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This case was last updated from Los Angeles County Superior Courts on 06/14/2019 at 08:18:22 (UTC).

TALIA WISE VS SIX FLAGS ET AL

Case Summary

On 10/11/2017 TALIA WISE filed a Personal Injury - Other Personal Injury lawsuit against SIX FLAGS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9307

  • Filing Date:

    10/11/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

PATRICIA D. NIETO

GEORGINA T. RIZK

 

Party Details

Plaintiff and Guardian Ad Litem

WISE JULIE

Defendants and Respondents

DOES 1 THROUGH 100

SIX FLAGS MAGIC MOUNTAIN

SIX FLAGS ENTERTAINMENT CORPORATION

SIX FLAGS

MAGIC MOUNTAIN LLC

FLAGS SIX

Minor

WISE TALIA

Attorney/Law Firm Details

Defendant and Respondent Attorney

AMARO|BALDWIN LLP

Minor Attorneys

KARPEL DONALD E. ESQ.

ANDRE M. LAGOMARSINO ESQ.

 

Court Documents

Unknown

7/20/2018: Unknown

Amendment to Complaint (Fictitious/Incorrect Name)

5/29/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Notice

6/3/2019: Notice

Motion to Compel Further Discovery Responses

6/5/2019: Motion to Compel Further Discovery Responses

Request for Judicial Notice

6/5/2019: Request for Judicial Notice

Minute Order

1/17/2018: Minute Order

RULING RE: MOTION AND APPLICATION BY ANDRE LAGOMARSINO TO APPEAR AS COUNSEL PRO HAC VICE FOR PLAINTIFF

1/17/2018: RULING RE: MOTION AND APPLICATION BY ANDRE LAGOMARSINO TO APPEAR AS COUNSEL PRO HAC VICE FOR PLAINTIFF

ANSWER TO COMPLAINT

1/16/2018: ANSWER TO COMPLAINT

NOTICE OF RULING GRANTING APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE

1/18/2018: NOTICE OF RULING GRANTING APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

12/14/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

APPLICATION AND ORDER FOR APPOTNTMENT OF GUARDIAN AD LITEM

10/11/2017: APPLICATION AND ORDER FOR APPOTNTMENT OF GUARDIAN AD LITEM

NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

11/7/2017: NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

STIPULATION TO STRIKE PUNITIVE DAMAGES WITHOUT PREJUDICE, AND ORDER THEREON

12/5/2017: STIPULATION TO STRIKE PUNITIVE DAMAGES WITHOUT PREJUDICE, AND ORDER THEREON

NOTICE OF MOTION; ANDRE M. LAGOMARSINO'S VERIFIED APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE

12/1/2017: NOTICE OF MOTION; ANDRE M. LAGOMARSINO'S VERIFIED APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE

NOTICE OF MOTION, AND MOTION TO STRIKE PUNITIVE DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; AND PROPOSED ORDER THEREON

11/14/2017: NOTICE OF MOTION, AND MOTION TO STRIKE PUNITIVE DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; AND PROPOSED ORDER THEREON

PROOF OF SERVICE SUMMONS

11/6/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

11/6/2017: PROOF OF SERVICE SUMMONS

COMPLAINT FOR DAMAGES FOR: 1. PREMISES LIABILITY 2. NEGLIGENCE

10/11/2017: COMPLAINT FOR DAMAGES FOR: 1. PREMISES LIABILITY 2. NEGLIGENCE

12 More Documents Available

 

Docket Entries

  • 06/05/2019
  • Motion to Compel Further Discovery Responses; Filed by Julie Wise (Plaintiff); Talia Wise (Plaintiff)

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  • 06/05/2019
  • Separate Statement; Filed by Julie Wise (Plaintiff); Talia Wise (Plaintiff)

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  • 06/03/2019
  • Notice (Videotaped Depositions of Intaride LLC); Filed by Julie Wise (Plaintiff); Talia Wise (Plaintiff)

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  • 05/29/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Julie Wise (Plaintiff)

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  • 04/11/2019
  • at 08:30 AM in Department 2, Georgina T. Rizk, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 03/27/2019
  • at 10:00 AM in Department 2, Georgina T. Rizk, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 02/13/2019
  • Stipulation and Order (to Continue Trial); Filed by Julie Wise (Plaintiff); Talia Wise (Plaintiff)

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  • 07/20/2018
  • at 08:30 AM in Department 2; Court Order - Held

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  • 07/20/2018
  • Minute order entered: 2018-07-20 00:00:00; Filed by Clerk

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  • 07/20/2018
  • Order; Filed by Magic Mountain, LLC (Defendant)

