Preview
FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 Exhibit XFILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health Nyu Langone Long Island Cardiothoracic Surgery - Garden City 1300 Franklin Ave Suite M12 Garden City, NY 11530 -1612 Phone: 516 -663 -4400, Fax: 516 -663 -4404 7/22/22 CERTIFICATION: Patient Name: Zollo,Danielle Date of Birth: I,Elaina Costiglio, certify that the enclosed records are a true copy of the original records kept in the normal course of business for Nyu Langone Long Island Cardiothoracic Surgery - Garden City Ialso certify that no records have been altered while in my possession of making such copies. Elaina Costiglio 7/22/22 Record Custodian Signature DateFILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Garden City NY 11530 -1612 Patient Demographics i Name J Patient ID Gender Identity ..... .......Birth Date Zollo, Danielle 14551437 Female Address 1 Phone Email i 252 Central Ave 917- 533 -3865 (H) mamasboyz444 @gmail.co LYNBROOK NY 11563 917 -533 -3865 (M) m Reg Status ! PCP Date Last Verified Next Review Date ELAPSED Monte J Nussbaum, 06/11/20 07/11/20 MD516 -593 -3535 Emergency Contact 1 Emergency Contact 2 Pat Zollo (SPOUSE) Pat Zollo (SPOUSE) 252 Central Ave 252 Central Ave LYNBROOK NY 11563 LYNBROOK NY 11563 US US 917 -533 -3865 (H) 917- 533 -3865 (H) 917 -533 -3865 (M) 917- 533 -3865 (M) Op Notes signed by Laurence N Spier, MD at 5/19/2020 11:18 AM Author: Laurence N Spier, MD Service. Surgery, CT - Thoracic Author Type: Physician Filed: 5/19/2020 11:18 AM Creation Time: 5/11/2020 11:31 AM Status: Signed Editor: Laurence N Spier, MD (Physician) PATIENT NAME: ZOLLO, DANIELLE DOB: NYU LANGONE HEALTH SYSTEMS MRN: 14551437 CSN: 790076479 DATE OF OPERATION: 05/11/2020 OPERATIVE REPORT PREOPERATIVE DIAGNOSES: Mediastinal adenopathy and mass and multiple lung masses. POSTOPERATIVE DIAGNOSES: Mediastinal adenopathy and mass and multiple lung masses. OPERATIONS: Bronchoscopy, right thoracoscopy, robotic- assist, subcarinal mediastinal mass resections, level 7 lymph node dissection, right middle lobe lung biopsy. SURGEON: Laurence Spier, M.D. ASSISTANT(S): Cardiothoracic P.A. TYPE OF ANESTHESIA: General. FINDINGS: Multiple masses. PROCEDURE: The patient is a 42- year-old female with multiple lung nodules and mediastinal adenopathy, taken to the operating room, placed on the operating table, given general endotracheal anesthesia, double lumen endotracheal tube and invasive lines by Anesthesia Department. The patient had bronchoscopy performed with distal trachea being visualized. No endobronchial lesions, no extrinsic compression, no splaying of carina. Right main stem bronchus entered. Segment of the bronchi of the upper, middle, and Generated on 7/22/22 10:39 AM Page 1FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 FGPW 1300 FR THR SRG Zollo, Danielle NYU Langone Health Sex: F 1300 Franklin Ave MRN: 14551437, DOB: Systemy Suite ML2 Adm: 5/8/2020, D /C: 5/13/2020 Garden City NY 11530 -1612 Op Notes signed by Laurence N Spier, MD at 5/19/2020 11:18 AM (continued) lower lobe visualized. No endobronchial lesions, no extrinsic compression. Left main stem bronchus entered. Segment of the bronchi of the upper and lower lobe visualized. No endobronchial lesions, no extrinsic compression. Bronchoscope was removed. No bleeding was noted in the trachea. The patient was placed in lateral position, right side up, axillary roll in place, all pressure points padded. The patient was prepped and draped in normal sterile fashion. Four trocars inserted, three 8 mm and a 12 mm with 12 -mm for access, three 8 mm for camera and grasper. These were docked to da Vinci robot and instrumentation placed. The patient had a large subcarinal mass, taken in total and sent for pathology. Level 7 nodes were also dissected out and sent for pathology and the right middle lobe mass, which was on the surface a portion of this was taken with a lung mass biopsy. A wedge resection would have been almost impossible secondary to the fact that the mass was going down into the fissure and would have required at least a lobectomy to resect. All the areas were irrigated multiple times with no bleeding noted. All instrumentation was removed. Chest tube 28 straight chest tube inserted through the inferior incision to the apex. Lung re- expanded under direct visualization showing no torsion. All other incisions closed in multiple layers with subcuticular skin stitch. Sterile dressing, Benzoin and Steri-Strips were placed. Regional intercostal nerve block from approximately T4 -T8 with 0.5% Marcaine. WOUND CLASSIFICATION: 2. SPECIMENS: Mediastinal mass, nodes /rml COMPLICATIONS: None. Laurence N. Spier, MD TID: 212144342 DD: 05/11/2020 11:05:56 DT: 05/11/2020 11:29:49 VISIT SUMMARY Diagnoses Comments Mass of upper lobe of right lung - Primary Problem List as of 5/7/2020 Date Reviewed' 517/2020 Li -Anxiety :___- and depression Codes ICD -10 -CRY: F41.9, F32.9 Priority i Class _ :Noted.- Resolved 5/6/2020 - Present ICU -9 -CM: 300.00. 311 Mass of upper lobe of right lung ICU- 10 -CM1 891.8 5/7/2020 - Present ICD -9 -CM: 786.6 Overview Signed 5/7/2020 11:03 AM by Laurence N Spier, MD Added automatically from request for surgery 1276606 Allergies as of 5/7/2020 Verified by Tammy P Bloom. NP on 5/7/2020 No Known Allergies MEDICATIONS Medications at Start of Encounter Disp _ i Refits Start End gabapentin (NEURONTIN) 100 mg capsule 30 capsule 0 5/5/2020 5/13/2020 Sig - Route: Take 1 capsule by mouth 3 (three) times daily for 10 days. - Oral naproxen (NAPRELAN CR) 500 mg CR tablet 30 tablet 0 5/1/2020 5/13/2020 Sic - Route: Take 1 tablet by mouth daily. - Oral Generated on 7/22/22 10:39 AM Page 2FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Medications at Start of Encounter (continued) Disc Refills Start End buPROPion XL (WELLBUTRIN XL) 150 mg 24 hr tablet 9/4/2019 Sig - Route: Take 150 mg by mouth daily. Dose =1 tab =150mg Indications: major depressive disorder - Oral Class: Historical Med CALL CONTACT INFORMATION Call Information Provider Department Center 5/7/2020 9:45 AM Laurence N Spier, MD FGPW 1300 FR THR SRG Cardin Thora Care Advice Given No Care Advice given for this encounter. ORDERS AND RESULTS Result date and time is equivalent to report date and