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INDEX NO. 50011/2013(FILED: WESTCHESTER COUNTY CLERK 0170272013)NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 01/02/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER DUTCHESS CENTER FOR REHABILITATION AND HEALTHCARE, LLC, Plaintiff, SUMMONS - against - Index No.: RITA CAHILL, Defendant. ene ene eee ene ee ene enn enn To the above-named Defendant: YOU ARE HEREBY SUMMONED to answer the Verified Complaint in this action and to serve a copy of your answer on Plaintiff's attorney within twenty (20) days after the service of this Summons, exclusive of the day of service (or within thirty (30) days after the service is complete if this Summons is not personally delivered to you within the State of New York); and, in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Verified Complaint. Plaintiff designates Westchester County as the place of trial. The basis of venue is the residency of Defendant at the Dumont Center for Nursing Care, 676 Pelham Road, New Rochelle, New York 10805. Me _ ry Dated: January 2, 2012 New York, New York Attorney for Plaintiff Gina M. Sinon, Esq. Matthew J. Nolfo & Associates 275 Madison Avenue, Suite 1714 New York, New York 10016 (212) 286-9499 F:\NorthernServe\Cahill\Summons.doc.SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF WESTCHESTERcorre een re eetnnr en etc ee ne ents DUTCHESS CENTER FOR REHABILITATION AND HEALTHCARE, LLC, Plaintiff, VERIFIED COMPLAINT - against - Index No.: RITA CAHILL, Defendant. —— =X Plaintiff, DUTCHESS CENTER FOR REHABILITATION AND HEALTHCARE, LLC, by its Counsel, GINA M. SINON, ESQ., as and for its Verified Complaint, respectfully sets forth and alleges as follows: 1. Plaintiff DUTCHESS CENTER FOR REHABILITATION AND HEALTHCARE, LLC, (hereinafter, “DUTCHESS CENTER” or “Plaintiff’) is a skilled nursing facility located at 9 Reservoir Road, Pawling, New York 12564, in Dutchess County, New York. 2. Upon information and belief, Defendant RITA CAHILL presently resides at Dumont Center for Nursing Care, 676 Pelham Road, New Rochelle, New York 10805 in Westchester County. She has also resided at 149 E. Lake Blvd., Apt. J1, Mahopac, New York. 3. Defendant was a resident of DUTCHESS CENTER from December 28, 2011 until June 20, 2012, There, at the facility, Defendant received skilled nursing home care, room and board. Upon information and belief, Defendant also received 4ancillary medical services, medications, in addition to other non-medical services.Upon Defendant's admission to DUTCHESS CENTER, Defendant executed anAdmissions Agreement, in which she agreed to pay for or arrange for payment of allservices provided by DUTCHESS CENTER, including all deductibles, coinsurance andmonthly income budgeted by the Medicaid program (“NAMI”). AdmissionsAgreement, Paragraph 3 at Page 4. Pursuant to the Admissions Agreement, paymentfor all services was due by the 10" of each month. Id. A copy of the AdmissionsAgreement is attached hereto as Exhibit A. 4. Pursuant to the Admissions Agreement, Defendant agreed to paythe Facility $425.00 per day, in addition to all ancillary medical services and pharmacycosts not covered by her insurance and for services and “extras” which she requestedbut were not included in the daily rate as described in the Admissions Agreement. Id, 5. Plaintiff performed skilled nursing care and provided room, boardand provided aforementioned ancillary services and goods for Defendant in good faith,with the expectation it would be paid for such goods and services. Defendant acceptedthe goods and services provided by DUTCHESS CENTER upon her admission onDecember 28, 2011 up until her discharge on June 20, 2012. 6. Based upon its expectation of payment, DUTCHESS CENTER sentmonthly bills for all services rendered to Defendant at the Facility, where she wasresiding and as the place that Defendant indicated the bills should be sent, for the costsassociated with her care since December 2011. Defendant expected to pay for theservices rendered. Defendant, however, made only one or two payments for the careand services received at the facility, even as she continued to be a resident and the billsaccumulated. Defendant was discharged from the facility on June 20, 2012. 7. The outstanding sum due for all services rendered to Defendant atthe time of discharge was $24,848.03. A copy of the itemized bill from Plaintiff isattached hereto as Exhibit B. 8. Due to the Defendant's actions and inactions, Plaintiff is damagedin the amount of $24,848.03. 9, Pursuant to the fully executed Admissions Agreement, for anyamounts overdue more than 30 days, Defendant agreed to pay a late fee equivalent tosixteen (16%) percent per annum or the maximum amount allowed by law, whicheverwas less. 10. Pursuant to the fully executed Admissions Agreement, Defendantalso agreed to pay reasonable collections costs and attorney's fees incurred by Plaintifffor Defendant's failure to pay Plaintiff for sums due in breach of the AdmissionsAgreement. AS AND FOR A FIRST CAUSE OF ACTION 11. Plaintiff repeats and re-alleges each and every allegation containedin Paragraphs “1” through “10.” 12. Plaintiff and Defendant entered into a written contract by whichPlaintiff agreed to provide skilled nursing home care, room and board, ancillarymedical services and other services to Defendant from her admission until herdischarge and Defendant agreed to pay for those services at the rates outlined in theAdmissions Agreement. 13. Plaintiff provided skilled nursing home care, room and board,ancillary medical services and other goods and services to the Defendant fromDecember 28, 2011 until her discharge on June 20, 2012. 14. Defendant received and benefited from the aforementioned goodsand services, but failed to pay for those goods and services. 15. Plaintiff relied upon Defendant's express representations in theAdmissions Agreement to pay for her care and for the services rendered to her. 16. Due to Defendant's breach of Contract and agreement to pay theamount that is owed to Plaintiff, Defendant is indebted to the Plaintiff in the amount of$24,848.03, with interest as of December 28, 2011. AS FOR A SECOND CAUSE OF ACTION 17. Plaintiff repeats and re-alleges each and every allegationcontained in Paragraphs “1” through “16.” 18. Plaintiff has provided skilled nursing home care, room, boardand other ancillary goods and services to Defendant in connection with her care andstay at the facility from December 28, 2011 to June 20, 2012. Defendant is responsiblefor payment of her care. Defendant has not paid for the benefits received. 19, Plaintiff relied upon Defendant's express and impliedrepresentations to pay for her care. Despite the foregoing, Defendant has not paid theamount owed to Plaintiff for the cost of her care. 20. Due to Defendant's breach of her implied covenant to pay theamount that is owed to Plaintiff, Defendant is indebted to the Plaintiff in the amount of$24,848.03, with interest as of December 28, 2011. AS AND FOR A THIRD CAUSE OF ACTION 21. Plaintiff repeats and re-alleges each and every allegation containedin paragraphs “1” through “20.” 22. Plaintiff has provided in good faith skilled nursing home care,room and board and ancillary medical and other services to Defendant from December28, 2011, and expected to be compensated for such services. 23. Defendant accepted the services provided by Plaintiff andexpected to pay for such services. Defendant is responsible for payment of her care. 24, The value of the services provided by Plaintiff to Defendant, forwhich is has not been compensated, is $24,848.03. 25. Asa result of Defendant’s actions, the Defendant is indebted toPlaintiff in the amount of $24,848.03, with interest as of December 28, 2011.AS FOR A FOURTH CAUSE OF ACTION 26. Plaintiff repeats and re-alleges each and every allegationcontained in paragraphs “1” through “25”. 27. Plaintiff in good faith provided skilled nursing home care, roomand board and medical and other ancillary goods and services to Defendant fromDecember 28, 2011 to June 20, 2012, and expected to be compensated for such goods andservices. 28. Defendant accepted the goods and services provided by Plaintiff,expected to pay for such goods and services and is responsible to pay for those goodsand services. 29. The value of the goods and services provided by Plaintiff toDefendant, for which is has not been compensated, is $24,848.03. 30. As a result of Defendant's actions, the Defendant is indebted toPlaintiff in the amount of $24,848.03, with interest as of December 28, 2011. AS AND FOR A FIFTH CAUSE OF ACTION 31. Plaintiff repeats and re-alleges each and every allegationcontained in paragraphs “1” through “30.” 