Excerpt: ...dure § 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 disrega...

Excerpt: ... Healthcare Center in Van Nuys toward her car, which was parked in the Center's parking lot. UF 13. Plaintiff tripped and fell on Cohasset St on at around 1:00 to 1:30 in the afternoon. UF 15. There was nothing concealing the area where her foot was caught under the cement such as debris or leaves. UF 18. Plaintiff tripped and fell on an uplifted portion of the sidewalk. UF 19. Plaintiff alleges a single cause of action against the City of Los An...

Excerpt: ...tion of Plaintiff's complaint is DENIED as to whether Citigroup owed Plaintiff a duty is a triable issue of fact. Fact 3. Adjudication of Issues 1-4 are DENIED. The undisputed facts establish that the action arises from Plaintiff's claim that on 8/22/15, she tripped on the sidewalk leading up to a Citibank located at 17801 Colima Road in the City of Industry. UF 1. Plaintiff alleges she fell due to a dangerous condition and that Defendants failed...

Excerpt: ...dispute 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 condit...

Excerpt: ...erest 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 to allow the insurer to protect its interests in the litigation. Here without the insured, State Farm is not able litigat...

Excerpt: ...n for summary adjudication as to the 4 th cause of action for Sexual Assault GRANTED. The undisputed 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 wo...

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 ap...

Excerpt: ... 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 California Constitution. Vinson v. Superior Court (1987) 43 Cal.3d 833, 839. Where privacy rights are implicated, Defendant has to show that the ...

Excerpt: ...815. Plaintiff must allege “detailed and specific” facts to support the elements of statute that is the basis for the claim. Mittenhuber v. City of Redondo Beach, (1983) 142 Cal. App. 3d 1; Green v. Grimes-Stassforth Stationery Co., (1940) 39 Cal. App. 2d 52, 56. The complaint has to identify the statute. Searcy v. Hemet Unified School Dist. (1986) 177 Cal. App. 3d 792, 802. The fact that Doe Defendants may be liable for premises liability is...

Excerpt: ...v. Proc. § 877.6(d). The opposing party must demonstrate bad faith -- that the settlement is “out of the ballpark in relation to [the] factors as to be inconsistent with the equitable objectives of the statute.” Tech-Bilt Inc. v. Woodward Clyde Associates (1985) 38 Cal.3d 488, 501;City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261-1262. The court considers a number of factors to determine whether settlement was made i...

Excerpt: ... Code 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 ...

Excerpt: ...he 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 ...

Excerpt: ...ve 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 is appropriate in cases where the “liability issue ...

Excerpt: ...eopen discovery are Defendant's diligence or lack of diligence in seeking discovery, the likelihood that permitting discovery will prevent the case from going to trial, and resulting prejudice to the Plaintiff, among other things. Cal. Code Civil Procedure § 2024.050. Defendant has demonstrated due diligence in seeking all relevant health care and billing information from Plaintiff but was not provided with complete information despite that dili...

Excerpt: ... prevent out-of-state residents from filing frivolous lawsuits. Yao v. Superior Court(2002) 104 Cal. App. 4th 327, 331. 2. 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 evidence.”A. Farber and Partners, Inc. v. Garber (C.D. Cal. 2006) 417 F.Sup...

Excerpt: ...s a resident of Texas as Defendants assert. Motion 4:13. However, the second prong of the statute requires that Defendants establish that it is “reasonably possible” that they will obtain a judgment. The motion must be supported by “competent evidence.”A. Farber and Partners, Inc. v. Garber (C.D. Cal. 2006) 417 F.Supp.2d 1143, 1147. The moving party must present the “best evidence available” to divine the possible outcome. Shannon v. ...

Excerpt: ...limitations applies if the alleged wrongful conduct constitutes “professional negligence,” which is defined as “a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction impose...

Excerpt: ...t served by certified mail. Bell Jar subsequently personally served the Application on 4/3/19 in compliance with CCP sec 877.6(a)(2). 3F has not shown any prejudice resulting from the defective notice of Bell Jar's first Application for Determination of Good Faith Settlement. 3F was able to file and serve its motion contesting the settlement. A showing of prejudice arising from defective notice is required. Reedy v. Bussell (2007) 148 Cal. App. 4...

