Response: - TO DEFT HOREB FRENCH SEVENTH DAY ADVENTISTS CHURCH'S MOTION TO DISMISS Due Date: Complete Date: July 15, 2019 (2024)

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Filing # 92569874 E-Filed 07/15/2019 03:29:32 PMIN THE CIRCUIT COURT OF THE 11TH JUDICIALCIRCUIT IN AND FOR MIAMI-DADE COUNTY,FLORIDAR.T., a minor, by and through JANE DOE, her parent CASE NO: 2017-015978-CA-01and natural guardian,Plaintiff,veHOREB FRENCH SEVENTH DAY ADVENTISTSCHURCH, SOUTHEASTERN CONFERENCEASSOCIATION OF SEVENTH-DAY ADVENTISTS,INC., and SOUTHEASTERN CONFERENCE OFSEVENTH-DAY ADVENTISTS d/b/a SEVENTHDAY ADVENTIST CHURCH,Defendant. PLAINTIFF'S RESPONSE TO DEFENDANT HO FRENCH SEVENTH DAYADVENTISTS CHURCH’S MOTIONS TO DISMISS SECOND AMENDEDCOMPLAINTPlaintiff hereby responds in opposition to Defendant Horeb French Seventh Day AdventistChurch’s (hereafter “Horeb Church”) motion to dismiss the second amended complaint, datedOctober 8, 2018, and states:THE SECOND AMENDED COMPLAINTReduced to its essence, the Second Amended Complaint alleges that the Plaintiff child wassexually abused while participating in a youth program at a church that was operated by theDefendants (both of them). Second Am. Compl. {{{ 6 ~ 7. It asserts that the Defendants own andoperate the church property and religious programs where the child was sexually abused. SecondAm. Compl. {ff 3, 7. Further, it asserts that the Defendants employed, governed or supervisedindividuals at the subject church. Id. §4. Specifically, it asserts that an individual named JerryCohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410Telephone: (561) 515-1400 Facsimile (561) 515-1401Page 2Ameris sexually abused the Plaintiff child at the subject church and that Mr. Ameris was anemployee, agent, servant, volunteer, deacon or assistant in the church program where Plaintiff wasabused. Second Am. Compl. {8 — 9. Contrary to Horeb Church’s protests otherwise, theseallegations constitute a “short and plain statement of the ultimate facts showring that the pleaderis entitled to relief,” as required by Fla. R. Civ. P. 1.110 (b)(2). It is axiomatic that any additionaldetails fall within the province of discovery.Based on these cssential allegations, the Second Amended Complaint asserts a cause ofaction against both Defendants for negligence. Second Am. Compl. {ff 10 — 13. The count itselfasserts the existence of a duty to the Plaintiff child while she was on the Defendants’ property andfacility, that the duty was breached by not safeguarding against, monitoring for or otherwisepreventing the abuse Plaintiff suffered, and that Plaintiff suffered injury as a result. Id. Theseallegations plainly assert the elements of a cause of action for negligence and are supported by theessential factual allegations discussed above.The Second Amended Complaint also asserts a cause of action against both Defendants fornegligent hiring, retention or supervision. Second Am. Compl. {ff 14— 18. That count asserts thatDefendants owed a duty to the Plaintiff child “to properly screen, staff, hire, supervise, investigate,discipline, and terminate its employees, agents, servants, and volunteers,” but negligently breachedthat duty. Id, at #§] 15— 16. The count asserts further that Defendants knew or should have knownthat Mr. Ameris was not fit to hold any position on the premises that would allow him to comeinto contact with minor children who had been placed into Defendants’ care, custody or control.Id. at § 17. Finally, the count asserts that Defendants’ negligence caused damage to Plaintiff. Id.at § 18. Again, these allegations plainly assert the elements of a cause of action for negligentCohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410Telephone: (561) 515-1400 Facsimile (561) 515-1401Page 3hiring, retention or supervisions, and are supported by the essential factual allegations discussedabove.HOREB CHURCH’S MOTION TO DISMISSSuit Against Two Defendants in a Single CountHoreb Church moves to dismiss on grounds that it is improper to assert a single count ofnegligence against both Defendants, rather than asserting separate counts against each. ThisDefendant takes the concerns of the appellate decisions it relies on out of context. The concern ineach case, not applicable here, applies where there are separate theories or causes of action againstindividual defendants within a single count, thus potentially making it difficult to segregateallegations against one defendant from the other. See, Pratus v. City of Naples, 807 So. 2d 795(Fla. 2d DCA 2002).! None of the authorities cited by Defendant Horeb Church stands for theproposition that there is a bright line rule that multiple defendants cannot be sued in a single count,nor does one appear on the face of the Rules of Civil Procedure. In this regard, it is proper tosupport counts of a complaint by common factual allegations that relate to each defendant'sliability for that count, just as it is proper to sue them in a single count where liability is unifiedbased on the assertion that each defendant had the same duty and acted simultaneously in the samemanner to breach that duty. Pratus, supra. In this instance, Defendant Horeb Church identifiesno specific allegation against it that appears inapplicable or confusing, nor any allegation against1 Defendant’s reliance on Dubus v. McArthur, 682 So. 2d 1246, 1247 (Fla. Ist DCA 1996), is particularlyinapposite because that case addressed alleging multiple causes of action into a single account, not suing multipledefendants in a single count. Cohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410Telephone: (561) 515-1400 Facsimile (561) 515-1401Page 4the other Defendant that is comingled with the allegations against it so as to render the complaintambiguous or otherwise difficult to discern.Negligence Count - Pleading Ultimate FactsDefendant Horeb Church also claims that Count I fail to plead ultimate facts establishingnegligence on its part, claiming that the allegations are mere jegal conclusions, specifically as tothe assertion that it owed a duty to the child Plaintiff and that the duty was breached by failing tosafeguard her against, monitor for or otherwise prevent the injury to her that she suffered.Respectfully, Horeb Church is wrong on the facts and the law.On the facts, as set forth above, the Second Amended Complaint specifically asserts thatthe Defendant owned or operated the property and facility, that Plaintiff was a minor child whowas participating in Defendant’s programs on its property, and that its employee, agent orvolunteer, Mr. Ameris, abused her while she was participating in those programs. In the firstinstance, the allegations of fact to support a count of a complaint may be properly plead in a sectionofa complaint containing facts common to all counts, as was done here. Pratus, supra.Further, the law does impose a duty of the sort alleged where a minor child is participatingin an organization’s programs aimed at children and the children have been brought into theorganization’s care, specifically a duty to guard against, supervise against abuse committed by anemployee, agent or volunteer so as to prevent foreseeable harm. See, Special Olympics of Florida,Inc. v. Showalter, 6 So. 3d 662 (Fla. 5th DCA 2009) (Defendant could be liable for sexual assaultof a minor due to failure to monitor, supervise or exclude potentially dangerous volunteer). Thislegal standard establishes the essential factual allegations that must be pled and they do appear inthe Second Amended Complaint. It alleges that the child was participating in such children’sCohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410Telephone: (561) 515-1400 Facsimile (561) 515-1401Page 5programming, that it was operated by the Defendant, that Defendant’s employee, agent orvolunteer abused the child and that the abuse occurred because the Defendant failed to act touphold its duty to act in advance to prevent such abuse from happening. Any further detail wouldbe the subject of discovery.Negligent Hiring, Retention or SupervisionDefendant Horeb Church asserts that Plaintiff has impermissibly asserted in a single countclaims for negligent hiring with negligent retention or supervision. In its effort to set forth theelements of a cause of action for negligent hiring from negligent retention -- if they were broughtseparately — it ignores the obvious, that both circ*mstances are pled to have applied here. Further,it is only logical that if an employee (here, Mr. Ameris) is hired for a job that they were unfit tohold, here that being any job involving contact with children, the negligence underpinning thatcirc*mstance would support the assertion that it continued to be negligent not to properly supervisehim or discharge him when he was working with children or assigned to work with children.Defendant Horeb Church’s assertion that the elements of a cause of action for negligenthiring have not been plead, is simply incorrect. Horeb Church confirms that the cause of actionrequires that three things be alleged. First, it should be alleged that the employer was required tomake an appropriate investigation of the employee and failed to so do. This essential allegationappears in the Second Amended Complaint in paragraphs 16 (“Defendants had a duty to ...investigate ... its employees ...) and 17 (Defendants ... breached that duty ...).Second and third are the related allegations that it should be alleged that an appropriateinvestigation would have revealed the employee was unsuitable for a particular job or job duty orto be hired at all and that it was therefore unreasonable to hire the subject employee. TheseCohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410Telephone: (561) 515-1400 Facsimile (561) 515-1401Page 6essential allegations are inherent in paragraph 17’s allegation that, “... Defendants, knew or shouldhave known, that Jerry Ameris was not fit for any position with Defendants nor permitted on thepremises that would allow him to come in contact with minor children ...”The reasonable foreseeability of the harm, again, is recognized as a matter of law based onthe nature of the relationships involved that has been alleged, that of a youth-serving organizationfailing to prevent the known risk of harm of sexual abuse by an adult in a caregiving role to theminor child. For example, in Goss v. Human Services Associates, Inc., 79 So. 3d 127, 131 (Fla.5th DCA 2012), it was held that, "A facility in charge of sheltering and caring for foster childrenhas, at the very least, a duty to conform to a certain standard of conduct for their protection againstunreasonable risks of harm." The Court in Goss, cited with favor Niece v. Elmview Group Home,929 P. 2d 420 (Wash. Supreme Court 1996), which held:(1) the special relationship between the group home and its vulnerable residents gives riseto a duty of reasonable care, owed by the group home to its residents, to protect theresidents from all foresceable harms, and (2) assault by a. ember is not alegally unforeseeable harm. Id. at 421 (emphasis added.)Finally, Defendant Horeb Church asserts that Count II fails to allege sufficient facts insupport of a claim for negligent retention or supervision that, during the course of employment,specifically that the employer because aware or should have become aware of problems with theemployee that indicate the lack of fitness and that the employer failed to take further action inresponse, including conducting an investigation, discharge or reassignment. The facts are,however, generally pled. See, Second Am. Compl. {16 —17. The case relied upon by defendantCohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410Telephone: (561) 515-1400 Facsimile (561) 515-1401Page 7for its argument, Garcia v. Duffy, 492 So. 2d 435, 440 (Fla. 2nd DCA 1986), does not requirespecific allegations for hiring and retention/supervision claims, rather only general allegations.WHEREFORE, Plaintiff respectfully requests that all relief sought by Defendant HorebChurch be denied; in the alternative, in the event that the Court finds deficiencies, Plaintiff requestsleave to amend and respectfully submits that leave to amend is required where, as here, any allegeddeficiencies do not prevent the ability to assert a viable cause of action.Respectfully submitted this 15th day of July, 2019.