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

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...