Excerpt: ...ux (big toe). UF 2. Defendant prescribed oral antibiotics and performed an aggressive debridement of the callus and ulcer. UF 2-3. Defendant performed a second debridement of the ulcer at the bottom of the right great toe. He prescribed prescription medication. UF 4. He later returned to Defendant's office on 3/7/16 with a large “bullae” and second degree burns at the top and bottom of the left foot, which Defendant drained and dressed. UF 8....

Excerpt: ...e Motion is supported by the Declaration of David E. Hatch, filed on 6/18/19. Plaintiff admits that the responses served on Defendant on 5/29/19 are unverified as Plaintiff's counsel has lost contact with the client. Opposition, 2:9-15. Unverified responses are “tantamount to no responses at all.” Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-36. Additionally, Plaintiff's responses include objections, contrary to the court's o...

Excerpt: ...to 7/12/19. 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. The court has discretion to permit amendment of any pleading in the furtherance of justice and on any proper terms. Cal Code Civil Procedure § 473. The court's discretion is liberally exercised to permit amendment of the pleadings. Nestle v. Santa Monica, (197...

Excerpt: ... case from going to trial, and resulting prejudice to the opposing party, among other things. Cal Code Civ Procedure § 2024.050. Defendant appears to argue that it is entitled to mandatory relief based on defense counsel's affidavit of fault, citingLasalle v. Vogel (2019) 36 Cal.App.5th 127. Motion 6:5-7. Mandatory relief under Cal Code Civil Procedure § 473(b), based on an affidavit of fault requires that the court “vacate any (1) resulting ...

Excerpt: ...d. Defendant is entitled to obtain discovery by means of a physical or mental examination. Cal Code Civil Procedure § 2032.020. Leave of court is required for examinations “other” than that described in 2032.210, et seq. upon a showing of good cause. Cal Code Civil Procedure §2032.310(a). Defendant has shown good cause for the examination with Defendant's pain management expert. “Good cause” is established where there are specific facts...

Excerpt: ...n no response has been provided to the request for discovery. Cal Rules of Court, Rule 3.1345. Nothing in Gov. Code § 70617 requires Plaintiff to file three separate motions to quash three separate subpoenas. The court can quash the subpoena to protect the Plaintiff 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 Californ...

Excerpt: ...on Defendant's objections to Plaintiff's additional facts, which are not evidentiary objections. The Complaint alleges that on 12/14/15, Plaintiff was on Defendant's premises walking toward a gravesite when her foot fell into an uncovered hole, causing injury. Plaintiff alleges claims for premises liability and damages. See Complaint filed. Defendant Brightview maintains the lawns at Rose Hills year round. UF 23. An affirmative duty to act for th...

Excerpt: ...ce. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. …” Cal. Code Civil Procedure § 2017.010. The subpoena issued by Plaintiff requests “any and all documents and records contained in the insurance claim file, including but not limited to copies of claims, witness statements, written or recorded, etc.” Motion, Ex. D, Attachment 3 to the Subpoena. Plaintiff argues the entire ...

Excerpt: ...xpert is not necessary. The motion can be supported by an attorney's declaration based on information and belief attesting to Plaintiff's medical diagnosis and prognosis. Cal. Code Civil Procedure § 36.5. Plaintiff's counsel's declaration attests that Plaintiff cannot walk very far, has high blood pressure, asthma, and suffers from diabetes for 40 years. Declaration of Ryan J. Altomare, ¶ 4. As Defendant observes, given the length of Plaintiff'...

Excerpt: ...bby, adjacent to a display of a pallet of bottled water. UF 2. Premises liability is a form of negligence, which involves the duty of a premises owner to exercise ordinary care in the management of the premises to avoid exposing others to an unreasonable risk of harm. Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619. To impose liability on Defendant, the Plaintiff must show that the landowner had actual or constructive no...

Excerpt: ... or improper matter in any pleading or any part of a pleading not drawn or filed in conformity with the law. Cal. Code Civil Procedure § 436. To support a claim for punitive damages, Plaintiff 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 ...

Excerpt: ... favor of the strong policy favoring disposition of the case on the merits. Kapitanski v. 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. Evidentiary and Issue Sanctions The court declines to rule on Plaintiff's request to preclude evidence of Defendant's investigation of the display rack at issue as well as Plaintiff's request for is...

