Excerpt: ... filed nine court days before the hearing, in this case, by June 14, 2018. Cal Code Civil Procedure § 1005(b). Regardless, Plaintiff has established prejudice by the late service of the opposition as Plaintiff could not file a substantive reply. See Plaintiff's Request to Strike 3:10-11. Therefore, any late-filed opposition is stricken. Cal Code Civil Procedure § 436. 2. The court can quash the subpoenas or issue a protective order to protect t...

Excerpt: ...”) and Does 1 to 20 alleging a cause of action for negligence/premises liability. The complaint includes a prayer for punitive damages. The complaint alleges that on April 4, 2017, Plaintiff was injured when he fell due to an unsafe condition consisting of broken metal frames on a sidewalk owned, maintained, controlled, managed and supervised by the defendants. (Complaint ¶¶ 6-8.) On April 26, 2018, City filed a demurrer and a motion to strik...

Excerpt: ...t infliction of emotional distress and (3) negligent hiring, training and supervision. On April 18, 2018, Plaintiff filed an amendment to the complaint by naming Albertson's LLC (“Albertson's”) as Doe 1. The complaint alleges that on February 26, 2016, while on premises owned and controlled by Albertsons Companies LLC, Plaintiff was injured when a thief who had escaped from a security guard knocked Plaintiff to the ground thereby causing her ...

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: ...red. Defendant has to show “excused inability” to obtain discovery despite “diligent efforts.” Defendant has not met that burden. Cal Rules of Court 3.1332(c)(6); Declaration of Vi Thomas. Consequently, the Court will continue the trial for less than the six month date requested. Trial is continued to November 9, 2018 @ 8:30 a.m. The FSC is continued to October 25, 2018 @ 10:00 a.m. All discovery and motion cut off dates will track the ne...

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). Mot...

Excerpt: ...intiff without leave of court provided the examinations are not painful, protracted, or intrusive and is conducted within 75 miles of Plaintiff's residence. Code Civ. Proc., § 2032.220. Defendant can move to compel compliance where Plaintiff fails to submit to an examination. Defense counsel attempted to meet and confer by email dated 5/10/18 after Plaintiff failed to appear at a scheduled examination. Motion, Ex. D. Declaration of Danielle Mitt...

Excerpt: ...rom unreasonable or oppressive demands including unreasonable violations of the right of privacy. Cal. Code Civ. Proc. §1987.1. The parties do not appear to dispute production of the billing records pertaining to the treatment of Plaintiff by Olympia for injury relating to this action. Motion, Ex. A, Paragraph 1 of Attachment 3 to the subpoena. Olympia discloses it has already produced the UB-04 Claim Form and its itemized bill for the services ...

Excerpt: .... The court's file reflects that the moving party is the only Defendant who answered the complaint. The court also imposes monetary sanctions of $240.00 against Plaintiff for misuse of the discovery process. Cal Code Civil Procedure §2023.030(a). Moving party is ordered to give notice. ...

Excerpt: ...rocedure §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 declaration of Plaintiff's counsel is, therefore, admissible to support the motion. The declaration is insufficient, since it contains no information “as to the medical diagnosis and prognosis” of Plaintiff. Declaration of Patrick Gunning. A...

Excerpt: ...ident site after Plaintiff's accident and signed the sweep sheet. Motion Ex. 5, 45:4-7, 60:10-14. Mr. Campos, counsel for Defendant, offered February 1, 6, 8, or 14. Motion, Ex. 7. Accordingly, on 1/26/18 Plaintiff served a Notice of Taking Deposition of Mr. Reighley, set for 2/14/18. Motion, Ex. 8. On 2/9/18 Defendant's counsel sent email canceling the deposition and informing that Mr. Reighley could be produced for deposition after 4:00 p.m...

Excerpt: ... and confer by sending a letter requesting a new date for Plaintiff's deposition, as Plaintiff was not available on 3/9/18. Cal. Code Civ. Proc. 2025.450(b)(2). Motion, Ex. B. Plaintiff did not respond. Flores Declaration ¶ 10. 2025.450(b)(2). Plaintiff contends she has “discovery priority” given that Plaintiff first served notices of taking the deposition of Defendant's person most knowledgeable beginning on 10/27/17. Declaration of Khaksho...

Excerpt: ...36(a). 2. 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. The declaration of Plaintiff's counsel is, therefore, admissible to support the motion. Code Civ. Proc., § 36.5 3. Plaintiff has shown that her health coupled with her advanced age requires a preferential setting to avoid prejudicing her interests in this slip-and-fall action. Plaintiff suffers ...

