Excerpt: ...ubstituting former attorney Alan S. Turlington for new attorney Neer Lerner. On September 1, 2021, the Court dismissed the entire action without prejudice on grounds that Plaintiff failed to appear at the hearing on that date. On October 22, 2021, Plaintiff filed a motion to set aside dismissal, pursuant to CCP §473. The motion is unopposed. Legal Standard The court has broad discretion to set aside the entry of default, default judgment, or a d...

Excerpt: ...tion for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order . . . [may] make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” “The party making the application...

Excerpt: ...esponses to Requests for Production of Documents Sets One and Two is DENIED AS MOOT. Sanctions are awarded in favor of defendant Super Center Concepts, Inc. and against Plaintiff, payable to Defendant within 30 days of the date of this hearing, in the amount of $710.00. Legal Standard Deem Matters Admitted When a party fails to submit a timely response to Requests for Admission, California Code of Civil Procedure section 2033.280 governs. Section...

Excerpt: ... to produce for¿inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.” (Code Civ. Proc., § 2025.450(a).) CCP section¿2025.450,(b) provides:¿“A motion under subdivision (a) shall comply with both of the following:¿ 1. The motion shall s...

Excerpt: ...requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summa...

Excerpt: ...the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.” (Code Civ. Proc., § 664.6.) “‘[V]oluntary dismissal of an action or special proceeding terminates the court's jurisdiction over the matter.'” (Mesa RHF Partners, L.P. v. City of Los Angeles (2019) 33 Cal.App.5th 913, 917) (quoting In re Conservatorship of Mart...

Excerpt: ...ating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery . . . .” “The trial court may order a terminating sanction for discovery abuse ‘af...

Excerpt: ...e action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” Code Civ. Proc. § 36(a). To make the findings required by CCP section 36(a), evidence must be provided with the motion for preference establishing Plaintiff's age and the relevant conditions of her health warranting a preference. An affidavit submitted in support of section 36(a) “may be sign...

Excerpt: ... and additional physical examinations are requested, Code of Civil Procedure section 2032.310 is invoked. To satisfy the requirements and receive an order to compel an additional medical examination under Code of Civil Procedure section 2032.310, the defendant must show good cause for the examination. Code Civ. Proc § 2032.320(a). The standard for good cause requires the moving party to produce specific facts justifying discovery and that the in...

Excerpt: ...f that discretion requires the trial court to consider a number of factors: ‘including the conduct of the moving party and the belated presentation of the amendment. The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court's denial of the amendment.” Leader v. Health Ind. Of America, Inc. (2001) 89 Cal.App.4th 603, 613...

Excerpt: ...x and a public road on Pico Canyon Road (“Subject Road”). Having left the supermarket, the Decedent decided to cross the Subject Road, which lacks a crosswalk, to go home. In the process of crossing the Subject Road, Decedent was struck by a vehicle driven by defendant Stephen Cobb. Ultimately, the Decedent succumbed to the injuries she sustained on the Subject Road. (Complaint, ¶¶ 21–24.) On May 7, 2021, Plaintiffs Mauricio Martinez, Ric...

Excerpt: ...ined with leave to amend. Plaintiff's operative Second Amended Complaint was filed on May 5, 2021. Bird demurred, and the Court sustained with leave to amend on the “Negligence – Product Liability” count. Leave to amend was denied on the “Failure to warn and design defect” count. Bird again demurs. (Code Civ. Proc., § 430.10, subd. (e), (f).) The demurrer is as to the third cause of action for products liability - negligence. Legal Sta...

Excerpt: ...f the anterior talofibular ligament, and a split tear of the peroneus brevis tendon at the level of the distal tibia. Complaint, p. 2, § 9‐11. The future damages that Plaintiff seeks are past and future medical expenses, past and future wage loss, loss of earning capacity, pain and suffering , and loss of enjoyment of life, which damages will be determined at trial. Id. at ¶11. ANALYSIS I. First Cause of Action: Negligence First, the Defendan...

