Excerpt: ...pp.3d 29, 32. Mr. Russell has not demonstrated any prejudice resulting from the late filing. He has filed a reply which the court has considered. Personal service of the summons and complaint and related documents on the moving party was purportedly accomplished on 2/9/19 at 4735 Sepulveda Blvd PH410, Sherman Oaks Calif, 91403. Motion, Ex. A. Mr. Russell declares he did not live at the Sherman Oaks address on 2/9/19, nor has he conducted business...

Excerpt: ...�) property by Defendant Walter Underwood. The property at issue was a sidewalk. The Complaint further alleges that City employees gave the dangerous dogs to defendant, knowing that he had no safe place to keep the dogs; and further alleges that “the injuries occurred because of lack of, or poor supervision by City of Los Angeles staff.” The Complaint purports to assert two causes of action against the City: (1) premises liability; and (2) ge...

Excerpt: ...has 30 days to amend. The demurrers to the second, third and fourth causes of action are OVERRULED. The motion to strike is GRANTED with leave to amend as to the prayer for attorneys' fees. The Cross‐Complaint does not state a basis for a claim for attorneys' fees. The motion to strike is <017600030128017d018c00 on. A demurrer reaches defects that appear on the face of the complaint. The court considers the allegations and matters that are subj...

Excerpt: ... below by October 22, 2019. Courtesy copies are to be delivered to Dept. 2. Plaintiff brings this motion pursuant to Government Code Section 946.6. Plaintiff argues that his submission of the claim to the Redondo Beach Unified School District on June 5, 2019 was <000301020110019a015d01 017d019a000301020110Lcrue until April 2019 because that is when Plaintiff discovered that Redondo Beach Unified School District owed the property. RBUSD argues tha...

Excerpt: ...1. As Defendant observes, the jury fees were untimely posted on 6/20/18, one week after the 365-day deadline passed on 6/13/18. Motion, Ex. A. Counsel declares that late posting was inadvertent. Declaration of Steve Kang, ¶ 3. The court has discretion to allow a jury trial although there may have been a waiver. Ca.l Code Civil Procedure § 631(g). Because the right to jury trial is fundamental, doubts are resolved in favor of allowing a jury tri...

Excerpt: ...sion 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 knowledge of experts. Hanson v. Grode (1999) 76 Ca...

Excerpt: ... showing of good cause. Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255. “Good cause” is established where there are specific facts justifying discovery and the inquiry is relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence. Vinson v. Superior Court (1987) 43 Cal. 3d 833, 840. On 4/20/17, Plaintiff consulted with a neurologist, Martin J. Backman, M.D. Motion, Ex. E. ...

Excerpt: ... 8:30 a.m. All discovery, motion, expert, and all trial-related deadlines are based on the new trial date. Plaintiff's Motion to Quash Deposition Subpoenas for Business Records; Request for Sanctions Plaintiff's Motion to Quash Deposition Subpoenas for Business Records; Request for Sanctions, filed on is GRANTED. The subpoenas issued by Defendant to Cedars-Sinai Medical Center, Cedars-Sinai Medical Center (X-Rays), Cedars-Sinai Medical Center (Bi...

Excerpt: ...) 203 Cal. App. 3d 57, 64. The Court is bound to tailor the sanction to accomplish the discovery sought. Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35. Terminating sanctions are appropriate where there is outright refusal to comply with discovery obligations. Deyo v. Kilbourne, (1978) 84 Cal. App. 3d 771, 793. An order imposing sanctions cannot go further than is necessary to accomplish the pu...

Excerpt: ...� 815.2 imposes liability on a public entity for injury caused by the wrongful act of an employee acting within the scope of employment. Civil Code §§ 2100, 2101, and 2103 governs the standard of care owed by common carriers of persons. Such carries are bound to use “utmost care and diligence,” must provide safe vehicles, and may not overcrowd or overload its vehicles. Defendant proffers three material acts based largely on the Plaintiff's ...

Excerpt: ...2018, Plaintiff filed the operative Complaint against Jamieson and Hertz; asserting a single claim for Negligence. On January 3, 2019, Hertz filed the instant Demurrer to Plaintiff's Complaint. Hertz demurs to the Complaint on grounds that the Complaint does not state facts sufficient to constitute a cause of action against it. Specifically, Hertz maintains that the allegations in the Complaint are preempted by 49 U.S.C. § 30106 (the “Graves A...

