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© \ NS — Dan Beatty, Attorney at Law (153462) Peter A. Lindstrom, Attorney at Law (191635) BEATTY 1771 Redwood & Woodside LINDSTROM City, Road California 94061 FILED ALAMEDA COUNTY Telephone: (650) 367-1771 Facsimile: (650) 366-7989 OCT 3 1 2003 CLERK OF THE SUPERIOR COURT Attorney for Plaintiffs, By CAddanactha King. YENENEW GIRMA & EUGENE LEMELLE Vv Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA, UNLIMITED JURISDICTION IN AND FOR THE COUNTY OF ALAMEDA 10 11 YENENEW GIRMA and EUGENE ) Case No.: 2001-026382 ‘LEMELLE, ) 12 ) DECLARATION OF PETER A. LINDSTROM Plaintiffs ) IN SUPPORT OF EUGENE LEMELLE’S 13 ) REQUEST FOR ENTRY OF DEFAULT Vv. ) JUDGMENT BY THE COURT 14 ) RUBY LUIA, CYNTHIA PHILYAW, ) 15 ENTERPRISE RENT-A-CAR, DOES ) 1 TO 10, ) 16 ) Defendants. ) 17 ) 18 I, Peter A. Lindstrom, hereby declare: 19 1. I am an attorney licensed to practice law in the State of California and partner of 20 Beatty & Lindstrom, attorneys of record for plaintiff Eugene Lemelle. 21 2. If sworn as a witness, Ican testify competently to the facts stated in this 22 declaration. 23 3. Non-Military Status. Neither defendant Ruby Luia nor Cynthia Philyaw is in the 24 military service so as to be entitled to the benefits of the Soldiers’ and Sailors’ 25 Civil Relief Act of 1940. 26 27 Girma v. Luia Declaration of Peter A.LindstrominSupportof EugeneLemelle’s RequestforEntryof Default JudgmentBy theCourt 28 CaseNo.:2001-026382 4. Attached hereto as Exhibit A is a true and correct copy of the rental car agreement between Enterprise Rent-A-Car and Cynthia Philyaw, with Ruby Luia asa listed driver. 5. Attached hereto as Exhibit B is a true and correct copy of plaintiff Eugene Lemelle’s medical records for his treatment with Pacific Health Care. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on Aer yz, 2003 in Redwood City, California. ME PeterA. f, Lintstrom oe 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 27 Girma v. Luia Declaration of Peter A.LindstrominSupportof : EugeneLemelle’s Requestfor Entry of Default JudgmentBy theCourt 28 CaseNo.:2001-026382 oy ee @ @ 1a 40 108 esogage 1esaT €0/11 { , jms: 800 rent-a-car| mo 3130n= “e100F TU 7:30A= '6100P ENTERPRISE RENT-A-CAR COM any ar ‘SAN 74 #100P TH 75Z0A- 1 00P 30 BROADWAY ve) ’ 'S100P. BA 9100A- 121 00P YEAR ; AL " 0 DRIVEN"! CONDITION AGABEDTO IMEI ci HICLE AIC eke % yo d oe - TIS . j : ~a a A rr ' => |te amn eee ine fue fe tema e] tte MESH wet $y ht fee { —8.99/DANI- Z.© | TE ow Av Me Ye % Ye “Pr oorpayewek | 7 ae 2.95 /DAlenty ayNe ae Sve ae igre eae - oe AL CHARGES eget da ad DEPOSITS. ‘ttemt a= BmREFUNDS. om EN AKANN WEAKEN TSas STATE REGUIRED DAILY TAX EQUAL t/ THE RENTED VEHICLE'S ANNUAL biceyee Foe RANGING FROM $ 1BE/DAY .- BL 4P/DRY 4 : ‘ my ay 1 USA ' — TALa’ WANE "PKG, .F vote : “MILES se Ac nPPREEMER COPY 0 -ADDITIONS, VTeuRAONS a ON REVERSE SIDE Pe Sm ® @ _ PACIFIC HEALTH CARE 388 Ninth Street,Suite 203 Oakland, CA 94607 NARRATIVE REPORT Tel:(510) 268-8899 Fax: (510) 268-1772 December 27, 2000 Law Offices of Jeffrey J. Don 224 Main Street San Mateo, CA 94401 Patient: Lemelle Jr., Eugene Date of Injury: 10-07-2000 Date of Birth: 02-11-1983 Date of Initial: 10-13-2000 Date of Final: 12-27-2000 INITIAL/FINAL GENERAL CHIRO-MEDICAL EVALUATION Dear Attorney Don: This patient, a 17-year-old male, was initially evaluated on October 13, 2000 with complaints arising from an accident he was involved in on October 7, 2000. He was treated with chiropractic manipulation and physical therapy by Dr. David Miller, D.C.. HISTORY OF INJURY: Mr. Lemelle Jr. reported that on October 7, 2000, he was a front seat passenger in a vehicle which was making a right turn from 61“ Avenue to Foothill Boulevard when it was struck on the right side by another vehicle. The impact jolted his body side to side, causing headache, neck, shoulder, and back pain. INITIAL SYMPTOMS: 1) Headache 2) Neck Pain 3) Neck Stiffness 4) Left Shoulder Pain 5) Back Pain Final report Lemelle Jr., Eugene (page 1/5) PAST MEDICAL HISTORY: Surgeries: None. Allergies: None. Major Illnesses: None. Accidents: None. PHYSICAL EXAMINATION: GENERAL: The patient appeared to be a normal, well-developed 17-year-old male. He seemed the stated age. The patient was cooperative, alert and well-oriented. His weight was 175 pounds and his height was five feet seven inches tall. Blood pressure while sitting was 110/72. HEAD: The appearance of the head was normal in shape and configuration. There were no tenderness over the forehead and scalp region. EYES: Extraocular motions were bilaterally intact, and no nystagmus was noted. The pupils were round and regular with consensual pupillary reaction to light and accommodation. He wears glasses. ENT: Ear canals were clear and without bleeding. Tympanic membranes were gray without hemotympanum bilaterally. Nasopharynx was clear without erythema, without injection and without bleeding. The visible oropharyngeal mucosa was not swollen or inflamed. There was no apparent evidence of any gross disease of the teeth. He has the incisors gold tipped. SKIN: The skin was generally normal in color, turgor and temperature without any evidence of recent lesions, abrasions, or ecchymosis. CHEST: There were no remarkable findings. HEART: No murmurs. No