Excerpt: ...ng a declaration setting forth a brief background is sufficient). However, when the motion is contested, then the moving parties must make a sufficient showing in the moving papers or in the reply papers. Id. at 1262 (holding that evidence showing a lack of good faith requires the moving party to provide evidence to negate the lack of good faith asserted by the contesting party). CCP section 877.6(d) imposes the burden of showing that the settlem...

Excerpt: ...lifornia, when Defendant Matthew Knott, while driving under the course and scope of his employment with Edison Power Constructors, Inc., PLH Constructors, Inc. exceeded the statutory speed limit, allegedly causing a collision with the Plaintiff's vehicle. FAC, p. 3, ¶s 1-11. The First Amended Complaint was filed on August 6, 2021. Shortly thereafter, the Defendant filed a Motion to Strike the Plaintiff's prayer for punitive damages under Civil C...

Excerpt: ...ant from liability to the other defendants for equitable contribution or comparative indemnity but¿not¿for contractual indemnity. (Code Civ. Proc., §§ 877(a)–(b).) In order to determine whether the settlement was made in good faith under CCP section 877.6, the Court applies the following factors identified by the California Supreme Court in Tech‐Bilt, Inc. v. Woodward‐ Clyde & Associates (1985) 38 Cal.3d 488 to determine whether the set...

Excerpt: ...ors, orthopedic surgeon, Dr. Jonathan Falakassa, on February 13, 2020 and neurosurgeon, Dr. Paul Edward Kaloostian, on April 5, 2021. Counsel for Plaintiff was present at both medical examinations. On August 2, 2021, Plaintiff served a Demand for Exchange of Expert Witness Information. The deadline to exchange experts, per the demand, was September 10, 2021. On October 18, 2021, Defendants filed an ex parte application for an order to allow for l...

Excerpt: ...ehicle and, (2) Willful Misconduct for a second time. FAC, p. 5. Plaintiff alleges that Defendant(s) were the legal (proximate) cause of damages to the Plaintiff, a passenger at the time of the alleged accident. On July 3, 2019, Plaintiff alleges that a 2016 Fiat 500E collided with the Plaintiff's vehicle. FAC, p. 5, ¶8. Plaintiff also alleges that the car in which he was a passenger was traveling eastbound on Pico Blvd., near 11th Street in San...

Excerpt: ...him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Application for this relief shall be made within a reasonable time, in no case exceeding six months, after judgment, dismissal, order, or proceeding was taken. (Id.) “[T]he court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney...

Excerpt: ...r v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler...

Excerpt: .... (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) ...

Excerpt: ...he event an individual engages in conduct which constitutes a “misuse of the discovery process”. (Code Civ. Proc., § 2023.030, subd. (b), (c), (d).) A “misuse of the discovery process” includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subd. (d), (g).) Terminating sanctions should not be ordered lightly, but are justified where a violation is w...

Excerpt: ...ny Kevin Pickett has an ownership interest in were named as a Defendant. Robert D. Goldberg APLC is ordered to provide copies of Kevin Pickett's deposition testimony in real estate or property lawsuits wherein Kevin Pickett or any company Kevin Pickett had an ownership interest in were named as a Defendant. Legal Standard When a subpoena has been issued requiring the attendance of a witness or the production of documents, electronically stored in...

Excerpt: ...are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc., § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no r...

Excerpt: ...arty must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” CRC 3.1332(c) provides, in pertinent part, as follows: Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause...

Excerpt: ...motor vehicle negligence. Thereafter, Plaintiff amended her complaint on August 12, 2021. On August 23, 2021, Defendant filed the instant motion to strike Plaintiff's request for punitive damages in the First Amended Complaint (“FAC”). No opposition has been filed. SUMMARY I. Moving Papers: Defendant moves to strike allegations in the FAC that pertain to Plaintiff's request for punitive damages. These include the following portions: (1) FAC, ...

Excerpt: ...� (Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 694 (quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (quoting Code Civ. Proc., § 128(a)(5))).) “‘[D]isqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility.'” (Id. at 694-95.) “‘The paramount concern must be ...

Excerpt: ... procedure that is painful, protracted, or intrusive.¿ (2) The examination is conducted at a location within 75 miles of the residence of the examinee.”¿¿¿¿ California Code of Civil procedure section 2032.310 states: “(a)¿ If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.¿ (b)¿ ...