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27 More Docket Entries
  • 11/06/2017
  • PROOF OF SERVICE SUMMONS

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  • 11/06/2017
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 11/06/2017
  • PROOF OF SERVICE SUMMONS

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  • 11/06/2017
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 11/01/2017
  • Declaration

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  • 11/01/2017
  • DECLARATION OF NON SERVICE

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  • 10/11/2017
  • APPLICATION AND ORDER FOR APPOTNTMENT OF GUARDIAN AD LITEM

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  • 10/11/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 10/11/2017
  • Complaint; Filed by null

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  • 10/11/2017
  • COMPLAINT FOR DAMAGES FOR: 1. PREMISES LIABILITY 2. NEGLIGENCE

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Tentative Rulings

Case Number: BC679307    Hearing Date: February 02, 2021    Dept: F49

Dept. F-49

Calendar # 9

Date: 2-2-21

Case #BC679307

Trial Date: 3-8-21 c/f 9-21-20

STRIKE ANSWER

MOVING PARTY: Plaintiff, Talia Wise

RESPONDING PARTY: Defendants, Magic Mountain, LLC, et al.

RELIEF REQUESTED

Motion to Strike Answer

SUMMARY OF ACTION

Plaintiff Talia Wise, 14 years old at the time, went to Magic Mountain on April 18, 2015 with her friends and boarded the Green Lantern ride.  Plaintiff alleges that while participating in the attraction experience, her body “shot forward, her eyes forced closed,” she hit her head, and then her body “shot backwards.” Plaintiff exited the attraction and “blacked out.” Plaintiff woke up to a medic asking a series of questions as to her condition.

On October 11, 2017, Plaintiff filed a complaint for Premises Liability and Negligence. Magic Mountain, LLC answered on January 16, 2018. On December 3, 2019, Plaintiff substituted in Defendant Intaride, LLC for Doe 2. On January 15, 2020, Defendant Intaride, LLC answered the complaint and filed a cross-complaint for indemnity and equitable relief.

On March 5, 2020, the court granted Plaintiff leave to file a first amended complaint. On March 20, 2020, Plaintiff filed her first amended complaint for Premises Liability, Negligence, Willful Misconduct, Products Liability, Fraud, and Voluntary Undertaking. On April 24, 2020, Intaride, LLC answered the first amended complaint.

On August 19, 2020, the court granted in part and denied in part Plaintiff’s motion to reopen discovery. On November 16, 2020, the court sustained the demurrer of Magic Mountain, LLC to the sixth cause of action for voluntary undertaking with 30 days leave to amend. On November 20, 2020, Plaintiff dismissed Intaride, LLC. On December 18, 2020, Plaintiff dismissed the Voluntary Undertaking cause of action.

RULING: Denied

Plaintiff moves to strike the answer of Magic Mountain, LLC based on Defendant’s alleged spoliation of evidence—specifically, the Ride Audit Forms on the Green Lantern roller coaster generated for the year before the subject incident. Plaintiff also alleges Magic Mountain dismantled the rollercoaster before Plaintiff was given an opportunity to inspect the site. Plaintiff alternatively moves for the imposition of “an adverse evidentiary inference” and monetary sanctions.

Plaintiff sent a February 2, 2017 preservation letter and May 5, 2017 demand letter. After a series of discovery exchanges and motions, Plaintiff demanded production of all audit forms from April 18, 2014 to April 18, 2015 for the subject attraction in an April 29, 2020 meet and confer letter. Plaintiff also previously served a notice of inspection, which never occurred. The ride was dismantled and relocated to a park in Canada.

Defendant in opposition contends that it maintains a known policy of document destruction after three years. Audit documents dated between 2015 to 2015 were therefore duly destroyed in 2018—prior to any request for production. Defendant also states that Plaintiff was aware of the dismantling process commenced prior to any demand for site inspection. Plaintiff was never denied access. Plaintiff’s expert was still able to render an opinion. Defendant challenges any assertion of intentional spoliation.

Plaintiff in reply denies “actual knowledge or notice” of the rollercoaster dismantling prior to the request for an inspection. Plaintiff asserts that the allowed inspection was insufficient, as the expert was denied access to the physical area, and was forced to observe from a distance or use of a drone for an aerial inspection. Plaintiff accuses Magic Mountain of “misrepresentation” regarding the document destruction policy, as the documents were destroyed “after” the commencement of the action. Plaintiff reiterates the willfulness of the destruction as grounds for sanctions.

“Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) There is no tort liability for intentional spoliation of evidence committed by a party to the action to which the evidence is relevant and which is, or reasonably should have been, discovered by the spoliation victim, before conclusion of the underlying action. (Cedars-Sinai Med. Ctr. v. Superior Court (1998) 18 Cal.4th 1, 17-18.) Nor is a tort remedy available for negligent spoliation committed by a party to the action. (Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1089–1090.)