{si Michael Dolce oeMICHAEL DOLCE, ESQ.Florida Bar No.: 048445mdolce@cohenmilstein.comCohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200Palm Beach Gardens, FL 33410(561) 515-1400Cohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410Telephone: (561) 515-1400 Facsimile (561) 515-1401Page 8CERTIFICATE OF SERVICEI hereby certify that on this 15th day of July 2019, I electronically filed a true and correctcopy of the foregoing via the Florida Courts E-Filing Portal with the Clerk of the Court andserved upon those listed below via the Florida Courts E-Filing Portal:Jon M. Herskowitzjon@bhtloridalaw.com; silvia@bhfloridalaw.comBaron & Herskowitz9100 S. Dadeland Blvd, Suite 1704Miami, FL 33156Phone: (305)-670-0101Co-Counsel for PlaintiffJohn P. Keller, Esq.jkeller.pleadings@qpwblaw.comMichelle O'Brien, Esq.mobrien.pleadings@qpwblaw.com.Quintairos Prieto Wood & Boyer, P.A.9300 S. Dadeland Blvd, 4th FloorMiami, FL 33156Phone: (305)-670-1101Attorneys for Horeb French Seventh Day Adventists ChurchLeora B. Freire, Esq.leora.freire@gray-robinson.comRonald P. Ponzoli, Jr., Esq.ron.ponzoli@gray-robinson.comGray Robinson, P.A.SIS N. Flagler Dr #1425West Palm Beach, FL 33401Phone: (561)-268-5727Attorneys for Southeastern Conference Association of Seventh-Day Adventists, Inc.Cohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200Palm Beach Gardens, FL 33410(561) 515-1400(561) 515-1401 (facsimile) mdolce@cohenmilstein.comCohen Milstein Sellers & Toll, PLLC2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410Telephone: (561) 515-1400 Facsimile (561) 515-1401PRATUS y. CHTY OF NAPLESFla. 795Cite as 807 So,2d 798 (FlaApp. 2 Dist. 2692)issues of the case based on the plead-ings before it and its view of the evi-dence presented. The court does notfulfill this responsibility by merelyehoosing the better proposed judg-ment or the better option or optionscontained in competing proposedjudgments presented by the attor-neys.Struble v. Strubdle, 187 80.20 48, 49 (Fla. 2dDCA 2001) (quoting White v. White, 686So.2d 762, 763 (Fla. 5th DCA 1997) (ern-phasis in original).Affirmed in part, reversed in part, andremanded,SILBERMAN and COVINGTON, JJ.,Concur, Jeffrey PRATUS and CarolPratus, Appellants,veCITY OF NAPLES, Kevin Rambosk,Phillip Valdario, Flagship Real EstateCorporation, Marvin Needles, andScott Needles, Appellees.No, 2D01-1867,District Court of Appeal of Florida,Seeond District.Feb, 22, 2002.After police officers secured warrantto search home by entering and videotap-ing the interior posing as potential pur-chasers, homeowners brought § 1983 ac-tion against city, chief of police, individualofficer, cooperating purchasers, and realtycompany. Following numerous amend-ments to the complaint, the Circuit Court,Collier County, Hugh D. Hayes, J. dis-missed it with prejudice. Homeowners ap-pealed. The District Court of Appeal, Ca-sanueva, J., held that homeowners wereentitled to another opportunity to properlyplead separate counts against city, chief ofpolice, and individual officer.Affirmed in part, reversed in part, andremanded.1. Pretrial Procedure 695Homeowners, whose § 1983 complaintagainst city, chief of police, and individualofficer was dismissed for improper plead-ing, were entitled to another opportunityto properly plead, since their allegationsthat police officers secured search warrantby entering and videotaping their homeposing as potential purchasers, if true,might result in viable cause of action. 42US.C.A, § 1988.2. Pleading 48In addition to a jurisdictional state-ment and a statement of the relief sought,a complaint must contain a plain statement.of ultimate facts establishing entitlement.to relief. West's F.S.A. RCP Rule1.110(b).3, Pleading €53(2)When asserting § 1988 claims againstcity, chief of police, and individual officer,plaintiffs were required to plead eachclaim in a separate count, instead of lump-ing all defendants together. 42 U.S.C.A.§ 1988; West’s F.S.A, RCP Rule 1.110(b). Douglas L. Wilson of The Wilson LawFirm, Naples, for Appellants.796 Fla.Robert G. Menzies of Reetzel & An-dress, L.P. vaples, for Appellees, CASANUEVA, Judge.Jeffrey and Carol Pratus appeal thedismissal of their frequenily arnendedcomplaint with prejudice. We affirm thedismissal as to Flagship Real state Cor-poration, Marvin Needles, and Seott Nee-dies, We reverse as to the remainingparties.Jeffrey Pratus, a resident of Marco Is-Jand in Collier County, which is not withinthe jurisdietion of the city of Naples, re-ported a possible bomb located outside hisfamily’s place of business in the city ofNaples. The police were unable to deter-xnine who planted the bomb and were sub-jected to much criticise by the press forthis failure, The police investigation thentargeted Mr. Pratus. In an attempt todiscover incriminating evidence, two city ofNaples police officers entered the Pratushome under false pretenses, pretending tobe potential purchasers of the home thePratuses were leasing. The officers video-taped the interior of the home, and then athird officer, Phillip Valdario, swore out anaffidavit based on the videotape to securea search warrant. Although many itemswere seized during this search, the stateattorney declined to prosecuie. Thereaf-ter, the police reported to the federal au-thorities that Mr. Praius might be aworthwhile target for a federal investiga-tion into mail fraud.Feeling persecuted by this egregious po-lice action, the Pratuses filed a lawsultelaiming that their civil rights were violat-ed under 42 § 1983. They namedas defendants the City of Naples, ostensi-bly for not. properly monitoring its chief ofpolice to prevent the actions they suffered; 1. We hasten to add that this opinion shouldnot be read as commenting in any manner on807 SOUTHERN REPORTER, 2d SERIESKevin Rambosk, the chief of police of theGity of Naples Police Department, for hisdeliberate indifference to the training ofhis officers; Officer Phillip Valdario forlying about the content of the videotape tesecure a search warrant; and the Needles-es and their realty company for eooperat-ing with the police and telling the Pratusesthat the two offieers were prospective buy-ers. In count one of the complaint, all thedefendants were named; in count two,only Officer Valdario; in count three, fordeclaratory and injunctive relief, all defen-dants were named,[1] We can appreciate the circuitcourt's frustration in trying to decipher thePratuses’ allegations in the numerous com-plaints before finally dismissing it withprejudice. It is not the court’s function teeducate a plaintiff in the requirements ofproper pleading. To say merely that thiscomplaint is not well pleaded is an under-statement. It lacks minimal organizationand coherence. Nevertheless, if what thePratuses allege is true, their civil rightsmay have been violated.) Although thetrial court generously permitted numerousattempts to replead, we believe there maybe a viable cause of action and one moreopportunity to properly plead should beallowed.[2,3] Florida Rule of Civil Procedure1.110(b) requires each claim for relief tostate a cause of action. In addition to thejurisdictional statement and the reliefsought, the complaint must contain a plainstatement of ultimate facts establishing en-titlement to relief. For example, a bareallegation that a police officer misrepre-sented unspecified facts to a magistrate tosecure a search warrant falls somewhatshort of providing a clear basis for a causethe merits of the case,BEALE v. BEALEFla. 797Che as 807 So.2d 797 (FlsApp. t Dist. 2602)of action, The Pratuses probably have atleast three separate theories or causes ofaction: one against the City of Naples, oneagainst the chief of police, and one against.the officer. Accordingly, each claimshould be pleaded in a separate count in-stead of lumping ail defendants together.We would also point out that rule 1.120)allows statements in a pleading to “beadopted by reference in a different part ofthe sarne pleading, in another pleading, orin any motion,” thus permitting the plead-er to identify concisely factual allegationscommon to multiple counts and theories.On remand, the circuit court shall allowthe Pratuses’ counsel one further opportu-nity to plead a viable cause of action inaccordance with the Florida Rules of CivilProcedure.Affirmed in part; reversed in part; andremanded with instructions,STRINGER and GREEN, JJ., Concur,v© EIRRRYxJoseph Edward BEALE, Michael F.Beale, Roger A, Beale, Sr, John P.Beale, and Mary Jo Pickett, Appel-lants,YeNancy BEALE, Appellee.No, 1D01-392,District Court of Appeal of Florida,First District.Feb, 26, 2002.Siblings of decedent filed an actionagainst decedent's widow, seeking to im-pose a constructive trust for the siblings’benefit upon property in the Bahamas thathad been jointly owned by decedent andwidow. The Cireuit Court, Duval County,Henry E. Davis, J., ruled in favor of wid-ow. Siblings appealed. The District Courtof Appeal held that: (1) Bahamian law, notFlorida law, applied in action, and (2) un-der Bahamian law, siblings were not enti-tled te imposition of a constructive trust intheir favor against widow.Affirmed.1, Trusts 2Under Florida’s conflict of law rule,providing that the laws of the situs of thereal property govern, Bahamian law, notFlorida law, applied in action brought bysiblings of decedent against widow of dece-dent to impose a constructive trust forsiblings’ benefit upon real property locatedin the Commonwealth of the Bahamas.2. Trusts 103(2)Under the law of the Commonwealthof the Bahamas, siblings of decedent werenot entitled to the imposition of a construc-tive trust in their favor against: decedent’swidow that would have decreed that widowheld Bahamian real property as a trusteefor benefit of siblings and siblings’ chil-dren, although siblings alleged that widoworally promised to decedent that she wouldtransfer property into a trust for siblings,where siblings did not allege or show thatthey acted either to the advantage of wid-ow or to their own detriment in reliance onwidow's alleged promise.3, Trusts C91Under English common law, as ap-plied in the Bahamas, equity imposes con-structive trust on property where (1) thereis a common intention or understandingbetween proprietor (legal owner) andclaimant (person asserting a claim to a662 Fla.DCA 2000) (where trial court failed toaddress whether appellant. withdrew hisconsent to search, the case was reversedand remanded for trial court to conductnew hearing on the issue); Simpson wState, 562 So.2d 742 (Fla. Ist DCA 1990)(concluding that, where it was uncertainfrom the record what trial court intendedin its ruling on voluntary nature of appel-.jant’s confession, the case had to be re-versed and remanded for either a writtenorder stating its conclusion or a new hear-ing on appeliant’s motion).Accordingly, we reverse the suppressionorder and remand for further proceedingsin which the trial court must determinewhether Soloman was subject to custodialinterrogation when he made the atate-ments at issue.Reversed and remanded with instruc-tions.ALTENBERND and KELLY, JJ.,Concur. GeeSPECIAL OLYMPICS FLORIDA,INC., Appellant/Cross—Appellee,vMargaret SHOWALTER, etal. Appetlees/Cross—Appellants.Nos. 5D07-2104, 5D07-2332.District Court of Appeal of Florida,Fifth District.March 13, 2009.Rehearing Denied April 14, 2009.Background: Two developmentally dis-abled adults sued Special Olympics, seek-6 SOUTHERN REPORTER, 3d SERIESing to hold the organization Hable for con-duct of volunteer who molested them inparking lot before bowling practice. Fol-lowing trial in Circuit Court, Orange Coun-ty, Reginald Whitehead, J. jury returnedverdict for plaintiffs. Appeal was taken.Holdings: The District Court of Appealheld that:@) the organization was not liable underagency theory;(2) the organization was not statutorily lia-ble; and(8) failure to instruct jury regarding na-ture and scope of the organization'spurported duty to protect athletes re-quired new trial.Reversed and remanded.Torpy, d., filed an opinion concurring spe-cially.1. Labor and Employment ¢=3052, 3055To impose vicarious liability under anagency theory for negligence or intentionalwrongdoing by an employee, liability mustbe imputed to employer by showing thatemployee was an agent of employer andwas acting within the scope of his status asagent when he committed the wrong.2. Principal and Agent ¢7159(1)Special Olympics was not liable, underagency theory, for molestation of two ath-letes by volunteer in parking lot beforebowling practice, even if volunteer wasagent; actions of volunteer were outsidescope of his agency at time of incidents.3, Labor and Employment 3056(1)Sexual assaults and batteries by em-ployees are held to be outside the scope ofan employee’s employment and, therefore,insufficient to impose vicarious liability onthe employer; unless it can be establishedSPECIAL OLYMPICS FLORIDA, INC. v. SHOWALTERCite ns & $0.34 662 (Fis,App. 5 Dist. 2009)that the abuse occurred in furtherance ofthe employer's business, this type of eon-duct is not within the scope of empley-ment.4. Labor and Employment ©2056(2)Publie Amusem*nt and Entertain-ment C71i4Special Olympics was not liable, understatute providing that persons with devel-opmental disabilities have right to be freefrom harm and abuse, for molestation oftwo athletes by volunteer in parking be-fore bowling practice, even if volunteerwas agent; statute imposed liability on theone who harmed victim or one who wasvicariously liable, organization was not theabuser, and volunteer was acting outsideseope of agency. Wests FSA.