Excerpt: ...) Item 14: $45.91 ANALYSIS BACKGROUND From 2012 to about May 2018, Plaintiffs entered into a written lease agreement for a month‐to‐ month tenancy with the Defendant. Complaint, p. 3, ¶1. Plaintiffs allege that the rented Subject Property, located at 6732 Fry St., Bell Gardens, CA 90201 was unfit for human occupation in that it, among other things, substantially failed to comply with the applicable California Civil, Health and Safety, Buildi...

Excerpt: ...� (Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 694 (quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (quoting Code Civ. Proc., § 128(a)(5))).) “‘[D]isqualification motions involve a conflict between the clients' right to counsel of their choice and the need to maintain ethical standards of professional responsibility.'” (Id. at 694-95.) “‘The paramount concern must be ...

Excerpt: ...the alleged accident, Plaintiff has suffered from neck and back injuries, along with other maladies. In the Complaint, filed April 8, 2020, the Plaintiff is seeking damages for (1) Government Tort Liability and Negligence (2) Vicarious Liability, and (3) Fraudulent Concealment. Complaint, p. 1. Plaintiff moves the Court for an order quashing the deposition subpoenas served on (1) Randolph Shey, MD – Long Beach – Full; (2) Neurocare Medical Bi...

Excerpt: ... L. Pickering, Aileen L. Pickering Trust, and Michael Montano for (1) general negligence, (2) premises liability, and (3) strict liability. On June 10, 2019, Aileen L. Pickering Trust, Deceased filed a cross-complaint against Cross- Defendant Marlayna Ranieri for (1) equitable indemnity, (2) equitable contribution, and (3) declaratory relief. On May 5, 2021, the Court signed the parties' stipulation to file a First Amended Complaint to add Dale P...

Excerpt: ...nd specialty of the examiner, and the "manner, conditions, scope and nature of the examination."¿(Code Civ. Proc., § 2032.310(b).) “An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Code Civ. Proc., § 2032.320(d).) “The court is to describe¿in detai...

Excerpt: ...er the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 ...

Excerpt: ..., courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Ther...

Excerpt: ...1994) 27 Cal. App. 4th 832, 838.) A demurrer tests the legal sufficiency of the allegations. It does not test their truth, the Plaintiff's ability to prove them, or the possible difficulty in making such proof. (Saunders at 840.) Discussion Medical Negligence The elements of a professional negligence medical malpractice cause of action are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his prof...

Excerpt: ... Cal. Code Civ. Proc., § 2020.010. A deposition subpoena may command: (1) only the attendance and testimony of the deponent, (2) only the production of business records for copying, or (3) the attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things. Cal. Code Civ. Proc., § 2020.020. Personal service of any deposition subpoena is effective to...

Excerpt: ... on any basis consistent with the Constitutions of California and the United States. (Civ. Proc. Code, § 410.10.) “When a defendant moves the trial court to quash service of summons for lack of personal jurisdiction, the plaintiff has the initial burden of proving that sufficient contacts exist between the defendant and California to justify the exercise of personal jurisdiction.” (Malone v. Equitas Reinsurance Ltd. (2000) 84 Cal.App.4th 143...

Excerpt: ...t if the pleadings show that there is no triable issue to any material fact and the moving party is entitled to judgment as a matter of law. (Id.) The moving party has the burden of proving that there are no triable issues of fact. The defendant moving for summary judgment must show that a cause of action has no merit, either by proving that one or more of the elements of plaintiff's cause of action cannot be established, or by establishing an af...

Excerpt: ...t Group; and DOES 1 – 50, inclusive, alleging 6 causes of action arising from an altercation that occurred at the Greek Theatre in Los Angeles on August 24, 2018. On April 7, 2021, Plaintiffs filed two amendments to the Complaint, naming DOE 1 as Staff Pro, Inc. d/b/a Allied Universal Event Services (erroneously added as Staff Pro, Inc.) and naming DOE 3 as Universal Protection Service, LP. On June 17, 2021, Defendants Staff Pro, Inc. d/b/a All...

