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: ...�) 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: ... 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: ...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: ...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: ... 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: ... 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: ...) 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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...