§ 393.18Ghg)§. Appeal and Error 61064.1(8)Public Amusem*nt and Entertain-ment 164In negligence action against SpecialOlympics organization, brought by two de-vyelopmentally disabled athletes molestedby volunteer in parking lot before bowlingpractice, failure to instruct jury regardingnature and scope of the organization’s pur-ported duty to protect athletes was errorand required new trial. Restatement (Sec-ond) of Torts § 315. Elliot H. Scherker and Brigid F. CechSamole of Greenberg Traurig, P.A., Miami,for Appellant.Jamie Billotte Moses of Fisher, Rush-mer, Werrenrath, Dickson, Talley & Dun-lap, P.A., Orlando, for Appellees.PER CURIAM.The central question in this case iswhether Appellant may be found liable forthe acts of one of its volunteers who mo-+lested Appellees, two developmentally dis-abled adults, in a bowling center parkinglot. Although we reverse the judgmentand instruct the trial court to direct averdict as te two counts, we remand for anew trial on the negligence count.Appellant is a nonprofit organizationthat “{plrovidefs] sports training and com-petition for persons with ... disabilities,{and] ongoing opportunities to participatewith their families and the community.”Appellant sponsors between 11 and 18competitions per year in Florida. All ofAppellant’s activities are run by countycoordinators, who are volunteers, as arethe coaches and others who assist in oper-ating the programs. Appellant has ap-proximately 34 paid staff membersthroughout Florida and as many as 17,000volunteers. Appellees, Margaret Showal-ter and Nancy Vasil, are both developmen-tally disabled adults who participate asathletes in Appellant’s events. Ms. Show-alter is apparently somewhat, self-reliant,although a social worker resides with her.Ms. Vasil lives with her father, who is herguardian.One of Appellant’s organized activities,in which Appellees participate, is an annu-al bowling competition. The athletes prac-tice between August and November eachyear and then participate in county, re-gional and state competitions. Appellantarranged with Colonial Lanes, a publicbowling center in Orange County, to con-duct much of its bowling activity there.Practices were scheduled to begin everySaturday at 1:30 pm. and the athleteswere instructed to arrive no earlier than1:00 p.m. However, the athletes widely ig-nored this instruction. As a consequence,volunteers routinely arrived at practicesearly because they anticipated that theathletes would arrive early and need su-pervision.664 FlaOn October 25, 2008, the day of themolestations, bowling practice was sched-uled for 1:30 p.m. On the same day and afthe same facility, Appellant also scheduledphysicals for some of the athletes, heginening al 10:00 am. Appellant had anneuneed the physicals ‘at a prior event visJoudspeaiex. Appellees knew they werenot scheduled for physicals, bat they botharrived early to sacialize before practice.Ms. Showalter travelled to the bowlingcenter using publie transportation. Ms.Vasil’s father dropped her off at the bow!-ing Wiley at HOO am. Although Ms. Vasil’sfather was aware that preetice etarted at1:30 p.m., he assumed, based on past expe-rience, that someone from Special Olym-pies would be there to supervise.Another early arriver to the October 25prectice wae the acensed minlester; 2Byear-old James McDonald, whe had beenjnvelved wih Appellant for many years inseveral capacities. As his son was an ath-lete, Mr. McDonald participated in eventsas a parent. He wes also 8 registeredvolunteer. In this capacity, he had beenhead bowling coach from the 1980s until1994, ab which time he stepped down ashead coath duc to accusations that he hadmolested another athlete and her sister.The incidents were investigated by theplies, bul the charges were dropped twoyears later. Although Appellant disputesthat Mr. McDouald eontinued to serve in avolunteer capacity after 1994, the evidencetaken in the light most favorable to Appel-Jees suggests to the contrary.Evidence was presented that Mr. Me-Donald's volunteer application remained onfile until after the molestations involved inthis case. According to Appellant's rou-tine practice, this suggested that Mr, Me-Donald’s volunteer status had not beenterminated. He continued to attend prac-tices and events regularly, even arrivingearly to help all the athletes, not just bis§ SOUTHERN REPORTER, 3d SERIESson. Louise Newton, the successor bowl-ing coach, admitted that Mr. McDonaldwas still there every week acting like hewas in charge. As she stated: “T guess itwas hard [for Mr, McDonald] to let go.”After the instant molestations, Appellantsent a letter to Mr. McDonald banning himfrom attendance at events, but stating that“there will be an investigation and [Appel-lant} shall either reinstate your volunteerduties and opportunities or we shall haveto determine an appropriate course of ac-tion ... depending on the outeome of theinvestigation.” Mr. McDonald apparentlyheeded the directive as he did not attendany of Appellant's events up to the date oftrial in 2007.In addition to the accusations that Mr.MeDonald had previously molested an ath-lete and her sister in 1994, other allega-tions against Mr. MeDonald were broughtto Appellant’s attention prior to October25, 2008. Between 1994 and 2003, one ofthe Appellees reported to Ms. Newton thatMr. McDonald had molested her on morethan one occasion, albeit not in connectionwith any of Appellant's events. Duringthis same time period, Ms. Newton wasalso informed that Mr. McDonald attendeddances conducted for developmentally dis-abled adults (not associated with Appel-Jant’s activities) where he escorted atten-dees to and from his van. Ms, Newtondiscussed these issues with Mr. McDonaldbut accepted his denial of claims of wrong-doing. She did, however, caution him toavoid taking developmentally disadvan-taged people to his van because it ap-peared inappropriate. At some point inthe year 2000 or 2001, Ms, Newton begankeeping a “closer eye” on Mr. McDonaldand had a discussion with Charlotte Day,Appellant's county coordinator, about.whether he was a liability. Ms. Newtondid not, however, warn anyone else associ-ated with Appellant or the athletes’ par-SPECIAL OLYMPICS FLORIDA, INC. v. SHOWALTERCite 9s 6 $0.3d 662 (FiaApp. 5 Dist. 2009)ents or guardians about any suspicionseoneerning Mr. McDonald.Other than to accept Mr. McDonald'sresignation as head bowling coach, Appel-Jant did nothing te limit his involvementwith its activities. In fact, most peoplewithin Appellant’s organization gave no ap-parent credit to the accusations against,Mr. MeDonaid. For example, the countycoordinator in 1994, Jane Fournier, didnothing to investigate the 1994 incident,aseuming that beeause prosecutorsdropped the charges two years later, Mr.McDonald was cleared of wrongdoing.When Charlotte Day took over as countycoordinator in 1998, Ms. Fournier told herthat the 1994 incident had been unfounded.Consequently, Ms. Day did not investigatethe charges in any way. The county co-coordinator, Patricia Webb, althoughaware of many of the alleyations againstMr. McDonald, concluded that he was“completely harmless.”On the day of the instant molestations,Ms. Webb arrived at the bowling centershorily after 10 a.m. to assist a volunteerphysician with performing the physicals.Meanwhile, Mr. MeDonald lured Appelleesoutside to his van where he subsequentlymolested them, one after the other, eitherin or near his van. At some point in time,Ms. Webb looked out the window into theparking lot and saw Mr. McDonald molest~ing one of the Appellees. While she wassummoning police to report the incident,Mr, McDonald molested the other Appel-Jee. He was subsequently arrested, andhis culpability is not herein disputed.Appellees’ theory of liability was three-fold. In their first count, Appellees assert-ed that Appellant was under a duty toprotect them or control Mr. McDonald, orboth, so as to prevent the foreseeable con-duct of Mr. McDonald, and Appellant'sfailure to do so amounted to negligence.In their second count, Appellees assertedthat Appellant was liable on a statutorytheory. Finally, in their third count, Ap-pellees sought to impose lability on Appel-lant under an agency theory. The juryreturned a verdict for each Appellee on allthree counts. Appellant contends that itwas entitled to a directed verdict on allthree counts. We agree as to the secondand third counts, but disagree as to thenegligence count. For the sake of clarity,we address each count in reverse order.[1] The third count, although labeled“Direct Liability,” in substance seeks toimpose vicarious liability under an agencytheory for the negligence or intentionalwrongdoing of Mr. McDonald. Under ei-ther theory of Hability, liability must beimputed to Appellant by showing that Mr.MeDonald was an agent of Appellant andwas acting within the scope of his status asagent when he committed the wrong. Ap-pellant argues that neither was establishedsufficiently to create a jury issue. Wedisagree in part. We think-the-evidence ofa*gency was sufficient to be resolved by thejury. Although Mr. McDoiald had re-signed as head coach, there was more thanample evidence that he remained a volun-teer, He remained registered as such and,more important perhaps, he continued toact as such with Appellant's acquiescence.[2,3] We agree with Appellant, howev-er, that Mr. McDonald was not actingwithin the scope of his agency at the timeof the incidents, notwithstanding the jury’sdetermination to the contrary. “General-ly, sexual assaults and batteries by em-ployees are held to be outside the scope ofan employee’s employment and, therefore,insufficient to impose vicarious liability onthe employer.” Nazareth v. Herndon Am-bulance Serv. Inc, 467 So.2d 1076, 1078(Fla. 5th DCA 1985), Unless it can beestablished that the abuse occurred in fur-therance of the employer’s business, thistype of conduct is not within the scope of666 Fl.employment! Agriterf Mgmt, Inc v.Roe, 658 So2d 954 (Fla. 2d DCA 1995)(Suding abuse occurring on Agriturfsproperty during time perpetrator closing{iasibeas tot within scope of enploymentpecause sexual abuse not in furtherance ofexaployer’s kusiness objectives); see Ma-won v. Fla. Sheriffs’ Seif-Ine. Fund, 699So.2d 268 (Fla. 5th DCA 1997) (holdingsexual assault by officer not within scopeof employment, even though officer onduty, in uniform and serving warrant onwoman he raped).