Excerpt: ...pp.3d 29, 32. Mr. Russell has not demonstrated any prejudice resulting from the late filing. He has filed a reply which the court has considered. Personal service of the summons and complaint and related documents on the moving party was purportedly accomplished on 2/9/19 at 4735 Sepulveda Blvd PH410, Sherman Oaks Calif, 91403. Motion, Ex. A. Mr. Russell declares he did not live at the Sherman Oaks address on 2/9/19, nor has he conducted business...

Excerpt: ...vidence. Plaintiff must make a prima facie case for recovery of punitive damages if the evidence is credited. Looney v. Superior Court (1993) 16 Cal. App. 4th 521, 539 . Plaintiff must show that Defendant acted with malice, fraud or oppression to warrant recovery of punitive damages as those terms are defined by Civil Code § 3294. Malice “means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct wh...

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: ...Service, Inc. to Quash Service of the Summons and Complaint, filed on 2/21/18 is GRANTED as Plaintiffs have not met their burden of establishing that the court can exercise personal jurisdiction over Defendants. Defendants can move to quash service of the Summons and Complaint based on lack of jurisdiction. Cal Code Civ Proc § 418.10(a)(1). 3. Personal Jurisdiction a. The burden falls on Plaintiff to establish that all criteria for personal juri...

Excerpt: ...ants' Joinder asserts new arguments of which Plaintiff did not have notice nor an opportunity to Reply. 2. Leave to amend is permitted at the court's discretion upon any terms that may be just. Cal Code Civ Procedure § 473. The statute is liberally construed to permit amendment of the pleadings unless an attempt is made to present an “entirely different set of facts.” Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. If the motion is ti...

Excerpt: ...not dispute that the banana fell to the floor at 7:39 p.m., affirming without dispute that the condition existed for 12 minutes. UF 3. 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. Premises liability is a “spec...

Excerpt: ... Detail, (Exhibit D), Pursuant to Cal. Code Civ. 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. Cal. Code Civ. Proc. § 437c(q). Here, Defendants did not meet their threshold bu...

Excerpt: ...ant's challenge to the Plaintiff's cause of action.” Eriksson v. Nunnink, (2011) 191 Cal. App. 4th 826, 848. A party cannot raise new issues of materiality merely by submitting a Declaration in opposition to the summary judgment motion. Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223. Plaintiff argues that Defendants did not advise Plaintiff that the cataract surgery was elective and that it was not medically necessary if s...

Excerpt: ... and emotional distress “over and above that usually associated with the physical injuries claimed” and that an expert on mental and emotional distress will not be presented at trial. Cal Code Civil Procedure § 2032.320 (a), (c). Defendant has shown good cause for the neurological and neuropsychiatry examination since Plaintiff claims to have suffered traumatic brain injury, along with other neurological symptoms including, headaches, cognit...

Excerpt: ...Service, Inc. to Quash Service of the Summons and Complaint, filed on 2/21/18 is GRANTED as Plaintiffs have not met their burden of establishing that the court can exercise personal jurisdiction over Defendants. Defendants can move to quash service of the Summons and Complaint based on lack of jurisdiction. Cal Code Civ Proc § 418.10(a)(1). 3. Personal Jurisdiction a. The burden falls on Plaintiff to establish that all criteria for personal juri...

Excerpt: ... McClatchy v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 375. Plaintiff can amend the complaint to state the true name of a Doe Defendant under Cal Code Civ Procedure § 474.Austin v. Massachussetts Bonding (1961) 56 Cal.2d 596, 599. 1. The general rule provides that the Amendment to Complaint substituting Berkshire for Doe 1 does not relate back to the filing of the original complaint to avoid the 2-year statute of limitation...

Excerpt: ...claration of Frank Perez; Declaration of Humberto Ardon. 1. Plaintiff has shown good cause for a continuance given Plaintiff's condition has not stabilized, and he is currently receiving treatment for his left foot, which was injured in the subject accident. Ardon Declaration, ¶ 5-6. Accordingly, the case does not appear ready for trial given Plaintiff's still-evolving condition. Cal Rules of Court 3.1332. Trial is currently set for 9/25/18. Pla...