friction rubs. LUNGS: There was good respiratory excursion. ABDOMEN: There was no tenderness over the abdomen. Peristalsis was present and normo-active. Liver and spleen were not palpable. Final report Lemelle Jr., Eugene (page 2/5) ORTHOPEDIC EXAMINATION: CERVICAL SPINE: There was tenderness bilaterally over the post-occipital muscles, ligamentous nuchae, supraclavicular area, upper trapezius, and paraspinal musculature from C1 through C7 levels. Ranges of motion as follows: RANGES OF MOTION: FINDINGS: NORMAL: Forward Flexion: 40 degrees (+) 60 degrees Extension: 40 degrees (+) 50 degrees Right Lateral Flexion: 30 degrees (+) 40 degrees Left Lateral Flexion: 30 degrees (+) 40 degrees Left Rotation: 70 degrees (+) 80 degrees Right Rotation: 60 degrees (+) 80 degrees THORACIC SPINE: There was tenderness over the paraspinal musculature bilaterally, from T1 through T12 levels. LUMBAR SPINE: There was tenderness bilaterally over the paraspinal musculature from L1 through L5 levels. Ranges of motion as follows: RANGES OF MOTION: FINDINGS: NORMAL: Forward Flexion: 90 degrees (+) 90 degrees Extension: 20 degrees (+) 20 degrees Right Lateral Flexion: 20 degrees 20 degrees Left Lateral Flexion: 20 degrees (+) 20 degrees Left Rotation: 30 degrees (+) 30 degrees Right Rotation: 30 degrees 30 degrees GAIT: Gait was normal. EXTREMITIES: Upper and lower extremities revealed no spasm or palpable tenderness. Pitting, clubbing or cyanosis were not noted. Pulses are within normal limits bilaterally. Final report Lemelle Jr., Eugene (page 3/5) NEUROLOGICAL EXAMINATION SENSORIUM: The patient was alert, responsive, and well oriented to time, place and person. CRANIAL NERVES: The nerves were within normal limits. SENSORY: Sensory testing showed no dermatomal alteration. DEEP TENDON REFLEXES: Deep tendon reflexes of the upper and lower extremities were present, active and symmetrical bilaterally. Abdominal reflexes were bilaterally present. No pathological reflexes were elicted. MOTOR: General muscular bulk and tone were normal and symmetrical, with no atrophy or fasciculation noted. No focal weakness noted. REVIEW OF RECORDS: There were no medical records to review at this time. INITIAL DIAGNOSES: 784.0 Headache/Cephalgia 729.2 Cervical Radicular Neuralgia MAYS WN 847.0 Acute Traumatic Cervical Sprain 724.1 Pain in thoracic spine 847.1 Thoracic Sprain/Strain 724.2 Lumbalgia 847.2 Acute Lumbar Sprain/Strain DISCUSSION: Since the accident, he has complained of headache, neck, shoulder, and back pain. It should be noted that the above diagnoses were consistent with the mechanism of injury described, the history and the physical examination. Final report Lemelle Jr., Eugene (page 4/5) Final report Lemelle Jr., Eugene (page 5/5) INITIAL TREATMENT PLAN: 1) Multi-modality physical therapy and chiropractic manipulation of the cervical, thoracic, and lumbar spine three times per week until re- examination. 2) Exercise program. 3) | Re-examination in four weeks. FINAL EVALUATION: The patient returned for final evaluation on December 27, 2000. The patient had no complaints regarding his previous symptomology. The treatment had helped reduce his aches and pains. The patient was discharged as of this date. He has reached maximum medical improvement from conservative management of his injuries. FUTURE MEDICAL CARE: Sprain/strain injuries such as the patient suffered, have a propensity for flare-ups and/or exacerbations. In that event, there may be a need for re-establishment of multi-modality physical therapy treatment and analgesics and/or anti-inflammatory medication on an as-needed basis. However, at this time, no future medical care is indicated. He was instructed to continue his home exercise program as noted above. If you have any questions regarding this patient, please do not hesitate to contact this office. Very sincerely yours, i David Miller, D.C. PACIFIC HEALTH CARE 388 Ninth Street,Suite 203 Oakland, CA 94607 772 December 27, 2000 Law Offices of Jefferey J.Don 224 Main Street San Mateo, CA 94401 RE: Patient : Lemelle Jr., Eugene Date of Birth : 02-11-83 Date of Injury : 10-07-00 10/13/00 99204 Initial Exam - Comprehensive $ 100.00 10/13/00 97140 Myofascial release 30.00 10/13/00 97010 Hydrocollator pack 20.00 10/16/00 97140 Myofascial release 30.00 10/16/00 98940 Manipulation 45.00 10/16/00 97010 Hydrocollator pack 20.00 10/17/00 97124 Soft tissue mobilization 30.00 10/17/00 97140 Myofascial release 30.00 10/17/00 97010 Hydrocollator pack 20.00 10/18/00 97140 Myofascial release 30.00 10/18/00 98940 Manipulation 45.00 10/18/00 97010 Hydrocollator pack 20.00 10/25/00 97140 Myofascial release 30.00 10/25/00 98940 Manipulation 45.00 10/25/00 97010 Hydrocollator pack 20.00 10/27/00 97140 Myofascial release 30.00 10/27/00 98940 Manipulation 45.00 10/27/00 97010 Hydrocollator pack 20.00 11/21/00 97124 Soft tissue mobilization 30.00 11/21/00 97010 Hydrocollator pack 20.00 11/21/00 97140 Myofascial release 30.00 11/22/00 98940 Manipulation 45.00 11/22/00 97010 Hydrocollator pack 20.00 11/22/00 97140 Myofascial release 30.00 11/28/00 97010 Hydrocollator pack 20.00 11/28/00 97124 Soft tissue mobilization 30.00 11/28/00 97140 Myofascial release 30.00 Patient: Lemelle Jr., Eugene 12/05/00 97010 Hydrocollator pack 20.00 12/05/00 97124 Soft tissue