Excerpt: ...le a supplemental or additional declaration. Accordingly, the tentative ruling becomes the order of the Court. Service on a person in another country is governed by Cal. Code Civil Procedure §413.10(c). Service may be made as directed by the Court or as prescribed by the law of the place where the person is served, or as directed by the foreign authority in response to a letter rogatory. Service is subject to the Hague Convention. Cal Code Civil...

Excerpt: ...2018, Plaintiff filed the operative Complaint against Jamieson and Hertz; asserting a single claim for Negligence. On January 3, 2019, Hertz filed the instant Demurrer to Plaintiff's Complaint. Hertz demurs to the Complaint on grounds that the Complaint does not state facts sufficient to constitute a cause of action against it. Specifically, Hertz maintains that the allegations in the Complaint are preempted by 49 U.S.C. § 30106 (the “Graves A...

Excerpt: ...ifornia 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. Defendant must show a compelling need for the discovery. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1014; Harris v. Superior Court, (1992) 3 Cal.App.4th 661, 665. Additionally, the scope of the pe...

Excerpt: ...1:2. Plaintiff now complains that Defendant has objected to the Request for Production of Documents served with the deposition notice, contending that the objections are untimely. However, Defendant did serve a response to the Request for Production of Documents on 11/13/18, three days before the 11/16/18 deposition was to take place. Motion, Ex. 20. Objections are due three days before the deposition is held. Cal. Code Civil Procedure § 2025.41...

Excerpt: ...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. Defense counsel, Raymond Gamolo, refused to produce witnesses for the depositio...

Excerpt: ...eedings against non-debtor co-defendants in “unusual situations” such as where there is “such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third- party defendant will in effect be a judgment or finding against the debtor.” Such an “unusual situation” would be where the third party is entitled to absolute indemnity by the debtor such...

Excerpt: ...latkin & Berns (1992) 7 Cal. App. 4th 27, 35. Terminating sanctions are appropriate where there is outright refusal to comply with discovery obligations. Deyo v. Kilbourne, (1978) 84 Cal. App. 3d 771, 793. An order imposing sanctions cannot go further than is necessary to accomplish the purpose of discovery.Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 615. There is no evidence of Plaintiff's outright refusal to comply with the Court's o...

Excerpt: ...cupier had actual or constructive notice of the dangerous condition, “or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it....

Excerpt: ...ed the Opposition the next business day on 7/24/18. Reply 5:21-23. Service of the opposition was not defective. 2. Plaintiff's objections to evidence. All objections are OVERRULED. 3. The undisputed facts establish that on 8/6/15, Plaintiff went to Defendant's store and slipped and fell due to a dangerous condition left on the floor. Plaintiff testified that she saw a hairspray can on its side in a shopping cart immediately before the incident. U...

Excerpt: ...lar Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal. App. 4th 696, 705. Defendant has established that Plaintiff agreed to arbitrate this dispute. Paragraph 15.2 of the parties' agreement states that “any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Uber Services shall be subject to arbitration pursuant to Section 15.3.” Garrett Declaration Ex. A, ¶ 15.2. Defendant p...

Excerpt: ... creating a duty to act. Ambuserve claims that nonfeasance applies here as it did not create the peril that caused injury, namely the puddle of water on the stairs in which Plaintiffs' decedent fell. Therefore, Defendant concludes that only nonfeasance applies, and that requires a special relationship to support a duty owed. As defined by Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202, cited by Ambuserve, “nonfeasance is found...

Excerpt: ...fficiently alleges that the statutory basis for Plaintiff's claim is Government Code section 835. City is a public entity. Government Code § 811.2 broadly defines the term public entity to include the state, the Regents of the University of California, the Trustees of the California State University and the California State University, a county, city, district, public authority, public agency, and any other political subdivision or public corpor...

Excerpt: ...pection. Cal Code Civ Procedure §2025.450. Plaintiff served the PMK deposition notice on 4/25/18. Motion, Ex. A. Defendant served an objected on 4/25/18 on grounds discovery had been cut off. 2. Discovery cut-off occurs 30 days before the initial trial. Cal Code Civ Proc §2024.020. The court's file reflects that on 6/4/18, the trial date was continued to 10/23/18 without reference to any extension of discovery cutoff. Plaintiffs maintain that t...

