Excerpt: ...rd The FAA governs contractual arbitration in written contracts involving interstate commerce, foreign commerce, or maritime transactions. 9 U.S.C. §§ 1, 2; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 336. Because the FAA embodies a strong federal policy favoring arbitration, conflicting state law is preempted under the Supremacy Clause. Southland Corp. v. Keating (1984) 465 U.S. 1, 12; Marmet Health Care Ctr., Inc. v. Brown (2012) 565...

Excerpt: ...(1); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (the party moving for summary judgment bears an initial burden to demonstrate the absence of any triable issue of material fact on the elements of the claims it asserts or opposes).) “Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact...

Excerpt: ...e. However, Defendant has shown good cause since the Plaintiff's deposition revealed the existence of a complete defense. There is authority for Defendant's claim that he has a statutory right to hear a summary judgment motion. Fast track rules must give way. Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal. App. 4th 920, 923. 2. Defendant's Motion for Leave to File a First Amended Answer, filed on 5/21/18, is GRANTED. Leave to amend is p...

Excerpt: ...pert disclosure cut-off dates would be based on the continued trial date of 5/22/18. On 4/24/18, the court granted Plaintiff's former counsel's motion to withdraw. The trial was also continued to 8/21/18. The court's order does not mention a continuance of all discovery cut-offs. Therefore, discovery cutoff ended on 4/23/18, (4/22/18 was a Sunday) which is 30 days before the last trial date of 5/22/18. Cal Code Civil Procedure § 2024.020(a). Ass...

Excerpt: ...money caused by the unnecessary trial of damage questions.” Trickey v. Superior Court of Sacramento County (1967) 252 Cal. App. 2d 650, 653. The facts of the case must justify it. Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 888, fn. 8. The only basis for the motion is that the defect at issue is trivial in Defendant's opinion, and Defendant intends to move for a nonsuit. Motion, 3:11-13. This does not establish that convenience of wit...

Excerpt: ... The court disregards Defendant's objections as they are not objections to evidence but to the material facts set forth in the Separate Statement. 2. As applicable to a Plaintiff's motion for summary adjudication, the motion can be granted if there is no merit to an affirmative defense or if the motion disposes of an issue of duty. Cal Code Civil Procedure § 437c(f)(1). Plaintiff seeks adjudication of two issues: that Defendant owed Plaintiff a ...

Excerpt: ...pulate that they are not making a claim for mental and emotional distress “over and above that usually associated with the physical injuries claimed” and that an expert on mental and emotional distress will not be presented at trial. Cal Code Civil Procedure §2032.320(c). Plaintiffs apparently claim that their emotional distress is “garden variety,” but refuse to stipulate to this or that they will not present an expert on emotional dist...

Excerpt: ...ve damages must be intended to cause injury or must constitute despicable conduct carried on by Defendant with a willful and conscious disregard of the rights of others. Civ Code § 3294(a). This is the definition of “malice.” “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of a person's rights. Cal Civ Code § 3294(c). Plaintiff alleges two claims for strict liabili...

Excerpt: ...le reflects that the following events took place. 11/9/17 Defendant filed a Motion for Summary Judgment 1/18/18 Plaintiff's ex parte application to continue the Motion for Summary Judgment hearing is GRANTED. The hearing is set for 2/26/18. 2/16/18 The court GRANTS Plaintiff's ex parte application for leave to file a late opposition to the Motion for Summary Judgment. The court orders that opposition be filed by 2/20/18. 2/26/18 The court GRANTED...

Excerpt: ...rder to protect the parties from unreasonable or oppressive demands including unreasonable violations of a witness's or consumer's right of privacy. Cal Code Civ Procedure § 1987.1. The right to privacy is protected by the California Constitution. Vinson v. Superior Court (1987) 43 Cal.3d 833, 839. Where privacy rights are implicated, Defendant has to show that the records are directly relevant to Plaintiff's claim and essential to the f...

Excerpt: ...otels Management Corp. (2012) 203 Cal.App.4th 403, 431. In order to impose liability on the owner for injury arising from a dangerous condition, “it must be shown that a dangerous condition existed and that the defendant knew or should have known of it. … No inference of negligence arises based simply upon proof of a fall upon the owner's floor.” Vaughn v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553, 556. Additionally, the Plaintiff ...

Excerpt: ...ral negligence, (2) premises liability and (3) negligent infliction of emotional distress. The premises liability cause of action includes: count one – negligence; count two - willful failure to warn pursuant to Civil Code section 846; and count three – dangerous condition of public property. The complaint alleges that on October 24, 2015, Plaintiff sat on a chair while on premises owned and controlled by Norms, and the chair broke thereby ca...

Excerpt: ...ereafter “Bank”). Declaration of David Benavente. All objections are OVERRULED. Mr. Benavente is the Asset Manager of Defendant/Cross-Complainant Cole. He has personal knowledge of the asserted facts. His declaration supports that the parties entered into the lease agreement. He sets forth the lease provisions at issue. The Declaration is supported by the actual lease agreement at Exhibits A and B. Declaration of Samuel Nora. Cole's attorney....

