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27-CV-20-8775 Filed in District Court State of Minnesota 3/9/2023 2:06 PMSTATE OF MINNESOTA DISTRICT COURTCOUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT CASE TYPE: Medical Malpractice/Products LiabilityDiane S. Preston, Court File No.: 27-CV-20-8775 Plaintiff, Judge: Karen A. Janischv.Julie L. Sumstad and Park Nicollet Clinic d/b/a DECLARATION OF STEPHEN D.Park Nicollet Clinic – Plymouth, AstraZeneca RABERAB, AstraZeneca Pharmaceuticals LP, Bristol-Myers Squibb Co. Defendants,DISTRICT OF COLUMBIA ) ss. I, Stephen D. Raber, state that, if called to testify herein, the following will be mytestimony: 1. I am an attorney duly admitted pro hac vice to practice before this Court in theState of Minnesota in this above-captioned matter. 2. I am one of the attorneys representing Defendants AstraZeneca AB, AstraZenecaPharmaceuticals LP, and Bristol-Myers Squibb Co. in the above-captioned matter. 3. The following exhibits attached hereto are true and correct copies of the followingdocuments:Exhibit 1 – Deposition of Lemuel A. Moyé, M.D., Ph.D.Exhibit 2 – FDA, Questions and Answers on FDA’s Adverse Event Reporting System (FAERS)Exhibit 3 – Expert Report from Sebastian Faro, M.D., Ph.D.Exhibit 4 – Expert Report from Randall L. Tackett, Ph.D.Exhibit 5 – Expert Report from Zachary T. Bloomgarden, M.D. 27-CV-20-8775 Filed in District Court State of Minnesota 3/9/2023 2:06 PMExhibit 6 – Expert Report from Philip J. Norris, M.D.Exhibit 7 – Expert Report from Randall L. Tackett, Ph.D., re: Plaintiff John Helldorfer in In rePlavix Prod. & Mktg. CasesExhibit 8 – Dittrich-Bigley v. Gen-Probe, Inc., 2013 WL 3974107 (D. Minn. July 31, 2013) I declare under the penalty of perjury and under the law of Minnesota that everything Ihave stated in this document is true and correct. Signed on March 9, 2023, in the District of Columbia. /s/ Stephen D. Raber Stephen D. Raber (admitted pro hac vice) 2 27-CV-20-8775 Filed in District Court State of Minnesota 3/9/2023 2:06 PM CERTIFICATE OF SERVICE I hereby certify that on March 9, 2023, the foregoing document was served upon all counselof record via the Court’s electronic filing system. /s/ Stephen D. Raber 3 27-CV-20-8775 Filed in District Court State of Minnesota 3/9/2023 2:06 PMEXHIBIT 1 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 STATE OF MINNESOTA COUNTY OF HENNEPIN DISTRICT COURT, FOURTH JUDICIAL DISTRICT 2 3 DIANE S. PRESTON, ) No. 27-cv-20-8775 ) 4 Plaintiff, ) ) 5 v. ) ) 6 JULIE L. SUMSTAD, PARK NICOLLET ) CLINIC d/b/a PARK NICOLLET ) 7 CLINIC - PLYMOUTH, ASTRAZENECA ) AB, ASTRAZENECA ) 8 PHARMACEUTICALS, LP, ) BRISTOL-MYERS CO., ) 9 ) Defendants. )10 _______________________________ )11 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE12 IN RE: FARXIGA ) CIVIL ACTION NO.13 FOURNIER'S GANGRENE ) NO. N19C-09-001FAR PRODUCTS LIABILITY )14 LITIGATION ) )15 THIS DOCUMENT RELATES ) TO ALL CASES )16 _______________________________ )17 TUESDAY, DECEMBER 20, 202218 Videotaped deposition of LEMUEL A. MOYE, M.D.,19 Ph.D., taken pursuant to notice was conducted at20 1100 South Price Road, Chandler, Arizona, commencing at21 9:42 a.m., on the above date, before Kate E. Roundy,22 Registered Professional Reporter.2324 GOLKOW LITIGATION SERVICES 877.370.3377 ph | 917.591.5672 fax25 deps@golkow.comGolkow Litigation Services Page 1 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 I N D E X 2 WITNESS PAGE 3 LEMUEL A. MOYE, M.D., Ph.D. 4 DIRECT EXAMINATION BY MR. ADAMS 7 5 CROSS-EXAMINATION BY MR. RABER 61 6 REDIRECT EXAMINATION BY MR. ADAMS 188 7 RECROSS-EXAMINATION BY MR. RABER 189 8 910111213141516171819202122232425Golkow Litigation Services Page 2 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 E X H I B I T S 2 NO. DESCRIPTION PAGE 3 Exhibit 1 FDA prescribing information for 38 FARXIGA 4 Exhibit 2 Article entitled: Dapagliflozin and 40 5 Cardiovascular Outcomes in Type 2 Diabetes 6 Exhibit 3 Dr. Moye's Citizen Petition dated 59 7 11/1/2022 8 Exhibit 4 Declaration of Lemuel A. Moye, M.D., 62 Ph.D. 9 Exhibit 5 Publication entitled: SGLT2 7510 Inhibitors and the Risk of Hospitalization for Fournier's11 Gangrene: A Nested Case-Control Study12 Exhibit 6 Publication called: Contemporary 7713 Trends in the Inpatient Management of Fournier's Gangrene: Predictors14 of Length of Stay and Mortality Based on Population-based Study by15 James Furr and others16 Exhibit 7 Reference Manual on Scientific 90 Evidence, Third Edition17 Exhibit 8 Excerpts from Dr. Moye's deposition 9518 transcript taken on February 2, 201819 Exhibit 9 Publication entitled: Fournier's 123 gangrene and sodium-glucose20 co-transporter-2 inhibitors: A meta-analysis of randomized21 controlled trials22 Exhibit 10 Case information regarding 136 Daniels-Feasel vs. Forest23 Pharmaceuticals2425Golkow Litigation Services Page 3 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 E X H I B I T S 2 NO. DESCRIPTION PAGE 3 Exhibit 11 The New England Journal of Medicine 148 publication: Dapagliflozin in 4 Patients with Heart Failure and Reduced Ejection Fraction 5 Exhibit 12 Publication entitled: Genital and 163 6 urinary tract infections in diabetes: Impact of 7 pharmacologically-induced glucosuria 8 Exhibit 13 Publication entitled: Adherence of 164 Type 1-Fimbriated Escherichia coli 9 to Uroepithelial Cells10 Exhibit 14 Publication entitled: Fournier's 182 Gangrene and Diabetic Ketoacidosis11 Associated with Sodium Glucose Co-Transporter 2 (SGLT2) Inhibitors:12 Life-Threatening Complications13 Exhibit 15 Publication entitled: Fournier 189 Gangrene Associated with14 Sodium-Glucose Cotransporter-2 Inhibitors: A Pharmacovigilance15 Study with Data from the U.S. FDA Adverse Event Reporting System16171819202122232425Golkow Litigation Services Page 4 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 VIDEOTAPED DEPOSITION OF LEMUEL A. MOYE, M.D., 2 Ph.D., was taken on December 20, 2022, at 1100 South Price 3 Road, Chandler, Arizona, commencing at 9:42 a.m. before 4 KATE E. ROUNDY, RPR, a Certified Court Reporter, 5 Certificate No. 50582, for the State of Arizona. 6 7 COUNSEL APPEARING: 8 For Plaintiffs: 9 MATTHEWS & ASSOCIATES By: Conrad Adams, Esquire10 Mark Chavez, Esquire Caitlin Bayley, Esquire11 2905 Sackett Street Houston, Texas 7709812 713.522.5250 cadams@thematthewslawfirm.com1314 For the Defendants AstraZeneca AB, AstraZeneca Pharmaceuticals, LP:15 WILLIAMS & CONNOLLY, LLP16 By: Matthew Heins, Esquire Steven D. Raber, Esquire17 680 Main Avenue, SW Washington, D.C. 2002418 2.434.5073 mheins@wc.com1920 For the Defendants Julie L. Sumstad, Park Nicollet d/b/a Park Nicollet Clinic-Plymouth:21 LARSON KING, LLP22 By: Mark A. Solheim, Esquire 30 East Seventh Street, Suite 280023 Saint Paul, Minnesota 55101 651.312.650024 msolheim@larsonking.com (Appearing via videoconference)25Golkow Litigation Services Page 5 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 ALSO PRESENT: 2 Michael Noonan, Videographer 3 Eileen Brogan (Appearing via videoconference) 4 Dan Lawlor, Golkow Tech 5 (Appearing via videoconference) 6 7 8 910111213141516171819202122232425Golkow Litigation Services Page 6 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 THE VIDEOGRAPHER: We are on the record. My name 2 is Michael Noonan. I'm the certified legal video 3 specialist for Golkow Litigation Services. 