Excerpt: ...mpetent expert testimony that they acted at all times within the applicable standard of care. Ko Declaration, paragraphs 5 — 11; and Monjazeb Declaration, paragraphs 6 — 11. This expert testimony is sufficient to shift the burden under Code Civ. Proc. section 437c(p)(2) to plaintiffs to provide evidence of breach of the standard of care. Causation must be proven within a reasonable medical probability based on competent expert testimony. Broo...

Excerpt: ...and conditions set forth therein and the Gross Settlement Amount and the allocation of payments. The proposed settlement terms are as follows: (1) Gross Settlement Amount of $480,000.00; (2) Attorney's Fees of $160,000.00 (1/3 of the Gross Settlement Amount) and costs of up to $10,000.00; (3) Settlement administration costs of approximately $10,500.00; (4) $10,000.00 allocated for PAGA Penalties under the Private Attorney General Acton of 2004 ("...

Excerpt: ...rt (Cole National Corp.) (2004) 122 Cal.App.4± 1060, 1078.) Plaintiffs' generic reference to the "State of California" does not provide sufficient information to put the relevant agency or department on notce of the claim(s) against it herein. Moreover, Plaintiffs' argument in opposition, i.e., that the subject property is designated as "open irrigated land" under the California Land Conservation Act, appears insufficient to support the purporte...

Excerpt: ...sition of liability. The traditional elements of duty, breach of duty, causation, and damages apply. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, S 838, p. 195, Marlene F. v. Affiliated Psychiatric Med. Clinic, Inc., (1989) 48 cal. 3d 583, 588). The Court finds that a cause of action for Negligent Infliction of Emotional Distress does not exist in this Damages for severe emotional distress, rather, are recoverable in a negligence action w...

Excerpt: ...s not prejudiced by said service. In the interests of equity, the Court holds such service valid. The Court finds that AB 218 (Code of Civil Procedure S 340.1) expressly exempts Plaintiff from complying with the claims presentation requirement of Government Code S 905. The Court further finds that AB 218 does not constitute an unconstitutional gift or appropriation of public funds, to the benefit of particular individuals based on an exception to...

Excerpt: ...s Inc. to Provide Responses to Special Interrogatories, and for an Award of Monetary Sanctions Against Defendant and Attorney; d) Plaintiff's Motion to Compel Defendant Brunk Industries Inc. to Provide Responses for Production of Documents, and for an Award of Monetary Sanctions Against Defendant and Attorney (a) GRANTED, unopposed. The Court finds that Defendant has entirely failed to respond to Plaintiff's Request for Form Interrogatories, (Gen...

Excerpt: ... with Cal. Rules of Ct., rule 3.769(c). The class counsel, class representatives, and claims administrator are hereby preliminarily approved and appointed as set forth in the motion. However, the Court is not convinced that the proposed payment structure for enhancement payments to the representative plaintiffs is justified; specifically, the Court does not believe that the moving papers and supporting evidence support the proposed award of $18,5...

Excerpt: ... newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion. Defendant claims that since the first motion for summary judgment was filed, new facts have emerged which show that Mr. Amin did not exercise control over phases of the construction of the building, and the Court of Appeal has established a new standard for constructive notice of dangerous defects. However, the "newly disco...

Excerpt: ...ntiff regarding the sums claimed in respect of Agreement Nos. 4368/4193 and the total sum due on said agreements, the Court is inclined to GRANT the application on the basis that Plaintiff has established the requirements for issuance of a writ of possession and a turn over order against Defendant, subject to the filing of an undertaking. (Code Civ. Proc. 5512.060.) With regard to the issue of valuation as it pertains to the amount of the underta...

Excerpt: ...d not dispute the amount in either its opposition or its response to the separate statement. (See UMF's 44-45) As such, the Court is mandated to grant the motion. The Court orders Plaintiff to prepare an amended order consistent with this ruling. The Court also adopts its prior tentative ruling, as follows: Defendants do not dispute that the loan, lease and guaranty agreements were entered into or that the defendants have not fulfilled their obli...

Excerpt: ...340.1 (a)(2) in respect of Plaintiff's alleged claims of sexual abuse by Defendants Calvin and William Shook that occurred after Plaintiff's alleged first report of sexual abuse to Defendant made around 1995 or thereabouts. Accordingly, Defendant's Demurrer to Plaintiff's Third and Fourth Causes of Action are hereby overruled. The Court further finds that Defendant has not pled sufficient facts to establish that Defendant was a mandatory reporter...

Excerpt: ...rties to the marriage, and the Family Code does not address real property disputes involving third parties, as does this dispute. Therefore, a declaratory relief cause of achon involving not only the parties to the marriage but also a third party is properly before this Court. The Fourth Cause of Action for Breach of Fiduciary Duty This cause of action is asserted against Adam Vanderpool, but not Diane Neufeld. Family Code section 1101(a) provide...