Excerpt: ...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 treatment decision made by the practitioner . . .” Cal. Code Civil Procedure § 2034.430(a)(2). Vikram Singh, M.D. appeared as the person most knowledgeable at Back and Pai...

Excerpt: ...and 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. As Defendant observes, a motion to amend a pleading must include a separate declaration specifying: “(1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations we...

Excerpt: ...nitive damages, Plaintiff 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). Opp...

Excerpt: ...answer within 10 days. A demurrer reaches defects that appear on the face of the complaint. The court considers the allegations and matters that are subject to judicial notice. All facts are accepted as true. Saunders v. Superior Court (1994) 27 Cal. App. 4th 832, 838. A demurrer tests the legal sufficiency of the allegations. It does not test their truth, the Plaintiff's ability to prove them, or the possible difficulty in making such proof. Sau...

Excerpt: ...t alleges that Cross-Defendants' conduct caused property damage to Cross-Complainants' truck. This is a compulsory Cross-Complaint which should have been filed at the time of the answer, since it is a related cause of action against the Plaintiff. Cal Code Civil Procedure § 426.30. A “related cause of action” is one that “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which t...

Excerpt: ...Code § 835 based on the material issues of fact asserted, which remain controverted. Cal. Code Civil Procedure § 437c(p)(2). Adjudication of the first cause of action for premises liability is GRANTED. The first cause of action does not assert a statutory basis for the claim. Claims against a public entity must be based on statute. Cal. Gov. Code §815. Since the duty of a governmental agency can only be created by statute, the statute must be ...

Excerpt: ...ty to sue. Cal. Code Civil Procedure § 430.10(b). A person's standing to sue can also be challenged by way of demurrer. Buckland v. Threshold Enterprises, Ltd., 155 Cal. App. 4th 798, 813 (2007). “Legal capacity” to sue refers to a person's right to come into court. “Standing” to sue refers to a person's right to relief in court.Friendly Village Community Assn., Inc. v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224. A cause of a...

Excerpt: ...rocedurally defective. Plaintiff did not include a Notice of Motion nor was Defendant served with a copy of the proof of service. However, Plaintiff's motion does indicate the date, time, and place of the hearing. The court's file reflects that Plaintiff did file a proof of service with the court indicating service of the motion on Defendant, but the document does not reflect the date when the motion was served. Thus, whether Plaintiff gave Defen...

Excerpt: ...intiff does not allege any facts to support the claim for negligent entrustment. Plaintiff alleges in conclusory fashion that Defendants negligently entrusted the motor vehicle. Complaint, ¶ MV 2. Defendant has established that the complaint is preempted by the Graves Amendment. The Graves Amendment precludes vicarious liability against the owner of a motor vehicle if the owner is in the trade or business of renting, the owner rented the vehicle...

Excerpt: ...nd 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 others. Cal. Civil Code § 3294(a). Oppressive conduct is defin...

Excerpt: ... lacks jurisdiction over a person are made by way of a motion to quash pursuant to Cal. Code Civil Procedure § 418.10. The complaint is superseded by the First Amended Complaint (FAC) filed on 3/26/19. The complaint ceases to have any function as a pleading. Defendant's references to the allegations of the complaint are irrelevant. Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal. App. 4th 1135, 1144. Defendant's challenge...

Excerpt: ... Status of Discovery Stay and Criminal Proceeding on <00030016001601e6037401 e4> A civil defendant facing a parallel criminal proceeding does not have an absolute right to stay the civil proceedings pending the outcome of the criminal trial. Defendant cites Pacers Inc. v. Superior Court (1984) 162 Cal. App. 3d 686, which found that that the punishment imposed by the trial court against the defendants was an abuse of discretion because it penalize...

Excerpt: ... that Defendant acted “wantonly, willfully, and recklessly,” “reckless disregard,” and the prayer for punitive damages as noticed in Defendant's Notice of Motion, 2: 1-5. To support a claim for gross negligence, Plaintiff is required to allege the traditional elements of negligence and facts constituting extreme conduct on the part of the Defendant. Rosencrans v. Dover Images, Ltd. (2011) 192 Cal. App. 4th 1072, 1082; Chavez v. 24 Hour Fi...