4 Today's date is December 20th, 2022. The time on 5 the video monitor is 9:42 a.m., Mountain Standard Time. 6 This video deposition is being held in Chandler, 7 Arizona, in the matter of Diane S. Preston versus Julie L. 8 Sumstad, Park Nicollet, et al. 9 The deponent today is Dr. Lemuel Moye.10 The court reporter is Kate Roundy and will now11 swear in the witness.1213 LEMUEL A. MOYE, M.D., Ph.D.,14 called as a witness herein, having been first duly sworn15 by the Certified Court Reporter, was examined and16 testified as follows:17 THE WITNESS: I do.1819 DIRECT EXAMINATION20 BY MR. ADAMS:21 Q. Will you introduce yourself to the jury, please.22 A. Yes. I am Lemuel, L-e-m-u-e-l. I go by Lem.23 Last name Moye, M-o-y-e.24 Q. Have you been retained in this case by the25 plaintiff?Golkow Litigation Services Page 7 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 A. Yes, I have. 2 Q. Have you developed opinions in this case? 3 A. Yes, I have. 4 Q. Dr. Moye, will you please tell the ladies and 5 gentlemen of the jury how it is you're qualified to give 6 opinions in this case. 7 A. Yes. Well, I am a physician. I was in practice 8 for several years. I am an epidemiologist. I am a Ph.D. 9 biostatistician. I have been involved in the treatment of10 and research of patients with diabetes since the 1990s.11 I have also done national and international12 caliber research and have been in a special employ of the13 FDA.14 I spent 34 years as a faculty member at the15 University of Texas School of Public Health. And I16 retired in 2019 as a full-tenured professor.17 Q. Very interesting.18 Dr. Moye, I've never seen somebody with your19 training and background.20 Why the untraditional route of medicine,21 mathematics, and epidemiology?22 MR. RABER: Objection to form.23 THE WITNESS: To make a long story short, in24 college, I was applying to medical school and realized25 that this is now 1974, and I realized that I enjoyed myGolkow Litigation Services Page 8 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 math and probability more than I enjoyed premed. I 2 finished my applications in medical school. Got into 3 medical school, and the further I got into medical school, 4 the more I realized the need for applying probability and 5 mathematics in some way, shape, or form to the decisions 6 that we make in medicine and it was necessary, and I 7 didn't see very many people doing it. 8 So I decided after I got my license to practice 9 and did my internship, that I would get additional10 training in statistics and probability.11 So I went to Purdue and got a master's degree in12 mathematical statistics and then the University of Texas13 in Houston where I got a Ph.D. in biostatistics.14 BY MR. ADAMS:15 Q. What is epidemiology?16 A. Well, epidemiology is trying to deduce the true17 nature of an exposure disease relationship. There are18 many different exposures in the world. There are many19 different diseases in the world. And sometimes they20 appear to be related. Many times, they are not.21 If they are related and if, in fact, the exposure22 excites the production of the disease, then that is23 something that's public health actionable.24 So trying to separate the causation from merely25 association is an important tool -- is an important goalGolkow Litigation Services Page 9 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 of epidemiology, and epidemiology and biostatistics 2 essentially do the same thing, but they use different 3 tools. 4 Q. Do you currently maintain medical licenses? 5 A. Yes, I have a license. As we sit here this 6 morning, I have a license in Texas and an active license 7 here in Arizona. 8 Q. How long have you had each of those licenses? 9 A. The Texas license I've had since -- goodness, I10 think since I moved there, which was '83, and the Arizona11 license I've had since I moved here in 2019.12 Q. And you've maintained those licenses continuously13 since you first earned them through today?14 A. I was hospitalized two years ago, and in the15 process, my -- unbeknownst to me, my Arizona license16 lapsed. But it was an administrative matter. Once I felt17 better, I was able to reattain it with no real problem.18 So I have to say, it wasn't exactly continuous,19 but it's -- essentially, it was.20 Q. You mentioned you were a professor at the21 University of Texas Public Health for 34 years?22 A. Yes, sir.23 Q. Can you tell us a little bit about what classes24 you taught and what students you taught those classes --25 A. Sure.Golkow Litigation Services Page 10 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 Q. -- to? 2 A. So I've taught continuously and advised students 3 continuously since I became a faculty member there in '87. 4 And these courses were in epidemiology -- well, excuse me, 5 students were epidemiology students, biostatistics 6 students, and physicians, physicians who were in training 7 and physicians who were on the faculty. And I talked with 8 them about clinical -- clinical research in general, 9 clinical trial research in particular, and discussed10 the -- the tools that we use in trying to determine what11 the results of the experiments were.12 The more I talked to them, though, the more I13 realized that they really did not have a fundamental14 understanding of why these rules are in place. And so15 much of the time I would spend just trying to explain to16 them why rules are necessary, why you just can't do what17 you want to do in a research effort without much planning18 and still be able to have results that would be useful in19 the population at large.20 Q. In your role as a professor for those 34 years,21 was Type 2 diabetes part of your teaching curriculum?22 A. Yes, it was.23 Q. Why is that?24 A. Well, first of all, diabetes is a disease that25 sadly is very prevalent. As we sit here this morning,Golkow Litigation Services Page 11 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 there are approximately 30 million people in this country 2 with diabetes. This is Type 2 diabetes. And I'll be 3 talking today not about diabetes insipidus and not about 4 diabetes Type 1, but diabetes Type 2, formally known as 5 maturity onset diabetes. 6 There are many millions of patients who have 7 this. Students have had this. Doctors have it. And so I 8 spend a good deal of time -- and, therefore, research in 9 diabetes is a very popular area.10 And so I spend a good deal of time talking about11 research in diabetes as well as research in cardiology.12 Q. During your professional career, have you ever13 published any studies or books in your field?14 A. Yes, I have.15 Q. Can you...16 A. I've published -- I've published, as we sit here17 today, I think 15. All but four of them are nonfiction.18 One of them was about my experience with the19 Katrina survivors. The others were books in mathematics20 and probability, so how does arithmetic work, maybe 13 or21 14 books in math and probability.22 Q. How about publications, studies?23 A. Oh, I -- I have -- in terms of peer-reviewed24 manuscripts, I have approximately 230.25 Q. In the course of your career, have you ever beenGolkow Litigation Services Page 12 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 hired by a pharmaceutical company to do work? 2 A. Yes, I mean, fairly continuously I've been hired 3 by pharmaceutical companies. 4 Q. What type of work do you perform for 5 pharmaceutical companies? 6 A. The design, execution, and analysis of clinical 7 trials. 8 Q. When you perform work for pharmaceutical 9 companies, do you bill them at an hourly rate, or is it a10 flat fee?11 How -- what's that arrangement?12 A. If I'm doing it as a consultant, it's an hourly13 rate. Sometimes the arrangement is that they pay the14 university and the university gives me an offset. But15 when I'm a consultant, it's an hourly rate.16 Q. Is the hourly rate that you charge pharmaceutical17 companies to do work similar to the rate that you're18 charging for your work in this case?19 A. It's identical.20 Q. What rate are you charging by the hour to do work21 in this case?22 A. $400 an hour for review of documents and write23 reports. And $500 an hour for testimony.24 Q. Earlier, I believe I heard you state that you've25 done work for the FDA; is that right?Golkow Litigation Services Page 13 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 A. That's correct, yes. 2 Q. Can you elaborate and tell us a little bit about 3 that? 4 A. Sure. I was asked to join the -- an advisory 5 panel for the FDA. The advisory panel provides advice and 6 guidance to the FDA for whether a particular drug should 7 be approved. 8 The FDA doesn't need this advice for every drug, 9 but there are circ*mstances where they appreciate advice.10 One of them is if there is a drug in a new class11 that hasn't -- for which the FDA doesn't have much12 experience. And sometimes there are controversies.13 And in those circ*mstances, historically, the FDA14 has invited its advisory panel to come in and in a public15 meeting that anybody can attend, listen to the arguments16 made by the drug company, arguments made by the FDA,17 arguments made by other interested parties, debate and18 discuss on the record and come to a conclusion.19 Q. How many clinical trials have you been involved20 in?21 A. I'm just going to hazard a guess here.22 Between 10 and 15.23 Q. Are you familiar, based on your training,24 education, and experience with FDA drug labeling?25 A. Well, I would say my most common familiarity isGolkow Litigation Services Page 14 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 as a clinician because when I was in practice, I relied on 2 the drug label to let me know when the drug is safe and 3 effective. 