[4] The second count is based on pur-ported atatatory ability under section803,13(8%g). Florida Statutes @004). Theparties devote considerable argursent towhéther a vivlation of the statute is negli-gence per se, whieh is how the jay wasinstracted. We need not address this is-sue because we conchide that there was nostatutory violation by Appellant. If at all,the statute only imposes civil liability onthe one who harms the victim and perhapsthose who are vicariously liable for thatperson's actiong® Here, Appellant is notthe atuser. Further, as previously dis-cussed, Mr, McDonald was not acting with-in the seope of his agency with Appellant.Thns, Appellant is not vicariously liable forMr, McDonald’s conduct.Our conclusion on the agency issue doesnot resolve the first count, however, whichAppellees label “NEGLIGENCE.” Al-though not a model of clarity, this countseeks to impose direct Hability against Ap-pallant because Appellant either had aduty to protect Appellees or had a duty togontvol Mir. MeDonald, or both, and failedin that duty with resulting harm. This1. Appellees’ counsel caminendably concededat oral argument that these assaults di notoccur within the scope of the agency.2. Because the judge charged the jury that aviolatign of the statute is negligence, it is6 SGUTHERN REPORTER, 3d SERIEStheory of liability is net dependent on afinding that the abuser’s conduct fell with-in the scope of the agency or, for thatmatter, that the abuser was an agent. In-stead, liability turns on whether there ex-isted a “special relationship” giving rise toa duty to control or protect or both.According to the Restatement (Second)of Torts:There is no duty so to control the con-duet of a third person as to prevent himfrom causing physical harm to anotheruniess(a) a special relation exists between theactor and the third person which impos-es a duty upon the actor to control thethird person’s conduct, or(bo) a special relation exists between theactor and the other which gives to theother a right to protection.Restatement (Second) of Torts § 315(4965) (emphasis supplied). Comment ec.of the restatement states:The relations between the actor and athird person which require the actor tocontrol the third person’s conduct arestated in §§ 316-319. The relations be-tween the actor and the other whichrequire the actor to control the conductof third persons for the protection of theother are stated in §§ 314A and 320.Of the enumerated sections, the one rele-vant here is section 320 which provides asfollows:One who is required by law to take orwho voluntarily takes the custody ofanother under circ*mstances such asto deprive the other of his normalpower of self-protection or to subjecthim to association with persons likelyimpossible to tell whether the verdict for Ap-pellees on the negligence count was premisedon a violation of the statute or a violation ofthe common law duty.SPECIAL OLYMPICS FLORIDA, INC. vy. SHOWALTERFla, 667Cite as 6 So.3d 662 (Fla App. § Dist. 2009)toe harm hire, is under a duty to exer-eise reasonable care so to control theeonduct of third persone as to preventthem from intentionally harming theother or so conducting themselves as tocreate an unreasonable risk of harm tohina, if the actor(a) knows or has reason to know that hehas the ability to contro! the conduct ofthe third persons, andto) knows or should know of the neces-sity and opportunity for exercising sucheontrel.Restaternent (Second) of Torts § 320(1965) (emphasis supplied). Appellant con-cerdes that it had a special relationship withAppellees during scheduled activities” Itcontends, however, that the relationshipwas not in effect at the time of the moles-tation beeause Appellees were at the bowl-ing center for social reasons and were notunder Appeliant’s “voluntary custody.”Appellees counter that this issue is a ques-tion of fact in this case. We agree withAppellees.[5] The record is replete with evidencethat, despite any contrary instruction, ath-letes routinely arrived early, to the pointthat volunteers undertook the responsibili-ty to themselves arrive early so they couldsupervise the athletes, Appellant was con-dueting an activity at the time of the inci-dent and the evidence is not clear that thecoach’s general instruction that the ath-letes should not show up early was intend-ed to apply when other Appellant-spon-sored activities were ongoing. There isalso ne evidence that any instruction wasgiven to Ms. Showalter’s social worker orMs. Vasil’s father concerning early arrival,despite the fact that this practice was ap-parently commonplace. The jury couldhave conchided that any attempt to re-3. See Hinckley v. Palm Beach County Bd, ofCounty Conun’rs, 801 So.2d 193, 195 (Fla. 4thDCA 2061) (holding special relationship exist- strict the temporal scope of Appellant’sduty should have been communicated tosomeone with the maturity to control Ap-pellees’ behavior. The evidence also re-flects that Appellant attempted to controlMr. McDonald by counseling him about,the propriety of escorting developmentallydisabled people to his van. The jury couldhave inferred from this evidence that Ap-pellant was aware of its ability and duty tocontrol Mr. MeDonald.Although Appellees’ negligence claimsare legally viable, a new trial is necessaryin this case because the jury was not cor-rectly instructed on the law. The jury wasgiven no guidance about the nature andscope of Appellant’s purported duty andwas improperly advised that, by statute,the Appellees were guaranteed “the right,to be free from harm” and that a violationof this statute constituted negligence.We affirm ag to the “empty chair” argu-ment and the cross-appeal without diseus-sion. Appellant's point regarding experttestimony is moot because we have dis-posed of the statutory claim. Because weare reversing the judgment for damages,we also reverse the attorney's fees award.REVERSED AND REMANDED.LAWSON and EVANDER, JJ., concur.TORPY, J., concurs and concursspecially, with opinion.TORPY, J., concurring specially.I do not think that Appellant’s duty waslimited to the period during which it hadactual custody of Appellees. In my view,the existence of the special relationshipwith both Appellees and Mr. McDonaldtriggered some ongoing duty to controled between caregiver and developmentallydisabled individual).668 Fla.Mr. MeDonald by, at a minimum, expellinghim from Appellant’s activities as a parentor volunteer. To merely lecture him aboutthe propriety of taking athletes to his vanhardly discharges the duty to control, Ialso think Appellant had a duty to warnparents or guardians of this particulardanger before the athletes were exposedto the danger.J think this is a ease for the applicationof Restatement (Second) of Torts section8028 (1965), which provides:An act or an omission may be negligentif the actor realizes or should realizethat it involves an unreasonable risk ofharm to ancther through the conduct ofthe other or a third persen which isintended to eause harm, even thoughsuch conduct is eriminal.One of the comments to this section statesthat it applies:Where the actor has brought into con-tact or association with the other a per-son whom the actor knows or shouldknow to be peculiarly likely to commitintentional misconduct, under circum-stances which afford a peculiar opportu-nity or temptation for sach misconduct.Restatement (Second) of Torts § 3028emt. eD. Under this theory, it makes nodifferenee whether the incident occurredwhile the victirns were in Appellant's actu-al custody.I am persuaded by the decision of theSupreme Court of Washington in CLC, v.Corporation of Catholic Bishop of Yakima,188 Wash.2d 699, 985 P.2d 262 (1999), andwould adopt its holding. There, underanalogous facts, the court imposed liabilityon a chureh after its deacon had molesteda child of the congregation because of:(L) the special relationship between theChurch and [the] deacon ...; (2) thespecial relationship between the Churchand the plaintiffs; (3) the alleged knowl-edge of the risk of harm possessed by&§ SOUTHERN REPORTER, 3d SERIESthe Church; and (4) the alleged causalconnection between {the deacon’s] posi-tion in the Church and the resultingharm.Id, at 275.e2 EXEL iE,Edward E. CAMBAS, Appellant,veDEPARTMENT OF BUSINESS ANDPROFESSIONAL REGULATION,Appellee.No. 5D07-191.District Court of Appeal of Florida,Fifth District,March 13, 2009.Rehearing Denied April 14, 2009.Background: Real estate broker’s licensewas suspended by Florida Real EstateCommission after he pled guilty to drivingunder the influence and leaving the sceneof an accident. Broker appealed, allegingthat he should have received a formalhearing and that his offenses were notcrimes of moral turpitude requiring a sus-pension.Holdings: The District Court of Appeal,Orfinger, J., held that:(1) broker was not entitled to formal hear-ing, and(2) leaving the scene of an accident was acrime of moral turpitude.Affirmed.GOSS v. HUMAN SERVICES ASSOCIATES, INC.Fla, 127Cite as 79 So.3d £27 (Fla.App. 5 Dist, 2012)Pamela Jo Bondi, Attorney General, andTimothy R.M. Thomas, Assistant AttorneyGeneral, for appellee.Before SHEPHERD, CORTINAS, andLAGOA, JJ.PER CURIAM.Affirmed. See Hernandez v. State, 61So.4d 1144 (Fla. 83d DCA 2011).3zJerry W. SMITH, Appellant,¥The STATE of Florida, Appeilee,No, 8D11-3108,District Court of Appeal of Florida,Third District,Jan, 25, 2012.An Appeal under Florida Rule of Appel-late Procedure 9.141(b)(2) from the CircuitCourt for Miami-Dade County, BronwynC. Miller, Judge.Jerry W. Smith, in proper person.Pamela Jo Bondi, Attorney General, forappellee.Before SHEPHERD, CORTINAS, andLAGOA, JJ.PER CURIAM.Affirmed, See Adams v. State, 76 So.3d367 (Fla, 83d DCA 2011) (holding that sec-tion 893.13, as amended by section 893.101,Florida Statutes (2002), is constitutional);Tattle v. State, 77 So.8d 722 (Fla, 8d DCA2011) (same).2Tacrian GOSS, Appellant,YHUMAN SERVICES ASSOCIATES,INC,, VisionQuest National, Ltd, andMorgan Lee Brown, Appellees.Nos. 5110-828, 5D10-829,District. Court of Appeal of Florida,Fifth District.Jan. 27, 2012.Background: Child brought negligenceaction against operator of a group carefacility that provided residential and thera-peutic services for children with emotionaldifficulties in need of foster care place-ment, and against contractor which provid-ed management and consulting services,alleging that he was sexually abused bycontractor’s employee. The Circuit Court,Orange County, Stan Strickland, J., en-tered summary judgment for defendants,and child appealed.Holdings: The District Court of Appeal,Cohen, J., held that:(1) material issue of fact as to whetheroperator or contractor was in charge ofthe facility at time that child was sexu-ally abused and whether operator owedduty to child precluded grant of sum-mary judgment to operator on child’snegligence claim, and(2) contractor could not be held vicariouslyliable for its employee’s actions.Affirmed in part, reversed in part, andremanded,128 Fla.1. Infants 1783Pasility in charge of sheltering andcaring for foster children has, at the veryleast, a duty to conform to a certain stan-dard of conduct for their protection againstunreasonable risks of harm.2, Judgment ©°181(33)Material issue of fact as to whetheroperator of group care facility that provid-ed services for children with emotional dif-ficulties in need of foster care placement,or contractor which provided managernentand consulting services, was in charge ofthe facility at the time that child was sexu-ally abused by contractor’s employee andwhether operator owed duty to child pre-chided grant of summary judgment to op-erator on child's negligence claim.3. Negligence 380, 387Proximate cause is concerned withwhether and to what extent defendant'sconduct was foreseeable and substantiallycaused the specific injury that actually oc-curred.4, Jadgment 181(33)Material issue of fact as to whetherlosses suffered by child who was sexuallyabused at group care facility that providedrvices for children with emotional diff- es in need of foster care placement.were proximately caused by breach of thedaty owed to him preclud

