Excerpt: ...onsortium. In a medical malpractice action, proof of the standard of care requires expert testimony. Landeros v. Flood (1976) 17 Cal.3d 399, 410. The element of causation must be proven within a reasonable medical probability based upon competent expert testimony. Jones v. Ortho Pharm. Corp. (1985) 163 Cal. App. 3d 396, 402. As Defendant's case authority states, a “less than 50‐50 possibility that defendants' omission caused the harm does...

Excerpt: ...dant Min S. Sauk, M.D. Plaintiff alleges Defendant's treatment was below the standard of care, and led to him developing an infection. Defendant filed the instant motion for summary judgment on November 21, 2017. No opposition has been received as of February 6, 2018 (due January 24, 2018). Analysis Defendant seeks summary judgment on the grounds Plaintiff cannot prove that he breached the standard of care in treating Plaintiff. The elements of m...

Excerpt: ... cause of action is stated. Ludgate v. Lockheed (2000) 82 Cal.App.4th 592, 602. Grounds for the motion must appear on the face of the pleading or from matters subject to judicial notice. Cal Code Civ Proc § 438. Claims against a public entity must be based on statute. Gov Code § 815. The first cause of action for negligence does not allege a statutory basis. The complaint has to identify the statute. Searcy v. Hemet Unified School Dist. (1986) ...

Excerpt: ...ce, 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. Defendant has not complied with Cal Code Civil Procedure § 2032.310(b) in that the motion does not specify th...

Excerpt: ... and confer regarding the relocation of the deposition, nor any attempt to accommodate Plaintiff's request which is not unreasonable. Motion, Ex. K Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting from the lack of information. Midwife v. Bernal (1988) 203 Cal. App. 3d 57, 64. Sanctions are warranted where there is a willful failure to comply wi...

Excerpt: ... expert testimony. Landeros v. Flood (1976) 17 Cal.3d 399, 410. The issue of causation must also be proven within a reasonable medical probability based upon competent expert <0096008700950096008b008f00910090009b01e40003000d00910090008700950003009801e40003001200940096008a009100030013008a00830094008f01e40003000600910094009201e40003020b0373037b037a0377020c0003037303780375000300 060083008e01e4000300040092009201e40003037500860003>396, 402. The partie...

Excerpt: ...ation for Determination of Good Faith Settlement on 1/3/18, which was rejected by the court by minute order dated 1/9/18. Defendant Javier Vega then filed this Motion on 3/16/18 to contest the already‐rejected application. Defendant Wan then filed another Application for Determination of Good Faith Settlement and an Amended Application for Determination of Good Faith Settlement on 2/15/18. Both are equally defective as they do not include a Not...

Excerpt: ...t Plaintiff is required to amend the complaint to substitute the decedent's personal representative within one year from the Defendant's death. That statute actually states that if a person against whom an action may be brought dies before the expiration of the statute of limitations, an action may be commenced within one year after the date of death. The statute of limitations that would have been applicable does not apply. Cal Code Civil Proced...

Excerpt: ...ounsel). What the spa director told him is hearsay. DISCUSSION The parties do not dispute that a claim for negligence requires a showing of the existence of a duty, breach of duty, proximate cause, and damages. Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917. Defendants' motion attempts to negate the elements of breach and proximate cause. Motion, 7:23‐24, 8:17‐18. While Defendants assumed the existence of a duty in their moving papers...

Excerpt: ...�‐ a satisfactory reason for not presenting the facts previously. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. “Without presuming to know which of the many published cases might have influenced the amendment, we may comfortably assume the substitute language, ‘new or different facts, circumstances, or law,' was designed to approve, generally, the case law relaxation of what constitutes new or different facts justifying reconsideration....

Excerpt: ...soucie (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 of this state, a court rule or order of court. (CCP § 436.) First Causes of Action: OVERRULE Duplicative Alessi contends that Plaintiff's first cause of action for general negligence is duplicative of th...

Excerpt: ...r had concluded. However, that appears to have been a mistake as Plaintiff now states that the case has not received settlement funds. Motion 2:17‐18. The court sets the following date: OSC re Dismissal: July 18, 2018 @ 8:30 a.m. The request to enter judgment pursuant to the “Settlement Release” is DENIED as the Release of Claims provided is not signed by Defendant the City of Los Angeles. Motion, Ex. 2. Cal. Code Civ. Proc. § 664.6 permit...

