Excerpt: ... seeking discovery, the likelihood that permitting discovery will prevent the case from going to trial, and resulting prejudice to any other party, among other things. Cal Code Civ Procedure § 2024.050. The court's file reflects that Defendant's motion to compel Plaintiff to submit to an Independent Examination with a neuropsychologist was DENIED on 6/11/19. (Defendants' Motion to Reopen seeks to obtain both a neurological and neuropsychological...

Excerpt: ...E ERROR IN THE PROOF OF SERVICE WAS A CLERICAL MISTAKE. Plaintiff moves for an order to consolidate a contractual uninsured motorist arbitration with <0128015d016f011e011a03 5800030003> In this action, Plaintiff alleges that on June 15, 2017, she was injured in a car collision as result <019a015a011e0003015d01 01100110015d011a011e>nt, Plaintiff was in another accident that allegedly aggravated or exacerbated Plaintiff's injuries and damages. Plai...

Excerpt: ...ut having served a valid objection, or fails to produce documents for inspection. Cal Code Civ Procedure §2025.450. Defendant was obligated to “designate and produce” a person most qualified to testify. Code Civ. Proc., § 2025.230. Defendant objected on grounds the deposition was unilaterally set. The objection was timely made on 8/19/19, three calendar days before the date of the deposition on 8/22/19. Cal Code Civil Procedure § 2025.410(...

Excerpt: ...tions requiring the defendants to cease the procedure and repair the complications. Complaint Para. 12. “The complications include, but were not limited to, severe lacerations to Mr. Murillo's genital are and other nearby organs caused by the conduct of Defendants and Does 1‐ 100.” Id. (typographical errors corrected and all caps eliminated). The complaint repeatedly refers to Mr. Murillo's injury as “lacerations to Mr. Murillo's genital ...

Excerpt: ...F 1. The City of Glendale owns the property where the subject tree was located. UF 3. Plaintiff asserts one cause of action for negligence against Defendant, WCA. The City is responsible for any maintenance needed on trees in the open space, wilderness area including the subject tree. UF 6. The City would inspect, trim or prune a tree in the area, including the subject tree if there were any concerns, requests or inquiries regarding that tree. UF...

Excerpt: ...s tree branch crashed onto their car. The tree was located on a parkway between the sidewalk and the street in front of an apartment building owed by Raintree. The law imposes a duty on a person owns, possesses or controls property to use due care to prevent injuries to others. See, e.g., Alcaraz v. Vece (1997) 14 Cal. 4th 1149. Conversely, “[a] defendant cannot be held liable for the defective or dangerous condition of property which it [does]...

Excerpt: ...he undisputed facts establish that on January 14, 2017 at about 6:30 p.m. Defendant was hanging out with a friend in the front of Smitty's Liquors when an unknown man appeared from a nearby alley yelling that someone was coming to shoot. UF 1-2. Defendant ran to his vehicle when he heard about five gunshots from the area near the front of the store. UF 3. He got into his vehicle and drove out of the parking lot. UF 5. While driving southbound on ...

Excerpt: ... her left hip. UF 1-2. On 5/2/16, paramedics transferred Plaintiff to Glendale Adventist Medical Center. UF 10. Plaintiff underwent X-rays of her left hip and was informed that the X-rays showed that her bone was not broken. UF 11-13. On 6/6/16, Plaintiff went to see an orthopedic surgeon, Jai Lee, M.D, because she continued to experience pain. UF 27-28, 30. Dr. Lee obtained X-rays of Plaintiff's left hip and pelvis. UF 32. On 6/6/16, Dr. Lee tol...

Excerpt: ...each of these claims. I. SECOND CAUSE OF ACTION FOR PREMISES LIABILITY Under the Government Claims Act, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” unless specifically authorized by statute. Cal. Gov. Code 815(a); see also De Villers v. County of San Diego (2007) 156 Cal. App. 4 th 238. Government Code section 835 sets out t...