mobilization 30.00 12/05/00 97140 Myofascial release 30.00 12/06/00 97010 Hydrocollator pack 20.00 12/06/00 98940 Manipulation 45.00 12/06/00 97140 Myofascial release 30.00 12/08/00 97010 Hydrocollator pack 20.00 12/08/00 98940 Manipulation 45.00 12/08/00 97140 Myofascial release 30.00 12/15/00 97010 Hydrocollator pack 20.00 12/15/00 98940 Manipulation 45.00 12/15/00 97140 Myofascial release 30.00 12/27/00 99215 Final exam 75.00 12/27/00 99080 Narrative report 125.00 IDC CODE # Please make check payable to: 784.0 Headache/Cephalgia Pacific Health Care 729.2 Cervical Radicular Neuralgia 388 Ninth Street, Suite 203 847.0 Acute Traumatic Cervical Sprain Oakland, CA 94607 724.1 Pain in thoracic spine 847.1 Thoracic Sprain/Strain 724.2 Lumbalgia 847.2 Acute Lumbar Sprain/Strain Patient’ ame Fan L Lemme lle Jy. Doctor jaw C\ all {lew - Date of Trauma { O-f-co Date Patient’s Signature ocT 13 2000 pe fcdh a OCT 16 2000 Seperate oct 7 2nd bg Loncll OCT 1g aww bugs Lyall OCT 25 2000 cpm toatle act 27 2000 ESaabaslle Nov 21 2000 Lagweforelle NOV 22 2000 J,D2 Ll Nov 28 2000 C bbl DEC 5 2000 EAE DEC 6 2000 Zagehete ae 4 DEC 8 2000 capsepelle CC | DEC 15 2000 Lig DEC 27 2000 CZ may M, Yd) PERSONAL INJURY QUESTIONNAIRE Work (Sib) +9% 2700 Name fvqené Lewne \\< Phone( Blind awe FE city__ Dkk State CA zip 74¢7/ Ape _\l ‘A. pinthaate _ 2 't-8% sx sise __ 556-25 SBF Employer's Name C c owt Cy Employer's Address Your ins.Un. Policy # Agent's Name Name on Poilcy (ifother than self)... Policy @ Responsit'; Party's Name Address . Clty State Zip volicy Holday's Name Policy @ NATURE Of SCCIDENT: 1- Date of accident __CXA_**] Time of Day 3:20 aM 2. Were pre ( )Driver (v7 Passenger cf )Front Seat ( )Back Seat 3. Numzaz of people Inyour vehicle? ys Were you waaring seal beits? pepe 4. What diraciion were you headed? = =( )North ( )East (~JSouth ( ) West or ; on of (né&ssi9 Street) (ol* pd Sop 5. What direction was other vehicle headed? ( )}North -( )East ( outh ( ) West on (name of stree!) WS ard foot Were ou atruck from: ( )Behind ( )Front ( )Leftsida (A fight side Appre::nate speed of your car _\S___ mph Other car 42-SU__ mph a Were you knocked unconscious? ( )Yes ( Whto ityes, forhow long? . Were potice notified? { es { )}No- ; ; 10. In your own words, please describe accident; _.<4<¢ ender poahang LE Aaght Fut ttn Wj 2 toot Ak/ sel fed get an ya torlly perLeS 11. Did you have any physical complalnts BEFORE THE ACCIDENT? ( )Yes (LytTo liveyes, please describe In devail: 12. Please describe how you a, a. DURING the accident: ob hit my Aad seal, Aare/ Lut Lilet LM. angtiy b. IMMEDIATELY AFTER the accident: “¢, ¢. LATERTHATDAY: __ <4d/ Z | d. THENEXT DAY teh wel bask ptjeted Aotog peal Lod. 13. What are your PRESENT complaints and symptoms? af Lek ad reek rally putt —trgl ppg” nt fore fror ee 14. Do you have any congenital (from birth)factors which relate tothis problem? ( )Yes ( Lyne ifyes, please describe: 1§. Do you have any previous ilinesses which reiate to this case? ( )Yes ( “No ifyes, please describe: : . nate 16. Have you ever been involved in an accident before? ( )Yes wxho Ityes, please describe, including date(s) and type(s) ofaccidents, as well as injury(ies)received. 17. Where were you taken after the accident? Aone 18. Have you been treated by another doctor since the accident? ( )Yes ING” ~—sésif yess, please lisidoctor's name and address: What type of treatment did you receive? nothing geet 19. Since this injuryoccurred, are your symptoms: { )improving (Getting Worse (Same 20. Cae TOMS YOU HAVE NOTICED SINCE ACCIDENT: a eadache D Inritabtity © Numbness inToes © Face Flushed (3 FeetCold fe-Neck Pain © Chest Pain © ShortnessofBreath D Buzzing inEars D Hands Cold eck Suill O Oizziness O Fatigue 0 Loss ofBalance O) Stomach Upset D SleepingProblems CO Head Seems Too Heavy (© Depression Q Fainting © Constipation ack Pain C Pins& Needles inArms CO LightsBother Eyes © Loss ofSmell O ColdSweats D Nervousness 0 Pins& Needles inLegs © Loss ofMemory C Loss ofTaste O Fever O Tension O ee ingers © EarsRing DB Oiarrhea Oo Symptoms Other Than Above <= Le on Bac 21. Have you lost time from work as a result ofthis accident? Ves ( )No Ifyes, please complete thisquestion. a. Last Day Workea: b. Type ofEmployment: c. Present Salary: d. Are you being compensated for time lost from work? ( ) Yes ( )}No_ Ifyes, please state type of compensation you are recelving: 22. Do you notice any activity restrictions as aresult of this injury? ( )Yes ( )No _ Ifyes, please describe, indetail: 23. Other pertinent information: (ofi3fov | oo f Lptcable AZ PATIENT'S SIGNATURE ‘ . 4 w PATIENT REPORT/RE- EXAM DEC 27 2000 NAME Eugene Lemel! le Shoe: DATE It is important for us to know how you are responding to chiropractic care in our office. We ask you cooperation in completing the following information. For your most painful area please complete the question below: 1. What makes your pain feel worse? ViVEMEA 7 Co 2. Are the treatments helping? esc 1 3. Does anything else help relieve your pain?Y/N If yes please list 4. How many hours of sleep do you get at night? a _ 5. Does your pain make it difficult for you sleep at night? Yes 6. Does your pain wake you up at night? Yes/N 7. Do you have the pain: (less than 25%), (25%), (50%), (100A he working day? 8. How many days a week do you have the pain? 1234567 rem 9. Place a vertical line denoting the severity of your pain: No paiy, Excruciating Pain 10 Have’ you had any flare-ups of your pain since your last visit? ren 11. Do you have pain now? 102(3/ SINCE YOUR INJURY WHAT ACTIVITIES CAUSE YOUR PAIN Describe your activities below. Check the box that best describes the effect activities. have on you Activities Minimal pain |Some difficulty |Great Difficulty |Can‘t do 1) , 2) 3) 12. How long after work or at lunch or doing activities does it take for pain to stabilize or be relieved? 