Excerpt: ...fficiency of handling the litigation” would be promoted by bifurcation. A party seeking bifurcation must <0190019a015d012801c700 019a015d017d01760358L Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 888 n. 8. Here, Defendants argue, generically, that trying liability and damages separately could promote judicial economy because a trial on damages could be avoided in the jury finds in favor of defendants on liability. But that is true in e...

Excerpt: ...y. Plaintiff has moved for summary judgment, or in the alternative, summary adjudication. <016f00030176011e015001 on August 9, 2019. The motion for summary adjudication on that claim is thus moot. The Court considers the motion with respect to the medical battery claim. A. EVIDENCE Plaintiff's claims arise from a total abdominal hysterectomy (TAH) that Defendant performed on <0190011e0176019a011e01 01c7017d0175011e0110Ltomy to remove fibroid tumo...

Excerpt: ...t required when no response has been provided to the discovery. Cal Rules of Court, Rule 3.1345. Additionally, as Plaintiff observes, 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. Here, even if a separate statement had been requir...

Excerpt: ...dure § 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 disrega...

Excerpt: ... Healthcare Center in Van Nuys toward her car, which was parked in the Center's parking lot. UF 13. Plaintiff tripped and fell on Cohasset St on at around 1:00 to 1:30 in the afternoon. UF 15. There was nothing concealing the area where her foot was caught under the cement such as debris or leaves. UF 18. Plaintiff tripped and fell on an uplifted portion of the sidewalk. UF 19. Plaintiff alleges a single cause of action against the City of Los An...

Excerpt: ...tion of Plaintiff's complaint is DENIED as to whether Citigroup owed Plaintiff a duty is a triable issue of fact. Fact 3. Adjudication of Issues 1-4 are DENIED. The undisputed facts establish that the action arises from Plaintiff's claim that on 8/22/15, she tripped on the sidewalk leading up to a Citibank located at 17801 Colima Road in the City of Industry. UF 1. Plaintiff alleges she fell due to a dangerous condition and that Defendants failed...

Excerpt: ...n for summary adjudication as to the 4 th cause of action for Sexual Assault GRANTED. The undisputed 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 wo...

Excerpt: ...dispute 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 condit...

Excerpt: ...erest 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 to allow the insurer to protect its interests in the litigation. Here without the insured, State Farm is not able litigat...

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 ap...

Excerpt: ... 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 California Constitution. Vinson v. Superior Court (1987) 43 Cal.3d 833, 839. Where privacy rights are implicated, Defendant has to show that the ...

Excerpt: ...v. Proc. § 877.6(d). The opposing party must demonstrate bad faith -- that the settlement is “out of the ballpark in relation to [the] factors as to be inconsistent with the equitable objectives of the statute.” Tech-Bilt Inc. v. Woodward Clyde Associates (1985) 38 Cal.3d 488, 501;City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261-1262. The court considers a number of factors to determine whether settlement was made i...

Excerpt: ...815. Plaintiff must allege “detailed and specific” facts to support the elements of statute that is the basis for the claim. Mittenhuber v. City of Redondo Beach, (1983) 142 Cal. App. 3d 1; Green v. Grimes-Stassforth Stationery Co., (1940) 39 Cal. App. 2d 52, 56. The complaint has to identify the statute. Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802. The fact that Doe Defendants may be liable for premises liability is...

Excerpt: ... Code 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 ...

Excerpt: ...he 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 ...

Excerpt: ...ve 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 is appropriate in cases where the “liability issue ...

Excerpt: ... prevent out-of-state residents from filing frivolous lawsuits. Yao v. Superior Court(2002) 104 Cal. App. 4th 327, 331. 2. 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 evidence.”A. Farber and Partners, Inc. v. Garber (C.D. Cal. 2006) 417 F.Sup...

Excerpt: ...s a resident of Texas as Defendants assert. Motion 4:13. However, the second prong of the statute requires that Defendants establish that it is “reasonably possible” that they will obtain a judgment. The motion must be supported by “competent evidence.”A. Farber and Partners, Inc. v. Garber (C.D. Cal. 2006) 417 F.Supp.2d 1143, 1147. The moving party must present the “best evidence available” to divine the possible outcome. Shannon v. ...

