Excerpt: ...vious conditions, or those conditions that could have been observed in the exercise of reasonable care. Edwards v. Cal. Sports, (1988) 206 Cal. App. 3d 1284, 1288. Causation can be decided as a matter of law if “on undisputed facts there can be no reasonable difference of opinion on causal nexus.” Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139. Additionally, “[w]hen opposing parties tell two different stories, one of which...

Excerpt: ... 913.) However, in determining whether to issue such an order, absent showings of direct relevance, compelling need, and unavailability of alternative sources, the court would find that the privacy interest in medical record prevails. (See Ombudsman Services of Northern California v. Superior Court (2007) 154 Cal.App.4th 1233, 1251.) Here, Defendant contends that Plaintiff has placed the examinations conducted on 11/30/15 and 5/6/16 at the VA Hos...

Excerpt: ...om, which involved removing portions of the wall and flooring. UF 1. Alliance began work on Plaintiffs' bedroom on 8/6/15. UF 2. Plaintiffs' evidence does not dispute that Alliance put the materials it removed into double sealed bags. UF 3. Plaintiff cites to other portions of testimony to call into question the reliability of the declaration of Barry Barron, Alliance's foreman, however, the court does not consider the credibility of the witnesse...

Excerpt: ...) Named Defendants The Right Track, Inc. and Bobby Hopkins, Jr. were served on October 20, 2017. (Id. at ¶4, Exhs. 1 and 2.) Plaintiff moves this Court to set aside the dismissal entered on October 25, 2017 and that the present matter be restored to the active calendar in the Los Angeles Superior Court. It has been established that under the statute allowing relief from default for attorney's mistake, inadvertence, surprise, or neglect, reli...

Excerpt: ...in Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428: Motions for leave to amend are directed to the sound discretion of the judge: “The court may, in furtherance of justice and on any terms as may be proper, allow a party to amend any pleading . . . .” (Code Civ. Proc., § 473, subd. (a)(1).) However, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (19...

Excerpt: ...picable” and “carried on by the defendant with a willful and conscious disregard of the rights or safety of others” in order to allege malicious conduct. “Oppression” requires conduct that can be regarded as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” Civ Code §3294(c). The inclusion of the word “despicable” in the statute (amended in 1987) indicates t...

Excerpt: ...earing date, the defendants are to inform the Court so that the motion to consolidate can be placed off calendar. Legal Standard For a demurrer, the allegations of the complaint are read liberally and plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (See Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) Meet and Confer Before filing a demurrer, the demurring party is...

Excerpt: ...ment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.) A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy. (Code Civ. ...

Excerpt: ...om their duties as counsel, Form MC-053. In Paragraph 2 of Form MC-052, moving counsel declares the following Reasons for Motion: There has been irreconcilable differences of opinion between Plaintiff and Plaintiff's counsel leading to a complete breakdown in the attorney-client relationship. Specifically, certain significant issues surfaced related to the prosecution of this case, which to date remain unresolved. Current counsel and plaintiff ar...

Excerpt: ...rder a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action ass...

Excerpt: ...court, upon motion reasonably made by the party, the witness, or any consumer described in CCP § 1985.3, or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare, including protective orders. (See CCP §§ 1985.3(g), 1987.1, 2025.420(b); See also Monarch Hea...

Excerpt: ...and caused injuries and damages to Plaintiffs. On 1/3/18, a process server for Plaintiff purported to serve the summons and complaint on Defendant by substituted service. (Malavenda Decl. Exh. A.) Defendant moves to quash the service of summons and complaint. Alternatively, if the court denies the motion, Defendant requests the court stay the action based on Defendant's current deployment abroad with the U.S. Armed Forces. Discussion One basis fo...

Excerpt: ...quested documents. Plaintiffs served notices of taking deposition and request for production of documents on Defendant on May 4, 2017, September 14, 2017, December 20, 2017, January 9, 2018, and January 16, 2018. (See Akemon Decl., ¶ 5, Exs. A-E.) No objections were made to any of these deposition notices. (See id.) When Plaintiffs' counsel inquired about the depositions, Defense counsel informed him that they were working on obtaining dates for...

