Excerpt: ... for $197,500 following extensive arms‐length settlement discussions. Declaration of Alexandra Rambis, ¶ 10. The burden of establishing that a settlement was not made in good faith falls on the contesting party, Arnie Morton's of Chicago/Figueroa, LLC (“Morton's”). Cal. Code Civ. Proc. § 877.6(d). L. C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 748. The settling party need only demonstrate that a settlement has been ma...

Excerpt: ...d 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. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. If the motion is timely made, and the granting of the motion will not result in prejudice to the opposing party, it is error to refuse permission to amend. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal...

Excerpt: ...n v. Elk Corp. (2003) 109 Cal.App.4th 739, 760. If the motion is timely made, and the granting of the motion will not result in prejudice to the opposing party, it is error to refuse permission to amend. Morgan v. Superior Court of Los Angeles County (1959) 172 Cal. App. 2d 527, 530. Defendant argues that the motion is procedurally defective because it was not accompanied by the declaration required by California Rules of Court Rule 3.1324. That ...

Excerpt: ...elevant 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 disclosed in discovery that she suffered traumatic brain injury and concussion as a result of the incident. She claims to have suffered personality changes including increased irritability. Motion, Ex. A. 8:19‐21. She continues to suffer from heightened irritability,...

Excerpt: ...e physician who had treated Decedent prior to his death. Plaintiffs assert a claim for wrongful death based on the alleged medical negligence. Dr. Lyn moves for summary judgment, claiming that the undisputed evidence establishes that his treatment complied with the applicable standard of care and that no negligent act or omission caused or contributed to Plaintiff's death. To make out a claim for medical negligence, a plaintiff must establish the...

Excerpt: ...ges two causes of action: (1) medical malpractice for an alleged breach of the standard of care during surgery that caused physical injuries; and (2) intentional infliction of emotional distress based on statements that Defendant allegedly made during the consultation for the surgery. Defendant has demurred to the second cause of action. The conduct that forms the basis for the intentional infliction of emotional distress claim is alleged in para...

Excerpt: ...jointly incurred on behalf of both defendants. The recovery of costs is purely statutory. Davis v. KGO‐T.V., Inc. (1998) 17 Cal.4th 436, 439, disapproved on other grounds in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97, 107. Under section 1032, subdivision (b), the prevailing party in litigation is entitled to recover enumerated costs as a matter of right. Goodman v. Lozano (2010) 47 Cal.4th 1327, 1333. The pertinent lim...

Excerpt: ... Procedure § 1281.2 The moving party's burden is to establish that a valid arbitration agreement exists. The opposing party's burden is to establish a defense to enforcement based on a preponderance of evidence. Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal. App. 4th 696, 705. Uninsured motorist proceedings are required to be arbitrated pursuant to Ins. Code §11580.2. Chrisman v. Superior Court (1987) 191 Cal.App.3d ...

Excerpt: ...h 1033, 1042. The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. Id. “Malice” is defined in section 3294(c)(1) in relevant part as “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person...

Excerpt: ...basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. Id. “Malice” is defined in section 3294(c)(1) in relevant part as “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unju...

Excerpt: ...arbitration agreement exists. The opposing party's burden is to establish a defense to enforcement based on a preponderance of evidence. Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal. App. 4th 696, 705. Uninsured motorist proceedings are required to be arbitrated pursuant to Ins. Code § 11580.2; Chrisman v. Superior Court (1987) 191 Cal.App.3d 1465, 1467. There is no dispute with respect to the propriety of arbitratio...

Excerpt: ... identified any specific mental injuries in her interrogatory responses, and her counsel represents in connection with this motion that she is seeking only “garden variety emotional distress” and “has not and is not seeking damages for any mental injury.” Defendants have served a subpoena on the Resnick Neuropsychiatric Hospital, where Plaintiff has obtained psychiatric treatment, seeking “any and all” medical records and documentatio...

Excerpt: ...identified any specific mental injuries in her interrogatory responses, and her counsel represents in connection with this motion that she is seeking only “garden variety emotional distress” and “has not and is not seeking damages for any mental injury.” Defendants have served a subpoena on the Resnick Neuropsychiatric Hospital, where Plaintiff has obtained psychiatric treatment, seeking “any and all” medical records and documentation...

Excerpt: ...Glendale (“City”), alleging a claim for dangerous condition of public property. Ms. Kennedy's domestic partner, Plaintiff Carolyn Dyer, asserts a claim for loss of consortium. The City moves for summary judgment, claiming that it is entitled to absolute immunity under Government Code section 831.2. EVIDENCE The City relies primarily on a declaration of the Assistant Director of Public Works, Daniel Hardgrove. According to Mr. Hardgrove, there...

