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FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX JESSICA MARTINS and NELSON URQUILLA, EXPERT WITNESS DISCLOSURE Plaintiffs, Index Number: 803137/23 -against- TRICIA CHAMBERS, MILTON CREESE, LUIS TENESACA and LIGIA OLIVEIRA, Defendants, Please take notice that the following is the response of the defendants, Milton Creese and Tricia Chambers, to plaintiff’s request for expert disclosure pursuant to § 3101(d) of the CPLR: 1. Defendants expect to call Dr. Pierce J. Ferriter of 3713 E. Tremont Avenue, Bronx, NY 10465, an orthopedist, as an expert witness at the trial in the above matter. 2. The subject matter upon which Dr. Pierce J. Ferriter is presently expected to testify is set forth in detail in his report dated February 26, 2024, a copy of which is attached hereto and incorporated by reference herein. 3. The facts and opinions upon which Dr. Pierce J. Ferriter is expected to testify are based on his physical examination of the plaintiff, Nelson Urquilla, and his review of the plaintiff’s medical records. 4. The grounds for Pierce J. Ferriter’s opinion come from his education, training and experience in the fields of Medicine and Orthopedics, his physical examination of the plaintiff, Nelson Urquilla, on February 26, 2024, and his review of the plaintiff’s medical records, and are set forth in Dr. Pierce J. Ferriter’s report, dated February 26, 2024. 5. Dr. Pierce J. Ferriter’s qualifications are set forth in his Curriculum Vitae, a copy of which is annexed hereto. 1 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 6. The grounds of Dr. Pierce J. Ferriter’s opinions are based upon his review of the Orthopedics report and the documents and testimony received into evidence during the trial of this action and the circ*mstances surrounding this incident. The defendants reserve the right to modify or supplement this answer. Dated: Jericho, New York March 6, 2024 Sincerely, JAMES F. BUTLER & ASSOCIATES LAW OFFICES OF ZEMSKY & Attorneys for Defendants SALOMON, P.C. Milton Creese and Tricia Chambers Attorneys for Plaintiffs P. O. Box 9040 Jessica Martins, Nelson Urquilla 300 Jericho Quadrangle, Suite 260 33 Front Street Jericho, NY 11753 Suite 207 (516) 229-6000 Hempstead, NY 11550 File Number: 23NEWY12942 (516) 485-3800 Claim Number: 32-39H9-35C Michael@ZemskyandSalomon.com LAW OFFICE OF DENNIS C. BARTLING Attorneys for Co-Defendants Ligia Oliveira, Luis Tenesaca 2 Huntington Quadrangle STE 2N01 Melville, NY 11747 (516) 229-4402 eweintraub@geico.com 2 2 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 Pierce Ferriter, M.D. Diplomate American Board of Orthopaedic Surgery 3713 E. Tremont Avenue, Bronx, NY 10465 02/26/2024 James F. Butler & Associates 300 Jericho Quadrangle Suite 260, East Bldg POB 9040 Jericho, NY 11753 ATTN: Vincenza Scavuzzo RE: Urquilla, Nelson Miguel (as per ID) DOA: 09/18/2022 Claim #: 32 39H9 35C EW/GC #: 22225282 To Whom It May Concern: As you requested, I have performed an orthopaedic medical evaluation regarding Mr. Nelson Miguel Urquilla, which took place on 02/26/2024 in the Bronx office. The claimant was accompanied to this examination, by Mark Purificati. Mr. Urquilla presented a valid photo identification card prior to the evaluation. Please note the claimant did not wish to complete the claimant’s questionnaire. Therefore, the accident history and information pertaining to the accident were obtained from the medical records provided for my review and my interview with the claimant. My findings are as follows: ACCIDENT HISTORY: The following history was obtained from the review of medical records: Mr. Urquilla was involved in a motor vehicle accident on 09/18/2022. The claimant was a restrained front seat passenger when the vehicle was struck on the driver's side. The airbags were deployed. There was no loss of consciousness The claimant initially sustained injuries to the neck, mid back and low back. Mr. Urquilla did not seek emergency medical attention immediately following the accident. TREATMENT HISTORY: The following history was obtained from the review of medical records: Mr. Urquilla came under the care of various physicians for further assessment. He was initiated on a course of conservative management which included physical therapy and chiropractic treatment. MRIs of the neck, mid back and low back were performed. 