Excerpt: ...Service, Inc. to Quash Service of the Summons and Complaint, filed on 2/21/18 is GRANTED as Plaintiffs have not met their burden of establishing that the court can exercise personal jurisdiction over Defendants. Defendants can move to quash service of the Summons and Complaint based on lack of jurisdiction. Cal Code Civ Proc § 418.10(a)(1). 3. Personal Jurisdiction a. The burden falls on Plaintiff to establish that all criteria for personal juri...

Excerpt: ...4 Wilshire Boulevard, Suite 11704 Wilshire Boulevard, Suite 11710, Los Angeles, CA 90025. 1. The court DENIES Ms. Burnett's request for an in camera hearing as there is no basis or authority for it, and it would unfairly preclude Defendant's counsel's participation. It would also be improper ex parte communication.CA ST RPC Rule 5-300 2. Defendant is entitled to demand a physical examination of a personal injury Plaintiff without leave of court p...

Excerpt: ...not dispute that the banana fell to the floor at 7:39 p.m., affirming without dispute that the condition existed for 12 minutes. UF 3. 2. Premises liability is a form of negligence, which involves the duty of a premises owner to exercise ordinary care in the management of the premises to avoid exposing others to an unreasonable risk of harm. Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619. Premises liability is a “spec...

Excerpt: ...ants' Joinder asserts new arguments of which Plaintiff did not have notice nor an opportunity to Reply. 2. Leave to amend is permitted at the court's discretion upon any terms that may be just. Cal Code Civ Procedure § 473. The statute is liberally construed to permit amendment of the pleadings unless an attempt is made to present an “entirely different set of facts.” Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. If the motion is ti...

Excerpt: ...vidence. Plaintiff must make a prima facie case for recovery of punitive damages if the evidence is credited. Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539 . Plaintiff must show that Defendant acted with malice, fraud or oppression to warrant recovery of punitive damages as those terms are defined by Civil Code § 3294. Malice “means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct wh...

Excerpt: ...Service, Inc. to Quash Service of the Summons and Complaint, filed on 2/21/18 is GRANTED as Plaintiffs have not met their burden of establishing that the court can exercise personal jurisdiction over Defendants. Defendants can move to quash service of the Summons and Complaint based on lack of jurisdiction. Cal Code Civ Proc § 418.10(a)(1). 3. Personal Jurisdiction a. The burden falls on Plaintiff to establish that all criteria for personal juri...

Excerpt: ... Detail, (Exhibit D), Pursuant to Cal. Code Civ. Proc. § 437c(q), when the court grants or denies a motion for summary judgment or summary adjudication, it need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved for appellate review. Cal. Code Civ. Proc. § 437c(q). Here, Defendants did not meet their threshold bu...

Excerpt: ...ant's challenge to the Plaintiff's cause of action.” Eriksson v. Nunnink, (2011) 191 Cal. App. 4th 826, 848. A party cannot raise new issues of materiality merely by submitting a Declaration in opposition to the summary judgment motion. Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223. Plaintiff argues that Defendants did not advise Plaintiff that the cataract surgery was elective and that it was not medically necessary if s...

Excerpt: ... 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 (a), (c). Defendant has shown good cause for the neurological and neuropsychiatry examination since Plaintiff claims to have suffered traumatic brain injury, along with other neurological symptoms including, headaches, cognit...

Excerpt: ... McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375. Plaintiff can amend the complaint to state the true name of a Doe Defendant under Cal Code Civ Procedure § 474.Austin v. Massachussetts Bonding (1961) 56 Cal.2d 596, 599. 1. The general rule provides that the Amendment to Complaint substituting Berkshire for Doe 1 does not relate back to the filing of the original complaint to avoid the 2-year statute of limitation...

Excerpt: ...claration of Frank Perez; Declaration of Humberto Ardon. 1. Plaintiff has shown good cause for a continuance given Plaintiff's condition has not stabilized, and he is currently receiving treatment for his left foot, which was injured in the subject accident. Ardon Declaration, ¶ 5-6. Accordingly, the case does not appear ready for trial given Plaintiff's still-evolving condition. Cal Rules of Court 3.1332. Trial is currently set for 9/25/18. Pla...

Excerpt: ...tify at her deposition, as Plaintiff's counsel offered future dates for the deposition when the prior depositions were cancelled. Plaintiff could not attend the 5/10/18 deposition because her disabled sister required emergency transport on 4/27/18 and required a 2-day stay in the hospital. Hofer Declaration ¶ 6. Plaintiff has been in Las Vegas to care for her sister since that time. Id. Defendant's counsel does not attest that he met and...