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: ...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: ...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: ...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: ...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: ...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: ...elies on cases that are inapposite. FPI Development, Inc. v. Nakashima (1993) 231 Cal. App. 3d 367 involved a summary judgment motion, and whether or not affirmative defenses raised in the answer sufficiently placed facts at issue for purposes of the motion. The facts which are material are limited by the allegations of the pleading. FPI at 381. Since the affirmative defenses raised in FPI were not fact specific, the court found no facts were pla...

Excerpt: ...'s grocery store, across from the dairy section, 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. Plaintiff's objections. The Court declines to rule on Plaintiff's objections which are objections to the Defendant's Separate Statement, not particular evidence. Premises liability is a form of negligence, which involves the duty of a premises owner to exercise...

Excerpt: ...hat time, no other Defendant had appeared in the case. The only adverse party was Plaintiff. On 3/15/19, Defendant Group Rossignol USA, Inc. filed its answer, after this motion was filed. On 3/22/19, that Defendant filed a notice of non-opposition to the motion. William Duehring has not filed an answer. Plaintiff filed the action in the wrong county. Personal injury actions arising from negligence are required to be filed where the injury occurs ...

Excerpt: ...cope 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 P...

Excerpt: ...ctors to be considered are Defendants' 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 any other party, among other things. Cal. Code Civil Procedure § 2024.050. The Court's file and the evidence reveal the following. 8/14/18 Trial is set for 1/30/19 11/9/18 Defendant serves notice of IME set for 12/14/18. Motion, Ex. A 12/7/18 Pla...

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: ...nt. The parties do not dispute that Plaintiff fell while walking on a sidewalk UF 1. After falling she got up and continued her walk to the dentist office. UF 6. Plaintiff and her husband did take a photograph of the sidewalk where she fell. UF 9. The lift on the sidewalk is over one inch at its highest point. UF 10, 18. Plaintiff testified that her toe caught on the lift. UF 11. This is established by Plaintiff's deposition testimony. Applicable...

Excerpt: .... Rosenberg's probate proceeding until 3/20/19, which is after Plaintiff filed this motion. Declaration of Kevin Place, ¶ 11. According to the order provided by Mr. Place, Ms. Rosenberg will be examined, not as to her testamentary capacity but her capacity to act as Trustee and to retain counsel. Opposition, Ex. 1. The order does not indicate that the Court will determine whether a Guardian ad Litem will be appointed. There is no evidence that s...

Excerpt: ...91000300 03730378000300850091>urt days of notice increased by five calendar days to account for service by mail (April 1, 2019 is a court holiday, and therefore not a “court day.”) Cal Code Civil Procedure § 1005(b). Defendants served the motion on 3/6/19. However, defective notice can be waived. The purpose of the notice period is to allow the other party to file an opposition. If an opposition is filed and no prejudice is shown, then the p...

Excerpt: ... evidence can be considered abuse of the discovery process. Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal. 4th 1, 12. Plaintiff's reliance on Williams v. Russ (2008) 167 Cal. App. 4th 1215 is misplaced. In that case, the Court found that Plaintiff intentionally destroyed evidence. Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227 There is no evidence of intentional spoliation. The manager of the restaurant, Xiangyi Lin, testified t...

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: ...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: ...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: .... 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: ...20. If the motion is timely made, 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. Amendments are permitted in furtherance of justice at any stage of the proceeding to promote the fundamental policy that cases should be tried on their merits. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486...

Excerpt: ...resented to Dr. Alessi's office on 8/30/16, complaining of glabellar lines, crow's feet, and forehead lines and wrinkles. UF 1. Defendant treated Plaintiff with Botox at that visit and two subsequent visits on 3/14/17 and 4/4/17. UF 3-5. On 5/24/17, Plaintiff underwent IPL photo-rejuvenation using a M22 Lumenis laser to address dark spots on her face. UF 7. On 5/25/17, Plaintiff texted and reported she had developed some blistering overnight in s...

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: ...directed to Family Medical Group and Blue Cross/Blue Shield. Reply, 2:1-3. The subpoena to Plaintiff's employer, StaffMark, remains at issue. 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. Plaintiff's counsel establishes that Plaintiff's counsel did attempt to meet and confer by leaving a voice mail me...

