Excerpt: ... is procedurally defective are without merit. The court's file reveals that Defendant filed a Motion for Summary Judgment/Adjudication on 1/11/19, set for hearing on 5/7/19. At that point, the trial date was 4/29/19. The 5/7/19 date was the only date available for a hearing on the Motion for Summary Judgment according to Defendant. Accordingly, on 2/14/19, the court granted the Defendant's motion to continue trial to 7/10/19, to accommodate Defen...

Excerpt: ...Procedure § 437c(p)(2). (The claim for declaratory relief based on the duty to defend is alleged in the 6 th cause of action of the ICE Cross-Complaint, not the 5 th, as ICE argues). 1. The court can adjudicate the issue of whether Hart owes a duty to defend ICE against Plaintiff's claims by way of summary adjudication.Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 519. A motion for summary adjudication may properly be ...

Excerpt: .... Ciphergen Biosystems, Inc. (2010) 186 Cal. App. 4th 696, 705. To be enforceable, the binding arbitration agreement in the Plaintiff's enrollment form must comply with the requirements of Health & Safety Code § 1363.1. In sum, the binding arbitration provision must be stated in clear and understandable language and clearly state that the health plan uses binding arbitration to settle disputes, including specifically, medical malpractice. The di...

Excerpt: ...e first week of October. Reply, 2:21 – 3:2. The 9/27/19 trial date is continued for 45 days to permit the examination to be taken. Discovery cutoff is based on the continued trial date but only to permit this examination to be taken. 1. 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 ...

Excerpt: ...n 2009. UF 1-2. Before Harris moved in, Koroma made a repair to the front gate based upon a City inspection. UF 5. Defendant visited the property about once per month. UF 7. After moving, Harris put up a separate fence and gate in the back. UF 10. At some point in time after moving in, Harris obtained two dogs, which belonged to her. UF 12. Defendant saw the two Harris dogs when he went to pick up the rent. UF 15. Plaintiff claims she was injured...

Excerpt: ...ation of Robert J. Gardner ¶¶ 6-9. 2. Among the factors to be considered in granting relief are the 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 opposing party, among other things. Cal Code Civil Procedure § 2024.050. 3. Defendant has shown diligence in completing discovery before discovery cutoff upon Plaintiff's disclosu...

Excerpt: ...on <008b009100900003009600 008700940003008e0083>te 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. 1. Additionally, the court must disregard errors in pleadings or proceedings, which do not affect the substantial rights of the parties. Cal Code Civ Proc § 475. Defendant has not demonstrated any prejudice resulting from the defect. Defendant has filed a reply b...

Excerpt: ...he complaint based on a statute of limitations defect, the defect must clearly and affirmatively appear on the face of the Complaint. It is not enough that the complaint might be barred. Saliter v. Pierce Bros. Mortuaries, (1978) 81 Cal.App.3d 292 (1978), fn 2; Marshall v. Gibson Dunn & Crutcher (1995) 37 Cal.App.4th 1397. 3. The Complaint alleges that the incident occurred on 7/20/16. The 2-year statute of limitations expired on 7/20/18. The Com...

Excerpt: ...errule. b. Declaration of Melissa Perez. Overrule. Defendant's objections to evidence. 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. Declaration of P...

Excerpt: ...ror to refuse permission to amend. Morgan v. Superior Court of Los <0016001300110003000300 03> A claim for punitive damages against a corporate employer must be supported by facts showing the following circumstances: (1) The employer's managing agent/officer or director had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard for the rights or safety of others or (2) Authorized or ratified the wron...

Excerpt: ... 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 defined as “despicabl...

Excerpt: ...n 2009. UF 1-2. Before Harris moved in, Koroma made a repair to the front gate based upon a City inspection. UF 5. Defendant visited the property about once per month. UF 7. After moving, Harris put up a separate fence and gate in the back. UF 10. At some point in time after moving in, Harris obtained two dogs, which belonged to her. UF 12. Defendant saw the two Harris dogs when he went to pick up the rent. UF 15. Plaintiff claims she was injured...

Excerpt: ...e party's interest in the litigation.” Cal Code Civil Procedure §36(a)(2). The motion is supported by Plaintiff's medical records documenting his numerous medical conditions. Evidentiary objections of Defendant, The Pilot Group (“Pilot”), to the Declaration of Analica Avila are OVERRULED. A declaration supporting a motion for § 36(a) preference “may be signed by the attorney for the party seeking preference based upon information an...