Excerpt: ... Hawkins, filed their complaint alleging medical malpractice, wrongful death, and breach of fiduciary duty. Plaintiff, Steven Hawkins, alleged he was the domestic partner of Akiko Saggio, and father of Plaintiff, Salen Hawkins, a minor. Complaint ¶ 2. On 7/19/17, Plaintiffs filed a First Amended Complaint for wrongful death only. Mr. Hawkins again alleged that he was the domestic partner of Akiko Saggio and father of Salen Hawkins, a minor. Defe...

Excerpt: ...by 5/3/19 (increased by five calendar days for service by mail since Defendant did not agree to electronic service). Opposition, 12:14. Plaintiff untimely served the motion on 5/7/19. However, a party may be deemed to have waived any irregularity in the notice by appearing at the hearing, opposing the motion, not asking for a continuance and not demonstrating any prejudice resulting from the shortened notice. Carlton v. Quint (2000) 77 Cal. App. ...

Excerpt: ...or from matters subject to judicial notice. Cal Code Civil Procedure § 438. The same general rules that apply to demurrers apply to motions for judgment on the pleadings. All facts alleged in the complaint are deemed admitted. The court is not concerned with a Plaintiff's possible inability to prove the claims made in the complaint. All facts are accepted as true. Ludgate v. Lockheed (2000) 82 Cal.App.4th 592, 602. 2. The complaint alleges that ...

Excerpt: ... valid and binding settlement. Terry v. Conlan(2005) 131 Cal.App.4th 1445, 1454 The court's power is limited to determining the existence of the agreement and to enforce its settlement. Viejo Bancorp, Inc. v. Wood (1989) 217 Cal. App. 3d 200, 209. There is a strong public policy in favor of settlement of cases. The trial court has the power to resolve factual disputes relating to the agreement. Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1357. P...

Excerpt: ... 3d 686 which arose in a different procedural context. The issue there was whether or not the trial court could impose sanctions on defendants by prohibiting them from testifying at trial as a sanction for their refusal to testify at deposition based on their 5th Amendment privilege. Pacers a 688. The Pacers court found that the punishment imposed against the defendants was an abuse of discretion because it penalized them for invoking their 5th A...

Excerpt: ...ff was walking about the supermarket when she slipped and fell on a slippery substance that was left on Defendant's floor, creating a dangerous condition. Defendant's Ex. 1, ¶ 7. Plaintiff is seen walking into the “Fresh Floral” area at 17:10:41 in the surveillance video. UF 2. She disappears from view behind what appears to be a square produce display stand at around 17:10:45. UF 2. The video reveals that a store employee walks through the ...

Excerpt: ...f Jason Smith, timely filed on 6/6/19 (nine court days before the hearing). While Defendant did not receive the Declaration the next business day, Defendant was able to file a reply brief which the court has considered, and therefore, has not suffered 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. Plainti...

Excerpt: ...areas or preclude or limit the production of documents for good cause shown. Cal. Code Civil Procedure § 2025.420. Defendant has not shown good cause for the protective order. The permissible scope of discovery is broadly framed to include “any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evid...

Excerpt: ... the litigation.” Cal. Code Civil Procedure §36(a). Plaintiff currently suffers from debilitating injuries, deteriorating condition, and the consequences of a stroke. Declaration of Doris Holmes, ¶ 3-7. Plaintiff can meet her burden with minimal evidence. The motion can be supported by an attorney's declaration based on information and belief attesting to Plaintiff's medical diagnosis and prognosis. Cal Code Civil Procedure § 36.5. Here, Pla...

Excerpt: ...ircumstances showing conduct constituting malice, fraud or oppression. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166. Defendant argues that Plaintiff must allege facts showing that Defendant intended to harm. Motion, 9:15. Defendant cites a 1958 case, Gombos v. Asche (1958) 158 Cal.App.2d 517, which found that the allegations of driving while drunk did not charge malice. That case relied on an older version of the statute. The court ...

Excerpt: ... of contents has caused Plaintiff substantial prejudice. The court must disregard errors in pleadings or proceedings, which do not affect the substantial rights of the parties. Cal. Code Civil Procedure § 475. Leave to amend is permitted at the court's discretion upon any terms that may be just. Cal. Code Civil Procedure § 473. The statute is liberally construed to permit amendment of the pleadings. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th ...

Excerpt: ...here Defendants or some of them reside. Cal. Code Civil Procedure § 395(a). The general rule under Cal. Code Civil Procedure § 395(a) directs that venue is proper at Defendant's residence unless there is a specific venue statute, in which case the general rule is subordinated. Cal. Code Civil Procedure 395(a) The general rule of venue has effect only when no other venue provision applies. Wherever there is a more specific venue statute, the gen...