Excerpt: ...tify at her deposition, as Plaintiff's counsel offered future dates for the deposition when the prior depositions were cancelled. Plaintiff could not attend the 5/10/18 deposition because her disabled sister required emergency transport on 4/27/18 and required a 2-day stay in the hospital. Hofer Declaration ¶ 6. Plaintiff has been in Las Vegas to care for her sister since that time. Id. Defendant's counsel does not attest that he met and...

Excerpt: ...d of the dangers such misconduct would and did create for the rights and safety of the public, including Decedent and Plaintiffs. Plaintiffs are further informed and believe, and thereon allege, that for a substantial period of time prior to the SUBJECT INCIDENT, said Defendants acted with malice in that they engaged in despicable conduct in conscious disregard of the rights, safety, and welfare of Decedent Timothy Wise” Page 9, ¶ 23, line 20 ...

Excerpt: ...anski v. Von's (1983) 146 Cal.App.3d 29, 32. 2. Defendants are entitled to obtain discovery by means of a physical or mental examination. Cal Code Civil Procedure § 2032.020. Leave of court is required for mental or “other” exams. Cal Code Civil Procedure § 2032.310(a). 3. Defendants must show good cause for the examinations unless Plaintiff stipulates that he is not making a claim for mental and emotional distress “over and above that us...

Excerpt: ...il 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. The Supplemental Declaration of Patrick Gunning filed on 6/15/18 is sufficient to meet Plaintiff's burden of showing that Plaintiff's health is “such that that a preference is necessary to prevent prejudicing the party's interest in the lit...

Excerpt: ...ment an expert witness list if the party engaged in a timely exchange of expert witness information. Code Civ. Proc., § 2034.610 Defendant timely participated in the simultaneous exchange of expert witness information on the due date. Defendant's Motion, Ex. A. The motion may be made in a “sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of ...

Excerpt: ...ympic Chiropractic (“Olympic”) and Does 1 to 50 alleging causes of action for (1) professional negligence, (2) medical battery and (3) loss of consortium. The complaint alleges the following: 1) On February 27, 2017, plaintiff Ashley Lee went to Olympic for chiropractic treatment for her neck, shoulder and arm. (Complaint ¶¶ 8, 12); 2) Camarillo, who is a chiropractor and works at Olympic treated plaintiff Ashley Lee. (Id. ¶¶ 1 and 8, 12)...

Excerpt: ...ther 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 Defendant breached it, and the element of causation all require expert testimony.Landeros v. Flood (1976) 17 Cal.3d 399, 410; Jones v. Ortho Pharm....

Excerpt: ...Stores and 99 Cents Only Stores, LLC, alleging two causes of action for 1) premises liability, and 2) negligence. On April 19, 2018, Defendant 99 Cents Only Stores, LLC (“Defendant”) filed a demurrer and motion to strike portions of the Complaint. On May 19, 2018, Plaintiffs filed an opposition. On May 22, 2018, the Court continued the hearing on the motions to July 9, 2018 for lack of a meet and confer declaration. On May 23, 2018, the Court...

Excerpt: ...sary trial of damage questions.” Trickey v. Superior Court of Sacramento County (1967) 252 Cal. App. 2d 650, 653. The facts of the case must justify it. Foreman & Clark Corp. v. Fallon(1971) 3 Cal. 3d 875, 888, fn. 8. Here, Defendant has not persuasively shown that liability is clearly established in Defendant's favor or that a defense verdict is “likely.” Motion, 6:7-8. Even if Plaintiff was not in the crosswalk at the time of the incident...

Excerpt: ...sary trial of damage questions.” Trickey v. Superior Court of Sacramento County (1967) 252 Cal. App. 2d 650, 653. The facts of the case must justify it. Foreman & Clark Corp. v. Fallon(1971) 3 Cal. 3d 875, 888, fn. 8. Here, Defendant has not persuasively shown that liability is clearly established in Defendant's favor or that a defense verdict is “likely.” Motion, 6:7-8. Even if Plaintiff was not in the crosswalk at the time of the incident...