Excerpt: ...t liability – design defect. On December 9, 2019, Plaintiff Abigail Bolde was driving on the freeway when a seven-foot portion of a truck's exhaust pipe broke off and fell onto the freeway and was hit by a passing vehicle. The pipe was thrown airborne and broke through Plaintiff's front windshield, striking her on the head and causing severe injuries. The truck was a 2011 International Prostar tractor manufactured by Navistar. Plaintiff contend...

Excerpt: ...aintiff contends this substitution is necessary because Dr. Giacobetti's office informed Plaintiff's counsel on June 25, 2019 (the date for which trial had previously been set) that Dr. Giacobetti did not intend to appear for trial. Counsel had understood that Dr. Giacobetti would be voluntarily appearing and thus no subpoena had been issued. When these circumstances were explained to the Court, the Court granted a continuance to November 5, 2019...

Excerpt: ... the parties' meet and confer efforts be filed along with the motion. Cal Code Civil Procedure § 435.5. The alternative request for judgment on the pleading is DENIED. Plaintiff is entitled to judgment if the complaint states facts sufficient to constitute a cause of action and the answer does not state facts to constitute a defense. Cal Code Civil Procedure §438(c)(1)(A). Grounds for the motion must appear on the face of the pleading or from m...

Excerpt: ... alleges that Defendant Efrain Munoz (sometimes referred to as “Efrain”) was negligent in hiring and supervising Adan. Plaintiff further alleges that the Homeowners “knew or should have known that Efrain Munoz's employees were nonskilled and would not be closely supervised, thereby creating a need for adequate security measures at the site.” Based on these alleged facts, Plaintiff purports to assert four causes of action: (1) negligent su...

Excerpt: ...4) strict products liability. Defendants demur to the third cause of action on the ground that reckless misconduct and gross negligence do not constitute causes of action that are distinct from general negligence under California law. The Court agrees that there is no separate cause of action for gross negligence under California law. See, e.g., Eriksson v. Nunnick (2011) 191 Cal. App. 4 th 826, 856. However, the third cause of action simply sets...

Excerpt: ...r the Defendant. Brown v. Williams (2000) 78 Cal.App.4th 182, 187 fn. 4.Brown v. Williams (2000) 78 Cal.App.4th 182, 187. A void judgment can be set aside at any time, without any time limitation. Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 19. Plaintiff bears the burden of proving that service was properly accomplished. Ziller Electronics Lab Gmbh v. Superior Court (1988) 206 Cal. App. 3d 1222, 1232-1233; Di...

Excerpt: ... statute, nor does not address the court's discretion to require a party to sign a release for confidential records. As Plaintiff's authority makes clear, the court cannot create new methods of discovery that are not set forth in the Discovery Act. The court's powers are limited by the express language of the Act. In Holm v. Superior Court (1986) 187 Cal.App.3d 1241, the court refused to order a body <00890083008e0003008300 0003008b009000030096>h...

Excerpt: ...that described under Section 2032.220 require leave of court and are governed by Cal. Code Civ. Proc. §2032.310. 2. There is good cause to compel an examination based on the injuries Plaintiff has placed at issue. Plaintiff does not dispute that she suffered a traumatic brain injury (among other things) as a result of the accident. Opposition, 1:24- 25. “Good cause” is established where there are specific facts justifying discovery and the i...

Excerpt: ...ght, went to Defendant's hospital for a proposed surgery to remove spinal hardware from her lumbar spine. UF 5. The surgery <008900870094009b01e100 0090009601ef00950003>employee, Nurse Gloria Deitrick, continued to chart progress notes every two hours with no change in the Plaintiff's condition. UF 17. On 2/21/16 at 17:37, Nurse Deitrick noted Plaintiff's confusion and inability to follow direction. UF 20. At 19:15 following a shift change, Nurse...

Excerpt: ...l Union v. International Brotherhood of Teamsters (1978) 87 Cal.App.3d 225, 228. Schumpert v. Tishman Co. (1988) 198 Cal.App.3d 598, 601; Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 796 (discovery sanctions); Visco v. Abatti (1983) 144 Cal.App.3d 904, 908; Scarzella v. DeMers (1993) 17 Cal.App.4th 1762; City of Los Angeles v. Gleneagle Dev. Co. (1976) 62 Cal.App.3d 543. 2. Dismissals for failure to serve within three years is mandatory in n...