Excerpt: ...rocedure § 436. To support a claim for punitive damages, Plaintiff 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 ...

Excerpt: ...nd those exams other than that described under Section 2032.220 require leave of court and are governed by Cal. Code Civ. Proc. §2032.310.Code Civ. Proc., § 2032.310(a). Defendant is entitled to more than one examination upon a showing of good cause. Shapira v. Superior Court (1990) 224 Cal. App. 3d 1249, 1250. “Good cause” is established where there are specific facts justifying discovery and the inquiry is relevant to the subject matter o...

Excerpt: ...s counsel declares she spoke by telephone to Plaintiff's counsel about all causes of action. Declaration of Nwoko, ¶ 6-7. Cal. Code Civil Procedure § 430.41(a). The demurrer to the 1 st cause of action for battery is overruled. To state a claim for battery, Plaintiff must allege facts supporting the following elements: 1. Defendant intentionally committed an act resulting in a harmful or offensive contact with the plaintiff's body; 2. Plaintiff...

Excerpt: ...riven by Defendant, Patricia Avila. UF 1, 2. Plaintiff alleges that the City of Los Angeles (“City”) operated, managed, designed, planned, engineered, constructed, maintained and inspected the intersection on the date of the incident. UF 3. Plaintiff alleges that the intersection constituted a dangerous condition of public property. UF 4. Plaintiff contends that the dangerous condition contributing to the occurrence of the incident was the la...

Excerpt: ...ies 2/7/19 stipulation, motion cutoff dates were based on the new trial date of 6/25/19. The 15 th day before trial was 6/10/19. This motion was set for hearing on 6/11/19 and was untimely set. Also pursuant to the parties' 2/7/19 stipulation, Plaintiff agreed to submit to an IME with Dr. Henry by 3/1/19. Plaintiff could elect to an examination date of 2/6/19 or 2/7/19. Non-expert discovery was otherwise cutoff. Defendant has not made a motion to...

Excerpt: ...e motion for 5/13/19. The court advanced the hearing date and continued it to 5/30/19. The court also continued trial from 5/20/19 to 8/20/19. The expert discovery cutoff dates only for Drs. Giancobetti and Forman and the depositions of Plaintiff and Defendant Charles Lofgren were to be based on the new trial date. See Minute Order of 4/11/19. The court subsequently continued the hearing on this motion to this date. The court can exclude the expe...

Excerpt: ... the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607. The required standard of care owed by a medical prof...

Excerpt: ...The District argues that since Petitioner did not present her government claim until 8/23/18, the claim was untimely presented. The District's contention that only one incident was asserted in the claim is not supported. Declaration of Schyler Katz, Ex. 1. While the claim does include the word “incident” in the singular, the claim should be read as a whole. The claim makes repeated references to the time period between November 2017 to June 2...

Excerpt: ...day. Defendant has timely filed a substantive reply which the court has considered. The court must disregard errors in pleadings or proceedings, which do not affect the substantial rights of the parties. Cal Code Civ Proc § 475. A demurrer reaches defects that appear on the face of the complaint. The court considers the allegations and matters that are subject to judicial notice. All facts are accepted as true. Saunders v. Superior Court (1994) ...

Excerpt: ...e. Olivera v. Grace, (1942)19 Cal. 2d 570, 575. The court can set aside the default entry and judgment where it is void, such as where the summons and complaint were not properly served and the court lacked jurisdiction over the Defendant. Brown v. Williams (2000) 78 Cal.App.4th 182, 187 fn 4.Brown v. Williams (2000) 78 Cal.App.4th 182, 187. Plaintiff bears the burden of proving that service was properly accomplished. Ziller Electronics Lab Gmbh ...

Excerpt: ...ave adequately complied with the requirements for the contents of the separate statement. Cal. Rules of Court 3.1350. Issue 1: Adjudication of the claim for strict liability is GRANTED under Cal. Code Civil Procedure § 3342. Defendants have established they are entitled to Adjudication of this issue based on the undisputed material facts asserted. Cal. Code Civil Procedure § 437c(p)(2). For strict liability to attach, a person must be “bitten...