Excerpt: ...dge. OVERRULE. The plans are submitted by the Custodian of Records, Kaz Kayoda. OVERRULE remaining objections as they are proper opinions. Declaration of Steven Martinez (This Declaration was not filed by State of California. It is part of City of Los Angeles' Motion). The Court disregards Defendant's objections the evidence was not material to the Court's analysis. Pursuant to Cal. Code Civ. Proc. § 437c(q), when the court grants or denies a mo...

Excerpt: ...mento County(1967) 252 Cal. App. 2d 650, 653. The facts of the particular case must justify it. Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 888, fn. 8. Defendants argue that valuable court time will be spared if the Defendants are found not liable. Motion 3:8‐10. This is true of all personal injury cases. Defendant cites Trickey to support bifurcation. While that case underscores the purpose of bifurcating (to avoid waste of time and ...

Excerpt: .... Gov. Code, § 68634(a). Motions to strike the complaint are governed by Cal. Code Civ. Proc. § 435. There are limited grounds for such a motion, none of which involve the court's jurisdiction. Code Civ. Proc., § 436. As Defendants have not cited any applicable statutory or other mechanism for striking the complaint to challenge the court's jurisdiction, it is DENIED on that ground. Additionally, while Defendants claim to “specially appear�...

Excerpt: ...ry was issued on 11/7/16, and stated that discovery was to remain open until 30 days before the next trial continuance. On 5/17/17, the court's minute order reflects that the parties stipulated to continue trial to 11/6/17. Therefore, discovery was cutoff 30 days prior to that date. Defendant issued her subpoena on 12/21/17. The subsequent orders to continue trial did not expressly continue discovery. Continuance of trial does not reopen discover...

Excerpt: ...subpoena for deposition. Cal. Code Civ. Proc. § 2025.280.(b). Also as Dr. Phillips' case authority demonstrates, “[w]hile the Legislature has provided many different modes of serving summons, only one mode, personal delivery, is available for serving a subpoena. (Code Civ. Proc., § 1987, subd. (a); In re Abrams (1980) 108 Cal.App.3d 685, 690, 166 Cal.Rptr. 749.). Target Nat. Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1, 7–8 The subpoena was...

Excerpt: ...ns to the Declaration of John Pollitt (Plaintiff's counsel). #1 and #2. Paragraph 1 and Ex. 1. SUSTAIN. Lacks personal knowledge of records prepared by Plaintiff's doctor, Hyman Gross, M.D. There is no doctor declaration or custodian of records to authenticate the records. #3 and #4. Paragraph 2 and Ex. 2. SUSTAIN. Lacks personal knowledge of records prepared by Plaintiff's doctor, Grace Chen, M.D. There is no doctor or custodian of records decla...

Excerpt: ...ed by deposition testimony of Defendant Patel, who did not testify as to what the investigating police officer determined. Rather, Perida's counsel, Mr. Davis, proffered what the police officer determined and asked if Patel had any reason to dispute it, to which Patel said no. The court also disregards the police report submitted as evidence and attached to the reply brief. It is error to consider additional evidence submitted with the reply as s...

Excerpt: ...urgundy to receive it the next business day. It is not clear how Plaintiff can procedurally defend a Cross‐Complaint he did not file. Even if he cannot, Burgundy has not demonstrated how that procedural defect or the late‐ delivered opposition has caused any 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....

Excerpt: ... complaint alleges the following: 1) on November 17, 2016, at approximately 6:30 p.m., Plaintiff attended a talent show performance on LAUSD's premises. (Complaint ¶ 6); 2) After the performance, Plaintiff walked down a set of steps in order to leave to premises. (Id.) 3) The area was dark and Plaintiff used a handrail to guide herself down the set of steps, however, unbeknownst to her, the hand rail did not terminate on the ground level, but ra...

Excerpt: ... cases are consolidated for all purpose including trial. As the lead case is BC623932, the existing trial date of 6/12/18 governs both cases. The parties essentially request that the trial date be vacated and that the court adopt the later trial date in the National Union case resulting in a trial continuance of two months to 8/24/16. If the parties seek a continuance of trial, the parties are ordered to follow the procedures set forth in the Sev...

Excerpt: ..., 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 result. UF 1. Plaintiff filed a complaint allegin...