Excerpt: ...f alleges he suffered injury after he fell from monkey bars on 10/30/15, while on Defendant's premises. Complaint ¶ 1. Plaintiff alleges the monkey bars were negligently, carelessly, and reckless designed, constructed, inspected, and maintained. Complaint, ¶ 16. Plaintiff also alleges that Defendant breached its duty of care by failing to supervise Plaintiff. Complaint ¶ 17. Plaintiff alleges that the area lacked adequate fencing, was inadequa...

Excerpt: ...ct to cutoffs, the court's order states: “Only discovery deadline extended by the new trial date is discovery currently pending, including Plaintiff's deposition. Other non-discovery deadlines based on the new trial date.” Defendants Opposition to Plaintiff's Motion, Ex. A. Therefore, these motions are timely since the second session of Plaintiff's deposition was pending at the time of the hearing. 2. The court can issue a protective order wi...

Excerpt: ...to reflect the true facts as the new pleading is properly captioned Second Amended Complaint. Cal Code Civil Procedure § 436. 1. Leave to amend is permitted at the court's discretion upon any terms that may be just. Cal . Code Civ. Procedure Sec. 473. The statute is liberally construed to permit amendment of the pleadings. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. If the motion is timely made, and the granting of the motion will...

Excerpt: ... an over-the-road trucker who came to TTI on 6/9/16 to retrieve a container from TTI's container yard. The rig was being driven by K. Duncan, who collided with a chassis attached to Plaintiff's tractor. UF 7. 2. To the extent Plaintiff claims that HTEC is liable for failing to maintain the utility tractor rig in good condition, the undisputed facts establish that HTEC did not possess or control the utility tractor rig operated by Mr. Duncan that ...

Excerpt: ...oduce witnesses for depositions and to “produce the operating room logs, including L&D O.R. los by 3/3/2018, alternatively, if no such responsive documents are in Defendant's possession, custody or control, Defendant will serve a code-compliant response to Request <0003001000910096008b00 000401e4> Defendant did not comply with the court's order after Plaintiffs attempted to resolve the matter informally. Declaration of Bruce Fagel, ¶ 5, 6. The...

Excerpt: ...6-#8. Sustained. 2. The undisputed facts establish the complaint arises out of a fall that occurred on 5/21/16 at an orchard where Plaintiff claims she was on a ladder, and the ladder slid out from under her. UF 1, 5. Plaintiff was volunteering through Defendant Food Forward, Inc. at the property at the time of the incident. UF 4. Defendant made a metal tripod orchard ladder available to her. UF 6, 7. Defendant argues Plaintiff signed a release c...

Excerpt: ...L door operator installed on the elevator at issue in this action. UF 1.2. Plaintiffs' decedent, Frank Jason Barrile, was a skilled elevator construction/conveyance mechanic with profession qualifications. UF 1.6. Decedent was sent by his employer on 11/6/14 to adjust the doors on the elevator at Rexford Manor. UF 1.12. Later that day, decedent's electrocuted body was found on top of the elevator car at Rexford Manor. UF 1.13 There is no dispute ...

Excerpt: ...ion. Cal. Code Civ. Proc. § 2025.420(b)(1). (a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization fro...

Excerpt: ... Court, Rule 3.1345(b). 2. “Spoliation” is 'the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.' ” Reeves v. MV Transportation, Inc. (2010) 186 Cal. App. 4th 666, 681. Defendants' contention that the requested sanctions is improper absent a failure to obey an order compelling discovery, citing New Albertsons, Inc. v. Sup...

Excerpt: ...� Apleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-36. There is no opposition showing substantial justification for the failure to provide verified responses. The court imposes total sanctions of $407.50 for both motions against Plaintiff and counsel for the failure to provide verified responses to authorized methods of discovery, which constitutes discovery abuse. Cal Code Civ Procedure § 2023.010(a)(4). Moving party is ordered to give ...

Excerpt: ...lure to Warn 3. Strict Products Liability 4. Breach of Express and Implied Warranties Specifically, Plaintiff alleges that on 6/26/16, she was using an Elite Bistro by Maxi-Matic 8 quart digital pressure cooker, model number EPC-808P. Complaint ¶ 8. Plaintiff alleges that Defendant created, designed, marketed and distributed the product and its components that were dangerous and defective and that Defendant failed to warn of the dangerous and de...

Excerpt: ...ved the 3/14/18 responses to be improper, and that Plaintiff should provide further responses and inspection, Defendant was required to schedule an Informal Discovery Conference with the court. Parties must participate in an IDC before a Motion to Compel Further Responses to Discovery will be heard unless the moving party submits evidence, by way of declaration, that the opposing party has failed or refused to participate in an IDC. Standing Orde...