Excerpt: ...motion by 5/6/19 but served the motion on 5/10/19. However, under certain circumstances, a party may be deemed to have waived any irregularity in the notice by appearing at the hearing, opposing the motion, not asking for a continuance and not demonstrating any prejudice resulting from the shortened notice. Carlton v. Quint (2000) 77 Cal. App. 4th 690. A showing of prejudice arising from defective notice is required. Procedural defects which do n...

Excerpt: ... contending that Cross Complainant cannot establish the essential elements of breach of contract. Motion, 2:4-6. Cross-Defendant's burden on summary judgment is to challenge all theories of liability raised by the Cross Complainant, and “must define all of the theories alleged in the [cross- complaint] and challenge each factually.”Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714 In analyzing a motion for summary judgment, the court app...

Excerpt: ... did not permit additional briefing when the motion was continued from 4/29/19. The court can quash the subpoena to protect the Plaintiff from unreasonable or oppressive demands including unreasonable violations of the right of privacy. Cal. Code Civil Procedure § 1987.1. The parties met and conferred in good faith about the scope of the subpoenas. Declaration of John Kawai, ¶¶ 6-7, Exhibits B and C. The right to privacy is protected by the Ca...

Excerpt: ...oximately 9 p.m. UF 3. Plaintiff arrived at the store with her dog, which she placed in the child's seat of a Target shopping cart. UF 4. Plaintiff went to the refrigerated section of the store to retrieve a carton of skim milk. UF 5. She retrieved a full carton of milk from the top shelf. UF 8. Plaintiff placed the milk carton upright in the top section of her shopping cart, in the child's seat. UF 9. She continued shopping to purchase peaches a...

Excerpt: ...prejudiced in maintaining that party's action or defense on the merits. Cal. Code Civil Procedure § 2034.620. Defendant states it has relied on Plaintiff's expert witness list and will now need to counter-designate an expert in physical rehabilitation. However, Defendant concedes that Plaintiff's expert designation disclosed that her life care expert would provide testimony of long term treatment including all phases of life care planning. Defen...

Excerpt: ...eviously retained who will express an opinion on a subject to be covered by an adverse party to the exchange. Cal. Code Civil Procedure § 2034.280 2. Defendant contends that Plaintiffs should have anticipated that a radiologist was necessary given this is a medical malpractice case involving fractured pedicles, which were diagnosed upon review of an MRI. Defendant's case citation is distinguishable. In Fairfax v. Lords (2006) 138 Cal.App.4 th 10...

Excerpt: ...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 others. Civ Code § 3294(a). Oppressive conduct is defined as “d...

Excerpt: ...jurisdiction over a person are made by way of a motion to quash pursuant to Cal. Code Civil Procedure § 418.10. The complaint is superseded by the First Amended Complaint (FAC) filed on 3/26/19. The complaint ceases to have any function as a pleading. Defendant's references to the allegations of the complaint are irrelevant. Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal. App. 4th 1135, 1144. Defendant's challenges to th...

Excerpt: ...§ 436. To support 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...

Excerpt: ...072, 1082; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640. Gross negligence is defined as “an extreme departure from the ordinary standard of conduct” or a “want of even scant care.” City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754. The 2 nd cause of action for gross negligence fails to state a cause of action. To support this claim, Plaintiff incorporates facts previously alleged. Plaintiff alleges ...

Excerpt: ... the merits. Cal. Code Civil Procedure § 2034.620. Defendant states it has relied on Plaintiff's expert witness list and will now need to counter-designate an expert in physical rehabilitation. However, Defendant concedes that Plaintiff's expert designation disclosed that her life care expert would provide testimony of long term treatment including all phases of life care planning. Defendant acknowledges that this includes physical rehabilitatio...

Excerpt: ...; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive 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 r...

Excerpt: ...ement at Berth 10, near row 26 and 210 of the Long Beach Container Terminal (“Terminal”). UF 1 – 3. It is undisputed that before she fell, an employee of the Terminal instructed another employee to take a metal plate and try to cover the cutout. UF 5. The plate did not fit and was no help in fixing the cutout, but it was there at the time of the incident. UF 6. On 3/28/11, Doreck contracted with Manson to complete the installation of the wa...

Excerpt: ...noli answered. On March 29, 2019, Spagnoli filed the instant motion for leave to file a cross-complaint. The motion is unopposed. Cal. Code Civil Procedure §428.10 provides that a party against whom a cause of action has been asserted may file a cross-complaint setting forth: “(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserte...