A party may seek non-tort remedies for spoliation, including discovery sanctions, and a ruling pursuant to Evidence Code section 413 of a presumption that destroyed evidence would be adverse to spoliator. (Cedars-Sinai Med. Ctr., supra, 18 Cal.4th at p. 11.) “[A] party moving for discovery sanctions based on the spoliation of evidence must make an initial prima facie showing that the responding party in fact destroyed evidence that had a substantial probability of damaging the moving party's ability to establish an essential element of his claim or defense.” (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227.)

The court can also defer ruling on such a pre-trial motion in favor of allowing the trier of fact to consider the circumstances of the destroyed evidence. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1431 [“Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial”]; See CACI 204.)

The instant motion depends on a finding of notice and an obligation to preserve evidence. (Reeves v. MV Transp., Inc. The motion lacks evidence of any formal demand the preservation of evidence. (Code Civ. Proc., §§ 2035.010, 2035.030.) The motion also wants of evidence demonstrating a less formal request for the preservation. (See Coprich v. Superior Court, supra, 80 Cal.App.4th at pp. 1091-1092.) The only pre-litigation effort is a February 2, 2017 letter requesting the preservation of surveillance video only. [Declaration of Andre Lagomarsino, Ex. 1.][1] Plaintiff in reply however emphasizes that the filing of the lawsuit on October 11, 2017 also triggered an obligation for preservation of evidence.

Plaintiff also includes a copy of the February 27, 2020 minute order for the motion to compel further responses to requests for production (sets 6-8), which lacks any specific reference regarding audit documents. [Lagomarsino Decl., Ex. 3.] The February 27, 2020 ordered further responses to set six number 97 regarding the identification of the operative attraction trains on the date of the incident; further responses to set seven number 100 and 104 in the form of accelerometer and g-force measurement data for the Green Lantern rollercoaster; set seven, numbers 102-103 regarding electronically submitted complaints on the Green Lantern rollercoaster and limited employee identification of personnel responsible for working on the rollercoaster[2]; and, set 8, numbers 108[3] and 114 regarding emergency procedure manuals and safety warnings.[4] Nothing in the order addressed any “audit” reports for the specific time frame.

The April 18, 2014 to April 18, 20-15 audit documents admittedly existed and were duly destroyed presumably in 2018—three years after the creation of the documents. [Declaration of Justin Miyahira, ¶¶ 5, 7 & Ex. A.] While there was no formal demand for preservation of this evidence, the filing of the action in 2017 constituted potential notice of an obligation to preserve documents. Reliance on routine policy constitutes a disingenuous deflection.

As for the dismantling process, all parties agree that the process started sometime in 2019. [Lagomarsino Decl., ¶¶ 13-16.] Relocation to Canada apparently occurred sometime after the completion of dismantling. Plaintiff does not challenge the right to dismantle the rollercoaster itself nor making a demand that Magic Mountain hold the subject inventory and real estate in place in order to conduct an inspection. Nevertheless, Plaintiff’s expert was denied an opportunity for any up close inspection, including an actual operation test with a “testing device dummy.” [Declaration of Brian Jones, ¶¶ 2-4.] Magic Mountain contends that it denied the drone flyover due to licensing and operational concerns, but the opposition lacks any accountability for the denial of the on-site inspection. The assertion regarding the sufficiency of expert review lacks support, and Plaintiff’s expert contends the limited data provided presents an inadequate picture. [Id., ¶9.]

Assuming said destruction of records and deprivation of site inspection occurred in violation of an obligation to preserve certain evidence, the motion still lacks sufficient evidence of willful destruction. (Cedars-Sinai Medical Center v. Superior Court, supra, 18 Cal.4th at p. 12.) Nothing in this conduct indicates an intent to conceal liability thereby severely prejudicing prosecution of the action. While certain data may not be ideal, as addressed in the prior motion to strike the answer, Defendant provided responses to over 100 categories of document production, and provided persons most qualified for deposition. Such cooperation, even if partially court ordered, thwarts a finding of complete obliteration.

Also important in considering the imposition of sanctions, Plaintiff insufficiently articulates how the destroyed data and denied inspection substantially harmed the case. (Williams v. Russ, supra, 167 Cal.App.4th at p. 1227.) While expert witness Jones only states that the provided data was inadequate, it’s not clear how the testing conditions represented an operating standard different from the manufactured recommended speed, and how operation at a 10,000 Hz level would render a more accurate result. [Jones Decl., ¶8.] Thus, the argument that the destruction of evidence renders it “practically impossible” to prove the case constitutes an unsupported conclusion.