3 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 RE: Urquilla, Nelson Miguel DOA: 09/18/2022 Page 2 of 5 Mr. Urquilla did not undergo any surgery. He received lumbar interlaminar epidural injection on 03/25/2023 and 05/20/2023 PAST MEDICAL HISTORY: As per the review of medical records, Mr. Urquilla's past medical history is negative. PAST SURGICAL HISTORY: As per the review of medical records, Mr. Urquilla's past surgical history is negative. MEDICATIONS: Mr. Urquilla did not report whether he takes any pain medications at this time. The claimant reports that he did not take any medications today prior to the examination. ALLERGIES: As per the review of medical records, Mr. Urquilla has no known allergies. EMPLOYMENT HISTORY: As per the review of medical records, Mr. Urquilla was employed full time as a mason by Urquilla Construction Corp at the time of the accident. He missed 15 days from work. Mr. Urquilla reports that currently he is working full time. PRESENT COMPLAINTS: At the time of this examination, Mr. Urquilla states that he has complaints of pain in the neck, upper back and lower back. REVIEW OF AVAILABLE RECORDS: 1. Plaintiff’s verified bill of particulars, dated 08/10/2023. Index no. 803137/2023E. 2. Plaintiff’s supplemental verified bill of particulars, dated 09/30/2023. Index no. 803137/2023E. 3. SOAP notes, dated 11/01/2022 through 05/20/2023. 4. IME report, dated 06/07/2023, 07/31/2023, 08/18/2023, by Jason Cohen, M.D. 5. Evaluation report, dated 11/01/2022, at Prestige Pain Centers. 6. Medical re-evaluation report, dated 12/07/2022, 03/20/2023, 04/17/2023, at Prestige Pain Centers. 7. Evaluation report, dated 03/25/2023, 05/20/2023, no provider. 8. Operative report, dated 03/25/2023, 05/20/2023, at Prestige Pain Centers. Procedure: L5- S1 Lumbar interlaminar epidural injection - 62323. Epidurogram - 72275. 9. Anesthesia record, dated 03/25/2023, 05/20/2023. 10. Evaluation report, dated 01/24/2023, by John Lacognata, D.C. 11. MRI report of the thoracic spine, dated 12/23/2022, no provider. Impression: Malalignment as above. T9-T10 Level: Right paracentral disc herniation impinges upon the anterior thecal sac. EMG correlation is recommended. 12. MRI report of the cervical spine, dated 12/23/2022, no provider. Impression: Malalignment as above. C4-C5 Level: Disc bulging impinges upon the anterior thecal sac. C5-C6 Level: Disc bulging impinges upon the anterior thecal sac. C6-C7 Level: Disc bulging impinges upon the anterior thecal sac. 13. MRI report of the lumbar spine, dated 12/23/2022, no provider. Impression: Malalignment as above. L4-L5 Level: Disc bulging impinges upon the anterior thecal sac and mildly narrows the neural foramina bilaterally. L5-S1 Level: Right disc herniation impinges upon the nerve, roots within the spinal canal. Disc bulging narrows the neural foramina bilaterally. EMG correlation is recommended. 4 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 RE: Urquilla, Nelson Miguel DOA: 09/18/2022 Page 3 of 5 14. SOAP notes, dated 09/22/2022 through 02/09/2023, at Advanced Wellness Center. 15. Treatment notes, dated 09/22/2022 through 10/21/2022. 16. Progress notes, dated 09/22/2022 through 10/18/2022. 17. SOAP notes, dated 09/26/2022 through 12/28/2022, at Advanced Wellness Center of Essex County, P.C. 18. Re-evaluation report, dated 10/18/2022, 11/16/2022, 12/14/2022, 01/11/2023, 02/09/2023, no provider. PHYSICAL EXAMINATION: Mr. Urquilla is reportedly a 21-year-old male. He has black hair and dark brown eyes. OBSERVATION: The claimant walks into the exam room with a normal gait and posture. No limp or foot drop was present. No brace or assistive device was used. RANGE OF MOTION MEASUREMENTS: The range of motion of the examined body parts were performed by the claimant. This is a subjective maneuver on the part of the claimant. All measurements of the ranges of motion were performed by the examiner using a hand-held goniometer. The measurement itself is, therefore, an objective measurement of the claimant’s subjective efforts. The values of all the measurements were compared to the normal active range of motion values according to the publication, “Guidelines to the Evaluation of Permanent Impairment,” 5th edition, published by the American Medical Association. ORTHOPEDIC EXAMINATION: Cervical Spine: Inspection of the spine revealed no swelling, discoloration, or deformity. There is no muscle spasm noted upon palpation of the paracervical