Excerpt: ...o Reconsider under CCP 1008 requires that the motion be made 10 days from the order and that the motion be based on new or different facts, circumstances, or law. The motion is timely made, but Plaintiff has not shown new or different facts, circumstances or law that warrant reconsideration. Plaintiff's counsel claims the Defendant's deemed admitted motion should be denied in full because Plaintiff's counsel believes the responses were co...

Excerpt: ... triable issue of one or more material facts. Cal. Code Civ. Proc. § 437c(p)(1). The court strictly construes the moving party's facts and liberally construes the opposing party's facts. All doubts are resolved in favor of the opposing party. Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal. 2d 412, 417. Evidentiary objections Pursuant to Cal. Code Civil Procedure § 437c(q), when the court grants or denies a motion for summary judgment ...

Excerpt: ...he policy that cases be tried on their merits. Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 898. Cal. Code Civil Procedure § § 473(b) and 473.5 require that the moving party submit a copy of the answer with the motion. Defendant has complied with that requirement by submitting the proposed answer with the Reply brief. Plaintiff bears the burden of proving that service was properly accomplished. Ziller Electronics Lab Gmbh v. Superior Court(19...

Excerpt: ...ber, as Defendant's designated orthopedic expert given Dr. Tauber's recent plea to criminal charges. To grant the motion, the court must find that Defendant would not in the exercise of reasonable diligence have determined to call that expert or, establish that the failure to call that expert was due to mistake, inadvertence, surprise, or excusable neglect. Cal. Code Civil Procedure § 2034.620(c). Defendant states that it designated Dr. Tauber a...

Excerpt: ...n to continue trial to 6/5/19. Defendant's evidentiary objections to the Declaration of Richard A. Massey, M.D. #1. Sustain. #2. Overrule. #3, #4. Overrule. #5. Overrule. #6. Overrule. Analysis The complaint alleges that on that on 4/30/15, Defendants negligent failed to properly diagnose and treat Plaintiff's basal cell cancer, resulting in delayed treatment. There is no dispute that Plaintiff consulted with Defendant, Dr. Trail, on 4/30/15, for...

Excerpt: ...elies on cases that are inapposite. FPI Development, Inc. v. Nakashima (1993) 231 Cal. App. 3d 367 involved a summary judgment motion, and whether or not affirmative defenses raised in the answer sufficiently placed facts at issue for purposes of the motion. The facts which are material are limited by the allegations of the pleading. FPI at 381. Since the affirmative defenses raised in FPI were not fact specific, the court found no facts were pla...

Excerpt: ...'s grocery store, across from the dairy section, 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. Plaintiff's objections. The Court declines to rule on Plaintiff's objections which are objections to the Defendant's Separate Statement, not particular evidence. Premises liability is a form of negligence, which involves the duty of a premises owner to exercise...

Excerpt: ...hat time, no other Defendant had appeared in the case. The only adverse party was Plaintiff. On 3/15/19, Defendant Group Rossignol USA, Inc. filed its answer, after this motion was filed. On 3/22/19, that Defendant filed a notice of non-opposition to the motion. William Duehring has not filed an answer. Plaintiff filed the action in the wrong county. Personal injury actions arising from negligence are required to be filed where the injury occurs ...

Excerpt: ...ctors to be considered are Defendants' diligence or lack of diligence in seeking discovery, the likelihood that permitting discovery will prevent the case from going to trial, and resulting prejudice to any other party, among other things. Cal. Code Civil Procedure § 2024.050. The Court's file and the evidence reveal the following. 8/14/18 Trial is set for 1/30/19 11/9/18 Defendant serves notice of IME set for 12/14/18. Motion, Ex. A 12/7/18 Pla...

Excerpt: ...o Reconsider under CCP 1008 requires that the motion be made 10 days from the order and that the motion be based on new or different facts, circumstances, or law. The motion is timely made, but Plaintiff has not shown new or different facts, circumstances or law that warrant reconsideration. Plaintiff's counsel claims the Defendant's deemed admitted motion should be denied in full because Plaintiff's counsel believes the responses were co...