Excerpt: ...to be completed on the 30th day before the 6/1/18 trial date which was 5/2/18. Motions concerning discovery were required to be heard on or before the 15th day before trial which was 5/17/18. The motion is untimely made. Cal Code Civ Proc §2024.020 The motion is also DENIED since the motion does not specify time, place, manner, conditions, scope and nature of the examination. Cal. Code Civ. Proc. § 2032.310(b) While only potential tests to be a...

Excerpt: ... 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). Since Plaintiff does not allege intentional conduct, the conduct supporting the claim for punitive damages must be “despicable” whic...

Excerpt: ... transaction or occurrence as the cause against the moving party alleged in the complaint. Cal Code Civil Procedure § 428.10(b). Here, the proposed Cross-Complaint arises from Plaintiff's complaint filed on 6/23/17 in this action. Motion, Ex. B, 2:14-16. Leave to file “any other Cross-Complaint” (not filed against any other parties) may be filed with leave of court in the interest of justice at any time during the course of the action before...

Excerpt: ...th 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 must show that the landowner or occupier ha...

Excerpt: ... at least one Defendant now resides in the jurisdictional area. Motion, Ex. A, ¶ 8.a. In order to have an action transferred based on the convenience of witnesses and the ends of justice, Defendant has the burden of establishing both that the convenience of witnesses and the ends of justice will be promoted. The affidavits in support of the motion must “contain more than generalities and conclusions.” Hamilton v. Superior Court (1974) 37 Cal...

Excerpt: ...ident site after Plaintiff's accident and signed the sweep sheet. Motion Ex. 5, 45:4-7, 60:10-14. Mr. Campos, counsel for Defendant, offered February 1, 6, 8, or 14. Motion, Ex. 7. Accordingly, on 1/26/18 Plaintiff served a Notice of Taking Deposition of Mr. Reighley, set for 2/14/18. Motion, Ex. 8. On 2/9/18 Defendant's counsel sent email canceling the deposition and informing that Mr. Reighley could be produced for deposition after 4:00 p.m...

Excerpt: ...pportunity to determine whether a basis for recovery exists. Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699. “Camenisch also argues that the court erred in refusing to strike Burns's prayer for attorney fees. Camenisch asserts that the prayer must be stricken because the complaint did not allege a contract allowing recovery of attorney fees by the prevailing party. Burns replies, correctly, that the court was not required to s...

Excerpt: ...tion 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. Plaintiff is not required to provide a declaration from Plaintiff's medical care provider as Defendants argue. Opposition, 3:18. Contrary to Defendant's opposition, Plaintiff is not required to show “a life threatening medical condition” or a “medical doubt of survival bey...

Excerpt: ... of the subpoena. Code Civ. Proc., § 2020.410. The deponent, California Eye Care Specialists, is ordered to comply with the deposition subpoena served on 9/11/17 within 15 days. A deponent who fails to comply with a subpoena may be punished for contempt under Cal Code Civil Procedure § 2023.010. The court imposes sanctions of $232 against the deponent, California Eye Care Specialists. Code Civ. Proc. § 2020.240; § 1982. Moving party is ordere...

Excerpt: ... the motion for good cause shown to protect any party from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. Code Civ. Proc., § 2031.060. A trade secret is defined as any information or process, device or method that “derives independent economic value from not being generally known to the public” and is the subject of reasonable efforts to maintain its secrecy. Civ Code § 3426.1(d). Defendant submits the Dec...

Excerpt: ...personal knowledge All remaining objections are OVERRULED. Plaintiffs argue that the Declaration of Richard Nalbandian is defective since it is not made under penalty of perjury, in violation of Cal Code Civil Procedure §2015.5 Defendant' counsel has cured the defect by filing a Notice of Errata, stating that the certification was inadvertently omitted. Demarest Declaration, ¶ 5. Defendant includes a properly certified declaration. The facts ot...

Excerpt: ...'s objections, which are objections to Plaintiff's additional facts. Defendant does not cite to any evidence in particular cited by the Plaintiff. 2. Duty. 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. The parties d...

Excerpt: ...pplication to exclude Defendant's experts. The court ordered that the deadline for expert discovery was 5/30/18. On 4/11/18, Defendant's counsel sent Plaintiff's counsel a letter offering dates for five of Defendant's experts. Opposition, Ex. A. On 5/7/18, Defendant's counsel offered additional dates. Defendant's conduct since 4/10/18 reflects an intent to complete expert discovery by the deadline of 5/30/18. An order compelling Defen...