Excerpt: ...e Defendant's gym, known as Cave Cross Fit. On this date, plaintiff was participating in an exercise class when the trainer, Andrew Warwick, (who was allegedly suffering from a severe hangover, was "sitting against the back wall yelling instructions." (Complaint, p. 4, ¶1) As a result of this yelling, "plaintiff fell, suffering severe injuries." Id. Plaintiff alleges that because the trainer was working as an agent under Cave Cross Fit, LLC, a C...

Excerpt: ...bruary 26, 2019, Plaintiff suffered a severe injury that resulted in the loss of his right eye and constant headaches due to a metal rebar negligently exposed during the performance of his job at the private residence of Ellen Rosenberg, located at 800 Pacific Ave., Manhattan Beach, California. The accident occurred during a construction project that involved the renovation of a swimming pool that included demolition and hardscape work, remodelin...

Excerpt: ...deposition of an expert witness deems the hourly or daily fee of that expert to be unreasonable, that party may move for an order setting the compensation rate and notice of the motion shall be given to the expert. (Code of Civ. Proc., § 2034.470(a).) The notice shall be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code of Civ. Proc., § 2034.470(b).) In any attempt at informal resolution, either ...

Excerpt: ...0TH DAY AFTER SERVICE OF THE AWARD. PROPOSED JUDGMENT TO BE FILED AND SERVED WITHIN 10 DAYS OF THIS ORDER. SERVICE: [X] Proof of Service Timely Filed (CRC, rule 3.1300) OK [X] Correct Address (CCP §§ 1013, 1013a) OK [X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK SUMMARY OF PROCEEDINGS: Petition to confirm arbitration award. RELIEF REQUESTED: Enter judgment against Respondents pursuant to the terms of the arbitration award. OPPOSITION: N...

Excerpt: ...RVICE: [X] Proof of Service Timely Filed (CRC, rule 3.1300) OK [X] Correct Address (CCP §§ 1013, 1013a) OK [X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK SUMMARY OF PROCEEDINGS: Petition to confirm arbitration award. RELIEF REQUESTED: Enter judgment against Respondent pursuant to the terms of the arbitration award. OPPOSITION: None filed as of October 6, 2021. REPLY: None filed as of October 6, 2021. ANALYSIS: On April 23, 2018, an Arbi...

Excerpt: ... TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN TEN (10) DAYS OF THIS ORDER. SERVICE: [X] Proof of Service Timely Filed (CRC 317(b)) OK [X] Correct Address (CCP 1013, 1013a) OK [X] 16/21 Day Lapse (CCP 12c and 1005(b)) OK SUMMARY OF COMPLAINT: Action for dental malpractice. BASIS OF MOTION: Strike the request for punitive damages in the Complaint. There are insufficient factual allegations to support the request for punitive damages in the C...

Excerpt: ...[X] Correct Address (CCP 1013, 1013a) OK [X] 16/21 Day Lapse (CCP 12c and 1005 (b)) OK SUMMARY OF COMPLAINT: Entry of sister state judgment. RELIEF REQUESTED: Award Plaintiff attorney fees and costs of $1,887.80 based on time spent pursuing collection of the sister-state and California judgments. OPPOSITION: None filed as of October 1, 2021. REPLY: None filed as of October 1, 2021. ANALYSIS: On October 31, 2017, this Court entered as judgment in ...

Excerpt: ...of a minor's claim or the claim of an individual with a disability. (Prob. Code, §§ 2504, 3500, 3600 et seq.; Code Civ. Proc., § 372.) Until a petition for such approval is granted by the court, there is no final settlement, and any settlement agreement therefore is voidable. (Scruton v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596, 1606.) In addition to approval of the settlement, the Court must approve attorney fees to be paid for represe...

Excerpt: ... Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Hea...

Excerpt: ... trial of any cause of action, including a cause of action asserted in a cross- complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or the United States.” (Cal. Civ. Proc. § 1048(b).) Courts have additional authority to order that the trial of any issue or any part thereof shall precede the trial of any other issue or a...

