Excerpt: ...ar statute of limitations set forth in C.C.P. § 340.5. Medlink cites Canister v. Emergency Ambulance Service (2008) 160 Cal.App.4th 388, in support of its argument that an ambulance and its driver, transporting a patient for medical treatment (as Medlink contends was done in this case), come within the purview of the definition of a health care provider within the meaning of C.C.P. § 340.5. In Canister, the court held that emergency medical tec...

Excerpt: ...ernmental entity can request the court to take judicial notice under Evidence Code section 452, subdivision (c) that the entity's records do not show compliance.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 376.) “The court may take judicial notice of the filing and contents of a government claim, but not the truth of the claim.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 369, Fn 1.) Accordingly, the Request for Jud...

Excerpt: ...as manufactured by FCA. Plaintiff alleges the vehicle has various defects. In addition, Plaintiff also alleges that on at least one occasion, she took the vehicle to Lampe Chrysler Dodge Jeep Ram ("Lampe") for repair and that Lampe negligently repaired the vehicle. The arbitration agreement at issue at issue is found in the Retail Installment Sale Contract ("RISC") attached as Exhibit A to the Rogerson Declaration. The RISC is between Wood, Brook...

Excerpt: ...or, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying." (CCP 2025.280(a).) On November 2, 2022, Ashbrook served a Notice of Deposition of Arnold for November 18, 2022. (Conti Decl., Ex. A.) No formal written objection was served. (Conti Decl., 113.) Arnold's conservator, Jonathan Starr ("Jonathan"), argues in the oppo...

Excerpt: ...s recoverable are those "fees and costs incurred on the motion to strike (not the entire litigation). (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.)" (Rutter CPBT at 7: 1135, emphasis in original.) In addition, CCP 5425.16(c) "is interpreted to allow awards of only such fees as the court deems reasonable. (Robertson v. Rodriguez (1995) 36 cal.App.4th 347, 362)" (Rutter CPBT at 7:1138) "In setting a fee a...

Excerpt: ...e issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, 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 ...

Excerpt: ...request for judicial notice is GRANTED. (Evid. Code 55 452(c), (d), and First, Second and Third Causes of Action Claims for fraud and negligent misrepresentation must be pleaded with particularity, that is, the pleading must set forth how, when, where, to whom, and by what means representations were made. (Foster v. Sexton (2021) 61 Cal.App. 5th 998, 1028; see also, Borman v. Brown (2021) 59 Cal. App. 5th 1048, 1060 [elements of negligent misrepr...

Excerpt: ...ocuments. Plaintiff did not argue why or how 1) There exists an overriding interest in sealing the Agreement that overcomes the right of the public to access the record; 2) That a substantial interest supports sealing the record; 3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; 4) The proposed sealing is narrowly tailored; and 5) No less restrictive means exist to achieve the overrid...

Excerpt: ...["only those attorney fees and costs related to the special motion to strike, not the entire action, may be recovered"].) The fees awarded should include services for all proceedings directly related to the special motion to strike, including those relating solely to the fee. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 556.) Aa party who partially prevails on an anti-SLAPP motion must g...

Excerpt: ...h is the Marovic defendants or "Defendant Group which is the City defendants. The FAC alleges the following c/a's against the defendant groups: 1. Breach Of Warranty Of Habitability (Marovic Defs) Specific Performance Of Negligent Maintenance (Marovic Defs) 2. Violation Of Unfair Business Practices Act (Marovic Defs) 3. Wrongful / False Arrest (All Defs) 4. Public Nuisance (City Defs) 5. Private Nuisance (Marovic Defs) 6. Violation Of Cal. Civ. C...

Excerpt: ...up to and including trial,” absent prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) Absent prejudice, delay alone is not ground for denial. If delay in seeking the amendment has not misled or prejudiced the other side, the liberal policy of allowing amendments prevails. Indeed, it is an abuse of discretion to deny leave in such a case, even if sought as late as the time of trial. (Higgins v. Del Faro (198...