Excerpt: ...er Deeming the Truth of the Matters Specified in Requests for Admission, Set One Admitted and Request for Sanctions, filed on 4/30/18 is GRANTED. Cal Code Civ Procedure §2033.280(b). The court will deem the requests admitted unless, before the hearing on the motion, Plaintiff serves a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. Cal Code Civ Procedure § 2033.280(b). The court imposes t...

Excerpt: ...18/18 to permit Plaintiff to file a Reply brief. None has been filed. Plaintiff does not cite any other prejudice. 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. 1. The court can quash the subpoena or issue a protective order to protect the parties from unreasonable or oppressive demands including unreasonable violation...

Excerpt: ...n of showing that the expert possesses confidential information materially related to the proceedings before the court. If that showing is made, a rebuttable presumption arises that the information has been used or disclosed in current employment. DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 686. Plaintiff has met her burden of showing that Dr. Shuman possesses such confidential information. Defense counsel disclosed in a letter to ...

Excerpt: ... SP Plus Corporation or the City of Los Angeles. The Reply declaration of Peter P. Salomone establishes that while the proof of service of the opposition indicates service by mail and facsimile to the City of Los Angeles and moving party, SP Plus, Mr. Salomone declares he never received the opposition papers. Salomone Declaration, ¶5. Neither has the City of Attorney's office. Salomone Declaration ¶ 7, Ex. A. Consistent with this assertion is t...

Excerpt: ... of damage questions.” Trickey v. Superior Court of Sacramento County (1967) 252 Cal. App. 2d 650, 653. The facts of the case must justify it. Foreman & Clark Corp. v. Fallon(1971) 3 Cal. 3d 875, 888, fn. 8 (Cal. 1971). Here, Defendants facts on the liability issue do not support bifurcation given Plaintiff's evidence demonstrating that the defendant driver exceeded the speed limit. Opposition, Ex. 2, 24:12, 25:24-25, 26:16-22, 27:12-25. Additi...

Excerpt: ... whether Peggs owes a duty to defend by way of summary adjudication. Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 519. A motion for summary adjudication may properly be based on a determination of whether a duty is owed. Cal Code Civil Procedure § 437c(f)(1). 2. Peggs' objections to Superior's Evidence Declaration of Magda Prado-Isas (Manager of Facilities for Superior) #1. Overruled. #2-3. Sustained. 3. The undispute...

Excerpt: ...mbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232, 254 Cal.Rptr. 410).” International Ins. Co. v. Superior Court (Rhone‐ Poulenc Basic Chemicals Co.) (1998) 62 Cal.App.4th 784, 786. Motion by Defendants, Adil Aquita and Khadija Aquita, for Reconsideration of the Court's May 2, 2018 Order, filed on 5/15/18 is GRANTED. Under the circumstances, the court reconsiders its ruling of 5/2/18 deeming the Requests for Admission admitted. Defendant...

Excerpt: ...endants served a supplemental exchange on 4/27/18, Plaintiff did not. Motion, Ex. D. On 5/1/18, the parties submitted a stipulation to continue trial to 7/24/18. All discovery and motion cut-offs were to be based on the new trial date. The stipulation does not discuss expert-related deadlines. Opposition, Ex. D. On 5/7/18, the court issued an order to continue trial to 7/24/18. The order is silent on the continuance of any expert-related deadline...

Excerpt: ...Code Civil Procedure § 437c(p)(2). 1. The court has discretion to consider the Plaintiffs' opposition. While it was timely served on 5/30/18, Defendant did not receive it the next business day. Any prejudice to Defendant has been mitigated since the court continued the hearing from 6/13/18 since the court had not received the Opposition, which also had not been uploaded to the court's website in a timely manner. Defendant has been able to file a...