time. Generated on 7/22/22 10:39 AM Page 3FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Orders /Results - Order Type: Blood Bank TYPE AND SCREEN [390976912] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status: Discontinued Ordering user: Laurence N Spier, MD 05/07/20 1028 Authorized by: Laurence N Spier, MD Frequency: 05/07/20- Discontinued by: Automatic Cancellation System 02/05/21 0326 [Order Expired] Diagnoses Mass of upper lobe of right lung [R91.8] Questionnaire Question Answer Has the patient been transfused within the past 90 days? No Has the patient been pregnant in the past 90 days? No Does the patient have a condition that may require frequent transfusion No such as Sickle Cell Ds, Thalassemia or Malignacy? Has the patient been transfused at another hospital? No ABO AND RH [390976913] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status. Discontinued Ordering user: Laurence N Spier, MD 05/07/20 1028 Authorized by: Laurence N Spier, MD Frequency: 05/07/20 - Discontinued by: Automatic Cancellation System 02/05/21 0326 [Order Expired] Diagnoses Mass of upper lobe of right lung [R91.8] Questionnaire Question__ Answer Has the patient been transfused within the past 90 days? No Has the patient been pregnant in the past 90 days? No Does the patient have a condition that may require frequent transfusion No such as Sickle Cell Ds, Thalassemia or Malignacv? Has the patient been transfused at another hospital? No Orders/Results - Order Type: Code Status CPR (CARDIO-PULMONARY RESUSCITATION) [390976896] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status: Cancel Held Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Continuous 05/07/20 1030 - Until Specified Code status: CPR Canceled by: Automatic Discharge Provider 05/26/20 0002 Questionnaire Question Answer MOLST on File There is no MOLST Orders for other life- sustaining treatment and future hospitalization No when the patient has a pulse and the patient is breathing? Orders /Results - Order Type: Diet DIET NPO [390976907] Status: Cancel Held This order may be acted on in another encounter. Ordering user. Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Effective Now 05/07/20 1030 - Until Specified Diet: NPO Orders /Results - Order Type: Imaging Generated on 7/22/22 10:39 AM Page 4FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Orders /Results - Order Type: Diet (continued) SCOPE STORAGE OF THORAX IMAGING [390976918] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status. Discontinued Ordering user: Laurence N Spier, MD 05/07/20 1028 Orderng provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Once 05/07/20 1030 - occurrence 1 Discontinued by: Automatic Discharge Provider 05/07/20 1315 [Patient Discharge] Orders /Results - Order Type: Lab BASIC METABOLIC PANEL [390976914] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status: Discontinued Ordering user: Laurence N Spier, MD 05/07/20 1028 Authorized by: Laurence N Spier, MD Frequency: 05/07/20 - Discontinued by: Automatic Cancellation System 02/05/21 0326 [Order Expired] Diagnoses Mass of upper lobe of right lung [R91.8] CBC WITH DIFFERENTIAL [390976915] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status: Discontinued Ordering user: Laurence N Spier, MD 05/07/20 1028 Authorized by: Laurence N Spier, MD Frequency: 05/07/20 - Discontinued by: Automatic Cancellation System 02/05/21 0326 [Order Expired] Diagnoses Mass of upper lobe of right lung [R91.8] URINALYSIS (NO CULTURE) WITH REFLEX TO MICROSCOPY (390976916] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status: Discontinued Ordering User: Laurence N Spier, MD 05/07/20 1028 Authorized by: Laurence N Spier, MD Frequency: 05/07/20 - Discontinued by Automatic Cancellation System 02/05/21 0326 [Order Expired] Diagnoses Mass of upper lobe of right lung [R91.8] Orders /Results - Order Type: MSQ MANDATORY SURPRISE QUESTION [390976897] Status: Cancel Held This order may be acted on in another encounter. Ordering user Laurence N Spier, MD 05/07/20 1028 Ordering provides Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: 1 Time 05/07/20 1030 - 1 occurrence Questionnaire Question Answer Would you be surprised if this patient died within the next 6 months? Yes Orders /Results - Order Type: Medications chlorhexidine (CHLORA -PREP) 2 % topical towel [390976908] Status: Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Once 05/07/20 1030 - 1 occurrence Discontinued by: Lorraine M Leninger, RN 05/11/20 1216 chlorhexidine (CHLORA -PREP) 2 % topical towel [390976909] Status: Cancel Held Generated on 7/22/22 10:39 AM Page 5FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Ant Encounter Report Orders /Results - Order Type: Medications (continued) chlorhexidine (CHLORA -PREP) 2 % topical towel [390976909] (continued) This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Orderlcg provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Once 05/07/20 1030 - 1 occurrence Discontinued by: Lorraine M Leninger, RN 05/11/20 1216 heparin (porcine) injection 5,000 Units [3909769101 Status. Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Once 05/07/20 1030 - 1 occurrence Discontinued by: Lorraine M Leninger, RN 05/11/20 1216 gabapentin (NEURONTIN) capsule 300 mg [390976919] Status: Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Once 05/07/20 1030 - 1 occurrence Discontinued by: Lorraine M Leninger, RN 05/11/20 1216 ibuprofen (ADVIL,MOTRIN) tablet 800 mg [390975920] Status: Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Once 05/07/20 1030 - 1 occurrence Discontinued by: Lorraine M Leninger, RN 05/11/20 1216 acetaminophen (TYLENOL) tablet 975 mg [390976921] Status. Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Once 05/07/20 1030 - 1 occurrence Discontinued by: Lorraine M Leninger, RN 05/11/20 1216 Orders /Results - Order Type: Nursing PLACE MECHANICAL VTE PROPHYLAXIS [390976911] Status: Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Ongoing 05/07/20 1030 - Until Specified Questionnaire Question____._..._.... i, Where: - _.....__. Answer Bilateral Legs (SCD) VITAL SIGNS [390976898] Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provides Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: 1 Time 05/07/20 1030 - 1 occurrence Generated on 7/22/22 10:39 AM Page 6FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -161 2 Amb Encounter Report Orders /Results - Order Type: Nursing (continued) VERIFY INFORMED CONSENT [3909769001 Status. Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Or[iering pr Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: 1 Time 05/07/20 1030 - 1 occurrence NURSING COMMUNICATION [390976901] Status: Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Ongoing 05/07/20 1030 - Until Specified Order comments: verify appropriate preoperative testing has been performed NURSING COMMUNICATION [3909769021 Status. Cancel Held This order may be acted on in another encounter. Ordering user. Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Ongoing 05/07/20 1030 - Until Specified Order comments: verify medications have been discontinued prior to procedure TOBACCO CESSATION EDUCATION [390976903] Status- Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provi Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency. 1 Time 05/07/20 1030 - 1 occurrence PATIENT EDUCATION (SPECIFY) [3909769041 Status- Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: 1 Time 05/07/20 1030 - 1 occurrence PATIENT EDUCATION (SPECIFY) [390976905] Status: Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Orderinl ider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: 1 Time 05/07/20 1030 - 1 occurrence Orders /Results - Order Type: PAT PAT IN- PERSON VISIT [390976895] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status: Discontinued Ordering user: Laurence N Spier, MD 05/07/20 1028 Authorized by: Laurence N Spier, MD Frequency: 05/07/20 - Discontinued by: Automatic Cancellation System 10/05/21 0307 [Order Expired] Diagnoses Mass of upper lobe of right lung [R91.8] Orders /Results - Order Type: Point of Care Testing POCT GLUCOSE [390976899] Status: Cancel Held Generated on 7/22/22 10:39 AM Page 7FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Orders /Results - Order Type: Point of Care Testing (continued) POCT GLUCOSE [390976899] (continued) This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: 1 Time 05/07/20 1030 - 1 occurrence Orders /Results - Order Type: Respiratory Care OXYGEN VIA DEVICE TO KEEP 02 SATURATION ABOVE [390976906] Status- Cancel Held This order may be acted on in another encounter. Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: Continuous 05/07/20 1030 - Until Specified Questionnaire Question Answer Above: 92% 02 Device: Per RT /Nursing_ Humidify Oxygen? Yes Orders /Results - Order Type: Surgery Case SURGICAL CASE REQUEST [390976893] Electronically signed by. Laurence N Spier, MD on 05/07/20 1028 Status: Completed Ordering user: Laurence N Spier, MD 05/07/20 1028 Ordering provider: Laurence N Spier, MD Authorized by: Laurence N Spier, MD Frequency: 1 Time 05/07/20 1030 - 1 occurrence Diagnoses Mass of upper lobe of right lung [R91.8] Questionnaire 'Question Answer Post-op Destination: ICU Estimated Case Length (Incision to Close) Use My Average Time Generated on 7/22/22 10:39 AM Page 8FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Orders /Results - Order Type: ECG EKG 12 -LEAD [390976917] Electronically signed by: Laurence N Spier, MD on 05/07/20 1028 Status: Discontinued Ordering user: Laurence N Spier, MD 05/07/20 1028 Act-shoed by: Laurence N Spier, MD Frequency: 05/07/20 - Discontinued by Automatic Cancellation System 08/05/21 0311 [Order Expired] Diagnoses Mass of upper lobe of right lung [R91.8] Progress Notes - All Notes Progress Notes by Tammy P Bloom, NP at 5/7/2020 9:45 AM Author: Tammy P Bloom, NP Specialty: CT Surgery, Cardiac Surgery, Adult Author Type: Nurse Practitioner Filed: 50/2020 11:15 AM Encounter Date: 5/7/2020 Status: Signed Editor: Tammy P Bloom, NP (Nurse Practitioner) NYU Langone Health Thoracic Surgery Consultation Patient: Danielle Zollo MRN: 14551437 Date of Birth: Patient: Danielle Zollo MRN: 14551437 Date of Birth: Referring Physician: Bender Date: May 6, 2020 42 y.o. female who presents for evaluation of Right upper lobe parenchymal Lesion with probable mediastinal invasion. Danielle Zollo is a 42 year old female with a past medical history significant for anxiety. She has been following with pulmonary since 2013 for pulmonary nodules which had remained stable for several years. On 1/23/20 she presented to pulmonary following a visit to urgent care where she was diagnosed with PNA and treated with Doxycycline, but complained of increasing cough and malaise, prompting a CT scan on 5/1/20 which revealed mass like consolidations. Of note, She had a PET Scan on 2/12/20 which revealed moderately avid portacaval /para -aortic nodes below the diaphragm, with recommendation for close follow up. Currently, patient feels well. No fevers, sweats, or chills. Appetite and weight are stable. Energy level is at baseline. No SOB or DOE. No cough or hemoptysis. No formal exercise. Not currently smoking. Occupation: Teaching assistant Patient Care Team: Monte J Nussbaum, MD as PCP - General (Medicine, Family Medicine) Pulmonology: Bender Generated on 7/22/22 10:39 AM Page 9FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Progress Notes - All Notes (continued) Progress Notes by Tammy P Bloom, NP at 5/7/2020 9:45 AM (continued) REVIEW OF SYSTEMS: Home Oxygen: No Do you have any shortness of breath? No IF yes is shortness of breath at rest? No How is your appetite? Excellent Over the past 3 months have you noticed a change in your memory or thought process? No Dyspnea: No Weight loss (more than 10 pounds in 3 months: No Are you currently smoking or using Tobacco Products? Yes Have you ever smoked or used Tobacco Products? Yes If yes, when was the last time you smoked or used Tobacco Products? Social History Tobacco Use Smoking Status Former Smoker Packs /day: 0.00 Years: 16.00 Pack years: 0.00 Types: Cigarettes Last attempt to quit: 2016 Years since quitting: 4.3 Smokeless Tobacco Never Used Smoking Pack Years: Constitutional: Fever: No Chills: No NS: No HEENT: Denies dysphagia, vision loss, or epistaxis Respiratory: SOB: No Cough: No Hemoptysis: No TB exposure: No RNA: No COPD: No History of Pulmonary Fibrosis: No Cardiac Chest pain: No Palpitations: No Hypertension: No Generated on 7/22/22 10:39 AM Page 10FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Progress