Excerpt: ...uction of all records of incidents with injury and for property damage for Defendants' location from 2000 to the present. Motion, Ex. 1. The subpoena is overbroad and seeks information that is not relevant to this case. This case arises from a pedestrian v. automobile accident that occurred in Defendants' parking lot. The subpoena broadly requests information regarding “accidents or incidents with injury and/or property damage,” which would i...

Excerpt: ...hat she has suffered other damages such as lost earnings. Code Civ. Proc. § 403.040(b). The court can transfer to limited jurisdiction if “it becomes clear that the matter will ‘necessarily' result in a verdict below the superior court jurisdictional amount.” Walker v. Superior Court (1992) 53 Cal. 3d 257, 262. Plaintiff does not dispute that her economic damages are limited to medical expenses of $2,416.75. While Plaintiff states she cont...

Excerpt: ...ute 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 liability as well as three other negligence claims. Since Plaintif...

Excerpt: ......

Excerpt: ...ver, the court's orders do not state that the parties agreed to continue discovery cut-off based on the new trial dates. The initial trial date was 11/27/17.The court's last minute order of 4/25/18, does not indicate that discovery cut-offs were also continued. To the extent Plaintiff is asking to reopen discovery, the motion is DENIED since there is no evidence Plaintiff attempted to meet and confer. The motion is required to be accompanied by a...

Excerpt: ...o Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402. The course of Plaintiff's care and treatment provided by Defendant is undisputed. UF 1-10. There is no dispute that Defendant complied with the standard of care in providing care and treatment to Plaintiff. UF 11-13. No act or omission by Defendant caused or contributed to Plaintiff's claimed injuries. UF 14. Moving party is ordered to give notice. ...

Excerpt: ...ne Buyse. #2. Overrule. #3-8 Overrule. 2. Duty. 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. Defendant has not established that she does not owe a duty to Plaintiff based on the lack of actual or constructive notic...

Excerpt: ...roc. 2025.450(b)(2). Plaintiff's counsel admits that as of 2/8/18, Defendant's counsel, Kamau Edwards, sent a letter notifying that the defense of the case was being transferred to Robert Mackey of Veatch Carlson, and therefore, the 2/13/18 deposition could not go forward. Motion, Ex. 5. Plaintiff's counsel represents that Mr. Edwards subsequently gave Plaintiff's counsel new dates for the deposition notwithstanding Mr. Edwards ju...

Excerpt: ...aul Zapata, as Plaintiff did not demonstrate that he was properly served with the Summons and Complaint, all as further explained below. The court's file reflects that on 12/13/17, Plaintiff filed this action against Francis Paul McDonald, only. On 2/16/18, Plaintiff filed Amendments to Complaint substituting Paul Zapata as Doe 1 and HRD Aero Systems, Inc. (“HRD”) as Doe 2. A motion to quash under Cal. Code Civ. Proc. § 418.10 is a proper pr...

Excerpt: ...icial Notice, Ex. 1. Defendants do not dispute the Plaintiff's age. Preference is mandatory under Cal. Code Civ. Proc. § 36(b) under these circumstances. Cal. Code Civ. Proc. §36(b). Accordingly the court intends to set trial for no sooner than six months and no later than nine months from the date the motion is granted, Cal. Code Civ. Proc. § 36(g). Nine months from the date of this motion is Sunday, 2/3/19. Moving party is ordered to give no...

Excerpt: ...s v. Superior Court (1984) 157 Cal. App. 3d 159, 166. The First Amended Complaint alleges negligence claims for premises liability and negligence. Plaintiff must allege malicious conduct, defined as “despicable” conduct that is “carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppressive” conduct is regarded as “despicable conduct that subjects a person to cruel and unjust hards...

Excerpt: ...ach Plaintiff's separate claim. Singer v. Superior Court (1999) 70 Cal.App.4th 1315, 1319–1320. The court can transfer to limited jurisdiction if “it becomes clear that the matter will ‘necessarily' result in a verdict below the superior court jurisdictional amount.” Walker v. Superior Court (1992) 53 Cal. 3d 257, 262. It must appear to a “legal certainty” that Plaintiff cannot recover more than the jurisdictional amount. Maldonado v....

Excerpt: ...r failing to respond until after Defendant was required to incur fees to file this motion. The discovery was served a year ago on Eugene Kim who apparently moved to a different firm. Plaintiff's counsel remains Eugene Kim. Accordingly, the court imposes sanctions of $480 against Plaintiff and counsel. Cal. Code Civ. Proc. § 2023.010(b)(1). Defendant's Motion Compelling Plaintiff, Mohammad Rizvi's Deposition Attendance; <0011000c0008000701e400 00...