4 When I would consult with the drug companies, I 5 was occasionally asked to provide some expertise in 6 helping to draft a label. 7 And when I worked at the FDA, we were commonly 8 asked to sketch out what the indications and 9 contraindications for a drug would -- would be. And so10 that would go into the drug label, at least into the early11 draft of the drug label.12 Q. What role do you believe drug labeling plays in13 the practice of medicine in the United States?14 MR. RABER: Objection. Beyond the scope of his15 report. He was not designated as a regulatory or labeling16 expert and has no opinions in his report on that.17 BY MR. ADAMS:18 Q. You can answer.19 A. So ask me the question again, please.20 Q. What role do you believe drug labeling plays in21 the practice of medicine in the United States?22 A. Well, I can --23 MR. RABER: Objection. Beyond the scope.24 THE WITNESS: -- I can only answer as a25 clinician, and as a clinician, I relied on drug labels.Golkow Litigation Services Page 15 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 Drug labels are -- I mean, very detailed and have 2 grown over the years, but it is one of the quickest ways 3 to see what the FDA's point of view is on the safe and 4 effective use of a drug. 5 BY MR. ADAMS: 6 Q. In the course of your career, have you provided 7 care and treatment for individuals who have been diagnosed 8 with Type 2 diabetes? 9 A. Yes, I have.10 Q. Can you tell us approximately how many?11 A. Oh, gee, I don't know. I first began to see12 patients in -- with diabetes in medical school, and I saw13 50 to 75, let's say, patients. And since then, in14 practice, I saw patients with diabetes regularly. I could15 just say I would see them regularly, and I was in practice16 regularly until 1992.17 Q. Are you familiar with the term HbA1c?18 A. Yes, I am.19 Q. What is that?20 A. It's a relatively -- relative -- in diabetes21 time, it's relatively new. Historically, we followed a22 patient's progress looking at actual glucose measurements23 which were milligrams per deciliters. The advantage of24 that is that you see exactly what the patient's glucose25 level at the time is. It's real time.Golkow Litigation Services Page 16 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 The disadvantage is that it could have changed 2 dramatically in the past hour or -- or will change 3 dramatically in the past hour. 4 So HbA1c, it's a -- the technical term is 5 glycosylated hemoglobin. It's a relatively large word for 6 a small fact, which is what we do in medicine commonly, 7 and it provides essentially a three-month average of the 8 blood sugar level, the glucose level. 9 So a hemoglobin, a doctor looks at a10 glycosylated -- looks at a hemoglobin -- excuse me, an11 actual blood sugar. At the time, they know what the blood12 sugar is at that moment.13 If simultaneously get -- they get a glycosylated14 hemoglobin, then they have a sense of what the glucose15 levels have been over the past three months.16 But the units are very difficult.17 Blood sugar levels for normal people usually run18 between -- I'll just say between 70 and 120. If you're19 older, now, they can be a little higher, up to 180.20 Glycosylated hemoglobins are in very different21 units there, 5, 6, 7, 8, 9, up to maybe 15 or 17.22 Q. Thank you.23 What have you prescribed to help manage the24 condition of Type 2 diabetes?25 A. Well, two things.Golkow Litigation Services Page 17 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 One is insulin. Insulin is absolutely required 2 for patients who are -- have an acute diabetic emergency. 3 If their blood sugar is on the order of 450, 500, 600, 4 750, well, that's an acute emergency. It leads to 5 dehydration. It leads to coma, and it has to be treated 6 at once. 7 And, typically -- when I was in training, we 8 used -- and in practice, we used insulin. I think now 9 they use glucagon for that, but it is used to treat --10 bring blood sugars down aggressively.11 Once blood sugars come down aggressively, then12 insulin can be a problem for some people. And I have13 chosen to take the tact of what I believe is the most14 effective treatment which is diet and exercise.15 Q. I'm going to switch gears on you just a little16 bit here.17 Dr. Moye, what were you asked to do in this case?18 A. I was asked to render an opinion about the -- the19 effects of FARXIGA with a primary emphasis on the20 relationship between FARXIGA and on Fournier's gangrene21 and -- but you can't really do that effectively unless you22 look at efficacy. So I looked at the effectiveness of23 this drug in treating diabetes.24 Q. The opinions you're giving today, are they all to25 a reasonable degree of medical certainty and scientificGolkow Litigation Services Page 18 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 certainty? 2 A. They are. 3 Q. What work did you undertake and perform to form 4 your opinions today? 5 A. Well -- well, I -- I went first to review the 6 literature and the label. And the more -- and by 7 literature, I mean publications in medical journals, 8 manuscripts. And having -- after having done that, I went 9 back to look at other documents, particularly documents10 that were produced to the FDA and produced by the FDA in11 coming to their opinion about whether this drug was12 approvable.13 Q. Are you prepared today to share the opinions14 you've developed and the reasoning behind your opinions?15 A. I am.16 Q. Dr. Moye, what is Type 2 diabetes?17 A. It's a shorthand term for -- the official term is18 diabetes mellitus. It's Latin. It means sweet urine.19 Type 2 diabetes is a disease of carbohydrate20 metabolism that is associated with insulin resistance.21 Q. How would you explain that to the jury in more22 layman everyday terms?23 A. Sure.24 Well, we need -- every day we need to manage25 glucose. Glucose is an essential carbohydrate. We needGolkow Litigation Services Page 19 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 it primarily for energy production. And we have a series 2 of mechanisms by which energy -- by which glucose is 3 converted to energy. 4 Those mechanisms can be distorted, and they can 5 be distorted by the inability to effectively get glucose 6 where it needs to go. 7 So what happens is that glucose has to be 8 imported, if you will, into a cell. And so we -- when we 9 eat, we eat carbohydrates, it enters our bloodstream, and10 it's ready to be delivered to cells. But in order for it11 to be effectively delivered to the cell -- if you think12 about the cell as a home, if you will -- then the door has13 to open for glucose to enter.14 Insulin is what opens the door.15 In patients with Type 2 diabetes, insulin no16 longer is able to effectively open the door. And so you17 have this paradoxical circ*mstance where without having18 the door open, blood sugar -- sorry -- sugar in the cell19 decreases, and that puts the cell under great stress.20 But in addition, outside the home, glucose levels21 are increasing because they can't get delivered. And that22 produces problems with kidneys. It produces dehydration.23 It produces acid base imbalance, and, ultimately, it can24 kill a patient.25 Q. I heard you just say blood sugar.Golkow Litigation Services Page 20 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 Is that also -- blood glucose and blood sugar, 2 are those -- how do those words work together? 3 A. I apologize. Yes, they're synonymous. I'm using 4 them synonymously. 5 Q. Is controlling blood sugar levels all you have to 6 do, or is there more to the story with Type 2 diabetes? 