Excerpt: ...rs, including, but not limited to, appointment notices, diagnoses, doctor's notes, bills, and correspondence, for pur physical, mental damage or emotional distress, since January 1, 2012. RFP No. 43 — For the health care practitioners identified in Interrogatory No. 5, a fully executed HIPAA Authorization for Release of Medical, Psychiatric, and/or Psychological Records, by you for all medical and associated billing records for visits and treat...

Excerpt: ...in their favor. Specifically, the express language of the Property Management Agreement dictates that the contractual terms were effective at the time of Plaintiff's injury. (See, e.g., UMF 8.) In interpreting an express indemnity agreement, the courts look first to the words of the contract to determine the intended scope of the indemnity agreement. (Centex Golden const. co. v. Dale Tile co. (2000) 78 cal.App.4th 992, 996-997, citation omitted.)...

Excerpt: ...tends that as the contract is not attached and the allegations are insuffciently precise, the complaint as a whole fails. Defendant further alleges that a lack of specificity as to which Defendant did which things is fatal. Defendant is correct. The Demurrer The First Cause of Action for Declaratory Relief This cause of action is based on the parties' respective rights under the insurance contract, and therefore the sufficiency of the allegations...

Excerpt: ...t 23. The Court notes that the parties' efforts have resulted in Defendant's service of two sets of amended responses to date, the latest of which was provided while the instant motions were pending. Therefore, it appears to the Court that the potential exists for the parties to further narrow and/or resolve the issues presented herein with the pursuit of additional meet-and-confer efforts conducted in faith. The hearing is continued for this pur...

Excerpt: ...he status of the arbitration. Plaintiff Entered Into the Arbitration Agreement, and the Agreement Covers the Dispute A valid and enforceable agreement requiring the resolution of employment-related disputes through arbitration precludes the employee's right to pursue claims in the judicial context. Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 123. The only prerequisite for a court to order arbitration is a determination that the partie...

Excerpt: ...shall state the specific ground upon which the objection is taken and, if the objection is taken by answer, the specific facts upon which the objection is based. An objection may be taken on more than one ground, and the grounds be inconsistent. Defendant has not stated specific facts in support of any of its affirmative defenses. The defendant makes factually unsupported allegations, such as the County has not established a right to take the Pro...

Excerpt: ... the parties and finds that Defendant has not provided sufficient evidence relative to the ownership of the phone account to justify his claim that disclosure will unduly violate the privacy rights of non-parties herein. Nevertheless, the Court acknowledges that Defendant himself likely has some level of privacy interest in the sought-after phone records, butthe motion herein has not sufficiently demonstrated that Defendant's privacy interests ou...

Excerpt: ...al.App.5* 933, 941; Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5* 146, 165.) In this regard, the Court notes that Dr. Chang relies, in part on a purported declaration from Dr. Roubach explaining his choice of an alternative lens during the initial cataract procedure on 2-11-20; however, the information described by Dr. Chang in this regard does not appear in the evidence submitted with the instant motion. In addition,...

Excerpt: ...fails to survive the statute of frauds, because the FAC is based on an alleged oral contract to purchase real property, which under Civil Code secton 1524(a)(3) is required to be in writing. However, an exception to the statute of frauds is the doctrine of partial performance, pursuant to which an oral agreement for the transfer of an interest in real property is enforceable when the buyer has taken possession of the property, and either makes a ...

Excerpt: ...Judicial Notice - DENIED. As to Plaintiff's requests for judicial notice, none need be taken for the Court to consider published state or federal cases. The California cases are legal authority, and the federal case may be persuasive. The Court finds Defendant's request for judicial notice of unpublished state court cases disingenuous at best. There is a case directly on point. (TBG Ins. Service Corp. v. Superior Court (2002) 96 Cal.App.4th 443, ...

Excerpt: ... by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The Motion does not comply with Code Civ. Proc. secton 1008(a), because plaintiff has not shown any new or different facts, circumstances or law. Pla...

Excerpt: ...lity is required by law, court records are presumed to be open to the public (CRC 2.550(c)). Therefore, pleadings, evidence (including that obtained in discovery), and other papers may not be filed under seal merely by stipulation of the parties. A prior court order must be obtained. [CRC 2.551(a); see H.B. Fuller co. u Doe (2007) 151 cal.App.4th 879, 888]. Plaintiffs recently filed redacted versions of the relevant pleadings and evidence with th...

Excerpt: ...ly, the motion lacks a discussion of the reasonableness of the proposed settlement as compared to the maximum and practical exposure of Defendant on the claims asserted herein. Likewise, with regard to the PAGA claim, the information provided is insufficient for the Court to determine whether the proposed settlement provides for relief that is genuine, meaningful, and consistent with the State's goal of benefitting the public through enforcement ...