Notes - All Notes (continued) Progress Notes by Tammy P Bloom, NP at 5/7/2020 9:45 AM (continued) History of MI: RESPONSES; No Arrhythmia: RESPONSES; No Valvular Disease: No History of Pulmonary Hypertension: No History of CHF: No CAD: RESPONSES; No Prior Cardiothoracic Surgery: No PVD: No Gastrointestinal: Liver Disease: No Inflammatory Bowel Disease: No Peptic Ulcer Disease: No GI Bleeding: No Genitourinary: Renal Disease: No Renal Failure: No Required Dialysis: No Musculoskeletal: Collagen Vascular Disease: No Denies joint pain, swelling, deformity or gait disturbance Skin: Denies rashes, hives, lesion or pruritus Neurological: Cerebrovascular Disease: No Denies headaches, dizziness, focal weakness or seizures Hematological: Coagulopathy: No AIDS: No Previous Cancer: No If Yes, has there been a solid tumor treated within the past 5 years? No Metastases: No Previous Chemo: No Previous RT: No Lymphoma: No Leukemia: No Previous blood transfusion within the last three months: No Endocrine: Diabetes: No Denies thyroid disease, excessive thirst Psychiatric: Generated on 7/22/22 10:39 AM Page 11FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Progress Notes - All Notes (continued) Progress Notes by Tammy P Bloom, NP at 5/7/2020 9:45 AM (continued) Major psychiatric disorder: No No past medical history on file. Past Surgical History: Procedure ILaterality Date CHOLECYSTECTOMY GASTRIC BYPASS SURGERY Social History Tobacco Use Smoking status: Former Smoker Packs /day: 0.00 Years: 16.00 Pack years: 0.00 Types: Cigarettes Last attempt to quit: 2016 Years since quitting: 4.3 Smokeless tobacco: Never Used Substance Use Topics Alcohol use: Yes Comment: Socially Drug use: Never Family History_ Problem Relation 'Age of Onset Rectal Cancer Mother Lymphoma Father Current Outpatient Medications Medication Sig Dispense Refili gabapentin (NEURONTIN) 100 Take 1 capsule by 30 capsule 0 mg capsule mouth 3 (three) times daily for 10 days. naproxen (NAPRELAN CR) Take 1 tablet by 30 tablet 0 500 mq CR tablet mouth daily. buPROPion XL (WELLBUTRIN Take 150 mg by XL) 150 mg 24 hr tablet mouth daily. No current facility- administered medications for this visit. Generated on 7/22/22 10:39 AM Page 12FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Progress Notes - All Notes (continued) Progress Notes by Tammy P Bloom, NP at 5/7/2020 9:45 AM (continued) Allergy: No Known Allergies Physical Exam: There were no vitals taken for this visit. Gen: WDWN A &Ox3 ECOG /Performance Status: (0) Fully active, able to carry on all predisease performance without restriction Imaging CT Location: EPIC CT Scan Date: 5/1/20 Impression: There is a right upper lobe parenchymal masslike lesion with probable mediastinal invasion which has increased in size since the prior study, associated with persistent extensive mediastinal lymphadenopathy and right hilar/perihilar lymphadenopathy. There has been interval development of a right lower lobe nodular density superimposed upon stable parenchymal mass lesions and nodularity elsewhere within the lungs. Spleen enlargement is again noted. Malignancy including primary lung malignancy and lymphoma cannot be excluded. Neoplastic process including the possibility of sarcoidosis should also be considered. PET Location: EPIC PET Scan Date: 2/12/20 Impression: Multiple conglomerate enlarged right paratracheal node. These extend into contiguous fashion into the lower right paratracheal station .multiple enlarged hypermetabolic lymph nodes and masses involving the mediastinum and hilar regions there are air bronchograms abutting portions of the right hilum with consolidative changes seen bilaterally, möre prominently in the right lung there is an isolated right lung nodule which is metabolically unremarkable. The CT appearance of these findings appear stable over recent exams. She has isolated moderately avid portocaval para -aortic nodes below the diaphragm, which is an isolated finding as above concerning clinical significance however these may be reactive as well close surveillance is suggested. Max SUV Primary Tumor: 9.0 Pulmonary Function Testing Date: FVC: FEV1: DLCO: Invasive Mediastinal Staging EBUS: No Results: Mediastinoscopy: No Results: Generated on 7/22/22 10:39 AM Page 13FILED: NASSAU COUNTY CLERK 02/23/2024 08:33 PM INDEX NO. 600444/2022NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 02/23/2024 NYU Langone Health FGPW 1300 FR THR SRG Zollo, Danielle 1300 Franklin Ave MRN: 14551437, DOB: Sex: F System Suite ML2 Visit date: 5/7/2020 Garden City NY 11530 -1612 Amb Encounter Report Progress Notes - All Notes (continued) Progress Notes by Tammy P Bloom, NP at 5/7/2020 9:45 AM (continued) Other Preoper
Related Contentin Monroe County
Case
Rima El Masri v. James M. Owens
Jul 03, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024010950
Case
Jessie L. Taylor v. Cara M. Levy
Jul 03, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024010948
Case
Jul 08, 2024 |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |E2024011182
Case
Louis A. Ponder v. S.R. Collier-Santos
Jul 08, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024011113
Case
Tanisha Flowers On behalf of JV, a minor v. Rochester City School District
Torts - Other Negligence (Negligence) |Torts - Other Negligence (Negligence) |E2024010944
Case
Ciera Luff v. Monica Travina Meeks, John Doe I a Defendant whose name is presently unknown, such individual being the operator of the vehicle owned by Monica Travina Meeks, Nicklas Mario Vinci, John Doe Ii a Defendant whose name is presently unknown, such individual being the operator of the vehicle owned by NICKLAS MARIO VINCI
Jul 08, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024011143
Case
Jul 09, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024011281
Case
Maryann Sides v. J R Real Estate Inc., Ren Management Group, Llc
Jul 03, 2024 |Torts - Other (Slip and Fall) |Torts - Other (Slip and Fall) |E2024010993
Case
Shakeya J. Upshaw v. Kellene F. Paul, Jordan C. Paul
Jul 03, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024010952
Ruling
LOPEZ vs CORONA POST ACUTE, LLC
Jul 11, 2024 |CVRI2401992
LOPEZ vs CORONA POST Petition to Compel Arbitration byCVRI2401992ACUTE, LLC CORONA POST ACUTE, LLCTentative Ruling: No tentative ruling.