32. Due to Defendant’s actions and inactions, Defendant has beenunjustly enriched at Plaintiff's expense. 33. It is inequitable and against good conscience to permit Defendantto benefit from the goods and services provided to her without reimbursing Plaintiff forsaid goods and services. AS AND FOR A SIXTH CAUSE OF ACTION 34, Plaintiff repeats and re-alleges each and every allegationcontained in paragraphs “1” through “33.” 35. Plaintiff has incurred attorney's fees in attempting to collect thesums due from Defendants. 36. Defendant agreed to reimburse Plaintiff for its collection attemptsand attorney’s fees related to thereto in the Admissions Agreement that she executed.As such, Plaintiff is hereby requesting, in addition to the outstanding balance owed toPlaintiff for the cost of Defendant's care, that Plaintiff be awarded attorney’s fees in theamount of at least $5,000.00 or whatever amount this Court determines just and proper. WHEREOF, Plaintiff demands judgment against Defendant as follows: 1) As and for the First Cause of Action, the sum of $24,848.03, withinterest as of December 28, 2011; 2) As and for the Second Cause of Action, the sum of $24,848.03, withinterest as of December 28, 2011; 3) As and for the Third Cause of Action, the sum of $24,848.03, withinterest as of December 28, 2011; 4) As and for the Fourth Cause of Action, the sum of $24,848.03, withinterest as of December 28, 2011; 5) As and for the Fifth Cause of Action, the sum of $24,848.03, withinterest as of December 28, 2011; and of Action, legal fees and costs to be 6) As and for the Sixth causedetermined by the Court.Dated: January 2, 2013 New York, New York ne p Yours, etc., Gifla M. Sinon, Esq. Law Offices of Matthew J. Nolfo & Associates Attorney for Plaintiff 275 Madison Avenue, Suite 1714 New York, New York 10016 (212) 286-9499VERIFICATIONSTATE OF NEW YORK ) ) 8s.COUNTY OF WESTCHESTER ) GINA M. SINON, ESQ, being duly sworn, deposes and says: I am the attorney for the Plaintiff in the within action, | have read the foregoingComplaint and know the contents thereof to be true. The same is true to my own knowledge,except as to the matters therein stated to be alleged upon information and belief, and as to thosematters I believe them to be true. I am making this verification on behalf of the Plaintiff pursuant to CPLR3020(d)(3) as the Plaintiff's principal place of business is located in Dutchess County and ourfirm has law offices only in New York County and Westchester County. i“, L. J J GINA M. SINONSworn to me before this aay of January 2013. MEREDITH PERRETT Notary Public, State of New York No. 01PE6256258 Qualified in Queens Cou Commission Expires Februa ry 21, 2016F:\NorthernServe\Cahill\ Verified Complaint.docEXHIBIT Ap ell ADMISSION AGREEMENT DutchessAgreement entered on al2% 20_\\_ by Center for Rehabilitation & Healthcare of LE Late hv DS Mlcrage stl and. Urn Cal \\ residing at (Resident/Paticnt) residing at and (Responsible Party) and residing at (Resident’s Spouse or Sponsor) the In consideration of the mutual covenants contained in this Agreement, the Facility admits Patient/Resident (“the Resident”) subject to the following terms and conditions. 1 THE RESIDENT’S AGENTS “ THE “RESPONSIBLE PARTY” is the person chosen by the Resident who agrees to be primarily responsible to assist the Resident meet his/her obligations under this Agreement. Unless the Responsible Party is also the Resident’s Spouse, the Responsible Party is not obligated to pay for the cost of the Resident’s care from his/her own funds. By sigi ng this Agreement, however, the Responsible Party personally guarantees cor nuity of payment from the Resident’s funds to which he/she has access or control and agrees to arrange for third-party payment if necessary to meet the Resident’s cost of care. To assure the Resident’s payment and insurance obligations under this Agreement if the Resident were to lack capacity, the Responsible Party must hav: sufficient access to the Resident’s funds and financial information. This access, usually granted through a Durable Power of Attorney, may be limited solely to meeting the payment and insurance obligations under this Agreement and may be limited to take effect in the future only if necessary to fulfill the Resident’s obligations under this Agreement. ot’" THE SPOUSE OR “SPONSOR” is the person, usually the Resident’s Spouse, responsible in part or in whole to pay for the Resident's cost of care. A Spouse may also serve as the Resident’s Responsible Party. The Spouse’s personal financial duty may be limited by the amount of his/her assets if the Resident becomes Medicaid- covered. os“ A “FINANCIAL AGENT” is an individual who has access to or control over some or all of the Resident’s assets. A Financial Agent who does not sige tis Agreement Initial fePage |2 as the Responsible Party or Spouse (herein the “Unde rsigned” or the “Undersigned Agents”) is not primarily responsible to assist th Resid ent meet the payment and/or insurance obligations under this Agreement. Because the coope: ration of a Financial Agent other than the Under signed often becomes necessary, the Facility requests other Financial Agents to agree to help meet the Resident’s obligations (1) if re quested, and (2) to the extent permitted by their access to or contro! of the Resident’ 's assets and financial information. The Resident and the Undersigned Agents confirm that they have provided the Facility a complete list of the Resident’s current Financial Agents, and all Powers of Attorney, Guardianship Commissions or other documents authorizing an agent to act for the Resident or to have access to or control of any Resident’s assets, e.g., access to or joint ownership of bank accounts, stocks, or social security. They agree to inform the Facility of future appointments or revocations. &% THE RESIDENT'S DIRECTION TO ALL AGENTS The Resident, or the Undersigned legal representatives on behalf of the Resident, hereby directs all of the Resident’s Agents, including future appointees and the Undersigned, (1) to meet all payment obligations under this Agreement from the Resident’s assets and/or from insurance coverage; (2) to cooperate in obtaining Medicaid coverage if needed; and (3) to manage the Resident’s assets responsibly so that the Facility is not in a position where it is denied payment for the cost of care from the Resident’s funds or from Medicaid.2, SERVICES PROVIDED BY THE FACHLITY >*, SUE OUS ERIE FTES DER Y RUBS UNCUUa Un YORR OR TE TE ae DB. my DASIC BASE BATE RATE The services provided The services provided fo: r the daily basicc rate rate are are listed at Ex iB. RB e SUBACUTE erm sorry one CES Subacute Subacute oror other ther sho: sho: rt term services sery are those a ing the Res Res idents to reach &@ sp!specific perfo 2 pl ice! by Re dent's 5 rw ands ned impre them7 asurer C3 lth alk benef? benef fan (h or “¥ payor”) 7 es me iv “ie a gery: eB se en antici ated £ stay vein ed by by such al an. ipater of stay Bisconé 8 es. The Re: at io the Unde; gned hy 2 accepted and aor ed and aor: hene di subject to subsequent adjustments as the Resident’s needs, choices and post- discharge options are better evaluated. They also agree to cooperate in securing adequate aftercare services, if needed. Upon discontinuance of 4Page |3 discharged, he or she agrees to subacute services, if the Resident is not appropriate notice. transfer to another room or unit aft fer ES¢ PHYSICIAN AND ANCILLARY SERVIC cian extenders, such as Physician services [including the services of physi nurse practitioners or physician assis! tants] and the following physician-ordered services (collectively “ancillary services “) are avail able through duly licensed, registered, and/or certified practitioners or entities. 