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CAUSE NO.15-07-07376 KAITLYNN K. BUSCHER § IN THE DISTRICT COURT VS. § MONTGOMERY COUNTY, TEXAS TONIA M. GONZALES 410" JUDICIAL DISTRICT PLAINTIFF’S PARTIAL MOTION FOR SUMMARY JUDGMENT — COMES NOW KAITLYNN K. BUSCHER, (hereinafter “Plaintiff”) and files this, Plaintiff's Motion for Summary Judgment and would respectfully show the Court as follows: I. SUMMARY 1 Plaintiff would show that, on or about March 21, 2014, Tonia M. Gonzales (hereinafter “Defendant”) was, amongst other things, negligent and/or negligent per se, which was the proximatecause of an accident between the vehicle carrying Plaintiff and the vehicle driven by Defendant(collectively the “Parties”).2 Due to Defendant’s wrongful conduct, Plaintiff has and continues to suffer injury, including,but not limited to, bodily injury, reasonable and necessary doctors and medical expenses, physical andmental pain, suffering, and anguish, diminishment to her abilities to administer her own needs,diminishment her ability to perform customary household needs, diminishment to her eaming capacity. IL EVIDENCEExhibit -1: Kaitlyn K. Buscher’s Affidavit in Support of Plaintiff's Motion for Summary JudgmentExhibit -2: Plaintiff's RFA, RFP, and Interrogators to DefendantExhibit -3: Affidavit of Billing Records Custodian of Interventional Spine of TexasExhibit -4: Affidavit of Billing Records Custodian of Gulf Coast Center for Neurological DisordersExhibit -5: Affidavit of Billing Records Custodian of The Woodlands Open MRIExhibit -6: Affidavit of Billing Records Custodian of Affiliates of Family MedicineExhibit -7: Affidavit of Billing Records Custodian of Cole Rehabilitation Plaintiff's Motion for Summary Judgment Page 1 of 9JI. MATERIAL Facts 3 On or about March 21, 2014, Plaintiff was operating her vehicle in a reasonable, safe, and legal manner on FM 1488 near Mansions Blvd. in Montgomery County, Texas.! Plaintiff brought her vehicle to a stop at a red stop light when Defendant violently and unexpectedly struck Plaintiff's vehicie from behind causing injuries to Plaintiff? 4 Although Plaintiff was obeying all of the laws of Texas, Defendant barreled into the rear of Plaintiff’s vehicle, and ultimately the Plaintiff.3 5. Nothing Plaintiff did caused or contributed to this occurrence. The collision addressed above, and the resulting personal injuries suffered by the Plaintiff were proximately caused by the negligence of Defendant Tonia Gonzales.4 6 Plaintiff would further show that on the occasion in question the Defendant was guilty of various acts, wrongs, omissions, and statutory violations including, but not limited to, the following: a. failing to apply the brakes to the vehicle in order to avoid the collision; b, failing to keep such a look out as a person of ordinary prudence would have kept under similar circ*mstances; failing to turn the direction of the vehicle away from the Plaintiff's vehicle, in order to avoid the accident; failing to use due care to avoid the collision; failing to identify, predict, decide and execute evasive maneuvers appropriately in order to avoid collision; failing to control the speed of the vehicle, in violation of Texas Transportation Code § 545.351; failing to maintain a safe following distance, in violation of Texas Transportation Code § 545.062; Each of these acts, omissions, and/or statutory violations, singularly or in combination with others, constituted negligence, which proximately caused the collision and the injuries and damages for which Plaintiff suffers. 1 Exhibit “1”? Exhibit “1”3 Exhibit “1”4 Byhibit “2” Plaintiff's Motion for Summary Judgment Page 2 of 97. Plaintiff's injuries are the proximate cause of the above-referenced wrongful conduct of Defendant’. As a matter of fact, by way of deemed admissions Defendant has admitted to her negligence being the proximate cause of the Collision. ‘Additionally, Defendant has further admitted that her negligence caused Plaintiff's injuries and the treatment of those injuries and medical bills she incurred were both reasonabie and necessary.’ 8 Plaintiff's injuries include, but are not limited to: Plaintiffs physical injury to her back and neck area; Plaintiff's pain and suffering; Plaintiff's medical expenses due to her Injuries; Plaintiff's diminished capacity; and Plaintiff's mental anguish.’ 9 As a direct result of the Collision and the resulting injuries suffered by Plaintiff, Plaintiff has become subject to medical bills for the following amounts, and owed to the following medical providers: Interventional Spine of Texas - $27,875.30;° Gulf Coast Center for Neurological Disorders - $292.34; # The Woodlands Open MRI - $3,700.00;"! Affiliates of Family Medicine - $798.82.00;!? and Cole Rehabilitation - $2,681.25; 10. Plaintiff's damages, not including her pain and suffering, mental anguish, and diminished capacity, equals thirty five thousand three hundred and forty seven dollars and seventy one cents ($35,347.71), and Defendant's above-referenced wrongful conduct was the proximate and/or direct cause of my damages. “ TV. ARGUMENTS & AUTHORITY 11. Plaintiff fully incorporates by reference for all purposes the forgoing facts into this section of $ Exhibits “1” & “2” © Exhibit “2” 7 Exhib’ * 5 Exhibits I, 63” 66", ape ° Exhibits “3 10 Exhibits “1° & “4” 1 Exhibits “1” & “5”2 Exhibits “1” “6° “qe13 Exhibits “1” 14 Byhihite “1 9" 6g gy cage gn _g ug Plaintiff's Motion for Summary Judgment Page 3 of 9Plaintiff's Motion for Summary Judgment. V. SUMMARY JUDGMENT 12. Plaintiff's Motion for Summary Judgment should be granted upon Plaintiff showing the Court that there is not genuine issue of material fact regarding Defendant’s liability to Plaintiff, and that Plaintiff is entitled to summary judgemeni as a matter of iaw.'5 Upon Plaintiff meeting the above- referenced burden of proof for summary Judgment, the burden shifts to Defendant, and Defendant must successfully produce summary-judgment evidence raising an issue of fact as to Plaintiffs causes of action and/or Defendant’s affirmative defenses.!® 13. Plaintiff would show that each and every element of Negligence and/or Negligence Per Se may be proved by Plaintiff, and as such Defendant will be unable to provide the Court with a single issue of material fact as to Defendant’s liability to Plaintiff. Therefore, Plaintiff's Motion for SummaryJudgment should in all things be granted against Defendant. VI. DEFENDANT IS LIABLE TO PLAINTIFF FOR NEGLIGENCE 14. Plaintiff would show that Defendant is liable to Plaintiff for the cause of action of negligence,as Defendant’s wrongful conduct meets each and every element necessary to prove a claim ofnegligence. Further, Plaintiff would state that Defendant has admitted by way of her deemedadmissions that she is liable for her negligent acts.'7 Lastly, Defendant has not provided any evidenceto support that Plaintiff injuries occurred from an incident unrelated to the Collision.15. A cause of action for negligence exists when the plaintiff can prove that 1) a defendant owed alegal duty to the plaintiff, 2) the defendants breached the duty, and 3) the breach was the proximatecause of the plaintiff's injury.'