The requested relief is proportionately overblown relative to the relief requested. Retrospective realization of evidence that Plaintiff should have perhaps addressed will not serve as a prospective basis for summary default on liability, evidentiary and/or issue sanctions, or monetary sanctions. The court declines to make an evidentiary and legal finding of intentional destruction and severe prejudice justifying such a drastic remedy. Nevertheless, the circumstances regarding the destruction of audit documents after the filing of the complaint and lack of accountability for a better site inspection justifies later consideration for the submission of a jury instruction regarding spoliation of evidence and prejudice to Plaintiff as presented in CACI 204.

The motion is therefore denied with the right to address the jury instruction at the time of trial.

Plaintiff to give notice.


[1]Exhibit 2 of the Lagomarsino declaration literally consists of 19 blank pages with a certified mailing receipt.

[2]The court denied request 101 as moot.

[3]The court ordered the parties to meet and confer and provide supplemental responses as needed for numbers 106-107, and for Defendant to provide a statement regarding the lack of any applicable documents, or further documents, for number 109-111.

[4]The court denied the request to number 112.

Case Number: BC679307    Hearing Date: January 28, 2021    Dept: F49

Dept. F-49

Calendar # 2

Date: 1-28-21

Case #BC679307

Trial Date: 3-8-21 c/f 9-21-20

TERMINATING SANCTIONS

MOVING PARTY: Defendants, Magic Mountain, LLC, et al.

RESPONDING PARTY: Plaintiff, Talia Wise

RELIEF REQUESTED

Motion for Terminating Sanctions

SUMMARY OF ACTION

Plaintiff Talia Wise, 14 years old at the time, went to Magic Mountain on April 18, 2015 with her friends and boarded the Green Lantern ride.  Plaintiff alleges that while participating in the attraction experience, her body “shot forward, her eyes forced closed,” she hit her head, and then her body “shot backwards.” Plaintiff exited the attraction and “blacked out.” Plaintiff woke up to a medic asking a series of questions as to her condition.

On October 11, 2017, Plaintiff filed a complaint for Premises Liability and Negligence. Magic Mountain, LLC answered on January 16, 2018. On December 3, 2019, Plaintiff substituted in Defendant Intaride, LLC for Doe 2. On January 15, 2020, Defendant Intaride, LLC answered the complaint and filed a cross-complaint for indemnity and equitable relief.

On March 5, 2020, the court granted Plaintiff leave to file a first amended complaint. On March 20, 2020, Plaintiff filed her first amended complaint for Premises Liability, Negligence, Willful Misconduct, Products Liability, Fraud, and Voluntary Undertaking. On April 24, 2020, Intaride, LLC answered the first amended complaint.

On August 19, 2020, the court granted in part and denied in part Plaintiff’s motion to reopen discovery. On November 16, 2020, the court sustained the demurrer of Magic Mountain, LLC to the sixth cause of action for voluntary undertaking with 30 days leave to amend. On November 20, 2020, Plaintiff dismissed Intaride, LLC. On December 18, 2020, Plaintiff dismissed the Voluntary Undertaking cause of action.

RULING: Denied

Objections: Overruled.

Plaintiff moves for terminating sanctions against Magic Mountain, LLC based on Defendant’s alleged violations of the February 27, 2020 discovery order compelling further responses to Demand for Production of Documents (sets six & seven), numbers 97 and 103.

On a threshold level, the court docket shows no answer to the first amended complaint following the November 16, 2020 demurrer and dismissal of the voluntary undertaking cause of action on December 18, 2020. The court instructs Defendant to file its answer, and will consider the merits of the action rather than declare the motion moot and invite a default, thereby further delaying the trial date.

On August 16 2019, the court ordered further responses to Request for Production of Documents (set five) numbers 73 and 83—specifically the provision of unredacted first aid reports that suffered concussion injuries and/or dehydration on the subject attraction between April 18, 2014 and April 14, 2016. The court ordered the parties to execute a protective order to protect third party patron privacy. The February 27, 2020 order required further responses to set six, number 97, regarding the identification of the operative attraction trains on the date of the incident; further responses to set seven, numbers 100 and 104, in the form of accelerometer and g-force measurement data for the Green Lantern rollercoaster; set seven, numbers 102-103, regarding electronically submitted complaints on the Green Lantern rollercoaster and limited employee identification of personnel responsible for working on the rollercoaster[1]; and, set 8, numbers 108[2] and 114, regarding emergency procedure manuals and safety warnings.[3]

The motion and separate statement only provide a limited summary of the disputed items and accusations of “stonewalling” on discovery. The supplemental responses to number 97 included two identified documents previously produced. Plaintiff claims the identified documents still insufficiently identify the exact rollercoaster trains in use. On 103, Magic Mountain admittedly identified employee files, and a corresponding privilege log withholding “tests, evaluations, payroll documents, and disciplinary documents” of said employees.