7 A. Well, we used to think it was all you had to do. 8 You know, when Banting invested their work in the 1920s 9 and they demonstrated in dogs that giving insulin reduced10 blood sugar in patients who had diabetes, we thought that11 was the end game.12 But it turns out that diabetes is much more13 complicated than that. In fact, one can reduce blood14 sugar and still have the risk be -- have the patient be at15 risk of terrible consequences of diabetes.16 The major consequences are heart attacks, strokes17 called diabetic strokes. Patients can have kidney18 disease. And one of the leading causes of kidney -- of19 dialysis, now, where the kidney's function is so low and20 so weak that they have to go on an artificial kidney,21 essentially, is diabetes.22 One of the leading cause -- well, the leading23 cause of nontraumatic amputations is diabetes.24 And a major cause of blindness is diabetes. And25 at first blush, these have nothing to do with blood sugar.Golkow Litigation Services Page 21 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 But the reality is that even controlling blood sugar in 2 patients with Type 2 diabetes, these are important 3 consequences that patients are desperate to avoid. 4 Q. What's your approach to treating patients with 5 high blood sugar levels? 6 A. It depends on how high the blood sugar level is. 7 As we discussed earlier, if the blood sugar level is 8 dangerously high, then I'm compelled to use insulin to get 9 the blood sugar down.10 But once we've gotten the blood sugar down, then11 I begin to talk specifically to the patient about the12 necessary modifications that they have to make essentially13 in order to save their lives.14 So that means we spend a good deal of time15 talking about diet and exercise.16 Q. What about other drug options that are available17 to treat Type 2 diabetes?18 A. I have historically stayed away from them for a19 couple of reasons.20 Number one, I've had very good success with diet21 and exercise. Literature shows that the diet and exercise22 is the only therapy which reduces the incidence of23 diabetes. It doesn't make diabetes a little bit better.24 It reduces the incidence of diabetes.25 Specifically, patients who would have hadGolkow Litigation Services Page 22 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 diabetes don't have diabetes anymore. And patients who 2 have had diabetes no longer have diabetes anymore. 3 That's the principal reason. 4 And it's relatively inexpensive but does require 5 consistent lifestyle change. 6 Medications don't offer those advantages, and 7 they offer the -- and they hold out the unfortunate side 8 effects that occur from these medicines. 9 Q. Why would you use a medicine that may produce a10 serious adverse event?11 A. So I -- so I -- I assume we're not really talking12 about diabetes now because I don't do that. But if you're13 asking me in general as a physician?14 Q. Yes.15 A. Well, that's a question physicians -- we all have16 to ask ourselves. There comes a point when you have to17 ask, you know, are you willing to use a drug that has18 serious adverse effects?19 And the only justification I have is if a review20 of the drug demonstrates that the effectiveness of the21 drug is greater than the hazards introduced by the adverse22 event.23 So, therefore, the more dangerous the adverse24 event, the greater the efficacy has to be.25 And, conversely, the drug that's not veryGolkow Litigation Services Page 23 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 effective at all does not justify its use for -- because 2 of the occurrence of adverse events because the 3 benefit-to-risk ratio is... 4 Q. Okay. Dr. Moye, are you familiar with the drug 5 manufactured and distributed by AstraZeneca called 6 FARXIGA? 7 A. Yes, I am. 8 Q. Does FARXIGA go by any other names? 9 A. Well, the only other name I know is -- I will try10 to say this -- dapagliflozin, which is the generic name11 for it. And there may be names in other countries for it.12 I'm sure there are, but those are the names I know.13 Q. How did FARXIGA work?14 A. FARXIGA works by a very unique mechanism. It15 uses the -- it uses the kidney to manage blood sugar by16 ejecting glucose into the urine. So the notion is the17 kidney which filters all of the blood puts glucose into18 the urine. Now, that's what kidneys do. You don't need19 FARXIGA to do that. Kidneys do that.20 But then what kidneys do is they resorb the --21 they resorb what they put out in the urine. And the22 typical kidney will -- will absorb this glucose. It's23 called resorption, resorption from the urine, back across24 the nephron, back into the -- the blood into the serum.25 And FARXIGA blocks this movement of the glucoseGolkow Litigation Services Page 24 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 back into the bloodstream. 2 So the glucose stays in the urine and is excreted 3 in the urine. 4 Now, when you have a new compound, a new molecule 5 in the urine, it throws off the diffusion of substances 6 that are used to balance concentration. And one of this 7 those is saltwater. 8 And so with increased glucose in the urine, you 9 then now have water and salt moving into the urine so that10 when a person urinates, they're urinating glucose and11 they're also urinating water, which is -- which is12 saltwater, which is what a diuretic does.13 And by doing, that you wind up decreasing the14 intervascular volume. And by decreasing the intervascular15 volume, the amount of the work of the heart goes down by16 the Starling mechanism.17 So that's essentially how it works.18 Q. You mentioned glucose levels in urine.19 Is there a term in the medical field that20 describes that?21 A. Well, glucosuria is the observation that there is22 glucose in the urine.23 I mean, hopefully all of us around this table or24 in this room are not excreting glucose into our urine.25 Okay? That's -- you have -- you have a high glucose, aGolkow Litigation Services Page 25 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 glucose level of above 180 to have -- be -- to be 2 urinating glucose into your urine. So you want to try to 3 avoid that. 4 Q. Do you believe FARXIGA reduces blood sugar? 5 A. I think there's no question that FARXIGA reduces 6 blood sugar. I mean, that's been shown. And I have no 7 problem with the findings showing a reduction in blood 8 glucose, or glycosylated hemoglobin, however it's 9 reported.10 So I understand that FARXIGA reduces blood sugar.11 Many different medicines reduce blood sugar. And, of12 course, diet and exercise reduce blood sugar, so...13 Q. Would you agree that reducing blood sugar is a14 good thing?15 A. Again, if it's dangerously high, yes. Yes.16 It's a -- I guess the question would be --17 because I know -- if -- if the glucose is very high, I18 know what good is done when you bring it down. However,19 if glucose is moderately high, I don't know what good is20 done by simply bringing it down unless you do it by diet21 and exercise.22 I realize that it's popular to do. I realize23 many doctors do this, but when you put the question what24 difference are you making for a patient when you reduce25 their blood sugar from 2 -- well, let's say from 180 toGolkow Litigation Services Page 26 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 140, what difference are you making? If you're not doing 2 it by diet and exercise, it's very difficult to answer 3 that question. 4 Q. And when you say what difference are you making, 5 are you -- are you measuring the terrible concerns of 6 diabetes you were talking about earlier or something else? 7 A. No, I'm talking about what people -- what matters 8 to people. And what matters to patients is not whether 9 their blood sugar is 147 or 141. What matters to patients10 is whether they're going to have a heart attack.11 MR. RABER: Objection. Move to strike.12 THE WITNESS: Whether -- I'm sorry.13 BY MR. ADAMS:14 Q. Please go ahead.15 MR. ADAMS: Steve, if you do a lot of -- I'll16 work with you on the objections, but try not to interrupt17 the witness, please.18 BY MR. RABER:19 Q. In what way --20 MR. RABER: I thought he was done, and I thought21 that this is a trial preservation deposition, and I'm22 going to object to move to strike because it calls for23 speculation about what plaintiffs are worried about.24 You can go ahead.25 MR. ADAMS: Thank you.Golkow Litigation Services Page 27 27-CV-20-8775 Filed in District Court Lemuel A. Moyé, MD., Ph.D. State of Minnesota 3/9/2023 2:06 PM 1 THE WITNESS: Okay. So -- sorry. 2 MR. CHAVEZ: We might have an issue as well with 3 the -- can we hear individuals who might be trying to 4 object on the Zoom? I'm told that there was an objection, 5 but we couldn't hear it, so are we getting audio from the 6 participants? Can we turn the volume up on that, maybe? 7 Sorry. 8 MR. SOLHEIM: Can you hear me? 9
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Ruling
HOLLY ROBIN GARCIA VS UNLIMITED RUBBER SUPPLIERS, LLC., ET AL.