* A defendant owes a duty of care to the general public, when itreasonably appears that in the exercise of their lawful rights the general public may be injured by a'S TRCP 166a(c); Provident Life & Ace. Ins. v. Knott, 128 8.W.3d 211, 215-16 (Tex.2003); M.D. Anderson Hosp. &Tumor Inst.v Willrich, 28 §.W 3d 22, 23 (Tex.2000).'6 M.D. Anderson Hosp. & Tumor Inst.v Willrich, 28 S.W 3d 22, 23 (Tex.2000); City of Houston v. Clear Creek BasinAuth,, 589 8.W.2d 671, 678 (Tex1979)."7 Exhibit “2”'8 Nabars Drilling USA_Inc v Escoto, 288 SW 4d 401, 404 (Tex.2009) Plaintiff's Motion for Summary Judgment Page 4 of 9dangerous condition that was created by the defendant;'° to avoid a foreseeable risk of injury to other;”° to take affirmative action to control or avoid increasing the danger from a condition that has at least been partially created by the defendant’s conduct;?! and/or to not place others in harm’s way of a foreseeable criminal activity.” 16. Here, Defendant owed a duty of care to Plaintiff in that Defendant was driving a motorized vehicle and Plaintiff was driving another vehicle in direct proximity to Defendant! Plaintiff had an absolute right to be present on the road as the passenger in a motorized vehicle and Defendant created a dangerous condition which caused harm to Plaintiff.* Defendant created a dangerous condition by committing the following acts: a. failing to apply the brakes to the vehicle in order to avoid the collision; b failing to keep such a look out as a person of ordinary prudence would have kept under similar circ*mstances; failing to tum the direction of the vehicle away from the Plaintiff's vehicle, in order to avoid the accident; failing to use due care to avoid the collision; failing to identify, predict, decide and execute evasive maneuvers appropriately in order to avoid collision; failing to control the speed of the vehicle, in violation of Texas Transportation Code § 545.351; failing to maintain a safe following distance, in violation of Texas Transportation Code § 545.062; 17. The foregoing acts are in their very nature breaches of the duty owed to Plaintiff and the generalpublic, when Defendant is operating a motorized vehicle. Further, many of the foregoing actions ofDefendant were statutory violations, which foreseeably would place another driver like Plaintiff inharm’s way. Defendant has provided an admission as to liability as to her negligent action(s).18. Here, Defendant’s wrongful conduct actually caused Defendant to violently collide withPlaintiff's vehicle, which in tum caused Plaintiff to suffer the injuries complained of in the above-' Buchanan vy, Rose, 159 S.W.2d 109, 110 (Tex.1942).20 £1 Chico, Corp. v. Poole, 732 8.W.2d 306, 311 (Tex.1987).7" 7d. at 311-12; See Newsom v. B.B., 306 S.W.3d 910, 914 (Tex. App.-Beaumont 2010).2 Doe v. Franklin, 930 $.W.2d 921, 928-29 (Tex.App. — El Paso 1996, no writ).mlExhib its “1” yy ‘ Exhibits “1” “oy Plaintiff's Motion for Summary Judgment Page 5 of 9entitled and numbered cause.”* Plaintiff did not suffer from any of her injuries before the Collision, and Plaintiff did not suffer a new injury after the Collision. 19. Lastly, Defendant has failed to provide any and all evidence that would support the affirmative defense that Plaintiff's injuries occurred in whole or in part from actions unrelated to Defendant’s breach of her duty of care to Plaintiff. Defendant has also failed to provide any evidence showing that Defendant is not liable for the amount of expenses billed by Plaintiff's medical providers. 20. For these reasons, Plaintiff's Motion for Summary Judgment should in all things be granted. VII. DEFENDANT IS LIABLE TO PLAINTIFF FOR NEGLIGENCE PER SE 21. Plaintiff will show that Defendant is liable to Plaintiff for the cause of action of negligence per se, as Defendant’s wrongful conduct meets each and every element necessary to prove a claim of negligence per se.° Further, Plaintiff would state that Defendant has not provided any evidence to support that Plaintiff injuries occurred from an incident unrelated to the Collision, or that Defendant is not liable for the amount of money billed by Plaintiff's medical providers. 22. Defendant is liable for the cause of negligence per se if: Plaintiff belongs to a class of persons that the statute was meant to protect, and Plaintiff's injury was the type that the statue was meant to protect; the statute is one for which tort liability may be imposed when violated; Defendant violatedthe statute without excuse; and Defendant’s conduct was the proximate cause of Plaintiffs injury2”Texas has extensive case law regarding the statutory duties placed upon an individual operating amotorized vehicle, recognizing a statutory duty of care for the following actions: failing to maintain a safefollowing distance” and failing to control the speed of the vehicle. »23. Here, Defendant was operating her vehicle in a manner inconsistent with and in violation ofthe laws of the state of Texas. Defendant’s illegal and wrongful conduct while operating her vehicle at25 Bxhibits “1” “gn26 Exhibits “1” “gn27 Perry v. S.N., 9T3 S.W.2d 301, 305 (Tex.1998); Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 549 (Tex.1985).?8 Texas Trans. Code §545,062; Louisiana-Pacific Corp. v. Knighten, 976 S.W.24 674, 675 (Tex. 1998).29 Texas Trans. Code §545 351> Barden, Inc v Price 939 SW 2d 247, 249-51 (Tex App. - Amarilla 1997) Plaintiff's Motion for Summary Judgment Page 6 of 9the time of the Collision, included, but is not limited to, the following: a. failing to control the speed of the vehicle, in violation of Texas Transportation Code § 545.351; b. failing to maintain a safe following distance, in violation of Texas Transportation Code § 545.062; 24. Plaintiff was a driver on a Texas road at the time of the Collision, and as such was a person meant to benefit from the protection of the foregoing statutes. The Texas Transportation Code and Section 49.04 of the Texas Penal Code were meant to protect people enjoying the benefits of Texas roadways, such as Plaintiff, from the exact injury in which Plaintiff suffered.°° That is the foregoing statutes were passed to prevent injury to persons and property traveling on Texas roadways from injury caused by the conduct defined as unreasonable under statute. » 25. Further, Defendant's above-referenced wrongful conduct was the proximate and/or direct cause of Plaintiffs injuries.” Plaintiff came to a complete stop at a stop light, in complete conformity with the laws of the state of Texas.