Excerpt: ...gment on Plaintiff's negligence claim. Cal. Code Civil Procedure § 437c(a)(1). Motion for Summary Adjudication, by Plaintiff Garo Mardirossian The complaint alleges that on June 12, 2015, Plaintiff was involved in an automobile collision with Defendant Hernan Hernandez Godinez (“Godinez”). Plaintiff brings this action against Defendant and his employers J. Ginger Masonry and Masonry Gen Par, Inc. (collectively “Defendants”) under a theor...

Excerpt: ...rate statement or for exceeding page limitations. The issues raised by the Defendant are clear and sufficient for Plaintiff to file an opposition. Plaintiff does not claim any prejudice resulting from these procedural defects. Defendant is entitled to obtain discovery by means of a physical or mental examination. Cal. Code Civil Procedure § 2032.020. Mental examinations and those exams other than that described under Section 2032.220 require lea...

Excerpt: ...embers of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607. The required standard of care owed by a medical professional is a matter peculiarly within the knowledge of experts. “'The standard o...

Excerpt: ...0 require leave of court and are governed by Cal. Code Civil Procedure §2032.310. Cal. Code Civil Procedure § 2032.310(a). Defendant is entitled to more than one examination upon a showing of good cause. Shapira v. Superior Court (1990) 224 Cal. App. 3d 1249, 1250. The Shapira court issued a writ requiring the trial court to determine whether there was good cause for the second examination, noting other cases which upheld the right to multiple ...

Excerpt: ...: on 4/7/17, Plaintiff filed a complaint asserting claims for negligence and premises liability. UF 1-2. Plaintiff alleges that she suffered an eye injury while walking on property of the Sunland-Tujunga Community Seventh-Day Adventist Church (“the Church”). UF 1, 4. The Conference answered the complaint on behalf of the Church. UF 3. On 2/22/19, the court issued an order deeming admitted Plaintiff's responses to Defendant's Requests for Admi...

Excerpt: ...ship at the Defendants' fitness club. UF 1-2. Plaintiff does not dispute the existence and language of the Waiver of Liability contained in the Agreement. UF 3-4. Plaintiff's arguments and evidence do not dispute these material facts. On 11/28/16, Plaintiff took a group fitness class as part of her membership. UF 5. This was a type of class that she regularly attended. UF 6. The class was a strength and cardio class that commonly used weighted du...

Excerpt: ...tion 2:1-5. Any party may obtain discovery by way of a physical examination. Cal. Code Civil Procedure § 2032.020. Defendants can move for an order compelling response and compliance with the demand. Cal. Code Civil Procedure § 2032.240. The parties are entitled to complete discovery proceedings on or before the 30 th day before trial. <00030057004b004c005600 00030053005500480056>ently set for 5/30/19. Plaintiff admits that Defendant served the...

Excerpt: ...in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) The motion is not procedurally defective. The reference to the F...

Excerpt: ... judgment in its favor. Cal. Code Civil Procedure § 1030. The intent of the statute is to prevent out-of-state residents from filing frivolous <008e01e400030004009200 0374037901e100030375>31. Plaintiff does not dispute that she is a resident of Texas. However, the second prong of the statute requires that Defendant establish that it is “reasonably possible” that it would obtain a judgment. The motion must be supported by “competent evidenc...

Excerpt: ...d diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607. The required standard of care owed by a medical professional and whether the conduct was a substantial factor in ...

Excerpt: ...t their truth, the Plaintiff's ability to prove them, or the possible difficulty in making such proof. Saunders at 840. Statutory grounds for demur include a failure to state a cause of action and uncertainty. Cal. Code Civ. Proc. § 430.10. The complaint alleges a claim for Unfair Business Practices as a 3rd cause of action. To support the claim, Plaintiff must allege with particularity, the facts supporting the statutory elements of the violati...

Excerpt: ...r or impede that person's ability to protect the interest. Cal. Code Civ. Proc., § 387(d)(1). 2. Intervenor has an interest in this litigation because, under the provisions of the Insurance Code, an action can be brought against the insurer in the event the Plaintiff obtains a judgment against the insured, Minas Harutyunyan, whom State Farm is not able to locate. Declaration of Vanessa Ticas, ¶ 7. Ins. Code, § 11580 Intervention is permitted t...

