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