Excerpt: ...e Court partially sustained MCWE's demurrer to the Second Amended Complaint filed by Plaintiffs Newport Harbor Ventures, LLC (“NHV”) and Vertical Media Group, Inc. (“VMG”) (collectively “Plaintiffs”), eliminating two causes of action; that on 6/24/15, Plaintiffs filed a Third Amended Complaint (“TAC”); and that on 6/24/15, the Court granted MCWE's motion for summary adjudication on three of the four causes of action, including all...

Excerpt: ...gregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened ‘clear and convincing evidence' standard.” Id. The first cause of action is alleged in conclusory terms. It alleges that the plaintiff was an elder and admitted to defendants' 24-hour health facility (TAC, ¶ 11) and the defendants were to provide care or services to dependent adu...

Excerpt: ...dication is GRANTED as to the Fourth through Seventh Causes of Action. Preliminarily, Lacy did not comply with the requirement that issues for summary adjudication be identified in the notice of motion, and then repeated verbatim in the separate statement. See Cal. Rule of Court 3.1350(b). The Court has discretion to deny a summary judgment/adjudication motion for failure to comply with the separate statement requirement. See Code Civ. Proc. §43...

Excerpt: ...ved supplemental answers to 12.1 and 17.1. If the defendant has not served such supplemental answers to these two interrogatories, it should do so. As to 17.1, plaintiff failed to comply with CRC 3.1345(c)(5). The motion of plaintiff Dale Scott & Co. for an order compelling a further response to form interrogatories from defendant Fieldman, Rolapp & Associates, Inc., is GRANTED to the extent that it seeks a supplemental answer to interrogatory 12...

Excerpt: ...d the reasons for the discovery; 2. The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 3. Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trail calendar, or result in p...

Excerpt: ...responses, show that plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 855.) The initial burden of production is on the defendants to show by a preponderance of the evidence, that it is more likely than not that a given element cannot be established or that a given defense can be established. The ultimate burden of persuasion also rests on defendants, as the moving party...

Excerpt: ...le of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.”). The Second Amended Complaint alleges the following: that Defendant drove her vehicle to the Dana Point Harbor and then spent several hours willfully consuming alcohol at bars to the point of serious alcohol intoxicating, knowing that she would thereafter operate her vehicle at the Dana Point Harbor (SAC, ¶ 11); Dana Point is a well-...

Excerpt: ... or intentional acts or omissions of OC Farm Bureau. It also contends that it did not engage in any active negligence on the day of the incident. Here, as set forth in the separate statement submitted by Mariners Church, the relevant provision in the license agreement between Mariners Church and OC Farm Bureau states: Licensee shall indemnify, defend, and hold harmless Licensor, its officers, agents and employees, from and against any claims, dam...

Excerpt: ...e First Cause of Action for Cancellation of Deed, as Mrs. Andersen's custody or possession of the instrument in question is not an essential element for this claim. See Civ. Code §3412. The motion is DENIED as to the Third Cause of Action for breach of common law fiduciary duty. Mrs. Andersen argues that the claim is barred by Family Code §1101(a) and Probate Code §16460(a). However, the First Amended Complaint does not clearly disclose that p...

Excerpt: ...ast two respects. First, it does not clearly state the issue to be decided as required by CRC 3.1350 (d) and (h). Second, both the separate statement and the notice of motion are defective because they do not repeat, verbatim, the issues or claims to be decided. Finally, as to the merits, in its Separate Statement at Facts 1-4, Defendant So. Cal. Sandbags meets its initial burden of production by a preponderance of the evidence. Defendant makes a...

Excerpt: ...dian ad litem, Randy Pearcy is DENIED. The motion for summary adjudication of the Third Cause of Action, Count Three is DENIED. There is a triable issue of material fact as to whether there was a vertical elevation in the sidewalk on Camino Mira Costa that caused plaintiff's fall. In addition, plaintiff's expert, Peter Zande, opines that this condition must have existed since the time the concrete was poured. (Zande Decl., ¶10(A).) As a result, ...

