Excerpt: ...that case, the Appellate Court was considering argument to a jury by a prosecutor in which the prosecutor repeatedly emphasized a study relied on by an expert. The Court stated that statements by counsel are not evidence. The Richardson opinion did not stand for the proposition that declarations by counsel must therefore be ignored by courts. The Court rules as follows: 1. Overruled on all grounds. 2. Sustained as to the mediation privilege as to...

Excerpt: ...application. The moving party bears the burden to provide “facts sufficient to justify the sealing.” Rule 2.551(b)(1). “The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication. [Citation.] Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are ‘ “presumptively open.” ...

Excerpt: ...l the papers submitted show that there is no triable issue as to any material fact and is therefore entitled to judgment as a matter of law. Id.; see CCP § 437c(c). A plaintiff moving for summary judgment has met its burden of showing that that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff has met that burden, the bu...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ...Attorney Fees and Costs. California Rule of Court (CRC) 7.955(b) requires that the Petition provide sufficient information for the Court to find that the attorney fees sought are reasonable. CRC 7.955(c) requires a declaration by counsel addressing each of the factors set forth in subsection (b). The declaration here merely states that the matter involves an adult with a disability, and that a standard 33 1/3% contingency fee was negotiated in th...

Excerpt: ...rden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto CCP § 437c(p)(1). Summary judgment may be granted where all the papers submitted...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ...mstances, an irregularity has materially affected substantial rights and prevented a fair trial is addressed to the discretion of the trial court.” Id. This is because the trial court has “heard and seen the witness and having knowledge of circumstances which may not be produced in the record.” Id. Here, the complained‐of act is the release of exhibits (occurring January 18, 2018), and subsequent destruction of one exhibit (April 18, 2018...

Excerpt: ... waived his rights to mediation/arbitration and for appointment of an arbitrator. To effectuate justice the Court will briefly clarify its prior ruling. On September 9, 2019, the Court issued an order compelling arbitration which also included a finding that mediation was a contractual prerequisite to arbitration. Based on this ruling, the Court expected the parties would have proceed with mediation and if unsuccessful would have then initiated t...

Excerpt: ... is a Quiet Title and Declaratory Relief action. The Complaint was filed August 13, 2019. A lis pendens was filed the same day. The plaintiff is Barbara Alt. The defendants are Alma Robertson (deceased), all successors of Alma Robertson, and Bonnie Zuckswert. Defendant Bonnie Zuckswert filed a response on September 19, 2019. The instant motion was timely filed on October 24, 2019. It is unopposed. Meet and Confer. “The moving party shall file a...

Excerpt: ....) No objection to notice having been made by Plaintiff, the Court exercises its discretion to rule on the merits of the motion. Merits of the Motion: Defendant seeks an order compelling Plaintiff to provide responses to Defendant's Requests for Production, Set Six on grounds that Plaintiff has failed to respond to these discovery requests, even after Defendant reminded Plaintiff of the outstanding requests. The motion is brought pursuant to Code...

Excerpt: ...ent Amendment to the Agreement (“the Amendment”) were entered into by individuals who were not named parties to the action and to which the Court's jurisdiction does not extend. This jurisdictional concern has been previously raised by the Court to counsel, yet it was not sufficiently briefed in conjunction with the instant motion. The Agreement and the Amendment provide that net proceeds shall be distributed first to reimburse Mr. Sarid for ...

Excerpt: ...dant and counsel elected not to participate in. Sanctions were therefore imposed. Mr. Pickering now brings this motion, asking the Court to reconsider the imposition of sanctions related to the Motion to Compel. CCP § 1008, which governs motions for reconsideration, provides that: [w]hen an application for an order has been made to a judge, or to a court, and . . . granted, . . . any party affected by the order may, within 10 days after service ...

Excerpt: ...nted if the following conditions are met: (a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses. (b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits. (c) The court has determined either of the following: (1) The moving party would not in the exercise of reasonable diligence have determined...