Excerpt: ...omplaint, Plaintiff alleges a number of statutes to support the claim against Defendant City, since public entities are liable only as provided for by statute. Gov Code § 815. Among those statutes, Plaintiff includes Gov Code § 815.6, which provides for liability against a public entity for failure to discharge a mandatory duty imposed by an enactment. Gov Code § 815.6. Defendant misconstrues the complaint as Plaintiff is not including portion...

Excerpt: ...3/19. Cal Code Civil Procedure § 437c(b)(2). Plaintiff served the opposition by mail on 9/4/19. Contrary to Defendant's argument in Reply, the deadline for the opposition is not increased by five calendar days for service by mail under Cal Code Civil Procedure § 1013(a). The statute expressly states that “Sections 1005 and 1013, extending the time in which a right may be exercised or an act may be done, do not apply to this section.” Cal Co...

Excerpt: ...algreen's Pharmacy. Ex. 6. 5. Blue Shield of California. Ex. 7. 6. Anthem Blue Cross. Ex. 8 7. Aetna Health of California. Ex. 9. 8. Promart Industries, Ex. 10 9. Aramco Imports, Ex. 11. 10. Silver Spur Corporation, Ex. 12. 1. Procedural issues Contrary to Defendant's argument, nothing in Gov Code § 70617 requires Plaintiff to file 10 separate motions to quash 10 different subpoenas. Gov Code § 70617 sets filing fees for various motions, includ...

Excerpt: ...obile accident on 1/10/16. UF 1. Defendant Rai was driving the vehicle that was rented from Defendant, Rental Car Finance, LLC (“Rental”). UF 2. Rental owned the vehicle. UF 3. Rai was driving the rental vehicle with Rental's permission. UF 4. 2. The Graves Amendment precludes vicarious liability against the owner of a motor vehicle that rents a vehicle to a person who then harms another person unless there is independent negligence on the pa...

Excerpt: ...st find that Plaintiff would not in the exercise of reasonable diligence have determined to call that expert, or the failure to call that expert was due to mistake, inadvertence, surprise, or excusable neglect. Cal Code Civil Procedure § 2034.620(c). Cal. Code Civ. Proc. § 2034.620. Plaintiff could not have determined to call a different orthopedic surgeon, since Dr. Rabbani, Plaintiff's treating orthopedic surgeon, verbally committed to be des...

Excerpt: ...a claim for punitive damages, Plaintiff must allege facts and circumstances showing conduct constituting malice, fraud or oppression. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166. The predicate acts to support a claim for punitive damages must be intended to cause injury or must constitute “malicious conduct,” defined as “despicable conduct” carried on by Defendant with a willful and conscious disregard of the rights of othe...

Excerpt: ...eges one cause of action for premises liability with Count One for Negligence, Count Two for Willful Failure to Warn, and Count Three for Dangerous Condition of Private Property. Defendant's Request for Judicial Notice, Ex. A. Premises liability is a form of negligence, which requires 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 Manag...

Excerpt: ...il Procedure § 2032.210 upon a showing of good cause. Code Civ. Proc., § 2032.310(a); Cal Code Civil Procedure § 2032.320(a). Defendant has shown good cause to require Plaintiff to submit to a second examination by Andrew Fox, M.D., a specialist in neurological surgery. Defendant is not limited to one examination. Multiple examinations are permitted on a showing of good cause. Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255. “Good...

Excerpt: ...th has the burden on that issue. L. C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 748. The settling party need only demonstrate that a settlement has been made. The burden shifts to the contesting party to demonstrate that the settlement does not meet the Tech-Bilt factors.City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261-1262. 2. The court considers a number of factors to determine whether settlement w...

Excerpt: ... conduct constituting malice, fraud or oppression. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166. The predicate acts to support a claim for punitive damages must be intended to cause injury or must constitute “malicious conduct,” defined as “despicable conduct” carried on by Defendant with a willful and conscious disregard of the rights of others. Civ Code § 3294(a). Oppressive conduct is defined as “despicable conduct” ...