Excerpt: ... has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.” Cal Code Civil Procedure § 2034.610. Plaintiff states he relied on Defendants' disclosure that his expert in billing review and analysis would base his opinion on an assumption that all of the services provided were made necessary by the subject accident, and that all of the services were provided in a rea...

Excerpt: ... is not correcting Danalynn's name. Plaintiff is replacing one Defendant for a different Defendant. An amended complaint that adds a new Defendant does not relate back to the filing of the original complaint. The statute of limitations is applied as of the date the amended complaint is filed. Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176. The date of incident was 6/18/16. The 2-year statute of limitations expired on 6/18/18. The Amendment ...

Excerpt: ...jections to the declaration of Karen Bell. Objections 15 and 16. Sustained. All other objections are overruled. 2. There is no dispute that the Trust Defendant owns property located at 17860 Hartland Street, Reseda. UF 1. Defendant, Karen Bell, individually, did not have property interest separate from the Trust. UF 2. Neither Defendant Bell nor the Trust had any property interest in the sidewalk or parkway adjacent to its property. UF 3. Rather ...

Excerpt: ...r different facts circumstances or law.Stephen v. Enterprise Rent-A-Car, 235 Cal. App. 3d 806, 816 (1991). Subpart (b) does not include a time requirement for making the renewal motion. “(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall...

Excerpt: ...mended when that person's identity is discovered. The general rule provides that a Doe amendment does not relate back to the filing of the original complaint for statute of limitations purposes. Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176. Cal Code Civil Procedure Section 474 provides for an exception to the general rule by allowing the amendment to relate back if the Plaintiff was actually ignorant of Defendant's identity at the time th...

Excerpt: ...es 1-50. Liability against Defendants are based on the allegations that The Nevell Group, Inc. (“Nevell”) the dry-wall subcontractor, stacked 17 sheets of 80-pound drywall in the elevator lobby of the 5 th floor, creating a hazardous and unsafe condition. Motion, Ex. A, page 4. Plaintiff identified Swinerton, Inc., (“Swinerton”) as the general contractor. The fact that Plaintiff named Nevel and Swinerton specifically does not preclude any...

Excerpt: ...burden and expense. Cal Code Civil Procedure § 2031.060. Code Civ. Proc., § 2031.060. Relevant time line 12/14/17 The parties conducted an inspection of the premises, pursuant to Plaintiff's demand. Plaintiff's expert architect, Lazaros Papademetropoulos, conducted the inspection for Plaintiff. Motion, Ex. A. 3/15/19 Plaintiff served his expert witness designation, identifying an expert in oncologic orthopedic surgery, Daniel Allison, M.D,. as ...

Excerpt: ...vil Procedure § 415.20(b). Ten days after date of mailing on 4/15/19 was 4/25/19. She thus had 30 days thereafter to respond, which is 5/25/19. Cal Code Civil Procedure § 412.20(a)(3). She is granted an automatic 30-day extension of time to respond to the complaint if defense counsel files his meet and confer declaration under Cal Code Civil Procedure § 430.41 on the date the demurrer or responsive pleading is due. Defense counsel filed his me...

Excerpt: ...tations set forth at Cal Code Civil Procedure § 366.2 which states that if a person against whom an action is brought dies before the expiration of the statute of limitations, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply. Cal Code Civil Procedure § 366.2(a). The only affirmative defense based on the statute of limit...

Excerpt: ...s. The policy of the law is to have cases litigated on their merits. The law looks with disfavor upon a party who attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. All doubts in applying Section 473 are resolved in favor of the party seeking relief. Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696. Where a default has been entered because defendant relied upon a co-defendant or other intereste...

Excerpt: ... again by mail for a hearing set for 7/29/19. Therefore, the motion should have been served by 7/1/19 to account for 16 court days of notice increased by five calendar days for service by mail. The motion was timely served five days early on 6/26/19 . Plaintiff seeks to add a claim for medical battery. Defendant argues that Plaintiff knew about this claim when she responded to Special Interrogatories indicating that Defendant did not obtain infor...