muscles. There is no complaint of tenderness noted upon palpation bilaterally. Active range of motion reveals flexion at 50 degrees (50 degrees normal), extension at 60 degrees (60 degrees normal), right lateral flexion at 45 degrees (45 degrees normal) and left lateral flexion at 45 degrees (45 degrees normal), and right rotation at 80 degrees (80 degrees normal) and left rotation at 80 degrees (80 degrees normal). The claimant complains of pain at extremes of motions. Orthopedic tests: ¾ Spurling’s test – negative. ¾ Shoulder Shrug – negative. ¾ Hoffman’s test – negative. ¾ Atrophy of Scapula – negative. ¾ Compression – negative. ¾ Jackson’s – negative. ¾ Soto Hall – negative. Neurological examination of the bilateral upper extremities shows as follows: There is no atrophy noted bilaterally. Muscle strength in each range is at 5/5 bilaterally. Deep tendon reflexes, biceps and triceps, are at 2+ bilaterally. Sensation to light touch is within normal limits bilaterally. 5 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 RE: Urquilla, Nelson Miguel DOA: 09/18/2022 Page 4 of 5 Thoracic Spine: Inspection of the spine revealed no swelling, discoloration, or deformity. There is no parathoracic spasm upon palpation. There is no complaint of tenderness upon palpation. Active range of motion reveals flexion to 45 degrees (45 degrees normal), extension to 0 degrees (O degrees normal), right lateral flexion to 45 degrees (45 degrees normal) and left lateral flexion to 45 degrees (45 degrees normal), and right rotation to 25 degrees (25 degrees normal) and left rotation to 25 degrees (25 degrees normal). The claimant complains of pain at extremes of motions. The following orthopedic tests are performed: > Scapular - Negative. Winging > Kyphosis Present - Negative. Lumbar Spine: Inspection of the spine revealed no swelling, discoloration, or deformity. There is no muscle spasm noted upon palpation of the paralumbar muscles.There is no complaint of tendemess noted upon palpation bilaterally. Active range of motion reveals flexion at 60 degrees (60 degrees normal), extension at 25 degrees (25 degrees normal), right lateral flexion at 25 degrees (25 degrees normal) and left lateral flexion at 25 degrees (25 degrees normal). The claimant complains of pain at extremes of motions. Straight Leg Raise: > Sitting straight leg raise is negative bilaterally at 80 degrees with no radiculopathy. > Supine straight leg raise is negative bilaterally at 80 degrees with no radiculopathy. Orthopedic tests: > Fabere - negative. > Soto Hall test - negative. > Kemp's - negative. > Minor's sign - negative. > Lasegue's test - negative. Neurological examination of the bilateral lower extremities shows as follows: There is no atrophy in the muscles of the right and left thigh or right and left calf. Muscle strength in each range is at 5/5 bilaterally. Deep tendon reflexes are in the right knee at 2+, left knee at 2+, right ankle at 2+, and left ankle at 2+. Sensation to light touch is within normal limits bilaterally. DIAGNOSES: 1. Cervical spine sprain/strain - resolved. 2. Thoracic spine sprain/strain- resolved. 3. Lumbar spine sprain/strain - resolved. 6 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 RE: Urquilla, Nelson Miguel DOA: 09/18/2022 Page 5 of 5 DISABILITY: Based on today's examination and within reasonable degree of a medical certainty, there is no objective evidence of an orthopaedic disability. AFFIRMATION: AII opinions expressed are based upon a reasonable degree of medical certainty. I, Pierce Ferriter, M.D., being a Diplomate of the American Board of Orthopaedic Surgery, being a doctor duly licensed to practice medicine in the State of New York hereby affirm under penalties of perjury pursuant to CPLR Section 2106 that the statements contained herein are true and accurate. I affirm this 26th day of February, 2024, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. It is, therefore, understood that no doctor/patient relationships exists or is implied by this examination. The claimant was examined with reference to the specific complaint emanating from the original injury. Any other medical conditions, which were either unreported or felt to be unrelated to the original injury, are considered to be beyond this examination. I attest to having the scope of licensure or certification that typically manages the medical condition, procedure, treatment, or