Excerpt: ...iff and bifurcation will avoid the waste of time and money caused by the unnecessary trial of damage questions.” Trickey v. Superior Court of Sacramento County(1967) 252 Cal. App. 2d 650, 653. The facts of the case must justify it. Separate phases are warranted to avoid wasting Court time in cases where Plaintiff loses on the liability issue. Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d 875, 888, fn. 8. Defendant has not established with an...

Excerpt: ...n 10/12/18. While the settlement appears reasonable, the Court's records do not reflect that a Guardian ad Litem has been appointed for the Claimant. The application submitted on 3/8/19 has been rejected. The Court has reviewed the Petition to Approve Compromise of Pending Action of a Minor, (Elijah Rigney, Age 16) filed on 3/4/19. While the settlement appears reasonable, the Court's records do not reflect that a Guardian ad Litem has been appoin...

Excerpt: ...postponed until the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent, or other means, for cross- examination.” Code Civ. Proc., § 2025.420. The Court does not consider the Order of the Superior Court for the County of San Francisco issued in Dotegowski, et al v. Abbott Laboratories. Opposition, Ex. A. First, the ruling is not binding upon the Court, and it is inapplicable here as part of the Dote...

Excerpt: ...ury to plaintiffs Rafael Soza and Claudia Martinez. Plaintiffs allege causes of action for motor vehicle negligence and general negligence. Defendants EAN Holdings, LLC, and Enterprise Rent-A-Car Company of Los Angeles, LLC, demur to the Complaint. Legal Standard A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the suffi...

Excerpt: ...ED. DEMURRER Second Cause of Action for Battery “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching.” (Yun Hee So v. Sook ...

Excerpt: ...y to the Court's order that Plaintiff respond without objections. Motion Ex. A. Plaintiff subsequently served a Further Response on 12/11/18, without any objections. Motion, Ex. C. The verification was sent on 12/11/18. Motion, Ex. D. Plaintiff has not demonstrated that she has fully complied with the request by providing the following documents that Plaintiff agreed to produce in her Further Response. Motion, Ex. C.  Request 11 for earnings t...

Excerpt: ...ff. Cal. Code Civil Procedure §§ 2025.450, 2025.230; 2025.250(d). Pursuant to Cal Code Civil Procedure § 2025.450, a party can move to compel a deponent's attendance and testimony and production of documents, where the deponent fails to proceed, without having served a valid objection, or fails to produce documents for inspection. Cal. Code Civil Procedure §2025.450 (a). Defendant has not established the merit of its objections to all the dep...

Excerpt: ...to ensure deliver to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable are filed.” Cal. Code Civil Procedure § 1005(c). The Petition is GRANTED. Petitioners have proffered evidence of a signed writing of an agreement to settle their claims. Cal. Code Civil Procedure § 664.6 permits entry of judgment pursuant to the terms of the settlement if there is ...

Excerpt: ...a party from unwarranted annoyance, embarrassment, <0086000300150013001500 00030003> The court must make express findings to support sealing the record under Cal. Rules of Court 2.550. “ The court may order that a record be filed under seal only if it expressly finds that: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial pr...

Excerpt: ...in the caption of the proposed pleading as well as the prayer was “an accident.” Reply, 2:2-7. Plaintiff submits a proposed Second Amended Complaint with the Reply that deletes those references. Accordingly, the only issue is whether amendment to state a claim for battery is proper, which Defendants do not dispute. The motion is GRANTED. A party can amend any pleading in furtherance of justice and on any proper terms. Cal. Code Civil Procedur...

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: ...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: ...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...

Excerpt: ... a non-retained expert. To grant the motion, the court must find that Plaintiff 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 Civ. Proc. § 2034.620(c). Plaintiff has not met the requirements of Section 2034.620(c). Plaintiff did determine to call Dr. Brazina initially since Plainti...

Excerpt: ...rder and limited the 10 subpoenas when it re- issued the subpoenas on 6/13/18, after the Plaintiff's Motion to Quash was heard and granted on 6/8/18. Opposition, Ex. C. Defendant does not have records to include Plaintiff's new injuries to which she testified involving her mid to lower back. Plaintiff admits that at the time of the chambers conference, Defendant sought records pertaining to Plaintiff's lower back. Opposition Declaration of Aihui ...