13. Does ice or heat relieve your pain? 14. REFERRAL INQUIRY: IJHAVE REFERRED FAMILY OR FRIENDS TO CHIROPRACTIC CARE. I HAVE REFERRED FAMILY OR FRIENDS TO THIS OFFICE. ; I WOULD GLADLY REFER MY FAMILY OR FRIENDS TO THIS OFFICE FOR CARE. 7 I WOULD NO REFER MY FAMILY OR FRIENDS TO#THIS OFFICE FOR CARE. DEC 27 2000 DATE (V Aaa YOU FOR YOUR COOPERATION! DEC 27 2000 Oona FORM @ Or. ; Evaname Patient me lLemelle Date Height Weaght {]Blood pressure R / L / {1R [)L George exam. INS PECTION/PERCUSSION: () Positive epinous percussion at [)Cervical C1,2,3,4,5,6.7. [)Thoracic T1,2,3,4,5.6.7,8,9,10,11,12. {)Lumbar L1,2,3,4,5 1}Positive edema at[)R [)LCervical C),2,3,4,5,6,7. {JR [)L Thoracic T1,2,3,4,5,6,7,8,9,10,12,32. [JR {]L Lumbar L3,2,3,4,5 Other: | Létt— PALPATION: t] Paraverrebra) mincle spasm & tendernesa al [Jit1)1.Cervical — / I]R []1.Thoracic = / [JR (JL Lumbar / region. () Tenderness on palpation ac (JR [JL Superior occipital nerve, [JR (}L Superior cervical ganglion, (VR [)L Middle cervica) ganglion, {[)R [)L Inferior cervical ganglion, {)R |)/LBrachial plexus {1} Other: . . é ee A —_ ba RANGE OF MOTION: . {] Cervical <()normal- [)limit- [)pain> flexion “60, extension 430, right lateral flex. /40, left lateral flex, 740, right rotation__/70, Teft rotation__/70. (1)Dorso-lumbar = <{)}normal-[]limit-[)pain> flexion__/90, extension___/30, right lateral flex. /30, left lateral flex. 730, right rotation__/45, left rotation__/45. UR [JL Shoulder «<[Jnormal- {Jlimit-[}pain> flexion /90, extension /45, internal rotation_/$5, external rotation__/45, abduction__/180, adduction /45. JR {)L Elbow <[Jnormal- |)Limit []paiu> flexion /135, extension /5, supination__/90, pronation__ /90. [IR [JL Wriat <{Jnormal- {]limit-t}pain> flexion /80, extension __/70,Radial deviation /20, Ulnar deviation /30, supination___/90, pronation___/90. (IR []L Hip <(Jnormal- {]limit-{]pain> flexion ___/120, extension /30, abduction __/45, adduction /20, internal rotation ___/35, external rotation /as. IVR [)L knee <[)normal-{}limit-{)pain> flexion__/130, extension__/$, internal rotation /10, external rotation /10. {]R [J)LAnkle <()}normal- [)limit- []pain> dorsiflexion /20, plantar flexion /50, foot inversion /5, , foot eversion /5, forefoot adduction /20, forefoot abduct 4210 {] Other: A A ee ‘POSITIVE ORTHOPEDIC TESTS: * (7R [JL Libman; (JR (JL Jaw subluxation; []R ()L Cervical compression; {]R []L Soto hall; [)R [)L Cervical distraction; {]R []L Shoulder depression; []R [)L Maximum foramina encroachment; [JR (}L O‘donahue maneuver for cervical; ()R {)L Valsalv I]R {)L Adson; [JR [)L Allen; []R [])L Wright; {)R ()L Snoulder abduction tendinitis-bursitis; |]R [)L Codman arm drop; 1]R ()L Supra spinatous tendinitis; []R []L Apley Scratch; [)R [)L Coracoid push button sign; {JR [)L Dawburn; (JR [)L Apprehension; [)R []L Yergason; {JR [)L Cardiac musculoskeletal differentiation; (]R (JL Cozen’s tennis elbow; IR [)L Ligamentous stability; Dynamometer grip test R /L ; R /L ; OR /L (JR []L Median nerve; {)R [JL Tinel sign; (JR ()L Phalen; [JR [JL Radial; [JR (]L nerve; {)R {[]LUlnar nerve; {JR [JL Wrist clonus; (JR {}L Finkelstein; Circumference {)R Upper /Lower {]L Upper /Lower * {]R (JL Libman, {[]R {]L O'donahue maneuver for thoracolumbar; (}R (JL Tripod; []R {]L Miner’ sign; (12R [JL Chest expansion; [JR ()L Kemp; []R []L Trendelenburg; {JR []L Palpation of Sciatic nerve; [)R [)L Piriformis muscle (JR [}L Cerebellar function; []R []L Toe walk; [JR []L Heel walk; ()R [)L Gastrocnemius muscle; []R []L Forced leg lowering; OR {]L Laseque; (JR (]L Braggard; [JR {)L Fajersztajn; [)R {]}LHoman
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Jul 25, 2024 |Civil Unlimited (Other Personal Injury/Propert...) |22CV016839
22CV016839: DOE vs OAKLAND UNIFIED SCHOOL DISTRICT, et al. 07/25/2024 Hearing on Motion for Terminating Sanctions filed by Defendant in Department 520Tentative Ruling - 07/22/2024 Julia SpainDefendant Oakland Unified School District's unopposed motion for terminating and monetarysanctions is GRANTED.BACKGROUNDPlaintiff filed suit in August 2022 against Defendant alleging sexual assault while a minorstudent.On April 2, 2024, Defendant filed a motion to compel further discovery seeking: (i) terminatingsanctions; or (ii) an order directing plaintiff to provide documents and amendedresponses by a date certain. Vincent Decl., at ¶ 3; Exhibit A to Vincent Decl. The motion washeard on May 2, 2024, and while the request for terminating sanctions wasdenied without prejudice, plaintiff was ordered to “serve supplemental verified responses that arecode compliant to OUSD’s Form Interrogatories, Special Interrogatories, and Requests forProduction of Documents by or before May 10, 