Excerpt: ...e pursuant to Code of Civil Procedure Section 1019.5. Defendant Dr. Wittler moves the court for summary judgment on the grounds that he complied with the applicable standard of care in the care and treatment of Plaintiff Erin Nepusz. There are no triable issuex of fact as to the applicable standard of care and whether Dr. Wittler breached the standard of care. “[A] physician is required to possess and exercise, in both diagnosis and treatment, ...

Excerpt: ...th 462, 470.) The court declines to award a multiplier as requested by plaintiff, given the lack of complexity. The court does not rule on the issue of costs since there is presently pending a motion to strike/tax costs on calendar for hearing on September 6, 2018. ...

Excerpt: ...e pursuant to CCP 1019.5, forthwith. Page 4 of 6 Defendants Michael and Cathleen Marmon demur to the 1st, 2nd and 4th causes of action in Plaintiff JLS Development Group, Inc.'s Complaint on the grounds they fail to state facts sufficient to constitute a cause of against them and/or are uncertain. Plaintiff JLS Development Group, Inc. alleges as follows: Defendant Melissa Swauger enlisted the help of her parents Defendants Michael and Cathleen Ma...

Excerpt: ...ction. LOLZ Based upon the recorded documents and other documents of which the court may take judicial notice, the Trustee under the DOT is Zieve, Brodnax & Steele (“ZBS”) and not LOLZ. Moreover, ZBS has made an appearance in this action as the Trustee (and has filed a Declaration of Nonmonetary Status). Plaintiff does not address the issue in the opposition and appears to concede that LOLZ has been improperly named. Freedom Mortgage Because ...

Excerpt: ... agreement can be reached that would resolve the objections raised in the demurrer. As part of the meet and confer process, Cross‐Defendant shall identify the specific causes of action that she believes are subject to demurrer and identify with legal support the basis of the deficiencies. Cross‐Complainant shall provide legal support for his position that the pleading is legally sufficient or, in the alternative, how the cross‐complaint may...

Excerpt: ...mplaint alleges that Norden is a resident under the care of Watermark a residential care facility. In February 2017, Norden was 87 years old and residing at The Fountains in Palm Desert, California. Upon his admission, Norden was assigned to an apartment and was provided an emergency necklace in case he suffered a fall or other sort of emergency while at the facility. On February 16, 2017, Norden fell in his apartment and could not get up. Norden...

Excerpt: ...ners Association is to give notice pursuant to CCP 1019.5, forthwith. This court granted Defendant Tri Palms Unified's Motion to Strike pursuant to C.C.P. §425.16 (Anti‐SLAPP) and awarded it attorney's fees and costs of $35,225.77 on May 26, 2016. Additional fees were awarded to Tri Palms on July 27 2016 in the amount of $6,750 after the court heard and denied Plaintiff's Motion for Reconsideration of the Anti‐SLAPP motion. Tri Palm's total ...

Excerpt: ...fessional negligence through the testimony of her two expert witnesses, Plaintiffs satisfy their burden in opposition to demonstrate the existence of triable issues of fact with respect to both the alleged breach of the standard of care and causation. Plaintiffs' expert, Jack Sills, M.D. is properly qualified and opines that the standard of care required that the twins be subject to parallel evaluations and antibiotic treatment and that if Joshua...

Excerpt: ...derlying complaint is an interpleader action by SBS with named defendants Monica Carranza, County of Riverside Code Enforcement Department and Ford Motor Credit Company. The interpleader action is the result of a foreclosure that resulted in excess funds of $8,041.63 (less attorney's fees and costs). The Trustee's Sale Guaranty indicated that Carranza, County and/or Ford Motor may be “next in line” and entitled to a portion of the surplus fun...

Excerpt: ...rt construes the absence of a memorandum as an admission that the motion is not meritorious and good cause for the denial of the motion. (Rule 3.1113(a).) Page 2 of 2 The factual representations in the motion are not supported either by any declaration or other evidence or by any request for judicial notice. The absence of either demonstrates that the motion is meritless. The absence of both, coupled with the moving party's insistence on May 17, ...

Excerpt: ...ion is that Plaintiff's supervisor, Defendant Matt Juline, made sexual comments that were offensive and demeaning to Plaintiff, that AMC did nothing to stop Juline when made aware of his conduct and that AMC retaliated against Plaintiff when she complained. More specifically, Plaintiff alleges in some detail the graphic sexual remarks made by Juline in her presence; that when Plaintiff told Juline his comments were inappropriate, he told Plaintif...

Excerpt: ...aining Order was in place. Hence, Plaintiff County of Riverside established the operation of a cannabis business at the subject property, in violation of Riverside County Ordinance numbers 348 and 725. Operating or allowing the operation of a cannabis business or a marijuana dispensary is an illegal use of the subject property under the Riverside County Ordinance. The proposed Preliminary Injunction prohibits defendants from operating or allowing...