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Excerpt: ...own v. Williams (2000) 78 Cal.App.4th 182, 186 fn. 4; Ramos v. Homeward Residential Inc. (2014) 223 Cal.App.4th 1434, 1444.) Plaintiff's proof of service filed on 6/01/17, purports to show substituted service on Tavaris on 5/24/17 at 3:50 p.m. by leaving the papers with his father Albert Williams at 1726 Dees Dr., Ellenwood GA 30294 (the “Ellenwood Address”). The process server made two unsuccessful attempts at personal service before leaving...

Excerpt: ...there is no frame of reference. Plaintiff also submits her own deposition testimony that the crack was in her guess, approximately 1-2” but Plaintiff admits that she is “not sure on the exact width of the crack.” Plaintiff also does not dispute that there were no other factors leading to the accident. As a result, the Court finds that, as a matter of law, the defect was trivial and Plaintiff did not raise a triable issue of fact. Defendants...

Excerpt: ...e of material fact regarding whether they caused plaintiff's alleged injury. Plaintiff's Complaint alleges that the dismissal of the underlying case was due to the fact that defendants withdrew expert designations in the case. (Compl., p. 4.) Defendants present evidence that they designated experts in the case on 02/22/16. (Def.'s Ex. 12.) Defendant Strongin further avers that he did not withdraw the expert designations, and that, to the best of ...

Excerpt: ...ice of summons for lack of jurisdiction, the burden of proof is on the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. Kroopf v. Guffey (1986) 183 Cal.App.3d 1351. According to the recent case of Bristol-Myers Squibb Co. v. Superior Court (2017) 137 S.Ct. 1773, 1779-1780: Since our seminal decision in International Shoe, our decisions have recognized two types of personal jurisdiction: “general” (sometimes...

Excerpt: ...rgues correctly that the attorney-client privilege does not apply to physical evidence collected by counsel, because it is not a communication from client to counsel or vice versa, but a physical object transmitted to the attorney. (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176-177.) Under Suezaki the court must determine whether the work product privilege applies. And even if it were to apply, the work product privilege is not absolute, so...

Excerpt: ...the mediation on March 6, 2018, but that the mediation is not concluded as Defendants are to provide Plaintiff with certain financial information and the parties are to meet telephonically with the mediator on 3/19/18. (Id., ¶11.) Accordingly, the Court ORDERS the parties to agree on mutually agreeable dates for the property inspection and depositions as they previously agreed to do in their 2/9/18 email exchanges to occur within the next 30-cal...

Excerpt: ...opposition) and on 3-22-18 (Exhibit G to opposition). As a result, the motion is moot. The request for a monetary sanction of $3699 is denied. II. Motion to Compel – RFA Defendant moves to compel a further response to the first set of requests for admissions that contains supplemental answers to requests 9, 22, 28, 29, and 30. Plaintiff served a supplemental response on 3-2-18 (Exhibit F to the opposition) and provided supplemental answers to a...

Excerpt: ... I. Whether CHOC complied with the requisite standard of practice CHOC's staff of nurses and non-physicians met the standard of care in treating Plaintiff DENIED on this issue. CHOC carries its initial burden of production to make a prima facie showing, by a preponderance of the evidence, that CHOC's staff met the standard of care in Feb. 2015 and specifically during the surgery on 2/23/15. (SS at Facts 1-21, Exs. A-D.) In support, CHOC submits t...

Excerpt: ...determining whether to issue a preliminary injunction: (1) how likely it is that the moving party will prevail on the merits, and (2) the relative harm the parties will suffer in the interim due to the issuance or non-issuance of the injunction. The greater the showing on one, the less must be shown on the other to support an injunction. Ibid. Plaintiff contends that he “and his corporation,” i.e., nominal defendant Ital Pizza, Inc., have the...