** Suddenly and violently, Defendant committing the above-referenced conduct slammed into the Plaintiff from behind,” Plaintiff immediately began to suffer from the injuries subject to the above- entitled and numbered cause at the time of the Collision. Further, Plaintiff did not suffer from any of her injuries before the Collision, and Plaintiff did not suffer a new injury after the Collision. » 26, Lastly, Defendant has failed to provide any and all evidence that would support the affirmative defense that Plaintiff's injuries occurred in whole or in part from actions unrelated to Defendant’sbreach of her duty of care to Plaintiff. Defendant has also failed to provide any evidence showing thatDefendant is not liable for the amount of expenses billed by Plaintiffs medical providers.27. For these reasons, Plaintiff's Motion for Summary Judgment should in all things be granted. VILL PLAINTIFF’S DAMAGES28. Plaintiff would show that the certain damages are owed by Defendant, as the damages were the>° See Borden, Inc. at 249-51; Castro at 575; Louisiana-Pacific Corp. at 675; Craker at 447; and Omega Contracting,Inc. v. Torres, 191 S.W.3d 828, 840 (Tex.App. — Fort Worth2006, no pet.).31 7d,32 Exhibits “1 & “2”33 Exhibit “1”34 Exhibit “1”35 Dehibit “1 Plaintiffs Motion for Summary Judgment Page 7 of 9result of Defendant’s wrongful and/or illegal conduct. Plaintiff has attached the affidavits concerning cost and necessity of services as Exhibits “3” through “7”, and fully incorporates herein for all purposes. Plaintiff's medical expenses, made necessary due to the injury suffered by Plaintiff and caused by Defendant, equate to thirty five thousand three hundred and forty seven dollars and seventyone cenis ($35,347.71), and therefore Defendant is responsible for the entirety of this amount.29. Plaintiff specifically requests that the Court grant Plaintiff's Motion for Summary Judgment asto the damages listed above, but that the issue of damages only decided in part as to the damagesactually listed in this Plaintiff's Motion for Summary Judgment. It is Plaintiffs contention that furtherdamages are owed due to Defendant’s wrongful and/or illegal conduct, and as such the issue of furtherdamages should be left open to be determined at another time.30. For these reasons, Plaintiff's Motion for Summary Judgment should in all things be granted IX. CONCLUSION31. Defendant is liable to Plaintiff for negligence and negligence per se, as Defendant has met eachand every element of these causes of action. Further, Defendant has failed to provide evidence refutingany and all claims made by Plaintiff or to support Defendant’s affirmative defenses. Further, Defendantis the sole proximate cause of the damages and injuries suffered by Plaintiff.32. Defendant owes Plaintiff for, amongst other things, Plaintiff's medical expenses as suchdamages were the result of the injuries suffered by Plaintiff and caused by Defendant’s wrongful and/orillegal conduct. Further, Defendant has failed to provide evidence refuting Plaintiff's medical expenses. X. PRAYER WHEREFORE, Plaintiff respectfully requests that the Court set this Plaintiff's Motion forSummary Judgment for a hearing, and upon the reading of the pleadings and argument of counsel findthat Plaintiff's Motion for Summary Judgment is in all things should be granted as to the following: a. Defendant is liable to Plaintiff for the causes of action of negligence and negligence per se; b. Defendant is responsible for the entire amount of medical expenses suffered by Plaintiff as ‘Plaintiff's Motion for Summary Judgment Page 8 of 9a result of Defendant’s wrongful and/or illegal conduct; c. Defendant’s liability as to other damages shall be left open to determine at a later time; and d. for such other and further relief, at law or in equity, to which Plaintiff is justly entitled. Respectfully submitted, HOPE & CAUSEY, P. C. Derek Causey State Bar No. 24073490 P. O. Box 3188 Conroe, Texas 77305-3188 (936) 441-4673 - Metro (936) 441-4674 - Telecopier ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that on the 23" day of March, 2016, a true and correct copy of the forgoingwas transmitted to counsel of record as follows: Mark E. Yborra Via Facsimile at 832-675-0805 Levine & Clinebell 50 Briar Hollow Lane, Suite 505 W Houston, Texas 77027 Derek M, Causey Plaintiff's Motion for Summary Judgment Page 9 of 9EXHIBIT 1CAUSE NO. 15-07-07376KAITLYNN K. BUSCHER § IN THE DISTRICT COURTVS. § MONTGOMERY COUNTY, TEXASTONIA M. GONZALES § 4i0™ JUDICIAL DISTRICT KAITLYNN K, BUSCHER’S AFFIDAVIT IN SUPPORT OF PLAINTIFF'S PARTIAL MOTION FOR SUMMARY JUDGMENTBefore me, the undersigned authority, personally appeared Kaitlyn K. Buscher who, being byme duly sworn, deposed as follows: 1 “My name is Kaitlynn K Buscher, I am at least 18 years old, of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated. | am making this affidavit in support of Plaintiff's Motion for Summary Judgment." "On or about March 21, 2014, at or around 08:45 a.m., I was operating a white Chevy Cruze on West FM 1488. I was properly restrained and I was operating the vehicle in a reasonable, safe, and legal manner.” "Although I was obeying all of the laws of Texas, Defendant suddenly and violently struck the white Chevy Cruze I was operating with her vehicle. At the time of the impact, I was stopped at a red stop light, per the traffic laws of Texas, when the vehicle driven by Defendant barreled into the rear of the white Chevy Cruze I was driving (the "Collision")." "I did not contribute to the Collision in any way, and Defendant's wrongful conduct, included, but was not limited to: a. failing to apply the brakes to the vehicle in order to avoid the collision; b. failing to keep such a lookout as a person of ordinary prudence would have kept under similarcirc*mstances; failing to turn the direction of the vehicle away from the Plaintiff's vehicle, in order to avoid the accident; failing to use due care to avoid the collision; failing to identify, predict, decide and execute evasive maneuvers appropriately in order to avoid collision; failing to control the speed of the vehicle, in violation of Texas Transportation Code § 545.351;g. failing to maintain a safe following distance, in violation of Texas Transportation Code § 545.062; "My injuries are the proximate cause of the above-referenced wrongful conduct of Defendant. My injuries include, but are not limited to: physical injury to my neck and back area; pain and suffering; medical expenses due to my injuries; diminished capacity; and mental anguish." "Asa direct result of the Collision and the resulting injuries I suffered, I have become subject to medical bills for the following amounts, and owed to the following medical providers: a. Interventional Spine of Texas - $27,875.30; b Gulf Coast Center for Neurological Disorders - $292.59; Cc. The Woodlands Open MRI - $3,700.00; d. Affiliates of Family Medicine - $798.82; and c. Cole Rehabilitation - $2,681.25; "My damages, not including my pain and suffering, mental anguish, and diminished capacity, equals thirty five thousand three hundred and forty seven dollars and seventy one cents ($35,347.71), and Defendant's above-referenced wrongful conduct was the proximate and/or direct cause of my damages." "Idid not suffer from any other injury before the Collision, and I did not suffer a new injury after the Collision." "Further Affiant sayeth naught." Le itlynw’K Buscherswo RN TO and SUBSCRIBED BEFORE ME by the said Kaitlynn K. Buscher on this? f day of March , 2016. TRACY ANN BAKER Notary Public. State of Texas My Commission Expires December 17, 2017 (ae Baker Notary’s Printed NameMy Commission Expires: ¢. 17, 2017EXHIBIT 2HOPE & CAUSEY, P.C. Attomeys At Lew Derek Causey 100 Interstate 45 N % Suite 600 derek@hope-causey.com Attorney at Law P.O. Box 3188 Phone (936) 441-4673 Conroe, Texas 77305-3188 Fax (936) 441-4674 November 24, 2015 Mark E. Yborra VIA FACSIMILE: (832)675-0805 Levin & Clinebell 50 Briar Hollow Lane, Ste 505W Houston, Texas 77027 RE: CAUSE NO. 15-07-97376; KAITLYNN K, BUSCHER VS. TONIA M. GONZALES; IN THE 410TH JUDICIAL DISTRICT COURT OF MONTGOMERY COUNTY, TEXAS Dear Mr. Yborra: Attached please find the following discovery documents propounded to the Defendant pursuant to Rules 192, 196, 197, and 191.5 of the Texas Rules of Civil Procedure: ° Plaintiff's First Set of Requests for Admission; e Plaintiff's First Series of Interrogatories; and, e Plaintiff's First Set af Request for ProductionHard copies will not follow.Sincerely,HOPE & CAUSEY, P.C.Derek A.Derek M. CauseyDMC/ksAttachmentsNO. 