Excerpt: ...ence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305. The required standard of care owed by a medical professional and whether the conduct was a substantial factor in causing injury are matters peculiarly within the ...

Excerpt: ...7.952(a)). This civil action arises from allegations that plaintiff was injured in a Los Angeles County correctional facility. Plaintiff, Juan Garza, is a 28-year-old incapacitated man. Petitioner, Juan Salazar, now brings a Petition to Approve Compromise as parent and co-conservator of plaintiff. The parties tentatively have settled the action for a gross amount of $5.9 million, with a net amount of $3,551,600 payable to plaintiff after deductio...

Excerpt: ...ses when the sign fell on them. UF 1-2. Plaintiffs' Complaint asserts claims for negligence and premises liability. UF 3. Plaintiffs were facing a vending machine game located in the Mall's common area when the sign suddenly and without warning fell on top of Plaintiffs. UF 5-6. The sign is known as a “poster holder,” which consists of two metal poles on the exterior with a banner in between the poles. UF 13. The sign is supported by a square...

Excerpt: ...y cutoff will be based on the 4/30/18 trial date for the limited purpose of taking the deposition of Alejandro Barajas. Expert related cutoff dates are also based on the new trial date. Plaintiff's Motion to Compel the Deposition of Alejandro Barajas; Request for Sanctions The last attempt by Plaintiff to meet and confer with regard to setting the Defendant's deposition was made by email on 1/24/19, asking Defendant to stipulate to a deposition o...

Excerpt: ...ed moot by the fact that the on 12/14/18, the Court GRANTED Defendant's ex parte application to continue trial to 3/28/19. A Defendants' burden in moving for summary judgment is to show that one or more elements of Plaintiff's claim cannot be established, or establish a complete defense. Once that threshold burden is met, the burden shifts to Plaintiff to show a triable issue of one or more material facts. Cal Code Civil Procedure § 437c(p)(2). ...

Excerpt: ... burden of establishing that there is no merit to this affirmative defenses based on the material facts proffered. Cal. Code Civil Procedure § 437c(f)(1). The parties do not dispute the general facts of how the accident occurred. Plaintiff was traveling eastbound on Main Street, intending to proceed straight through the intersection at Electric Avenue for which he was facing a green light. UF 1. Defendant was traveling westbound on Main Street, ...

Excerpt: ...stodian of Records for Jerry L. Pettis Memorial Veterans Medical Center. Motion, Ex. D. Plaintiff also cites Cal. Code Civil Procedure § 2025.480, which applies to motions to compel a deponent's answers or production of documents specified in a notice or deposition subpoena. Here, Defendant seeks to compel Plaintiff to sign an authorization. Plaintiff is not the deponent identified in the subpoena. Plaintiff's case authority on this issue doesn'...

Excerpt: ... under Government Code section 835 for maintaining public property in a dangerous condition depends . . . upon the existence of some defect in the property itself and the existence of a causal connection between that defect and the plaintiff's injury.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 11138 (emphasis in original).) Here, the alleged dangerous condition is premised on a failure to force dog owners and dog walkers and handl...

Excerpt: ...n owes a duty to defend City against Plaintiff Gregg'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 based on a determination of whether a duty is owed. Cal. Code Civil Procedure § 437c(f)(1). Manson's objections to City's Evidence. Overruled. With respect to Manson's objection to the City's Request for Judicial Notice of the ...

Excerpt: ...ccomplished. Ziller Electronics Lab Gmbh v. Superior Court (1988) 206 Cal. App. 3d 1222, 1232-1233; Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439–1440. Defendant, Tim Skold, moves to quash the Proof of Service filed on 1/11/19, signed by process server, Dennis Weaver, asserting that Mr. Skold, was personally served with the First Amended Summons and Complaint on 12/22/18 at 12:06 a.m. at the Livewire Lounge, 3394 N. Milwauk...

Excerpt: ...also designated George Rappard, M.D., an Interventional Neuroradiologist, as a retained expert, to testify about Plaintiff's diagnosis, causation, medical injuries and the need for any future treatment, if any. Motion, Ex. 1, 8:6-15. Plaintiff served an expert designation again on 1/7/19, adding Fardad Mobin, M.D. as a non-retained expert. Motion, Ex. 2. To grant the motion, the court must find that Plaintiff would not in the exercise of reasonab...