Defendant in opposition states that information regarding the train cars is available. Plaintiff declined to not inquire on the subject matter during the Person Most Qualified depositions. Regardless, Defendant identifies the subject trains in opposition through the declaration of a maintenance employee and operations manager. [Declarations of Tim Dofflow. And Dorian Holden.]

On employee files, Defendant represents that all employees are certified to work on the rollercoaster, and none had any disciplinary history. All other withheld information was withheld on grounds of employee privacy.

Plaintiff in reply concedes that Magic Mountain provided identification of documents by Bates stamp number regarding vehicle number, but still maintains said identification continues to violate the court order in that it lacks the exact information requested. Plaintiff also cites to the PMQ deposition testimony, where the witness was unable to identify the subject vehicles.

As for the human resources files, Plaintiff reiterates the lack of information regarding identifying information of Green Lantern rollercoaster workers. Plaintiff challenges the veracity of the Dofflow declaration regarding the lack of any disciplinary action against any employee assigned to the attraction based on the deposition testimony of Holden who stated that he did not review the disciplinary records of the Green Lantern employees.

A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280; Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487 overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4.); Young v. Rosenthal (1989) 212 Cal.App.3d 96, 114.) “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’” (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 118-119 citing Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793; Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613.) Preventing parties from presenting their cases on the merits is a drastic measure; terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.)

Plaintiff essentially seeks a default against Defendant based on a dispute over two categories of documents in a series of over 100 categories. The requested relief is proportionately overblown relative to the relief requested. Nothing in the motion even minimally establishes how the subject dispute so drastically prejudices Plaintiffs’ case that conclusive liability in the form of terminating sanctions is warranted.

The motion more fundamentally lacks any showing of a willful violation or the prior order. Magic Mountain provided documents and a witness. As presented in the motion and reply, the inability of the witness to provide exact attraction carriage information from the source material in no way indicates a willful act to withhold information. The difference in testimony from Dofflow and Holden also lacks a nexus establishing a lack of veracity. Neither declarant nor deponent speaks for the other. Again, even if said disciplinary information exists, plaintiff fails to establish actual prejudice regarding any myriad of potential disciplinary action against any number of employees as it relates to operations of the subject rollercoaster during the limited range of time of permitted discovery. Conclusion, speculation and disagreement over production and witness testimony in no way supports a finding of willful non-compliance, especially given the large volume of discovery produced and the tremendous prejudice imposed on Magic Mountain.

The motion is therefore denied.

A second motion to strike the answer remains on calendar for February 2, 2021. March 8, 2021 trial date to stand.

Plaintiff to give notice.


[1]The court denied request 101 as moot.

[2]The court ordered the parties to meet and confer and provide supplemental responses as needed for numbers 106-107, and for Defendant to provide a statement regarding the lack of any applicable documents, or further documents, for number 109-111.

[3]The court denied the request to number 112.

Case Number: BC679307    Hearing Date: November 13, 2020    Dept: F49

Dept. F-49

Calendar #

Date: 11-13-20 c/f 7-27-19

Case #BC679307

Trial Date: 3-8-21 c/f 9-21-20

DEMURRER & MOTION TO STRIKE

MOVING PARTY: Defendants, Magic Mountain, LLC, et al.

RESPONDING PARTY: Plaintiff, Talia Wise

RELIEF REQUESTED

Demurrer to the First Amended Complaint

· 3rd Cause of Action: Willful Misconduct

· 5th Cause of Action: Fraud

· 6th Cause of Action: Voluntary Undertaking

Motion to Strike – punitive damages

SUMMARY OF ACTION

Plaintiff Talia Wise, 14 years old at the time, went to Magic Mountain on April 18, 2015 with her friends and boarded the Green Lantern ride.  Plaintiff alleges that while participating in the attraction experience, her body “shot forward, her eyes forced closed,” she hit her head, and then her body “shot backwards.” Plaintiff exited the attraction and “blacked out.” Plaintiff woke up to a medic asking a series of questions as to her condition.

On October 11, 2017, Plaintiff filed a complaint for Premises Liability and Negligence. Magic Mountain, LLC answered on January 16, 2018. On December 3, 2019, Plaintiff substituted in Defendant Intaride, LLC for Doe 2. On January 15, 2020, Defendant Intaride, LLC answered the complaint and filed a cross-complaint for indemnity and equitable relief.