1 Pharmacy Services 2) Physical Therapy 3) Audiology Services 4) Occupational Therapy 5) Speech Therapy §) Podiatry Services Q Psychiatric or Psychological Treatment 8) Optometric Services 9) Laboratory Services 10) X-ray Services 11) Special Nurse or Companion on Order of Physician 12) Oxygen Therapy 13) Dental Services 14) Transportation Services= Ancillary Charges. Physician, physician extender and ancillary services are not included in the private pay basic rate. Charges for such services may be billed by the Facility or by the service provider. Current private charges for ancillary services are provided at admission and are available upon request. Ancillary services are generally covered by Medicaid and Medicare Part A or Part B, but certain benefits may be subject to annual payment caps. Other third party payors who have negotiated a rate with the Facility may cover all or some of these services but may require the use of plan participating physicians and providers. The resident is responsible to pay for benefits or services beyond the capped or covered amounts. Participating Providers, To obtain full coverage ftom “managed” benefit plans, beneficiaries must use plan participating physicians and ancillary service providers. The Resident agrees to use plan participating providers unless the Facility is notified to the contrary, and agrees to pay privately for requested non-covered non- participating providers’ services. Initialp e|4 3. AGREEMENT TO PAY OR TO ARRANGE FOR PAYMENT By entering this Agreement, the Resident, the Resident’s Spouse and/or the Undersigned Agents on the Resident’s behalf, understand and agree to the followin g Resident payment obligations. The Resident agrees to pay for, or arrange to have paid for by Medicaid, Medicare or other insurers, all services provided under this Agreement, and agrees to pay any required third party deductibles, coinsurance or monthly income budgeted by the Medicaid program (called the “NAMI” amount), The Undersigned Agents accept the duty to ensure continuity of payment from the Resident’s own funds. This includes the duty to arrange for timely Medicaid coverage, if Medicaid coverage becomes necessary. Payment for all services is due by the (207 of cach month, me%st PRIVATE PAY STATUS The privately paying Resident agrees to pay the applicable daily basic room rate (“private pay rate”) after any Medicare Part A or other plan coverage has been applied or exhausted, unless and until the Resident is determined to be Medicaid eligible for chronic care. The private pay rate is owed and payable timely while a Medicaid application is pending and if the Medicaid application is denied unless nso” other insurance covers the rate.QS ok Specifically, the Resident agrees to pay, or arrange for payment of, (1) the daily basic rate of the room occupied: $ 425 _ plus (2) ancillary medical services yor and pharmacy costs not covered by the Residents own insurance as set forth above; (3) any applicable deductibles or coinsurance, and (4) any ervices which are requested that are not included in the private rate and any as” described in ox guy Exhibit A. Payment for all services is due by the //0"7 of cach month. The Undersigned agree to assist the Resident obtain needed clothing and requested personal items. = Requests for “Extras”, When the Resident requests items that are more expensive than or in excess of items provided under the rate or applicable health plan, the Resident will be charged. Except for the items described above, the Facility will provide notice of the extra charge prior to providing the requested items. te*2 PREPAID AMOUNTS AND SECURITY DEPOSITS If the Resident is not qualified for Medicare Part A, Medicaid, VA or HMOoe . & coverage or upon termination of such coverage, the Resident agrees to prepay a security deposit of $ 27h. Afier the daily rate for the initial month is applied vy from this prepayment, the balance will be held for amounts owed. Prepaid funds held Ww more than 61 days will be kept in an interest-bearing account. If the Facility uses the ao + security deposit to cover delinquent charges, the Resident agrees to replenish the security deposit to the original amount. wil :Page |5 Refund of Deposit. Upon discharge, the deposit will be applied to cover If the Resident is amounts owed. The rest will be re! funded promptly to the Resident. the deceased, refunds will be paid to the person or probate jurisdiction administering d by law. estate, or by a New York “small estate” affidavit, or as otherwise require+ ADDITIONAL CHARGES AND RATE INCREASES No additional charges beyond the daily rate will be assessed except: (1) upon not express written orders of the treating physician for specific services and supplies included in the daily rate; or (2) where a health emergenc y requires the furnishin g of special services or supplies. ‘The Facility agrees not to increase the daily basic rate except: (1) due to the increased cost of operations and after 30 days’ prior written notice to the Resident, the Designated Representative and/or the Undersigned; or (2) upon express written authority of the Resident, the Designated Representative, or the Undersigned.% DUTY TO PAY PRIVATE RATE UNTIL MEDICAID COVERED Except where Medicare or other insurance covers the daily rate, the Resident agrees to pay the private pay rate unless and until Medicaid coverage is obtained. The private rate applies while a Medicaid application is pending and/or if Medicaid coverage is denied. Medicaid can only cover up to three months’ care prior to the month the Medicaid application is filed. If Medicaid ultimately covers a retroactive period paid for privately, the Facility will refund or credit any excess over the amount owed by the Resident. If the Resident’s liquid assets are exhausted or unavailable prior to Medicaid coverage, the Resident agrees to pay his/her monthly income as partial payment of the daily basic rate until the Medicaid eligibility is established.2~ THIRD PARTY COVERAGE The Resident and Undersigned Agents each separately acknowledge the Facility has relied on the financial and insurance information they submitted for admission. Each warrant that the information contains no known material omissions, and is true in all material respects. . Assignment of Benefits, The Resident, or the Undersigned Agents on the Resident’s behalf, assigns the benefits due to the Resident to the Facility and requests the Facility to claim payment from Medicare or other insurance for covered services or supplies received during the Resident’s stay at the Facility. The Resident authorizes release of information necessary for the Facility to claim and receive such payments on the Resident’s behalf. If separate assignment of benefits is reqyined Initial ¢Page |6by the Resident’s plan or program, it will be signed and attached to thisAgreement at Addendum I. The Facility accepts as payment in full daily rates it has negotiated with aResident’s insurer or managed health plan and, as applicable, the Medicaid,Medicare, or VA rate plus any deductibles, coinsurance or the Medicaid budgetedincome payments which would be the Resident’s responsibility to pay. If theFacility has no agreement with the Resident’s health insurance plan to accept anegotiated rate, the Resident agrees to pay any portion of or all of the applicableprivate rate and ancillary charges which the plan does not cover. All health planbenefits are assigned to the Facility.Managed Care and Insurance Benefit Denials. The Facility is authorized to provide skilled nursing services for certainmanaged care organizations (“MCOs”). A current list of the MCOs with whichthe Facility participates is available upon request. The Resident and/or theResponsible Party shall notify the Facility in writing prior to enrolling with aMCO or switching Resident's MCO enrollment. Unless the Facility isauthorized to participate with an MCO, the MCO will not cover theFacility’s services. > Actions of Managed Care Organizations and Insurers. Residents with coverage for all or part of the Facility’s charges by a managed care plan or insurer understand that although the Facility relies on the plan’s verification of eligibility, payment for covered services is not guaranteed, Coverage may be subject to specific preauthorization requirements, to modification by the plan, and to the plan’s determination that recommended services continue to be or are “medically necessary” as well as covered. The Facility is not responsible for benefit denials by MCOs and insurers, and it makes no representations regarding the coverage decisions of any MCO or insurer with which the Facility participates. The Facility will, however, use its best efforts (1) to present information to support the medical necessity of recommended treatment; and (2) to notify the Resident and/or Responsible Party as soon as it is informed that coverage will cease or decrease. Obligations of Resident. MCOs and insurers pay in full only for those services and supplies that the MCO or insurer determines to be covered under the terms of the plan. Resident is responsible to pay any co- payments or other costs assigned to Resident under the specific terms of his or her health benefit plan. Resident must also pay for any services or supplies which the MCO or insurer declines to cover under the specific terms of the managed care plan. Such plans typically require pre- authorization of services. If Resident chooses to have services