Excerpt: ...Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “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 profess ion under similar circumstances.” (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983- 984.) Here, the undisputed evidence demo...

Excerpt: ...s or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff or cross- complainant to show that a triable issue of one or more material facts exists as to the cause ...

Excerpt: ... procedures, including enforcement proced ures, for each discovery method. The issue here is that Genera moves to compel a non- party to produce further documents pursuant to a subpoena. Non -party discovery is governed by CCP §§ 1985, et seq. and 2020.010, et seq. Where a non- party refuses to co mply with a deposition subpoena, the requesting party must move under the appropriate code section seeking enforcement of said subpoena, and not CCP ...

Excerpt: ...he cause of action, even if not separately pleaded, cannot b e established, or that there is a complete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff or cross -complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or crosscomplainant shall not rely upon the allegations or denials of...

Excerpt: ...e motion, the court must treat all of the defendant's allegations as being tru e, and the motion should be denied if the defendant's pleading raises a material issue or sets up an affirmative matter constituting a defense. (Id. at p. 331; accord, Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1380; see also, Engine Manuf acturers Assn. v. State Air Resources Bd. (2014) 231 Cal.App.4th 1022, 1034.) Here, the answer of Plaintiff/Cross ...

Excerpt: ...c denial of the material allegations of the complaint controve rted by the defendant. (2) A statement of any new matter constituting a defense.” CCP §430.20 authorizes a party to object by way of demurrer to an “answer that does not state facts sufficient to constitute a defense.” A defendant raising new matters in an answer must allege ultimate facts sufficient to prove the defense with the same level of detail that a plaintiff is require...

Excerpt: ...forth below. The motion as to the RFP is DENIED. As an initial matter, t he court notes the motion was improperly filed as one motion, when it is actually three motions to compel further responses to discovery. Form Interrogatories With the exception of Form Rog 200.6 discussed below, the court finds Plaintiff's responses to the at issue Form Rogs are code compliant. It appears Defendant is not satisfied with the responses and believes additio...

Excerpt: ...y concedes that supplementation is warranted for Nos. 1 -31 and 34, and the Motion demonstrates that this is so. It does not suffice to merely claim that an interrogatory is “premature,” or to just point to records without complying with C.C.P. § 2030.230. Nor does it appear that C.C.P. § 2030.230 applies for many of thos e responses. The Motion is therefore GRANTED for Nos. 1 -31 and 34. For Nos. 32 and 33, the Motion is GRANTED IN PART. W...

Excerpt: ... verbatim in the petition or attached thereto. (C.R.C. 3.1330.) The burden then shifts to the resisting party “to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute.” (Buckhorn v. St. Judge Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) Any reasonable doubt as to whether a claim falls within the arbitration clause is to be resolved in favor of arbitration. (Villacreses v. Molinari (2...

Excerpt: ...e of a valid Arbitration Agreement, before arbitration can b e compelled. (See 9 U.S.C. §2 and C.C.P. §1281.2). “If a party to a civil action asks the court to compel arbitration of the pending claim, the court must determine in a summary proceeding whether an ‘agreement to arbitrate the controversy exist.'” (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 754.) “Because the existence of the agreement is a statutory prerequisite to ...

Excerpt: ...oses of motions for summary judgment and summary adjudication : . . . (2) A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a compl ete defense to the cause of action. Once the defendant or cross- defendant has met that burden, the burden shifts to the plaintiff o...

Excerpt: ...Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Defendant demurs to the second cause o f action for negligent infliction of emotional distress on the grounds the cause of action is uncertain and does not plead facts sufficient to state a cause of action. To plead negligent infliction of emotional distress (“NIED”), Plaintiffs must plead 1) the defendant was negligent, 2) the Plaintiff suffered serious emotional distress, and 3) Defendant's negl...

Excerpt: ...second and third causes of action (each a “COA”) in the Complaint. But the supporting Separate Statement presents evidence only for those 2 issues. (See ROA 168.) The Motion as presented thus fails to support the request for summary judgment. The alternative request for summary adjudication on Issues 2 and 3 fail here, because Plaintiffs have presented adequate evidence in their Opposition to defeat the Motion. Plaintiffs have shown a clear r...

Excerpt: ...ems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Civ. Proc. Code § 436(a).) Regarding punitive damages under Civ. Code § 3294: “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plainti
¯, in addition to the actual damages, may recover damages f...

Excerpt: ...50(d). However, again, Plainti
¯ did not make an issue of this in the reply brief, and the court may consider the merits of a case absent a proper separate statement when the case involves a single simple issue” with minimal evidentiary support, such as here. (Gilbertson v. Osman (1986) 185 Cal. App. 3d 308, 316.) The court will proceed on the merits, but cautions defense counsel to comply with code requirements in the future. “(p) For purpo...

Excerpt: ... contract. Under Code of Civil Procedure section 1032, attorney's fees are recoverable as costs when authorized by contract, statute or law. (Code Civ. Proc. § 1033.5(a)(10)(A)-(C).) As set forth in the Statement of Decision (“SD”), the Court found against the Defendants on two claims: Sexual Assault (First Cause of Action) and Sexual Battery pursuant to Civil Code section 1708.5 (Second Cause of Action). In plainti
¯s' closing brief, Tina ...

Excerpt: ...robable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. (Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Gran...

Excerpt: ...f contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Fifth Cause of Action: Intentional Inßiction of Emotional Distress (“IIED”) To state a claim for IIED, a plainti
¯ must allege "(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plainti
¯'s su
¯ering severe or extreme emotion...

Excerpt: ...s in a complaint.” (Rakestraw v. Cal. Physicians Service (2000) 81 Cal.App.4th 39, 42.) Plainti
¯s well-pleaded facts are assumed to be true by the Court, but the Court does not assume the truth of contentions, deductions, or conclusions of fact or law. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Third Cause of Action: Breach of Implied Warranty Defendants argue that the third cause of action for breach of implied warranty must fail because...

Excerpt: ...28, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or “the rights of parties to enforce an arbitration agreement within the FAAs scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “The party seeking arbitration bears the burden of pr...

Excerpt: ...to June 30, 2023, as well as identiÞcation of each category of patients' responsible parties. Defendant requests a protective order as to these requests, citing privacy concerns for the residents at issue. “In Hill, we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circum...

Excerpt: ...v. Code §§ 1717 and 5975(c). (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal. App. 4th 761, 773.) While fees are recoverable, they must be reasonable incurred and are subject to the lodestar method for determination of the proper sum. (PLCM Grp. v. Drexler (2000) 22 Cal. 4th 1084, 1095.) Although there was apparently a contractual agreement between Plainti
¯s and their counsel for a $250/hr. billing rate, Plainti
¯s' counsel in...

Excerpt: ...which the manufacturer has made an express warranty shall: . . . (3) Make available to authorized service and repair facilities su
¯icient service literature and replacement parts to e
¯ect repairs during the express warranty period.” Civ. Code § 1793.2(A)(3). Plainti
¯ largely just parrots the language in the code, without making any actual factual allegations regarding what authorized service and repair facilities Plainti
¯ presented to ...

Excerpt: ...urden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a 'summaryjudgment-like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts t...

Excerpt: ... two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued. [Citation.) Weighing these factors lies within the broad discretion of the superior cou...