Excerpt: ...issal without prejudice against Defendant Sixt Rent‐a‐Car. Plaintiff did not object to the request for dismissal prior to the date scheduled for the hearing, or otherwise ask the Court to keep the hearing on the summary judgment motion on calendar. On September 10, 2019, the Court advanced and vacated the hearing on summary judgment motion. Sixt did not object to the vacation of date for the hearing on the summary judgment motion. In the pres...

Excerpt: ...ing an additional motion that complies with this requirement. ANALYSIS Upon a showing of good cause, Defendants are entitled to an order that Plaintiff undergo a mental examination, or an examination other than that described in Article 2, commencing with Cal Code Civil Procedure § 2032.210 [a physical examination that does not include any diagnostic test or procedure that is painful, protracted, or intrusive and that is conducted within 75 mile...

Excerpt: ...oscopy on Plaintiff. During the procedure his colon was perforated, which required emergency surgical intervention to repair and a lengthy hospitalization. Plaintiff further alleges that he subsequently developed supraventricular tachycardia. Plaintiff asserts a single cause of action for negligence, claiming that Defendant Wu's treatment fell below the standard of care. Dr. Wu has moved for summary judgment, claiming that the undisputed evidence...

Excerpt: ...oscopy on Plaintiff. During the procedure his colon was perforated, which required emergency surgical intervention to repair and a lengthy hospitalization. Plaintiff further alleges that he subsequently developed supraventricular tachycardia. Plaintiff asserts a single cause of action for negligence, claiming that Defendant Wu's treatment fell below the standard of care. Dr. Wu has moved for summary judgment, claiming that the undisputed evidence...

Excerpt: ...trike must be based on matters that appear on the face of the pleading or matters for which the Court is required to take judicial notice. Code Civ. Proc. 437(a). The Court is required to accept the allegations in the Complaint as true, and extraneous materials may not be considered. Here, the Complaint adequately alleges a basis for prejudgment interest. Section 3288 “permits discretionary prejudgment interest for unliquidated tort claims” t...

Excerpt: ...nc., (“Event Eleven”) an event planning company. Plaintiff asserts claims for premises liability and negligence against Event Eleven, Chateau Property Holdings, LLC dba Chateau Marmont (“Chateau Marmont” or “Hotel”), and other defendants related to Chateau Marmont. Event Eleven moves for summary judgment, claiming that it lacked ownership and control over the property and lacked actual or constructive knowledge over the dangerous cond...

Excerpt: ...t he contends are “false” or a “sham.” Defendant relies on extrinsic evidence in support of his contention that the facts are false, specifically a declaration by a physician regarding Defendant's medical condition. Code of Civil Procedure section 437 expressly provides: “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” CC...

Excerpt: ...l may not attend the examination. The parties are ordered to meet and confer regarding the precise tests to be administered and the date for the examination. A party may obtain discovery by means of a mental examination of another party in any action in which the mental condition of the party is “in controversy” in the action CCP 2032.020. A party must obtain leave of court for a mental examination, which the Court must grant for good cause s...

Excerpt: ...efendants should have performed an open reduction and internal fixation to stabilize the fracture, which they did not do. Plaintiff alleges one cause of action for medical negligence. Defendant Rose has moved for summary judgment. Plaintiff has not opposed the motion. To support a claim for medical malpractice, Plaintiffs must establish the following elements: “'(1) the duty of the professional to use such skill, prudence, and diligence as othe...

Excerpt: ...gs knew or should that the vehicle was defective and knew or should have known that Humphrey was unfit to drive defendant's vehicle and was a danger to the public. The Complaint purports to state four causes of action against EAN Holdings: (1) motor vehicle negligence; (2) negligent maintenance; (3) negligent entrustment; (4) reckless misconduct/ gross negligence under Civil Code section 1714; and (5) negligence. EAN Holdings demurs to the fourth...

Excerpt: ...who was allegedly injured while jumping on a trampoline at a facility owned and operated by Defendants. Defendants have produced a copy of a Participation Agreement that Defendants contend was digitally completed. The agreement includes a “signature certificate” that purports to indicate that Plaintiff Shay Aldandari, Mia's father, was the “signing party” who “digitally agreed” to the agreement. The Participation Agreement includes an...

