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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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...