Excerpt: ...right to exercise an option to renew a commercial lease between International Apparel and Accessories, Inc. (IAAA) (which entity was subsequently stricken from the complaint on 6/29/17 because Plaintiff Paige Linn, president of IAA opted to pursue the matter in pro per without counsel and could not represent the interest of the corporation as she is not a licensed attorney) and Defendant Heidi Hustedt. In addition, the prior pleadings arose out o...

Excerpt: ... Moving party to give notice. 42 U.S.C. § 1395x, 45 CFR § 164.512 and Cal. Civ. Code § 56.10 are completely inapplicable to Defendant. The definition of “provider of services” under 42 U.S.C. § 1395x applies for purposes of payments to physicians and funds of medical schools. The restricted disclosures under HIPAA, 45 C.F.R. § 164.512, apply only to “covered entities” which include 1) health plans; 2) health care clearinghouses; and ...

Excerpt: ... agency knew or should have known of the existence of this case before April 24, 2018, and the agency's commitment that it will be prepared to participate in trial without any continuance, intervention is appropriate ...

Excerpt: ...618, 620, are not sought to be struck. With a singular basis for the prayer surviving, there is no reason to engage in a line by line approach to the attorney's fees, the which could be properly brought posttrial for the first time any way ...

Excerpt: ... not say that prosecutors are free of any limits on their financial conflicts of interest. To the contrary, the Court said: “We do not suggest . . . that the Due Process Clause imposes no limits on the partisanship of administrative prosecutors. Prosecutors are also public officials; they too must serve the public interest. [Citation.] In appropriate circumstances the Court has made clear that traditions of prosecutorial discretion do not immun...

Excerpt: ...fs single cause of action for interference with contractual relations fails in the first instance because Plaintiffs do not sufficiently allege a disruption of their right to make a payment under the note secured by the First Deed of Trust (DOT). Plaintiffs were already in breach of their obligations under the First DOT at the time that 2 nd Chance Mortgage (2CM) acted. Moreover, to the extent that the cause of action is based upon Plaintiffs' un...

Excerpt: ...istrict's funding. Further, because LAFCO and the District have divergent interests, LAFCO may not adequately represent the District's interests in the litigation. See County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 37‐38 (common litigation objective is not enough to establish adequacy of representation where separate public entities may have divergent interests). Moreover, even if intervention were not mandatory, the District m...

Excerpt: ...ng waste or any other exceptional circumstance demonstrating a receivership is warranted in this case. Receivers may be used only where authorized by statute or where necessary to preserve the property rights of any party. (Miller v. Oliver (1917) 174 Cal. 407, 410; Turner v. Super. Ct. (Cooke) (1977) 72 Cal.App.3d 804, 811.) The burden is on the moving party to present evidence showing facts establishing one of the statutory grounds for receiver...

Excerpt: ...w of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular.” (People v. Shuey (1975) 13 Cal.3d 835, 841.) The court of appeals did not determine the validity o...

Excerpt: ... of the requirements prescribed by section G of the CMO#2, one line for each requirement in each paragraph or sub‐paragraph. The other column shall describe – by document name, page, and line numbers ‐‐ where in the moving papers each of the corresponding requirements is satisfied. Analysis: The second motion fails to comply with the Court's CMO#2 or is otherwise ambiguous or contradictory in the following respects: 1. The agreement provi...

Excerpt: ...tial burden by producing the expert testimony of Dr. Klein, showing that Dr. Tang did not breach the applicable standard of care or cause Merri Baldwin's death, and the burden shifted to Plaintiffs. The testimony by Plaintiffs' expert, Dr. Leo, shows triable issues of fact precluding summary judgment. Prevailing party to give notice. ...

Excerpt: ... Special Interrogatories were received, the motion is also moot except for the issue of sanctions. If the responses to Special Interrogatories were not received the motion is granted along with sanctions as described below. No meet and confer is required for compelling original responses or deeming admissions. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 777‐778; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (...

Excerpt: ... to cause delay. See for support cases involving youth baseball teams: 1. C.H. v. Hemet Youth Baseball, RIC1512685, filed October 22, 2015. (RJN, Ex. 5.1) This case was dismissed on December 17, 2015 (Ex. 5.9.); 2. Hanna v. Ian Hall et al, U.S. Dist. Court Case No. 5:15‐mmc‐00009‐UA‐DBT, filed August 17, 2015 and dismissed on September 8, 2015d (Ex. 6.1); 3. Hanna v. Hemet Youth Baseball, RIC1513590, filed November 18, 2015 and dismissed ...