Excerpt: ... wherein John Jahrmarkt substituted out in favor of Plaintiff, in pro per. Opposition Ex. E. Mr. Pina was also served with the Opposition at the 296 Ninth Ave Address in New York, as well as the 9334 Wilshire Blvd address, which is a new address reflected on the first page of Plaintiff's motion. Plaintiff is directed to file and serve a Change of Address form to correctly state his current address. Plaintiff concedes he received Defendant's oppos...

Excerpt: ...ed 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. On 9/12/17, the court continued the hearing and required Ms. Oglesby to retain counsel, as she could not represent the Claimant. The court subsequently continued the hearing on <0090000300850091009700 9000950087008e01e4> On 12/12/17, Steven C. Gambardella fil...

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

Excerpt: ...ndant's reply provides documentary evidence that Defendant was out of the country on a trip at the time of purported service. Defendant left on 1/16/18 to Bogota and then to Medellin, arriving January 17, 2018. He returned from Medellin to Florida on 1/23/18. Reply, Ex. A. Service was purportedly accomplished on 1/21/18, Opposition, Ex. A. . Defendant also declares that he lives in a gated community, and his home is accessible only by contacting ...

Excerpt: ...supplemental Form Interrogatory and Request for Production of Documents on 2/27/18. Reply, Ex. J and K. The parties' stipulation for continuance of trial filed on 11/27/17 states that “discovery may be conducted as to new injuries, not previously claimed.” Motion, Ex. B. As Plaintiff has responded to the discovery at issue, an order compelling her response is not necessary. However, the court imposes sanctions against Plaintiff and counsel fo...

Excerpt: ...t for monetary sanctions is DENIED. The request must be supported by a declaration setting forth facts supporting the amount of monetary sanction sought. Cal. Code Civ. Proc. § 2023.040. The Declaration of James Hart, does not affirm any of the facts to support the amount of monetary sanction requested. Moving party is ordered to give notice. ...

Excerpt: ...d with Rule 3.1362(d) which requires facts and affirmation regarding the client's address. Counsel is required to lodge a completed proposed order and serve it on all parties and the client as required by Subpart (e). A proof of service is not attached to the motion. Moving party is ordered to give notice. ...

Excerpt: ...at it does not owe a duty, that it did not breach a duty and that no act or omission by Defendant caused Plaintiffs' injuries. Motion 2:13‐16. A court cannot grant summary adjudication of separate issues where the only motion noticed for hearing is for summary judgment. This implicates Plaintiffs' right to proper notice of the issues being sought against them. Jimenez v. Protective Life Ins. Co. (1992) 8 Cal. App. 4th 528, 534. Edison's separat...

Excerpt: ...they are not lacking in foundation, improper or speculative. An expert's declaration is sufficient if the expert establishes the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the expert explains the bases for the opinion. Mr. Stabler identifies all the materials he has reviewed in preparing his opinion. Stabler Declaration ¶ 3(a)‐(d). He also inspected the elevator. Id ¶...

Excerpt: ...ade at any time during the pendency of an action, unless the court otherwise orders. Code Civ. Proc. § 36. Plaintiff has demonstrated that his health is “such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” Cal. Code Civ. Proc. § 36(a)(2); Kline v. Superior Court (1991) 227 Cal.App.3d 512, 514. Plaintiff declares he suffers from head injury/brain damage and notably Parkinson's disease among...

Excerpt: ...63 Cal. App. 3d 396, 402. The course of the care and treatment of Plaintiff 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. No act or omission by Defendant caused or contributed to Plaintiff's claimed injuries. Defendant performed an appropriate surgery, which did not cause Plaintiff's bowel obstruction. Adhesions from abdomi...

Excerpt: ...the granting of the motion will not result in prejudice to the opposing party, it is error to refuse permission to amend. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530. Defendant has not established that the motion is untimely made or that any prejudice will result if Plaintiff is allowed leave to amend. Trial is presently scheduled for 5/25/18, leaving the parties sufficient time for discovery. If Defendant beli...

Excerpt: ...t determine whether the responses are in substantial compliance with statute (all objections were waived because of the late response). While defense counsel contends that failure to respond was a mistake, Defense counsel never responded to Plaintiff's meet and confer letter of 1/18/18 and responded only when Plaintiff's counsel incurred expenses to file the motions. However, in mitigation, Defendant agreed to pay Plaintiff's motion fees. The Cou...