150707376 KAITLYNN BUSCHER § IN THE DISTRICT COURT OF § VS. § MONTGOMERY COUNTY, TEXAS TONIA GONZALES § 410" JUDICIAL DISTRICT PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSIONS TO: Defendant, Tonia Gonzales, by and through her attorney of record, Mark E. Yborra, Levin & Clinebell, 50 Briar Hollow Lane, Suite 505W, Houston, Texas 77027 Pursuant to Rule 198 of the Texas Rules of Civil Procedure, Plaintiff, Kaitlynn Buscher, files her Request for Admissions as to relevant facts. You are hereby notified that unless you servewritten answers or objections within fifty (30) days of your receipt of the Plaintiff's Request forAdmissions that each of the matters of which an admission is requested will be admitted withoutthe necessity ofa court hearing. The facts are admitted as follows:1.) Admit that Plaintiff was not at fault for causing this accident.RESPONSE:2.) Admit that the vehicle you were driving struck Plaintiff's vehicle on the date of this incident.RESPONSE:3.) Admit that you had permission to drive the vehicle you were driving at the time of this accident.RESPONSE:4.) Admit that you failed to operate your vehicle in a reasonably prudent manner during thiscollision.RESPONSE:5.) Admit that but for your acts or omissions this collision would not have occurred.RESPONSE: 6.) Admit that no other person or entity contributed to causing this collision, RESPONSE: 7.) Admit that the police were called following this accident. RESPONSE: 8.) Admit that Plaintiff was injured as a result of this collision. RESPONSE: 9.) Admit that the vehicle you were driving received damage to its front as a result of this collision. RESPONSE: 10.) Admit that significant injury can occur in a collision of this degree.RESPONSE:11.) Admit that Plaintiff incurred medical bills for the treatment of injuries sustained in thiscollision.RESPONSE:12.) Admit that the medical bills incurred by Plaintiff in treating the injuries caused by thiscollision are reasonable expenses for necessary medical care.RESPONSE:13.) Admit that Plaintiff endured physical pain and mental anguish as a result of the injuriessustained in this collision.RESPONSE: 14.) Admit that Plaintiff will endure physical pain and mental anguish in the future as a result ofthe injuries sustained in this collision.RESPONSE:Respectfully submitted, HOPE & CAUSEY, P. C. Devel ML. Corey Derek M. Causey State Bar No. 24073490 P. O. Box 3188 Conroe, Texas 77305-3188 (936) 441-4673 - Metro (936) 441-4674 — Telecopier derek@hope-causey.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Pursuant to Rule 191.5 of the Texas Rules of Civil Procedure, | hereby certify that thePlaintiff's Request for Admissions has been delivered to all interested parties on November 24,2015, correctly addressed as follows: VIA Facsimile: (832) 675-0805 Mark E. Yborra Levin & Clinebeli 50 Briar Hollow Lane, Suite 505W. Houston, Texas 77027 Dorck M. Causey Derek CauseyNO. 150707376 KAITLYNN BUSCHER § IN THE DISTRICT COURT OF VS. MONTGOMERY COUNTY, TEXAS TONIA GONZALES 410" JUDICIAL DISTRICT PLAINTIFF’S FIRST SERIES OF INTERROGATORIES TO: Defendant, Tonia Gonzales, by and through her attorney of record, Mark E. Yborra, 1S Levin & Clinebell, 50 Briar Hollow Lane, Suite 505W, Houston, Texas 77027 COMES NOW Kaitlynn Buscher, Plaintiff in the above styled and numbered cause of action and pursuant to Rules 192 and 197 of the Texas Rules of Civil Procedure, files the attached Interrogatories. You are advised that your answers to such Interrogatories shall be answered separately andfully, in writing, and under oath fifty (30) days from the date of the service of these Interrogatories.Your answer to an Interrogatory shall be preceded by the question or Interrogatory to which theanswer pertains; if there is insufficient space for your answers, please use another page. TheseInterrogatories and your sworn answers may be offered as evidence at the trial of this cause. Underthe Texas Rules of Civil Procedure, you are further charged with the duty to amend or supplementyour answers, not less than thirty (30) days prior to the beginning of trial, if you later obtaininformation upon the basis of which you (a) know that the answer was incorrect when made, or{b) know that though correct when made is no longer true and the circ*mstances are such that afailure to amend is in substance misleading.Respectfully submitted, HOPE & CAUSEY, P. C. Derek Di. Causey Derek M. Causey State Bar No. 24073490 P. O. Box 3188 Conroe, Texas 77305-3188 (936) 441-4673 - Metro (936) 441-4674 - Facsimile dereck@hope-causey.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Pursuant to Rule 191.5 of the Texas Rules of Civil Procedure, I hereby certify that thePlaintiff's First Series of Interrogatories has been delivered to all interested parties on November24, 2015, correctly addressed as follows: VIA Facsimile: (832) 675-0805 Mark E. Yborra Levin & Clinebell 50 Briar Hollow Lane, Suite 505W Houston, Texas 77027 Derek Ml. Causey Derek CauseyFIRST SERIES OF INTERROGATORIES TO TONIA GONZALES: Definitions and Instructions: The following definitions are incorporated in this set of Interrogatories and all questions are to be answered in accordance with these definitions. A) The term "person" shall mean the plural as well as the singular and include: natural persons, corporations, firms, associations, partnerships, joint ventures or any other form of legal business entity and governmental agencies, departments, units or other subdivisions. B) The term "healthcare provider" shall refer to any doctor, physician, osteopath, chiropractor, dentist, practitioner of the healing arts or any other person who renders any type of medical service. Pursuant to the provisions of the Texas Rules of Civil Procedure, you will be required to supplement your response to these interrogatories. 1 Please state your full name, address, occupation, and present employment. ANSWER: 2 State whether you were the operator or an occupant of a vehicle that was involved in a collision on the day of the incident in question. ANSWER: 3 State the name and address of the owner and all occupants of the vehicle that you were operating at the time of the collision.ANSWER:4. State where you had been just prior to the collision, where you were going at the time of the collision, and the purpose of the trip.ANSWER:5 State the name and address of each person, including experts, having any knowledge of relevant facts related to the collision that is the basis of this suit, its cause or the damages resulting from it.ANSWER:6 State the name and address of any potential party to this lawsuit, not already a party hereto, ANSWER: 7 State the full name, address, and qualifications of each expert who may be called as an expert witness at the trial of this case, the subject matter concerning which the expert will testify, the mental impressions and opinions held by the expert and the facts known to the expert (regardless of when the factual information was acquired) which relate to or form the basis of the mental impressions and opinions held by the expert, and a summary of the grounds for such opinions expected to be expressed by such expert. ANSWER: 8 Please state whether you have a copy of any statement that the Plaintiff has previously made concerning the action or its subject