Excerpt: ...ted material facts establish the following: Plaintiff was employed at Coldwater's club named Déjà vu, located in North Hollywood. UF 1. Plaintiff conversed with a heavyset man who asked her how much it would cost for her to “take care” of the two other unidentified men in the room. UF 15. Plaintiff initially informed the heavyset man that she would not have sex with either man. UF 16. Plaintiff proceeded to have sex with the first man. UF 1...

Excerpt: ...onal to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607. The required standard of care owed by a medical professional is a matter pecu...

Excerpt: ...Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35. To support issuance of sanctions, there must be a willful failure to comply with a court <01e4000303750086000303 > Sanctions are warranted where there is a willful refusal to comply with a valid discovery <01e4000303750086000303 > There is no dispute that Plaintiff did appear for the 4/10/19 examination as ordered by the court. Declaration of Josh...

Excerpt: ...der appointing a Guardian ad Litem was rejected on 5/2/19. Petitioner was ordered to resubmit the application. 2. With respect to the Medi-Cal Lien, Petitioner is required to give notice of the claim to the State Director of Health Care Services or explain why notice has not been given. See ¶ 13.b.(4). Counsel submitted a letter from Medi-Cal acknowledging Elijah's claim and asking for additional information. See Status Report filed 4/8/19. The ...

Excerpt: ... a cause of action. Cal. Code Civil Procedure § (c)(1)(B). Grounds for the motion must appear on the face of the pleading or from matters subject <021a000303760375037a01 e4> On 11/26/18, Defendant, Sheila Jackson, filed an “Answer Counterclaim” in response to the Complaint. Counterclaims have been abolished in California. The court deems the “counterclaim” as a cross-complaint. Cal. Code Civil Procedure § 428.80 A cross-complaint must c...

Excerpt: ... proper service of the subpoena. Plaintiffs reiterate in their reply brief that at the time they served the witness with the Notice of Taking Deposition on 2/20/19 for deposition scheduled for 3/11/19, Defendant allegedly knew Mr. Arevalo would be retiring and did not condition acceptance of the Notice of Taking Deposition on the witness' retirement being extended.” Reply, 3:27 – 4:3. There is no evidence of Defendant's prior knowledge or bad...

Excerpt: ...y objections but rather are objections to the separate statement. Evidentiary objections are required to be filed separately, it must quote the objectionable statement, and must comply with one the formats set forth in Cal Rules of Court 3.1354. Defendant's objections to the Declaration of Andrew Geller, M.D. (Plaintiff's expert) All objections are SUSTAINED. Dr. Geller's opinions are speculative and lack foundation. Dr. Geller opines that the Ho...

Excerpt: ...ode Civ Procedure § 1030. The intent of the statute is to prevent out-of state residents from filing frivolous <008e01e400030004009200 0374037901e100030375>31. Plaintiff disclosed in discovery responses that he is a resident of Arizona. Motion, Ex. B, 3:25 – 4:3. The second prong of the statute requires that Defendant establish that it is “reasonably possible” that it would obtain a judgment. The motion must be supported by “competent ev...

Excerpt: ...ers of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607. The required standard of care owed by a medical professional is a matter peculiarly within the knowledge of experts. Hanson v. Grode (1999...

Excerpt: ... the third cause of action for negligence per se are rendered moot. The court's file reflects that Plaintiff dismissed these claims on 4/29/19. Plaintiff also states it is not pursuing a theory that Defendants' negligence is presumed. Opposition, 6:5. Accordingly, Issues 5, 6, 7, are no longer within the scope of the motion. The undisputed facts establish the following: Plaintiff does not dispute that he worked for Defendants and was injured on 1...

Excerpt: ... decision not to consider late papers is discretionary. Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 624–25. Defendants have not demonstrated any prejudice from the late filing of the opposition by one day. Defendants filed a reply brief and supporting papers, which the court has 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 (1...

Excerpt: ...ntitled to obtain discovery by means of a physical or mental examination. Cal. Code Civil Procedure § 2032.020. There is no dispute that Plaintiff has already submitted to an Independent Medical Examination with an orthopedist, Jacob Tauber. M.D., on 7/18/18. Declaration of Haiyan Allen Li, ¶ 2. Dr. Tauber opined that there was no connection between Plaintiff's complaints and the subject accident. Motion, Ex. A. Leave of court is required for �...

Excerpt: ...v. 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. Plaintiff's objections to the Declaration of Athleo Cambre, Jr., M.D. (Defendants' expert) #9. Overrule #10. Overrule. #12. Ove...