Excerpt: ...Defendant's counsel adequately met and conferred by letter of 6/14/18 regarding Plaintiff's unavailability for the 6/13/18 deposition although Plaintiff did not file an objection to the notice. Motion, Ex. D; Declaration of Steven Loi ¶10. Cal. Code Civ. Proc. 2025.450(b)(2). While Plaintiff contends Defendant did not adequately meet and confer, the opposition is not supported by a declaration or any other evidence. 1. Defendant was not requ...

Excerpt: ...t carried on by Defendant with a willful and conscious disregard of the rights of others. Civ. Code § 3294(a). This is the definition of malice. Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of a person's rights. Cal Civ. Code § 3294(c). “Despicable” conduct is conduct so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon an...

Excerpt: ...l Procedure § 286. That section does not permit dismissal for failure to respond. Dismissal as a discovery sanction is inappropriate, because the motion is based on Plaintiff's failure to respond to Defendant's written demand pursuant to Cal Code Civil Procedure § 286. Defendant has not made a motion to compel Plaintiff's appearance at deposition, primarily because she is currently unrepresented. Cal Code Civil Procedure § 128 gives the court ...

Excerpt: ...he motion is not procedurally defective. A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Cal Code Civil Procedure § 437c(c). The only cause of action asserted against Defendant Messner was the second cause of action for premises liability. Motion, Ex. A, Complaint, page 8. The first cause o...

Excerpt: ...ll be, Defendant can provide verified responses in response to Plaintiff's recovery, now that Defendant's counsel has successfully made contact. There is no basis for Defendant to further avoid her discovery obligations. The case authority provided by Defendant supports the proposition that the court is empowered to fashion a remedy that will do justice, such as granting a specific extension of time for counsel to locate Defendant. Brigante v...

Excerpt: ...a). While it is established that Plaintiff has a substantial interest in the litigation as a whole since he is the only Plaintiff, Plaintiff's counsel has not provided admissible evidence of Plaintiff's age. 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. The declaration of counsel is insufficient, since it con...

Excerpt: ...ty to use such skill, prudence, 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. Proof that Defendants met the standard of care requires expert testimony. Landeros v. Flood (1976) 17 Cal.3d 399, 410.  The course of...

Excerpt: ...that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel's declaration regarding the meet and confer efforts prior to the filing of the FAC does not satisfy CCP section 430.41(a)'s requirements. (Butler Decl. ¶¶ 2-3.) The declaration only indicates that the parties met and conferred regarding the sufficiency of the initial pleading. Each subsequent pleading creates a meet and confer obligation regarding that pleading...

Excerpt: ...ly made, and the granting of the motion will not result in prejudice to the opposing party, it is error to refuse permission to amend. It is an abuse of discretion where the refusal to grant leave to amend results in a party being deprived of the right to assert meritorious claims. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530. A different result is indicated where inexcusable delay and probable prejudice to the ...

Excerpt: ...rudence, 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. Proof of the standard of care, whether Defendants breached it, and the element of causation all require expert testimony.Landeros v. Flood (1976) 17 Cal.3d 399...

Excerpt: ...illful and conscious disregard of the rights of others. Civ. Code § 3294(a). This is the definition of malice. Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of a person's rights. Cal Civ. Code § 3294(c). “Despicable” conduct is defined as conduct so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary ...

Excerpt: ...llful and conscious disregard of the rights of others. Civ. Code § 3294(a). This is the definition of malice. Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of a person's rights. Cal Civ. Code § 3294(c). “Despicable” conduct is defined as conduct so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary d...

Excerpt: ...e and nature of the examination, and the identity and specialty of the person who will perform the examination. The parties are required to meet and confer. Cal. Code Civ. Proc. § 2032.310(b) Defendants have shown good cause for the psychiatric examination. Plaintiff has placed his mental condition at issue by asserting post-traumatic cephalgia, concussion with brief loss of consciousness, insomnia, chronic adjustment disorder with mixed anxiety...