2024.” The Court noted in its order that, “as thetrial date is quickly approaching in this matter, Defendant will likely suffer prejudice due toPlaintiff’s failure to respond” and “Plaintiff’s further failure to respond to discovery and complywith this Order may result in terminating and/or issue sanctions.”Defendant now seeks terminating sanctions because Plaintiff, without substantial justification,failed to comply with the Court’s discovery Order to serve full and complete verified responsesto the above-referenced written discovery by and before May 10, 2024 and has failed to respondto any and all efforts by defendant to communicate with plaintiff. It appears plaintiff haseffectively abandoned this action.LEGAL STANDARDMisuse of the discovery process includes the failure to obey a court order to provide discovery.(CCP §§ 2023.010(g).) The court may impose the monetary, issue, evidence, or terminatingsanctions on anyone who engages in such conduct. (CCP § 2023.030(a)-(d).) Two “absolutely”prerequisite facts to imposition of the sanction for an abuse of discovery are (1) there must be afailure to comply, and (2) the failure must be willful. (Miranda v. 21st Century Ins. Co. (2004)117 Cal.App.4th 913, 929.)If it is sufficiently egregious, misconduct committed in connection with the failure to produceevidence in discovery may justify the imposition of nonmonetary sanctions even absent a priororder compelling discovery, or its equivalent. (New Albertsons, Inc. v. Superior Court (2008)168 Cal.App.4th 1403, 1426.) A terminating sanction is a drastic penalty and should be usedsparingly. (Id.) A trial court must be cautious when imposing a terminating sanction because the SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV016839: DOE vs OAKLAND UNIFIED SCHOOL DISTRICT, et al. 07/25/2024 Hearing on Motion for Terminating Sanctions filed by Defendant in Department 520sanction eliminates a party’s fundamental right to trial, thus implicating due process rights.(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566,604.)DISCUSSIONFailing to obey a court order is a “[m]isuse[ ] of the discovery process,” i.e., an express statutoryground for terminating sanctions. (§§ 2023.010, subd. (g), 2023.030, subd. (d), 2025.450, subd.(h).) An abuse of discovery procedures in one instance can imply a continuing intent to abuse inother instances. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430-31.) The ultimatesanction of terminating sanctions is permissible where the litigant persists in refusing to complywith his discovery obligations. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 797.) Two“absolutely” prerequisite facts to imposition of the sanction for an abuse of discovery are (1)there must be a failure to comply, and (2) the failure must be willful. (Miranda v. 21st CenturyIns. Co. (2004) 117 Cal.App.4th 913, 929.) Lack of diligence may be deemed willful in the sensethat the party understood its obligation, had the ability to comply, and failed to comply. (FredHowland Co. v. Superior Court of Los Angeles (1966) 244 Cal.App.2d 605, 610-611.)The record establishes that Plaintiff has failed to comply with the Court’s order to providefurther written discovery responses or verify the responses. The Court is sufficiently persuadedthat Plaintiff was aware of the Court’s Order and that the failure to comply was willful. Plaintiffhas failed to comply with her discovery obligations. Plaintiff did not oppose either the motion tocompel nor the instant motion for sanctions.In light of Plaintiff’s failure to comply with the Court Order, Defendant’s motion for terminatingsanction is GRANTED. The Court strikes Plaintiff’s Complaint filed on August 25, 2022 andvacates the jury trial date.NOTICE: This tentative ruling will automatically become the court’s final order on JULY 25,2024 unless, by no later than 4pm on JULY 24, 2024, a party to the action notifies BOTH: 1) thecourt by emailing Dept520@alameda.courts.ca.gov; AND 2) all opposing counsel or self-represented parties (by telephone or email) that the party is contesting this tentative ruling.The subject line (RE: ) of the email must state: “Request for CONTESTED HEARING: [the casename], [number].” When a party emails to contest a tentative ruling, the party must identifythe specific holding(s) within the ruling they wish to contest via oral argument.The court does not provide court reporters for hearings in civil departments. A party who wants arecord of the proceedings must engage a private court reporter. (Local Rule 3.95.) Any privatelyretained court reporter must also participate via video conference. His/Her email must beprovided to the court at the time the Notice of Contest is emailed. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV016839: DOE vs OAKLAND UNIFIED SCHOOL DISTRICT, et al. 07/25/2024 Hearing on Motion for Terminating Sanctions filed by Defendant in Department 520ALL CONTESTED LAW AND MOTION HEARINGS ARE CONDUCTED VIA REMOTEVIDEO unless an in person appearance is required by the court. Invitations to participate in thevideo proceeding will be sent by the court upon receipt of timely notice of contest. A party maygive email notice he/she will appear in court in person for the hearing, however all othercounsel/parties and the JUDGE MAY APPEAR REMOTELY.
