Excerpt: ...tiff appeared and indicated the parties were discussing settlement. The Court set the case for an OSC re: dismissal for 9/15/17. The OSC was continued twice at Plaintiff's request, to 12/15/17 and then 3/08/18. On 3/08/18, no party appeared, and the Court dismissed the case. At this time, Plaintiff moves to set aside the dismissal. Plaintiff's attorney declares the failure to appear at the OSC was due to a calendaring error in her office. The Cou...

Excerpt: ...entative ruling, which was adopted as the final ruling after hearing: Defendant seeks an order permitting Michael Caleb Meyer to appear as counsel pro hac vice in this action. The application fails to fully sati$' CRC 9.40. While the applicant establishes that he is licensed in the States of Colorado and Nevada, is in good standing, does not regularly work or live in CA, and has an associated CA attorney, Aaron S. Motschenbacher associated as cou...

Excerpt: ...se Counsel called Plaintiff's attorney's office to confirm the deposition, and was told Counsel would return the call; there was no return call, and Plaintiff did not appear for deposition the next day. At this time, Defendant moves to compel Plaintiff's deposition and seeks to recover sanctions. The motion to compel is granted. CCP §2025.450(a) requires the Court to grant a motion to compel deposition if a deponent failed to appear for a duly n...

Excerpt: ...f medical records necessary. Additionally, Defendant contends many of its employee witnesses are not available during the summer, because they are on vacation with their families, and therefore trial should be continued until September of 2018. Plaintiff concedes additional discovery concerning medical records is necessary, and indicates the parties have agreed to an IME on 4/28/18. Plaintiff does not oppose a brief trial continuance to complete ...

Excerpt: ...2017, plaintiff Babak Saidian (“Plaintiff”), filed a complaint against defendants Sedrak Ekimyan (“Ekimyan”), Tommy Express Car Wash (“TECW”) and Does 1 to 20 alleging causes of action for (1) negligence, (2) battery and (3) assault. The Court notes that while the first page of the complaint lists Plaintiff's causes of action as (1) negligence, (2) battery and (3) assault (Complaint p.1), the complaint later names battery as the first...

Excerpt: ...s, but failed to serve verifications. Defendant therefore filed a motion for terminating sanctions. The motion was originally set for hearing on 1/26/18. The Court has continued the hearing on the motion a total of four times to permit Plaintiff to provide proper verifications; Plaintiff has served verifications, but they are not in proper form. On 4/05/18, the Court continued the hearing on the motion for the fourth time; the Court continued the...

Excerpt: ...unit owned by Cassell and rented by Mazza. At this time, Cassell seeks leave to file a cross‐complaint against Mazza for indemnification and related claims. Cassell contends she learned, during Mazza's deposition, that Mazza had an old bath mat next to the shower and had a burned out light in the bathroom, such that Mazza is primarily at fault for the subject incident, and must indemnify Cassell to the extent she is found liable for Plaintiff's...

Excerpt: ...nt in connection with a laparoscopic partial gastrectomy revision and fundoplication procedure performed on Ms. Flores . At this time, Dr. Yi moves for summary judgment, contending he complied with the standard of care at all times, and nothing he did caused or contributed to Plaintiff's claimed damages. Dr. Yi was the anesthesiologist in connection with Plaintiff's surgery. Defendant supports his motion with the expert declaration of Garry Nitti...

Excerpt: ...ey can be consolidated. On 8/10/17, the Court deemed the cases related, such that they are ripe for consolidation at this time. CCP §1048 grants discretion to the trial courts to consolidate actions involving common questions of law or fact. The trial court's decision will not be disturbed on appeal absent a clear showing of abuse of discretion. A consolidation of actions does not affect the rights of the parties. The purpose of consolidatio...

Excerpt: ...er for punitive damages based on the allegation that Defendant was intoxicated at the time of the subject accident. 2. Motion to Strike At this time, Defendant moves to strike the prayer for punitive damages and related allegations. a. Law Governing Punitive Damages in the Context of Driving Under the Influence Allegations that a defendant exhibited a conscious disregard for the safety of others are sufficient to show malice. Taylor v. Superior C...