Excerpt: ...s deny this allegation. Regardless, venue is also proper where Defendant resides. Defendant admits that it is “headquartered” in Compton. Motion 2:3. There is no evidence that Defendant resides elsewhere. “Residence” is the same as principal place of business. Yedor v. Ocean Acci. & Guarantee Corp. (1948) 85 Cal. App. 2d 698, 703. 2. The court has discretion to change the place of trial when the convenience of witness and ends of justice ...

Excerpt: ...d. UF 1. Plaintiff's insured, Scott Lambert, had parked it and later discovered smoke and fire coming from the vehicle. UF 3. There is no dispute that the fire was limited to the subject vehicle at all times and did not cause any physical injuries or property damage outside the vehicle. UF 6. Plaintiff claimed subrogation damage of $53,764.22 for payments made to its insured. UF 8. Plaintiff made payments to its insured only for the loss of the v...

Excerpt: ...iff's consent. It is distinct from professional negligence. Saxena v. Goffney, 159 Cal. App. 4th 316, 324-325 (Cal. App. 4th Dist. 2008). The battery claim is different from lack of informed consent, the latter of which sounds in negligence. Id at 324. Plaintiff alleges she “consented to a medical procedure” using a silicone implant. Defendant used saline. Complaint page 5. Defendant contends the procedure would have been the <0090008701e4000...

Excerpt: ... prior to Plaintiff's cataract surgery based on the claim that Plaintiff was given a consent form in Korean. The court must disregard errors in pleadings or proceedings, which do not affect the substantial rights of the parties. Cal Code Civ. Proc. § 475. The statute is liberally construed to permit amendment of the pleadings. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. If the motion is timely made, and the granting of the motion will...

Excerpt: ...sent prior to Plaintiff's cataract surgery based on the claim that Plaintiff was given a consent form in Korean. The court must disregard errors in pleadings or proceedings, which do not affect the substantial rights of the parties. Cal Code Civ. Proc § 475. The statute is liberally construed to permit amendment of the pleadings. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760.If the motion is timely made, and the granting of the motion wi...

Excerpt: ... of court records. 2. The court declines to rule on Plaintiff's objections contained within the Opposing Separate Statement of facts. These are objections to the material facts as characterized by Defendants, not to the evidence. Objections are required to be separately filed, must quote the objectionable material and must be prepared in one of two formats set forth by rule. Cal Rules of Court 3.1354. 3. The undisputed facts establish that Plaint...

Excerpt: ...owever, the complaint does attach a police report indicating that Marcia Lucilla Sanchez fell asleep at the wheel while driving with Plaintiff as a passenger. Sanchez hit a parked car. The police report indicates that Defendant was Sanchez's insurance company. However, the direct relevance of this report is not certain, as there are no allegations explaining the documents' significance or relevance. Analysis Legal Standard A demurrer for sufficie...

Excerpt: ...ire “clear and convincing medical documentation” that raises substantial medical doubt of the party beyond six months. 2. Plaintiff has met his burden of establishing that the interests of justice will be served by granting the motion. Plaintiff suffers from numerous “active problems” including chronic respiratory failure with hypoxia requiring in-home oxygen therapy, uncontrolled diabetes mellitus and slightly declining renal function �...

Excerpt: ...4 Wilshire Boulevard, Suite 11704 Wilshire Boulevard, Suite 11710, Los Angeles, CA 90025. 1. The court DENIES Ms. Burnett's request for an in camera hearing as there is no basis or authority for it, and it would unfairly preclude Defendant's counsel's participation. It would also be improper ex parte communication.CA ST RPC Rule 5-300 2. Defendant is entitled to demand a physical examination of a personal injury Plaintiff without leave of court p...

Excerpt: ...nd must comply with the requirements of Cal Code Civil Procedure § 1008. The requirements of CCP § 1008 apply to "all applications to reconsider any order of a judge or court." Applications to reconsider must be made according to this section. Cal Code Civil Procedure § 1008(e). Hon. Patricia Nieto previously issued the order of 5/7/18, but is no longer available as she has been reassigned to another department. Accordingly, this court...