Excerpt: ...cident. The court continued the hearing to 3/22/18 on the issue of sanctions only to be imposed against Plaintiff and counsel. On 3/22/18, Plaintiff did not appear at the continued hearing on imposition of sanctions, and the court granted Defendants' request for sanctions in the amount of $2,000, to be paid within 30 days. See Defendants' Notice of Ruling filed 3/26/18. The court has discretion to award attorneys' fees and costs under Cal Code Ci...

Excerpt: ...). The motion can be supported by an affidavit of counsel based on information and belief as to the medical diagnosis and prognosis of any party. Code Civ. Proc., § 36.5 Plaintiff has shown that his health requires a preferential setting to avoid prejudicing Plaintiff's interests. Plaintiff was diagnosed in January 2018 for an un-staged lung adenocarcinoma. Motion, Ex. A. page 1. Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534. He is presen...

Excerpt: .... Von's (1983) 146 Cal.App.3d 29, 32. If there is any resultingprejudice, the court can continue the hearing. Mann v. Crachiolo (1985) 38 Cal.3d 18, 30. Defendant did not suffer any prejudice since Defendant was able to file a reply brief which has been considered. A party can move to compel another's deposition where the deponent fails to appear or proceed with it. Cal. Code Civ. Proc. § 2025.450. Defense counsel has complied with the statutory...

Excerpt: ...he other party. Code Civ. Proc., § 473. The court has discretion to correct clerical errors in its judgment on its own motion. Defendants are in default and are therefore, “out of court” and are not entitled to notice or to file any other pleading. The effect of a default is to cut-off any of the defaulting Defendants' rights to object unless the default is set aside by the court. A & B Metal Products v. MacArthur Properties, Inc. (1970) 11 ...

Excerpt: ...Department of Transportation (2002) 27 Cal. 4th 198, 200-201; Gravelin v. Satterfield (2011) 200 Cal. App. 4th 1209, 1214 . An exception to this general rule states that the hirer remains liable if it retains control of the work and that retention of control affirmatively contributes to Plaintiff's injuries. Hooker v. DOT (2002) 27 Cal.4th 198; Tverberg v. Fillner Constr. (2012) 202 Cal. App. 4th 1439, 1446. Thus, the rule of non-liability un...

Excerpt: ...ed Complaint (“FAC”), alleging three causes of action for 1) Vehicular Negligence, 2) Negligence Per Se, and 3) Equitable Estoppel. The FAC arises from an automobile accident between Plaintiff and Johnson, an employee of LADOT. On September 6, 2016, she was rear ended by Defendants' vehicle because Johnson <0048000300290024002600 00030044004f004f0048[ges that on September 9, 2016, Plaintiff submitted a claim to the City with the claim number ...

Excerpt: ...submit an application to the public entity for leave to present a late claim. The late-claim application must be made “within a reasonable time not to exceed one year after the accrual of the cause of action and shall state the reason for the delay in presenting the claim.” Gov Code § 911.4(b). Petitioner submitted his late-claim application on 9/19/17, accompanied by a letter application dated 9/20/17. Motion Ex. B. The cause of action accr...

Excerpt: ...bility based upon competent expert testimony. Jones v. Ortho Pharm. Corp.(1985) 163 Cal. App. 3d 396, 402. The parties do not dispute the following material facts: The complaint alleges that Plaintiff presented to the emergency department of Alhambra Hospital Medical Center on 7/14/15, with heavy vaginal bleeding. UF 2. Defendant, Haiping Wang, M.D., was asked to consult. Dr. Wang suggested that patient undergo a D&C procedure. UF 3. Dr. Wang per...

Excerpt: ...n 3/2/17 does not reflect that Plaintiff served the Summons and Complaint on Defendant L.A. Care. The only document identified on the proof of service is a “Proof of Service Court.” The complaint must be served by someone other than a party to the action. Cal Code Civil Procedure § 414.10. The papers were improperly served by the Plaintiff in this action, as reflected on the proof of service filed with the court on 3/2/17. Plaintiff bears th...

Excerpt: ...er's deposition where the deponent fails to appear or proceed or produce documents for inspection without having served a valid objection. Cal. Code Civ. Proc. § 2025.450. Defense counsel has complied with the statutory requirements to meet and confer. Cal. Code Civ. Proc. 2025.450(b)(2). Defendant's counsel has attempted to resolve the issues informally after each of the three noticed depositions were cancelled at Plaintiff's request, witho...

Excerpt: ... which terminating sanctions are ordered pursuant to §2023.030(d). The complaint is dismissed. Defendant's request for monetary sanctions is DENIED for improper notice. The requesting party must identify in the notice, the person, party and/or attorney against whom the sanction is sought as well as the type of sanction sought. This information is not contained in the notice, and the body of the motion does not discuss imposition of sanctions. Ca...

Excerpt: ...year after the date of injury or the date when Plaintiff discovered or should have discovered the injury, whichever occurs first and no more than three years from the date of injury. Cal Code Civ Proc § 340.5. Plaintiff's suspicion of negligence would commence the running of the statute of limitations. Knowles v. Superior Court (2004) 118 Cal. App. 4th 1290, 1300. The statute begins to run if the Plaintiff has notice or information of circumstan...