matter and that is in your possession, cusiody, or control. (For the purpose of this question, a statement previously made is: (1) a written statement signed or otherwise adopted or approved by the person making it; or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.)ANSWER:9 Describe any insurance agreement under which any insurance business may be liable to satisfy part or all of the judgment that may be entered in this action, or to indemnify or reimburse for payments made to satisfy the judgment, by stating the name of the person insured, the name of the insurer, and the amount of any liability insurance coverage.ANSWER:10. Describe in your own words how the collision occurred and state what the claim or contention of the Defendant will be regarding any cause or contributing cause of the collision.ANSWER:MM. State the speed of your vehicle at all times material to the collision in question, including specifically your speed at the time of impact. If your brakes were on at the time of impact, please state your speed before applying your brakes.ANSWER:12. State in detail what intoxicating beverages, if any, you had consumed and what drugs or medications, if any, you had taken during the twenty-four-hour period immediately preceding the collision. ANSWER: 13, Describe in detail what damage, if any, was done to your vehicle in the collision, and give the cost of repair of your vehicle. ANSWER: i4, Describe in detail what injuries, if any, you received in the collision. ANSWER: 15, Describe in detail any conversations you have had with the Plaintiff or Plaintiffs representative following the collision in question. ANSWER: 16. Describe any information you have indicating, or any reason you have to believe, that there was any defect or failure on the part of any vehicle or equipment involved in the collision.ANSWER:17, Did you receive a traffic citation as a result of this collision, and if so, what was the citation for?ANSWER:18. If you did receive a traffic citation, describe the traffic citation you received as a result of this collision by stating the name and location of the court involved, the violations of the law charged in that citation, and the daic, place, and manner (i.e. type of plea, bail, forfeit, trial, etc.) of disposition of the citation.ANSWER;19. Were you employed at the time of this collision?ANSWER;20, State whether you were acting within the course and scope of any employment, agency, or service at the time of collision, and describe how so.ANSWER:21, Describe any criminal record you may have in the 10 years leading up to this incident, including the nature of the charge, date and place of arrest, and conviction, ifany.ANSWER:22. State whether you were using a cellular device at the time of the wreck? If so, please state the person’s name, address and telephone number to whom you were communicating.ANSWER:23. State whether you were you using a cellular device in any manner at the time of the wreck, including text messaging, using the internet, or using any phone application.ANSWER:THE STATE OF TEXASCOUNTY OF BEFORE ME, the undersigned authority, on this day personally appeared TONIA M.GONZALES, known to me to be the person whose name is subscribed to the foregoing Defendant'sAnswers to Plaintiff Interrogatories and states that they are true and correct and within her personalknowledge. TONIA M. GONZALES SWORN TO and SUBSCRIBED BEFORE ME by the said Tonia M. Gonzales on this __ day of » 2015. NOTARY PUBLIC IN AND FOR. THE STATE OF TEXASMy Commission Expires:NO. 150707376 KAITLYNN BUSCHER § IN THE DISTRICT COURT OF VS. § MONTGOMERY COUNTY, TEXAS TONTA GONZALES § 410" JUDICIAL DISTRICT PLAINTIFF'S FIRST SET OF REQUEST FOR PRODUCTION TO: Defendant, Tonia Gonzales, by and through her attorney of record, Mark E. Yborra. 5 Levin & Clinebell, 50 Briar Hollow Lane, Suite 505W, Houston, Texas 77027 COMES NOW Kaitlyn Buscher, Plaintiff in the above styled and numbered cause of action and, pursuant to Rules 192 and 196 of the Texas Rules of Civil Procedure, files her First Set of Request for Production of the following: 1 A copy of the Defendant’s driver's license. RESPONSE: 2 A copy of the title to the vehicle Defendant was driving at the time of the incident in question.RESPONSE:3 Any and all photographs that Defendant has of the vehicle, parties, or scene in question following the collision.RESPONSE:4 Any and all expert reports that have been prepared in connection with this lawsuit or the incident giving rise to this lawsuit, if the expert is expected to or may testify in this cause as an expert, If any such expert has not prepared a report, request is hereby made that one be prepared and furnished to Plaintiff's attorney.RESPONSE:5 Any and all expert reports that were or will be relied upon in whole or in part by any testifying expert in this case.RESPONSE:6 Any and all work papers, notes, and documents in the file of any expert witness who is expected to testify, or in the file of any expert witness who has written a report that is or will be relied upon in whole or in part by a testifying expert. RESPONSE: 7 A curriculum vitae or resume for each individual whom you may call as an expert witness at the trial of this case. RESPONSE; 8 All documents or tangible things prepared by any expert whom you expect to call as a witness, including but not limited to those that would include his or her report, factual observations, opinions, conclusions, photographs, field notes, calculations, models, and exhibits. RESPONSE: 9. A copy of any damage appraisals made of the vehicles involved in the collision. RESPONSE: 10. A copy of any repair invoices of the vehicles involved in the collision.RESPONSE:Il. Any and all insurance agreements or policies under which any person or entity carrying on an insurance business may be liabie to satisfy part or all of a judgment that may be rendered im this action or to indemnify or reimburse for payments made to satisfy the judgment, including but not limited to any liability insurance policy covering Defendant or the automobile being driven by Defendant at the time in question.RESPONSE:12, Copies of any and all statements previously made by Plaintiff concerning the subject matter of this lawsuit, including any written statement signed or otherwise adopted or approved by the Plaintiff hereto and any stenographic, mechanical, electrical, or other type of recording or any transcription thereof made by Plaintiff hereto and contemporaneously recorded,RESPONSE:13. Any drawings, maps, or sketches of the scene of the accident that has been made the basis of this lawsuit.RESPONSE:14, A copy of your employment contract that would govern any relationship between you and your employer. RESPONSE: 15. Any settlement agreements wherein you have arrived at a settlement or agreement between you and any other person, whether a party to this lawsuit, regarding, or pertaining to the incident made the basis of this lawsuit or any damages resulting therefrom. RESPONSE: 16. A copy of any surveillance movies or photographs that have been made of Plaintiff. RESPONSE: 17, Any and all photographs that Defendant has of the vehicle involved in the collision in question, RESPONSE: 18. Any and all photographs that Defendant has of the scene of the accident or any other photographs relating to this case. RESPONSE: 19, Copies of any witness statements that are relevant to the collision