Ruling
KEENAN CONROY, ET AL. VS SHANNON EILEEN DUFFICY
Jul 10, 2024 |23STCV09001
Case Number: 23STCV09001 Hearing Date: July 10, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: July 10, 2024 CASE NUMBER: 23STCV09001 MOTIONS: Motion for Leave to Intervene MOVING PARTY: Falls Lake Fire and Casualty Company OPPOSING PARTY: Unopposed BACKGROUND On April 24, 2023, Plaintiffs Keenan Conroy, Juan Delgado, Melissa Cossio, and Juan Antonio Gutierrez (Plaintiffs) filed a complaint against Defendants Shannon Eileen Dufficy and Does 1 to 20 for negligence surrounding a motor vehicle accident. Prospective Intervenor Falls Lake Fire and Casualty Company (Intervenor) seeks a Court order granting leave to file a complaint-in-intervention in this action. No opposition has been filed. LEGAL STANDARD Code of Civil Procedure section 387(d) states, [t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) A provision of law confers an unconditional right to intervene. (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. (Code. Civ. Proc. § 387(d)(1).) Pursuant to section 387 the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386.) Labor Code sections 3852 and 3853 provide that an employer against whom a claim for workers compensation damages was made may join in an action against a third party arising out of the incident for which the workers compensation payment was made. (Lab. Code, §§ 3852, 3853.) [Labor Code] [s]ection 3853 states that when an action is brought against a third party by either the employer or the employee, the other may, at any time before trial on the facts, join as party plaintiff. (Jordan v. Superior Court (1981) 116 Cal.App.3d 202, 206 (quoting Labor Code section 3853).) An employer includes the employers insurer. (Lab. Code, § 3850(b).) DISCUSSION Here, Intervenor asserts it insured Plaintiffs employer, Brea Glass and Mirror, Inc., and the underlying incident took place within the scope of Plaintiffs employment. As a result, Intervenor has paid workers compensation benefits to Plaintiffs Juan Delgado, Keenan Conroy, and Juan Gutierrez for the subject accident.[1] (Zaiderman Decl. ¶ 24.) Intervenor has attached a proposed complaint-in-intervention. (Exh. A.) No opposition has been filed. Accordingly, the Court grants the motion. CONCLUSION AND ORDER Accordingly, Falls Lake Fire and Casualty Companys motion for leave to intervene is GRANTED. Falls Lake Fire and Casualty Company is ordered to file and serve its Complaint-in-Intervention within 10 days. Falls Lake Fire and Casualty Company to provide notice and file a proof of service of such. [1] Plaintiff Melissa Cossio brings a loss of consortium action only.
Ruling
KIMBERLY SANCHEZ VS ZHENIA ALCARAZ
Jul 09, 2024 |24PSCV00303
Case Number: 24PSCV00303 Hearing Date: July 9, 2024 Dept: K Counsel for Plaintiff Kimberly Sanchezs (i.e., The Nitka Firm) Motion to be Relieved as Counsel is GRANTED, contingent upon counsel providing a proof of service, at or before the time of the hearing, reflecting Code of Civil Procedure § 1005(b) notice to Plaintiff and effective upon the filing of a proof of service showing service of the signed order, return receipt requested, upon Plaintiff at Plaintiffs last known address. Background Plaintiff Kimberly Sanchez (Plaintiff) alleges that she sustained injuries and damages in a February 1, 2022 motor vehicle accident. On January 30, 2024, Plaintiff filed a complaint, asserting a cause of action against Zhenia Alcaraz and Does 1-50 for: 1. Negligence A Case Management Conference and an Order to Show Cause Re: Failure to File Proof of Service are set for July 9, 2024. Discussion The Nitka Firm (Firm) seeks to be relieved as counsel of record for Plaintiff. Notice The motion was filed on June 6, 2024 and set for hearing on July 9, 2024. The motion was not accompanied by a proof of service, nor has a proof of service since been filed, to date (i.e., as of July 2, 2024, 11:26 a.m.) The following analysis, then, is contingent upon counsel for Plaintiff filing a proof of service, at or before the time of the hearing, reflecting Code of Civil Procedure § 1005, subdivision (b) notice to Plaintiff. MeritsThe court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915; People v. Prince (1968) 268 Cal.App.2d 398.) California Rules of Court (CRC) Rule 3.1362 requires (1) a notice of motion and motion directed to the client (made on the Notice of Motion and Motion to Be Relieved as CounselCivil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure § 284(2) is brought instead of filing a consent under section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as CounselCivil form (MC-052)); (3) service of the notice of motion and motion, the declaration, and the proposed order on the client and on all other parties who have appeared in the case; and (4) a proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as CounselCivil form (MC-053)). The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. Attorney David Nitka (Nitka) represents that he has not had contact with Plaintiff for more than one year, despite his attempts to reach Plaintiff. Nitka states that he has served Plaintiff by mail at Plaintiffs last known address with copies of the motion papers served with this declaration, but that he has been unable to confirm that the address is current or to locate a more current address for Plaintiff after mailing the motion papers to Plaintiffs last known address, return receipt requested, calling Plaintiffs last telephone number(s) and emailing Plaintiff at her email address. The court determines that the requirements of Rules of Court Rule 3.1362 enumerated above have been sufficiently met. Accordingly, the motion is granted, effective upon the filing of a proof of service showing service of the signed order, return receipt requested, upon Plaintiff at Plaintiffs last known address.
Ruling
FLOR HERNANDEZ VS SAM'S CLUB, BUSINESS ENTITY FORM UNKNOWN, ET AL.
Jul 12, 2024 |22STCV31274
Case Number: 22STCV31274 Hearing Date: July 12, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: July 12, 2024 Case Name: Hernandez v. Sams Club, et al. Case No.: 22STCV31274 Matter: Application for Pro Hac Vice Admission Moving Party: Defendant Sport Diversions, Inc. Responding Party: Unopposed Notice: OK Ruling: The Application is granted. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. Defendant Sport Diversions, Inc. seeks pro hac vice admission for Heath Sherman. The Application is granted because it meets all requirements of Cal. Rules of Court, Rule 9.40. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
JAMES HOWARD VS PROSPER BENHAIM
Jul 09, 2024 |23CHCV00240