Excerpt: ...laintiff filed an Amendment to Complaint substituting Doortech Com, Inc. dba Doortech for Doe 1 pursuant to Cal Code Civil Procedure § 474. UF 21. Generally, an amended complaint relates back to the filing of the original complaint to avoid the bar of the statute of limitations, if the amended complaint seeks recovery for the same general set of facts. Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934. The “same general set of facts”...

Excerpt: ... Plaintiff filed an amendment adding Action Messenger Service as Doe 1. The parties' evidentiary objections are OVERRULED. Pursuant to Cal. Code Civ. Proc. § 437c(q), when the Court grants or denies a motion for summary judgment or summary adjudication, it need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved fo...

Excerpt: ...n of the following claims against Defendant, Abdul Koroma (“Koroma”): Issue 3 (3rd cause of action for negligence), Issue 4 (4 th cause of action for negligence per se), and Issue 5 (5 th cause of action for premises liability). On 8/21/19, the court GRANTED Defendant Koroma's Motion for Summary Judgment with respect to the 2 nd, 3 rd, and 5 th causes of action. Accordingly, Plaintiff's motion is rendered moot with respect to those causes of ...

Excerpt: ...nts, Phillip Cabasso, M.D. and Phillip Cabasso, M.D. a Medical Corporation, as it filed one day late is OVERRULED. The statute provides that the opposition “shall be served and filed not less than 14 days prior to the hearing” which was 8/13/19. The Cabasso opposition was served and filed on 8/14/19. Cal Code Civil Procedure § 437c(b)(2). Notwithstanding, the court has broad discretion “to regulate the submission of materials in connection...

Excerpt: ...has the burden on that issue. L. C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 748. The settling party need only demonstrate that a settlement has been made. The burden shifts to the contesting party to demonstrate that the settlement does not meet the Tech-Bilt factors.City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261-1262. 2. The court considers a number of factors to determine whether settlement was ...

Excerpt: ...dentiary objections are OVERRULED. Pursuant to Cal. Code Civ. Proc. § 437c(q), when the court grants or denies a motion for summary judgment or summary adjudication, it need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved for appellate review. “(q) In granting or denying a motion for summary judgment or summa...

Excerpt: ...nt conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-02 [citations omitted].) “Both the standard of care and defendants' breach must normally be established by expert testimony in a medical malpractice case.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) Thus, in a medical malp...

Excerpt: ...separate cause of action. Quiroz v. Seventh Ave. Center, (2006) 140 Cal. App. 4th 1256, 1285. However, the fact that Plaintiffs alleged negligence per se as separate causes of action in subparts does not make the complaint fatally defective or uncertain. Its inclusion as a separate claim places Defendants on notice that Plaintiffs are relying on Vehicle Code §§ 22350, 23152 and 23153 to support a presumption of negligence. A pleading is adequat...

Excerpt: ...identiality of medical records, and that such records may only be disclosed as provided by statute. 38 U.S.C.A. § 7332 (West). The records can be disclosed by the Secretary without the consent of Plaintiff if ordered by the court upon a showing of good cause.38 U.S.C.A. § 7332(b) (West). 2. Defendant argues that Cal Code Civil Procedure § 1985.3 authorizes the court to compel a party to sign an authorization for the release of records. That st...

Excerpt: ...ert. Cal Code Civil Procedure § 2034.470. During the meet and confer process, either Plaintiff or the expert is statutorily required to provide Defendant with proof of the ordinary and customary fee actually charged for similar services, frequency that the fee has been charged and the total number of times the demanded fee has ever been charged. The statute does not distinguish between whether the expert is retained or non-retained. Cal Code Civ...

Excerpt: ...GS1 provided security-related services to the complex at which the incident occurred pursuant to the terms of an agreement between GS1 and E&S Ring Management, acting as agent for the property owner. UF 1. Plaintiff exited the spa and the spa area without putting on the shoes that he had brought with him. He had wet feet. UF 8, 9. The complaint alleges one cause of action for negligence. 3. Defendant is in a “special relationship” with Plaint...