Excerpt: ...fs”) were completing electrical work on a building owned by Harout Berberian (erroneously sued as “Harry Berberian”) and German Auto Parts Depot, Inc. (together “Defendants”). In attempting to access the roof of the building, Plaintiff Haig Sargsyan fell from his ladder, falling twenty feet on to Plaintiff Hrayr Sargsyan, who was standing on the ground underneath him. Plaintiffs both sustained injuries from the incident. On May 19, 2016...

Excerpt: ...laintiffs”) met at a restaurant owned by Le Soleil LLC dba The Gate to the Mediterranean (“Defendant”). When Plaintiffs approached to greet each other, Plaintiff Anahit slipped on a liquid on the floor, causing both Plaintiffs to fall to the floor and sustain injuries. On September 8, 2015, Plaintiffs filed the complaint against Le Soleil LLC dba The Gate to the Mediterranean (“Defendant”) alleging one cause of action for negligence. On...

Excerpt: ... on her leg. Plaintiff alleges the treatment was so ineffective that it was “obvious to the naked eye of a lay person.” Id. What was originally a small wound “grew to the enormous size of about 100 mm in width.” Id. Plaintiff alleges defendant prescribed painkillers, opioids, and sedatives in the course of two years of treatment. Id. at ¶ 9. Plaintiff alleges she suffered severe opioid related withdrawal symptoms to the point where “sh...

Excerpt: ...s made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the d...

Excerpt: ...surance Company (“Plaintiff”) filed the operative Complaint for damages arising out of an automobile incident which occurred on October 26, 2016. The Complaint is brought against Aide Estefania Mendez- Cortes (“Mendez-Cortes”) and Curiel Sebastian (“Sebastian”) (together, “Defendants”). While driving a vehicle that Sebastian owns, Mendez-Cortes struck Samuel Meraz's (non-party) vehicle which is insured by Plaintiff. Discussion Pla...

Excerpt: ...own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of t...

Excerpt: ...ssary trial of damage questions. Trickey v. Superior Court of Sacramento County, 252 Cal. App. 2d 650, 653 (Cal. App. 3d Dist. 1967). “Whether separate actions shall be considered for trial or whether there shall be a severance and separate trials of issues in a single action is matter within the discretion of the trial court.” McArthur v. Shaffer (1943) 59 Cal.App.2d 724, 727. This is a TRIAL COURT issue for the trial judge to determine. Def...

Excerpt: ...ecree by a nunc pro tunc order.” (In re Eckstrom's Estate (1960) 54 Cal.2d 540, 544.) “The function of a nunc pro tunc order is merely to correct the record of the judgment.” (Id. (internal quotations omitted).) Discussion The Court will first discuss the facts that can be discerned from the Declarations and Exhibits attached to Plaintiff's motion. Plaintiff's Counsel filed a Complaint electronically via JournalTech on December 5, 2017 in a...

Excerpt: ...am Frillici and Does 1 through 100. Though not specifically stated in the complaint, it seems that Plaintiff is alleging a cause of action for negligence. The complaint alleges the following: 1) on July 29, 2016, Kinmanfrillici while under the influence of alcohol negligently operated a vehicle owned by Kinmanfrillici and Paul William Frillici, and caused a collision with Plaintiff's vehicle thereby injuring Plaintiff. (Complaint ¶¶ 7- 9); 2) K...

Excerpt: ...gence against Jonathan Ancheta, (3) general negligence against Walter and Lillian Ancheta, (4) general negligence against Walter and Lillian Ancheta; (5) intentional tort against Walter and Lillian Ancheta and premises liability against Walter and Lillian Ancheta. The complaint alleges the following: 1) in 2006, when Plaintiff was eight years old, Plaintiff was placed in a day care center owned and operated by Walter and Lillian Ancheta in the de...

Excerpt: ...er. Default was entered on April 08, 2016. An OSC re Entry of Default Judgment (after continuances) was subsequently set for January 03, 2018. Plaintiff failed to appear, and the suit was dismissed. On January 05, 2018, Plaintiff filed the instant motion to set aside the dismissal. Analysis Plaintiff seeks relief from the January 03, 2018, dismissal. Whenever an application for relief is made no more than six months after entry of dismissal, is i...

Excerpt: ...of establishing good cause for a continuance. The suit was only filed in July 26, 2017, and Defendant has been productive in the six months since, arranging for other defendants to be dismissed from the suit, propounding discovery, and meeting and conferring with Plaintiff regarding responses to that discovery. Notwithstanding these efforts, discovery is still in the very early stages, with no documents having yet been produced by Plaintiff or Pl...