which the plan refuses to preauthorize, Resident shall be responsible to pay the Facility for those services. Resident shall pay the Facility in a InitialPa e |7 the date of the initial manner for all non-covered ser vices retroactive to delivery of services.y Withdr: from Part nation in the MCQ. The Facility reserves the ng ht to terminate its contractual relationship and its status as a network or any time in authorized provider with one or more 0 f the listed MCOs at ent. In the accordance with the law and the terms of the applicable agreem event that the Facility terminates its contractual relationship with the MCO e to in which Resident is enrolled, Resident may convert his or her coverag a health plan for which the Facility is an authorized provider or transfer to a facility that is an authorized provider for Resident's MCO. The Facility shall provide thirty (30) days advance notice of its decision to withdraw as a participating provider from Resident's MCO so as to enable Resident and the MCO to coordinate a transfer to another facility. > Notice of Change in Insurance Coverage. Resident and/or Responsible Party shall notify the Facility immediately of any change in Resident's insurance status or coverage made by the insurance carrier including, but : not limited to, the insurance carri s discontinuation of coverage for, or any decrease or increase in insurance benefits applicable to the Resident. The Resident and/or Responsible Party shall notify the Facility before Resident is unable to meet Resident's insurance premium or before Resident implements an increase, decrease or termination from insurance coverage. External Appeals. The Facility cannot request an “external” or independent appeal of certain benefit denials unless it is appointed a “designee” to file such appeal. The Facility, therefore, requires appointment of the Facility Administrator as designee to request an external appeal of a health plan denial or limitation of coverage because of medical necessity. Termination of Coverage. If the Resident remains in the Facility after coverage terminates or after the insurer deems that otherwise-covered services are no longer “medically necessary”? or that an annual payment cap applies, the Resident agrees to pay the applicable private rate and charges for requested non-covered services and supplies until Medicaid covers such services. Cooperation Securing Insurance Benefits. Medicare and Medicaid reimbursem*nt is contingent on having sought payment from all other liable third parties. The Undersigned verily that they have disclosed all sources of third party coverage, and have (i) provided proof of eligibility for coverage or (ii) provided the information and authorization necessary to verify third party coverage. The Resident, the Responsible Party, and Spouse further agree: fc : InitialP To keep any insurance coverage premiums current and to notify the Facility if required premiums have not been or cannot be made; To notify the Facility of any denial of benefits or termination of coverage; To assist with appeals of denials of payment; and Upon request, to provide the Facility updated insurance information, including copies of the summary of benefits or policy riders or amendments. Authorization to Submit Claims for Pa yment. The Resident or the Undersigned Agents authorize the Facility: (1) to submit claims and receive payment of health plan benefits for services rendered under this Agreement; and (2) 1o release confidential information required by the insurer for reimbursem*nt to the Facility or to such other providers of services. Deduetibles_and_ Co-insurance. The Resident agrees to pay any deductibles and/or co-insurance required by Medicare or other health plans, including any budgeted income amounts required under Medicaid.® Medicare Part D Prescription Drug Benefits > Enrollment _in Medicare Part D Plan. If Resident is an eligible beneficiary under the Medicare Part D insurance program and has enrolled or has been enroiled in a Medicare Part D Prescription Drug or Medicare Advantage Plan (“PDP”), Resident shall, upon admission, provide Facility with written notification of Resident’s chosen PDP. If Resident becomes an eligible beneficiary under Medicare Part D after admission, or subsequently chooses to enroll in a PDP following admission, Resident shall, prior to such enrollment, provide Facility with written notification of Resident’s chosen PDP. If Resident elects to change PDPs, Resident shall advise Facility and shall, prior to the effective dale of the change, provide Facility with writlen notification of such election, including the namefidentity of the newly selected PDP. > Resident’s Responsibility to Pay for Pharmaceuticals. Resident is responsible to pay the charges for all prescription and other drugs and medications while a resident is in the Facility, except to the extent that the drugs and medications are covered in whole or in part by an applicable government reimbursem*nt program. Some or all of the charges for prescription and other drugs and medicati ons may be covered by certain benefits available through Medicare Part D or other private insurance or governmental insurance/benefit programs, including Medicare ) or Initial 4 fPage |9 B If an applicable governmental reimbursem*nt program or other potentially available third party payor or insurance program denies coverage for any prescription drug, supply, medication or pharmaceutical provided to Resident, then Resident shall remain responsible to pay for all such prescription drugs, supplies, medications or pharmaceuticals.> Actions of Medicare Part D Plan. Facility is not responsible for and has made no representations regarding the actions or decisions of any PDP, including but not limited to, the establishment of the PDP formulary, denial of coverage issues, or contractual arrangements between the PDP and the Resident, or regarding any decisions by the PDP relating to any long term care pharmacy provider that may be under contract with Facility. Du Eligible wesidvents. ually Lieible Reside: If Resident becomes eligible for Medicaid at any time during Resident’s stay at Facility, and also qualifies for benefits under Medicare, then Resident shall be required to enroll in a PDP to ensure coverage of Resident’s prescription drug needs. Resident and/or Responsible Party shall take all necessary action to enroll Resident in a PDP, and shall advise Facility of such enrollment upon Resident’s acceptance into the PDP. Resident acknowledges that, in the event that the Resident and/or Responsible Party fails to select a PDP, then the federal Centers for Medicare and Medicaid Services (“CMS”) will assign Resident to a PDP. In either event, Resident shall provide Facility with written notification of Resident's PDP and the effective date of enrollment. > Billing and Resident Cost-Sharing Obligations. To the extent that Resident is a beneficiary under Medicare Part D, and Medicare Part D covers the pharmacy prescriptions and/or services ordered by a physician, then the pharmaceutical provider (as required by law) shall bill the charges for the covered services to the Resident’s PDP. Resident is responsible for and shall pay any and all cost-sharing amounts applicable under the Medicare Part D program. Facility shall not be responsible to pay for any fees or cost-sharing amounts, including co-insurance and deductibles, relating to the provision of covered Medicare Part D pharmaceuticals to Resident. To the extent that Resident may qualify as a “subsidy eligible individual” who would be entitled to a reduction or elimination of some or all of the cost-sharing or premium amounts under the Medicare Part D benefit, Resident and/or Responsible Party has the sole responsibility to apply for such benefits. Authorization to Request and/or Appeal Coverage Determinations. In the event that Res lent is denied coverage under Resident’s PDP for rg\ ( pharmaceutical services or supplies prescribed by Resident’s attendi
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BELTRAMO, KEN ET AL V. BYERS, CHRISTOPHER ET AL
Jul 24, 2024 |21CV01399
21CV01399 BELTRAMO, KEN ET AL V. BYERS, CHRISTOPHER ET ALEVENT: Defendants’ Motion for Continuance of Settlement ConferenceThe Motion is unopposed and is granted. The Court vacates the Mandatory SettlementConference on December 9, 2024, and resets the Mandatory Settlement Conference forNovember 22, 2024 at 10:00 a.m. with Judge Heithecker via Zoom. Counsel for theDefendants shall submit a form of order consistent with this ruling within two weeks.
Ruling
LANGER JUICE COMPANY, INC. VS SILLY BRANDS, INC., ET AL.