in question that are not privileged by law.RESPONSE:20, A copy of any movies, videotapes, or other reproduction of the accident scene.RESPONSE:21, A copy of any survey or plat made of the accident scene.RESPONSE:22. Any and all books, documents, photographs, or other tangible things that may be used at the time of trial, which may give a bearing on this cause of action.RESPONSE:23. Please produce detailed billing for any cellular or wireless communications device that you were using or had access to for the hour prior to and the two (2) hour period following thetime of the incident in question. If you do not have detailed billing or in the alternative, please execute the attached authorization. RESPONSE: 24. A true and correct copy of your complete driving record. In lieu of your complete driving record, execute an authorization permitting Plaintiff to obtain a copy of the same. For convenience, an authorization is provided herein. RESPONSE: 25, All documents and tangible items to support Defendant’s claims that: a. plaintiff was negligent; b, a third-party was responsible; or c this accident occurred because of a sudden emergency, unavoidable accident, or any other inferential rebuttal and/or affirmative defense raised. RESPONSE: 26. Produce any and all records and information received on Plaintiff/s through any depositions on written questions.RESPONSE: The requested documents and materials shall be produced for inspection and copying at thelaw offices of HOPE & CAUSEY, P.C., at the address of P. O. Box 3188, 100 Interstate 45 N,Suite 600, Conroe, Texas, 77305-3188, at 5:00 o'clock p.m., fifty (30) days from the date of yourreceipt of these requests; or copies of the documents and items may be attached to your writtenresponse, Under the Texas Rules of Civil Procedure, you are further charged with The Duty toSupplement your answers, not less than thirty (30) days prior to the beginning of trial, if you laterobtain information upon the basis of which you (a) know that the answer was incorrect when made,or (b) know that though correet when made is no longer true and the circ*mstances are such that afailure to amend is in substance misleading; or (c) as otherwise required.Respectfully submitted, HOPE & CAUSEY, P. C. Derek ML. Causey Derek M. Causey State Bar No. 24073490 P. O. Box 3188 Conroe, Texas 77305-3188 (936) 441-4673 - Metro (936) 441-4674 — Telecopier derek@bhope-causcy.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Pursuant to Rule 191.5 of the Texas Rules of Civil Procedure, ] hereby certify that thePlaintiff's First Set of Request for Production has been delivered to all interested parties onNovember 24, 2015. correctly addressed as follows: VIA Facsimile: (832} 675-0805 Mark E. Yborra Levin & Clinebell 50 Briar Hollow Lane, Suite 505W Houston, Texas 77027 Derok M. Causey Derek Causeynome Save Time - Request Your TEXAS DPS “H Driver Record Online www.texasonline.com
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DEREK UNDERWOOD VS LABEL27, LLC,, ET AL.
Jul 17, 2024 |20STCV03577
Case Number: 20STCV03577 Hearing Date: July 17, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE July 17, 2024 CASE NUMBER 20STCV03577 MOTION Motion for an Order that Plaintiff Post an Undertaking MOVING PARTIES Defendants and Cross-Complainants Label27 and Brooks Ellis OPPOSING PARTY Plaintiff Derek Underwood MOTION Defendants and Cross-Complainants Label 27, LLC (L27) and Brooks Ellis (Ellis) (together, Defendants) move for an order that Plaintiff Derek Underwood (Plaintiff) post an undertaking pursuant to Code of Civil Procedure section 1030, subdivision (b) in the amount of $18,810.25. Plaintiff opposes the motion and Defendants reply. ANALYSIS When the plaintiff in an action or special proceeding resides out of the state, or is a foreign corporation, the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking. (Code Civ. Proc., § 1030, subd. (a).) The plaintiff is not required to file an undertaking unless there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. (Code Civ. Proc., § 1030, subd. (b).) The defendant is not required to show that there is no possibility that the plaintiff can prevail at trial, but rather must demonstrate only that it is reasonably possible that the defendant will prevail. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432-1433.) The defendant must also submit an affidavit stating the nature and amount of costs and attorneys fees the defendant has incurred, and expects to incur throughout the remainder of the proceedings. (Code Civ. Proc., § 1030, subd. (b).) If the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the courts order as security for costs and attorneys fees. (Code Civ. Proc., § 1030, subd. (c).) If the court grants the motion and the plaintiff fails to file the undertaking within the time allowed, the court must dismiss the plaintiffs action or special proceeding as to the defendant in whose favor the order requiring the undertaking was made. (Code Civ. Proc., § 1030, subd. (d).) Here, Defendants advance the Declaration of Kent G. Mariconda, counsel for Defendants (Mariconda), asserting that Plaintiff is a resident of Panama. In support, Defendants provide Plaintiffs response to a demand for a Defense Medical Examination (DME), to which Plaintiff provided a written objection on the grounds that Plaintiff currently resides in Panama, which is more than 75 miles from the location set forth in the Demand. (Mariconda Decl. ¶ 4, Ex. 1.) Plaintiff does not contest that he lives in Panama. With regard to a reasonable possibility that Defendants will prevail, Defendants primarily point to the fact that Plaintiff failed to show for a DME. Defendants also provide an attorney declaration, which purports to summarize the discovery responses received in this case, indicating that Plaintiff was intoxicated and initiated the physical altercation, first by shouting racial epithets toward Ellis and [Andrew] Heric, then physically charging at them with a cornhole board, and ultimately physically moving aggressively toward an individual protecting the premises, at which point Ellis tackled Plaintiff to subdue him. (Mariconda Decl. ¶ 3.) In opposition, Plaintiff advances the declaration of Manuel D. Balam, counsel for Plaintiff (Balam). Regarding Plaintiffs failure to appear for a physical examination, Balam indicates that Defendants have no recourse to obtain issue, evidentiary, or terminating sanctions due to Plaintiffs failure to appear for the examination, because it was served on Plaintiff by other Defendants to the litigation, who have since settled with Plaintiff: 14) Defendants falsely claim, in part: At this point, in this litigation, plaintiff has failed to show for a DME, his doctors have failed to show for deposition, and he currently resides in Panama. (Motion, p.3:9-12). Presumably, they are suggesting or implying that they believe Plaintiff will likely lose because of DME or expert deposition issues and that Defendants would be able to exclude evidence and/or experts. On the contrary, LABEL27 Defendants do not have grounds to seek relief by way of excluding any evidence because they have failed to conduct their own discovery in riding the coattails of settled-out TCP Defendants and they never filed joinder to their applicable discovery. Fatally, there is and will be no basis for LABEL27 Defendants to seek exclusion of anything. 