Excerpt: ...e § 473, Plaintiffs can amend a complaint to correct a misnomer or defect in the description or characterization of the Defendant, but cannot replace parties. Mayberry v. Coca Cola Bottling Co. of Sacramento (1966) 244 Cal.App.2d 350, 352. There is an exception where Plaintiff committed an “excusable mistake attributable to dual entities with strikingly similar business names or to the use of fictitious names.” Mayberry at 353. The Plaintiff...

Excerpt: ...not dispute that the banana fell to the floor at 7:39 p.m., affirming without dispute that the condition existed for 12 minutes. UF 3. 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. Premises liability is a “spec...

Excerpt: ...vidence. Plaintiff must make a prima facie case for recovery of punitive damages if the evidence is credited. Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539 . Plaintiff must show that Defendant acted with malice, fraud or oppression to warrant recovery of punitive damages as those terms are defined by Civil Code § 3294. Malice “means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct wh...

Excerpt: ...ants' Joinder asserts new arguments of which Plaintiff did not have notice nor an opportunity to Reply. 2. Leave to amend is permitted at the court's discretion upon any terms that may be just. Cal Code Civ Procedure § 473. The statute is liberally construed to permit amendment of the pleadings unless an attempt is made to present an “entirely different set of facts.” Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. If the motion is ti...

Excerpt: ...re facts that fall outside the corners of the pleading and cannot be considered. Motion, 5:9-12. Defendant's claim that Plaintiff must provide witness statements, or that Plaintiff must allege facts to establish Defendant's intoxication is improper. Plaintiff need only allege general allegations of ultimate fact. Evidentiary facts are not required. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. TheTV Corp. Internat....

Excerpt: ...4 Wilshire Boulevard, Suite 11704 Wilshire Boulevard, Suite 11710, Los Angeles, CA 90025. 1. The court DENIES Ms. Burnett's request for an in camera hearing as there is no basis or authority for it, and it would unfairly preclude Defendant's counsel's participation. It would also be improper ex parte communication.CA ST RPC Rule 5-300 2. Defendant is entitled to demand a physical examination of a personal injury Plaintiff without leave of court p...

Excerpt: ...nd must comply with the requirements of Cal Code Civil Procedure § 1008. The requirements of CCP § 1008 apply to "all applications to reconsider any order of a judge or court." Applications to reconsider must be made according to this section. Cal Code Civil Procedure § 1008(e). Hon. Patricia Nieto previously issued the order of 5/7/18, but is no longer available as she has been reassigned to another department. Accordingly, this court...

Excerpt: ...she does not need the case to be tolled and that Plaintiff is prepared to bring her case to trial within the 5-year mandatory dismissal statute. Cal Code Civil Procedure § 583.310. Reply, 2:13-17. 2. The court can send the matter back to Superior Court for trial if it determines that Plaintiff is unable to pay the anticipated pro-rata costs of arbitration. Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 96. There is a long-standing public...

Excerpt: ...Service, Inc. to Quash Service of the Summons and Complaint, filed on 2/21/18 is GRANTED as Plaintiffs have not met their burden of establishing that the court can exercise personal jurisdiction over Defendants. Defendants can move to quash service of the Summons and Complaint based on lack of jurisdiction. Cal Code Civ Proc § 418.10(a)(1). 3. Personal Jurisdiction a. The burden falls on Plaintiff to establish that all criteria for personal juri...

Excerpt: ...Service, Inc. to Quash Service of the Summons and Complaint, filed on 2/21/18 is GRANTED as Plaintiffs have not met their burden of establishing that the court can exercise personal jurisdiction over Defendants. Defendants can move to quash service of the Summons and Complaint based on lack of jurisdiction. Cal Code Civ Proc § 418.10(a)(1). 3. Personal Jurisdiction a. The burden falls on Plaintiff to establish that all criteria for personal juri...

Excerpt: ... Detail, (Exhibit D), 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. Cal. Code Civ. Proc. § 437c(q). Here, Defendants did not meet their threshold bu...

Excerpt: ...ant's challenge to the Plaintiff's cause of action.” Eriksson v. Nunnink, (2011) 191 Cal. App. 4th 826, 848. A party cannot raise new issues of materiality merely by submitting a Declaration in opposition to the summary judgment motion. Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223. Plaintiff argues that Defendants did not advise Plaintiff that the cataract surgery was elective and that it was not medically necessary if s...

