Excerpt: ...eopen discovery are Defendant's diligence or lack of diligence in seeking discovery, the likelihood that permitting discovery will prevent the case from going to trial, and resulting prejudice to the Plaintiff, among other things. Cal. Code Civil Procedure § 2024.050. Defendant has demonstrated due diligence in seeking all relevant health care and billing information from Plaintiff but was not provided with complete information despite that dili...

Excerpt: ...limitations applies if the alleged wrongful conduct constitutes “professional negligence,” which is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction impose...

Excerpt: ...t served by certified mail. Bell Jar subsequently personally served the Application on 4/3/19 in compliance with CCP sec 877.6(a)(2). 3F has not shown any prejudice resulting from the defective notice of Bell Jar's first Application for Determination of Good Faith Settlement. 3F was able to file and serve its motion contesting the settlement. A showing of prejudice arising from defective notice is required. Reedy v. Bussell (2007) 148 Cal. App. 4...

Excerpt: ...o Reconsider under CCP 1008 requires that the motion be made 10 days from the order and that the motion be based on new or different facts, circumstances, or law. The motion is timely made, but Plaintiff has not shown new or different facts, circumstances or law that warrant reconsideration. Plaintiff's counsel claims the Defendant's deemed admitted motion should be denied in full because Plaintiff's counsel believes the responses were co...

Excerpt: ... triable issue of one or more material facts. Cal. Code Civ. Proc. § 437c(p)(1). The court strictly construes the moving party's facts and liberally construes the opposing party's facts. All doubts are resolved in favor of the opposing party. Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal. 2d 412, 417. Evidentiary objections Pursuant to Cal. Code Civil Procedure § 437c(q), when the court grants or denies a motion for summary judgment ...

Excerpt: ...he policy that cases be tried on their merits. Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 898. Cal. Code Civil Procedure § § 473(b) and 473.5 require that the moving party submit a copy of the answer with the motion. Defendant has complied with that requirement by submitting the proposed answer with the Reply brief. Plaintiff bears the burden of proving that service was properly accomplished. Ziller Electronics Lab Gmbh v. Superior Court(19...

Excerpt: ...ber, as Defendant's designated orthopedic expert given Dr. Tauber's recent plea to criminal charges. To grant the motion, the court must find that Defendant would not in the exercise of reasonable diligence have determined to call that expert or, establish that the failure to call that expert was due to mistake, inadvertence, surprise, or excusable neglect. Cal. Code Civil Procedure § 2034.620(c). Defendant states that it designated Dr. Tauber a...

Excerpt: ...n to continue trial to 6/5/19. Defendant's evidentiary objections to the Declaration of Richard A. Massey, M.D. #1. Sustain. #2. Overrule. #3, #4. Overrule. #5. Overrule. #6. Overrule. Analysis The complaint alleges that on that on 4/30/15, Defendants negligent failed to properly diagnose and treat Plaintiff's basal cell cancer, resulting in delayed treatment. There is no dispute that Plaintiff consulted with Defendant, Dr. Trail, on 4/30/15, for...

Excerpt: ....m. on 12/6/16, Ms. Dunnett was traveling home from SEIU's office on Lincoln Avenue in Pasadena. UF 9. At the same time, Plaintiff was walking westbound on in the crosswalk on Mountain Street. Ms. Dunnett made a left turn and struck Plaintiff with the right side mirror of her vehicle. UF 9. Plaintiff asserts causes of action for general negligence and motor vehicle negligence. UF 1. At the time of the incident, Ms. Dunnett was employed as SEIU's ...

Excerpt: ...ndants, Phillip Cabasso, M.D. and Phillips J. Cabasso, M.D. A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication that was denied, unless the party establishes newly discovered facts or circumstances or a change of law supporting the issues reasserted. Cal. Code Civil Procedure § 437c(f)(2). First, Dr. Chawla is not bringing a motion for summary judgment. He seeks adjudication of one issu...

Excerpt: ...ions to Plaintiff's material facts in opposition and to Plaintiff's Separate Statement of Facts are disregarded as they are not objections to particular evidence, but rather Plaintiff's characterization of the facts. SeeObjections, 7:5 – 23-17. The undisputed material facts establish the following: Plaintiff, Estafany Martinez, was 19-years old when she was transferred to Cedars-Sinai Medical Center from St. John's in the early morning hours of...

Excerpt: ...iff must allege facts and circumstances showing 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. Cal. Civil Code § 3294(a). Oppressive conduct is defi...

Excerpt: ...iff must allege facts and circumstances showing 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. Cal. Civil Code § 3294(a). Oppressive conduct is defi...