Case Number: 23CHCV00240 Hearing Date: July 9, 2024 Dept: F49 Dept. F49 Date: 7/9/24 Case Name: James Howard v. Prosper Benhaim Case No. 23CHCV00240 LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F49 JULY 9, 2024 MOTION FOR JUDGMENT ON THE PLEADINGS Los Angeles Superior Court Case No. 23CHCV00240 Motion filed: 2/1/24 MOVING PARTY: Defendant Prosper Benhaim (Benhaim or the Defendant) RESPONDING PARTY: None. NOTICE: OK. RELIEF REQUESTED: A judgment on Plaintiffs Complaint on the grounds that Plaintiff does not state facts sufficient to constitute a cause of action against Defendant. TENTATIVE RULING: The motion is GRANTED without LEAVE TO AMEND. BACKGROUND On January 27, 2023, Plaintiff James Howard (Howard or Plaintiff) filed a Complaint against Defendant alleging Medical Malpractice. Subsequently, on March 8, 2023, Defendant filed his Answer to the Complaint. On January 29, 2024, Department F51 Court granted Defendants unopposed motions to compel Plaintiffs responses to discovery requests, and to deem admitted his Requests for Admission, Set One, filed on November 3, 2023. (1/29/24 Minute Order). On February 1, 2024, Defendant filed the instant Motion for Judgment on the Pleadings (the Motion). No Opposition or Reply papers have been received by the Court. ANALYSIS A motion for judgment on the pleadings is the equivalent of a demurrer made after the pleadings are in. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746 [quoting Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 463].) A party may move for a judgment on the pleadings as to an entire complaint or as to a particular cause of action in a complaint. (Code Civ. Proc., §¿438, subd. (c)(2)(A).) If a defendant moves for judgment on the pleadings and argues that a complaint does not state facts sufficient to constitute a cause of action against that defendant, then the court should grant a defendants motion only if the court finds as a matter of law that the complaint fails to allege facts sufficient to constitute the cause of action. (Code Civ. Proc., §¿438, subd.(c)(1)(B)(ii); see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.) The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. OReilly (2010) 183 Cal.App.4th 316, 321.) A judgment on the pleadings attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed. (Code Civ. Proc., § 438, subd. (d); Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) When considering a motion for judgment on the pleadings, the court should assume that all facts alleged are true and should liberally construe the alleged facts with a view to attaining substantial justice among the parties. (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232; Code Civ. Proc., § 452.) Both a demurrer and a motion for judgment on the pleadings accept as true all material factual allegations of the challenged pleading, unless contrary to law or to facts of which a court may take judicial notice. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 27.) Whether a motion for judgment on the pleadings should be granted with or without leave to amend depends on whether there is a reasonable possibility that the defect can be cured by amendment& (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1402 [quoting Blank v. Kirwan (1985) 39 Cal.3d 311, 318].) When a cure is a reasonable possibility, the trial court abuses its discretion by not granting leave to amend& (Ibid.) A. Meet and Confer Requirement Code of Civil Procedure section 439, subdivision (a) provides, Before filing a statutory motion for judgment on the pleadings, the moving party must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings. (Code Civ. Proc., § 439, subd. (a).) However, determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion for judgment on the pleadings. Furthermore, [t]he moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following: (A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings, and that the parties did not reach an agreement resolving the claims raised by the motion for judgment on the pleadings. (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 439, subd. (a)(3).) Here, Defendants counsel attests that on January 31, 2024, he called and spoke to Plaintiff in order to meet and confer regarding issues raised in the Motion. (Corson Decl. ¶ 7.) According to Defendants counsels declaration, during the meet and confer phone call, Plaintiff stated that he understood that Defendant would be seeking a dismissal based on matters deemed admitted, and Plaintiff indicated that he would try and get his case back in order. (Ibid.) Based on the above records, the Court determines that the requirements for meet and confer have been sufficiently met. B. Requests for Judicial Notice Defendant requests that the Court take judicial notice of the following documents: (1) This Courts January 29, 2024 Minute Order Deeming the Truth of Matters Specified in Requests for Admission Propounded on Plaintiff JAMES HOWARD Admitted (attached hereto as Exhibit A). (2) Defendant PROSPER BENHAIM, M.D.s Request For Admissions, Set No. 1, Propounded on Plaintiff JAMES HOWARD (attached hereto as Exhibit B). A court may take judicial notice of the contents of its own records. (Evid. Code, § 452, subd. (d); Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265; Foster v. Gray (1962) 203 Cal.App.2d 434, 439.) Accordingly, the Court GRANTS Defendants Request for Judicial Notice. C. Motion for Judgment on the Pleadings 1) Cause of Action Medical Malpractice A prima facie case for medical malpractice consists of (1) a duty to conform to the relevant standard of care; (2) a breach of that duty, i.e., the negligent conduct; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)¿A healthcare provider is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful healthcare providers of the same type would use in the same or similar circ*mstances. (Landeros v. Flood (1976) 17 Cal.3d 399, 408.) Here, Defendant argues that Plaintiffs action is barred because Plaintiff was deemed to have admitted that he had no basis for his action against Defendant. Specifically, it was deemed admitted that defendant PROSPER BENHAIM, M.D., complied with the STANDARD OF CARE at all times when rendering treatment to [Plaintiff], that any action taken by defendant PROSPER BENHAIM, M.D., was not a SUBSTANTIAL FACTOR in causing any INJURY to [Plaintiff], that any action which was not taken by defendant PROSPER BENHAIM, M.D. was not a SUBSTANTIAL FACTOR in causing any INJURY to [Plaintiff], and that to a reasonable degree of medical probability [Plaintiff] have not suffered any INJURY due to a breach of the STANDARD OF CARE by defendant PROSPER BENHAIM, M.D. (RJN, Ex. A, and B.) Defendant contends that by these admissions, which demonstrate the absence of the necessary elements for the claim, Plaintiff cannot sufficiently state a cause of action for Medical Malpractice. (Mot. at pp. 4-5.) The Court agrees. The Court notes that a complaint's allegations may be disregarded when they conflict with judicially noticed discovery responses. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83.) Accordingly, a pleading valid on its face may nevertheless be subject to demurrer when judicially noticed admissions render the complaint meritless. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Here, in alignment with these established precedents, the judicial notice of the Minute Order dated January 29, 2024, deeming matters admitted by Plaintiff, is dispositive in this case. The admissions conclusively establish that Defendant did not act below the standard of care and that no act or omission by Defendant was a substantial factor in causing Plaintiffs alleged injuries. As a result, Plaintiff has failed to demonstrate the essential elements of a medical malpractice claim. Therefore, given that Plaintiff has admitted that his action against Defendant was meritless, the Court GRANTS the Motion for Judgment on the Pleadings. 2) Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) Here, Plaintiff does not submit any Opposition to the Motion or argue there is a reasonable possibility of successful amendment, failing to meet his burden. Moreover, even assuming that Plaintiffs single-page Complaint may be amended to state a cause of action, it does not overcome the judicially noticed admissions rendering a valid complaint meritless. (See Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604.) Accordingly, the Court DENIES leave to amend. CONCLUSION Defendants unopposed Motion for Judgment on the Pleadings is GRANTED WITHOUT LEAVE TO AMEND. Moving party to give notice.
