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

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: ...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...