Excerpt: ...trike. Defendant correctly notes in her moving papers that there are no facts pled in the complaint to support the conclusion that Defendant acted with malice, fraud, or oppression in connection with the attack. Per Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6, a complaint seeking imposition of punitive damages must be supported by facts, as opposed to conclusions, concerning fraud, malice, and/or oppression. The motion to strike is there...

Excerpt: ...on 1/24/18, setting the exchange date for 2/19/18. Defendant served an expert exchange demand on 1/29/18, setting the exchange date for 2/20/18. Defendant complied with the deadline, but Plaintiff did not. 2. Law Regarding Tardy Expert Designation If a party fails to timely designate its expert(s), and wishes to do so on a later date, that party must make a motion for leave to designate an expert. Such motion is governed by CCP §2034.720, which ...

Excerpt: ...tion to Transfer Venue At this time, Defendants move to transfer venue to Ventura County, contending the accident took place in Ventura County. Defendants contend Ventura County is the most convenient forum for the action, as all percipient witnesses, including first responders and treating medical personnel, reside in Ventura County. The Court has the discretion, per CCP §397(c), to transfer an action if the Court finds the county in which it w...

Excerpt: ... sole remaining defendant. The basic facts concerning the incident are not in dispute. Plaintiff tripped on a U‐Boat flower cart that Ralphs used for stocking flowers. The U‐Boat was parallel to a floral display. Plaintiff was attempting to reach flowers beyond the U‐Boat, and he caught his ankle under the platform, tripped, and fell. 2. Motion for Summary Judgment At this time, Ralphs moves for summary judgment on the complaint, contending...

Excerpt: ...olicy limit of $15,000. Defendants seek an order from the Court finding that the settlement is in good faith. The Court notes that there are no other defendants in the action, and there are no cross‐ complaints on file. CCP §877.6 applies only to a “settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co‐obligors …” CCP § 877.6(a)(1). the word “alleged” means the defendants need not be ...

Excerpt: ... Court entered an order granting Defendant's motions to compel responses to the outstanding discovery, and also imposing sanctions; the Court ordered Plaintiffs to serve verified responses within ten days. To date, Plaintiffs have not complied with the order; at this time, Defendant seeks an order imposing terminating sanctions. In the alternative, Defendant seeks an OSC re: contempt and/or imposition of monetary sanctions. Pursuant to Deyo v. Ki...

Excerpt: ...ices was added as a doe defendant in the action on 3/10/17. The trial date in the case has been continued twice. It is currently scheduled for 7/10/18. The discovery cut‐off, however, is based on the prior 3/27/18 trial date. Discovery is, therefore, cut off at this time. 2. Motion to Continue Discovery Cut‐Off Defendant, Choura moves to re‐open the discovery cut‐off to permit it to conduct discovery from Plaintiff's treating physicians. ...

Excerpt: ... California State University for damages arising out of a fall that occurred on Defendants' premises. 2. Motion to Transfer Venue Defendants move to transfer venue on the ground that the incident occurred in Orange County, all defendants reside in Orange County, and the parties have stipulated to change venue to Orange County. In light of the showing that venue is not proper in LA County, and in light of the parties' stipulation, the motion to ch...

Excerpt: ... filed a cross‐complaint against Arctic and Union Ice. On 7/27/12, Arctic and Union Ice filed a Notice of Stay of Proceedings because they had commenced bankruptcy proceedings. On 6/06/13, Plaintiff dismissed Arctic; she has not, to date, dismissed Union Ice. None of the cross‐complaints have been dismissed. 2. Motion to Dismiss a. Parties' Positions At this time, Rite Aid moves for an order dismissing the action pursuant to CCP §583.310, wh...

Excerpt: .../19/18, when these motions were filed. On 4/10/18, Plaintiff filed timely opposition to the motion. The opposition indicates substantive responses, without objections, will be served prior to the hearing. In Defendant's reply, Defendants concede the motions are substantively moot. The remaining issue is whether to impose sanctions. Plaintiff argues sanctions should not be imposed because there was substantial justification for his failure to time...

