Excerpt: ...s counsel declares she spoke by telephone to Plaintiff's counsel about all causes of action. Declaration of Nwoko, ¶ 6-7. Cal. Code Civil Procedure § 430.41(a). The demurrer to the 1 st cause of action for battery is overruled. To state a claim for battery, Plaintiff must allege facts supporting the following elements: 1. Defendant intentionally committed an act resulting in a harmful or offensive contact with the plaintiff's body; 2. Plaintiff...

Excerpt: ...riven by Defendant, Patricia Avila. UF 1, 2. Plaintiff alleges that the City of Los Angeles (“City”) operated, managed, designed, planned, engineered, constructed, maintained and inspected the intersection on the date of the incident. UF 3. Plaintiff alleges that the intersection constituted a dangerous condition of public property. UF 4. Plaintiff contends that the dangerous condition contributing to the occurrence of the incident was the la...

Excerpt: ...ies 2/7/19 stipulation, motion cutoff dates were based on the new trial date of 6/25/19. The 15 th day before trial was 6/10/19. This motion was set for hearing on 6/11/19 and was untimely set. Also pursuant to the parties' 2/7/19 stipulation, Plaintiff agreed to submit to an IME with Dr. Henry by 3/1/19. Plaintiff could elect to an examination date of 2/6/19 or 2/7/19. Non-expert discovery was otherwise cutoff. Defendant has not made a motion to...

Excerpt: ...e motion for 5/13/19. The court advanced the hearing date and continued it to 5/30/19. The court also continued trial from 5/20/19 to 8/20/19. The expert discovery cutoff dates only for Drs. Giancobetti and Forman and the depositions of Plaintiff and Defendant Charles Lofgren were to be based on the new trial date. See Minute Order of 4/11/19. The court subsequently continued the hearing on this motion to this date. The court can exclude the expe...

Excerpt: ...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. Civ Code § 3294(a). Oppressive conduct is defined as “d...

Excerpt: ...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 The complaint is superseded by the First Amended Complaint (FAC) filed on 3/26/19.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 challenges to th...

Excerpt: ...§ 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 disregard of...

Excerpt: ...072, 1082; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640. Gross negligence is defined as “an extreme departure from the ordinary standard of conduct” or a “want of even scant care.” City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754. The 2 nd cause of action for gross negligence fails to state a cause of action. To support this claim, Plaintiff incorporates facts previously alleged. Plaintiff alleges ...

Excerpt: ... 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. Defendant acknowledges that this includes physical rehabilitatio...

Excerpt: ...; (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.” Cal Rules of Court 2.550(d). Court records are presumed to be open. Cal Rules of Court 2.550(d). The burden is on the moving party to show compelling r...

Excerpt: ...ement at Berth 10, near row 26 and 210 of the Long Beach Container Terminal (“Terminal”). UF 1 – 3. It is undisputed that before she fell, an employee of the Terminal instructed another employee to take a metal plate and try to cover the cutout. UF 5. The plate did not fit and was no help in fixing the cutout, but it was there at the time of the incident. UF 6. On 3/28/11, Doreck contracted with Manson to complete the installation of the wa...

Excerpt: ...noli answered. On March 29, 2019, Spagnoli filed the instant motion for leave to file a cross-complaint. The motion is unopposed. Cal. Code Civil Procedure §428.10 provides that a party against whom a cause of action has been asserted may file a cross-complaint setting forth: “(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserte...

Excerpt: ...gment on Plaintiff's negligence claim. Cal. Code Civil Procedure § 437c(a)(1). Motion for Summary Adjudication, by Plaintiff Garo Mardirossian The complaint alleges that on June 12, 2015, Plaintiff was involved in an automobile collision with Defendant Hernan Hernandez Godinez (“Godinez”). Plaintiff brings this action against Defendant and his employers J. Ginger Masonry and Masonry Gen Par, Inc. (collectively “Defendants”) under a theor...

Excerpt: ...embers 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. “'The standard o...

Excerpt: ...0 require leave of court and are governed by Cal. Code Civil Procedure §2032.310. Cal. Code Civil Procedure § 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. The Shapira court issued a writ requiring the trial court to determine whether there was good cause for the second examination, noting other cases which upheld the right to multiple ...

Excerpt: ...rate statement or for exceeding page limitations. The issues raised by the Defendant are clear and sufficient for Plaintiff to file an opposition. Plaintiff does not claim any prejudice resulting from these procedural defects. Defendant is entitled to obtain discovery by means of a physical or mental examination. Cal. Code Civil Procedure § 2032.020. Mental examinations and those exams other than that described under Section 2032.220 require lea...