Jul 18, 2024 |23PSCV00282
Case Number: 23PSCV00282 Hearing Date: July 18, 2024 Dept: 6 CASE NAME: Holly Robin Garcia v. Unlimited Rubber Supplies, LLC, et al. State Farm Mutual Automobile Insurance Companys Motion for Leave to Intervene TENTATIVE RULING The Court GRANTS State Farm Mutual Automobile Insurance Companys motion for leave to intervene. State Farm shall file an answer in intervention within five days of the Courts ruling on this motion. Otherwise, the motion will be DENIED without prejudice. State Farm is ordered to give notice of the Courts ruling within five calendar days of this order. BACKGROUND This is a motor vehicle accident case. On January 30, 2023, plaintiff Holly Robin Garcia (Plaintiff) filed this action against defendants Unlimited Rubber Supplies, LLC, Michael Antonio Diaz (Diaz), Malcolm Defrantz, and Does 1 to 50, alleging causes of action for general negligence and motor vehicle. On June 20, 2024, State Farm Mutual Automobile Insurance Company moved for leave to intervene. The motion is unopposed. LEGAL STANDARD An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons by doing any of the following:& (2) Uniting with a defendant in resisting the claims of a plaintiff. (Code Civ. Proc., § 387, subd. (b)(2).) To intervene in an action, [a] nonparty shall petition the court for leave to intervene by noticed motion or ex parte application. (Id., § 387, subd. (c).) A nonparty must be permitted to intervene if either of the following conditions are satisfied: (1) a provision of law confers an unconditional right to intervene; or (2) the person seeking intervention claims an interest related to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that persons ability to protect that interest, unless that persons interest is adequately represented by one or more of the existing parties. (Code Civ. Proc., § 387, subd. (d)(1)(A)-(B).) A court has discretionary authority to allow a nonparty to intervene if the person shas an interest in the matter in litigation, or in the success of either of the parties, or an interest against both. (Id., § 387, subd. (d)(2).) DISCUSSION Analysis State Farm Mutual Automobile Insurance Company (State Farm) seeks leave to intervene in this action on behalf of Defendant Diaz, its insured who has not appeared or otherwise participated in this action. State Farm contends it is entitled to intervene as Diazs insurer to protect its interests and Diazs interests. State Farm contends it has a property interest in this litigation because it is obligated to pay any judgments obtained against its insureds under Insurance Code section 11580, subdivision (b)(2), and it has the right to intervene when its insureds cannot defend themselves. State Farm contends it is also entitled to permissive intervention because Diaz is now in pro per and cannot or will not assist in his defense, and Diazs failure to comply with prior discovery matters may lead to his answer being stricken or a default being entered. State Farm contends it also has an immediate interest to stand in the shoes of Diaz in defending the present action and the policy State Farm issued. State Farm contends the proposed answer in intervention will assert the same general denial and affirmative defenses as to Diaz and that intervention will not enlarge the issues in this case in any substantive manner. State Farm also contends intervention will not create prejudice to any other party. The Court finds State Farm is entitled to intervention. An insurer's right to intervene in an action against the insured, for personal injury or property damage, arises as a result of Insurance Code section 11580. (Reliance Ins. Co. v. Superior Ct. (2000) 84 Cal.App.4th 383, 386.) An insurer has a direct and immediate interest in the litigation, because it may be required to satisfy any default judgment entered against its insured. (Id., at p. 387.) State Farm, as Diazs insurer, is therefore entitled to intervene on Diazs behalf since State Farm will be liable for any judgments that may be entered against Diaz. There is also no indication that State Farms intervention would enlarge the issues in this case since State Farm is merely seeking to stand in the shoes of Defendant Diaz who is already a party to this action and therefore potentially liable. The Court further notes that the motion is unopposed, which the Court construes as a tacit admission that the motion is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motionand Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) The Court does note, however, that it is not entirely clear what is the proposed answer for Defendant Diaz, which was supposed to be filed with the moving papers per Code of Civil Procedure section 387, subdivision (c). (Code Civ. Proc., § 387, subd. (c).) State Farm provided multiple answers to the complaint with its moving papers, and none of them indicate that they are the proposed answer in intervention for Diaz. (See Cullins Decl., ¶¶ 3-5, Exs. B-D.) Notwithstanding, the Court will grant the unopposed motion and require State Farm to file its answer in intervention forthwith. CONCLUSION The Court GRANTS State Farm Mutual Automobile Insurance Companys motion for leave to intervene. State Farm shall file an answer in intervention within five days of the Courts ruling on this motion. State Farm is ordered to give notice of the Courts ruling within five calendar days of this order.
Ruling
STEPHANIE HUGHES VS CULVER SALAR FAMILY INVESTMENT, LLC
Jul 17, 2024 |6/18/2022 |23SMCV01089
Case Number: 23SMCV01089 Hearing Date: July 17, 2024 Dept: I The demurrer is OVERRULED. While defendants statement of law is correct in that it is hard to see who the individual is that is alleged to be specifically responsible, there is enough here for pleading purposes. The specifics can be fleshed out in discovery and for now there are allegations, albeit general, as to the defendants acting together. In short, these issues are better raised by way of a summary judgment motion or at trial. The court is also having trouble understanding how the demurrer is timely. The court notes three discovery motions on file. That does not bode well this early in the case. The court has not worked up those motions, but for the parties aid, the court appends its guidelines on discovery responses, meet and confers, and IDCs. The court encourages IDCs where both parties would like to resolve the matter informally and in good faith, and often the failure to participate in an IDC can have an impact on the recovery or propriety of any sanctions request. DISCOVERY RELATED GUIDELINES FOR DEPARTMENT I The guidelines below are not rules and they are not universally applicable in all cases. Rather, they are guidelines as to the courts general views. Each case, of course, will be decided on its own facts and circ*mstances, and some of the guidelines below may not apply to particular circ*mstances. That said, the court does take these views seriously. Discovery Responses The Court provides the following guidance concerning its general views on some common issues regarding responses to written objections. The Court has noticed that many attorneys view objections and the manner of making them in a way different than does the Court. To avoid these common pitfalls, the Court offers the following in addition to the provisions of the Litigation Guidelines appended to the Los Angeles County Superior Court Local Rules. First, General Objections are not permitted. The Code of Civil Procedure does not provide for them, and therefore they are disregarded by the Court. Any response that incorporates the General Objections is improper by definition. Second, the Court often views boilerplate objections as being in bad faith. A bad faith response is no response at all in the Courts view. Therefore, making boilerplate objections does not preserve those objections nor does it constitute a good faith response to written discovery. A bad faith response is viewed by the Court for what it is: bad faith. The objections will be stricken and deemed waived. In the context of a Request for Admission, such objections may lead to a finding that the request is deemed admitted, although that will depend on the facts of the particular case and the specific discovery at hand. Objections should be tailored to each specific request. If a request truly is overbroad, then an objection to that effect is proper. But such an objection is best accompanied by some reasonable limitation by the responding party that will narrow the request appropriately and (as narrowed) provide a substantive response rather than a mere statement that the request is overbroad. The same is true as to an objection that a request is unduly burdensome. The Court also notes that the party asserting that a request is unduly burdensome has the obligation at some point to provide an evidentiary basis for the objection, including evidence as to what the burden of compliance would be. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407.) Often such an objection will include a statement by the responding party as to a narrower request that would not be unduly burdensome and provide substantive responses as so limited. Objections that a request is vague and ambiguous must set forth the vague and ambiguous term as well as the responding partys reasonable interpretation of that term as well as a statement that, so interpreted, the response will provide the discovery requested. If there is no reasonable interpretation possible (which is a rare situation), then the responding party must so state. Objections as to privilege must set forth the basis explaining why the information sought is in fact privileged. Where a privilege is asserted in the context of a document request, a privilege log must accompany the answer or be provided within a short and reasonable time after the answer. Where the objection is made in the context of an interrogatory, it must be clear from the objection the scope of the information being withheld. If there is no log, there should be no privilege objection to a document request (meaning that a prophylactic privilege objection is the equivalent of no objection; it preserves nothing). There are some rare exceptions, such as where the entire point of the discovery is to get allegedly privileged information or where compliance would require a log that is in essence an index of counsels file. In that situation, the log is unnecessary, but the assertion should be made that the request is in that rare context. Third, if an objection is made to the discovery but a response is being given, it must be clear whether information or documents are in fact being withheld on the basis of the objections. If the objections are clear and done in the manner set forth above, with statements in the objection as to a narrowing that will make the request proper, this is usually a simple task. The objections themselves state the limit and the response will be full and complete as limited. But where the objections are not so clear, the response must clearly state whether any information or document is being withheld on the basis of the objection and, if so, the extent of the withholding. Accordingly, in those situations, phrases like Notwithstanding and subject to the foregoing objections, responding party states as follows are improper. Those sorts of phrases make the verification useless, as the verifier can always fall back on the objections as the reason why a document was not produced or information was not disclosed. On the other hand, where the line of demarcation is clear, the