Excerpt: ... The unsworn responses are “tantamount to no responses at all.” Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-36. Untimely responses result in a waiver of objections. Cal Code Civil Procedure § 2030.290(a). Plaintiff's unverified response to Special Interrogatories included objections. Motion, Ex. B. Plaintiff is ordered to provide verified responses to all discovery without objections within 15 days. Cal Code Civ Procedure § 20...

Excerpt: ...on based on the material facts asserted. Cal Code Civil Procedure § 437c(p)(2). OBJECTIONS Plaintiff's objections to Declaration of Darrell O. Clardy. OVERRULE. Declaration of Darrell O. Clardy. OVERRULE. Mr. Clardy's opinion that at any dosage, ingesting Xanax would not have been impairing on Defendant's ability to drive is not speculation or lacking in foundation. He opines as to the effects of a range of prescribed dosage: either a .25 mg, .5...

Excerpt: ...r organization from unwarranted annoyance, embarrassment, 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 ...

Excerpt: ...aim. Civil Code § 3295(c). In interpreting legislative history, the court has determined that a person's financial privacy is “paramount.” Jabro v. Superior Court (2002) 95 Cal.App.4th 754, 758. Under Jabro, in determining whether financial discovery is permitted, the court weighs the evidence and “make[s] a finding that it is very likely the plaintiff will prevail on his claim for punitive damages.” Id. A “substantial probability of p...

Excerpt: ...n ad Litem of the minor, for Plaintiff, Nicholas Daginis. Cal. Code Civ. Proc. § 473(a)(1). The claim is not abated by the Plaintiff's death, so long as the cause of action survives. Cal Code Civ Procedure § 377.21. The court “shall” allow a pending action that has not abated to be continued by the decedent's personal representative or successor-in-interest. Cal Code Civil Procedure § 377.31. “On motion after the death of a person who co...

Excerpt: ...not, by itself, sufficient to demonstrate that the address is current. … .” Cal Rules of Court 3.1362(d). Counsel did not lodge a completed proposed order, and there is no indication that the order was served. Cal Rules of Court 3.1362(e). Counsel to address the issues in the tentative and the Court will consider granting the motion. ...

Excerpt: ...mony. Landeros v. Flood (1976) 17 Cal.3d 399, 410. The parties do not dispute most of Plaintiff's course of care and treatment with Defendant Dahiya beginning on 7/12/13, when the mass on Plaintiff's back and goiter were discovered. UF 1. Tests were conducted, and Plaintiff next saw Defendant on 8/27/15. UF 2‐4. Ultimately, Defendant performed a surgical procedure, a partial thyroidectomy on Plaintiff on 9/17/15. UF 13. Defendant used silk sutu...

Excerpt: ...rmitted to allow the insurer to protect its interests in the litigation. Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal. App. 4th 1196, 1207‐ 1208; Reliance Ins. Co. v. Superior Court (2000) 84 Cal. App. 4th 383, 385. Moving party to give notice. ________________ The Motion by Defendants, Golden West Security and Gregory Bowman, for Protective Order as to Defendant Gregory Bowman, and the Plaintiff's three (3) Motions to Compel Defe...

Excerpt: ...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). Plaintiffs do not offer any facts that would remedy the defect. Leave to amend should be gi...

Excerpt: ...act or law are transferred to a selected site before one judge to promote the ends of justice. Cal Code Civil Procedure § 404.1. Cal Code Civil Procedure , § 404.1. The Crisanti Defendants' request for coordination is inappropriate here. First, coordination motions are heard by Department 1, and secondly, the procedure is appropriate if Defendants were seeking to transfer the Orange County case to Los Angeles Superior Court to be coordinated wi...

Excerpt: ...endant's unopposed Motion for Summary Judgment, filed on 10/17/17, is GRANTED. Defendant has established she is entitled to judgment in her favor based on the undisputed facts asserted. Cal. Code Civ. Proc. § 437c(p)(2). As Plaintiff did not file an opposition, all facts are undisputed. Plaintiff alleges that on 4/5/14, while he was working at a building owned by Defendant, he used a ladder that was in a defective condition, and he fell as a res...

Excerpt: ...he lack of information. Midwife v. Bernal (1988) 203 Cal. App. 3d 57, 64. The sanction imposed must be “appropriate to the dereliction” and designed to accomplish the discovery sought. Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35. Defendant's alternative request to compel Plaintiff to appear for his physical examination is GRANTED. Defendant is entitled to demand a physical examination of...