Excerpt: ...: on 4/7/17, Plaintiff filed a complaint asserting claims for negligence and premises liability. UF 1-2. Plaintiff alleges that she suffered an eye injury while walking on property of the Sunland-Tujunga Community Seventh-Day Adventist Church (“the Church”). UF 1, 4. The Conference answered the complaint on behalf of the Church. UF 3. On 2/22/19, the court issued an order deeming admitted Plaintiff's responses to Defendant's Requests for Admi...

Excerpt: ...in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.) The motion is not procedurally defective. The reference to the F...

Excerpt: ...ship at the Defendants' fitness club. UF 1-2. Plaintiff does not dispute the existence and language of the Waiver of Liability contained in the Agreement. UF 3-4. Plaintiff's arguments and evidence do not dispute these material facts. On 11/28/16, Plaintiff took a group fitness class as part of her membership. UF 5. This was a type of class that she regularly attended. UF 6. The class was a strength and cardio class that commonly used weighted du...

Excerpt: ...tion 2:1-5. Any party may obtain discovery by way of a physical examination. Cal. Code Civil Procedure § 2032.020. Defendants can move for an order compelling response and compliance with the demand. Cal. Code Civil Procedure § 2032.240. The parties are entitled to complete discovery proceedings on or before the 30 th day before trial. <00030057004b004c005600 00030053005500480056>ently set for 5/30/19. Plaintiff admits that Defendant served the...

Excerpt: ... judgment in its favor. Cal. Code Civil Procedure § 1030. The intent of the statute is to prevent out-of-state residents from filing frivolous <008e01e400030004009200 0374037901e100030375>31. 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 evidenc...

Excerpt: ...t their truth, the Plaintiff's ability to prove them, or the possible difficulty in making such proof. Saunders at 840. Statutory grounds for demur include a failure to state a cause of action and uncertainty. Cal. Code Civ. Proc. § 430.10. The complaint alleges a claim for Unfair Business Practices as a 3rd cause of action. To support the claim, Plaintiff must allege with particularity, the facts supporting the statutory elements of the violati...

Excerpt: ...r or impede that person's ability to protect the interest. Cal. Code Civ. Proc., § 387(d)(1). 2. Intervenor has an interest 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 t...

Excerpt: ...ted 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 would not have sex with either man. UF 16. Plaintiff proceeded to have sex with the first man. UF 1...

Excerpt: ...d 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 professional and whether the conduct was a substantial factor in ...

Excerpt: ...Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 35. To support issuance of sanctions, there must be a willful failure to comply with a court <01e4000303750086000303 > Sanctions are warranted where there is a willful refusal to comply with a valid discovery <01e4000303750086000303 > There is no dispute that Plaintiff did appear for the 4/10/19 examination as ordered by the court. Declaration of Josh...

Excerpt: ...onal 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 professional is a matter pecu...

Excerpt: ...der appointing a Guardian ad Litem was rejected on 5/2/19. Petitioner was ordered to resubmit the application. 2. With respect to the Medi-Cal Lien, Petitioner is required to give notice of the claim to the State Director of Health Care Services or explain why notice has not been given. See ¶ 13.b.(4). Counsel submitted a letter from Medi-Cal acknowledging Elijah's claim and asking for additional information. See Status Report filed 4/8/19. The ...

Excerpt: ... a cause of action. Cal. Code Civil Procedure § (c)(1)(B). Grounds for the motion must appear on the face of the pleading or from matters subject <021a000303760375037a01 e4> On 11/26/18, Defendant, Sheila Jackson, filed an “Answer Counterclaim” in response to the Complaint. Counterclaims have been abolished in California. The court deems the “counterclaim” as a cross-complaint. Cal. Code Civil Procedure § 428.80 A cross-complaint must c...

Excerpt: ... proper service of the subpoena. Plaintiffs reiterate in their reply brief that at the time they served the witness with the Notice of Taking Deposition on 2/20/19 for deposition scheduled for 3/11/19, Defendant allegedly knew Mr. Arevalo would be retiring and did not condition acceptance of the Notice of Taking Deposition on the witness' retirement being extended.” Reply, 3:27 – 4:3. There is no evidence of Defendant's prior knowledge or bad...

Excerpt: ...y objections but rather are objections to the separate statement. Evidentiary objections are required to be filed separately, it must quote the objectionable statement, and must comply with one the formats set forth in Cal Rules of Court 3.1354. Defendant's objections to the Declaration of Andrew Geller, M.D. (Plaintiff's expert) All objections are SUSTAINED. Dr. Geller's opinions are speculative and lack foundation. Dr. Geller opines that the Ho...