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Aug 08, 2024 |23CV02976

23CV02976ROCKWELL v. KARAMIAN DEFENDANTS’ DEMURRER TO FIRST AMENDED COMPLAINT The demurrer is sustained, in part, and overruled in part, as discussed below. Page 10 of 18 I. BACKGROUND AND COMPLAINT Plaintiffs Central Coast Citrus Holdings and Mathew Rockwell (“Plaintiffs”) filed a firstamended complaint (“FAC”) on April 15, 2024. There are twelve causes of action alleged in theFAC: breach of contract, declaratory relief, intentional misrepresentation (fraud), breach offiduciary duty, conversion, intentional interference with prospective economic advantage, tradelibel, constructive trust, accounting, unfair business practices (Business and Prof. Code § 17200),misappropriation of trade secrets, and failure to pay wages and penalties pursuant to Labor Codesection 201 et seq. Central Coast Citrus Holdings is in the business of developing, marketing, and licensingmarijuana products and accessories. Rockwell is the majority shareholder of Central. Rockwellcreated a product containing high-end marijuana called “Lemon Tree.” (FAC at ¶ 9.) Thisproduct proved to be popular and additional products in this line followed. Central was created asa holding company for the limited liability company called “Lemon Life.” (FAC at ¶¶ 12-13.) Plaintiffs assert the success of the brand led to investment interest, including fromdefendants Karamian and Martinson who represented themselves as industry professionals whowould expand the brand into a global empire. (FAC at ¶ 15.) The parties entered a memorandumof understanding (“MOU”) in October 2021 (F.AC at ¶ 16.) Karamian and Martinson neverreturned a signed copy of the MOU, but plaintiffs believe they signed it. Martinson andKaramian created two new entities in December 2021: defendants Orchard Beach Farms, Inc.and Orchard Beach Farms, LLC; these entities were not approved by plaintiffs; they allege. TheFAC alleges that without Rockwell’s knowledge or agreement, Martinson and Karamianfraudulently informed the Secretary of the State that Rockwell was the director of Orchard BeachFarms; they also removed Rockwell from corporate filings and then again alleged to theSecretary of State that Rockwell was a director of Orchard Beach Farms. (FAC at ¶ 17.) Plaintiffs assert that none of the defendants have a right to their brand without the expressapproval of Central and Rockwell. (FAC at ¶ 19.) However, defendants have engaged in massivefraud to misappropriate and convert property and funds belonging to plaintiffs, committed tradeliable, engaged in unfair business practices and have wrongfully and intentionally interfered withplaintiffs’ business and the brand. Further, plaintiffs assert Karamian failed to disclose he is a convicted felon. Californialaw prevents or makes it very difficult for a convicted felon to legally participate in themarijuana industry. Plaintiffs contend, as a result, they have been unable to proceed with anexpansion of the brand. (FAC at ¶ 21.) Plaintiffs allege defendants have engaged in a course ofaction to destroy the reputation of the brand, including failing to pay bills owed to third-partyvendors, entering into contracts without authorization, causing various issues with third-partieswhich could potentially expose plaintiffs to liability, creating extensive debts to third parties, Page 11 of 18wrongfully taking business revenue as their own, failing to provide accounting of transactions,and failing to pay Rockwell a salary as required. II. DEMURRER Defendants Karamian, Martinson, Orchard Beach Farms, Inc. and Orchard Beach Farms,LLC demur to the third, fifth, seventh, eighth, and tenth causes of action pursuant to Code ofCovil Procedure section 430.10, subdivision (e). Third cause of action- fraud against Karamian and Martinson Defendants assert this cause of action fails because it was not pled with sufficientparticularity; that is, the heightened pleading standard associated with fraud. Defendants contend“it is impossible to tell what alleged representations are actually the subject of the fraud claim.”(Demurrer at pg. 4.) Further, defendants argue there are not facts alleged which show or would tend to showdefendants knew the alleged representations were false when made. Defendants contendplaintiffs failed to allege that their belief in defendants’ representations were justifiable andreasonable. Finally, defendants contend plaintiffs failed to allege a definite and certain amount ofdamages. Fifth cause of action- conversion against all defendants Defendants contend the cause of action for conversion fails because it does not state aclaim involving money but rather “intangibles.” Defendants argue the FAC alleges defendantsconverted the “brand”, by selling brand products and receiving funds for the products.Defendants assert case law requires a specific amount of money and “a generalized claim formoney is not actionable as conversion.” (Demurrer at pg. 7, citing Vu. V. California CommerceClub, Inc. (1997) 58 Cal.App.4th 229, 235.) Seventh cause of action- trade libel against all defendants Defendants assert the FAC lacks allegations to support a trade libel claim becausedefendants are not alleged to have disparaged plaintiff’s brand or other products. Instead,plaintiffs alleged defendants injured plaintiffs’ reputation, which is distinct from trade libel.Defendants cite Shores v. Chip Steak. Co. (1955) 130 Cal.App.2d 627. 630. Eighth cause of action – constructive trust against all defendants Defendants assert a constructive trust is a remedy rather than an independent cause ofaction. Page 12 of 18 Tenth cause of action – unfair competition against all defendants Defendants assert this cause of action fails because the only monetary remedy availableunder a UCL claim is restitution and/or injunctive relief and plaintiffs do not seek “restitution”but “damages.” III. STANDARD ON DEMURRER A demurrer tests the legal sufficiency of a pleading. (Brown v. Los Angeles Unified SchoolDist. (2021) 60 Cal.App.5th 1092, 1103.) We accept as true all material facts properly pleaded inthe complaint, but do not assume the truth of contentions, deductions, or conclusions of fact andlaw." (Ibid.) However, "[a] party may not avoid demurrer by suppressing facts, including thosethat are judicially noticeable, which prove the pleaded facts false." (Gentry v. eBay, Inc. (2002) 99Cal.App.4th 816, 824.) Where facts appearing in attached exhibits or judicially noticed documentscontradict, or are inconsistent with, the complaint’s allegations, we must rely on the facts in theexhibits and judicially noticed documents." (Genis v. Schainbaum (2021) 66 Cal.App.5th 1007,1015.) IV. DISCUSSION Procedurally, plaintiffs argue the demurrer is untimely as it was filed on May 21, 2024,and is not to be heard until August 6, 2024, 77 days later. Plaintiffs contend this is beyond thelimitations period of CRC, Rule 3.1320, subdivision (d), which requires a demurrer be heard nomore than 35 days following the filing of the demurrer or on the first date available to the court.There is no evidence that defendants specifically requested that the hearing be set for this daterather than the hearing was set pursuant to the court’s calendar. The court will proceed to themerits of the demurrer. Third cause of action – fraud/intentional misrepresentation The essential elements for this cause of action are as follows: 1. That defendants represented to plaintiffs that a fact was true; 2. That defendants’ representation was false; 3. That defendants knew that the representation was false when they made it, or that they made the representation recklessly and without regard for its truth 4. That defendants intended that plaintiffs rely on the representation; 5. That plaintiffs reasonably relied on defendants’ representation 6. That plaintiffs were harmed; and 7. That plaintiffs’ reliance on defendants’ representation was a substantial factor in causing their harm. (1 CACI 1900.) Page 13 of 18 In support of this cause of action, defendants are alleged to have made factualrepresentations to plaintiffs during the negotiation process for the MOU. Thesemisrepresentations are outlined in paragraphs 48-49 of the FAC. Plaintiffs allege defendantsknew these representations were false at the time they were made and relied on them to theirdetriment. Defendants assert this cause of action is insufficiently pled when measured against theheightened pleading standards required for fraud. Defendants contend “it is impossible to tellwhat alleged representations are actually the subject of the fraud claim.” (Demurrer at pg. 4.)Defendants argue by the language of the FAC, there may be facts which were not alleged but arein existence and that there is confusion as to whether the representations are all oral or if someare written. (Demurrer at pg. 5.) They also contend there are insufficient allegations as to whichrepresentations were made by which defendant. A review of the FAC shows sufficient pleadings, at this stage, to support a cause of actionfor intentional misrepresentation/fraud. For example, plaintiffs allege Karamian and Martinsonmade the factual representations immediately during and prior to October 2021. The FACcontains an extensive list of the alleged false representations. (See FAC at ¶ 48.) The demurrer asto this cause of action is overruled. Fifth cause of action - conversion The essential elements for conversion are: 1. That plaintiffs owned, possessed or had the right to possess an item of personal property; 2. That defendants substantially interfered with plaintiffs’ property by knowingly or intentionally: [taking possession of the [insert item of personal property];] [or] [preventing [name of plaintiff] from having access to the [insert item of personal property];] [or] [destroying the [insert item of personal property];] [or] [refusing to return the [insert item of personal property] after [name of plaintiff] demanded its return.] 