Excerpt: ...ranted. Defendant thereafter filed the two instant motions, on January 12, 2018, to (1) compel Plaintiff to participate in an independent medical examination with Defendant's proposed expert, Dr. Jeffrey Korchek, and (2) to permit Defendant to serve a tardy expert witness designation. Legal Standard-Tardy Expert Lists A party may obtain relief from a failure to timely serve expert witness information pursuant to CCP § 2034.720: The court shall g...

Excerpt: ...o allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. See Ramirez v. Sturdevant (1994) 21 Cal. App. 4th 904, 915; People v. Prince (1968) 268 Cal. App. 2d 398. Moreover, CRC Rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Moti...

Excerpt: ... for summary judgment on grounds that there is no evidence that he breached a duty to Plaintiff or any other party and there is no causal connection between any act or omission on his part and Plaintiff's injuries. (See id., Ex. A.) In addition to the $7,500 settlement, Lazzaretto has agreed to dismiss its cross-complaint with prejudice within five days of the date of the order granting the instant application for good faith settlement and to wai...

Excerpt: ... and have made progress in completing that task. Additionally, summary judgment would be impossible without a continuance. All of these factors support a continuance. The primary problem is the schedules of the various counsel. Defendants assert that they believe trial will require 10 days, and therefore request that trial be scheduled for October 22, 2018, or later. In light of the foregoing scheduling concerns, the Court agrees a post-October 2...

Excerpt: ...Desert Trailer has already filed their answer to the complaint. Desert Trailer has requested leave to file a cross-complaint because it only recently received a copy of the lease agreement with TLC Express. (Motion p.3.) The lease agreement provides an indemnification provision favorable to Desert Trailer. (Motion p.3.; Ex. “A”.) Legal Standard: A cross-complaint may be either permissive or compulsory. Compulsory cross-complaints are those in...

Excerpt: ...ly calendared by Plaintiff's counsel, Shahin Karimian, and no one appeared. The case was dismissed on August 28, 2017. On October 18, 2017, Plaintiff filed a Motion to Vacate and Set Aside Dismissal due to Mr. Karimian's error. The motion was granted and the OSC re Dismissal for Failure to Serve was set for January 3, 2018. The case was dismissed again on January 3, 2018 for failure to prosecute when no one appeared for the OSC. On January 10, 20...

Excerpt: ...without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangibl...

Excerpt: ...se per a January 24, 2018 Court Order, Defendant Performance is ordered to appear for a deposition on February 14, 2018. The trial date is March 29, 2018. Shepherd argues that because Performance is a corporation and cannot appear in pro per, Shepherd cannot purse discovery and is impeded from preparing the case for trial. Shepherd requests denial, or alternatively to modify to request as follows:  Deny withdrawal until such time as substitute...

Excerpt: ...ode of Civil Procedure section 2020.010, et seq. (C.C.P. §§ 2020.010(b), 2025.280(b); see also Sears, Roebuck & Co. v. National Union Fire Insurance Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 (discovery from nonparties is governed by Code of Civil Procedure section 2020.010, et seq., and is primarily carried out by way of subpoena).) While penalties for disobedience of a subpoena are generally governed by Code of Civil Procedure sectio...

Excerpt: ...017, alleging general negligence and premises liability. Defendant Roger Ploum now brings the motion to change venue to Orange County, CA. Defendant Ploum is joined by Defendants Greystar and New Pacific. Defendants bring the instant motion pursuant to CCP § 397, which provides in pertinent part, “The court may, on motion, change the place of trial in the following cases:…(c) when the convenience of witnesses and the ends of justice would be...

Excerpt: ...ence on these previous motions on December 15, 2017. On December 15th, the court issued a minute order moving the motions to compel at to set one to be heard on February 6, 2018. For an unknown reason, Plaintiff filed the motions to compel as to the second set of interrogatories on the same day as the IDC, but did not inform the court about the issues with the second set of discovery during the IDC. In addition, Plaintiff has not scheduled an IDC...

Excerpt: ...or a physical examination under this article is directed fails to serve a timely response to it, that plaintiff waives any objection to the demand. The court, on motion, may relieve that plaintiff from this waiver on its determination that both of the following conditions are satisfied: (1) The plaintiff has subsequently served a response that is in substantial compliance with Section 2032.230.” (2) The plaintiff's failure to serve a timely...