Excerpt: ...tice of its Notice of Errata is GRANTED pursuant to Evidence Code § 452(d)(1). Meet and Confer The demurrer is accompanied by the declaration of Jonathan A. Arjonilla which satisfies the meet and confer requirements. (Code Civ. Proc. §§ 430.41; 435.5.) Demurrer Legal Standard A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read ...

Excerpt: ...inai Medical Center (“Cedars”) had a controlling interest in 90210 SMC and that the nurse who performed the procedure at issue was an employee of both 90210 SMC and Cedars. On September 10, 2019, Plaintiff filed a complaint against Defendants 90210 SMC, Cedars, and Does 1 through 50 for the sole cause of action of professional medical negligence. On November 3, 2020, Cedars moved for summary judgment, arguing that there is no evidence that Ce...

Excerpt: ...iff Jose Angel Caldera Morales (“Plaintiff”) was a passenger rear-ended another bus stopped for a traffic signal. Plaintiff came out of his seat and sustained injuries when the bus in which he was traveling came to a sudden stop. Jose Luis Iturbide Ramos, erroneously sued as Jose Luis Iturbideramos (“Ramos”), was the operator of the Metro bus on which Plaintiff was a passenger. Sylvia Saenz (“Saenz”) was the operator of the Metro bus ...

Excerpt: ...st relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. (2) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the ma...

Excerpt: ...ers outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action...

Excerpt: ... Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 C...

Excerpt: ...ounty of San Diego (2010) 184 Cal.App.4th 1422: Motions for leave to amend are directed to the sound discretion of the judge: “The court may, in furtherance of justice and on any terms as may be proper, allow a party to amend any pleading . . . .” (Code Civ. Proc., § 473, subd. (a)(1).) However, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal.3d 920, 93...

Excerpt: ...sidering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP �...

Excerpt: ...ion of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel. (Code Civ. Proc. §§ 2030.290(c), 2031.300(c).) However, sanctions are not mandatory if the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id.) Discussion Here, Plaintiff moves the Court for an order imposing monetary s...

Excerpt: ...plaint, asserting 16 affirmative defenses. Legal Standard A party against whom an answer has been filed may object by demurrer. Unlike a demurrer to a complaint or cross-complaint, a demurrer to an answer is limited to three grounds: (a) The answer does not state facts sufficient to constitute a defense; (b) The answer is uncertain; or (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written...

Excerpt: ...e of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) �...

Excerpt: ... To begin with, Code Civ. Proc., section 2025.450(a), provides that If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electron...

Excerpt: ...the others. Provided it is in “good faith,” the settlement discharges the settling defendant from liability to the other defendants for equitable contribution or comparative indemnity but not for contractual indemnity. (Code Civ. Proc., § 877(a)–(b).) Determining "Good Faith" I. There is no precise yardstick for measuring “good faith” of a settlement with one of several tortfeasors. “Good faith” depends upon what the plaintiffs kne...

Excerpt: ...vision (b) . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)...

Excerpt: ...lse, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) Grounds for a motion to strike are limited to matters that appear on the face of the pleading or on any matter of which the court shall or may take judicial not...

Excerpt: ...tlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler v. Ma...

Excerpt: ...ined in a single action. (Code Civ. Proc., §§ 1048(b), 379.5.) When there are several plaintiffs or defendants, the court may order separate trials “to prevent any party from being embarrassed, delayed, or put to undue expense.” (Code Civ. Proc., § 379.5 (emphasis added).) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any ca...

Excerpt: ...ined in a single action. (Code Civ. Proc., §§ 1048(b), 379.5.) When there are several plaintiffs or defendants, the court may order separate trials “to prevent any party from being embarrassed, delayed, or put to undue expense.” (Code Civ. Proc., § 379.5 (emphasis added).) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any ca...

Excerpt: ...ises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, petition, answer or cross-complaint). (Code Civ. Proc., §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ. Proc., § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Concerning the legal...

Excerpt: ...nt summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “On a motion for summary judgment, the initial burden is always on the moving party...

Excerpt: ...Legal Standard The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure (“CCP”) section 437c(c) “requires the trial judge to grant summary judgment if all the evid...

Excerpt: ...ar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adle...