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NOTARO vs REYNOLDS, et al.
Jul 25, 2024 |Civil Unlimited (Contractual Fraud) |23CV028479
23CV028479: NOTARO vs REYNOLDS, et al. 07/25/2024 Hearing on Demurrer Defendant Janelle P. Santi's Notice of Demurrer and Demurrer to Plaintiff's Complaint in Department 25Tentative Ruling - 07/19/2024 Jenna WhitmanThe Hearing on Demurrer Defendant Janelle P. Santi's Notice of Demurrer and Demurrer toPlaintiff's Complaint scheduled for 07/25/2024 is continued to 11/21/2024 at 03:00 PM inDepartment 25 at Rene C. Davidson Courthouse .
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BARNER vs CAPPICO, LLC, et al.
Jul 25, 2024 |Civil Unlimited (Breach of Rental/Lease Contra...) |23CV057357
23CV057357: BARNER vs CAPPICO, LLC, et al. 07/25/2024 Hearing on Motion - Other Motion for Relief from Waiver of Jury Trial; filed by VANESSA BARNER (Plaintiff) in Department 17Tentative Ruling - 07/23/2024 Frank RoeschThe Motion re: Motion for Relief from Waiver of Jury Trial filed by VANESSA BARNER on07/01/2024 is Granted.Plaintiff Vanessa Barner’s (“Plaintiff”) Unopposed Motion for Relief from Jury Waiver isGRANTED. (Code Civ. Proc., § 631, subd. (g).)The pre-trial hearing requirements are modified to include the following:At least ten (10) days prior to the Conference, the parties are ORDERED to meet-and-conferregarding the following subjects:(1) the reservation of exhibit number ranges for each party;(2) which of the parties' exhibits can be admitted without objection and the elimination ofduplicative exhibits;(3) whether there are any evidentiary issues that will require pre-trial hearing;(4) whether any issue in the trial should be bifurcated;(5) the length of the trial;(6) any outstanding discovery and completion dates;(7) deposition designations and counter-designations and any objections thereto;(8) arranging for a court reporter if desired, and as set forth below.(9) the benefit of additional alternative dispute resolution prior to trial;(10) the need for an interpreter for any witness (Gov't Code §68560; Evid. Code §§750-755.5);and(11) any other trial readiness issues.The court may inquire of the date, time, method, and duration of the parties' meet and conferefforts.The parties must bring to the Pretrial Conference the following:(1) All motions in limine each party wishes to present.(2) The Trial Brief of each party who believes a trial brief is necessary or appropriate in thismatter.(3) A comprehensive list of all witnesses the parties intend to call in the case.(4) Each Party's List of Exhibits. The Exhibit List shall be styled in the following column format:Ex. No. Description Admit/Stip Witness Date(5) The Exhibits. They must be contained in a 3-ring binder and collated in the order the partywishes them to be marked and a second 3-ring binder containing a "bench copy" of the Exhibits.The motions in limine may be heard and determined at the Pretrial Conference.Note that the following in limine motions shall not be filed but will be deemed to have beenORDERED: SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV057357: BARNER vs CAPPICO, LLC, et al. 07/25/2024 Hearing on Motion - Other Motion for Relief from Waiver of Jury Trial; filed by VANESSA BARNER (Plaintiff) in Department 17(a) exclude all witnesses until testimony completed;(b) no reference to or evidence of settlement discussions or mediation;(c) no reference to or evidence of insurance;(d) no reference to or evidence of other claims/suits/actions against a party; and(e) no reference to or evidence of wealth or lack thereof of any party except in the punitivedamage phase of a case.Exceptions to the foregoing must be raised at the Pretrial Conference.It is further ordered that as of the first day of trial, all DOE parties will be dismissed.The parties are advised pursuant to Rule of Court 2.956(b) that a Court Reporter is not providedby the court for general civil proceedings, including the Pretrial Conference, motions in limine,specially set trial hearings, or any other proceedings. A party may arrange for the presence of acertified shorthand reporter to serve as an official pro tempore reporter. It will be theresponsibility of the litigant(s) to pay the reporter's fee for the attendance at the proceedings, butthe expense may be recoverable as part of the costs of suit. (See Cal. Rules of Court, Rule2.956(c).)A court reporter taking testimony during trial must be available during the entirety of the court'sschedule as set by the judge. For purposes of guidance only, this typically means that the courtreporter should be available at least 15 minutes prior to the scheduled start time for each trial dayor session. Generally trial will begin at 9:00 a.m. and conclude by 4:30 p.m. Court reportersshould be prepared to report for as long as 90 minutes without interruption. While longer breaksare sometimes provided, the court will provide at least two 15-minute breaks, one in themorning, and one in the afternoon, as well as a lunch break of one hour. If the parties requiredaily transcripts, counsel should consider whether two court reporters should be provided andavailable as defined above.Any court reporter working within the Alameda County Superior Court shall be patient,dignified, and courteous to litigants, witnesses, lawyers, the court and others with whom he orshe comes into contact, and shall also refrain from manifesting bias or prejudice based upon