Excerpt: ...ding party may move for an order compelling responses and for a monetary sanction. (C.C.P. § 2030.290(b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal...

Excerpt: ... defense and indemnity with a non-response.” (Brinson Decl., ¶ 5). Brinson attests that defendant thereafter “immediately reserved the first available hearing date for its motion for summary adjudication[,] [which was] June 7, 2018.” (Id., ¶ 12). Court Reservation System (“CRS”) records reflect that this reservation was made on December 28, 2017. Defendant thus seeks an order continuing the trial date until after the June 7, 2018 hear...

Excerpt: ..., the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered again...

Excerpt: ...ion 2030.010, the propounding party may move for an order compelling responses and for a monetary sanction. (C.C.P. § 2030.290(b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Supe...

Excerpt: ..., section 15(a)(2) states that attorney fees are 41,777.00. Second, the calculation of additional costs in section 14(b) is incorrect. Section 14(b) and the declaration in support of the attorney fees attached as attachment 14(a) state that the sum of the listed expenses is $12,461.00. However, the sum based on the numbers provided in the petition in reality is $12,372.97. <0057005200030045004800 0011001300130003004c>n sections 14(b) and 17(d), t...

Excerpt: ...cordingly, the Court grants judicial notice of Exhibit K, Plaintiffs Complaint. Motion for Summary Judgment 1. Inherently Dangerous Activity Defendant argues rock climbing is an inherently dangerous activity, citing Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040, 1047. (MSJ p.8.) Defendant claims, “Plaintiff voluntarily participated in an activity which courts have concluded is inherently dangerous.” (MSJ p.9...

Excerpt: ...mber 1, 2016, and supplied repair and maintenance records on October 10, 2017. These records showed that Defendant had the tires repaired at Sears thirty-six days before the incident that allegedly injured Plaintiff. In light of this new evidence, Plaintiff moves the court to amend the complaint to add a cause of action for strict products liability against Sears Roebuck and add Sears Roebuck as an additional defendant. No opposition has been fil...

Excerpt: ... support a claim for punitive damages must be intended to cause injury or despicable conduct carried on by Defendant with a willful and conscious disregard of the rights of others. Civ Code § 3294(c)(1). This is the definition of malice. Plaintiff alleges that he was deliberately attacked by security guards and/or bouncers employed by Defendants. Complaint 3:19‐22. The security guards are specifically identified as Defendants, Cesar Aguero and...

Excerpt: ...eply has been filed. Service CCP § 1005(b) states in pertinent part: “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.” The Court notes that Plaintiff's counsel provides two addresses in the Complaint, Summons, and Proof of Ser...

Excerpt: ...ist the medical treatment at issue in this suit. To investigate this issue, Defendant sought discovery of various employment records and disability claims made by Plaintiff from her employer, the U.S. Post Office, as well as from the U.S. Department of Labor and Social Security Administration, which handled the claims in question. Defendant received a response, indicating that state courts lacked authority to subpoena personnel records from feder...

Excerpt: ... a significant number of Plaintiff's objections to the expert declaration offered in support of Defendant's motion. As a result, the Court indicated it was inclined to deny the motion, on the ground Defendant had failed to carry his burden of demonstrating that he had complied with the requisite standard of care. The Court noted, at the time, that Plaintiff's expert's declaration was likewise insufficient, due to Defendant's meritorious objection...

Excerpt: ...ective order must be accompaniedby a declaration setting forth facts demonstrating a reasonable and good faith attempt to meet-and-confer to resolve the dispute before seeking judicial intervention. (Id. §§ 2016.040, 2025.420(a).) As with any motion for a protective order, the moving party bears the burden of demonstrating “good cause” for granting the requested relief. (Id. § 2025.420(b); Nativi v. Deutsche Bank Nat'l Trust Co. (2014) 223...

Excerpt: ...and seeks to strike the declaration of Michael J. Sundstedt in support of the opposition and the accompanying exhibit B which is a traffic report on the ground that they have been improperly attached and are irrelevant to the instant motions. The Court notes that for demurrer and motion to strike purposes, the Court only looks to the face of the pleadings and judicially noticed facts. (CCP §§ 430.30, 430.70 and 437.) Accordingly, the Court will...