Excerpt: ... and emotional distress “over and above that usually associated with the physical injuries claimed” and that an expert on mental and emotional distress will not be presented at trial. Cal Code Civil Procedure § 2032.320 (a), (c). Defendant has shown good cause for the neurological and neuropsychiatry examination since Plaintiff claims to have suffered traumatic brain injury, along with other neurological symptoms including, headaches, cognit...

Excerpt: ... McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375. Plaintiff can amend the complaint to state the true name of a Doe Defendant under Cal Code Civ Procedure § 474.Austin v. Massachussetts Bonding (1961) 56 Cal.2d 596, 599. 1. The general rule provides that the Amendment to Complaint substituting Berkshire for Doe 1 does not relate back to the filing of the original complaint to avoid the 2-year statute of limitation...

Excerpt: ...claration of Frank Perez; Declaration of Humberto Ardon. 1. Plaintiff has shown good cause for a continuance given Plaintiff's condition has not stabilized, and he is currently receiving treatment for his left foot, which was injured in the subject accident. Ardon Declaration, ¶ 5-6. Accordingly, the case does not appear ready for trial given Plaintiff's still-evolving condition. Cal Rules of Court 3.1332. Trial is currently set for 9/25/18. Pla...

Excerpt: ...d of the dangers such misconduct would and did create for the rights and safety of the public, including Decedent and Plaintiffs. Plaintiffs are further informed and believe, and thereon allege, that for a substantial period of time prior to the SUBJECT INCIDENT, said Defendants acted with malice in that they engaged in despicable conduct in conscious disregard of the rights, safety, and welfare of Decedent Timothy Wise” Page 9, ¶ 23, line 20 ...

Excerpt: ...tify at her deposition, as Plaintiff's counsel offered future dates for the deposition when the prior depositions were cancelled. Plaintiff could not attend the 5/10/18 deposition because her disabled sister required emergency transport on 4/27/18 and required a 2-day stay in the hospital. Hofer Declaration ¶ 6. Plaintiff has been in Las Vegas to care for her sister since that time. Id. Defendant's counsel does not attest that he met and...

Excerpt: ...anski v. Von's (1983) 146 Cal.App.3d 29, 32. 2. Defendants are entitled to obtain discovery by means of a physical or mental examination. Cal Code Civil Procedure § 2032.020. Leave of court is required for mental or “other” exams. Cal Code Civil Procedure § 2032.310(a). 3. Defendants must show good cause for the examinations unless Plaintiff stipulates that he is not making a claim for mental and emotional distress “over and above that us...

Excerpt: ...il 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. The Supplemental Declaration of Patrick Gunning filed on 6/15/18 is sufficient to meet Plaintiff's burden of showing that Plaintiff's health is “such that that a preference is necessary to prevent prejudicing the party's interest in the lit...

Excerpt: ...ment an expert witness list if the party engaged in a timely exchange of expert witness information. Code Civ. Proc., § 2034.610 Defendant timely participated in the simultaneous exchange of expert witness information on the due date. Defendant's Motion, Ex. A. The motion may be made in a “sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of ...

Excerpt: ...ympic Chiropractic (“Olympic”) and Does 1 to 50 alleging causes of action for (1) professional negligence, (2) medical battery and (3) loss of consortium. The complaint alleges the following: 1) On February 27, 2017, plaintiff Ashley Lee went to Olympic for chiropractic treatment for her neck, shoulder and arm. (Complaint ¶¶ 8, 12); 2) Camarillo, who is a chiropractor and works at Olympic treated plaintiff Ashley Lee. (Id. ¶¶ 1 and 8, 12)...

Excerpt: ...Stores and 99 Cents Only Stores, LLC, alleging two causes of action for 1) premises liability, and 2) negligence. On April 19, 2018, Defendant 99 Cents Only Stores, LLC (“Defendant”) filed a demurrer and motion to strike portions of the Complaint. On May 19, 2018, Plaintiffs filed an opposition. On May 22, 2018, the Court continued the hearing on the motions to July 9, 2018 for lack of a meet and confer declaration. On May 23, 2018, the Court...

Excerpt: ...ther 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. Proof of the standard of care, whether Defendant breached it, and the element of causation all require expert testimony.Landeros v. Flood (1976) 17 Cal.3d 399, 410; Jones v. Ortho Pharm....