Jul 25, 2024 |22PSCV00196
Case Number: 22PSCV00196 Hearing Date: July 25, 2024 Dept: 6 CASE NAME: Langer Juice Company, Inc. v. Silly Brands, Inc., et al. Plaintiff Langer Juice Company, Inc. and Cross-Defendants Bruce Langer and David Langers Motion for Summary Judgment and/or in the Alternative Summary Adjudication TENTATIVE RULING The Court DENIES Plaintiff/Cross-Defendant Langer Juice Company, Inc. and Cross-Defendants Bruce Langer and David Langers motion for summary judgment and/or in the alternative summary adjudication, without prejudice. Moving parties are ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a breach of contract case. On March 2, 2022, plaintiff Langer Juice Company, Inc. (Plaintiff) filed this action against defendants Silly Brands, Inc. (Silly Brands) and Keith Davis (Davis), alleging causes of action for breach of contract and common counts. On May 4, 2022, Silly Brands filed a cross-complaint against Plaintiff, Bruce Langer, and David Langer, alleging causes of action for breach of contract (Co-Packing Agreement), breach of implied duty to perform with reasonable care, breach of implied covenant of good faith and fair dealing, unjust enrichment, breach of contract (Operating Agreement), and breach of fiduciary duty. On June 10, 2022, Bruce Langer and David Langer (Langer Parties) filed a cross-complaint against Silly Brands and Davis, alleging causes of action for breach of Silly Brands Inc. operating agreement (against Davis only) and breach of fiduciary duty. On May 8, 2024, Plaintiff and Langer Cross-Defendants (collectively, Moving Parties) moved for summary judgment and/or in the alternative summary adjudication. On July 11, 2024, Defendant Davis opposed the motion, and Defendant Silly joined. On July 18, 2024, Moving Parties replied. LEGAL STANDARD The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) DISCUSSION Procedural Defects The Court notes the motion contains multiple procedural defects that render it defective. First, Moving Parties combined multiple pleadings into one summary judgment motion, which is improper. A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., § 437c, subd. (a), italics added.) A party may move for summary adjudication as to one or more causes of action within an action& (Id., § 437c, subd. (a), italics added.) Plaintiffs complaint and Silly Brands cross-complaint are separate actions. (Metro. Transit Sys. v. Superior Ct. (2007) 153 Cal.App.4th 293, 302 [a cross-complaint is to be treated as an independent action]; Westamerica Bank v. MBG Indus., Inc. (2007) 158 Cal.App.4th 109, 132 [A complaint and cross-complaint are treated as independent actions for most purposes, except with respect to the requirement of one final judgment. [Citation.]) Moving Parties should have filed two separate motions for summary judgment, one directed at the complaint and another directed at Silly Brands cross-complaint, and paid the separate filing fees. (See Govt. Code, § 70617, subd. (d).) Second, Moving Parties separate statement fails to comply with the requirements of Rule 3.1350 of the California Rules of Court. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. (Cal. Rules of Court, rule 3.1350, subd. (d)(2).) Moving Parties separate statement is 134 pages long. This is grossly excessive, even if many causes of action and affirmative defenses are at issue. It is difficult to conceive of a properly drafted Separate Statement that includes over 600 paragraphs of undisputed material facts&. Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. (Beltran v. Hard Rock Hotel Licensing, Inc. (2024) 97 Cal.App.5th 865, 876 (Beltran), footnote omitted.) The Court does not have the time or resources to read through 134 pages of purported statements of material fact. Third, the separate statement is rife with immaterial facts. For example, paragraph 3 reads: Silly Brands, Inc. has breached the terms of the verbal agreement for co-packing services with Langer Juice Company by failing to pay the sum due of $316,821.80 due and owing to the series of invoices issued by Langer Juice Company, and storage charges invoice of $14,310.00 for total damages of $331,131.80. The following further damages are claimed and may be determined on this summary judgment and or by summary adjudication as not being subject to any issue of material fact: The invoices of Langer Juice (Decl. of Bruce Langer, Exhibits C and E) contain a requirement that: If this invoice is not paid within 30- days of the billing date, the invoice amounts will be subject to a finance charge of 1.5% per month (annual percentage rate 18%) The interest accrued since the date of breach [October 10, 2020] until April 2024 is calculated as follows: $316,821.80 x 1.5 % per month for the period from the date of breach [October 10, 2020] until the present, a period of 42 months would total $199,597.23. Thus, the damages complained of and to be adjudicated by this motion for summary judgment and summary adjudication includes this amount of accrued interest of $199,597.23. Further damages for which there are no disputed material facts and that should be allowed and ordered in this motion for summary judgment and/or summary adjudication are rental amounts assessed by Langer Juice Company, because of Silly Brands left-over bottle caps (which have the Silly Juice tradename on them, and thus cannot be used by Langer Juice Company on its other products), and Silly Juice labels is requested, and was invoiced back in April 27, 2022 [see invoice submitted as part of Langer Juice Companys response to request for bill of particulars, the Excerpts of which is attached as Exhibit N to the Declaration of Bruce Langer, the invoice is found at Exhibit C of that Response. The invoice was calculated based on the amount of space occupied by Silly Brands in the Langer Juice Company warehouse, and applying that space as a proportion of the total space in the warehouse, and allocating a matching proportion of the total rent of the Langer Juice Company warehouse, to arrive at a figure of $14,310.00. No objection to that invoice was ever received by Langer Juice Company. Bringing the rental forward from the date of that invoice results in the following calculation of further rental amounts due: $540 per month times two because my rent doubled to $1080/month times 48 months equals $51,840.00. This calculation is described at paragraphs 10-12 of the Declaration of Bruce Langer and results in $51,840.00 further rental amounts due and owing, for total rental amounts due and owing of $14,310.00 + $51,840.00 = $66,150.00 Total damages requested and not subject to any material dispute of fact are: $316,821.80 + $199,597.23 + $66,150.00 rental total = $582,569.03 in total damages. (Moving Parties Separate Statement, ¶ 3.) This is far from the only example of such a purported statement of material fact. The Court of Appeal in Beltran stated that: Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. (Italics added.) California Rules of Court, rule 3.1350(d)(2) states: The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Under the Rules of Court, Material facts are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion. (Rule 3.1350(a)(2).) What neither the rule nor the statute states is that the moving party must include in the separate statement every fact they intend to include in their motion, regardless of its materiality. (Beltran, supra, 97 Cal.App.5th at pp. 874-875, italics in original and footnote omitted.) Fourth, Moving Parties separate statement fails to comply with the formatting requirements set forth in subdivision (h) of Rule 3.1350 of the California Rules of Court. (Cal. Rules of Court, rule 3.1350, subd. (h).) Fifth, the separate statement fails to comply with subdivision (b) of Rule 3.1350 of the California Rules of Court, which provides that, [i]f summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. (Cal. Rules of Court, rule 3.1350, subd. (b), italics added.) Moving Parties separate statement does not repeat verbatim the issues listed in the notice. Sixth, Issue Number 29 is not directed towards a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See Notice, p. 44; Code Civ. Proc., § 437c, subd. (f).) Any lesser issues sought to be addressed on a motion for summary adjudication require a joint stipulation of the parties and the courts approval. (Id., § 437c, subd. (t).) Nothing in the record indicates any such stipulation or court approval, and therefore this issue was improperly included in the motion. Finally, the notice of motion is 50 pages, due in large part to it containing arguments throughout regarding each purported issue. This is also grossly excessive and improper, as it is effectively an attempt to evade the 20-page limit of a motion for summary judgment or summary adjudication. (See Cal. Rules of Court, rule 3.1113, subd. (d).) Moving Parties are also reminded that new evidence filed with a reply is not generally considered by the Court. The Court declines to address any other procedural defects in Moving Parties separate statement or in their motion at this time. For the foregoing reasons, the Court DENIES the motion without prejudice. (See Beltran, supra, 97 Cal.App.5th at p. 876 fn. 5 [trial courts may permit parties an opportunity to correct deficiencies in separate statements].) The Court admonishes the parties to comply with the requirements of the California Rules of Court and Code of Civil Procedure going forward, and to otherwise be mindful of the Courts limited time and resources. CONCLUSION The Court DENIES Plaintiff/Cross-Defendant Langer Juice Company, Inc. and Cross-Defendants Bruce Langer and David Langers motion for summary judgment and/or in the alternative summary adjudication, without prejudice. Moving parties are ordered to give notice of the Courts ruling within five calendar days of this order.
Ruling
FESSEHAYE vs SULLIVAN, et al.