Excerpt: ...o prevent prejudicing the party's interest in the litigation.” Cal Code Civil Procedure §36(a). Plaintiff's counsel has supported the motion with a declaration attesting that all essential parties have been served. Code Civ. Proc., § 36(c), Declaration of Elvis Tran, ¶ 2. Here, Plaintiff submits her own declaration under penalty of perjury attesting to her age. This is admissible based on the same guidelines cited by Defendant. Claims fo...

Excerpt: ...spute that Plaintiff contends that a divot in the sidewalk constituted a dangerous condition and caused her to trip and fall. UF 2. Prior to her fall, Plaintiff arrived home via an Uber driver, who stopped in an alley contiguous with her apartment. UF 5. Plaintiff admits that her high heel got caught in a divot in the sidewalk. UF 7. A public entity is liable by statute for injury caused by a dangerous condition if the entity created the conditio...

Excerpt: ...e subject property. UF 1. Plaintiff claims he was assaulted by Defendants' employees while inside of Defendants' premises. UF 2. ADD owned the subject property on the date of the accident but did not occupy or control the property at that time. UF 4. Defendant did not have any employees, representatives, or agents present on the property at the time of the accident. UF 5. The property was occupied and controlled by Nalby Mamkagh on 10/6/15 to who...

Excerpt: ... the statute is to require bifurcation of the punitive damages claim. Holdgrafer v. Unocal Corp. (2008) 160 Cal. App. 4th 907, 919. 2. Defendants' request to bifurcate the issue of liability from damages is DENIED. Defendants have not established that further separation of these two issues into separate phases would promote the ends of justice or the economy and efficiency of handling the litigation. Cal Code Civil Procedure § 598. Bifurcation i...

Excerpt: ...ectively “Plaintiffs”), pursuant to C.C.P. §§435 and 436. Civil Code §3294 provides, in pertinent part, as follows: a. In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant....

Excerpt: ... party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: *** (15) That the deposition be sealed and thereafter opened only on order of the court. CRC 2.551(a) provides, as follows: “A record must not be filed under seal without a court order. The court must not...

Excerpt: ...liability) causes of action in the complaint of Plaintiff Rosa Elvira Quintero (“Plaintiff”). Defendants argue Plaintiff failed to allege sufficient facts to constitute the causes of action. (See C.C.P. §430.10(e).) As a preliminary matter, Plaintiff argues Defendants' demurrer is untimely under C.C.P. §430.40(a). (Opposition, pg. 3.) However, the Court has discretion to entertain the demurrer. (See McAllister v. County of Monterey (2007) 1...

Excerpt: ...ological examination. “Good cause” is established where there are specific facts justifying discovery and the inquiry is relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840. Plaintiff's discovery responses disclose that she attributes emotional injuries to the alleged conduct, which places her mental state in controversy. Mot...

Excerpt: ... consolidate this case and BC706264 as they arise out of the same motor vehicle accident that occurred on February 14, 2017 on the 710 North Freeway. Plaintiff was driving the car that was allegedly struck, and the plaintiff in BC706264 was the passenger in Plaintiff's car. Additionally, Defendants in this case are the same defendants in BC706264. The cases were related on October 22, 2018. Analysis Legal Standard Code of Civil Procedure section ...

Excerpt: ...“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.”).) The Court thus declines to rule on this evidentiary objection. (See Hodjat v. State Farm Mutual Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7-9 (finding that the trial court did not abuse its discretion in refusing to rule on the plaintiff's evidentiary objections made in plaintiff's separate statement, ...

Excerpt: ...scope of the subpoenas. Declaration of Christopher Gavriliuc, ¶¶ 3-6. 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 are directly relevant to Plaintiff's claim and essential to the fair resolution of the lawsuit. Harris v. Superior Court, (1992) 3 Cal.App.4th 661, 665. There is an implicit waiver of ...

Excerpt: ...her members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.'” Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–607. The required standard of care owed by a medical professional is a matter peculiarly within the knowledge of experts. Hanson v. Gro...

Excerpt: ...e made at any time either prior to the trial or at the trial itself. [Citation.]'” Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650. Defendant did not comply with Cal Code Civil Procedure § 438 requiring a declaration demonstrating the parties' efforts to meet and confer. Code Civ. Proc., § 439(a)(3). Plaintiff agrees to conditionally waive the procedural defects. Accordingly, the substantive issues are addressed. Opposition, 2:22. 2. Motion...