Excerpt: ... party's pleading (complaint, petition, answer or cross-complaint). (Code Civ. Proc., §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ. Proc., § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts...

Excerpt: ...n (1985) 39 Cal.3d 311, 318.) Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether relief. (See LiMandri v. Judkins (1997) 52 Cal. App. 4th 326, 339; see also Code Civ. Proc., § 425.10(a)–In order to plead a c language.”) A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardl e plaintiff's allegations must be accepted as true for the purpose ...

Excerpt: ...st or procedure that is painful, protracted, or intrusive[; and] (2) [t]he examination is conducted at a location within 75 miles of the residence of the examinee.” (Code Civ. Proc., § 2032.220(a).) CCP section 2032.310 states that “[i]f any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.�...

Excerpt: ...or (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral. (Code Civ. Proc. § 430.20.) Affirmative defenses are pled based upon facts demonstrating that no cause of action exists, notwithstanding the truth of the complaint's allegations. (Walsh v. W. Valley Mission Cmty. College Dist., 66 Cal. App. 4th 1532, 1542 n.3 (1998).) “Under general rules of civil procedure, an answer mu...

Excerpt: ...at the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c(c).) Legal Standard 1. Standard for Ruling on Motion for Summary Judgment A summary judgment may be granted where it is shown that the “action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c(a) (emphasis added).) On the other hand, when summary adjudication is granted on a claim or defense, the action...

Excerpt: ...tories, Set One is MOOT. Defendant's Request for Monetary Sanctions is GRANTED. Defendant's Motion to Compel Plaintiff's Verified Responses, Without Objections, to Request for Production of Documents, Set One is MOOT. Defendant's Request for Monetary Sanctions is GRANTED. Legal Standard Compel Deposition CCP section 2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , without having served a valid objec...

Excerpt: ...anuary 9, 2020, Plaintiff filed her complaint against Charlotte, Colin, and Does 1 through 25 asserting a sole cause of action for negligence. On February 26, 2020, Plaintiff amended her complaint renaming Audrey as Doe 1. Colin now moves for summary judgment on the grounds that Plaintiff's action lacks merit because Colin did not own or operate the 2018 Alfa Romeo Giulia Charlotte was driving (the “Subject Vehicle”), involved in the subject ...

Excerpt: ...upon which they were created and/or amended. The demurrer is overruled on all other grounds. Legal Standard Motions to Quash Service of Summons Code of Civil Procedure section 418.10 provides that a defendant may serve and file a notice of motion to quash service of summons on the ground of lack of jurisdiction over him or her. (Cal. Civ. Proc. § 418.10(a)(1).) When making such a motion, a defendant is permitted to “simultaneously answer, demu...

Excerpt: ...ttorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP section 2023.010 provides that “[m]issues of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide ...

Excerpt: ...e same reasons as other contracts.” (Armendariz at 98.) Both the FAA and CAA reflect public policy in favor of enforcing arbitration agreements. “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction…shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity ...

Excerpt: .... Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence' and uncontradicted by other inferences or evidence, 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.” (Adler v....

Excerpt: ...to the Complaint's fourth COA. (Code Civ. Proc., § 410.30(e).) Legal Standard Standard of Review – Demurrer A demurrer tests the sufficiency of the pleading at issue as a matter of law, i.e., it raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, petition, answer or cross-complaint). (Code Civ. Proc., §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Th...

Excerpt: ...ngs in this case. The record reveals that Plaintiffs have not filed proofs of service of the summons and complaint on Defendant Rockwell Sharer. After the summons is served, a proof of service must be filed with the court unless the defendant has already made a general appearance. (Code Civ. Proc., § 417.30.) The Court sets an order show cause regarding this failure to file a proof of service. The Court is inclined to dismiss the claims against ...

Excerpt: ...bdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. (Code Civ. Proc., § 1987.1, subd. (a).) Discussion Defendants moves the Court to compel Brand, who treated Plaintiff for injuries arising from the incident, to...