Excerpt: ...ability of MICRA based on stipulated facts. Canister at 393, 407. The appellate court in Canister considered the new question on appeal -- whether EMTs are “health care providers” for the purposes of the MICRA statute – because the facts were undisputed and it was a “pure question of law.” Canister at 396. Defendant acknowledges that the applicability of MICRA is generally made by the court post-verdict, ostensibly because the jury has ...

Excerpt: .... Cal Code Civil Procedure § 2032.020. Mental examinations and those exams other than that described under Section 2032.220 require leave of court and are governed by Cal. Code Civil Procedure §2032.310. Cal. Code Civil Procedure § 2032.310(a). Plaintiffs agree that Mr. Vergara's mental condition is in controversy and that there is good cause for the examination. Opposition 1:22-26. The motion adequately specifies time, place, manner, conditio...

Excerpt: ... her and apologizing. UF 3. The male passenger had removed his bag from the overhead bin, which caused another passenger's cane to fall on Plaintiff's head. UF 4. She did not observe the cane fall on her head and did not observe whether or not the overhead bin was full. UF 5. Plaintiff testified that a JetBlue flight attendant place the cane in her overhead bin prior to take off. UF 8. Plaintiff walked off the aircraft unassisted, felt fine that ...

Excerpt: ...ntiff can hold the Defendant vicariously liable for injury caused by an act or omission of its personnel committed while in the course and scope of employment. Gov. Code § 815.2 A district's duty for the safety of any pupil in its direct supervision is grounded in statute. Ed. Code, § 44808 The failure to identify these specific code sections in the pleading is not a fatal defect. Defendant is not contending it lacked notice of the basis for Pl...

Excerpt: ...hat the records are directly relevant to Plaintiff's claim and essential to the fair resolution of the lawsuit. Defendant must show a compelling need for the discovery. There is an implicit waiver of Plaintiff's constitutional rights encompassing discovery directly relevant to Plaintiff's claim.Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; Harris v. Superior Court, (1992) 3 Cal.App.4th 661, 665. Defendant issued five subpoenas for prod...

Excerpt: ...Von's (1983) 146 Cal.App.3d 29, 32. If there is any prejudice resulting therefrom, the court can continue the hearing. Mann v. Crachiolo (1985) 38 Cal.3d 18, 30. Defendant has not cited any prejudice resulting from the failure to receive the opposition by mail the next business day. Defendant was able to file a reply brief which the court has considered. The motion is not untimely made. A statutory motion for Judgment on the Pleadings under Cal C...

Excerpt: ...hich the court shall or may take judicial notice. Cal Code Civil Procedure § 437. Cal. Code Civil Procedure § 437. In considering a motion to strike the punitive damage allegations, the court should consider the complaint as a whole. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. Allegations of ultimate fact and conclusions of law are read in context with the other alleged facts. Monge v. Superior Court (1986) 176 Cal. App. 3d 50...

Excerpt: ... days before trial.) Cal Code Civil Procedure § 2024.020. The trial has been continued to 9/27/19. Defendant is entitled to take the deposition of a treating physician. The physician is entitled to reasonable and customary expert fees if the physician is to be asked to express opinion testimony, “including opinion of factual testimony regarding the past or present diagnosis or prognosis made by the practitioner or the reasons for a particular ...

Excerpt: ...d not marked with warnings signs or other indicators. UF 1. After the accident Plaintiff placed her hand on the depression in the lawn to see what caused her to fall. The length of her fingers went into the depression. UF 3. The grassy area is a high-traffic area that is regularly traversed by Park users. UF 5. Plaintiff did not see the condition before the incident. UF 6. A public entity is liable by statute for injury caused by a dangerous cond...

Excerpt: ...igence, 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. To impose liability, the Plaintiff must show that the landowner had actual or constructive notice of the dangerous condition, “or have been able by the exercise of ordinary care to discover the condition...