issue in this case. I have current, relevant, knowledge and experience to render an opinion for this case, and my opinions and conclusions are based solely upon the review of the records submitted as well as the results of my examination, if applicable. There is no conflict of interest known to me regarding this specific case. I have received no financial incentive or compensation that is dependent in any way on the opinion I have rendered. No delegation of this examination and/or review was rendered. Sincerely, Pierce Ferriter, M.D. Board Certified Orthopedic Surgeon New York State License No: 145930-01 7 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 .. Pierce J. Ferriter, M.D., PLLC Curriculum Vitae 8 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 DATE OF BIRTH: 1952 MARITAL STATUS: Marries: Wife, Sandra; Children: Piper, Pierce Jr. . LICENSER: New York State, 1979: 145930-1 DEA CERTIFICATION: BF-041564 BOARD CERTIFICATION: Board Certified the American by Adademy of Orthopaedic Surgery, 1988 Recertified 1998 . · Fellow of the American of Orthopaedic Academy Surgeons 1991 EDUCATION: 1975-1979 Rutgers Medical School, M.C. 1970-1974 Manhattan College, B.S. POSTGRADUATE TRAINING: . General HilT Surgery Residency, Lenox Hospital, NYC 1979-81 . Orthopaedic Residency, Lenox Hill Hospital, NYC, 1981-198 Pediatric Orthopaedic Surgery, Boston Children's Hospital, J 1983 nuary-July Orthopaedic Surgery, Lenox Hill Hospital, NYC, 1983-1984 . Orthopaedic Surgery, I.enox HIII Hospitar, NYO, 1984-1985 Sports Medicine Resident, Lenox Hill Hospital, 1984-1985 FELLOWSHIP TRAINING: F Ifo in Spinal Surgery, Buffafo Generaf Hospitar,·T985-T986 ..Certificate of in Spinal Fellowship Surgery under the directiord of Dr. Edward Simmons. . HONORS: Phi Beta Kappa, Manhattan College, 1974 . Magna Cum Laude, Manhattan College, 1974 President of the House Staff Lenox HiiI HospitaI 1965-52 Murray Cowen Attending Award 1999 Teachin9 President of the Alumni Association of Lenox Hill Hospital 2000 9 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 SOCIETY MEMBERSHIPS: American Medical Association American Academy of OrthopaedicEurgeons Eastern Orthopaedic Association New York State Orthopaedic Societk Fellow of the American College of Surgeons· Cervical Spine Research Society . North American Spine Society AdADEMIC AND IfOSPITAL APPOINTMENTS: Lenox Hill Hospital: Assistant Adjunct Attending, Department Ôf Orthopaedic Surgery, July, 1986 Fire Medical Officer New York City Rre Department since1995 Orthopedic Consultant DeWitt Nursing Home CONFERENCE PARTICIPATION: First Annual Alumni Day Symposium, Lenox HIIIHospiktI, June 15,1995, New York, NY Anterior Surgical Approaches to the Septembef 30-October Spine, 1, 1995, Memphis TN AO/ASIF Advanced Spinal Techniques Octot er 6-8 Course, 1995, Bermuda- Southhampton, Anterior Columni Support of Thoracolumber, Decembelf New 8-9, 1995, York NY PRESENTATIONS. 1. illo-tibial Muscle Tendon Unit Transfer for the An.te.rior Cruciate Deficient Knee, presented at: a) American College of Sports Medicine Conferende, Williamsburg, VA 1983 b) The American.Academy of Orthopaedic Surgeors, Atlanta, G.A., 1984 c) The Eastern Orthopaedic Acapulcol Association, Mexico,.1984 2. .Effect of in Blount's Osteotomy Disease,·prestrged at: a) The National Residents Ann Arbo 1984 Conferences, , Michigan, b) The American of Las Academy OrthopaedloSurgeots, Vegas, Nevada, 1985 3, incomplete Proximal Tibia Osteotomy with Tension Bend 10 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 Fixation in the Correction of Angular Deformity presented at The American Academy of Orthopaedic Surgeons, Las Veg , Nevada, 1985 4. Diagnosis and Management of the U nstable S ine .. Fracture, presented at The Hospital of Joint Diseases Orthopaed c Institute Alumni Scientific Meeting, New York, October, 1984 5. Arthroscopic Treatment of Lateral Meniscal Cy 1s, presented at 1he Arthroscopy Association of North America, BostonaMassachusetts, 1985 6. Cervical Spine Injuries in Football, Merck, Sharge and Dohme/AOSSM European Sports Medicine Traveling I effows, Lenox Hill Hospital, New York City . . 