Excerpt: ...usive and is conducted within 75 miles of Plaintiff's residence. Code Civ. Proc., § 2032.220. On 1/26/18, Defendant served a demand for physical examination on Plaintiff. Motion, Ex. A. Plaintiff did not object. On 3/8/18, Plaintiff failed to appear for the examination. Defendants can move to compel compliance where Plaintiff fails to submit to an examination. Defense counsel attempted to meet and confer by letter dated 3/26/18. Motion, Ex. B. P...

Excerpt: ...in the interest of justice. Cal Code Civ Procedure § 473. However, the court has discretion to deny leave to amend where the proposed pleading is defective, such as where it is barred by an applicable limitations statute, or where the pleading is otherwise defective and cannot be cured by further amendment. Yee v. Mobilehome Park Rental Review Bd. (1998) 62 Cal. App. 4th 1409, 1429;California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 C...

Excerpt: ...� 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 sought are directly relevant to Plaintiff's claim and essential to the fair resolution of the lawsuit. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; Harris v. Superior Court, (1992) 3 Cal.App.4th 661, 665. Even if the records are direc...

Excerpt: ...aint alleges causes of action for negligence and intentional tort. Defendant argues, without authority, that both claims are “essentially claims of medical malpractice based upon some type of mistake.” Motion, 3:3‐5. A medical malpractice claim arises from Defendant's negligence. The claim for intentional tort alleges that Defendant intentionally caused a harmful or offensive contact with Plaintiff by mistakenly injecting the wrong fluid in...

Excerpt: ...oss-complaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: (1) The case is incorrectly classified. (2) The moving party shows good cause for not seeking reclassification earlier.” A case should only be reclassified as limited if the jurisdictional amount necessarily cannot be reached. (See Walker v. Superior Court<00440051004700440055...

Excerpt: ...cal examination. It is not required when no response has been provided to the request for discovery. Cal Rules of Court 3.1345. The evidence does not demonstrate that Plaintiff made any specific objection or otherwise responded to Defendant's attempts to meet and confer. Instead Plaintiff states he could not respond in the time period given. Opposition, 2:3‐7. Plaintiff does not dispute that her mental condition is at issue. Opposition, 1:19‐...

Excerpt: ...fendant resides. Cal. Code Civ. Proc. § 395(a). Plaintiff alleges that at least one Defendant resides in Los Angeles County. Motion, Ex. 1, Complaint, ¶ 8.a. Defendant Jeffrey Depies' residence is La Canada, which is in Los Angeles County. Defendant's Response to Interrogatories, Opposition, Ex. B. 3:7. A motion to change venue based on the convenience of witnesses cannot be based on the convenience of a party, or a party's employee, such as co...

Excerpt: ...ainstPomona Valley Family Heath Center, Heather Coffin M.D., Pomona Valley Hospital, Glenn Deguzman PA-C (“Deguzman”), Richard W. Dorosh M.D. (“Dorosh”) and Does 1 to 30. Plaintiffs allege causes of action for wrongful death and negligent infliction of emotional distress. On February 6, 2018, Plaintiffs dismissed Mr. Montoya's second cause of action for negligent infliction of emotional distress as to defendants Heather Coffin M.D. and Po...

Excerpt: ...0057005800570048> 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.App.3d 902, 905-06.) The party who failed to respond waives any objections to the interrogatories, unl...

Excerpt: ... a reply brief to be filed five court days before the hearing. The court did not grant the parties leave to submit further briefing beyond the scope of Section 1005. The decision to consolidate is a matter for the court's discretion. Muller v. Robinson (1959) 174 Cal. App. 2d 511, 515. Both BC655001 and BC670068 arise from the same accident and were previously deemed related on 2/26/18, with BC655001 as the lead case. As such all dates in BC67006...

Excerpt: ... Development & Construction Inc. (“Tri County”) (together, “Defendants”) for damages arising out of an automobile accident. While driving down Colorado Blvd. in Los Angeles, Plaintiffs allegedly drove into a construction trench that was controlled by Defendants and had no visible warning signs. (Complaint ¶ GN-1.) On 10/5/17, Plaintiffs served the summons and complaint on Tri County. Tri County filed an answer to the complaint on 11/13/1...

Excerpt: ...fendant Apple Inc.'s store. On October 20, 2017, Plaintiff propounded a first set of Form Interrogatories, Special Interrogatories, Requests for Production, and Requests for Admission on Defendant Apple Inc. (“Defendant”). On December 26, 2017, Defendant responded to the discovery with objections. Defendant now moves for a protective order concerning trade secrets regarding the discovery requests. Analysis CCP § 2031.060 provides (a)When an ...