Excerpt: ...Hudson … and was also physically and emotionally abusing his other son Kaiden… from a relationship with Lyndsay Hunter. The actual words were that the Plaintiff punched Hudson and threw him into a swimming pool, pinching his body and forcing him to sit naked outside then throwing a telephone at him and there he forced the two boys to fist fight one another”; that Cebreros later repeated those words to Brigman and Hunter; that Cebreros also ...

Excerpt: ...ntrary to the specific allegations regarding Lowe in the complaint. The battery and false imprisonment that took place all allegedly occurred “while Lowe and ROES 1 through 5 left the team unsupervised, which was in contravention to their duties as they had direct control and supervision responsibilities on behalf of the DISTRICT.” (Complaint, ¶17.) Lowe did not directly take part in the wrongful conduct. As such, he cannot directly be held ...

Excerpt: ....5. Instead, it suggests only: that counsel spoke briefly by phone, during which plaintiff's counsel promised to provide additional authority within two weeks; that he failed to do so; and that defendant's counsel made no further efforts to speak with him. That does not constitute a reasonably diligent and good‐faith attempt to discuss and resolve the merits of the defendant's challenges to the complaint. ...

Excerpt: ...he fiduciary obligations—not contractual obligations. 2COA (Fraud): Plaintiff asserts that the Listing Agreement was only for one property and Defendants improperly added the second property, but yet, she was aware that she was selling both properties in the sale. (FAC ¶15‐16, 27.) It is unclear if Plaintiff only wanted to sell one property—which she is not yet asserting. 3COA (Implied Covenant): Again, the FAC merely pleads the conclusion...

Excerpt: ...nary injunction may issue: “When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.” The purpose of a preliminary injunction is to preserve the status quo until a final determination of a cause of a...

Excerpt: ... medical negligence. Summary judgment is granted when a moving party establishes the right to entry of judgment on a particular cause of action as a matter of law. (Code Civ. Proc. § 437c(c).) A defendant moving for summary judgment bears the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of a...

Excerpt: ...ply are granted as to objections ## 4, 5, 15 & 16, but otherwise overruled. The motion for summary judgment is denied. The alternative motion for summary adjudication is denied. Analysis: Judicial notice: Judicial notice of the unrelated trial court rulings is denied because an isolated “trial court ruling has no precedential value.” (Santa Ana Hospital Medical Center v. Belshé (1997) 56 Cal.App.4th 819, 831.) Evidence: Facts asserted on inf...

Excerpt: ...en filed. That plaintiff's counsel was not working at his office and did not know that he had received the responses by the time that he filed his motion explains why the motion was filed, but does not change the fact that the motion to compel was no longer necessary. When plaintiff's counsel discovered that the responses had been received, he should have granted the defendant's request to withdraw the motion and to spare the defendant from the e...

Excerpt: ...dramatically windy day and was significantly injured when a tree fell on the golf cart he was riding in and later died four days later after he underwent surgery related to the injuries. The allegations are that defendants were negligent in the maintenance of the golf resort, specifically failing to maintain the trees on the golf course and the failure to properly prune the trees. That defendants were aware that the trees were suffering from a la...

Excerpt: ...0(c) where the responses are untimely, as here. Appleton v. Superior Court (1988) 206 Cal. App. 3d. 632. An award of sanctions to moving party payable by Plaintiff Blake Peterson on all two motion, is appropriate and reasonable in the amount of $900 (2 hours at $300/hour) plus $120 filing fees. An award of sanctions to moving party payable by Eric Petersen on the motions, is also appropriate and reasonable in the amount of $780 (2 hours at $300/h...

Excerpt: .... When an action is voluntarily dismissed, recovery of costs does not depend on an entry of judgment. (Fries v. Rite Aid Corp. (2009) 173 Cal.App.4th 182, 183.) As to Item 4 for deposition costs, the court has exercised its discretion and considered evidence submitted with the reply regarding the standard charge for the court reporter used by defendants for the deposition of plaintiff. Plaintiff sufficiently challenged the necessity for an expedi...

Excerpt: ...ered analysis under CCP section 1161a. Although Malkoskie dealt with a stipulated judgment, the Court of Appeal did not cite that as a key fact in its holding. Rather, the Court wrote: [w]e therefore hold the unlawful detainer judgment has claim preclusive effect challenging the validity of … title.” Id. at 976. In the instant matter, the UD also necessarily addressed this same issue of title as it too was based on 1161a. Further, in the UD a...

Excerpt: ...val of a proposed class action settlement were denied. The plaintiff reserved a hearing for a third motion for preliminary approval to be conducted on May 23, 2018. She filed the notice of motion on May 1, 2018. However, no other documents were filed in support of that motion except for a declaration from defendant's counsel filed May 3, 2018. The notice of motion refers to a memorandum of points and authorities, the settlement agreement, other u...