3. That plaintiffs did not consent; 4. That plaintiffs were harmed; 5. That defendants’ conduct was a substantial factor in causing plaintiffs’ harm. (1CACI 2100) In support of this cause of action, plaintiffs allege they are the legal and equitable ownersof the “brand”, which carries an economic value that may only be used or exploited by plaintiffs,for their own use and benefit. (FAC at ¶ 74.) They further allege defendants knowingly Page 14 of 18converted the property of plaintiffs by selling the brand products and receiving funds for theseproducts and thus, defendants wrongfully took the funds and used them to personally benefitthemselves. (FAC at ¶ 75.) Defendants assert case law requires a pleading of a specific amount of money which was“converted” and that “a generalized claim for money is not actionable as conversion.” “In order to establish a conversion, the plaintiff ‘must show an intention or purpose toconvert the goods and to exercise ownership over them, or to prevent the owner from takingpossession of his property.’ Thus, a necessary element of the tort is an intent to exerciseownership over property which belongs to another. For this reason, conversion is considered anintentional tort.” (Collin v. American Empire Insurance Co. (1994) 21 Cal.App.4th 787, 812.)Further, “[m]oney cannot be the subject of conversion unless a specific, identifiable sum isinvolved.” (5 Witkin Sum. Cal. Law Torts § 815.) While it is true that California law recognizes “intangible” items as possibly subject toconversion, “the law has been careful to distinguish proper claims for the conversion of moneyfrom other types of monetary claims more appropriately dealt with under other theories ofrecovery. Thus, although our law has dispensed with the old requirement that ‘each coin or billbe earmarked,’ it remains the case that ‘money cannot be the subject of an action for conversionunless a specific sum capable of identification is involved.’ [Citations.]” (Voris v. Lampert(2019) 7 Cal.5th 1141, 1151.) Further, “[e]qually important, the “specific thing” at issue[citation] must be a thing to which the plaintiff has a right of ownership or possession—a rightwith which the defendant has interfered by virtue of its own disposition of the property. Thismeans that ‘[a] cause of action for conversion of money can be stated only where a defendantinterferes with the plaintiff's possessory interest in a specific, identifiable sum’; ‘the simplefailure to pay money owed does not constitute conversion.’ [Citation.]” (Id.) Plaintiffs argue their allegations that defendants knowingly converted the property ofplaintiffs by selling brand products is sufficient to sustain a cause of action for conversionbecause even though they are “intangible”, they are sufficiently defined and certain. The “personal property” element for this cause of action is not sufficiently pled. Thetheory behind this cause of action is that defendants converted “property” belonging to plaintiffsby selling their products. There is no monetary figure attached to this property or even adefinitive categorization of this property other than selling products under the brand label.Defendants’ demurrer to this cause of action is sustained with leave to amend. Seventh cause of action- trade libel The essential elements for trade libel include: Page 15 of 18 1. That defendants made a statement that [would be clearly or necessarilyunderstood to have] disparaged the quality of plaintiffs’ [product/service]; 2. That the statement was made to a person other than plaintiffs; 3. That the statement was untrue; 4. That defendants [knew that the statement was untrue/acted with reckless disregardof the truth or falsity of the statement]; 5. That defendants knew or should have recognized that someone else might act inreliance on the statement, causing plaintiffs’ financial loss; 6. That plaintiffs suffered direct financial harm because someone else acted inreliance on the statement; and 7. That defendants’ conduct was a substantial factor in causing plaintiffs’ harm. (1CACI 1731.) Defendants assert there are no allegations in the FAC to support a trade libel claimbecause defendants are not alleged to have disparaged plaintiffs’ brand or other products.Instead, plaintiffs have alleged defendants injured their reputation, which is distinct from tradelibel. Turning to the FAC, plaintiffs assert defendants injured their reputation and ability toconduct business by representing themselves as acting on behalf of, or with the authority of, theplaintiffs and conducting transactions with vendors and suppliers for the brand products, with theknowledge they [defendants] did not have the authority to do so. (FAC at ¶ 82.) The FAC furtheralleges that defendants “have insulted Plaintiffs’ vendors and suppliers and failed to pay vendorsand suppliers for debts Defendants have incurred while representing themselves as acting onbehalf of, or with the authority of, Plaintiffs for Brand products.” (FAC at ¶ 83.) “Trade libel is the publication of matter disparaging the quality of another’s property,which the publisher should recognize is likely to cause pecuniary loss to the owner. [Citation.]The tort encompasses ‘all false statements concerning the quality of services or product of abusiness which are intended to cause that business financial harm and in fact do so.’ [Citation.]To constitute trade libel, a statement must be false.” (City of Costa Mesa v. D’AlessioInvestments, LLC (2013) 214 Cal.App.4th 358, 376.) “Trade libel is generally defined as ‘anintentional disparagement of the quality of property, which results in pecuniary damage toplaintiff.’ [Citation.] Despite its name, ‘trade libel is not true libel and is not actionable asdefamation.’ [Citation.]” (Muddy Waters, LLC v. Superior Court (2021) 62 Cal.App.5th 905, Page 16 of 18925.) “At a minimum, a trade libel cause of action requires: ‘(1) a publication; (2) which inducesothers not to deal with plaintiff; and (3) special damages.’ [Citation.]”. (Id.) The FAC does not contain adequate allegations that defendants made false statementsregarding the quality of the products. Rather, the allegations are that defendants’ actions loweredthe reputation of the company by failing to pay vendors and suppliers. These actions are notstatements which were published. Paragraph 86 of the FAC states, in very general terms, that“Defendants knowingly made false representations to Plaintiffs’ vendors and suppliers regardingmaterial facts involving the Brands’ property, causing property damage to Plaintiffs’ vendorsand suppliers.” (FAC at ¶ 86.) (Emphasis added.) Even this statement is not on point with therequired elements of this cause of action. The FAC does not allege disparaging statements weremade regarding the quality of the Brand’s property and alleges the damage sustained was to thevendors and suppliers. (See FAC at ¶¶ 83-85.) The demurrer to this cause of action is sustained with leave to amend. Eighth cause of action – constructive trust In support of this cause of action, plaintiffs assert defendants have taken hundreds ofthousands of dollars from them and have diverted existing clients and suppliers and will continueto profit from those clients without plaintiffs’ participation because of their scheme. Further, theyallege the property defendants will acquire is because of their tortious conduct. Plaintiffs assert“[p]rinciples of equity and good conscience mandate this Court to prevent Defendants fromenjoying and reaping windfalls worth millions of dollars ….” (FAC at ¶ 90.) "A constructive trust is an involuntary equitable trust created by operation of law as aremedy to compel the transfer of property from the person wrongfully holding it to the rightfulowner. The essence of the theory of constructive trust is to prevent unjust enrichment and toprevent a person from taking advantage of his or her own wrongdoing.” (Burlesci v. Petersen(1998) 68 Cal.App.4th 1062, 1069.) “‘[A]constructive trust may only be imposed where thefollowing three conditions are satisfied: (1) the existence of a res (property or some interest inproperty); (2) the right of a complaining party to that res; and (3) some wrongful acquisition ordetention of the res by another party who is not entitled to it.’ [Citation.] A constructivetrust may be imposed in practically any case where there is a wrongful acquisition or detention ofproperty to which another is entitled.’ [Citation.]” (Id.). It appears there is a split in authority as to whether a constructive trust is a stand-alonecause of action, as is argued by plaintiffs, or is only a remedy, as asserted by defendants. InGlue-Fold, Inc. v. Slautterback Corp. (2001) 82 Cal.App.4th 1018, the court held that aconstructive trust “is not an independent cause of action but merely a type of remedy for some Page 17 of 18categories of underlying wrong.” Further cases have affirmed this position. “A constructivetrust is an equitable remedy to compel the transfer of property by one who is not justly entitled toit to one who is.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1332.) “A constructive trust, however, is an equitable remedy, not a substantiveclaim for relief.” (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP(2007) 150 Cal.App.4th 384, 398.) “A constructive trust is not a substantive device but merely aremedy, and an action seeking to establish a constructive trust is subject to the limitation periodof the underlying substantive right.” (Embarcadero Mun. Improvement Dist. v. County of SantaBarbara (2001) 88 Cal.App.4th 781, 793.) However, in Higgins v. Higgins (2017) Cal.App.5th648, in footnote, the court disagreed with Glue-Fold and stated Glue-Fold’s holding isinconsistent with the weight of authority. In Meister v. Mensinger (2014) 230 Cal.App.4th 381,400, the Sixth District refers to a constructive trust as a “remedy tied to the concept of unjustenrichment.” Finally, “[t]he issue of whether to impose a constructive trust is an equitable issuefor the court.” (American Master Lease LLC v. Idanta Partners, Ltd (2014) 225 Cal.App.4th1451, 1485.) Considering these holdings, the court finds it appropriate to permit plaintiffs to amendtheir first amended complaint and reframe this cause of action as a remedy, rather than astandalone cause of action. To that extent, the demurrer to this cause of action is sustained withleave to amend. Tenth cause of action – unfair competition Defendants take issue with this cause of action because it seeks improper relief. Plaintiffs point out, in their opposition, that their FAC does in fact request injunctiverelief, on page 18, in connection with the prayer for relief, thus, the demurrer to this cause ofaction is overruled. Plaintiffs have 20 days from the date the order is signed to file a second amendedcomplaint in accordance with the court’s order.Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed. Page 18 of 18