On March 5, 2020, the court granted Plaintiff leave to file a first amended complaint. On March 20, 2020, Plaintiff filed her first amended complaint for Premises Liability, Negligence, Willful Misconduct, Products Liability, Fraud, and Voluntary Undertaking. On April 24, 2020, Intaride, LLC answered the first amended complaint.

On August 19, 2020, the court granted in part and denied in part Plaintiff’s motion to reopen discovery.

RULING

Demurrer: Overruled in Part/Sustained in Part

Defendant Magic Mountain, LLC submits the subject demurrer to the individually identified causes of action.

3rd Cause of Action: Willful Misconduct

Defendant contends because the operative complaint fails to sufficiently articulate facts supporting a claim for punitive damages (see motion to strike), the willful misconduct claim also fails. Plaintiff maintains that the first amended complaint sufficiently articulates the claim for punitive damages, and that Defendant improperly relies on argument beyond the scope of the demurrer. Defendant reiterates the lack of sufficient conduct supporting the claim.

“Three essential elements must be present to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril.” (Morgan v. Southern Pacific Trans. Co. (1974) 37 Cal.App.3d 1006, 1012.) Wilfull misconduct is subject to a heightened pleading standard in order to distinguish the claim for ordinary negligence. (Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1241 [“Where a party relies on willful misconduct there are sound reasons why he should be required to state facts more fully than in ordinary negligence cases so that it may be determined whether they constitute willful misconduct rather than negligence or gross negligence”].)

Defendant alleges that liability arises under common carrier liability, as applicable to roller coaster attractions, and that Defendant knew, or should have known, that the roller coaster was not constructed to all applicable design requirements, due to a false document from engineer Vincent Kelly. [First Amend, Comp., ¶¶ 121, 127-133.] Given the alleged lack of safety requirements on the rollercoaster, serious injury was “probable.” [First Amend, Comp., ¶ 134.] The representations of compliance with all applicable safety regulations constituted a “wanton and reckless disregard” for the safety of guests. [First Amend Comp., ¶¶ 135-136.]

Rollercoasters are designated common carriers and therefore subject to heightened liability. “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.” (Civ. Code, § 2100.)

“[T]he operator of a roller coaster or similar amusement park ride can be a carrier of persons for reward is consistent with the authority holding that operators of ski lifts are common carriers, despite the fact that the skiers who ride such lifts are engaged in recreation. (Citation.) A passenger's purpose in purchasing transportation, whether it be to get from one place to another or to travel simply for pleasure or sightseeing, does not determine whether the provider of the transportation is a carrier for reward. The passenger's purpose does not affect the duty of the carrier to exercise the highest degree of care for the safety of the passenger.

Certainly there is no justification for imposing a lesser duty of care on the operators of roller coasters simply because the primary purpose of the transportation provided is entertainment. As one federal court noted, ‘amusement rides have inherent dangers owing to speed or mechanical complexities. They are operated for profit and are held out to the public to be safe. They are operated in the expectation that thousands of patrons, many of them children, will occupy their seats.’ (Citation.) Riders of roller coasters and other ‘thrill’ rides seek the illusion of danger while being assured of their actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt. The rule that carriers of passengers are held to the highest degree of care is based on the recognition that ‘“[t]o his diligence and fidelity are intrusted the lives and safety of large numbers of human beings.”’ (Citation.) This applies equally to the rider of a roller coaster as it does to the rider of a bus, airplane, or train.”

(Gomez v. Superior Court (2005) 35 Cal.4th 1125, 1136.)

It is undisputed that the Green Lantern roller coaster constitutes a common carrier attraction subject to the higher levels of duty as a common carrier provider. The allegations regarding the alleged submission of a false compliance report and subsequent operation of the ride, taken as true for purposes of the instant demurrer, support a finding of willful misconduct beyond the mere negligence standard articulated for common carrier thrilling attractions.

The subject allegations also support a finding of a wanton disregard for the rights and safety of amusement park guests, thereby meeting the punitive damages standard, although punitive damages is not a part of the required showing for willful misconduct. The court declines to consider the arguments regarding corporate ratification. The installation and operation of a thrill ride attraction presumably requires a level of corporate ratification representing park operations representing the core of the business regardless of the specific identity of said persons in the operative pleading.

The demurrer is overruled.[1]

5th Cause of Action: Fraud

Defendant submits the subject demurrer on grounds that Defendant never made any actual fraudulent statement to Plaintiff regarding the safety of the roller coaster. Plaintiff in opposition contends Vincent Kelly was an agent for Magic Mountain, and therefore responsible for any misrepresentations. Defendant responds to the argument in opposition regarding the role of Vincent Kelly as an agent of Magic Mountain during the alleged period of safety compliance determination.

“‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Lazar v. Superior CourtA plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’” (Id. at p. 645.)

“‘Active concealment or suppression of facts by a nonfiduciary “is the equivalent of a false representation, i.e., actual fraud.” [Citation.] (Citation).)’ A fraud claim based upon the suppression or concealment of a material fact must involve a defendant who had a legal duty to disclose the fact. (Civ.Code, § 1710, subd. (3) [a deceit includes “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact”]; Citation.)” (Hoffman v. 162 North Wolfe LLC

Defendant’s argument relies entirely on extrinsic evidence from the deposition testimony of Vincent Kelly, and cannot be considered in the subject demurrer. The first amended complaint sufficiently articulates fraud [First Amend Comp., ¶¶ 162-179], and Defendant otherwise fails to submit a valid argument challenging the substantive inadequacy of the allegations. The demurrer is overruled.

6th Cause of Action: Voluntary Undertaking

Defendant challenges the subject claim on ground that no such cause of action exists in California law. The argument arises from “Good Samaritan” laws, which protects “a person who has not created a peril has no duty to come to the aid of a third party to protect the third party against injury from that peril.” (City of Santee v. County of San Diego (1989) 211 Cal.App.3d 1006, 1011.) The argument relies on a finding of no preexisting duty based on a special relationship establishing a preexisting duty. (Id. at p. 1012.)

Specifically, defendant contends that nothing in the operative complaint imposed a duty on Magic Mountain employees to diagnose any medical concussion, such as the alleged concussion. Plaintiff counters that voluntary undertaking is both a valid cause of action, and that Magic Mountain undertook a duty to deliver care and failed to deliver reasonable care. Defendant reiterates the lack of duty in reply.

Whether the characterization of the claim constitutes a voluntarily undertaking or not, the issue requires a determination of whether Defendant undertook a duty of care and committed a malfeasance. “ [T]he volunteer who, having no initial duty to do so, undertakes to come to the aid of another - the “good Samaritan” ... is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. [Citation.]’” (Id. at p. 1012.) 

The first amended complaint specifically alleges the first aid department of Magic Mountain failed to recognize that Plaintiff suffered from a concussion, thereby providing an “improper diagnosis” and leading to a delay in care. [First Amend, Comp., ¶¶ 196-199.] The allegations assume a duty to diagnose and render medical care, which is not supported in either the complaint or opposition. Even assuming the first aid staff undertook a duty of care to diagnose and treat a concussion, the first amended complaint continues to lack sufficient articulation of any actual misfeasance or improper conduct. The failure to diagnose an alleged condition in no way constitutes affirmative conduct rendering the condition of Plaintiff worse.

The demurrer is sustained with 30 days leave to amend.

Motion to Strike: Denied

Both the willful misconduct (as addressed above) and fraud causes of action support the claim for punitive damages. (Civ. Code, § 3294, subd. (c)(1), (3).) The same alleged conduct supports the punitive damages allegations in the premises liability and negligence causes of action. [First Amend Comp., ¶¶ 75-76, 119.] (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 899.)

Motions to strike the answer on calendar for January 28 and February 2, 2021, respectively. March 8, 2021 trial date to stand.

Defendant to give notice.


[1]Although the court sustains the demurrer to other parts of the operative complaint, Defendant’s argument regarding the inadequacy of the proposed amendment to the complaint is beyond the scope of the subject demurrer. No motion for leave to amend appears on calendar, and Plaintiff is not bound to any previously drafted potential proposed amendments.

Case Number: BC679307    Hearing Date: August 19, 2020    Dept: F49

Dept. F-49

Calendar # 5

Date: 8-19-20 c/f 7-9-20 c/f 5-12-20 c/f 9-27-19

Case #BC679307

Trial Date: 3-8-21 c/f 9-21-20

REOPEN DISCOVERY

MOVING PARTY: Plaintiff, Talia Wise

RESPONDING PARTY: Defendants, Magic Mountain, LLC, et al.

RELIEF REQUESTED

Motion to Reopen Discovery

SUMMARY OF ACTION

Plaintiff Talia Wise, 14 years old at the time, went to Magic Mountain on April 18, 2015 with her friends and boarded the Green Lantern ride.  Plaintiff alleges that while participating in the attraction experience, her body “shot forward, her eyes forced closed,” she hit her head, and then her body “shot backwards.” Plaintiff exited the attraction and “blacked out.” Plaintiff woke up to a medic asking a series of questions as to her condition.