Excerpt: ...d of the dangers such misconduct would and did create for the rights and safety of the public, including Decedent and Plaintiffs. Plaintiffs are further informed and believe, and thereon allege, that for a substantial period of time prior to the SUBJECT INCIDENT, said Defendants acted with malice in that they engaged in despicable conduct in conscious disregard of the rights, safety, and welfare of Decedent Timothy Wise” Page 9, ¶ 23, line 20 ...

Excerpt: ...anski v. Von's (1983) 146 Cal.App.3d 29, 32. 2. Defendants are entitled to obtain discovery by means of a physical or mental examination. Cal Code Civil Procedure § 2032.020. Leave of court is required for mental or “other” exams. Cal Code Civil Procedure § 2032.310(a). 3. Defendants must show good cause for the examinations unless Plaintiff stipulates that he is not making a claim for mental and emotional distress “over and above that us...

Excerpt: ...il Procedure §36(a). 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. Cal Code Civil Procedure §36.5. The Supplemental Declaration of Patrick Gunning filed on 6/15/18 is sufficient to meet Plaintiff's burden of showing that Plaintiff's health is “such that that a preference is necessary to prevent prejudicing the party's interest in the lit...

Excerpt: ...ment an expert witness list if the party engaged in a timely exchange of expert witness information. Code Civ. Proc., § 2034.610 Defendant timely participated in the simultaneous exchange of expert witness information on the due date. Defendant's Motion, Ex. A. The motion may be made in a “sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of ...

Excerpt: ...ympic Chiropractic (“Olympic”) and Does 1 to 50 alleging causes of action for (1) professional negligence, (2) medical battery and (3) loss of consortium. The complaint alleges the following: 1) On February 27, 2017, plaintiff Ashley Lee went to Olympic for chiropractic treatment for her neck, shoulder and arm. (Complaint ¶¶ 8, 12); 2) Camarillo, who is a chiropractor and works at Olympic treated plaintiff Ashley Lee. (Id. ¶¶ 1 and 8, 12)...

Excerpt: ...ther members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305. Proof of the standard of care, whether Defendant breached it, and the element of causation all require expert testimony.Landeros v. Flood (1976) 17 Cal.3d 399, 410; Jones v. Ortho Pharm....

Excerpt: ...Stores and 99 Cents Only Stores, LLC, alleging two causes of action for 1) premises liability, and 2) negligence. On April 19, 2018, Defendant 99 Cents Only Stores, LLC (“Defendant”) filed a demurrer and motion to strike portions of the Complaint. On May 19, 2018, Plaintiffs filed an opposition. On May 22, 2018, the Court continued the hearing on the motions to July 9, 2018 for lack of a meet and confer declaration. On May 23, 2018, the Court...

Excerpt: ...18/18 to permit Plaintiff to file a Reply brief. None has been filed. Plaintiff does not cite any other prejudice. The court has discretion to consider late papers in favor of the strong policy favoring disposition of the case on the merits.Kapitanski v. Von's (1983) 146 Cal.App.3d 29, 32. 1. The court can quash the subpoena or issue a protective order to protect the parties from unreasonable or oppressive demands including unreasonable violation...

Excerpt: ...er Deeming the Truth of the Matters Specified in Requests for Admission, Set One Admitted and Request for Sanctions, filed on 4/30/18 is GRANTED. Cal Code Civ Procedure §2033.280(b). The court will deem the requests admitted unless, before the hearing on the motion, Plaintiff serves a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. Cal Code Civ Procedure § 2033.280(b). The court imposes t...

Excerpt: ...sary 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. Here, Defendant has not persuasively shown that liability is clearly established in Defendant's favor or that a defense verdict is “likely.” Motion, 6:7-8. Even if Plaintiff was not in the crosswalk at the time of the incident...

Excerpt: ...sary 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. Here, Defendant has not persuasively shown that liability is clearly established in Defendant's favor or that a defense verdict is “likely.” Motion, 6:7-8. Even if Plaintiff was not in the crosswalk at the time of the incident...

Excerpt: ...n of showing that the expert possesses confidential information materially related to the proceedings before the court. If that showing is made, a rebuttable presumption arises that the information has been used or disclosed in current employment. DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 686. Plaintiff has met her burden of showing that Dr. Shuman possesses such confidential information. Defense counsel disclosed in a letter to ...

Excerpt: ... 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 (Cal. 1971). Here, Defendants facts on the liability issue do not support bifurcation given Plaintiff's evidence demonstrating that the defendant driver exceeded the speed limit. Opposition, Ex. 2, 24:12, 25:24-25, 26:16-22, 27:12-25. Additi...