7. Primary Atlanto-Axial Osteoarthritis, presentedat meeting of The Cervical Spine Research Society, Boston 1985 Massachusetts, 8. . The Relationship Between Adolescent Lumbar i Disk . Herniation and Congenital Lumbar Spinal Ste presented asis, at meeting of North American Spine Re.search Society, Boston Massachusetts, 1985 9. The Treatment of Subluxation of the Rotatory 4tlanto-Axial Joint In Child ren, presented at the Cervical Spine RÆsearch SoCIety, Palm Springs, California, 199 2 10. The Relationship Between Adolescent Lumbár Disc Herniation and Congenital Lumbar Spinal Ste osis, presented at the American of Orthopaedic Academy Surgeons, S n Francisco, California, 1993 11. Lumber Spinal Synovial presented at: Cysts, . ' a) Eastern Orthopaedic F Association, Orlando, a,.October 1993 b) Annual Alumni H Day Symposium, Lenox Hill ital, New Yórk NY 1995 12. The Relationship Between Increased Interpedicular Distance . and Fractures of the Neural Arch In thoracolun bar Burst Fractures, presented at: a} The North American Spine Society, Minneapoli ..Minnesota 1994 b) First Annual Alumni Day Symposium, Lenox Hi Hospital,New Y ork, NY 1995 13. Evaluation of Spine Trauma, Ferriter, P.J,,.Lenox hill Hospital ., . . DepIrggqtaly!edicine, New NY ., York, 1995 . +. 11 of 13FILED: BRONX COUNTY CLERK 03/12/2024 03:11 PM INDEX NO. 803137/2023ENYSCEF DOC. NO. 26 RECEIVED NYSCEF: 03/12/2024 14. Pedicle Fixation of the Lumber Spine: Conceptd and Patient Review, Ferriter, P.J. Second Annual Alumni Day SymÆosium, Lenox Hill Hospital, New York, NY 1996 16. Lumbar Spondyforysis: Surgical Management tulith Fusion and Fixation. Presented at Alumni Day at Lenox Hill Hospital 1997. 16, Adjacent Segment Degeneration after Lumbar union. Presented at Lenox Hill Hospital Alumni Conference 2 . 17. Allograft Plate Fixaton of the Cervical Spine .Lenox Hill Hospital Alumni Conference 2001 PUBLICATIONS: 1. Poplite.al Pseu.doaneurysm Ferriter, P.J.; Hirschy, J.; Kessler, H.; Scott, W.N.. JBJS, Vol. 65-A, No. 5, June 1983i pg. 695-697 2.. Cervical Spondylolisthesis. A Case Report Ferriter. .J.; O'Leary, P.F.; Block, J.; Fielding, J.W. Spine Vol 9, No. 8, 1984, pg. 830-832 3. ptra-Articular Transfer of the liotibial Tract Scott, N.W ; Ferriter,P.J.; M. Vol No. pg.532- 8 Marino, R.P.T.; JBJS,
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Payment shall be made within 45 days of Plaintiffs execution of a long form settlement agreement and release of all claims. 3. Plaintiffs counsel shall file a Notice or Settlement with the trial court. 4. The parties agree to take the trial, scheduled for July 22, 2024, off calendar. 5. The Plaintiff agrees to accept the settlement with the knowledge that she will be barred from proceeding in the future concerning any matter connected or related to this case. 6. The parties shall execute a full and complete releases prepared by the Defendants and approved by Plaintiff which shall include an express waiver of CC 1542, thereby releasing all parties and counsel from any new known and unknown claims arising from the allegations set forth in the pleadings, except for the obligations outlined in this agreement. 7. Each party shall bear their own costs and attorney's fees. 8. 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However, the Settlement still requires dismissal of all defendants, including Specialized. The Settlement provides that Plaintiff will be barred from proceeding in the future concerning any matter connected or related to this case. (Settlement ¶ 5.) In light of these broad terms, Plaintiff is barred from proceeding in this action. Plaintiff is precluded from proceeding in any action connected to or related to this case. This action is a matter connected to or related to this case. Further, Plaintiff filed a notice of settlement of the entire action. As Plaintiff is barred from proceeding in this matter by the Settlement, the Court must dismiss the entire action in accordance with the settlement if the motion is granted. The Court finds the case of Provost, cited by both parties, instructive on this point. (Provost v. Regents of Univ. of California, (2011) 201 Cal. App. 4th 1289, 1299.) There, the Regents were allowed to enforce the stipulated settlement which required dismissal of individual non-signatory defendants. (Id.) The Provost court noted that the individual defendants neither signed the agreement, nor sought to enforce the settlement., but [r]ather, they [were] third party beneficiaries of the stipulated settlement and the judgment in their favor [was] valid as well. (Id., at 1298.) The court found that the language of the stipulated settlement demonstrated it was made for the benefit of