Excerpt: ...16. Plaintiff has not, to date, filed proof of service of the summons and complaint. The case was scheduled for an FSC on 8/22/17 and trial on 9/08/17. Plaintiff did not appear at the FSC or the trial, and on 9/08/17, the Court dismissed the case. On 3/26/18, Plaintiff filed the instant motion to set aside the dismissal. Of note, the caption of Plaintiff's motion to dismiss erroneously indicates the defendant in this action is Los Angeles Unified...

Excerpt: ...e (“IDC”) as required by the Court's 6 th Amended General Order Re: PI Court Procedures (2/25/16), which is available on the LA Superior Court's website, under the Personal Injury section. Additionally, CRC 3.1345(a)(4) requires a separate statement when a party moves to compel answers at a deposition. Plaintiff did not file a separate statement. Finally, the Court notes that Plaintiff did not tab exhibits, as required by CRC 3.1110(f), and d...

Excerpt: ...o compel on 2/06/18, setting them for hearing on 3/09/18. For reasons that are also not clear, Plaintiff did not receive the motions and did not oppose them or appear at the hearing. On 3/09/18, the Court granted the motions to compel. On 3/21/18, Defendant filed the instant motion for terminating, issue, evidence, and/or monetary sanctions. On 4/10/18, Plaintiff timely filed opposition to the motion. Plaintiff attached, as an exhibit to the oppo...

Excerpt: ...on. The parties agreed that an IME was necessary, but disagreed about whether or not it was proper for the defense expert to have a “female chaperone” in the room while the examination was conducted. The Court found in Defendant's favor and ordered Plaintiff to be present with the defense expert and a female chaperone. Defendant, after the hearing, scheduled Plaintiff's IME for 3/07/18. On 3/07/18, Plaintiff appeared for her IME, but she refu...

Excerpt: ...filed a request for fee waiver with her complaint. The Court, on 2/08/18, issued an order indicating it needed more information in order to determine the validity of the request, and set a hearing for 2/22/18. Plaintiff did not appear on 2/22/18, and the Court therefore denied Plaintiff's request for a fee waiver. On 3/12/18, having not received the necessary filing fees, the Court entered an order voiding the filing of Plaintiff's complaint. At ...

Excerpt: ... were due on or before 3/08/18. As of 3/21/18, when Plaintiff filed the motion, Defendant had not served responses; Plaintiff therefore filed the instant motion seeking to have the RFAs deemed admitted, for an order that the objections to the other discovery “be waived,” and for imposition of sanctions. On 4/06/18, Defendant timely filed opposition to the motion. Any reply to the opposition was due on or before 4/16/18. The Court has not rece...

Excerpt: ...tment; it was filed on 8/10/17. On 10/03/17, Defendants filed an answer to the complaint. On 2/28/18, the Court granted Plaintiff's motion for leave to add a cause of action for gross negligence and a prayer for punitive damages to the complaint. Notably, Defendants filed opposition to the motion on 2/23/18, substantially tardy; the Court had not read or considered the opposition prior to the hearing. The Court, in its ruling, expressly indicated...

Excerpt: ...ich is 10/15/18. Defendant therefore seeks an order continuing the trial date until after the MSJ hearing date. The Court, in ruling on the motion, is guided by the case of Wells Fargo Bank v. Superior Court. The Court therein held that a trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c. (Wells Fargo Bank, N.A. v. Superior Court (1988) 206 Cal.App.3d 918. 919.) Local rules and practices may...

Excerpt: ...sponses to the subject discovery. The crux of the issue before the Court is whether and to what extent a plaintiff who appears in an action by and through her guardian ad litem must substantively respond to discovery. Stated another way, many of the questions posed by way of Defendant's discovery requests are questions to which the minor plaintiff would not reasonably know the answer, due to her age and immaturity. Plaintiff, in opposition to the...

Excerpt: .../18, the Court granted Plaintiff's attorneys' motions to be relieved as counsel. In light of the ruling granting the motion to be relieved, the Court continued the hearing on this motion for terminating sanctions for two months. Since the 2/16/18 continuance, Plaintiff has not filed any opposition to this motion and has not filed a substitution of attorney. The case is scheduled for trial in under two months, on 6/18/18. Pursuant to Deyo v. Kilbo...