Excerpt: ...otice. Cal. Code Civ. Proc. § 2025.450. Cal. Code Civil Procedure § 2025.450. Defendant contends that he has health issues that prevent him from participating in a deposition. Defense counsel claims she told Plaintiff's counsel of Defendant's “ongoing medical condition” on March 28, 2019, after Plaintiff's deposition was taken. Opposition, Pham Declaration, ¶ 6. However, none of the objections to the three notices of deposition issued ...

Excerpt: ... 877.6, which governs the determination of a settlement made in good faith applies to the settlement between Cross- Defendant Gurrola and Plaintiff, although Plaintiff did not name Gurrola as a Defendant in the complaint. Section 877.6 applies to an “action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt … .” Cal Code Civil Procedure § 877.6 In this action, Plaintiff sued the Becerra ...

Excerpt: ...igence 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 peculiarly within the knowledge of experts.Ha...

Excerpt: ...faith, i.e. that the settlement is “out of the ballpark” such as to be inconsistent with the equitable objectives of the statute. Cal Code Civil Procedure § 877.6(d); Tech-Bilt Inc. v. Woodward Clyde Associates (1985) 38 Cal.3d 488, 501. Once the settling party (Bautista) establishes that a settlement was made, the burden shifts to the contesting party (Weiss) to establish that the settlement was not made in good faith. City of Grand Terrace...

Excerpt: ...ciency of the allegations. It does not test their truth, the Plaintiff's ability to prove them, or the possible difficulty in making such proof. Saunders at 840. Grounds for the motion must appear on the face of the pleading or from matters subject to judicial notice. Cal Code Civil Procedure § 438(d). The court grants Defendant's request to take judicial notice of the Plaintiff's government claim, a letter requesting more information and a noti...

Excerpt: ...e § 436. Grounds for the motion to strike are limited to matters that appear on the face of the pleading or on any matter which the court shall or may take judicial notice. Cal. Code Civil Procedure § 437. In considering a motion to strike the punitive damage allegations, the court considers the complaint as a whole. Plaintiff can allege ultimate facts showing entitlement to relief. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. ...

Excerpt: ...t the condition was open and obvious when used with due care. Demurrer 2:1-5. 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 the...

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: ...for records held at three facilities: Kaiser Permanente, Central ROI; The Central Release of Information Unit; and Kaiser Permanente Radiology Release of Information Unit. Motion, Exhibits, 3-5. Plaintiff objected to the subpoenas on 5/23/19 and sought to meet and confer in good faith about the scope of the subpoenas by letter dated 5/23/19. Motion, Exhibits 6-7. Defendants did not respond. Declaration of Nick Galadzhyan, ¶¶ 8-9. While Defendan...

Excerpt: ...r may take judicial notice. Cal Code Civil Procedure § 437. Thus, the court cannot consider what Defendant has viewed on a purported video tape. Motion, 5:18-24; Cal. Code Civ. Proc. § 437. The predicate acts that would support a claim for punitive damages must either be intended to cause injury or must constitute “despicable conduct” carried on by Defendant with a willful and conscious disregard of the rights of others. Civil Code § 3294(...

Excerpt: ...rocedure § 430.10(e). A demurrer reaches defects that appear on the face of the complaint and based on matters that are subject to judicial notice. All facts are accepted as true. Saunders v. Superior Court (1994) 27 Cal. App. 4th 832, 838. Defendants demur to the 2 nd cause of action for sexual battery. The essential elements of a cause of action for battery are: “(1) defendant touched plaintiff, or caused plaintiff to be touched, with the in...

Excerpt: ...negligence.Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 365. The nature of the parties' relationship is ordinarily a question of fact unless only one inference can be drawn. Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081. Agency relationships, whether actual or ostensible, are codified in the Civil Code. Civil Code § 2299, § 2300. A test to determine the nature of the relationship, whether independent contractor...

Excerpt: ...e exams other than that described under Section 2032.220 require leave of court and are governed by Cal. Code Civ. Proc. §2032.310. 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 of the action or reasonably calculated t...

Excerpt: ... at the time of the incident. UF 1-2. Plaintiff contends that Defendant, Freeport-McMoran Oil & Gas, LLC, (“Freeport”) substituted in as Doe 54, was negligent for supervising, maintaining, repairing, controlling and for the safety of the work environment of the project. UF 4. Plaintiff alleges Defendant improperly placed cones and other inadequate traffic control measures at the work site. UF 5. Freeport and SE had a contract wherein SE as co...

