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 The complaint is superseded by the First Amended Complaint (FAC) filed on 3/26/19.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