Jul 25, 2024 |Civil Unlimited (Contract/Warranty Breach - Se...) |23CV040419
23CV040419: FESSEHAYE vs SULLIVAN, et al. 07/25/2024 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by MICHAEL LAWRENCE MORRILL (Defendant) + in Department 24Tentative Ruling - 07/22/2024 Rebekah EvensonThe Motion to Set Aside/Vacate Default and / or Default Judgment filed by Ross MichaelSullivan, AHSLEY CORRINE CABLE, DANIEL INHO NAM, MICHAEL LAWRENCEMORRILL on 05/22/2024 is Granted in Part.The Court rules as follows on the "Motion by Defendants Ross Michael Sullivan, MichaelLawrence Morrill, Daniel Inho Nam, and Ashley Corrine Cable to Set Aside Defaults andDefault Judgment, if Entered".Preliminarily, no default judgment has been entered in this case.The motion by Defendant Ross Michael Sullivan is DENIED. Sullivan’s attorney concedes thathe was properly served with the summons and First Amended Complaint, on October 12, 2023.Sullivan’s default was entered on November 14, 2023. A motion for relief from default pursuantto Code of Civil Procedure section 473(b), including under the providing requiring relief basedon an attorney affidavit of fault, must be filed within six months of entry of default. Sullivan’smotion was filed on May 20, 2024, more than six months after entry of Sullivan’s default.In Sullivan’s supplemental briefing, he seeks equitable relief based on extrinsic mistake.(Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 981). However, Sullivan fails to demonstrate anyextrinsic mistake that led to entry of his default. Sullivan’s attorney states that when sheattempted to e-file Sullivan’s Answer on November 17, 2023, Plaintiff’s request for entry ofSullivan’s default (filed on November 14, 2023) had not yet been processed by the clerk’s office.As a result, the clerk’s office (mistakenly) filed Sullivan’s Answer on November 20, 2023.The clerk’s office properly entered Sullivan’s default as of the day Plaintiff had requested entryof the default. The filing of Sullivan’s Answer on November 20, 2023 was a mistake, but nomistake by the clerk’s office caused Sullivan to first attempt to file his Answer three days afterPlaintiff had timely requested entry of his default. Moreover, Sullivan fails to identify any actionby the clerk’s office that caused his attorney to file an untimely motion to set aside his default.Sullivan’s attorney states that she became aware of the entry of Sullivan’s default in December2022 when she reviewed the register of actions. (See Nancy Conway’s declaration dated June 27,2024, at paragraph 6.) The attorney then waited “six months from the date of discovery andbelieved I had until late June to file with the six months for mandatory relief.” (Id. at paragraph9.) The deadline to file a motion for relief from default pursuant to Code of Civil Proceduresection 473(b) is six months from the date of default, not six months from defendant’s discoveryof the default. (The application for relief “shall be made within a reasonable time, in no caseexceeding six months after the judgment, dismissal, order, or proceeding was taken.”) Sullivandoes not demonstrate that his attorney’s failure to file this motion until more than six months SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV040419: FESSEHAYE vs SULLIVAN, et al. 07/25/2024 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by MICHAEL LAWRENCE MORRILL (Defendant) + in Department 24after his default was entered was a result of any mistake or advice by the clerk’s office orPlaintiff’s counsel, nor does Sullivan demonstrate that it was reasonable for his attorney to waitfive full months after the discovery of his default (and more than six months after entry of thedefault) to file a motion seeking to vacate the default. Delays of three months or more in seekingto set aside a default routinely result in denial of relief. (See Caldwell v. Methodist Hospital(1994) 24 Cal.App.4th 1521, 1525.(The Answer filed by Ross Michael Sullivan on November 20, 2023 is STRICKEN.The Cross-Complaint filed by Ross Michael Sullivan on November 16, 2023 is not stricken.The motion by Defendants Michael Lawrence Morrill, Daniel Inho Nam, and Ashley CorrineCable is GRANTED.To the extent that the motion by Morrill, Nam, and Cable is based on Code of Civil Proceduresection 473(d), the motion is granted. As indicated above, Morrill, Nam, and Cable fileddeclarations under penalty of perjury attesting that they had moved out of the premises at whichthey were purportedly served (via substitute service) no later than October 1, 2023. If the addressat which they were purportedly served with the summons and complaint (via substitute service)was not their dwelling or usual place of abode as of October 12, 2023, then any purportedsubstitute service was invalid (see Code of Civil Procedure section 415.20(b)), and any entry ofdefault based on that purported service is void (see Code of Civil Procedure section 473(d).)The defaults entered against Michael Lawrence Morrill, Daniel Inho Nam, and Ashley CorrineCable on December 22, 2024 are VACATED.Defendants Michael Lawrence Morrill, Daniel Inho Nam, and Ashley Corrine Cable shall fileand serve their Answers to Plaintiff’s First Amended Complaint by June 21, 2024.PLEASE NOTE that the proposed Answers submitted with the moving papers are NOT deemedfiled or served on anyone.Plaintiff’s request for an order that defense counsel pay a penalty to Plaintiff or the State Bar isDENIED.
Ruling
KRISTEN EDWARDS vs. GENERAL MOTORS, LLC
Jul 22, 2024 |C23-02847
C23-02847CASE NAME: KRISTEN EDWARDS VS. GENERAL MOTORS, LLC*HEARING ON MOTION IN RE: MOTION TO STRIKE PORTIONS OF PLN F.A.C FILED BY GENERALMOTORS LLC ON 3/26/24FILED BY:*TENTATIVE RULING:*Defendant General Motors, LLC’s motion to strike punitive damages from the first amendedcomplaint is granted, with leave to amend.BackgroundThe factual background of the case is addressed in the court's tentative ruling on the demurrer byGeneral Motors, LLC ("GM"). GM also moves to strike Plaintiff’s claim for punitive damages primarilybecause Plaintiff’s fraud claim is not adequately pleaded in Plaintiff’s first amended complaint("FAC"), the only cause of action that can support a claim for punitive damages.Legal StandardsThe court may strike allegations that are "irrelevant, false or improper matter" or any portion of apleading "not drawn . . . in conformity with the laws of this state." (Code Civ. Proc. § 436(a) and (b).)"A motion to strike, like a demurrer, challenges the legal sufficiency of the complaint's allegations,which are assumed to be true." (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 53 [citingClauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255].)A motion to strike is properly granted when a complaint fails to allege facts to state a prima facieclaim for punitive damages under the standards of Civil Code section 3294. (Turman v. Turning Pointof Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) Fraud alone can support a claim for punitivedamages as the statute is stated in the disjunctive. (Civ. Code § 3294(a) [punitive damages may beawarded based on "oppression, fraud, or malice"] ; Las Palmas Associates v. Las Palmas CenterAssociates (1991) 235 Cal.App.3d 1220, 1238-1239.)AnalysisPlaintiff’s opposition to the motion to strike does not dispute that punitive damages are not availableunder the Song-Beverly Consumer Warranty Act, Civil Code section 1790, et seq. ("Song-Beverly Act"),alleged in Plaintiff’s first through third causes of action or the fifth cause of action for violation of theUnfair Competition Law, Business & Professions Code section 17200 et seq. (“UCL”). (See Civ. Code §1794(c) [allowing award of civil penalties under that statute]; Troensegaard v. Silvercrest Indus. (1985)175 Cal.App.3d 218, 228 [no punitives under Song-Beverly Act]; Clark v. Superior Court (2010) 50Cal.4th 605, 611 [no private plaintiff punitive damages remedy under UCL].) Plaintiff only opposesbased on the sufficiency of the fourth cause of action to state a fraud claim, but the court hasconcluded GM’s demurrer to that cause of action should be sustained, leaving no cause of action thatsupports the punitive damages claim. Consequently, the motion to strike is therefore granted.
Ruling
GANN vs UDINSKY, et al.