Excerpt: ...t provides in pertinent part that, for Pouliot to show a right to judgment thereon, the following must be shown: 1) that Cohen defaulted on the agreed payment schedule; 2) that Cohen was given notice of that default, through his counsel, by mail with return receipt requested, as well as by email; 3) that Cohen then failed to cure the default within 15 days after such notice; 4) that the Pouliot bank account into which Cohen could make the payment...

Excerpt: ...le, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....

Excerpt: ...ishing the existence of an arbitration agreement. The Court thus finds the evidence submitted by Defendant is sufficient to support the existence of an agreement to arbitrate as a preliminary matter under Condee. Defendant is not a signatory to the subject arbitration agreement, which appears in the Motor Vehicle Lease Agreement (the “Lease Agreement”) between Ana Bengel (“Plaintiff”) and Perry Infiniti. (See Maugeri Decl. at Ex. 3, Secti...

Excerpt: ...7/22, in a detailed ruling with which this Court concurs. For similar reasons, this Motion is also denied. The party moving for summary judgment or adjudication “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie ...

Excerpt: ... defendant, that either of the following conditions exist: (i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.” (Civ. Proc. Code § 438(c)(1)(B)(i).) “A motion for judgment on the pleadings is akin to a general demurrer; it tests the sufficiency of the complaint to state a cause of action. [Citation omitted.] The court must assume the truth of all factual allegations in the complaint, along with m...

Excerpt: ...enth causes of action and SUSTAINED with 30 days leave to amend as to the second, third, fifth, sixth, seventh, eleventh, and twelfth causes of action. The motion to strike is GRANTED as to the punitive damages and attorneys' fees allegations. 1. Demurrer “In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not...

Excerpt: ... 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, 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 no...

Excerpt: ...rden of demonstrating that the offer is a valid one under section 998. (Citation) The corollary to this rule is that a section 998 offer must be strictly construed in favor of the party sought to be subjected to its operation. (Citation)… Finally, our Supreme Court has held that the legislative purpose of section 998 is generally better served by ‘bright line rules' that can be applied to these statutory settlement offers—at least with resp...

Excerpt: ...ce limited to matters that are relevant.) Meet and Confer: CCP § 430.41(a) requires that the demurring party meet and confer with the party who filed the pleading that is subject to the demurrer at least 5 days before the date the responsive pleading is due, by telephone or in person, for the purpose of determining if the parties can resolve the objections to be raised in the demurrer. (CCP § 430.41.) The demurring party must file and serve a d...

Excerpt: ...ng compliance with it upon those terms or conditions as the court shall declare, including protective orders. Here, the Court finds that the subpoena should not be quashed but should be modified as to any tax records that may be within the scope of the subpoena, and that a protective order should issue, limiting the use of the materials to be produced in response. As a preliminary matter, the Motion correctly observes that for the subpoena at iss...

Excerpt: ...2.1 through 12.5 are “Investigation – General” interrogatories which ask a responding party to identify witnesses to the incident, people who were interviewed regarding the incident, written statements concerning the incident, and photographs, films, videotapes, diagrams, and/or models of the incident. These FROG are generally for personal injury actions, however Plaintiff marked box (a)(1) for the definition of “Incident,” which states...

Excerpt: ...ing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (citing text). A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119. Here, Illusions seeks summary judgment in its favor and against Plaintiff, Mischa Denton (“Pla...

Excerpt: ...1, on the request for summary judgment as to Meredith, is GRANTED. The alternative request for summary adjudication is defective here, but in any event is MOOT based on that ruling. As a preliminary matter, Plaintiff has asserted that there are multiple defects in the Motion which preclude relief here. Plaintiff first argues that Issues 2 and 3 are not each sufficient to completely dispose of a cause of action (a “COA”), defense, damages clai...

Excerpt: ...OSPITAL at the hands of Defendant ROSENBERG and that during the surgery, Defendant ORTHOWEST and ROSENBERG negligently placed a surgical screw into his left L-5 nerve root causing him permanent injury and damage to his spine and spinal nerves. Medical Negligence. The elements of a claim for “medical malpractice” are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a b...