Ruling

LONNIE MARIE ORTIZ VS ARQUIMIDES MORALES

Aug 08, 2024 |Renee C. Reyna |23STCV05347

Case Number: 23STCV05347 Hearing Date: August 8, 2024 Dept: 29 Ortiz v. Morales 23STCV05347 Defendants Motion for Terminating Sanctions Tentative The motion is denied. Background On March 10, 2023, Lonnie Marie Ortiz (Plaintiff) filed a complaint against Arquimides Morales (Defendant) and Does 1 through 10 for motor vehicle negligence and general negligence arising out of an accident occurring on March 11, 2021. Defendant filed an answer on August 7, 2023. On January 31, 2024, the Court granted Defendants motions to compel and ordered Plaintiff to respond to Defendants form interrogatories, special interrogatories, and requests for production within 20 days. Notice of ruling was duly served on Plaintiffs counsel. On February 16, 2024, Plaintiffs counsel was relieved as counsel. On March 5, 2024, Defendant mailed a letter directly to Plaintiff and attached the notice of ruling. (Harn Decl., Exh. B.) Plaintiff did not provide the ordered responses. (Id., ¶ 8.) On June 4, 2024, Defendant filed this motion for terminating sanctions. No opposition has been filed. The hearing was initially scheduled for July 17 and was continued by the Court to August 8. Legal Standard When a plaintiff fails to obey an order compelling answers to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2030.290, subd. (c).) When a plaintiff fails to obey an order compelling responses to requests for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7. (Code Civ. Proc., § 2031.300, subd. (c).) In Chapter 7 of the Civil Discovery Act, section 2023.030 provides for monetary, evidence, issue, and terminating sanctions for any misuse of the discovery process, [t]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title. A misuse of the discovery process is defined to include (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).) The Civil Discovery Act provides for an escalating and incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) Discovery sanctions should be appropriate to and commensurate with the misconduct, and they should not exceed that which is required to protect the interests of the party entitled to but denied discovery. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. (Ibid.; see also, e.g., Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) Terminating sanctions should be used sparingly. (Doppes, supra, 174 Cal.App.4th at p. 992; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) Although in extreme cases a court has the authority to order a terminating sanction as a first measure, a terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Lopez, supra, 246 Cal.App.4th at p. 604.) But where discovery violations are willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction. (Doppes, supra, 174 Cal.App.4th at p. 992.) Repeated and willful violations of discovery orders that prejudice the opposing party may warrant a terminating sanction. (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702; Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; Lang v. Hachman (2000) 77 Cal.App.4th 1225, 1246; Collisson X Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622.) The primary purpose of discovery sanctions is to obtain compliance with the Civil Discovery Act and the Courts orders. It is not to punish. (Newland v. Super. Ct. (1995) 40 Cal.App.4th 608, 613; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1194; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023), ¶¶ 8:2214-2220.) Discussion As a preliminary matter, this case was reassigned to Department 29 on June 24, 2024. Until further notice, all motions should identify Department 29 as the location in which the motion will be heard. Defendant seeks terminating sanctions for Plaintiffs failure to comply with this Courts Order and for failure to comply with the requirements of the Civil Discovery Act. This is a serious misuse of the discovery response, for which serious sanctions are warranted. For terminating sanctions, however, a party must present evidence of repeated and willful misuse of the discovery process, as well as evidence that less severe sanctions have not (or likely will not) lead to compliance with the discovery rules. Defendant has not, on this record at this time, made such a showing. There has not been a showing of a history or pattern of willful abuse or repeated violations that have not been (or cannot be) cured by lesser sanctions. Moreover, a discovery sanction should not create a windfall for a party or place a party in a better position than it would have been if the opposing party had simply complied with its obligations under the Courts orders and the Civil Discovery Act. (Rutledge, supra, 238 Cal.App.4th at p. 1194.) Here, at this time, a terminating sanction would create such a windfall for Defendant as no lesser sanctions have been pursued. Defendant does not request lesser sanctions in this motion. Accordingly, the Defendants motion for terminating sanctions is DENIED. The denial as to terminating sanctions is without prejudice to Defendant seeking other sanctions or seeking a terminating sanction at a later stage of the proceedings, based on a further showing of misuse of the discovery process. Conclusion The Court DENIES Defendants motion for terminating sanctions. Moving Party is ordered to give notice.

Ruling

MARGARITA MARQUEZ, ET AL. VS JASON ADAM OVERLANDER

Aug 06, 2024 |Renee C. Reyna |21STCV47187

Case Number: 21STCV47187 Hearing Date: August 6, 2024 Dept: 29 Motion to Continue Trial filed by Defendant Jason Adam Oberlander. Tentative The motion is denied as moot. The motion seeks to continue trial to September 12, 2024. While this motion was pending, the Court continued the trial to November 6, 2024.

Ruling

SHEILA KATERELOS, ET AL. VS MAGIC MOUNTAIN, LLC, A CALIFORNIA ENTITY, ET AL.