Excerpt: ...ode 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 ev...

Excerpt: ...ers 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. Hanson v. Grode (1999...

Excerpt: ... the third cause of action for negligence per se are rendered moot. The court's file reflects that Plaintiff dismissed these claims on 4/29/19. Plaintiff also states it is not pursuing a theory that Defendants' negligence is presumed. Opposition, 6:5. Accordingly, Issues 5, 6, 7, are no longer within the scope of the motion. The undisputed facts establish the following: Plaintiff does not dispute that he worked for Defendants and was injured on 1...

Excerpt: ...ntitled to obtain discovery by means of a physical or mental examination. Cal. Code Civil Procedure § 2032.020. There is no dispute that Plaintiff has already submitted to an Independent Medical Examination with an orthopedist, Jacob Tauber. M.D., on 7/18/18. Declaration of Haiyan Allen Li, ¶ 2. Dr. Tauber opined that there was no connection between Plaintiff's complaints and the subject accident. Motion, Ex. A. Leave of court is required for �...

Excerpt: ...v. 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. Plaintiff's objections to the Declaration of Athleo Cambre, Jr., M.D. (Defendants' expert) #9. Overrule #10. Overrule. #12. Ove...

Excerpt: ... 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 (1...

Excerpt: ...o prevent prejudicing the party's interest in the litigation.” Cal Code Civil Procedure §36(a). Plaintiff's counsel has supported the motion with a declaration attesting that all essential parties have been served. Code Civ. Proc., § 36(c), Declaration of Elvis Tran, ¶ 2. Here, Plaintiff submits her own declaration under penalty of perjury attesting to her age. This is admissible based on the same guidelines cited by Defendant. Claims fo...

Excerpt: ...spute 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 conditio...

Excerpt: ...e subject property. UF 1. Plaintiff claims he was assaulted by Defendants' employees while inside of Defendants' premises. UF 2. ADD owned the subject property on the date of the accident but did not occupy or control the property at that time. UF 4. Defendant did not have any employees, representatives, or agents present on the property at the time of the accident. UF 5. The property was occupied and controlled by Nalby Mamkagh on 10/6/15 to who...

Excerpt: ... party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: *** (15) That the deposition be sealed and thereafter opened only on order of the court. CRC 2.551(a) provides, as follows: “A record must not be filed under seal without a court order. The court must not...

Excerpt: ... the statute is to require bifurcation of the punitive 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 i...

Excerpt: ...ectively “Plaintiffs”), pursuant to C.C.P. §§435 and 436. Civil Code §3294 provides, in pertinent part, as follows: a. In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant....

Excerpt: ...liability) causes of action in the complaint of Plaintiff Rosa Elvira Quintero (“Plaintiff”). Defendants argue Plaintiff failed to allege sufficient facts to constitute the causes of action. (See C.C.P. §430.10(e).) As a preliminary matter, Plaintiff argues Defendants' demurrer is untimely under C.C.P. §430.40(a). (Opposition, pg. 3.) However, the Court has discretion to entertain the demurrer. (See McAllister v. County of Monterey (2007) 1...

Excerpt: ...ological examination. “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. Plaintiff's discovery responses disclose that she attributes emotional injuries to the alleged conduct, which places her mental state in controversy. Mot...

Excerpt: ... consolidate this case and BC706264 as they arise out of the same motor vehicle accident that occurred on February 14, 2017 on the 710 North Freeway. Plaintiff was driving the car that was allegedly struck, and the plaintiff in BC706264 was the passenger in Plaintiff's car. Additionally, Defendants in this case are the same defendants in BC706264. The cases were related on October 22, 2018. Analysis Legal Standard Code of Civil Procedure section ...

Excerpt: ...“All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.”).) The Court thus declines to rule on this evidentiary objection. (See Hodjat v. State Farm Mutual Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7-9 (finding that the trial court did not abuse its discretion in refusing to rule on the plaintiff's evidentiary objections made in plaintiff's separate statement, ...

Excerpt: ...scope 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 ...

Excerpt: ...her 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. Hanson v. Gro...

Excerpt: ...e made at any time either prior to the trial or at the trial itself. [Citation.]'” Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650. Defendant did not comply with Cal Code Civil Procedure § 438 requiring a declaration demonstrating the parties' efforts to meet and confer. Code Civ. Proc., § 439(a)(3). Plaintiff agrees to conditionally waive the procedural defects. Accordingly, the substantive issues are addressed. Opposition, 2:22. 2. Motion...