Jul 25, 2024 |Civil Unlimited (Breach of Rental/Lease Contra...) |23CV025487
23CV025487: GANN vs UDINSKY, et al. 07/25/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Happy Homes Partners, LLC (Defendant) + in Department 25Tentative Ruling - 07/23/2024 Jenna WhitmanThe Motion to Compel Notice Of Defendants Bing Udinsky, Jerald Udinsky, And Happy HomePartners, Llcs Motion To Compel Elliot Ganns Responses To Special Interrogatories, FormInterrogatories, And Request For Production Of Documents And For Monetary Sanctions filedby Gerald Udinsky, Happy Homes Partners, LLC, Bing Udinsky on 06/25/2024 is Granted.BACKGROUND: This is a landlord-tenant dispute between plaintiff Elliot Gann and defendantsBing Udinsky, Gerald Udinsky, and Happy Home Partners LLC. Defendant Bing Udinskypropounded discovery requests on May 25, 2023. (Reilly Decl., ¶¶ 4–7.) As of the filing of thismotion, defendant had not received any responses to interrogatories and had received onlyunverified responses to requests for production. (Id., ¶ 18.) In the opposition brief, plaintiffindicated that he has served some unverified responses and represented that defendants wouldhave everything they were seeking by the time of the hearing on this motion. There is a factualdispute over whether plaintiff actually served all the unverified responses on defendants, but, inany case, plaintiff acknowledges that he has not served verified responses. Defendants move tocompel responses to Bing Udinsky’s requests.PROCEDURAL MATTERS: The court exercises its discretion to consider plaintiff’s late-filedopposition brief. (Cf. Cal. Rules of Court, rule 3.1300 [“If the court, in its discretion, refuses toconsider a late filed paper, the minutes or order must so indicate.”].) Plaintiffs’ counsel,however, is admonished that future failures to comply with court rules may result in sanctions.Late filings interfere with judicial efficiency and, absent a showing of good cause, unfairlycompress the time for other parties to respond.DISCUSSION: The Code of Civil Procedure requires that responses be made under oath unlessthey contain only objections. (See Code Civ. Proc., §§ 2030.250, subd. (a) [interrogatories];Code Civ. Proc., § 2031.250, subd. (a) [demands for inspection, copying, etc].) Unverifieddiscovery responses “are tantamount to no responses at all.” (Steven M. Garber & Assocs. v.Eskandarian (2007) 150 Cal.App.4th 813, 817 fn. 4.) A party who fails to timely respond waivesany objection, “including one based on privilege or on the protection for work product,” to therequest. (See Code Civ. Proc., § 2030.290, subd. (a); Code Civ. Proc., § 2031.300, subd. (a).)Monetary sanctions are mandatory against any party, person, or attorney who unsuccessfullyoppose a motion to compel unless a court finds that they “one subject to the sanction acted withsubstantial justification or that other circ*mstances make the imposition of the sanction unjust.”(Code Civ. Proc., § 2030.290, subd. (c); Code Civ. Proc., § 2031.300, subd. (c).)Plaintiff argued that the motion should be denied because defense counsel did not meet in-person, by telephone, or by videoconference and did not request an IDC before filing thismotion. A section 2016.040 meet-and-confer declaration is not required where responses havenot been provided. (Compare, e.g., Code Civ. Proc., § 2031.310 with Code Civ. Proc., § SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV025487: GANN vs UDINSKY, et al. 07/25/2024 Hearing on Motion to Compel Discovery (not "Further Discovery") filed by Happy Homes Partners, LLC (Defendant) + in Department 252031.300.) The undersigned does not conduct IDCs, as indicated in the court’s standing order.Plaintiff has not established substantial justification for his failure to timely respond or any othercirc*mstances that would make the imposition of sanctions unjust. Defense counsel hassubmitted declarations establishing reasonable rates and hours spent on this motion.ORDER: Defendants’ motion to compel is GRANTED.· Within ten (10) days of notice of entry of this order, plaintiff must provide complete, code-compliant, and verified responses—without objections—to (1) Defendant Bing Udinsky’sSpecial Interrogatories, Set One, Nos. 1–73; (2) Defendant Bing Udinsky’s Form Interrogatories,Set One, Nos. 1, 2, 4, 6–12, 50; and (3) Defendant Bing Udinsky’s Requests for Production ofDocuments, Set One, Nos. 1–25.· Defendant Bing Udinsky is awarded $2,199.13 in sanctions against plaintiff and plaintiff’scounsel, jointly and severally, payable to defendant’s counsel of record within thirty (30) days ofnotice of entry of this order.PLEASE NOTE: This tentative ruling will become the court’s order unless a party gives noticeof intent to contest by 4:00 pm the day before the hearing. If you wish to contest, do so throughthe eCourt portal: https://www.alameda.courts.ca.gov/divisions/civil/tentative-rulings AND sendan email copying all parties and Department 25: dept25@alameda.courts.ca.gov
Ruling
FIRST UTAH BANK VS JOHN RENZULLI, III, ET AL.
Jul 25, 2024 |23TRCV02840
Case Number: 23TRCV02840 Hearing Date: July 25, 2024 Dept: 8 Tentative Ruling¿ HEARING DATE: July 25, 2024 CASE NUMBER: 23TRCV02840 CASE NAME: First Utah Bank vs. Chicken Bone Effects, Inc., et al. MOVING PARTY: Plaintiff, First Utah Bank RESPONDING PARTY: Defendants, Chicken Bone Effects, Inc. and John Renzulli III TRIAL DATE: Not Set. MOTION: (1) Motion for Summary Judgment, or in the alternative, Summary AdjudicationTentative Rulings: (1) GRANTED. I. BACKGROUND A. Factual On August 29, 2024, Plaintiff, First Utah Bank (Plaintiff) filed a complaint against Defendant, Chicken Bone Effects, Inc. (CBE) and John Renzulli III (Renzulli), and DOES 1 through 20. The complaint alleges causes of action for: (1) Breach of Contract; (2) Breach of Guaranty; (3) Common Count (Money Lent); and (4) Recovery of Personal Property. The complaint alleges that prior to the filing of this current action, SLIM Capital, LLC entered into written Equipment Finance Agreement (the Agreement) with CBE whereby SLIM Capital, LLC agreed to finance CBEs purchase of certain equipment from a vendor selected by CBE. (Complaint, ¶ 8.) In consideration therefore, Plaintiff contends that CBE obligated itself to make certain specified monthly payments to SLIM Capital, LLC, which obligation was absolute and unconditional. (Complaint, ¶ 8.) Plaintiff asserts that SLIM Capital, LLC subsequently assigned the Agreement to Plaintiff. (Complaint, ¶ 8.) Plaintiff notes that it remains the holder of the agreement and has performed all of the obligations which it was required to perform under the Agreement. (Complaint, ¶ 9.) Plaintiff alleges that CBE defaulted on the agreement when it failed to make the payments pursuant to the Agreement. (Complaint, ¶ 10.) As a result of CBEs default, Plaintiff alleges it accelerated the balance due under the Agreement and made demand on CBE for immediate payment of the accelerated balance. (Complaint, ¶ 11.) Plaintiff contends the accelerated balance due under the agreement at the time it filed its complaint was $73,972.77, plus interest thereon at the contract rate of 10% per annum from May 2, 2023. (Complaint, ¶ 12.) Plaintiff further asserts that the accelerated balance has not been paid. (Complaint, ¶ 12.) Plaintiff alleges that the agreement provides that CBE shall pay the attorneys fees and costs incurred by Plaintiff in enforcing its rights thereunder. (Complaint, ¶ 13.) Plaintiff now files a Motion for Summary Judgment or in the alternative, Motion for Summary Adjudication. B. Procedural On April 18, 2024, Plaintiff filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication. To date, no opposition has been filed. II. REQUEST FOR JUDICIAL NOTICE With Plaintiffs moving papers, Plaintiff also requested this Court take judicial notice of the following documents: 1. Complaint filed in this action by Plaintiff FIRST UTAH BANK on August 29, 2023. (Exhibit F to the Table of Exhibits.) 2. Answers to the Complaint filed in this action on January 10, 2024 by Defendants CHICKEN BONE EFFECTS, INC. and JOHN RENZULLI III. (Exhibit G to the Table of Exhibits.) This Court GRANTS this request and takes judicial notice of the above documents. III. ANALYSIS A. Legal Standard The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc.(2006) 39 Cal.4th 384, 389.