Aug 08, 2024 |21STCV41513

Case Number: 21STCV41513 Hearing Date: August 8, 2024 Dept: F43 Dept. F43 Date: 8-8-24 Case #21STCV41513, Sheila Katerelos, et al. vs. Magic Mountain, LLC, et al. Trial Date: 2-18-25 SUMMARY JUDGMENT MOVING PARTY: Defendants S&S Worldwide, Inc.; S&S Power, Inc.; and S&S Arrow LLC RESPONDING PARTY: Plaintiffs Sheila Katerelos and Ari Katerelos RELIEF REQUESTED Motion for Summary Judgment, or in the alternative, Summary Adjudication RULING: Motion is granted. SUMMARY OF ACTION Plaintiffs Sheila and Ari Katerelos (Plaintiffs) allege that Sheila Katerelos suffered a subdural hematoma or traumatic brain injury on the X2 roller coaster at Defendant Magic Mountain, LLCs Six Flags Magic Mountain theme park on February 16, 2020. Plaintiffs also filed suit against Defendants S&S Worldwide, S&S Power, and S&S Arrow (S&S Defendants), alleging that these entities designed the X2 roller coaster ride trains. Plaintiffs allege that Sheila was injured when her head hit the headrest of her seat on the X2 ride train. Plaintiffs have alleged four causes of action for (1) general negligence; (2) strict products liability; (3) negligent product liability; and (4) loss of consortium (for Plaintiff Ari Katerelos). The S&S Defendants (Defendants) filed this motion for summary judgment on May 15, 2024. Defendants argue that there is no evidence to support Plaintiffs causes of action against them, particularly as to the element of causation. Plaintiffs oppose Defendants motion. Defendants Request for Judicial Notice: Defendants have requested that the Court take judicial notice of documents filed in this case, a bankruptcy court order from Utah, and an ASTM document. The Court takes judicial notice of these documents. Plaintiffs Evidentiary Objections: Sustained: 1, 5, 19, Overruled: 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 Defendants Evidentiary Objections: Sustained: 1, 2, 3, 4 Overruled: 5 ANALYSIS The purpose of a motion for summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The pleadings frame the issues for motions, since it is those allegations to which the motion must respond. (Citation.) (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established. (CCP § 437c(p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) Issue 1 Defendants argue that Plaintiffs First, Second, Third and Fourth Causes of Action for Negligence, Strict Product Liability, Negligent Product Liability, and Loss of Consortium against the S&S Defendants are barred as a matter of law because there is no evidence to support S&S Defendants successor liability to Arrow Dynamics, LLC, the manufacturer of the X, now the X2. Defendants spend a large portion of their motion arguing that they are not responsible for the debts and liabilities of Arrow Dynamics, the builder of X, now X2, under successor liability exceptions. Plaintiffs argue in their opposition that Defendants arguments on this matter are irrelevant because the design of the X rollercoaster is not at issue in this case. The X2 rollercoaster is the one that Plaintiff Sheila Katerelos was allegedly injured on. Plaintiffs argue that the restraint system on the X2 is what this case has always been about. Defendants argue in their reply that the corporate successorship liability is relevant because they are not liable for the entire X2. Defendants argue that their alleged liability only extends to the coaster trains it redesigned and manufactured for the X2 roller coaster, but does not include the structure, track, support columns, braking system, etc. Defendants also argue that the configuration of the X2 trains, the seats, restraints, etc., did not change from the X, nor did the track profile or ride force/dynamics. They argue that while they were responsible for the design, engineering, and manufacturing quality of the X2 trains, they had no duty to repair any defects in the coaster after the two-year warranty period. (Archer Decl., ¶ 8, Ex. B, ¶ 7.3.) Defendants claim that at the time of Plaintiffs alleged injury, the warranty period had long since passed. However, Defendants then argue that their liability, if any, is limited to the coaster trains. Defendants arguments on this point appear to be contradictory. They say they are not liable, but if they are liable, it is only for the coaster trains, but Plaintiffs complaint alleges that her injuries were caused by alleged design defects in the coaster train and its restraint system. Therefore, Plaintiffs are correct that it is irrelevant that Defendants were not the designers of the X rollercoaster because Plaintiff Sheila Katerelos was allegedly injured on the X2 rollercoaster. Because this issue appears to be irrelevant and Defendants arguments for it are contradictory, Defendants motion will not be granted on this issue. Issue 2 Next, Defendants argue that Plaintiffs First, Third, and Fourth Causes of Action for Negligence, Negligent Product Liability, and Loss of Consortium against the S&S Defendants, are barred, as a matter of law, because there is no evidence to support Plaintiffs' allegations that the S&S Defendants conduct, even if it breached any alleged duty of care, was a substantial factor in causing the injuries alleged by Plaintiffs, including any traumatic brain injury alleged by Plaintiff, Sheila Katerelos. The basic elements of a negligence action are: (1) the defendant had a legal duty to conform to a standard of conduct to protect the plaintiff, (2) the defendant failed to meet this standard of conduct, (3) the defendants failure was the proximate or legal cause of the resulting injury, and (4) the plaintiff was damaged. (Ladd v. County of San Mateo (1996) 12 Cal.App.4th 913, 914.) In order to succeed on a claim for negligence, a plaintiff must establish causation. Defendants argue that Plaintiffs have insufficient evidence to establish that the X2 rollercoaster caused her injuries. Plaintiffs argue in their opposition that a triable issue of material fact exists regarding causation because Defendants have not met their burden of production and persuasion. Plaintiffs argue that Defendants have failed to provide any evidence of which train Sheila Katerelos was riding, the condition of her headrest, the durometer reading for that headrest, or the last time the headrest was replaced or inspected. Plaintiffs also argue that Defendants expert, Cargill, did not perform any testing as it relates to a riders head striking the headrest while riding X2. (Lanzetta Decl., Ex. N, Cargill Depo., 87:4-18.) Plaintiffs argue that because this testing was not done, the Court cannot find as a matter of law that Plaintiffs injuries were not caused by striking her head on the headrest. Plaintiffs also cite a series of cases where the plaintiffs cannot remember how they were injured, and which Plaintiffs claim demonstrate that circ*mstantial evidence of causation may be sufficient to overcome a motion for summary judgment. Defendants argue in their reply that they met their burden on summary judgment and shifted the burden of proof to Plaintiffs. Defendants argue that Plaintiffs expert declaration from Dr. Ziejewski does not prove that Plaintiffs injuries were caused by the X2. Dr. Ziejewski did not test the X2 himself and instead relied on the documents of others. Defendants also argue that the case he relies on to support his argument that biomechanical engineers are qualified to render an opinion as to the forces generated in particular accidents and the types of injuries those forces may generate is not binding on this Court because it is a decision from the Sixth Circuit. He also relied on Cargills testing, which showed that the X2 did not produce sufficient ride forces to cause a traumatic brain injury. Defendants argue that Dr. Ziejewskis declaration is purely speculative, and that he missed the detail in Plaintiffs deposition where she said that she hit her head at the end of the ride, not during the ride. (Ex. G, Sheila Katerelos Depo. Vol. II, pp. 193:8-13, 196:2-10.) As for Plaintiffs arguments regarding circ*mstantial evidence, Defendants cite the following: The doctrine of res ipsa loquitor is applicable where the accident is of such a nature that it can be said, in light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible. (Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163-1164.) This presumption arises when the evidence satisfies the following: (1) the accident must be of a kind which ordinarily does not occur in the absence of someones negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action of contribution on the part of the plaintiff. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.) Defendants argue that the X2 rollercoaster was not in their exclusive control at the time of the Plaintiffs injuries. Instead, it was under the control of the Magic Mountain Defendants, and the warranty period on the rollercoaster had long since passed. Because it was not in their control, there cannot be an inference that they were responsible for Plaintiffs injuries. Defendants have met their burden in demonstrating that Plaintiffs have not established causation. In Plaintiffs opposition, they did not present sufficient evidence to demonstrate causation. Because of the lack of evidence to support Plaintiffs position, there are no triable issues of material fact. Defendants motion for summary judgment is granted on this issue. Issue 3 Defendants also argue that Plaintiffs Second Cause of Action for Strict Product Liability and Third Cause of Action for Negligent Product Liability based on a theory of design defect against the S&S Defendants are barred, as a matter of law, because there is no evidence of a design or manufacturing defect, and Plaintiffs cannot prove the essential element of causation. Whether product liability is based on strict liability or negligence, a plaintiff bears the burden of showing that a defendants defective product caused an injury. The plaintiffs inability to show a manufacturing defect is fatal to his claims. (Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 773.) Plaintiffs argue that summary judgment must be denied on this issue because the X2 headrest was defective under the consumer expectations test. The California Supreme Court held the consumer expectations test is reserved for cases in which the everyday experience of the products users permits a conclusion that the products design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design. It follows that where the minimum safety of a product is within the common knowledge of lay jurors, expert witnesses may not be used to demonstrate what an ordinary consumer would or should expect. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567.) While Plaintiffs cite the ordinary consumer test, Plaintiffs do not point to any evidence that supports their argument. Instead, they just draw the conclusion that ordinary consumers know how headrests should work without providing any evidence that the headrest was what caused Plaintiffs injuries. Defendants, on the other hand, have provided evidence that the rollercoaster was operating as it should and that there are no defects with the design. Furthermore, as previously noted, Plaintiffs have failed to establish causation. Therefore, there are no triable issues of material for the product liability causes of action. Defendants motion for summary judgment is granted for this issue. Issue 4 Finally, Defendants argue that Plaintiff Ari Katerelos Fourth Cause of Action for Loss of Consortium is barred, as a matter of law, because the claim is derivative of Plaintiff, Sheila Katerelos claims for negligence and strict product liability, and Plaintiffs have failed to state a cause of action for negligence, negligent product liability and strict product liability against the S&S Defendants. Because the Court granted summary judgment on the negligence causes of action, summary judgment is also granted for this cause of action because it is derivative of the negligence causes of action. CONCLUSION The motion for summary judgment is granted for Issues 2-4 and all four of Plaintiffs causes of action. Defendants are ordered to submit a proposed judgment. Moving party to give notice.

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