Excerpt: ...nt. The parties do not dispute that Plaintiff fell while walking on a sidewalk UF 1. After falling she got up and continued her walk to the dentist office. UF 6. Plaintiff and her husband did take a photograph of the sidewalk where she fell. UF 9. The lift on the sidewalk is over one inch at its highest point. UF 10, 18. Plaintiff testified that her toe caught on the lift. UF 11. This is established by Plaintiff's deposition testimony. Applicable...

Excerpt: .... Rosenberg's probate proceeding until 3/20/19, which is after Plaintiff filed this motion. Declaration of Kevin Place, ¶ 11. According to the order provided by Mr. Place, Ms. Rosenberg will be examined, not as to her testamentary capacity but her capacity to act as Trustee and to retain counsel. Opposition, Ex. 1. The order does not indicate that the Court will determine whether a Guardian ad Litem will be appointed. There is no evidence that s...

Excerpt: ...cope 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 P...

Excerpt: ...91000300 03730378000300850091>urt days of notice increased by five calendar days to account for service by mail (April 1, 2019 is a court holiday, and therefore not a “court day.”) Cal Code Civil Procedure § 1005(b). Defendants served the motion on 3/6/19. However, defective notice can be waived. The purpose of the notice period is to allow the other party to file an opposition. If an opposition is filed and no prejudice is shown, then the p...

Excerpt: ... evidence can be considered abuse of the discovery process. Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal. 4th 1, 12. Plaintiff's reliance on Williams v. Russ (2008) 167 Cal. App. 4th 1215 is misplaced. In that case, the Court found that Plaintiff intentionally destroyed evidence. Williams v. Russ (2008) 167 Cal.App.4th 1215, 1227 There is no evidence of intentional spoliation. The manager of the restaurant, Xiangyi Lin, testified t...

Excerpt: ....m. on 12/6/16, Ms. Dunnett was traveling home from SEIU's office on Lincoln Avenue in Pasadena. UF 9. At the same time, Plaintiff was walking westbound on in the crosswalk on Mountain Street. Ms. Dunnett made a left turn and struck Plaintiff with the right side mirror of her vehicle. UF 9. Plaintiff asserts causes of action for general negligence and motor vehicle negligence. UF 1. At the time of the incident, Ms. Dunnett was employed as SEIU's ...

Excerpt: ...ndants, Phillip Cabasso, M.D. and Phillips J. Cabasso, M.D. A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication that was denied, unless the party establishes newly discovered facts or circumstances or a change of law supporting the issues reasserted. Cal. Code Civil Procedure § 437c(f)(2). First, Dr. Chawla is not bringing a motion for summary judgment. He seeks adjudication of one issu...

Excerpt: ...ions to Plaintiff's material facts in opposition and to Plaintiff's Separate Statement of Facts are disregarded as they are not objections to particular evidence, but rather Plaintiff's characterization of the facts. SeeObjections, 7:5 – 23-17. The undisputed material facts establish the following: Plaintiff, Estafany Martinez, was 19-years old when she was transferred to Cedars-Sinai Medical Center from St. John's in the early morning hours of...

Excerpt: ...iff 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). Oppressive conduct is defi...

Excerpt: ...iff 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). Oppressive conduct is defi...

Excerpt: ...cusable neglect. Cal. Code Civil Procedure § 2034.620(c). Fardad Mobin, M.D. On 2/21/19, the Court denied Plaintiff's motion to augment his expert witness designation by adding Fardad Mobin, M.D. Plaintiff again asks for the same relief by way of this ex parte application brought on 3/13/19, essentially arguing that Defendant will not suffer any prejudice. Plaintiff did not submit a declaration to support the requested relief. As with Plaintiff'...

Excerpt: ...ent prejudicing the party's interest in the litigation.” Cal Code Civil 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. Cal. Code Civil Procedure § 36.5 Plaintiff submits a letter from her physician describing her numerous medical conditions and a declaration from Plaintiff's daughter desc...