15) The truth is that LABEL27 Defendants did not actually serve their own demand for physical examination, did not serve their own demand for expert exchange, did not engage in a mutual exchange of expert information, and served no expert deposition notices. The Motion fails to point out that all prior discovery activity was solely by TCP Defendants, who are no longer in the case as Defendants. To certain discovery by TCP Defendants and only TCP Defendants, Plaintiff served objections. TCP Defendants never moved to compel. Thus, it has never been a matter of simply not appearing or not participating. Since LABEL27 Defendants did not conduct their own discoveryno DME; no expert demand; no expert exchange; and no expert notices; and no joinders to any of these things, they lack a basis to exclusion of anything. In fact, quite the opposite. Plaintiff is highly likely, if not certainly, to get exclusionary and dispositive orders against LABEL27 Defendants because they failed to designate ANY experts. Defendant has no experts. They will not be able to oppose Plaintiffs experts. Plaintiff, who actually did participate in expert exchanges, will or should win on exclusionary issues as a matter of law pursuant to CCP §2034.300. (Balam Decl. ¶¶ 14-15.) Plaintiff also provides purported video surveillance of the incident, in which Balam indicates was authenticated by ELLIS and HERIC during their depositions. (Balam Decl. ¶ 5.) However, the deposition transcripts provided do not provide any such authentications. As such, the video evidence is unauthenticated and provides no evidentiary value. Ultimately, the Court finds that, although it is a low bar, Defendants have not met their burden to demonstrate a reasonable possibility that they will prevail. With regard to Plaintiffs failure to appear for a physical examination, the Court agrees with Plaintiff that because Defendants did not serve the discovery at issue, they have no recourse to enforce it. As such, Defendants have no basis to obtain issue, evidentiary, or terminating sanctions against Plaintiff. With regard to Defendants evidence regarding who actually started the fight, the attorney declaration describing and summarizing Plaintiffs discovery responses is clearly inadmissible hearsay, and Defendants did not provide authenticated copies of the discovery responses themselves. Therefore, Defendants have not provided any admissible evidence that there is a reasonable possibility they will prevail at trial in establishing that Plaintiff is culpable for starting the fight. CONCLUSION & ORDER The Court finds Defendants have failed to establish a reasonable possibility that they will prevail at trial and therefore, the Court denies Defendants motion to require Plaintiff to post an undertaking. Defendants shall provide notice of the Courts ruling and file the notice with a proof of service forthwith. DATED: July 17, 2024 ________________________________ Michael E. Whitaker Judge of the Superior Court
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Jul 18, 2024 |24NWCV00190
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BARAK KADOSH VS. BRAN TULIOALEXIS ET AL
Jul 17, 2024 |CGC23607700
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Adkison, et al. vs. Maughs, et al.
Jul 17, 2024 |22CV-0201172
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VALDEZ RODRIGUEZ vs CONNER
Jul 15, 2024 |CVRI2304860
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SOPHIA GOZUKUCHIKYAN, ET AL. VS ACE PARKING MANAGEMENT, INC., ET AL.
Jul 16, 2024 |22STCV26458
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Jul 17, 2024 |22CECG02057
Re: Michelle Ritchie v. Yrulegui & Roberts Superior Court Case No. 22CECG02057Hearing Date: July 17, 2024 (Dept. 502)Motion: By Defendants for Summary Judgment, or Alternatively for Summary AdjudicationOral Argument, if timely requested, will be heard on Thursday, July 18, 2024 at 3:30 PM in Department 502.Tentative Ruling: To grant summary judgment in favor of defendants Joseph Yrulegui and Yrulegui& Roberts. Defendants are directed to submit to this court, within five days of service ofthe minute order, a proposed judgment consistent with the court’s summary judgmentorder.Explanation: Plaintiff was employed as an attorney by the law firm Yrulegui & Roberts. Plaintiffwas satisfied with her employment until the night of December 10, 2021, when the firmheld a Christmas party. Plaintiff and seven or so other employees ended the night at astrip club. Because plaintiff was uncomfortable with the strip club atmosphere, and theconduct of partner Joseph Yrulegui, plaintiff quit her job and then filed suit, asserting thefollowing causes of action 1. DISCRIMINATION ON THE BASIS OF SEX AND/OR GENDER; 2. HARASSMENT ON THE BASIS OF SEX AND/OR GENDER; 3. FAILURE TO PREVENT, INVESTIGATE, AND REMEDY DISCRIMINATION, HARASSMENT, OR RETALIATION; 4. AIDING, ABETTING, INCITING, COMPELLING, OR COERCING ACTS FORBIDDEN BY FEHA; 5. RETALIATION FOR OPPOSING PRACTICES FORBIDDEN BY FEHA; 6. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; 7. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. The evidence shows that plaintiff drank alcohol throughout the night andvoluntarily, of her own free will and choice, went to the strip club and participated in theactivities there. Plaintiff has filed no response or opposition to the motion, which the courtintends to grant for the reasons stated in the moving papers, as follows. The first cause of action for gender discrimination fails because plaintiff did notsuffer any adverse employment action, and the circ*mstances suggest no discriminatorymotive. To establish a prima facie case of discrimination, "the plaintiff must provide that:(1) she was a member of a protected class; (2) she was qualified for the position shesought or was performing competently in the position he or she held; (3) she suffered anadverse action, such as termination, demotion, or denial of an available job; and (4)some other circ*mstances suggest discriminatory motive." (Guz v. Bechtel National, Inc.(2000) 24 Cal.4th 317, 355.) Plaintiff quit her employment with defendants, and was not terminated. “In orderto establish a constructive discharge, an employee must plead and prove … that theemployer either intentionally created or knowingly permitted working conditions thatwere so intolerable or aggravated at the time of the employee's resignation that areasonable employer would realize that a reasonable person in the employee's positionwould be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238,1251.) Plaintiff’s contention that she was constructively discharged is not supported bythe evidence. Plaintiff’s resignation was based on a single incident that plaintiffparticipated in by her own choice. Nor is there any evidence to suggest that there wasany discriminatory or gender-based motive behind any actions that led to plaintiff’sresignation. The second cause of action is for sexual harassment. Plaintiff "must demonstratethat the conduct complained of was severe enough or sufficiently pervasive to alter theconditions of employment and create a work environment that qualifies as hostile orabusive to employees because of their sex." (McCoy v. Pac. Mar. Assn. (2013) 216Cal.App.4th 283, 293.) Plaintiff testified that prior to the 2021 Christmas party, she had never gone toanyone at Yrulegui & Roberts to complain about Joseph Yrulegui and