race,sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.The parties are expected to be ready for trial and ready to discuss these topics at the PretrialConference. Except in extraordinary circ*mstances, the actual trial counsel and self-representedparties must personally appear at the Conference. The court looks with disfavor on requests fortrial continuance.If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, theTentative Ruling will become the order of the court.HOW DO I CONTEST A TENTATIVE RULING? SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV057357: BARNER vs CAPPICO, LLC, et al. 07/25/2024 Hearing on Motion - Other Motion for Relief from Waiver of Jury Trial; filed by VANESSA BARNER (Plaintiff) in Department 17THROUGH ECOURTNotify the Court and all the other parties no later than 4:00 PM one court day before thescheduled hearing, and briefly identify the issues you wish to argue through the following steps:1. Log into eCourt Public Portal2. Case Search3. Enter the Case Number and select “Search”4. Select the Case Name5. Select the Tentative Rulings Tab6. Select “Click to Contest this Ruling”7. Enter your Name and Reason for Contesting8. Select “Proceed”BY EMAILSend an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM onecourt day before the scheduled hearing. This will permit the department clerk to send invitationsto counsel to appear remotely.BOTH ECOURT AND EMAIL notices are required.
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HEMMAT vs GRIFFITH
Jul 25, 2024 |Civil Unlimited (Breach of Rental/Lease Contra...) |23CV051077
23CV051077: HEMMAT vs GRIFFITH 07/25/2024 Hearing on Motion to Compel Further Discovery Responses filed by Reagan Griffith (Cross-Complainant) in Department 518Tentative Ruling - 07/23/2024 Victoria KolakowskiThe Hearing on Motion to Compel Further Discovery Responses filed by Reagan Griffith(Cross-Complainant) scheduled for 07/25/2024 is continued to 09/12/2024 at 02:30 PM inDepartment 518 at Hayward Hall of Justice .I. BackgroundEd Hemmat sued Reagan Griffith (doing business as “Ray of Light”), among another, allegingthat Griffith breached their 5-year commercial lease agreement for a property in Hayward,California. (Compl. ¶¶ 2, 3, 7–11, Nov. 13, 2023.) Hemmat alleged that in November 2023Griffith abandoned the property without lawful justification and that Griffith owes $145,800.00in unpaid rent, late fees, lost rent, and expenses in reletting the property. (Id. ¶¶ 10, 11.) Hemmatfiled a complaint asserting causes of action for breach of contract and common count (open bookaccount). (Id. ¶¶ 6–19.) Griffith filed an answer and a cross-complaint against Hemmat.(Answer, Jan. 19, 2024; Cross-Compl., Jan. 19, 2024.)Soon after appearing, Griffith filed a set of form interrogatories (general), special interrogatories,and document requests. (Akbar Decl. ¶ 3, May 13, 2024; see also id. Exs. A, B, D (copies ofdiscovery requests).) On February 23, 2024, Hemmat responded to the requests. (Id. ¶ 4; see alsoid. Exs. E, F, H (copies of responses).)On February 26, 2024, Griffith emailed Hemmat noting what he believed were deficientresponses. (Id. Ex. I.) Hemmat did not respond. (Id. ¶ 6.) On March 6, 2024, Griffith followed upon his email; and Griffith noted he was leaving for vacation and had urgent matters in otheractions. (Id. Ex. J.) In mid-March, the parties later met and conferred by telephone and Hemmatagreed to provide further responses by March 29, 2024. (Id. ¶ 8.) Hemmat did not amend hisresponses. (Id. ¶ 9.) Griffith twice followed up with Hemmat about the status of the responses,but Hemmat did not respond. (Id.)Griffith moved to compel further responses to the special and form interrogatories, and documentrequests. (Mot., May 13, 2024.) Hemmat opposed, arguing that Griffith improperly moved tocompel further responses to the three discovery requests through a single motion, that theseparate statement is defective, among other points. (Opp’n Mem., July 9, 2024.)II. DiscussionThe Court continues the hearing on this motion to allow the parties to further meet and conferabout the adequacy of Hemmat’s responses to the discovery requests. Although the Courttentatively agrees that Hemmat’s responses appear deficient (see, e.g., Separate Stmt. 3:10–23(incomplete responses), 6:16–7:13) (same), 11:24–14:8 (same), 14:9–16:25 (same), May 13, SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV051077: HEMMAT vs GRIFFITH 07/25/2024 Hearing on Motion to Compel Further Discovery Responses filed by Reagan Griffith (Cross-Complainant) in Department 51820241), the Court finds that the parties’ meet and confer efforts were marginal. (See Weil &Brown, Cal. Prac. Guide Civ. Proc. Before Trial, Ch. 8F-7, ¶ 8:1136 (Rutter Group 2023) (“Thepurpose of the meet and confer requirement is to force lawyers to reexamine their positions, andto narrow their discovery disputes to the irreducible minimum, before calling upon the court toresolve the matter.”) (citing Stewart v. Colonial W. Agency, Inc. (2001) 87 Cal. App. 4th 1006,1016).)The Court is unpersuaded by Hemmat’s arguments that the motion and the supporting separatestatement are procedurally defective.III. OrdersThe motion is continued to September 12, 2024, at 2:30 p.m.The parties must meet and confer either in person or by telephone or video conference (in orderof preference)—on more than one occasion if necessary—to discuss the adequacy of Hemmat’sresponses to the special and form interrogatories, and document requests.If the parties are unable to resolve their dispute, the parties must submit a joint separatestatement no later than August 29, 2024, containing the information prescribed by Rule of Court3.1345(c) and detailing the parties’ subsequent meet and confer efforts. The joint separatestatement may not exceed 15 pages. 