the individual defendants by providing statements such as [t]he case is settled as to all claims ... and the entire action [is] dismissed [with] prejudice. (Id. at 1299.) While the instant settlement does not expressly require dismissal of the entire action, the settlement language shows that the parties intended that Plaintiff could not proceed with the action generally, which would necessarily include any further action against Specialized. As such, the Court is will grant the motion on the following terms. Plaintiff and Defendants must execute the full and complete long form settlement agreement and releases prepared by Defendants per paragraph 6 within one week. The releases do not need to expressly reference Specialized and should only pertain to Plaintiff and Defendant. Binko and SCHG must pay Plaintiff a sum of $50,000.00 within 45 days of the execution of the release. The Court will continue the OSC re: Dismissal (Settlement) to December 4, 2024, at 8:30 a.m. If Plaintiff receives payment, the Court will enter a dismissal of the entire action in accordance with the settlement agreement. Considering the above discussion, the Court does not find either partys position to be frivolous or made in bad faith required for sanctions under Code of Civil Procedure section 128.5. Accordingly, the Court will not grant sanctions.
Ruling
Gaige vs. Greyhound Lines, Inc, et al.
Aug 29, 2024 |23CV-0203891
GAIGE VS. GREYHOUND LINES, INC, ET AL.Case Number: 23CV-0203891This matter is on calendar for review regarding status of removal. The matter was removed to Federal Court andon February 23, 2024, the Court found this matter to be exempt from case disposition goals under CRC3.714(c)(1). Due to the removal to Federal Court, the Court removes this matter from the Court’s control. TheCourt continues this Review Hearing to Monday, August 25, 2025 at 9:00 a.m. in Department 63 for reviewregarding status of removal. No appearance is necessary on today’s calendar.
Ruling
EVA HERERRA VS KATHY SCOTT
Aug 26, 2024 |Renee C. Reyna |21STCV23166
Case Number: 21STCV23166 Hearing Date: August 26, 2024 Dept: 29 Hererra v. Scott 21STCV23166 Motion to Continue Trial filed by Defendant Kathy Scott. Tentative The motion is granted. Background On June 22, 2021, Eva Hererra (Plaintiff) filed a complaint against Kathy Scott (Defendant) for negligence arising out of a dog attack incident on June 24, 2019. On July 7, 2023, Defendant filed an answer. On July 29, 2024, Defendant filed this motion to continue trial. No opposition has been filed. Legal Standard Code of Civil Procedure section 128, subdivision (a)(8), provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. The power to determine when a continuance should be granted is within the discretion of the trial court. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances. (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.) To ensure the prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain. (Cal. Rules of Court, rule 3.1332(a).) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules of Court, rule 3.1332(c).) The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Ibid.) Circ*mstances that may support a finding of good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).) In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. (Cal. Rules of Court, rule 3.1332(d).) California Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that the court may consider: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(d).) Discussion Defendant contends that she has been unable to obtain Plaintiffs deposition. (Morand Decl., ¶ 2.) Defendant argues Plaintiffs deposition is necessary to fully evaluate her claims against Defendant. (Id.) Defendant is also interested in pursuing mediation for this matter. (Id., ¶ 5.) In her motion, Defendant contends she has noticed Plaintiffs deposition multiple times, but it has yet to occur. (Motion, 3:10-16.) Plaintiff has not filed an opposition to this motion, and was non-responsive to Defendants request to meet and confer regarding a trial continuance and discovery. (Id., ¶ 4.) The request to continue trial is GRANTED for good cause shown Conclusion The Court GRANTS the motion to continue trial. The Court CONTINUEs trial to approximately mid April 2025. The Final Status Conference and all discovery deadlines are reset based on the new trial date. Moving Party is ORDERED to give notice.