Excerpt: ...ull on the property. UF 1-2. About a month and a half later, Vera Gaertner moved into the apartment over the garage. UF 3. She was not allowed to have a dog, and did not have one for approximately two months. UF 4. There is no dispute that Defendants became aware of the presence of Gaertner's dog, Clutch, and told her to remove the dog. UF 5. Plaintiff does not dispute that Clutch never appeared to show any aggressive tendencies, only behaving ti...

Excerpt: ...owing elements: “(1) a duty 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 of the standard of care, whether Defendant breached it, and the element of causation all require expert...

Excerpt: ...s from unreasonable or oppressive demands including unreasonable violations of the right of privacy. Cal. Code Civ. Proc. §1987.1. 1. The parties do not appear to dispute production of the billing records pertaining to the treatment of Plaintiff by Olympia for injury relating to this action. Motion, Ex. A, Paragraph 1 of Attachment 3 to the subpoena. Olympia discloses it has already produced the UB-04 Claim Form and its itemized bill for the ser...

Excerpt: ...ions, but they are objections to the purported facts, not specific evidence. Evidentiary objections must be separately filed and must conform to one of two formats. The objections must quote the objectionable material. Cal Rules of Court 3.1354. 2. The undisputed facts establish the following: Plaintiffs filed a complaint for damages asserting medical negligence and loss of consortium against Mary <008b00960083008e01f302 00030013008e0083008b>ntif...

Excerpt: ...apitanski v. Von's (1983) 146 Cal.App.3d 29, 32. Defendant has not shown any prejudice resulting from the late Opposition. Defendant was able to file a Reply brief, which has been considered. Ordinarily, if there is any prejudice resulting therefrom, the court can continue the hearing, but Defendant does not ask for a continuance. Mann v. Crachiolo (1985) 38 Cal.3d 18, 30. 3. The Motion for Transfer of Venue by Defendant, Signature Painting and C...

Excerpt: ... from unreasonable or oppressive demands including unreasonable violations of the right of privacy. Cal. Code Civ. Proc. §1987.1. 1. The parties do not appear to dispute production of the billing records pertaining to the treatment of Plaintiff by Olympia for injury relating to this action. Motion, Ex. A, Paragraph 1 of Attachment 3 to the subpoena. Olympia discloses it has already produced the UB-04 Claim Form and its itemized bill for the serv...

Excerpt: ...icial Notice, Ex. 1. Defendants do not dispute the Plaintiff's age. Preference is mandatory under Cal. Code Civ. Proc. § 36(b) under these circumstances. Cal. Code Civ. Proc. §36(b). Accordingly the court is to set trial for no sooner than six months and no later than nine months from the date the motion is granted, Cal. Code Civ. Proc. § 36(g). Nine months from the date of this motion hearing is Friday, April 12, 2019. Moving party is ordered...

Excerpt: ...ions, but they are objections to the purported facts, not specific evidence. Evidentiary objections must be separately filed and must conform to one of two formats. The objections must quote the objectionable material. Cal Rules of Court 3.1354. 2. The undisputed facts establish the following: Plaintiffs filed a complaint for damages asserting medical negligence and loss of consortium against Mary <008b00960083008e01f302 00030013008e0083008b>ntif...

Excerpt: ...s 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. Defendant challenges the second and third elements. Proof of the standard of care, whether Defendant breached it, and the element of causation all require expert testimony.Landeros v....

Excerpt: ...#5-6 Overruled. b. Defendant's objections to evidence Declaration of Brad Avrit #1 and #2. Overruled. #3. Overruled. #4-5 Sustained. #6. Sustained. #7-8. Overruled. #9. Overruled. #10-11. Overruled #12. Sustained. #13-16. Overruled. 2. Defendant's duty as a store owner includes an obligation to make reasonable inspections of the property. Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431. a. Notice of the condition is require...

Excerpt: ...1, 2. In support of the first cause of action for negligence, Plaintiff specifically alleges that Defendant, Hubbell, Inc. (“Hubbell”) negligently repaired, remodeled, installed, and modified the area at the Club so as to cause the floor boxes to be installed where invitees would traverse. UF 6. In support of the 2 nd cause of action for products liability, Plaintiff alleges that Defendant failed to warn purchasers, installers, and end users ...