1 To avoid any confusion: The Court references these responses as tentative findings. TheCourt defers ruling on the adequacy of Hemmat’s responses and objections to the next hearingon this motion.PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentativeruling will become the order of the Court unless it is contested before 4:00 PM on the court daypreceding the noticed hearing.To contest a tentative ruling, a party should do the following:First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov andcopy all counsel of record and self-represented parties. The contesting party must state in thesubject line of the email the case name, case number and motion.Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by casenumber), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest thisRuling" button, enter the party's name and a brief statement of the party's reason for contestingthe tentative, and click "Proceed." SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV051077: HEMMAT vs GRIFFITH 07/25/2024 Hearing on Motion to Compel Further Discovery Responses filed by Reagan Griffith (Cross-Complainant) in Department 518Parties may appear via videoconference, using the Zoom.com website or application.TO CONNECT TO ZOOM:Department 518 is inviting you to a scheduled ZoomGov meeting.Topic: Department 518's Personal Meeting RoomJoin ZoomGov Meetinghttps://alameda-courts-ca-gov.zoomgov.com/j/16054307984Meeting ID: 160 5430 7984One tap mobile+16692545252,,16054307984# US (San Jose)+14154494000,,16054307984# US (US Spanish Line)---Dial by your location• +1 669 254 5252 US (San Jose)
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Fontanila VS R.V. Esau Development Co., Inc.
Jul 25, 2024 |Civil Unlimited (Other Breach of Contract/Warr...) |HG20063283
HG20063283: Fontanila VS R.V. Esau Development Co., Inc. 07/25/2024 Hearing on Motion for an Order to Show Cause Re: Contempt (CCP 1209) filed by Miguelito C Fontanila (Cross-Defendant) + in Department 24Tentative Ruling - 07/22/2024 Rebekah EvensonThe Motion re: RE RV ESAUs INDIRECT CONTEMPT FOR VIOLATION OF COURTORDER RENDERED OCTOBER 19 2022 FOR PAYMENT OF ATTORNEY FEES filed byMargaret Fontanila, Miguelito C Fontanila on 07/05/2024 is Denied.Plaintiffs’ motion for an order that Defendant is in contempt for violation of the Court’s October19, 2022 order for payment of attorney fees is DENIED.The Court’s October 19, 2022 order awarded Plaintiffs attorneys’ fees and costs againstDefendant in the amount of $4,622.83, but it did not set forth any date by which those fees andcosts had to be paid. Therefore, Defendant’s failure to pay those fees and costs by any particulardate is not amenable to contempt.Plaintiffs are free to seek to enforce the October 19, 2022 order the same way they would seek toenforce any monetary judgment. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608,615 and Lucky v. United Properties Investment Inc. v. Lee (2010) 185 Cal.App.4th 125, 143-144.)
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SIU vs SIU, et al.
Jul 25, 2024 |Civil Unlimited (Other Non-Personal Injury/Pro...) |21CV000063
21CV000063: SIU vs SIU, et al. 07/25/2024 Hearing on Motion to Strike First and Fourth Causes of Action; filed by Kuai Cheong Siu (Defendant) + in Department 25Tentative Ruling - 07/24/2024 Jenna WhitmanThe Hearing on Motion to Strike First and Fourth Causes of Action; filed by Kuai Cheong Siu(Defendant) + scheduled for 07/25/2024 is continued to 08/22/2024 at 03:00 PM in Department25 at Rene C. Davidson Courthouse .The Hearing on Demurrer DEMURRER TO FIRST, SECOND, FOURTH, FIFTH, SIXTH,SEVENTH, EIGHTH, NINTH, AND TENTH CAUSES OF ACTION IN FIRST AMENDEDCOMPLAINT; filed by Kuai Cheong Siu (Defendant) + scheduled for 07/25/2024 is continuedto 08/22/2024 at 03:00 PM in Department 25 at Rene C. Davidson Courthouse .The Hearing on Motion - Other Joinder; filed by Roberto's Inc. (Defendant) scheduled for07/25/2024 is continued to 08/22/2024 at 03:00 PM in Department 25 at Rene C. DavidsonCourthouse .
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PNC BANK, NATIONAL ASSOCIATION vs KEES
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Keeton VS Tesla, Inc,
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JONES vs L'OREAL USA. INC., A CORPORATION, et al.
Jul 18, 2024 |Michael M. Markman |Civil Unlimited (Claims Involving Mass Tort) |Civil Unlimited (Claims Involving Mass Tort) |24CV083993
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PRESIDENTIAL BANK FSB vs BLANCO
Jul 22, 2024 |Tara M. Flanagan |Civil Unlimited (Collections Case - Purchased ...) |Civil Unlimited (Collections Case - Purchased ...) |24CV084203
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BANK OF AMERICA N.A. vs CASTANON-BARRIOS
Jul 25, 2024 |Tara M. Flanagan |Civil Limited (Collections Case - Seller Pla...) |Civil Limited (Collections Case - Seller Pla...) |24CV084636
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BANK OF AMERICA N.A. vs HARVEY
Jul 19, 2024 |Tara M. Flanagan |Civil Limited (Collections Case - Seller Pla...) |Civil Limited (Collections Case - Seller Pla...) |24CV084096