Excerpt: ... law. The court's file reflects that on 3/14/18, Defendant served Plaintiff with written notice of the court's ruling deeming admitted the Requests for Admission served on Plaintiff. The 10 th day after service was 3/24/18. Plaintiff timely filed this motion on 3/22/18. Plaintiff has shown new facts and circumstances that were not available to the court at the time of the hearing on 3/13/18. Defendant acknowledges that responses to the Requests f...

Excerpt: ... Hyman Gross. Motion, Ex. D., 3:24‐27. Plaintiff stated that Dr. Hyman would testify regarding Plaintiff's neurological injuries; the present status of her injuries; the necessity of medical care and reasonableness of medical expenses incurred, among other things. Id. The supplemental designation is due 20 days after the initial exchange or in this case by Monday 2/19/18, which was a court holiday. Therefore, the supplemental designation was du...

Excerpt: ...rer, 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.) A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws...

Excerpt: ...asonable or oppressive demands including unreasonable violations of the right of privacy. Cal Code Civ Procedure § 1987.1. The motion is not rendered moot by Defendants' proposed limitations to the subpoenas at issue. Plaintiff has also requested cost and fees for having to make the motion. The court can quash the subpoenas or issue a protective order to protect the parties from unreasonable or oppressive demands including unreasonable violation...

Excerpt: .../18 is GRANTED, subject to the limitations described below. Any party may obtain discovery my means of a physical or mental examination of a party to the action. Cal. Code Civ. Proc. § 2032.020. Defendant was not required to file a separate statement. A separate statement is required where there is a specific objection made to a request for medical examination. It is not required when no response has been provided to the request for discovery. C...

Excerpt: ...ve order regarding the manner and conduct of Plaintiff's continued deposition. Defendants' Motion for Protective Order is GRANTED. Where good cause is shown, courts may enter protective orders limiting depositions. “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense....

Excerpt: .... Code Civ. Proc. § 473 since the new claim of Ruffina Yureyva is barred by the 2‐year statute of limitations under Cal Code Civil Procedure § 340.1. The First Amended Complaint filed on 4/11/18 is stricken. Cal Code Civil Procedure § 436. Ordinarily, the court can allow a party to amend any pleading by adding a party or in other particulars in the interest of justice. Cal Code Civ Procedure § 473. However, the court has discretion to deny ...

Excerpt: ...iff's counsel in another matter. If Defendant seeks to disqualify Mr. Kade, he should bring the appropriate Motion to Disqualify with supporting evidence. Judgment can be set aside at any time where it is void on its face. Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 19. Defendant has not established that the judgment is void on its face because Defendant is identified as “David Aho” and not “David Ahl.�...

Excerpt: ... of Venue, filed on 4/9/18 is DENIED. Moving Party Defendants, Kyle and Steve Crisanti (hereafter “Crisanti”) ask for a change of venue to Orange County and “coordination” with a pending matter in the Orange County Superior Court, entitled Jacob Botros v. Kyle Crisanti. Motion 2:22‐24. “Coordination” is a process by which actions that share common questions of fact or law are transferred to a selected site before one judge to promot...

Excerpt: ...NTED. Cal. Code Civ. Proc. § 36(b). The court shall grant a motion for preference for parties under age 14. Plaintiff has allegedly suffered injuries from birth as a result of the alleged negligence of Defendants. Plaintiff has demonstrated a substantial interest in the litigation. Plaintiff's date of birth was 6/10/17, as reflected in the Plaintiff's Request for Judicial Notice, Ex. 1. Defendants do not dispute the Plaintiff's age. Preference i...

Excerpt: ...evidence or discussion to warrant repudiation. On 8/10/17, Jolena Oglesby, as Guardian ad Litem for the minor Claimant, Keyshaun Oglesby, filed Petition to Approve Compromise of a Pending Action on behalf of the Claimant. In that petition, Ms. Oglesby recommended the $15,000 settlement as being fair, reasonable, and in the best interest of the minor. See Petition, ¶ 22. Neither the guardian nor the Claimant was represented by counsel at the time...

Excerpt: ...Hendessi. Sustained. <0047000300150011001400 00030057004b00440057> she cannot speak, read, or write <005c000300270048004600 00030052004900030030>elissa Keddington, Ex. B, 3:3-6. The Declaration signed by Plaintiff is in English, and there is no verification from a translator as required by the Evidence Code that the interpreter took an oath to make a true interpretation of the language. “(a) An interpreter shall take an oath that he or she will...

Excerpt: ...App.3d 1611, 1619 Liability is imposed on an owner for premises liability for breach of the duty to keep the premises safe in order to avoid exposing others to an unreasonable risk of harm. Brooks at 1619. If Defendant shows that he did not owe a duty of care to Plaintiff under the circumstances, this is a complete defense. Brooks at 1619–1620. Employees of a corporation cannot be held personally liable for torts of the corporation. Generally, ...