Excerpt: ...However, the only basis for summary judgment raised in the moving papers was that Plaintiff was not actually ignorant of Defendant Mr. Hah's identity at the time the original complaint was filed within the meaning of Cal Code Civil Procedure § 474. Plaintiff has not had sufficient notice of or opportunity to respond to this new argument. Points raised for the first time in the reply brief will not be considered as it deprives the respondent of t...

Excerpt: .... Leave to amend should be given if there is a reasonable possibility that the defect can be cured. Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal. App. 4th 298, 302. Claims against a public entity must be based on statute unless expressly excepted. Gov Code § 815. The complaint does not allege a statutory basis for the causes of action against Defendant. Plaintiff must allege “detaile...

Excerpt: ...essa Alexander #1. Overruled. #2. Overruled. #3. Overruled. Declaration of Enrique Rivera, CXLT (Plaintiff's Safety, Human Factors, and Liability Expert) #1. Overruled. This general objection is not specific enough. #2. Sustained. #3. Overruled. #4. Overruled. #5. Sustained. #6. Overruled. The undisputed material facts establish the following: The incident occurred on Defendants' premises on 9/3/17, when Plaintiff fell in the breezeway of Defenda...

Excerpt: ...eed by way of noticed motion with respect to reopening discovery. That issue was not substantively decided. See Court's ruling of 12/18/19. Plaintiff has not shown any prejudice resulting from Defendant's failure to submit a separate statement with the Motion to Compel Plaintiff's IME. Its absence is not grounds for denial of the motion. The Court has discretion to reopen discovery. Among the factors to be considered are Defendant's diligence or ...

Excerpt: ...gnation is permitted given the hardship shown by Plaintiff's counsel's counsel. Declaration of H. Douglas Daniel. The Court can permit the untimely designation as there is sufficient time for the parties to complete expert discovery, since trial was continued to 6/27/19 by stipulation of the parties filed on 1/28/19. Cal. Code Civ. Proc. § 2034.710 Plaintiff's counsel attempted to get a stipulation from counsel but she refused. Declarati...

Excerpt: ...ative Complaint alleging the following causes of action against Walmart: (1) Negligence; (2) Premises Liability; (3) Negligent Hiring, Retention, and Supervision; (4) Negligent Infliction of Emotional Distress; (5) Intentional Infliction of Emotional Distress; (6) Loss of Consortium; and (7) Products Liability. Walmart filed the instant Demurrer to the third through seventh causes of action. Legal Standard A demurrer for sufficiency tests whether...

Excerpt: ...ative Complaint alleging the following causes of action against Walmart: (1) Negligence; (2) Premises Liability; (3) Negligent Hiring, Retention, and Supervision; (4) Negligent Infliction of Emotional Distress; (5) Intentional Infliction of Emotional Distress; (6) Loss of Consortium; and (7) Products Liability. Walmart filed the instant Demurrer to the third through seventh causes of action. Legal Standard A demurrer for sufficiency tests whether...

Excerpt: ...ontinued date of hearing, unless the court for good cause orders otherwise.” Cal. Code Civil Procdure§437c(b)(2). The hearing was originally scheduled for 2/22/19. Thus, the opposition was due on 2/8/19. Plaintiff allowed an extra week for service by serving the documents on 2/1/19 by mail. The Court declines to strike the opposition although Plaintiff did not comply with formatting requirements for the opposing separate statement which requir...

Excerpt: ...gerous condition. Plaintiff alleges that while she was volunteering at the Harbor Animal Care Center, operated, owned, and maintained by Defendant City of Los Angeles (“Defendant”) a German Shepard caused her injuries on June 19, 2018. On February 5, 2019, Defendant filed this instant demurrer to the Complaint. On February 19, 2019, Plaintiff filed an Opposition. Legal Standard A demurrer for sufficiency tests whether the complaint states a c...

Excerpt: ...n this case by 1/30/19. Plaintiff's opposition was filed late on 2/19/19, but Defendant has not shown any prejudice resulting from the late filing. Defendant served a Reply which has been 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 (1983) 146 Cal.App.3d 29, 32. Mann v. Crachiolo (1985) 38 Cal.3d 18, 30. Defendant has not shown that d...