On October 11, 2017, Plaintiff filed a complaint for Premises Liability and Negligence. Magic Mountain, LLC answered on January 16, 2018. On December 3, 2019, Plaintiff substituted in Defendant Intaride, LLC for Doe 2. On January 15, 2020, Defendant Intaride, LLC answered the complaint and filed a cross-complaint for indemnity and equitable relief.

On March 5, 2020, the court granted Plaintiff leave to file a first amended complaint. On March 20, 2020, Plaintiff filed her first amended complaint for Premises Liability, Negligence, Willful Misconduct, Products Liability, Fraud, and Voluntary Undertaking. On April 24, 2020, Intaride, LLC answered the first amended complaint.

RULING: Granted in Part/Denied in Part.

Plaintiff moves to re-open discovery for the purpose of allowing the completion of discovery into operations of the Green Lantern rollercoaster, including the movement of the coaster, applicable safety standards, and any first aid reports generated as a result of park attendees participation on the ride. Plaintiff specifically seeks leave to take the depositions of any and all safety personnel identified in written discovery indicating any specific awareness of the threat of head injury to ride participants. Finally, Plaintiff seeks leave in order to conduct further depositions of Department of Industrial Relations safety inspectors. Plaintiff contends that following the deposition of engineer Vincent Kelly, the deponent signed an affidavit attesting that Defendant allegedly made him certify the safety of the attraction “under duress.” [Fuss Decl., ¶ 5, Ex. 1.] The statement was later contradicted by a counter affidavit. [Id., ¶ 6, Ex. 2.]

Defendant in opposition overall challenges the necessity of further broad discovery, contends Plaintiff’s own lack of diligence should not constitute a basis for further discovery, and a number of sought after items are either moot or improper. According to Defendant, an expert site inspection occurred on July 17, 2019. Defendant also states that the depositions of all of first aid employees identified in the written discovery responses have been completed. Defendant challenges Plaintiff’s ability to take the depositions of any Department of Industrial Relations safety inspectors. Defendant otherwise opposes any redundant written discovery, but agrees to new discovery on the new causes of action in the first amended complaint filed March 20, 2020.

Plaintiff in reply concedes that the depositions of medical staff were completed, and focuses on Cal-OSHA/DOSH depositions, written discovery propounded to Magic Mountain, and Magic Mountain PMQ depositions.

Pursuant to California Code of Civil Proc., §2024.050, the Court may continue the discovery cut-off date.

In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

The parties agree that further limited discovery is justified, but disagree as to the scope. The court first notes that the subject motion was filed on August 27, 2019—more than one month after the represented rollercoaster inspection occurred. Nothing in the motion and reply addresses this inspection date, or the necessity of a potential second inspection. Following the filing date, depositions of safety and first aid personnel also occurred, which Plaintiff acknowledges in reply. The court therefore denies the motion as to these items.

As for Department of Industrial Relations inspector, Defendant raises a compelling argument that depositions of said inspectors will not lead to the discovery of admissible evidence.

“Neither the issuance of, or failure to issue, a citation by the division shall have any application to, nor be considered in, nor be admissible into, evidence in any personal injury or wrongful death action, except as between an employee and his or her own employer. … The testimony of employees of the division shall not be admissible as expert opinion or with respect to the application of occupational safety and health standards.”

Lab. Code, § 6304.5

Other than an expression of interest regarding the depositions, Plaintiff offers no legally supported argument regarding the likelihood in obtaining admissible testimony. The court therefore denies the motion on this specific item as well based on a lack of showing of the necessity for the subject discovery.

To the extent Plaintiff served outstanding discovery prior to the discovery cut-off, Plaintiff may serve motions to compel initial responses as statutorily appropriate. Any failure to timely file a motion to compel further responses however is a direct lack of diligence. The court therefore denies leave for any such motions, unless Plaintiff can establish statutory timeliness.

Defendant otherwise agrees to participate in discovery on any new causes of action in the first amended complaint filed March 20, 2020. The court grants Plaintiff specific leave to amend to notice the deposition of any and all Persons Most Qualified in areas regarding safety standards, modifications to the Green Lantern ride in July 2019, prior settlements paid to other injured patrons, and the dismantling of the attraction. Discovery deadlines are therefore extended on said causes of action to the March 8, 2021 trial date. The court declines to consider any other arguments regarding diligence or prejudice to Defendant.

Although the parties agree that non-appearing defendant Intaride, LLC is not impacted by the prior trial date, the court reaffirms the applicability of the March 8, 2021 trial date cut-offs to this defendant as well.

Plaintiff to provide notice.

A demurrer and motion to strike to the first amended complaint filed by Magic Mountain, LLC, are on calendar for November 13, 2020.

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