Excerpt: ...eave to augment or amend a designation after taking into account certain factors: the extent to which the opposing parties relied on the list of expert witnesses and after determining that the opposing parties will not be prejudiced in maintaining that party's action or defense on the merits. Cal. Code Civ. Proc. § 2034.620 (a) and (b). Dr. Rickles has not demonstrated Plaintiff's lack of standing to make this motion under CCP sec 2034.610. That...

Excerpt: ...a reply brief to be filed five court days before the hearing. The court did not grant the parties leave to submit further briefing beyond the scope of Section 1005. The decision to consolidate is a matter for the court's discretion. Muller v. Robinson (1959) 174 Cal. App. 2d 511, 515. Both BC655001 and BC670068 arise from the same accident and were previously deemed related on 2/26/18, with BC655001 as the lead case. As such all dates in BC670068...

Excerpt: ...ew evidence. Defendant's Objections #1 and #2, 4. Declaration of Elsa Tobar. Overruled. The Declaration does not contradict Plaintiff's deposition testimony. #3. Sustain. Lacks personal knowledge. It is based on information and belief. #4‐12. Overruled. Declaration of Brad Avrit. He describes the dangerous condition based on inspection and other evidence. This affirms Plaintiff's contention of the existence of a dangerous condition. Experts can...

Excerpt: ... that she has suffered other damages such as lost earnings. Code Civ. Proc. § 403.040(b). The court can transfer to limited jurisdiction if “it becomes clear that the matter will ‘necessarily' result in a verdict below the superior court jurisdictional amount.” Walker v. Superior Court (1992) 53 Cal. 3d 257, 262. Plaintiff does not dispute that her economic damages are limited to medical expenses of $2,416.75. While Plaintiff states she co...

Excerpt: ...ablish that all criteria for personal jurisdiction are met. Ziller Electronics Lab GMBH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232‐33. Plaintiffs must provide competent evidence in affidavits and authenticated documentary evidence. An unverified complaint may not be considered. Id. at 1233. The court can assert general jurisdiction over a non‐resident Defendant who has substantial, continuous and systematic contacts with the state. Je...

Excerpt: ...Richard Nyhan, the General Manager of NEA Delivery LLC, who is familiar with employee oversight and development, recruiting, ensuring fleet vehicles are up to date, and is privy to all contract negotiations and contractual relations between NEA and Amazon Logistics, Inc. Sustain, ¶ 4 legal conclusion – whether Plaintiff was acting within the course and scope of employment as an “employee.” This is an issue of fact for the trier of fact unl...

Excerpt: ...manner, conditions, scope and nature of the examination, and the identity and specialty of the person who will perform the examination. The parties are required to meet and confer. Cal. Code Civ. Proc. §2032.310(b). If the motion is granted, the order must describe those diagnostic tests and procedures. Code Civ. Proc., § 2032.320. Defendants have shown good cause for both the psychiatric and neuropsychological examination. Plaintiff has been t...

Excerpt: ...9, 1250. The Shapira court issued a writ requiring the trial court to determine whether there was good cause for the second examination, noting other cases which upheld the right to multiple exams where such examinations involved medical specialists in different fields. The Shapira case involved an examination by a psychologist and a psychiatrist. Shapira at 1255. Defendant has shown good cause for a second examination with an orthopedist. Plaint...

Excerpt: ...en able to file a timely reply. Plaintiff has not submitted a declaration showing diligence or good cause for filing the opposition late. Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 624–25. Plaintiff has not filed a separate statement in opposition. Therefore, the material facts remain undisputed. Plaintiff alleges she suffered injuries when the vehicle she was operating was struck by a vehicle being operated by Defendant, Alessandro Bad...

Excerpt: ...rawal only as authorized by the court. However, this option applies if there is a guardianship of the estate of the minor established. Petitioner has not provided the case number (paragraph 19.a). Petitioner did not identify the financial institution or trust company as required. See paragraph (paragraph 19.a(2)). If a guardianship of the estate is not pending, then disposition of the proceeds should be made under paragraph 19.b. Counsel should a...

Excerpt: ... 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). Plaintiffs allege claims for strict liability for...

Excerpt: ...were served. Plaintiff asserts in Reply that the verifications were not sent. Reply 1:19‐20. Defendant admits that verifications were “forthcoming.” Opp. 2:8‐9. Unverified responses are tantamount to no responses at all. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635‐36 . Plaintiff was not required to set an Informal Discovery Conference prior to filing the motion. An IDC is required in motions to compel further responses not...