Excerpt: ...nly allowed in exceptional cases. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010. Because of the fundamental unfairness to opposing counsel, were the Court to consider these new pieces of evidence without providing an opportunity to respond, the Court declines to consider the new evidence in the reply briefing. Requests for Judicial Notice: Both parties request judicial notice be taken of the published opinion of the Third District...

Excerpt: ...esented to the Shasta Reginal Medical Center Emergency Department on December 31, 2016 at 9:52 a.m. He was complaining of severe back pain and reported that he had tripped earlier that day. Plaintiff had a history of bulging discs. At 9:59 a.m. he was evaluated by Defendant Betsy Oppezzo, PA. Plaintiff complained of explosive pain which was exacerbated with ambulation and twisting. Ms. Oppezzo's examination showed Plaintiff to be alert but in mil...

Excerpt: ...are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. There is a genuine issue of material fact only if the evidence would allow a reasonable trier of fact to find the underlying facts to be in favor of the party opposing the motion in accordance with the applicable standard of proof. Id. at 845. The court's sole function on a motion for summary judgment is issue‐finding, not issue‐determination...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ... motion for judgment on the pleadings.” Coyne v. Krempels (1950) 36 Cal.2d 257, 262. A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for a demurrer has expired. Except as provided by statute, the rules governing demurrers apply. Cloud v. Northrup Crumman Corp. (1998) 67 Cal.App.4th 995, 999. A motion for judgment on the pleadings is proper when “the complaint does not state facts s...

Excerpt: ...sts and attorney's fees. The offer expressly stated that the settlement included any liens but did not state how payment would be made or how the check would be made payable. Defendants have provided a check in the amount of $100,000 made payable to Plaintiff, Plaintiff's counsel, Medicare and Tricare. Medicare and Tricare are lienholders related to medical services provided to Plaintiff. Plaintiff argues that payment must be made to Plaintiff an...

Excerpt: ...tion. Plaintiff will be filing a Second Amended Complaint. Therefore the Court finds that the demurrer and motion to strike is moot except for the demurrer to the fourth cause of action. The analysis will therefore only address the fourth cause of action. Fourth Cause of Action – Dangerous and Defective Condition of Public Property: Government Code section 835 sets out the exclusive conditions under which a public entity may be held liable for ...

Excerpt: ...ary judgment if all the papers submitted show that there is no triable issue as to any material fact and is therefore entitled to judgment as a matter of law. Id.; see CCP § 437c(c). A defendant moving for summary judgment has met its burden of showing that a cause of action has no merit if it has shown one or more elements cannot be established. CCP § 437c(p)(2). A cause of action “cannot be established” if the undisputed facts presented b...

Excerpt: ...oduction 1‐3, 5‐6, and 9. The motion also seeks sanctions for having to file the motion to compel further responses. Verifications: Discovery responses are required to be verified and an unverified response is considered to be no response at all. Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636. Plaintiffs' motion states that the responses were unverified at the time of production but fails to state that verifications were later prod...

Excerpt: ...equested. Plaintiff has satisfied the procedural requirements of CRC Rule 3.1324. Plaintiff cites to CCP §§ 473 and 576 as the grounds for bringing this motion. The points and authorities further discuss CCP §§ 425.13 and 426.50 but neither statute is included in the Notice of Motion, nor is either applicable here. The parties' reliance on CCP § 425.13 and the cases interpreting it is misplaced. CCP § 425.13 pertains to leave to amend to ad...

Excerpt: ...bmitted a “Request to Ammend (sic) Complaint.” The Request is not a proper motion nor a proper amendment to the Complaint. Further, Plaintiff's right to amend without leave of Court expired at the time his opposition was due to the motion to strike. CCP § 472(a). Therefore the Court denies the request to amend. A motion to strike can be used to attack the entire pleading, or any part thereof, including single words or phrases. Stearns Rancho...