Excerpt: ... 2. Confirmation of Award An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (CCP § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) A party who is satisfied with an arbitration award should move to confirm the award. A party may seek a court judgment confirming an arbitration award by filing and serving a petition at least 10 days, but no more than four years after the award is ser...

Excerpt: ...expert to inquire into her medical history. Plaintiff appeared at the examination, but the examination was not actually conducted because (a) the doctor began to question Plaintiff concerning her medical history, and Plaintiff refused to respond, and (b) the doctor asked Plaintiff to put on a gown, and Plaintiff insisted or wearing her loose‐ fitting skirt. On 3/19/18, Defendant filed this motion to compel Plaintiff to attend an IME. Defendant ...

Excerpt: ...the 3/01/18 deposition, Plaintiff's attorney requested a continuance of the deposition, indicating that substantive discovery responses would be served by 3/09/18, and that the deposition would be ripe thereafter. However, Plaintiff has not provided substantive discovery responses, and has not provided new dates for deposition; indeed, Plaintiff's attorney has a motion to be relieved as counsel pending. At this time, Defendant seeks an order comp...

Excerpt: ...uiry, Defense Counsel indicated the deposition would not go forward. Plaintiff wrote and requested deposition dates, but Defendant did not respond. On 1/12/18, Plaintiff again noticed Defendant's deposition, this time for 2/09/18. On 2/08/18, again only in response to Plaintiff's attempt to confirm the deposition, Defense Counsel indicated the deposition would not go forward; again, no reason was stated. Plaintiff went forward with the deposition...

Excerpt: ...ere Plaintiff fell, and Pulmuone was handing out samples of dumplings at the store. Plaintiff's complaint contains causes of action for premises liability against H Mart and general negligence against H Mart and Pulmuone. H Mart and Pulmuone have each filed cross‐complaints against the other for indemnification and related claims. Plaintiff alleges she slipped and fell on one of the dumplings that had been served by Pulmuone and dropped by a cu...

Excerpt: ...rising out of a slip and fall. Plaintiff filed her complaint on 11/10/15. Defendant filed its answer on 12/03/15. On 3/09/17, the Court granted Kmart's motion for leave to file a cross‐complaint against Kellermeyer Bergensons Services, LLC (“KBS”) for declaratory relief, indemnification, and related claims. 2. Motion for Judgment on the Pleadings At this time, Kmart seeks judgment on the pleadings on its cause of action for declaratory reli...

Excerpt: ...party appeared. On 2/13/18, the Court called the case for trial. Again, no party appeared, and the Court dismissed the case. At this time, Plaintiff moves to set aside the dismissal. Plaintiff's attorney declares the failure to appear at the FSC and trial was due to a calendaring error in his office. The Court has discretion to vacate a dismissal under Cal. Code Civ. Proc. §473. The motion must be made within “a reasonable time,” not exceedi...

Excerpt: ...are provided in Counsel's declaration in support of the motion. The motion is denied for two reasons. First, the motion is set to be heard unreasonably close to the trial date. The trial date in the case is 5/14/18, and the FSC is scheduled for 5/02/18, approximately one month after the hearing on this motion. Unlike their clients, attorneys do not have an absolute right to withdraw from representation at any time with or without cause. Even wher...

Excerpt: ...facts that defendant was negligent. See undisputed facts 5‐7 and Exhibits C and D to the Levy Declaration. The foregoing facts conclusively negate Plaintiff's sole causes of action against Ralphs for negligence and premises liability. Ralphs therefore met its burden to establish it is entitled to judgment as a matter of law on Plaintiff's complaint. Any opposition to the motion was due on or before 3/21/18. Plaintiff has not opposed the motion....

Excerpt: ...e involved in the accident, and PV Holding is sued as the owner of the automobile and for negligently entrusting the vehicle to Leelakanti. Plaintiff filed this action on 10/26/16. On 6/20/17, he filed an application to serve the summons and complaint on Leelakanti via publication. On 6/28/17, the Court granted the order for publication. On 8/14/17, she filed proof of service of the summons and complaint on Leelakanti via publication. Motion to Q...