Excerpt: ... pleading or from any matter of which the court is required to take judicial notice.¿ (Id., § 438(d).)¿ Presentation of extrinsic evidence is therefore not proper on a motion for judgment on the pleadings. (Cloud v. Northrop Grumman Corp.¿(1998) 67 Cal.App.4th¿995,¿999.)¿¿¿ Discussion Request for Judicial Notice Defendant Access Services requests judicial notice of (1) Plaintiff's complaint in this matter, (2) Plaintiff's amendment to co...

Excerpt: ...e of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing complia...

Excerpt: ... FAC. Legal Standard Standard of Review – Demurrer A demurrer tests the sufficiency of the pleading at issue as a matter of law. (City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719.) The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civ. Proc., § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Concerning the legal sufficiency of a pleading, the sole i...

Excerpt: ...illing, and insurance records which only relate to Plaintiff's left leg, brain, neck, head, shoulders, and spine only, as these are the injuries directly relevant to Plaintiff's claims. Further, the Court exercises its discretion to limit the temporal scope of each subpoena to require documentation from November 13, 1994 to the present. Defendant's Request for Sanctions against Plaintiff is DENIED. Legal Standard “If a subpoena requires . . . t...

Excerpt: ... to whom interrogatories are directed must respond within 30 days after service, or 35 days when served by mail. (Code Civ. Proc. § 2030.260(a).) Section 2030.290, subsection (b) permits the propounding party to move for an order compelling response upon failure to respond. The moving party is not required to file a Separate Statement when no response has been provided to the request of discovery. (Cal. Rules of the Court, rule 3.1345(b).) If a ...

Excerpt: ...9. OSC re: Dismissal for Failure to Serve set for January 14, 2023 at 10:30 a.m. Legal Standard “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473(b).) Application for this relief shall be made within a reasonable time,...

Excerpt: ...hearing. Legal Standard “A defendant . . . may serve and file a notice of motion for one or more of the following purposes: (1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her. . .” (Code Civ. Proc., § 418.10, subd. (a).) A non-resident defendant may be subject to either general or specific jurisdiction. (See Elkman v. National States Insurance Co. (2009) 173 Cal.App.4th 1305, 1314.) General jur...

Excerpt: ...regarding the language of each deposition subpoena, and ensure the language conforms with the Court's ruling. Plaintiff's accompanying request for sanctions is DENIED. Legal Standard “If a subpoena requires . . . the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person describe...

Excerpt: ...st in the litigation.” (Code Civ. Proc., § 36, subdivision (a).) A motion made under Code of Civil Procedure § 36, subdivision (a) “may be supported by nothing more than an attorney's declaration ‘based upon information and belief as to the medical diagnosis and prognosis of any party'. [Citation.]” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534, citing Code Civ. Proc., § 36.5 [“[a]n affidavit in support of a motion for prefer...

Excerpt: ...in order to determine whether the circumstances warrant issuing a stay of a civil proceeding pending the conclusion of a related criminal action: First, “'the decisionmaker should consider “the extent to which the defendant's fifth amendment rights are implicated.” [Citation.] In addition, the decisionmaker should generally consider the following factors: (1) the interest of the plaintiffs in proceeding expeditiously with this litigation or...

Excerpt: ...ck, coccyx, right leg, and symptoms related to ringing in ears, anxiety, lack of concentration, memory loss, blurry vision, frequent urination, and fatigue. Furthermore, the Court grants Plaintiff Evangeline Cosio-Bautista's request to impose monetary sanctions in the amount of $1,460.00, jointly and severally, against Defendant and Defendant's attorney of record for costs, including attorney and filing fees, reasonably incurred by Plaintiff for ...

Excerpt: ...quest for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circu...

Excerpt: ...ged tortfeasors or co- obligors . . . .” (Code. Civ. Proc., § 877.6(a)(1).) “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Id., § 877.6(c).) Although a determinat...

Excerpt: ...nd memory capabilities. (Waddell Decl., ¶ 4.) On June 7, 2018, Plaintiff filed the instant action against Samantha Staitman, Sara Michel Staitman, and Karen Staitman (collectively “Defendants”) alleging a single cause of action for negligence. On June 11, 2021, Defendants served eight (8) subpoenas for the production of business records on a variety of medical service providers. (Waddell Decl., Ex. A.) The subpoenas were served on the follow...