Excerpt: ...d number 3 below, are competing motions, and are therefore, analyzed under the heading of the motion for reimbursement. Page 2 of 4 The court has reviewed the Supreme Court's decision in Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 829, 832‐833 and finds it inapplicable because there is no evidence that the decedents' employer was negligent, so there is no need for an evidentiary hearing. As such, the...

Excerpt: ...petitioner only requested a hearing date on 04/18/2018, almost two months after the last date to request a hearing date, after real party in interest filed its motion to dismiss. The motion is based upon the grounds that the failure to timely request a hearing date was the result of excusable neglect. For the following reasons, the motion is granted: The failure to timely request a hearing date was a result of excusable neglect. When a petition f...

Excerpt: ...element, the defendant must establish that plaintiff's claims fail as a matter of law. (Eriksson v. Nunnick (2011) 191 Cal.App.4th 826, 849.) To demonstrate that the plaintiff lacks evidence, the defendant must show that the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 855.) A defendant may not simply point to an absence of evidence, but must show that the p...

Excerpt: ...walking along the dirt shoulder of a road. At the time, Labuen was making deliveries on behalf of a Round Table Pizza franchise, D & N Pizza, that he co‐owned and operated with his wife, Defendant Nancy Sonneborn. Labuen also named as Defendants Round Table Pizza, Inc. ("RTP") and Round Table Development Company ("RTDC") (collectively as "the Round Table Defendants"), alleging that the Round Table Defendants were vicario...

Excerpt: ...ws that after the initial collision James Lee got out of the car. At which point, Lopez took off. James Lee had to get back into the car and catch up. A chase ensued during which the evidence shows that James Lee was driving too fast. In addition, James Lee had a duty not to engage in a chase. Having just been in a car accident with Lopez, how could James Lee not be thinking that Lopez could cause another crash especially when being chased? The c...

Excerpt: ...by section I of the CMO#2, dated 6‐4‐18, one line for each requirement in each paragraph or sub‐paragraph. The other column shall describe – by document name and by page and line numbers ‐‐ where in the moving papers each requirement is satisfied. Analysis: The motion fails to comply with the case management order #1, filed 1‐19‐17, in at least the following respects:  Counsel's declaration fails to comply with §G.1.c., the po...

Excerpt: ...d must be based on a showing of mistake, inadvertence, surprise or excusable neglect. (Id.) The problem is that defense counsel is not taking the blame—he instead blames Plaintiff for bad faith tactics during settlement negotiations. Nor does Defendant provide a declaration from Defendant as to why it did not forward the complaint to its insurance carrier or failed to provide a response. However, Plaintiff did take default immediately without w...

Excerpt: ...of the requirements prescribed by section G of the CMO#1, filed 3‐17‐17, one line for each paragraph or sub‐paragraph. The column on the right shall describe – by document name, page, and line numbers ‐‐ where in the moving papers each requirement is satisfied. Analysis: The motion violates the Court's CMO. Specifically, it fails to comply with the following portions of section G of the order:  ¶ 1.f. re fee splitting agreements. ...

Excerpt: .... Analysis: By an order filed December 18, 2017, the Court preliminarily approved the settlement in this case. That order provided that the “Final Approval Hearing” would be conducted on May 20, 2018, at which the court would decide whether to grant final approval, and would also decide whether to grant any request for attorney's fees and costs, and for enhancements. The court's case management order provides at ¶ H.1 that, promptly after th...

Excerpt: ...ing party has met satisfied this requirement and the burden has been shifted to the Plaintiff to demonstrate the falsity of the purported agreement. (Condee, supra, 88 Cal.App.4th at 218‐219.) Plaintiff has not meet this burden. There is sufficient evidence of interstate commerce such that the FAA applies. Defendant provides the declaration of Carmen Lainez that it provides bail bonds to customers in California and out of state, including co‐...

Excerpt: ...deposition, as duly scheduled for April 11, 2018, at a conference room less than two miles from the dealership location. FCA US states it will make arrangements for the depositions of the dealership personnel, “so long as those depositions take place at the dealership.” Plaintiffs Doreen Kent and Donald Mead move the court to compel the deposition attendance and production of documents by FCA US LLC's Dealership personnel (PMQ, Technicians an...

Excerpt: ...e. In reviewing a disqualification motion, the court balances competing interests to ensure the parties are not denied substantial justice. (People ex rel. Dept. of Corps. v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144‐1145.) “Depending on the circumstances, ‘a disqualification motion may involve such considerations as a client's right to chosen counsel, an attorney's interest in representing a client, the financial burden...