Excerpt: ...tion.” Cal. Code Civil Procedure §36(a). Plaintiff submits her identification card to substantiate her age. Motion, Ex. 1. 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. Plaintiff also submits medical records showing multiple fractures she sustained as a result of the slip and fall accident. Motion, Ex. 2. Pla...

Excerpt: ...e Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711. Defendants owe a duty to keep its premises in a reasonably safe condition, and has no right to control and manage property owned by another. Edwards v. Cal. Sports (1988) 206 Cal. App. 3d 1284, 1288; Hamilton at 1711. Additionally, landowners do not owe a duty to maintain a public street or sidewalk abutting their property or to warn of dangerous conditions. Seaber v. Hotel Del Coronado (1991) 1 Cal.A...

Excerpt: ...mail. Plaintiff did not file an opposition to the Defendant's motion, therefore, all facts are undisputed. Plaintiff leased a residential unit from Defendant on 10/1/09. UF 2. The only fall alleged in the complaint occurred in January of 2015. UF 3. On 1/26/15, at approximately 2:00 a.m. Plaintiff alleges she slipped and fell on water leaking from the ceiling in the bathroom of her apartment. UF 4. A necessary element of a claim for negligence is...

Excerpt: ... Graves Amendment. Motion, 6:8-9. Plaintiffs dismissed that party on 2/7/19, when Notice of Entry of Dismissal was filed. Enterprise's liability for Plaintiffs' injuries is no longer at issue. Enterprise's dismissal leaves Defendant, Louise Magill, as the only moving party. Magill argues that a continuance is necessary to conduct further discovery into the Plaintiffs' current medical condition. Motion 7:9-12. A continuance of trial is permitted w...

Excerpt: ...d because of an attorney's mistake. Cal Code Civil Procedure § 473(b). There is no dismissal or default judgment at issue. On 12/14/18, the Court GRANTED Defendants' motion to impose issue sanctions against Plaintiff David Asch. Plaintiff seeks relief from that order. The purpose of mandatory relief is to alleviate the hardship on parties who lose their day in Court “due solely to an inexcusable failure to act on the part of their attorneys.�...

Excerpt: ...urt 3.1332. The trial has already been twice continued for a period of 10 months. Defense counsel concedes that he finally completed Plaintiff's deposition on 7/2/18. Counsel does not explain why Plaintiff's medical examination could not be completed before discovery cutoff. Declaration of John Doherty, ¶ 4. Plaintiff testified at his deposition on 7/2/18 that he returned his vehicle to the dealership. Opposition, Ex. D. Defense counsel declares...

Excerpt: ...stifying 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, 839, 840. Defendant attempted to meet and confer in good faith by email sent 10/26/18. Motion, Ex. E. Plaintiff's counsel did not respond. Declaration of Emily Rockwell, ¶ 7. Defendant has shown good cause for the neurological examination. ...

Excerpt: ...s discretion to reduce a party's list of employed or retained experts to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. Code Civ. Proc., § 2034.250. Plaintiff has not established that Defendants' motion is not “promptly” made. Trial is presently set for 3/28/19. Plaintiff has not shown any prejudice resulting from the timing of the Defendants' motion. As part of the mutual and simultaneous...

Excerpt: ...the risk -- that Plaintiffs voluntarily assumed any and all risks attendant upon their conduct. Whether primary assumption of the risk applies can be determined as a matter of law if the facts are not in dispute. Childs v. County of Santa Barbara (2004) 115 Cal. App. 4th 64, 69. At this point of the litigation, no facts are presented that are not in dispute. Plaintiffs' complaint consist of allegations, not undisputed facts. Plaintiff has not est...

Excerpt: ...Court's file reflects the following timeline. 8/22/18 Complaint filed. Initial trial date: 2/24/20 11/28/18 The Court GRANTS Plaintiff's motion for trial preference and sets trial for 3/14/19 11/28/18 City of Calabasas files its Cross-Complaint against Cross-Defendant Venco 12/10/18 Cross-Defendant Venco was personally served with the Cross-Complaint filed by City of Calabasas 1/9/19 Cross-Defendant Venco files its answer to the Cross-Complaint 1...