Excerpt: ...cusable neglect. Cal. Code Civil Procedure § 2034.620(c). Fardad Mobin, M.D. On 2/21/19, the Court denied Plaintiff's motion to augment his expert witness designation by adding Fardad Mobin, M.D. Plaintiff again asks for the same relief by way of this ex parte application brought on 3/13/19, essentially arguing that Defendant will not suffer any prejudice. Plaintiff did not submit a declaration to support the requested relief. As with Plaintiff'...

Excerpt: ...ent prejudicing the party's interest in the litigation.” Cal Code Civil Procedure §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. Cal. Code Civil Procedure § 36.5 Plaintiff submits a letter from her physician describing her numerous medical conditions and a declaration from Plaintiff's daughter desc...

Excerpt: ...However, the only basis for summary judgment raised in the moving papers was that Plaintiff was not actually ignorant of Defendant Mr. Hah's identity at the time the original complaint was filed within the meaning of Cal Code Civil Procedure § 474. Plaintiff has not had sufficient notice of or opportunity to respond to this new argument. Points raised for the first time in the reply brief will not be considered as it deprives the respondent of t...

Excerpt: .... Leave to amend should be given if there is a reasonable possibility that the defect can be cured. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal. App. 4th 298, 302. Claims against a public entity must be based on statute unless expressly excepted. Gov Code § 815. The complaint does not allege a statutory basis for the causes of action against Defendant. Plaintiff must allege “detaile...

Excerpt: ...essa Alexander #1. Overruled. #2. Overruled. #3. Overruled. Declaration of Enrique Rivera, CXLT (Plaintiff's Safety, Human Factors, and Liability Expert) #1. Overruled. This general objection is not specific enough. #2. Sustained. #3. Overruled. #4. Overruled. #5. Sustained. #6. Overruled. The undisputed material facts establish the following: The incident occurred on Defendants' premises on 9/3/17, when Plaintiff fell in the breezeway of Defenda...

Excerpt: ...eed by way of noticed motion with respect to reopening discovery. That issue was not substantively decided. See Court's ruling of 12/18/19. Plaintiff has not shown any prejudice resulting from Defendant's failure to submit a separate statement with the Motion to Compel Plaintiff's IME. Its absence is not grounds for denial of the motion. The Court has discretion to reopen discovery. Among the factors to be considered are Defendant's diligence or ...

Excerpt: ...gnation is permitted given the hardship shown by Plaintiff's counsel's counsel. Declaration of H. Douglas Daniel. The Court can permit the untimely designation as there is sufficient time for the parties to complete expert discovery, since trial was continued to 6/27/19 by stipulation of the parties filed on 1/28/19. Cal. Code Civ. Proc. § 2034.710 Plaintiff's counsel attempted to get a stipulation from counsel but she refused. Declarati...

Excerpt: ...ative Complaint alleging the following causes of action against Walmart: (1) Negligence; (2) Premises Liability; (3) Negligent Hiring, Retention, and Supervision; (4) Negligent Infliction of Emotional Distress; (5) Intentional Infliction of Emotional Distress; (6) Loss of Consortium; and (7) Products Liability. Walmart filed the instant Demurrer to the third through seventh causes of action. Legal Standard A demurrer for sufficiency tests whether...

Excerpt: ...ative Complaint alleging the following causes of action against Walmart: (1) Negligence; (2) Premises Liability; (3) Negligent Hiring, Retention, and Supervision; (4) Negligent Infliction of Emotional Distress; (5) Intentional Infliction of Emotional Distress; (6) Loss of Consortium; and (7) Products Liability. Walmart filed the instant Demurrer to the third through seventh causes of action. Legal Standard A demurrer for sufficiency tests whether...

Excerpt: ...ontinued date of hearing, unless the court for good cause orders otherwise.” Cal. Code Civil Procdure§437c(b)(2). The hearing was originally scheduled for 2/22/19. Thus, the opposition was due on 2/8/19. Plaintiff allowed an extra week for service by serving the documents on 2/1/19 by mail. The Court declines to strike the opposition although Plaintiff did not comply with formatting requirements for the opposing separate statement which requir...

Excerpt: ...gerous condition. Plaintiff alleges that while she was volunteering at the Harbor Animal Care Center, operated, owned, and maintained by Defendant City of Los Angeles (“Defendant”) a German Shepard caused her injuries on June 19, 2018. On February 5, 2019, Defendant filed this instant demurrer to the Complaint. On February 19, 2019, Plaintiff filed an Opposition. Legal Standard A demurrer for sufficiency tests whether the complaint states a c...

Excerpt: ...n this case by 1/30/19. Plaintiff's opposition was filed late on 2/19/19, but Defendant has not shown any prejudice resulting from the late filing. Defendant served a Reply which has been considered. 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. Mann v. Crachiolo (1985) 38 Cal.3d 18, 30. Defendant has not shown that d...