Ruling
LILLIAN SMITH, SR. VS RICARDO HERNANDEZ
Jul 10, 2024 |23TRCV02998
Case Number: 23TRCV02998 Hearing Date: July 10, 2024 Dept: B Superior Court of California County of Los Angeles Southwest District Torrance Dept. B LILLIAN SMITH, Plaintiff, Case No.: 23TRCV02998 vs. [Tentative] RULING RICARDO HERNANDEZ, Defendant. Hearing Date: July 10, 2024 Moving Parties: Defendant Ricardo Hernandez Responding Party: None Motion to Set Aside Entry of Default; The Court considered the moving papers. No Opposition was filed. RULING The motion is GRANTED. The default entered on May 3, 2024 against defendant is set aside and vacated. Defendant is ordered to file a responsive pleading within 15 days of the date of this Order. BACKGROUND On September 18, 2023, plaintiff Lillian Smith Sr (self-represented) filed a complaint against Ricardo Hernandez. On May 3, 2024, a default was entered against defendant. LEGAL AUTHORITY CCP §473 CCP §473(b) states, in relevant part: The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . [T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 697 (citations and internal quotations omitted). CCP §473.5 CCP §473.5(a) states, in relevant part: When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. CCP §473.5(b) requires that a notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the partys lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action. CCP §473.5(c) allows upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action. DISCUSSION Defendant Ricardo Hernandez requests that the Court set aside the default entered on May 3, 2024, pursuant to CCP §§473 and 473.5. On January 2, 2024, plaintiff filed a proof of service, which was stricken on March 27, 2024, because plaintiff had failed to identify any person who the summons and complaint were left and to attach a declaration of due diligence. It was also not signed under penalty of perjury. On January 11, 2024, plaintiff filed a proof of service, which was rejected on February 1, 2024, as it failed to identify a person and there was no declaration of due diligence. On March 27, 2024, plaintiff filed a proof of service, which stated that defendant was substitute served at 920 W. Commonwealth Ave., Fullerton, on March 15, 2024, on a male Hispanic shirt displaying company logo who refused to take documents by a person who is not a registered process server. There is no declaration of due diligence. On April 10, 2024, plaintiff filed a proof of service, which indicated that defendant was substitute served on April 1, 2024, on Jenifer an employee with Uhaul Storage and Moving and willing to give the documents when he returns to location. It did not include a declaration of diligence or a declaration of mailing. Defendant states in his declaration that he is employed by U-Haul Co. of California as a field relief manager. Defendant decl., ¶2. He does not have an assigned office at the facility in Inglewood. Id., ¶3. He typically works out of another U-Haul facility located in Fullerton, California. Id., ¶4. To date, he has never been personally served with a copy of the summons and complaint. Id., ¶5. On April 1, 2024, he was notified that someone had attempted to serve him legal papers at a U-Haul storage facility located at 920 W. Commonwealth Ave., Fullerton. That day, he went to the storage facility to pick up the paperwork that was left for him and passed it on to his manager. Id., ¶7. Defendant contends that the default entered against him was the result of reasonable mistake, surprise, and/or excusable neglect. He asserts that the default was prematurely entered against him before the statutory deadline to respond to the complaint. He contends that he was served with a copy of the summons and complaint via substitute service on April 1, 2024, and that based on this date of service, the deadline to respond to the complaint would have been May 10, 2024, but that the default was entered on May 3, 2024. Defendant also argues that plaintiff improperly entered a default against defendant after learning that he was represented by counsel and after counsel attempted to meet and confer with plaintiff prior to filing a demurrer and motion to strike. There is no opposition. The Court rules as follows: The Court finds that the April 1, 2024 service was not valid as it was not a proper substituted service. Also, the Court finds that the default was entered prematurely. If plaintiff was properly served on April 1, 2024, then defendant had 40 days from when the papers were mailed to file a response. See CCP §415.20. There is no indication that the summons and complaint were mailed. In any event, the default was entered on May 3, 2023, which is seven days too early. In addition, the entry of the default taken against the Defendant was the result of excusable neglect, assuming that service was valid. It is in the interests of justice to grant the Motion and allow this case to proceed for resolution on the merits. The motion is thus GRANTED. ORDER The motion is GRANTED. The Court sets aside and vacates the default entered on May 3, 2024. Defendant is ordered to file a responsive pleading within 15 day of the date of the Order. Defendant is ordered to give notice of ruling.
Ruling
TODD BERTRANG, ET AL. VS IVORY HOLDINGS, LLC, A LIMITED LIABILITY COMPANY, ET AL.
Jul 09, 2024 |21STCV42736
Case Number: 21STCV42736 Hearing Date: July 9, 2024 Dept: S25 Procedural Background Plaintiffs, Todd Bertrang (Bertrang) and Ophie Beltran (Beltran) (collectively, Plaintiffs) sued Defendants, Lido Sailing Club, Inc. (Lido), Ivory Holdings, LLC (Ivory), and Scott Vollero (Vollero) based on injuries Plaintiffs allege they sustained from Bertrangs exposure to hazardous chemicals. Plaintiffs filed their original complaint on November 18, 2021, and filed a First Amended Complaint (FAC) on May 4, 2022. Notably, Plaintiffs did not serve any party prior to filing their FAC, and no party responded to the original complaint. On September 8, 2022, the Court sustained Lido Sailing Club, LLCs demurrer to the FAC with leave to amend. (September 8, 2022 Minute Order.) On September 30, 2022, Plaintiffs filed their Second Amended Complaint (SAC). On October 5, 2022, Lido filed a demurrer to the SAC. Shortly thereafter, the personal injury hub court found the case complicated and transferred it to Long Beach for all further proceedings. On January 12, 2023, Lido re-filed its demurrer to the SAC in Department S27. On June 27, 2023, the Court continued the hearing on the demurrer, finding the parties had not adequately met and conferred prior to filing their papers. On July 27, 2023, the Court sustained the demurrer with leave to amend. On September 20, 2023, rather than amending the SAC, Plaintiffs dismissed Lido from the case. On December 21, 2023, Defendants Ivory Holdings and Vollero filed a demurrer with the motion to strike portions of the SAC. On January 23, 2024, the Court sustained the demurrer with leave to 20 days amend as to the NIED cause of action and alter ego liability cause of action and overruled the strict liability for ultrahazardous activity cause of action, the violation of Health and Safety Code, § 25359.7, cause of action and the IIED cause of action; the Court also granted the motion to strike without leave to amend as to punitive damages and related allegations. (January 23, 2024 Minute Order.) On April 24, 2024, Plaintiffs filed a Third Amended Complaint (TAC) more than two months after the Courts January 23 order. Meet and Confer Defendant Volleros counsel states that he sent a meet and confer letter to Plaintiffs counsel on May 17, 2024 detailing issues with the TAC and his availability for a telephonic meet and confer at least 5 days prior to filing the instant motions. (Rasmussen Decl.1, ¶ 5, Exh. B.) Defendant Volleros counsel states that Plaintiffs counsel did not respond to the meet and confer attempt. (Id., at ¶ 6.) In opposition, Plaintiffs counsel argues Defendant Volleros counsel failed to meet and confer because the issues were not discussed in person or by telephone as required under Code Civ. Proc., §§ 430.41, 435.5. Notwithstanding the parties conflicting ideas of meet and confer, it is very likely an informal attempt to resolve the matter would have been unsuccessful. Analysis 1. Delay in Filing of Third Amended Complaint Code Civ. Proc., § 472b, states that: [w] hen a demurrer to any pleading is sustained or overruled, and time to amend or answer is given, the time so given runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2024) ¶ 7:145; Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.) After expiration of the time in which a pleading can be amended as a matter of course, the pleading can only be amended by obtaining the permission of the court. (Leader v. Health Indus. of Am., Inc. (2001) 89 Cal. App. 4th 603, 613.) While a court has discretion to require a noticed motion before permitting a plaintiff to file an amended complaint late, a court also has the discretion to accept a filing without a noticed motion. (Harlan v. Dep't of Transportation (2005) 132 Cal. App. 4th 868, 873.) The Court exercises its discretion and accepts Plaintiffs untimely filed Third Amended Complaint without a noticed motion. 