Excerpt: ...he court must make express findings of the following: “(1) There exists an overriding interest that overcomes the right of public access to the record; (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.”...

Excerpt: ...ology Bay City Surgery Center -- medical records, billing and radiology Sunset Diagnostic Radiology -- medical records, billing and radiology Mark Greenspan, M.D. -- medical records, billing and radiology UCLA Health Systems -- for any and all records Santa Monica UCLA Medical Center -- for billing records UCLA Medical Center -- billing records UCLA Health Systems -- radiology records UCLA Physician's Billing -- billing records Physician's Manage...

Excerpt: ...oyee acting within the scope of employment. Cal. Gov. Code, § 815.2(a). Civil Code §§ 2100 governs the standard of care owed by common carriers of persons. Such carries are bound to use “utmost care and diligence.” Cal. Civ. Code, § 2100 The undisputed facts establish the following: Plaintiff alleges that Defendants, Los Angeles County Metropolitan Transportation Authority (“MTA”) and Tshawn Demethris (“Demethris”), were negligent...

Excerpt: ...notice of court records is permitted]. The undisputed material facts establish the following: Plaintiff filed a complaint against Defendant alleging a sole cause of action for premises liability. Plaintiff alleges she slipped and fell on Defendant's premises on 12/29/13. UF 1. Plaintiff objects to the material facts proffered by Defendant which are based on the declaration of Thomas McNutt, counsel for Defendant. Mr. McNutt admits that his discus...

Excerpt: ...operly subject to judicial notice under Evidence Code § 452. They are not authenticated. They do not contain facts or propositions that are not reasonably subject to dispute or capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Plaintiff's declaration. Objections 1-8. SUSTAINED. Objection 9. SUSTAINED. Declaration of Plaintiff's Counsel Alexander Rosenberg. All objections are OVERRULED The u...

Excerpt: ...rocedure § 473(b). Plaintiff, Brook Glaser, seeks relief from the Court's order of 12/14/18 granting Defendants' Motion for Terminating Sanctions for failure to comply with the Court's order to appear for deposition, resulting in the Court's dismissal of Mr. Glaser's claims alleged against Defendants. Motion, Ex. 5. Plaintiff seeks to vacate that dismissal. The word “dismissals” as stated in the statute is narrowly construed. The purpose of ...

Excerpt: ...jections to Plaintiff's evidence. #1-5. Plaintiff's Deposition testimony. SUSTAINED. #6 and #7. Declaration of Inez Cruz. SUSTAINED. #8 and #9 Declaration of Jose Cruz. SUSTAINED. #10. Defendant's Responses to Plaintiff's Form Interrogatory 12.4. OVERRULED. #11. Plaintiff's government claim for damages. SUSTAINED. #12. Letter from Deputy City Attorney denying Plaintiff's claim for damages. SUSTAINED. Gov. Code § 835 imposes liability against a p...

Excerpt: ...eth; but instead removed three wisdom teeth and one molar instead of Plaintiff's remaining wisdom tooth. On September 11, 2018, Plaintiff served notice of Plaintiff's intent to sue to Dr. Harb and Western Dental. On October 26, 2018, Plaintiff filed a Complaint against Defendants, asserting a single cause of action for Professional Negligence. Defendants filed the operative Answer on December 27, 2018. On January 7, 2019, Plaintiff filed the inst...

Excerpt: ...rds issued by Defendant on 11/29/18 to Cedars Sinai Medical Center for production of all medical records, x-rays, films, itemized statements and billing records, and all insurance records from 4/1/18 to the present. The fifth subpoena was issued to Cedars Sinai Medical Care Foundation for all itemized statements and billing records from 4/1/18 to the present. Motion, Exhibits A-E. The court can quash the subpoenas to protect the Plaintiff from un...

Excerpt: ...maining objections since they are not material. 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. The undisputed facts establish that Plaintiff alleges t...

Excerpt: ...s discretion to reduce a party's list of employed or retained experts to protect a party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. Code Civ. Proc., § 2034.250. Plaintiff has not established that Defendants' motion is not “promptly” made. Trial is presently set for 3/28/19. Plaintiff has not shown any prejudice resulting from the timing of the Defendants' motion. As part of the mutual and simultaneous...