on the same evidence as she did in opposing Semler and AAI’s motion.  As discussed, Plaintiff’s evidence shows that Defendants had a policy where guests were to maintain a distance of two feet from the water buffalo pen and not pet the water buffalo, the tour guides were to inform guests not to approach the water buffalo, the tour guides did not inform Plaintiff and her friends of such on the date of the incident, Defendants were unsure of how the water buffalo would be around other people, and that Speeder had previously charged at Micah Semler who had to jump over the pen fence to get away from the animal.  (Plaintiff’s UMF Nos. 8-9, 11-13.) This is sufficient to raise triable issues of material fact as to whether it was foreseeable that the water buffalo would attack someone such that Hikes owed a duty to Plaintiff to warn of such.

As triable issues of material fact exist as to foreseeability, Defendant Hikes is

Motion for Summary Adjudication

Defendant Hikes moves for summary adjudication in the alternative.  Hikes is not entitled to summary adjudication for the reasons stated above.

CONCLUSION

Based on the foregoing, Defendant The Semler Companies/Malibu and Ashley Aviation, Inc.’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.

Defendant SKB Experiences, LLC dba Malibu Wine Hikes’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.

Defendants The Semler Companies/Malibu and Ashley Aviation, Inc. are

The parties are directed to the header of this tentative ruling for further instructions.¿

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