2. Second Amended Complaint Holding (Alter Ego) On January 23, 2024, Judge Mark Kim sustained Defendant Volleros Demurrer to the Second Amended Complaint with leave to amend. Judge Kim ruled: All claims against Volero are plead on an alter ego theory. Plaintiffs alter ego allegations are found at ¶6 of the SAC, and merely allege that each defendant was acting as the alter ego of each other defendant. Relying on Rutherford Holdings, LLC v. Playa del Rey (2014) 223 Cal.App. 221, 236, Judge Kim held: Plaintiffs herein failed to allege any of the ultimate facts showing alter ego liability. They failed to allege unity of interest, domination and control, inadequate capitalization, etc. Voleros demurrer is therefore sustained with leave to amend. Plaintiffs must allege ultimate facts showing imposition of liability against Volero would be proper. (See January 23, 2024 Minute Order, Legal Standard on Demurrer, Alter Ego Liability, 3(h)). 3. Demurrer to the Third Amended Complaint (Alter Ego) A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing partys pleading. It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by amendment. California Logistics, Inc. v. State of California (2008) 161 Cal. App. 4th 242, 247. The burden is on the complainant to show in what manner and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs allegations of alter ego in the TAC are found at ¶ 3 and 6. These allegations are identical to the alter ego allegations found at ¶ 3 and ¶6 of the SAC. No additional facts or allegations have been added by Plaintiffs. As discussed, Judge Kim found those allegations deficient as Plaintiff failed to allege any of the ultimate facts showing alter ego liability and failed to allege unity of interest, domination and control, inadequate capitalization. (January 23, 2024 Minute Order). In sum, Plaintiffs completely failed to amend or modify their operative pleading in any manner or in compliance with Judge Kims ruling. In Plaintiffs opposition, Plaintiffs request leave to amend by suggesting three new facts, previously unknown, support the theory of alter ego between Vollero and Ivory Holdings. These facts are: (1) and (2) on August 16, 2016, two separate Deeds of Trust were recorded against the subject premises with Vollero as the Beneficiary and (3) Vollero, as an individual, performed the alleged remediation of the toxic chemicals which are alleged to have harmed Plaintiffs. Assuming the new facts found in Plaintiffs Opposition are true, Plaintiffs have not met their burden demonstrating how or in what manner these new allegations support of finding that a reasonable possibility exist for Plaintiffs to cure the defects and successfully pled a theory of alter ego. (Reeder v. Specialized Loan Servicing LLC (2020) 52 Cal.App.5th 795, 805.) These additional facts show no connection between Vollero and Ivory Holdings. Even with the inclusion of those three allegations, Plaintiffs operative pleading would fail to allege any of the ultimate facts showing an alter ego theory as set forth in Rutherford (e.g. allegations of unity of interest, domination and control, inadequate capitalization). 4. Ruling The Court sustains Defendant Volleros Demurrer without leave to amend. Defendant Volleros motion to strike is now moot.
Ruling
TRAVELERS COMMERCIAL INSURANCE COMPANY VS GARY L LUCKENBACHER
Jul 11, 2024 |23SMCV05929
Case Number: 23SMCV05929 Hearing Date: July 11, 2024 Dept: P Tentative Ruling Travelers Commercial Insurance Co. v. Luckenbacher, Case No. 23SMCV05929 Hearing date July 11, 2024 Travelers Motions for Orders Compelling Responses to Form Interrogatories, Special Interrogatives, and Demand for Production of Documents and Request for Monetary Sanctions In this uninsured motorist case, plaintiff moves to compel defendants responses to form interrogatories, special interrogatories, and demand for production of documents and requests sanctions. No opposition, which would have been due nine court days prior to the hearing (Code Civ. Proc. §1005(b)) was filed. If a party to whom interrogatories or an inspection demand were directed fails to serve a timely response, the propounding party may move for an order compelling responses without objections. Code Civ. Proc. §§2030.290(b), 2031.300(b). Moreover, failure to timely serve responses waives objections to the requests. Code Civ. Proc. §§2030.290(a), 2031.300(a). Failure to verify a response is equivalent to no response at all. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. If a party unsuccessfully made or opposed such a motion, the court shall impose a monetary sanction . . . unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. Code Civ. Proc. §§2030.290(c), 2031.300(c). Sanctions may be awarded even though no opposition was filed or the requested discovery was provided after the motion was filed. CRC Rule 3.1348(a). Defendant failed to respond. See generally Volk decls. All objections to the requests are waived. Monetary sanctions are warranted. Plaintiffs counsel requests $841.65 for each motion, representing 4 hours of work (2 hours to draft and 2 hours to prepare for and attend the hearing) at counsels hourly rate of $195, plus filing fee of $61.65. The request for sanctions is granted in a reduced amount because the three motions are virtually identical and are unopposed. The court awards a total of 6 hours (5 hours to draft, 1 hour for hearing) at $195/hour, plus filing fees of $184.95 for three motions. GRANTED. Defendant to serve complete, verified responses, without objection, within 20 days of this order. The request for sanctions is GRANTED in the total amount of $1,365, plus $184.95 in filing fees, payable within 30 days.
Document
Luc Dargout v. Justin P Statt
Mar 28, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024005469
Document
Peter C. Boylin v. Erie Insurance Company
Jul 08, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024011144
Document
John Scott Beaty v. Congregation Of Holy Cross Moreau Province Inc, John Doe And, Jane Doe, Richard Roe And, Jane Roe, Priests, Clergy And Administrators Whose names are unknown to the Plaintiff
Jan 23, 2020 |Deborah Chimes |Torts - Child Victims Act |Torts - Child Victims Act |E2020000884
Document
Louis A. Ponder v. S.R. Collier-Santos
Jul 08, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024011113
Document
Jul 09, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024011281
Document
Luis P. Rivera As Administrator of the Estate of Louie Rivera v. Ivo John Van Acker
Jul 03, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024011015
Document
Ciera Luff v. Monica Travina Meeks, John Doe I a Defendant whose name is presently unknown, such individual being the operator of the vehicle owned by Monica Travina Meeks, Nicklas Mario Vinci, John Doe Ii a Defendant whose name is presently unknown, such individual being the operator of the vehicle owned by NICKLAS MARIO VINCI
Jul 08, 2024 |Torts - Motor Vehicle |Torts - Motor Vehicle |E2024011143
Document
Jul 08, 2024 |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |E2024011182