verification will still serve its purpose. Fourth, for document requests, the substantive response must conform to the Code. There are relatively tight rules as to what the response must say, and the response must say it. For example, where a responding party is not producing documents because they are not in the partys possession, custody, or control, the responding party must verify that a diligent search has been made and must further provide the information set forth in the Code of Civil Procedure in such cases. In the case of interrogatories, the responses must also conform to the Code of Civil Procedure and must be made after diligent inquiry. It is not proper to refuse to respond because the responding party has no personal knowledge. If the knowledge is hearsay, it must still be disclosed, although it can be qualified to make it clear that it is not based on the verifiers personal knowledge. Fifth, the Court frowns on responses that do not conform to the foregoing rules being served with the view that the responses will moot themselves out in the meet and confer process. That is not how the process works. A good faith response is required before the meet and confer process begins. The meet and confer process will (hopefully) bridge the gaps between the parties respective positions. Further, where a response to a request for documents is made and documents are to be produced subject to certain objections (with the documents withheld properly delineated), the documents should be turned over irrespective of the meet and confer. The documents are to be produced with alacrity to the extent that there is no objection to them. What this means is that the response to a discovery request is not a trivial undertaking. Nabbing the response from the form file is a generally bad idea and can lead to all objections being waived. The point is that the boilerplate often renders the remainder of the response useless. The only exception is where it is clear that the substantive response is not in any way limited by the objections. In that case, the objections do no harm, although they also do no good. Meet and Confer The Code of Civil Procedure requires that before a motion to compel further responses or a motion for a protective order is filed, the parties engage in a good faith attempt to resolve their differences. They are to meet and confer for that purpose. Only if that effort fails can a motion be brought. Sadly, many litigants view the meet and confer process as just another procedural hoop through which they must jump in order to bring the motion, similar to the need to include an actual demurrer with the demurrer papers. The Code requires it, so they do it, but no ones heart is really in it. That is not sufficient. Given that, the Court believes it appropriate to set forth how the Court views the meet and confer requirement. Failure to abide by the guidelines below may well justify denial of the motion or a continuance of it to allow the process to take place. If one party but not the other refuses to participate as set forth, more likely than not the party refusing to participate will find itself on the losing end of the motion. The following quotation fairly sums up the Courts own view. [W]e feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone's admonitions in Townsend that the statute requires that there be a serious effort at negotiation and informal resolution. (Townsend, supra, 61 Cal.App.4th at p. 1438.) Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that [a]rgument is not the same as informal negotiation (id at p. 1437); that attempting informal resolution means more than the mere attempt by the discovery proponent to persuade the objector of the error of his ways (id. at p. 1435); and that a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel.... Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate. (Id. at p. 1439.) (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294, emphasis in original, parallel citations omitted.) In practical terms, it means as follows. It is entirely appropriate to begin the process with a letter or other correspondence. The letter should not include a demand in the form of an ultimatum, but it can certainly include the relief that is being sought with an invitation to meet and confer. It is also entirely appropriate for the other party to respond with a letter or other correspondence to set forth its position on the issues. Such an initial exchange can often be helpful to narrow the dispute. Whether further exchanges make sense will depend on each case and each dispute. However, at some point, before impasse is reached the process must include an actual meet. The letters might well suffice to confer, but an exchange of correspondence is not a meeting. In the COVID-19 era, the meeting can be virtual or telephonic, but a meeting there must be. The meeting must be attended by a person from each side with the authority to agree to the other sides position without getting further permission from anyone, including the client. If only the client can give the needed authority, then the client must be available instantaneously at all times during the meeting. This does not mean that one side or the other must concede, but it does mean that the people meeting have the ability in real and practical terms to strike a deal then and there. The parties should approach the meet and confer process as a problem-solving exercise. The purpose of the meet and confer is not to convince the other side of the bankruptcy of its position; rather the purpose is to reach an agreement by which the party seeking discovery is able to obtain the information that it reasonably needs and the party providing discovery is not put to an undue burden or forced to provide unnecessary information that might infringe on a privacy interest or disclose a competitive trade secret or the like. At the conclusion of the meet and confer, the parties should have an agreed statement as to the outcome. If the outcome is a total impasse, then they should agree on that. If they have resolved some or all of their differences, then they should statein writingwhat that agreement is so that there will be no confusion later. Often, an agreement will be without prejudice to a further request by the propounding party for more information after that party receives the responses. If a motion is still required, the declaration in support should describe with some detail the meet and confer process. While the Court is not interested in the back and forth, the court is interested in when the meeting took place, who was there, and how long it lasted. All communicationsin writing or oralmust be civil, polite, and professional. Name-calling and accusations are devices that undermine the process; they do not further it. A party engaging in such activity generally is not acting in a good faith effort to reach an agreement. Informal Discovery Conferences The court generally will encourage an Informal Discovery Conference (IDC) before any party files a motion to compel further responses. The goal of the IDC is to get to yes. To achieve that goal, the court adopts the following. Five Court days before the IDC, the parties will submit a JOINT statement no more than eight pages total (on pleading paper) setting forth their respective positions. Where a similar issue is raised that will resolve many requests, it can be dealt with as a single issue. The IDC follows the good faith meet and confer. It is not a substitute for the meet and confer. The courts time is to be spent only on issues after the parties have tried to narrow the dispute as much as possible. As stated above, the goal is to get to yes. This means a few things. One is that each party must be represented by a person who has the authority to agree to the other sides position without getting further permission. It need not be lead counsel and that authority need not be exercised. But the people at the conference must have that authority. If only the client has that authority, then the client will be present physically with counsel in an adjacent room without distraction after initial introductions are made. All IDCs are off the record. That means that whatever anyone says at the IDC will not be binding or quoted back at the party unless an agreement is struck. It is very bad form to quote the courts comments at an IDC during a later hearing unless the comments were part of a stipulated order. All parties have the right to change position if no deal is reached. The court, for example, might strongly indicate that it believes one side or the other has the better position but rule in a completely different way if there is a formal motion. Partial agreements that are contingent upon a full resolution are not binding unless a full resolution is reached. Partial resolutions that are not contingent on a full resolution are binding. Parties who are suggesting a resolution should make it clear whether their proposal depends upon other resolutions. Parties should be especially willing to give up sanctions at an IDC if it will resolve the dispute. That is not a requirement, but the courts experience is such that if a party is really going to insist on a sanction, the likelihood of a resolution is very low. It is likely that no party will get everything that it wants. The goal is to abide the Code, but at the same time make sure that the party seeking discovery is not creating busy-work or demanding a lot of work for no benefit (or virtually no benefit). The responding party might well have the right (should it come to motion practice) to avoid some aspect of the discovery, but in order to get to a resolution it might be in the responding partys interest to be willing to offer something. Conversely, the propounding party might have the right (should it come to motion practice) to get some aspect of discovery, but in order to get to a resolution it might be in the propounding partys interest to forego aspects of the discovery that are not really needed, perhaps reserving the right to seek that information at a later time should it prove necessary. The point is not to have the Court simply hammer away at the opponent. That might happen at a motion, but it is not the goal of the IDC. No orders will be made except on stipulation. However, if there is an agreement, the court may well want to make an appropriate order or ask the parties to confirm it in writing. Parties should take careful notes on any agreements. Because there are no Court Reporters, it is hard to put an agreement on the record. However, unless the agreement is confirmed quickly, people have a tendency to forget or to have buyers remorse. Therefore, it is best to have one party send an immediate confirming email to the other and obtain an agreement. The court would prefer not to get into the specific wording of the agreement during the IDC unless absolutely necessary. The IDC process does not work if people view it as just a necessary step to filing a motion. The court does not see it that wayif it did, then the court would abandon the IDC as a waste of time. Rather, this is an off-ramp to avoid motion practice and the attendant costs and time. Hopefully, it is also a way to get discovery more quickly than through formal motion practice. At the IDC, no matter how hot tempers have run in the past, the court expects all counsel to be polite and civil in tone to one another. The court will not tolerate rudeness or unnecessary accusations. They do not move the ball forward and they make it nigh impossible to reach an agreement.