Excerpt: ... Plaintiff to undergo emergency medical treatment for gangrene. She suffered partial loss of her toes. Plaintiff alleges one cause of action for negligence and medical malpractice. Plaintiff has not opposed the motion. To support a claim for medical malpractice, Plaintiffs must establish the following elements: “'(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and e...

Excerpt: ...ocated in the checkout aisle at 12:55:33. Liquid dripped from this customer cart onto the floor. The liquid is visible in a surveillance video at 12:56:21. Plaintiff slipped and fell from this liquid at 12:58:41. Defendant contends that the liquid had been hidden from view by the customer's shopping cart until 12:58:27, when the customer took the cart away. Defendant contends that the cashier exited her area at 12:58:18, before the cart was taken...

Excerpt: ... written communication documenting Defendant's efforts to meet and confer. Defendant first sent a meet and confer letter on 9/12/19 raising only the issue of the propriety of recovering prejudgment interest. Opposition, Ex. A. Defendant followed up with an email on 9/18/19 to meet and confer about inclusion of prejudgment interest in the Complaint. Opposition, Ex. A. The demurrer was filed on 9/18/19. Defense counsel first raised the issue of Pla...

Excerpt: ...press contends is responsible for the accident that it is at issue in this case. The Court may grant leave to file a permissive cross‐complaint against a co‐ defendant or third party if doing so would be in the “interests of justice.” Code Civ. Proc. section 428.50(c). The Court finds that the interests of justice would be served by permitting Federal Express to file the cross‐complaint. Doing so would permit the indemnity claim to be r...

Excerpt: ...ch 15, 2018, Plaintiff's counsel filed a lawsuit against Greer for wrongful death. On July 26, 2018, Plaintiff's counsel learned that Greer had died on July 28, 2017 and that the administration of his estate had commenced. Plaintiff filed a probate <011e011a03580003000300 filed Doe amendments <0003011e0190019a010201 015a011e0003011e0190Ltate itself as defendants in this action. Defendants move for summary judgment, claiming, among other things, t...

Excerpt: ... set. Cal Code Civil Procedure § 2024.050(a). Among the factors to be considered in granting relief are the 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 opposing party, among other things. Cal Code Civ Procedure § 2024.050. <015d0150011e0176011001 011e01750189019a015d>ng to schedule the depositions of Ms. Hesse and Mr. Zime...

Excerpt: ...es of action. First Cause of Action for Breach of Restrictive Covenants The Hommes argue the complaint admits defendants' building plan was approved by the architectural committee, establishing no violation of the CC&Rs. The FAC alleges defendants' submission to the architectural committee did not truthfully represent their intended construction, so the committee's approval was invalid. Even were the committee's approval valid, covenant (f) of th...

Excerpt: ...ondition on Defendant's property and <0102015d0176019a015d01 00030190015a011e0003>fell. The claim for premises liability alleges, among other things, that Defendant “intentionally failed to warn” Plaintiff of the allegedly dangerous condition on the property. Defendant moves to strike the allegations that Defendant had a duty to render aid and that Defendant intentionally failed to warn. A. Allegations regarding duty to render aid In support ...

Excerpt: ...e court may in its <0190011e011001b5019a01 01b501020176019a0003Lto this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.” The Court may exercise this discretion to dismiss an action <017d019a00030175010201 01760003019a01c1017dL years after the action is commenced against the defendant.” CCP § 583.420. The plaintiff opposing a motion to dismiss for delay ...

Excerpt: ...el & Conference Center in Pomona, CA. She alleges that she “tripped and fell on a foreign object <017d018c00030110018c01 0003011a010201760150Lerous condition.” She purports to assert two causes of action against Defendant Starwood Hotels & Resorts Worldwide, Inc. (“Starwood”), the owner and operator of the Sheraton Fairplex Hotel: premises liability and negligence. Starwood has moved for summary judgment, or in the alternative, summary ad...

Excerpt: ...onal Park, which allegedly was owned and managed by the Defendant County of Los Angeles (“Defendant” or the “County”). Plaintiff further alleges that prior to bringing the action, she presented a timely <011a011e011a0003019001 n regarding the exact location within the park when requested to do so. The County demurs to the FAC, claiming that Plaintiff failed to substantially comply with the Government Tort Claim Act. The Court overrules th...

Excerpt: ...zes that Cal Rules of Court Rule 3.57(c) states, “A motion in limine may not be used for the purpose of seeking an order to try an issue before the trial of another issue or issues,” and thus this order should not be construed in a way that contradicts this rule. Defendant may direct the trial court to this order, which should not be construed in any way to bind the trial court in making a bifurcation decision on its own motion. Defendant pro...