Ruling
RODNEY PIMENTEL VS JOSEPHY BARRETT ET AL
Aug 27, 2024 |BC701615
Case Number: BC701615 Hearing Date: August 27, 2024 Dept: 57 The Court is denying the motion of Defendants Joseph Barrett and the Barrett Law Firm ("the Barrett Defendants") for reconsideration of the Court's decision denying in part their motion for summary judgment or summary adjudication on the claims of Plaintiff Rodney Pimentel ("Pimentel") . The Court disagrees with Pimentel's contention that the Barrett Defendants' motion for reconsideration is a renewed motion for summary judgment or summary adjudication that does not comply with requirements of Code of Civil Procedure Section 437c. In the Court's view, the Barrett Defendants' motion for reconsideration was properly filed under Section 1008. In that regard, the Court accepts the Barrett Defendants' contention that they did not have a meaningful opportunity at the hearing on their motion for summary judgment or summary adjudication to present precedent on the mediation privilege, which, according to the Barrett Defendants, renders the Court's decision denying their motion for summary judgment or summary adjudication wrong as a matter of law. The Court reviewed that precedent following the hearing and before issuing its decision -- particularly Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137. The Court concluded that the precedent did not compel the conclusion that the Barrett Defendants were entitled to summary judgment or summary adjudication on Pimentel's claims that the Court left standing. The Court has reviewed that precedent again in connection with the Barrett Defendants' motion for reconsideration. Following the additional review, the Court is adhering to its summary judgment ruling and denying the motion for reconsideration.The Court also is denying the motion of Defendant Todd Wakefield ("Wakefield") for reconsideration of the Court's decision denying his motion for summary judgment or summary adjudication. The Court based that decision on the ground that the declaration that Wakefield submitted in support of his motion for summary judgment or summary adjudication, which was the only evidence that he submitted, failed to comply with the strict requirements of Code of Civil Procedure Section 2015.5. In the Court's view, Wakefield has offered insufficient grounds to warrant reconsideration of the Court's determination that the defects in Wakefield's declaration compelled denial of his motion for summary judgment or summary adjudication.
Ruling
Stayer vs. A Plus Safety LLC, et al.
Aug 27, 2024 |23CV-0203556
STAYER VS. A PLUS SAFETY LLC, ET AL.Case Number: 23CV-0203556This matter is on calendar for review regarding status of the case. The Court notes that allComplaints and Cross-Complaints are at issue, with the exception of the most recently filed Cross-Complaint, filed by O’Reilly Auto Enterprises, LLC on August 9, 2024. However, all partiesnamed in that Cross-Complaint have previously appeared as Plaintiffs, Defendants, or Cross-Defendants in this action. The parties are ordered to appear to discuss status and trial setting.