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) B. Discussion Plaintiff moves for summary judgment on the grounds that it argues the first and second causes of action: (1) have been established by undisputed facts; (2) that there are no material issues of fact with respect to Defendants liability on Plaintiffs first and second causes of action tat remain to be determined; (3) that Defendants have not established any defense to Plaintiffs first and second causes of action; and (4) that Plaintiff is entitled to judgment against Defendants on the first and second causes of action in the principal amount of $52,240.41, pre-judgment interest in the amount of $6,544.56, attorneys fees to be determined by noticed motion, and court costs. Further, Plaintiff moves for summary judgment as to the third cause of action on the grounds that: (1) Plaintiffs third cause of action for common count of money lent against Defendants have been established by undisputed facts; (2) that no material issue of fact with respect to Defendants liability on Plaintiffs third cause of action remains to be determined; (3) that Defendants have not established any defense to Plaintiffs third cause of action; and (4) that Plaintiff is entitled to judgment against Defendants on the third cause of action in the principal amount of $52,240.41, pre-judgment interest in the amount of $6,544.56, attorneys fees to be determined by noticed motion, and court costs. First and Second Causes of Action for Breach of Contract and Breach of Guaranty Plaintiff first argues that undisputed facts establish Plaintiffs first and second causes of action. To state a cause of action for breach of contract, Plaintiff must be able to establish (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of contract claim is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference. (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.) In some circ*mstances, a plaintiff may also plead the legal effect of the contract rather than its precise language. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) Here, Plaintiff argues that each element of its first and second cause of action against Defendants CBE and Renzulli for breach of the Agreement and Guaranty are established by undisputed facts. First, Plaintiff argues that the Agreement and Guaranty were executed by Plaintiffs assignor and Defendants, which were later assigned to Plaintiff. (Plaintiffs SSUMF 1, 3.) In support of this, Plaintiff refers to the declaration of Don Rudy (Rudy Decl.), who is the VP, Asset Management Group and custodian of records for the finance agreement for First Utah Bank. (Rudy Decl., ¶¶ 1-2.) Rudy notes that on August 1, 2019, SLIM Capital, LLC entered into a written Equipment Finance Agreement No. 2586 (the Agreement) with Defendant, CBE whereby SLIM Capital, LLC agreed to finance CBEs purchase of certain equipment from a vendor selected by CBE. (Rudy Decl., ¶ 3.) Rudy contends Plaintiff subsequently changed the account number to 8313011606. (Rudy Decl., ¶ 3.) As consideration therefore, Rudy contends that CBE obligated itself to make certain specified monthly payments to SLIM Capital, LLC, which obligation was absolute and unconditional. (Rudy Decl., ¶ 3.) Rudy asserts that Plaintiff entered into an agreement to purchase the Agreement from SLIM Capital, LLC and the account number for that transaction is 8313011606. Rudy attached the copy of the Agreement as Exhibit A, and attached the assignment as Exhibit B. (Rudy Decl., ¶ 3, Exhibits A, B.) Based on the evidence presented by Plaintiff, the Court finds that Plaintiff has carried its initial burden in showing that a contract and assignment between the parties existed. Next, Plaintiff argues that it remains the holder of the Agreement and Guaranty and has performed all other obligations required of it. (Plaintiffs SSUMF 4, 5.) Rudys declaration asserts that Plaintiff has performed all things it was required to perform under the Agreement and Guaranty, and still remains the holder of the Agreement and Guaranty. (Rudy Decl., ¶¶ 6-7.) Plaintiffs Exhibit D contains the Continuing Guaranty of Indebtedness that appears to have the signature of Renzulli. The Court notes that the continuing guaranty of indebtedness appears to have been sent from Renzulli to SLIM Capital, LLC, not directly to Plaintiff. Third, Plaintiff contends that Defendants breached the Agreement and Guaranty by failing to make the payments that were required thereunder. (Plaintiffs SSUMF 6.) Rudys declaration states that CBE and Renzulli defaulted on the Agreement and Guaranty by failing to make the payment that was due on June 1, 2023, and all subsequent payments thereafter. (Rudy Decl., ¶ 8.) Plaintiff has included, in its Table of Exhibits, Exhibit E Statement of Account, which evidences the past due amounts in the account linked to Defendants. As such, this Court finds that Plaintiff has carried its initial burden that Defendants have breached the contract and guaranty. Lastly, this Court finds that Plaintiff has also carried its initial burden in showing that it has suffered damages as a result of the alleged breach. Based on the above, this Court tentatively holds that Plaintiff has carried its initial burden in showing that undisputed facts establish Plaintiffs first and second causes of action. This Court notes that after a moving party has carried its initial burden, the burden then shifts to the opposing party to show that disputed issues of material fact exist. However, Defendants here have failed to file an opposition brief. Thus, they have failed to carry their shifted burden. On these grounds, the Court tentatively GRANTS Plaintiffs motion for summary judgment. Defendants may present oral argument as to why they have failed to respond to the motion. Third Cause of Action for Money Lent Plaintiff also argues that the undisputed facts establish Plaintiffs Third Cause of Action for Money Lent. The required elements of a claim for money lent are (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff. (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, citation and quotation marks omitted.) Here, Plaintiff argues that each element of Plaintiffs third cause of action against Defendant, for money lent, is established by the undisputed facts. First, Plaintiff argues that Defendants became indebted after Plaintiff paid the vendor for the equipment that Defendants purchased. (Plaintiffs SSUMF 13.) Rudy contends that CBE and Renzulli became indebted to Plaintiff after Plaintiff paid the vendor for the equipment that CBE leased. (Rudy Decl., ¶¶ 3-4.) Plaintiff also attached the UCC-1 filing with the California Secretary of State, showing that Plaintiff perfected its security interest in the Equipment. (Exhibit C.) Next, Plaintiff argues that Defendants failed to pay Plaintiff for all amounts due as agreed for leasing the Equipment. (Plaintiffs SSUMF 14-16.) Rudy notes that as a result of Defendants default under the Agreement and Guaranty, the outstanding balance due is $52,240.41. (Rudy Decl., ¶ 9, Exhibit E.) Rudy further asserts that despite demand, no part of the outstanding balance has been paid and Defendants have failed to deliver the Equipment to Plaintiff. (Rudy Decl., ¶ 10.) Further, Rudy notes that interest on the balance from and after May 1, 2023, the date of the last payment, through July 25, 2024, the hearing date for the current motion, pursuant to the statutory rate of 10% totals $6,544.56. (Rudy Decl., ¶ 11, Exhibit E.) As such, Plaintiff contends that as of the motion hearing date, the total amount due, including interest, is $58,784.97. (Rudy Decl., ¶ 12, Exhibit E.) Based on the above, this Court tentatively holds that Plaintiff has carried its initial burden in showing that undisputed facts establish Plaintiffs third cause of action. Again, because this Court found that Plaintiff carried its burden, the burden would then shift to Defendants. However, because Defendants here have failed to file an opposition brief, they have failed to carry their shifted burden. On these grounds, the Court tentatively GRANTS Plaintiffs motion for summary judgment, subject to any oral argument by Defendants at the hearing as to why they have failed to respond to the motion. IV. CONCLUSION For the foregoing reasons, this Courts tentative ruling is to GRANT Plaintiffs Motion for Summary Judgment. Plaintiff is ordered to give notice.
Ruling
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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 .
Ruling
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Tentative not yet posted, please check again.
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