Excerpt: ...18/18 to permit Plaintiff to file a Reply brief. None has been filed. Plaintiff does not cite any other 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. 1. The court can quash the subpoena or issue a protective order to protect the parties from unreasonable or oppressive demands including unreasonable violation...

Excerpt: ...er Deeming the Truth of the Matters Specified in Requests for Admission, Set One Admitted and Request for Sanctions, filed on 4/30/18 is GRANTED. Cal Code Civ Procedure §2033.280(b). The court will deem the requests admitted unless, before the hearing on the motion, Plaintiff serves a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. Cal Code Civ Procedure § 2033.280(b). The court imposes t...

Excerpt: ...sary 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. Foreman & Clark Corp. v. Fallon(1971) 3 Cal. 3d 875, 888, fn. 8. Here, Defendant has not persuasively shown that liability is clearly established in Defendant's favor or that a defense verdict is “likely.” Motion, 6:7-8. Even if Plaintiff was not in the crosswalk at the time of the incident...

Excerpt: ...sary 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. Foreman & Clark Corp. v. Fallon(1971) 3 Cal. 3d 875, 888, fn. 8. Here, Defendant has not persuasively shown that liability is clearly established in Defendant's favor or that a defense verdict is “likely.” Motion, 6:7-8. Even if Plaintiff was not in the crosswalk at the time of the incident...

Excerpt: ...n of showing that the expert possesses confidential information materially related to the proceedings before the court. If that showing is made, a rebuttable presumption arises that the information has been used or disclosed in current employment. DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 686. Plaintiff has met her burden of showing that Dr. Shuman possesses such confidential information. Defense counsel disclosed in a letter to ...

Excerpt: ... 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. Foreman & Clark Corp. v. Fallon(1971) 3 Cal. 3d 875, 888, fn. 8 (Cal. 1971). Here, Defendants facts on the liability issue do not support bifurcation given Plaintiff's evidence demonstrating that the defendant driver exceeded the speed limit. Opposition, Ex. 2, 24:12, 25:24-25, 26:16-22, 27:12-25. Additi...

Excerpt: ... SP Plus Corporation or the City of Los Angeles. The Reply declaration of Peter P. Salomone establishes that while the proof of service of the opposition indicates service by mail and facsimile to the City of Los Angeles and moving party, SP Plus, Mr. Salomone declares he never received the opposition papers. Salomone Declaration, ¶5. Neither has the City of Attorney's office. Salomone Declaration ¶ 7, Ex. A. Consistent with this assertion is t...

Excerpt: ...endants served a supplemental exchange on 4/27/18, Plaintiff did not. Motion, Ex. D. On 5/1/18, the parties submitted a stipulation to continue trial to 7/24/18. All discovery and motion cut-offs were to be based on the new trial date. The stipulation does not discuss expert-related deadlines. Opposition, Ex. D. On 5/7/18, the court issued an order to continue trial to 7/24/18. The order is silent on the continuance of any expert-related deadline...

Excerpt: ... whether Peggs owes a duty to defend 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). 2. Peggs' objections to Superior's Evidence Declaration of Magda Prado-Isas (Manager of Facilities for Superior) #1. Overruled. #2-3. Sustained. 3. The undispute...

Excerpt: ...mbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232, 254 Cal.Rptr. 410).” International Ins. Co. v. Superior Court (Rhone‐ Poulenc Basic Chemicals Co.) (1998) 62 Cal.App.4th 784, 786. Motion by Defendants, Adil Aquita and Khadija Aquita, for Reconsideration of the Court's May 2, 2018 Order, filed on 5/15/18 is GRANTED. Under the circumstances, the court reconsiders its ruling of 5/2/18 deeming the Requests for Admission admitted. Defendant...

Excerpt: ...Code Civil Procedure § 437c(p)(2). 1. The court has discretion to consider the Plaintiffs' opposition. While it was timely served on 5/30/18, Defendant did not receive it the next business day. Any prejudice to Defendant has been mitigated since the court continued the hearing from 6/13/18 since the court had not received the Opposition, which also had not been uploaded to the court's website in a timely manner. Defendant has been able to file a...