Ruling
DANIEL CORONA VS WHITE MEMORIAL MEDICAL CENTER ET AL
Aug 27, 2024 |BC585574
Case Number: BC585574 Hearing Date: August 27, 2024 Dept: 78 Superior Court of California County of Los Angeles Department 78 ¿ DANIEL CORONA, by and through his Guardian Ad Litem REBECCA GUTIERREZ, Plaintiff(s), vs. WHITE MEMORIAL MEDICAL CENTER, et al., Defendant(s). Case No.: BC585574 Hearing Date: August 27, 2024 [TENTATIVE] ORDER GRANTING MOTION FOR ATTORNEY FEES I. BACKGROUND & PROCEDURAL HISTORY Plaintiff Daniel Corona, a minor through his mother and guardian ad litem Rebecca Gutierrez, (Plaintiff) filed this action against his mothers prenatal health care provider Dr. Kathryn Shaw (Dr. Shaw). Plaintiff alleged Dr. Shaw negligently failed to diagnose his serious abnormalities that were evident on his ultrasound. On April 19, 2018, the parties filed a Notice of Settlement. On April 16, 2019, Plaintiffs petition to approve minors compromise was granted and the court found that the proposed $1,250,0000 settlement reasonably compensated minor Plaintiff for his claim. After deducting expenses and attorney fees, the balance of $873,504.18 was divided between a deferred annuity and an irrevocable special needs trust. (Order Approving Compromise, April 16, 2019.) Further, with the consent of Department of Health Care Services, (DHCS), $358,117.51 would be disbursed to Plaintiffs counsels Client Trust Account pending determination of DHCS lien claim. (Ibid.) On July 6, 2020, DHCS provided a revised final lien letter stating that it had paid $358,061 for Plaintiffs medical care, from which it sought to recover $229,696. On August 10, 2020, Judge Draper granted DHCS Medi-Cal Lien in the amount of $229,696. Plaintiff timely appealed, and the Court of Appeal found that the court erred by failing to equitably allocate the settlement amount. On November 29, 2023, Judge Feeney ruled that DHCS was to recover on its lien in the amount of $23,204.70. On June 12, 2024, Plaintiffs counsel filed the instant motion seeks approval for disbursem*nt of minor Plaintiffs funds in the amount of $30,973.80 for attorneys fees and $1,499.61 for costs advanced arising from the determination of DHCS lien, and pursuant to the retainer agreement between Plaintiff and his counsel. II. DISCUSSION Plaintiffs counsel avers that Plaintiff previously paid to DHCS $229,696 as determined by Judge Draper. After Judge Feeney determined that DHCS was entitled to collect $23,204.70 for its lien claim, the court ordered DHCS to issue a refund to Plaintiff in the amount of $206,492.03. DHCS paid the refund on February 14, 2024 via a check made payable to Plaintiffs counsels Client Trust Account. Plaintiffs counsel declares he distributed $174,018.62 to Plaintiffs Special Needs Trust, and held the remaining $32,473.41 in the Client Trust Account pending approval of distribution to Plaintiffs counsel for fees and costs advanced. Attorneys fees are allowed as costs when authorized by contract, statute, or law. (Code Civ. Proc, § 1033.5, subd. (a)(10)(B).) Here, Plaintiffs counsel attests that he and Plaintiff have a contingency fee agreement ,which specifies that Plaintiffs counsel is to receive 15% in fees of any reduction of DHCS lien claim, and that Plaintiffs counsel would be reimbursed for any costs advanced on Plaintiffs behalf. (Mot. Exh. 3.) Plaintiffs counsel avers 15% of $206,492.03 equates to $30,973.80, and that the receipts demonstrate costs advanced of $1,499.61 (Mot. Exh. 4) for filing fees and transaction costs incurred for filing the appeal and documents with the superior court. The Court has reviewed the Retainer Agreement Contingency Fee Contract and finds that Plaintiffs counsel has demonstrated that he is entitled to attorneys fees arising from settlement/determination of the DHCS lien by contractual agreement with Plaintiff through his guardian ad litem. Further, Plaintiffs counsel has supported, with evidence, the amount of costs advanced on behalf of Plaintiff. III. CONCLUSION The motion for attorney fees in the amount of $30,973.80 and reimbursem*nt of costs in the amount of $1,499.61 to be distributed from the Client Trust Account to Plaintiffs counsel is GRANTED. Moving Party is ordered to give notice. DATED: August 23, 2024 __________________________ Hon. Michelle C. Kim Judge of the Superior Court PLEASE TAKE NOTICE: " Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. " If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@lacourt.org with the Subject line SUBMIT followed by the case number. The body of the email must include the hearing date and time, counsels contact information, and the identity of the party submitting. " Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue. " If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.
Ruling
MONCINO HADNOT-BROWN VS GLAM HOUSE LOS ANGELES
Aug 26, 2024 |24STCV00245
Case Number: 24STCV00245 Hearing Date: August 26, 2024 Dept: 28 On August 1, 2024, the Court granted Midvale Indemnity Company (Midvale) leave to intervene on behalf of Defendant Happy Home Goods LLC dba Glam House (erroneously sued and served as Glam House Los Angeles) based on the stipulation between Midvale and Plaintiff Moncino Hadnot-Brown. Therefore, Midvales motion for leave to intervene, set to be heard on August 26, 2024, is moot.
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