Excerpt: ...lled three people. Plaintiffs filed their complaint on 11/03/17. 2. Motion to Transfer Venue At this time, Honda moves to transfer venue to Stanislaus County, contending the accident took place in Stanislaus County. Honda contends Stanislaus County is the most convenient forum for the action. a. Initial Note Any opposition to the motion was due on or before 3/21/18. The Court has not received opposition to the motion. b. Inconvenient Forum Defend...

Excerpt: ...s On December 22, 2017, plaintiff Carmen Reyes (“Plaintiff”), filed a complaint against defendant City of Monterey Park (the “City”) and Does 1 to 50. On February 2, 2018, Plaintiff filed a first amended complaint (“FAC”) alleging a cause of action for (1) negligence (2) premises liability, (3) negligence (Gov. Code sections 815.4 and 815.6) and (4) dangerous condition of public property. The first and second claims are alleged agains...

Excerpt: ...y that occurred at a party. Plaintiff's operative First Amended Complaint includes a cause of action for “intentional tort” against the Carrier Defendants. The substantive allegations of the cause of action are as follows: Chad Carrier and Gail Carrier owned, owned, managed and controlled a single family dwelling at 521 Via Del Monte, Palos Verdes Estates, CA 90274, wherein the following occurred, took place, and/or at which said defendants: ...

Excerpt: ...nted Fletcher's Floors's motion for terminating sanctions on Plaintiff's complaint. However, a cross‐complaint remains pending between Fletcher's and Ralphs, such that Fletcher's remains an active party in this litigation. 2. Motion to Compel Independent Medical Examination a. Initial Note Opposition to this motion was due on or before 3/20/18. CCP §1005(b). The Court has not received any opposition to the motion. b. Merits Defendant has propo...

Excerpt: ...r at either deposition. At this time, Defendant seeks an order compelling Plaintiffs to appear for their depositions on a date certain. CCP §2025.450(b)(2) provides, “(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating t...

Excerpt: ... Further Responses a. History of Discovery Dispute Defendants, Welch and Ramirez propounded form interrogatories and RFAs on Plaintiff on 9/29/17. Plaintiff served responses, which Defendant believed were insufficient. Defendant made an attempt to meet and confer with Plaintiff, who promised to amend/supplement the responses. Plaintiff did so on 1/08/18. However, Defendant continued to believe the responses were insufficient, and again attempted ...

Excerpt: ...ling Plaintiff to sign an authorization to permit the Los Angeles Air Force Base to release Plaintiff's medical records. Defendant presents no relevant authority in support of the motion to compel Plaintiff to sign an authorization. In Miranda v. 21 st Century Ins. Co. (2004) 117 Cal.App.4 th 913, 918‐919, the plaintiff made an underinsured motorist's claim. The defendant commenced discovery, which revealed that the plaintiff had been treated f...

Excerpt: ...nclude allegations of negligence per se and gross negligence or willful misconduct. The Court is inclined to sustain the demurrer to the fourth and fifth causes of action without leave to amend unless Plaintiff can make an offer of proof at the hearing on how the complaint can be amended to state a claim under Vehicle Code sections 14606 and 14604. The Court is also inclined to grant the motion to strike the prayer for punitive damages without le...

Excerpt: ...pulated to continue the trial date three times, and is currently scheduled for 6/19/18. At this time, Plaintiff moves to continue the trial date for approximately three months, from 6/19/18 to 9/12/18. Of note, all parties to the action agree to the requested continuance. Plaintiff indicates two reasons for the requested continuance: first, “counsel” (unclear whether this is Plaintiff's attorney or Defendant's attorney) requested Plaintiff's ...

Excerpt: ...ts were negligent in their care and treatment of her father, who had a disease called esophageal varacies. She alleges her father, in light of his condition, was to have a very reduced sodium diet. Her father told Defendants he had this condition, and they did not believe him; he died in the ICU as a result of their failure to treat him for this condition. 2. Motions for Summary Judgment At this time, Drs. White and Patrus move for summary judgme...