Excerpt: ...dant inquired about the non‐appearance at the 1/18/18 deposition, or otherwise met and conferred about rescheduling the deposition. Rather, Defendant relied on Plaintiff to contact Defendant's office. Alama‐Hecht Declaration ¶5. Defendant did not comply with the meet and confer requirements of statute. Defendant contends that Plaintiff did not appear at the noticed deposition set for 1/18/18 and refers to a Certificate of Non‐Appearance, a...

Excerpt: ..., ¶ 6, Exhibit 3. There is good cause to compel responses to some of the deposition questions. Defendant cites Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1258, for the proposition that Plaintiff's questions constitute “contention” questions that cannot be asked during a deposition, but should be reserved for interrogatory. Rifkind does not apply. The deponent in Rifkind was asked to state facts and identify witnesses and documents...

Excerpt: ... calendar days “preceding the motion.” Cal. Code Civ. Proc. § 437c(b)(2). Defendant argues she did not receive the opposition the next business day, but Defendant has not suffered any prejudice, since Defendant was able to serve a reply brief with evidentiary objections and other supporting papers, all of which have been considered. Even if the papers were not received the next business day, the court has discretion to consider “late” pa...

Excerpt: ...own a stairwell. (Compl. at ¶ 10.) She slipped on a puddle of water that was on the stairwell. (Id. at ¶ 11.) She alleges Defendant s did not provide any warning and did not clean the wet floor. (Id. at ¶ 14.) She sustained injuries as a “direct and proximate” result of Defendants' negligence. (Id. at ¶ 16.) Defendant Whitesel filed a demurrer to Plaintiff's cause of action for gross negligence and a motion to strike portions. Plaintiff a...

Excerpt: ...nterest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The <020b0377020c0003001100 0087009500960094008b>ctive means exist to achieve the overriding interest.” Cal Rules of Court 2.550(d). Court records are presumed to be open. Cal Rules of Court 2.550(d). The burden is on the moving party to show compelling reasons for sealing records. Mary R. v....

Excerpt: ...nd D. The statute governing the conduct of the examination expressly permits the examinee's attorney or a representative to attend and observe the physical examination and to record the examination stenographically or by audio technology. The Code of Civil Procedure does not expressly allow that right to the demanding party (Defendant) or the Defendant's physician. Code Civ. Proc., § 2032.510(a). Because the Code permits Plaintiff's representati...

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: ...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: ...) 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...nty 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 11/1...

Excerpt: ...or his opinion. Aside from declaring his opinion is based on a review of the records provided to him and his education, training, and experience as an emergency physician, Dr. Mistry also declares that his opinion is based on Dr. Jamehdor's re-evaluation on January 5, 2015 and the lack of reports that Plaintiff continued to exhibit psychosis. (See Mistry Decl., ¶¶ 34-36.) Discussion The elements of medical malpractice are: “(1) the duty of th...

Excerpt: ...andatory; the trial court has no discretion to refuse the minor's request for early setting. Peters v. Superior Court (1989) 212 Cal.App.3d 218, 223- 224. “Unless the court otherwise orders: (1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared…” CCP § 36(c)(1). “Upon the granting of such a motion for preference, the ...

Excerpt: ...ive Complaint against Shahen Chalyan (“Chalyan”) and L.A. Check Cab Company Inc. (“L.A. Checker”) (together, “Defendants”) for damages arising out of an automobile incident which occurred on 12/3/14. L.A. Checker filed an answer on 10/31/16. Default was entered against Chalyan on 2/22/17. Discussion Plaintiffs move the Court for orders compelling L.A. Checker to provide verified responses, without objections, to Plaintiffs' (1) Form I...

Excerpt: ...h 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 default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. By its language, the statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused t...

Excerpt: ...eposition, the court, upon motion reasonably made by [a party or a witness] . . . 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.” Additionally, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney's fees, if the ...

Excerpt: ...SSUF”) No. 1.) Nurses identified decedent as being at a high risk of falling, and implemented various procedures as precautions to decrease the likelihood decedent would fall. (SSUF No. 2.) Decedent was ultimately diagnosed with a recurrent, inoperable gastric cancer, and was given a feeding tube. (SSUF Nos. 3-6.) While recovering from the exploratory surgery to find the cancer, and from the placement of the feeding tube, decedent remained in t...

Excerpt: ...f Juliette Hamini's counsel is ordered to give notice of this ruling and the “Order <0026005200580051005600 004c004f00b40003000b>Judicial Council form MC- 053). Legal Standard The court has discretion to 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.) CCP § 28...

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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ..., 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: ...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: ...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: ...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: ... 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...