Excerpt: ...cing evidence showing that he did not breach the standard of care when he treated decedent, and that he did not cause decedent's injuries or death. “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. [Citations.] ‘ “The standard o...

Excerpt: ...r to discuss the defects in the motion; and they are numerous. On a motion for a protective order seeking to restrict the disclosure of trade secrets, the moving party has the burden to prove, by the preponderance of the evidence, that there is good cause for issuance of a protective order. That party must provide an affidavit or declaration which: 1) lists the declarant's qualifications to give an opinion; 2) identifies the alleged trade secret;...

Excerpt: ...d on April 3, 2018, on the ground that there was no claim therein against Wood and Access Medical providing for recovery of attorneys' fees other than Penal Code § 496(c), which Judge Snauffer found unrecoverable in this case. That ruling was reversed on appeal: “we reverse the trial court's denial of Switzer's motion for attorney fees premised on section 496(c), and the matter is remanded to the trial court for further proceedings to determin...

Excerpt: ...orth in boldface typeset. Explanation: A general demurrer admits the truth of all material allegations and a Court will “give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that ar...

Excerpt: ..., are deemed admitted irrespective of the difficulty of proof at trial. [Citation.] The allegations are to be liberally construed with a view to substantial justice between the parties.” (Universal By‐Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, 151.) Here, Cross‐Defendant City of Parlier (“City”) demurs to the second amended cross‐complaint (“SACC”) on the ground that the claims were late‐filed pursuant to the Go...

Excerpt: ...o run from service by the clerk of the minute order. Explanation:  Defect in the Motion Plaintiff is correct about the defect in defendant's motion: there is no “demurrer” included. Here, where the various components involved in the motion are combined into one, this means that a separately‐captioned portion which distinctly specifies the grounds of demurrer must be included. It was not. Instead, defendant's “notice” section simply i...

Excerpt: ...on of the separate causes of action. (Code Civ. Proc. § 437c.) Explanation: Plaintiffs Cook and TJC Partners move for summary judgment of the entire complaint, or in the alternative adjudication of their breach of contract claims, contending that defendant Holmes owes $334,240 to Cook and $375,000 to TJC which he has failed to repay, despite having executed a series of promissory notes and guarantees of repayment. Plaintiffs also point to the fa...

Excerpt: ... Civ. Proc., § 473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653.) Where no prejudice is shown to the adverse party, “courts are bound to apply a policy of liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; Congleton v. Natl. Union Fire Ins. Co. (1...

Excerpt: ...t any irrelevant, false, or improper matter inserted in any pleading; or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. §436; see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 104, fn. 35.) An “immaterial allegation in a pleading” includes an “allegation that is not essential to the statement of a claim”...

Excerpt: ...parties argue over whether or not the May 2019 agreement was rescinded. The implication is that if the May agreement was rescinded, the February 2019 agreement is revived and can now be enforced pursuant to section 664.6. However, the evidence shows that the May 2019 agreement functioned as a novation to the February 2019 agreement. (See Civ. Code § 1531, subd. (1) [a novation is made by the substitution of a new obligation between the same part...

Excerpt: ...agreement, and that even if it is determined valid, defendants waived their right to arbitration when they persuaded plaintiffs to forgo the Labor Commissioner proceeding. The court finds plaintiffs' argument regarding waiver persuasive. On a procedural note, defendants argue that this court should not consider plaintiffs' opposition because plaintiffs were required to respond to their petition within 10 days, pursuant to Code of Civil Procedure ...

Excerpt: ...294, subd. (c)(1); see also College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [“absent an intent to injure the plaintiff, ‘malice' requires more than a willful and conscious disregard of the plaintiff's interests. The additional component of ‘despicable conduct' must be found”].) “'Despicable' conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and desp...

Excerpt: ...d Complaint are to be set in boldface type. To overrule the demurrer. The answer shall be filed within 20 days of the date of this order unless a Second Amended Complaint is timely filed. Explanation: Motion to Strike Allegations of fraud are not improper in claims of breach of contract against a public entity. (see E.H. Morrill Co. v. State (1967) 65 Cal.2d 787, 794.) However, there are no supporting facts of the claims which are the subject of ...