that she had nocomplaints about the way he treated her when she was working with him. (UMF 42.)Plaintiff really loved her job. (UMF 9.) Plaintiff even declined other job opportunitiesbecause “she had no complaints with the firm,” “liked the people [she] was workingwith,” “had a good workload,” and “was just happy to be there.” (UMF 6.) On the day ofthe Christmas Party, plaintiff voluntarily went to City Lights, which was strictly a socialfunction. (UMF 43.) Mr. Yrulegui’s conduct at City Lights was not directed at plaintiff, whochose to be at the venue and participate in the strip club activities. The third cause of action for failure to prevent, investigate, and remedydiscrimination, harassment, or retaliation fails because the evidence demonstrates thatplaintiff was not subjected to harassment, discrimination, or retaliation. To prevail on this claim plaintiff must establish that (1) she was subjected todiscrimination, harassment, or retaliation; (2) the defendant failed to take all reasonablesteps to prevent discrimination, harassment, or retaliation; and (3) the defendant's failurecaused the plaintiff to suffer injury, damage, loss, or harm. (Finder v. EmploymentDevelopment Department (E.D. Cal. 2017) 227 F.Supp.3d 1123, 1143.) If plaintiff has noclaim for discrimination, harassment, or retaliation, there is no claim for failure to preventsame. (See Featherszone v. Southern California Permanente Medical Group (2017) 10Cal.App.5th 1150, 1166; Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314.)For the reasons stated herein, plaintiff is unable to show that she was subjected todiscrimination, harassment, or retaliation by defendants, rendering the failure to preventcause of action without merit. The fourth cause of action is for aiding, abetting, inciting, compelling, or coercingacts in violation of FEHA. (See Gov. Code, §12940, subd. (i).) Again, the cause of actionrequires that there first be discrimination, sexual harassment and retaliation, which is notfound here. Thus, there are no viable FEHA claims for Yrulegui & Roberts to have hadknowledge about. The fifth cause of action alleges retaliation for opposing practices forbidden byFEHA. Plaintiff must show: (1) she engaged in protected activity; (2) the employersubjected plaintiff to an adverse employment action; and (3) a causal link existedbetween the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc.(2005) 36 Cal.4th 1028, 1042.) Here, plaintiff engaged in protected activity of making areport of what occurred at the strip club, but that report was made after plaintiffresigned. Plaintiff alleges that defendants retaliated against her by interfering withpotential employment opportunities in the Fresno area. Regarding the one instance of interference alleged in the Complaint (seeparagraph 43), the moving papers show that the firm could not hire plaintiff due to aconflict of interest because it was representing defendants. Plaintiff acknowledged in herdeposition that this circ*mstance precluded the firm from hiring plaintiff. (See UMF 54-57.)There is no viable claim for retaliation. The sixth cause of action is for intentional infliction of emotional distress. Plaintiffmust establish the following elements, “(1) outrageous conduct by defendant, (2)intention to cause or reckless disregard of the probability of causing emotional distress,(3) severe emotional suffering and (4) actual and proximate causation of the emotionaldistress." (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1376.) “[I]t is generally held that therecan be no recovery for mere profanity, obscenity, or abuse, without circ*mstances ofa*ggravation, or for insults, indignities or threats which are considered to amount tonothing more than mere annoyances." (Yurick v. Superior Court (1989) 209 Cal.App.3d1116, 1128.) Plaintiff alleges that “intentional infliction of emotional distress occurred whenPLAINTIFF was provided excessive alcoholic drinks by the FIRM, was encouraged toengage with the strippers, defendant JOSEPH YRULEGUI encouraged employees toplace money in the strippers’ lingerie while they were topless, and PLAINTIFF was requiredto submit to a lap dance with a stripper which was paid for by the FIRM.” (Complaint ¶87.) However, the undisputed material facts show that plaintiff voluntarily chose toconsume alcoholic beverages throughout the night at each venue, where non-alcoholicbeverages were available. (UMF 58-60.) When provided with money for the lap dance,plaintiff did not decline the lap dance, nor did she indicate that this was something shedid not want to do. (UMF 29.) No one teased or said anything to plaintiff about wavingoff the lap dancer. (UMF 61.) Furthermore, plaintiff was not the only individual that wasprovided money for a lap dance – Joseph Yrulegui paid for two of a male coworker's lapdances. (UMF 62.) There was no pressure for plaintiff to stay at the strip club; she couldhave left at any time. The court finds there was no outrageous conduct on the part ofdefendants. The seventh cause of action is for negligent infliction of emotional distress. “Thenegligent causing of emotional distress is not an independent tort, but the tort ofnegligence.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072.) “The traditionalelements of duty, breach of duty, causation, and damages apply." (Levy v. OnlyCremationsfor Pets, Inc. (2007) 57 Cal.App.5th 2013, 217.) Assumption of risk is anaffirmative defense to negligence. “To warrant the application of the doctrine (ofassumption of risk) the evidence must show that the victim appreciated specific dangerinvolved. He does not assume any risk he does not know or appreciate. ... Stated anotherway, before the doctrine is applicable, the victim must have not only general knowledgeof a danger, but must have knowledge of the particular danger, that is, knowledge ofthe magnitude of the risk involved.” (Ewing v. CloverleafBowl (1978) 20 Cal.3d 389, 406.) The evidence shows that plaintiff understood and appreciated the risks ofconsuming alcohol and going to a strip club. Plaintiff had experience drinking previousto the Christmas party, and getting intoxicated with coworkers. (UMF 63, 64.) Yet plaintiffchose to order and drink alcoholic beverages throughout the night despite non-alcoholic beverages being available to her. (UMF 14, 19, 26.) Though this was plaintiff’sfirst time going to a strip club, plaintiff had a general understanding of what a stip clubwas and what went on there. (UMF 23, 24, 43.) Plaintiff knew that she could have left CityLights like two of her coworkers, but chose to stay until she noticed her father watchingher from the bar area. (UMF 33.) Whatever risks were involved; they were assumedknowingly by plaintiff. The court finds that defendants have met their burden as the moving parties ofshowing that required elements of each cause of action cannot be established. Plaintiffhas not met her burden, having failed to file any response to the motion. Accordingly,the court intends to grant the motion. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Proceduresection 1019.5, subdivision (a), no further written order is necessary. The minute orderadopting this tentative ruling will serve as the order of the court and service by the clerkwill constitute notice of the order.Tentative RulingIssued By: KCK on 07/15/24 . (Judge’s initials) (Date)
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