Excerpt: ... 436. In considering a motion to strike the punitive damage allegations, the court should consider the complaint as a whole. Plaintiff can allege ultimate facts showing entitlement to such relief. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255. 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 pred...

Excerpt: ...aintiff filed a Request for Dismissal with prejudice of the 1 st cause of action for strict liability as alleged against Defendant, Meridian Senior Living (“Meridian”) only. Plaintiff's Additional Facts 24. Accordingly, the request to adjudicate the first cause of action is rendered moot. The undisputed facts establish that Plaintiffs' decedent, Rose Marie Cerda Jones, was a resident of Defendant Meridian's facility. UF 1. Plaintiffs' second ...

Excerpt: ...d in this subdivision, "uncertain" includes ambiguous and unintelligible.” Cal. Code Civ. Proc. § 430.10. While Plaintiff's Opposition appears incomplete, the court has considered the arguments made through page 7, where it ends. The court does not consider the traffic collision report submitted as Exhibit A, as a demurrer reaches defects that appear on the face of the complaint and based on matters that are subject to judicial notice....

Excerpt: ... Petitioner alleges L.C. has special needs due to “delayed development.” [P. 2, para. 5 of the petition.] “While in her special <00450044004f004f000300 00030045004800480051[ previously place on a shelf made for books.” [P. 2, para. 6 of the petition.] This resulted in a complete, closed fracture of L.C.'s left arm, which has since healed. [P. 2, para. 6-7 of the petition.] The net settlement proceeds are $19,521.28 [p. 6, para. 16 of the ...

Excerpt: ...a reply brief, which the court has considered. The statute of limitations for injuries caused by the neglect of another is two years from the date of accrual. Cal. Code Civil Procedure § 335.1. All of Plaintiff's claims allege injury caused by the wrongful act of another. The First Amended Complaint alleges the incident occurred on 7/1/15. Thus, the complaint must have been filed by 7/1/17. It was filed on 3/18/19 and does not comply with § 335...

Excerpt: ... submitted a petition to approve Priscilla's settlement. Counsel declares that court approval is not necessary because of the “small size” of the settlement. Petition, Second Addendum to Petition, 4:17-19. Counsel does not cite any authority. Cal Rules of Court 7.950 requires a petition for court approval of a minor's settlement without limitation as to the settlement amount. Cal Rules of Court 7.950. Petitioner is ordered to prepare and subm...

Excerpt: ... discovery, the likelihood that permitting discovery will prevent the case from going to trial, and resulting prejudice to the opposing party, among other things. Cal Code Civ Procedure § 2024.050. Defendant, G&H Non-Emergency Medical Transportation, LLC appeared in this case on 1/25/19. Plaintiff's counsel associated in Simon Law Group to assist with trial on 5/20/19. Declaration of Brooke L. Bove, ¶ 12. Plaintiff has been diligently attemptin...

Excerpt: ...s required to be filed within the time allowed to respond to a pleading, in this case, at the same time as the answer. The Cross-Complaint was served on 2/5/19. The motion to strike was filed 4/2/19. Cal. Code Civil Procedure § 435(b)(1). However, the court has the discretion to strike pleadings upon motion at any time. Cal. Code Civil Procedure § 436. The court exercises its discretion to consider this motion pursuant to Section 436. The Cross...

Excerpt: ...ction, and adjacent to the end cap of tortillas. UF 1. Plaintiff observed a couple of liquid streaks while she was on the floor UF 11. Objections. 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...

Excerpt: ...os, C.M. Sheedy, on 3/11/19. Reply, Exhibit A. It was also sent to Mr. Sheedy's office by certified mail, return receipt requested, and was delivered on 3/13/19. Id. Defendant Mr. Olmos had 20 days from the date of personal service, or 25 days from the date of mailing to file this motion. Cal. Code Civil Procedure § 877.6(a)(2).” At the latest, the motion to contest settlement should have been filed by 4/5/19 (25 days after 3/11/19. This motio...

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, Plai...

Excerpt: ...eems 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. Cal. Code Civil Procedure § 437c(q). The court declines to rule on Plaintiff's objections 1-5 as they are not objections to particular evidence. Declaration of Joe Menchaca ¶ 2. SUSTAIN. Hearsay. ¶ 4. Overrule. The court declines to rule on Defendant's evidentiary objections which are objec...