Ruling
DANIEL ABRAM VS SOULCYCLE, INC., A CORPORATION, ET AL.
Jul 16, 2024 |22STCV00193
Case Number: 22STCV00193 Hearing Date: July 16, 2024 Dept: B Daniel abram V. soulcycle inc., et al. MOTION to be relieved as counsel Date of Hearing: July 16, 2024 Trial Date: February 3, 2025 Department: B Case No.: 22STCV00193 Moving Party: Counsel for Plaintiff Responding Party: N/A BACKGROUND This case stems from allegations of negligence after Daniel Abram (Plaintiff) participated in a cycling exercise class. Plaintiff files a Complaint against SoulCycle Inc., SoulCycle Beverly Hills, LLC and Lindsay Warner (Defendants). The motion now before the Court is a Motion to Be Relieved As Counsel filed by counsel for Plaintiff, Chet R. Bhavsar. Tentative Ruling Plaintiffs Counsels Motion to Be Relieved As Counsel is GRANTED. DISCUSSION Legal Standard An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, rule 3.1362(c)). The proposed order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. (Cal. Rules of Court, rule 3.1362(e).) Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, rule 3.1362(d).) The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, rule 3.1362(e).) A motion to withdraw will not be granted where withdrawal would prejudice the client. (Ramirez v. Sturdevant (1994), 21 Cal.App.4th 904, 915.) Analysis Plaintiffs counsel has provided the Judicial Counsel Form MC-051 and MC-052. All appropriate notice has been given, including to the client which Plaintiffs counsel confirmed by conversation and by telephone. (See MC-052, §3.) Additionally, Plaintiffs counsel provides all upcoming court dates. CONCLUSION Plaintiffs Counsels Motion to Be Relieved As Counsel is GRANTED, effective upon filing of the proof of service of the Order. Moving party to give notice.
Ruling
RYAN CALDWELL VS VIRGINIA LOUISE BEABOA, ET AL.
Jul 16, 2024 |22STCV39573
Case Number: 22STCV39573 Hearing Date: July 16, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: July 16, 2024 CASE NUMBER: 22STCV39573 MOTIONS: Motion to be Relieved as Counsel MOVING PARTY: Plaintiff Ryan Caldwells Counsel OPPOSING PARTY: None BACKGROUND Plaintiff Ryan Caldwells (Plaintiff) counsel of record, Khashayar Eshraghi (Counsel), moves to be relieved as counsel for Plaintiff. Counsel contends relief is necessary because there has been a breakdown in the attorney-client relationship. No opposition has been filed for this motion. LEGAL STANDARD To be granted relief as counsel, counsel must comply with California Rules of Court (CRC) 3.1362. Even where grounds for termination exist, attorneys seeking to withdraw must comply with the procedures set forth in California Rule of Professional Conduct (CRPC) 3.700 and are subject to discipline for failure to do so. CRPC 3.700(B) lists various grounds for mandatory withdrawal. An attorney's right to terminate the attorney-client relationship and withdraw from a case is not absolute. (See Vann v. Shilleh (1975) 54 Cal.App.3d 192, 197; People v. Prince (1968) 268 Cal.App.2d 398.) The decision whether to grant or deny an application for withdrawal is within the court's discretion, and it does not abuse that discretion by denying the application on the ground that the attorney's withdrawal would work injustice upon a third party. (Hodcarriers, Bldg. and Common Laborers Local Union No. 89 v. Miller (1966) 243 Cal.App.2d 391.) The rules have been liberally construed to protect clients. (Vann v. Shilleh, supra, 54 Cal.App.3d 192.) An attorney, either with client's consent or court's approval, may withdraw from a case when withdrawal can be accomplished without undue prejudice to client's interests; however, an attorney shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules. (CRPC 3.700(A)(2).) A lawyer violates his or her ethical mandate by abandoning a client (Pineda v. State Bar (1989) 49 Cal.3d 753, 758 759), or by withdrawing at a critical point and thereby prejudicing the clients case. (CRPC 3.700(A)(2); Vann v. Shilleh, supra.) DISCUSSION Counsel has filed forms MC-051 and MC-052 and has lodged with the Court a copy of the proposed order on form MC-053 as required. (Cal Rules of Court, rule 3.1362.) Counsel states the instant motion is filed for the following reason: This motion is based upon the grounds that there has been an irremediable breakdown in the attorney-client relationship that stands in the way of effective representation. (MC-052.) Counsel has provided information for all future proceedings in this case. Additionally, Counsel has been unable to confirm Plaintiffs address despite mailing the motion papers to Plaintiffs last known address, return receipt requested, calling Plaintiffs last known telephone number or numbers, attempting to contact Plaintiffs emergency contact, conducting a TLO search, and hiring a private investigator. However, the declaration in support states that Plaintiff was served by mail. (MC-052, item 3a(2).) This conflicts with the proof of service filed on July 8, 2024, showing that Plaintiff was served personally. Counsel provides no proof of service by mail. Additionally, the personal proof of service states that Plaintiff was served on July 1, 202410 court days before this hearing. Code of Civil Procedure section 1005 requires written notice of a motion including the date, time and location of the hearing on a motion. A moving partys failure to serve the notice of motion and moving papers on a non-moving party violates the basic principles of procedural due process under the federal and state constitutions notice and an opportunity to be heard.¿ (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 428 [minimum due process requires notice and opportunity for hearing appropriate to the nature of the case]; Horn v. County of Ventura (1979) 24 Cal.3d 605, 612 [due process principles require reasonable notice and opportunity to be heard].) Under Code of Civil Procedure section 1005(b), moving papers must be served and filed at least 16 court days before the hearing. Therefore, because Counsel did not provide the minimum notice period, the motion to be relieved is denied on procedural grounds. Additionally, as stated in the previous minute order, the proposed order does not contain Plaintiffs full zip code. (See Min. Order, 5/29/24.) Counsel must correct the zip code in a subsequent motion. Also, the service indicated in MC-052, item 3 must accurately reflect the type of service in the proof of service. Accordingly, the Court DENIES the motion to relieve counsel. Counsel shall provide notice of the Courts ruling and file proofs of service of such.
Ruling
Jul 16, 2024 |23CV02864
23CV02864KELLEY v. R.C. BENSON & SONS INC. (UNOPPOSED) MOTION TO INTERVENE County of Santa Cruz’s motion for leave to intervene is granted. Although the Countyfailed to attach the proposed complaint in intervention as required under Code of Civil Proceduresection 387, subdivision (c), the Court waives that defect. The complaint in intervention shall befiled within 14 days of the hearing.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.
Ruling
ROCHA, FERNANDO vs TRUJILLO, DIANA LISBETH HERNANDEZ
Jul 18, 2024 |CV-22-002302
CV-22-002302 – ROCHA, FERNANDO vs TRUJILLO, DIANA LISBETH HERNANDEZ – Defendant/Cross Defendant’s Motion to Compel Plaintiff Fernando Rocha’s Deposition Answers and Further Deposition; Request for Monetary Sanctions in the Amount of $4,755 Against Plaintiff and Counsel of Record – DROPPED.Due to Defendant’s filing of a Notice of Withdrawal of this motion on July 12, 2024, this motion is dropped from the Court calendar.