Excerpt: ...ions, but they are objections to the purported facts, not specific evidence. Evidentiary objections must be separately filed and must conform to one of two formats. The objections must quote the objectionable material. Cal Rules of Court 3.1354. 2. The undisputed facts establish the following: Plaintiffs filed a complaint for damages asserting medical negligence and loss of consortium against Mary <008b00960083008e01f302 00030013008e0083008b>ntif...

Excerpt: ...ull on the property. UF 1-2. About a month and a half later, Vera Gaertner moved into the apartment over the garage. UF 3. She was not allowed to have a dog, and did not have one for approximately two months. UF 4. There is no dispute that Defendants became aware of the presence of Gaertner's dog, Clutch, and told her to remove the dog. UF 5. Plaintiff does not dispute that Clutch never appeared to show any aggressive tendencies, only behaving ti...

Excerpt: ...s from unreasonable or oppressive demands including unreasonable violations of the right of privacy. Cal. Code Civ. Proc. §1987.1. 1. The parties do not appear to dispute production of the billing records pertaining to the treatment of Plaintiff by Olympia for injury relating to this action. Motion, Ex. A, Paragraph 1 of Attachment 3 to the subpoena. Olympia discloses it has already produced the UB-04 Claim Form and its itemized bill for the ser...

Excerpt: ...owing elements: “(1) a duty to use such skill, prudence, 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. Proof of the standard of care, whether Defendant breached it, and the element of causation all require expert...

Excerpt: ...apitanski v. Von's (1983) 146 Cal.App.3d 29, 32. Defendant has not shown any prejudice resulting from the late Opposition. Defendant was able to file a Reply brief, which has been considered. Ordinarily, if there is any prejudice resulting therefrom, the court can continue the hearing, but Defendant does not ask for a continuance. Mann v. Crachiolo (1985) 38 Cal.3d 18, 30. 3. The Motion for Transfer of Venue by Defendant, Signature Painting and C...

Excerpt: ... from unreasonable or oppressive demands including unreasonable violations of the right of privacy. Cal. Code Civ. Proc. §1987.1. 1. The parties do not appear to dispute production of the billing records pertaining to the treatment of Plaintiff by Olympia for injury relating to this action. Motion, Ex. A, Paragraph 1 of Attachment 3 to the subpoena. Olympia discloses it has already produced the UB-04 Claim Form and its itemized bill for the serv...

Excerpt: ...icial Notice, Ex. 1. Defendants do not dispute the Plaintiff's age. Preference is mandatory under Cal. Code Civ. Proc. § 36(b) under these circumstances. Cal. Code Civ. Proc. §36(b). Accordingly the court is to set trial for no sooner than six months and no later than nine months from the date the motion is granted, Cal. Code Civ. Proc. § 36(g). Nine months from the date of this motion hearing is Friday, April 12, 2019. Moving party is ordered...

Excerpt: ...ions, but they are objections to the purported facts, not specific evidence. Evidentiary objections must be separately filed and must conform to one of two formats. The objections must quote the objectionable material. Cal Rules of Court 3.1354. 2. The undisputed facts establish the following: Plaintiffs filed a complaint for damages asserting medical negligence and loss of consortium against Mary <008b00960083008e01f302 00030013008e0083008b>ntif...

Excerpt: ...s 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. Defendant challenges the second and third elements. Proof of the standard of care, whether Defendant breached it, and the element of causation all require expert testimony.Landeros v....

Excerpt: ...#5-6 Overruled. b. Defendant's objections to evidence Declaration of Brad Avrit #1 and #2. Overruled. #3. Overruled. #4-5 Sustained. #6. Sustained. #7-8. Overruled. #9. Overruled. #10-11. Overruled #12. Sustained. #13-16. Overruled. 2. Defendant's duty as a store owner includes an obligation to make reasonable inspections of the property. Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431. a. Notice of the condition is require...

Excerpt: ...1, 2. In support of the first cause of action for negligence, Plaintiff specifically alleges that Defendant, Hubbell, Inc. (“Hubbell”) negligently repaired, remodeled, installed, and modified the area at the Club so as to cause the floor boxes to be installed where invitees would traverse. UF 6. In support of the 2 nd cause of action for products liability, Plaintiff alleges that Defendant failed to warn purchasers, installers, and end users ...