Excerpt: ...ix months of the accrual of the cause of action. (Gov't Code. §911.2.) The parties do not dispute that the claim was filed late. (See also Gov't Code § 945.3 (claim‐filing requirement is not tolled while criminal charges are pending).) An application to present a late claim must be sent within one year of the accrual of the cause of action. (Gov't Code §911.4.) Respondent does not dispute that the application for leave to file a late claim i...

Excerpt: ...on appears in the Court's files. The parties appear to concede that the documents at issue are subject to federal privacy protections. The question is whether the relevance identified by Defendants is sufficient to pierce that privacy. As noted by Defendants, the privacy right is balanced against the need for the evidence in question. (Williams v. Superior Court (2017) 3 Cal.5th 531, 552.) Defendants have identified two separate items of discover...

Excerpt: ...d amended complaint detailing the basis for the punitive damages. All new or amended allegations are to be set forth in boldface typeset. Explanation: A motion to strike can be used to: “(a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;]” or “(b) [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. ...

Excerpt: ...ds published in the California Building Standards Code, the State Housing Law, and other rules and regulations adopted pursuant to the State Housing Law. (Health & Saf. Code, §§ 17980 to 17982.) When the violations or conditions of the property involve noncompliance with the requirements of the State Housing Law, or with the requirements of the published State Building Standards Code that implement the State Housing Law, or with local ordinance...

Excerpt: ... . a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address[.]” (Code Civ. Proc. §415.20(a).) “If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served . . . a summons may be served by leaving a copy of the summons and complaint at the person's ...

Excerpt: ...Cross‐Defendants The Woodmont Company and Greg Newman to Strike Portions of the Prime Cross‐Complaint Tentative Ruling: To sustain the general demurrers to the second and third causes of action of the Prime Cross‐Complaint, without leave to amend. The motion to strike is ordered off calendar as moot, given the ruling on demurrer. Cross‐Defendants The Woodmont Company and Greg Newman are directed to submit to this court, within 7 days of s...

Excerpt: ...d ten days leave to amend. All changes must be in bold. The time in which an amendment may be filed will run from service by the clerk of the minute order. Explanation: In the case at bar, plaintiff alleges four causes of action: (1) breach of contract; (2) wrongful termination – age discrimination; (3) wrongful termination – gender discrimination; and (4) disparate treatment. Defendant demurs to each cause of action based upon Code of Civil ...

Excerpt: ...onable interpretation by reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Facts appearing in exhibits attached to the complaint will also be accepted as...

Excerpt: ...e causes of action, the motion to strike items 4 thru 6 stated in the Notice of Motion is denied. To deny the motion to strike as to items 3 and 7 (re punitive damages) stated in the Notice of Motion. To grant the motion to strike as to items 1 and 2 (re pain and suffering) stated in the Notice of Motion. The plaintiffs are granted 20 days leave to file a First Amended Complaint. The time in which the Complaint can be amended will run from the co...

Excerpt: ...y judgment order. Explanation: As the moving party, a defendant bears the initial burden of proof to show that the plaintiff cannot establish one or more elements of the causes of action or to show that there is a complete defense. (Code Civ. Proc. § 437c(p)(2).) Only after the moving party has carried this burden of proof does the burden of proof shift to the other party to show that a triable issue of one or more material facts exists—and th...

Excerpt: ...ation: 1. Objections The Court sustains all objections made by defendants Gurvinder Kandola and Julie Su, referred to herein collectively as the “Labor Commissioner.” The Court also notes that the evidence supplied with the reply papers on the issue of commerce is devoid of any actual ads allegedly placed in out of state publications or invoices showing that was done. There are no receipts or order confirmation for purchases from out of state...

Excerpt: ...o both of the following: (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. (b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts. Code of Civil Procedure section 2018.030 provides: (a) A writing that reflects an attorn...