Ruling
Simarjit Khanna vs. Anuradha Batra
Jul 12, 2024 |C23-02650
C23-02650CASE NAME: SIMARJIT KHANNA VS. ANURADHA BATRA*HEARING ON MOTION IN RE: MOTION TO ENFORCE SETTLEMENT FILED BY PLAINTIFFSFILED BY:*TENTATIVE RULING:*Before the Court is Plaintiffs Samarjit Khanna and Anjuli Khanna Papineau’s Motion to EnforceSettlement Agreement Pursuant to Code of Civil Procedure § 664.6. (“Motion”).Factual BackgroundPlaintiffs filed their initial complaint on October 19, 2023. A First Amended Complaint was filed onOctober 25, 2023. Defendant Anuradha Batra filed her answer to the FAC on January 31, 2024. A FirstAmended Answer was filed on February 8, 2024.The Court held a Case Management Conference on February 20, 2024. The minutes from the CMCindicate that counsel appeared for each party. It then states: “Matter settled,” and notes that theCourt sets a further CMC for status. On March 13, 2024, Plaintiffs’ filed the instant motion to enforce SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: DANIELLE K DOUGLAS HEARING DATE: 07/12/2024the Parties’ purported settlement agreement.Overview of Section 664.6Pursuant to the California Code of Civil Procedure (“CCP”) section 664.6: If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement. (Code Civ. Proc., §664.6(a).)For purposes of this section, a writing is signed by a party if it is signed by either the party or anattorney who represents the party. (Cal. Code Civ. Proc. § 664.6 (b).)California courts have interpreted section 664.6 as creating “a summary, expedited procedure toenforce settlement agreements when certain requirements that decrease the likelihood ofmisunderstandings are met.” (Elyaoudayan v. Hoffman (2003) 104 Cal.App.4th 1421, 1429).“A court ruling on a motion under Code of Civil Procedure section 664.6 must determine whether theparties entered into a valid and binding settlement.” (Hines v. Lukes (2008) 167 Cal.App.4th 1174,1182 numerous citations omitted.) “The court ruling on the motion may consider the parties’declarations and other evidence in deciding what terms the parties agreed to….” (Ibid.) “If the courtdetermines that the parties entered into an enforceable settlement, it should grant the motion andenter a formal judgment pursuant to the terms of the settlement.” (Ibid.)“The statutory language makes clear, however, that a party moving for the entry of judgmentpursuant to a settlement under Code of Civil Procedure section 664.6 need not establish a breach ofcontract to support relief under the statute.” (Hines, supra, 167 Cal.App.4th at 1185.) Instead, theCourt is authorized to “enter a judgment pursuant to the settlement regardless of whether [a party’s]nonperformance of [their] settlement obligations [were] excused.” (Ibid.)AnalysisAs stated by Plaintiff’s own authority, under section 664.6 a “trial court may enforce a settlementagreement made during pending litigation if the parties entered into the agreement [1] orally beforethe court or [2] in writing outside the presence of the court.” (Elyaoudayan v. Hoffman (2003) 104Cal.App.4th 1421, 1424.) Here, neither of those options occurred.For many years, section 664.6, as interpreted by the California Supreme Court, required the signatureof the parties to the agreement – and did not allow for the signature of their attorneys. (See Levy v.Superior Court (1995) 10 Cal.4th 578, 585-86.) Section 664.6 was amended, however, effectiveJanuary 1, 2021 to allow for written out of court settlement agreements to be signed by an “attorneywho represents the party.” (W. Bradley Electric, Inc. v. Mitchell Engineering (2024) 100 Cal.App.5th 1, SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: DANIELLE K DOUGLAS HEARING DATE: 07/12/202418 fn. 7; Cal. Code Civ. Proc. § 664.6 (b).)Plaintiffs submit a proposed “Mutual Release and Settlement Agreement” (“Settlement Agreement”)which is signed by Plaintiffs and Plaintiffs’ counsel. (Redner Decl. Ex. D.) Defendant did not sign theSettlement Agreement. (Ibid.) Nor did Defendant’s attorneys. (Ibid.) Defendant’s declaration confirmsthat fact that she never approved “any settlement of this dispute that was limited to the terms setforth in the [Settlement] Agreement.” (Batra Decl. ¶ 3.) As such, the submitted written SettlementAgreement does not comply with the requirements of section 664.6, such that enforcement iswarranted.As for an oral agreement before the Court, Plaintiffs argue that at the February 20 CMC “the parties,through their respective attorneys, represented to the Court that the entire case was settled,” andthat the “terms were stated by Plaintiffs’ attorney, with the concurrence of Defendants’ attorney….”(Motion at 2:24-27.)First, the minutes from the CMC do not indicate that the terms of the purported settlementagreement were stated on the record. The minutes merely note that the “matter settled.” Second,there is no indication that the parties were present during the CMC, nor that they themselvesapproved the terms of the settlement agreement at that time.As noted above, the California Supreme Court has held, “the term ‘parties’ as used in section 664.6(“If parties to pending litigation stipulate … for settlement of the case…”) means the litigantsthemselves and does not include their attorneys of record.” (Levy v. Superior Court (1995) 10 Cal.4th578, 586.) While section 664.6 was amended to allow for the signature of a party’s attorney on awritten settlement agreement, it did not change the requirement that the parties themselves mustagree to the terms of the settlement agreement if the stipulation to settle the case is made “orallybefore the court.” (Cal. Code Civ. Proc. § 664.6 (a).) Thus, even if the terms were stated on the record(which the record does not indicate), the fact that the Parties were not present to affirm the terms ofthe settlement precludes enforcement under section 664.6.Plaintiff makes other arguments regarding a breach of the implied covenant of good faith and fairdealing, as well as equitable and judicial estoppel. To begin with, such arguments are not properlybefore the Court on a motion to enforce under section 664.6. (See Viejo Bancorp, Inc. v. Wood, (1989)217 Cal.App.3d 200, 209 fn. 4: “[A] court’s power to make factual determinations under section 664.6is generally limited to whether the parties entered into a valid and binding settlement agreement.”)Additionally, Plaintiffs have failed to provide sufficient evidence that Defendant Batra actually agreedto the terms of the proposed Settlement Agreement, or that there is even a valid agreement toenforce.Based on the above, Plaintiff’s motion is denied. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 18 JUDICIAL OFFICER: DANIELLE K DOUGLAS HEARING DATE: 07/12/2024
Ruling
Rocciola VS Asbestos Comnpanies
Jul 18, 2024 |Civil Unlimited (Asbestos Property Damage) |RG20061279
RG20061279: Rocciola VS Asbestos Comnpanies 07/18/2024 Hearing on Motion - Other NOTICE AND APPLICATION FOR AN ORDER ADMITTING ROBERT R. SIMPSON AS COUNSEL PRO HAC VICE; filed by Union Carbide Corporation (Defendant) in Department 18Tentative Ruling - 07/15/2024 Patrick McKinneyThe Motion to Be Admitted Pro Hac Vice filed by Union Carbide Corporation on 06/25/2024 isGranted.Pursuant to Government Code section 70617(e)(2), on or before the anniversary of the date ofthis order Pro Hac Vice Applicant Robert Simpson shall pay a renewal fee of five hundreddollars ($500) for each year that Pro Hac Vice Applicant maintains pro hac vice status in thiscase. The Court hereby sets a compliance hearing for 09/19/2025 at 10:00 AM in Department 18at Rene C. Davidson Courthouse. If the renewal fee has been paid at least 10 calendar daysbefore the hearing, no appearance will be required.CONTESTING TENTATIVE ORDERSNotify the Court and all other parties no later than 4:00 p.m. on the day before the scheduledhearing and identify the issues you wish to argue through the following steps:1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov2. Case Search3. Enter the Case Number and select Search4. Select the Case Name5. Select the Tentative Rulings Tab6. Select Click to Contest this Ruling7. Enter your Name and Reason for Contesting8. Select Proceed.
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