Excerpt: ...judgment based on the submitted evidence demonstrating its lack of actual or constructive notice. The burden then shifts to Plaintiff to produce admissible evidence demonstrating the existence of a triable issue of material fact. (Code Civ. Proc. S 437c(p)(2).) The Court finds that Plaintiff has met his burden in this regard, at a minimum, with regard to the issue of constructive notice. (Gov't. Code S 835(b).) Plaintiff's evidence supports an in...

Excerpt: ...as submitted conditionally under seal) does not comply with the requirements of Code Civ. Prtw S 2015.5; therefore, it does not presently constitute admissible declaration evidence. Therefore, defense counsel shall be prepared to submit such evidence in a Code-compliant format at the time of the hearing. In addition, defense counsel shall be prepared to meaningfully discuss the potential effectiveness of a brief further continuance on Mr. Burchel...

Excerpt: ...ject discovery and all objections have been waived. (Code Civ. Proc. "2030.290(a).) Therefore, Petitioner is entitled to an order compelling Mr. Bazan to provide answers, without objection, to Form Interrogatories, Set One within 30 days of service of notice of entry of the Court's order. (b) The Court finds that the Claimant, Gabriel Bazan, has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Pr...

Excerpt: ... preventing judgment or adjudication of the subject claims. With regard to the Second and Third Causes of Action, the Court finds that Plaintiff has failed to carry his burden with regard to the element of causation. Specifically, Plaintiff submitted no admissible evidence establishing that the Defendant's alleged negligence proximately caused the death of Plaintiff's decedent. Therefore, the motion for summary adjudication is GRANTED as to those...

Excerpt: ...ntiff's acknowledgement that she is aware of the identities of the relevant witnesses, and it appears that any information they have to offer is readily available to Plaintiff via civil discovery procedures, which should be effective and easily accessible as a means of obtaining relevant evidence in this action. The Court's ruling is made without prejudice to future consideration of the above-referenced competing interests in this regard at a tim...

Excerpt: ... regardless of the inclusion of a delegation clause in the subject agreement, these types of foundational issues must be determined by the Court. (Bruni v. Didion (2008) 160 Cal.App.4 th 1272, 1285.) The Court finds that Defendant has failed to meet its burden of establishing the existence of a valid arbitration agreement in this instance, based on the fact that none of the purported evidence submitted by the defense has been properly authenticat...

Excerpt: ...o the issues of whether Defendants breached their duty to provide Plaintiff with safe premises and whether Defendants' actions substantially contributed to Plaintiff's injuries. (See, at a minimum, Plaintiff's Additional Facts 72-77.) Plaintiff's objection to Exhibit E to Defendants' moving evidence (excerpts from Plaintiff's medical records) is SUSTAINED on the grounds stated. Plaintiff's objection to the Declaration of Anita Benjamin in support...

Excerpt: ...law enforcement officers who crashed in their police cruiser. Plaintiffs generally contend that the crash occurred because the cruiser was designed in such a way as to permit carbon monoxide to seep into the cabin, rendering both of them unable to avoid the fatal crash. Defendants counter that there is no defect with the subject cruiser, and even if there was, carbon monoxide was not a legal cause of crash. Defendants' motion for summary adjudica...

Excerpt: ...n driving to an accident victim and providing medical care to the victim. (See, e.g., Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 8 – A paramedic's exercise of due care while driving is not necessary or otherwise integrally related to the medical treatment and diagnosis of the patient, at least when the patient is not in the vehicle.) Moreover, the cited immunities expressly apply to medical services rendered at the “scene of an emergency,�...

Excerpt: ...asonably and necessarily incurred. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Therefore, Cross‐Complainant's request that the claimed costs be stricken in their entirety is denied. However, the Court finds that Cross‐Complainant has properly objected to certain of the costs claimed herein, such that the burden shifts to Cross‐Defendant to show that the items charged were for matters necessarily relevant and material to the issues ...

Excerpt: ...ading at this point in time is the First Amended Complaint filed on 9‐21‐22. As the arguments set forth in the supporting papers are directed against the claims contained in the amended pleading, the Court presumes that the moving document inadvertently failed to identify the First Amended Complaint in this regard. With regard to the Second and Fourth Causes of Action, for Professional Negligence and Negligent Infliction of Emotional Distress...

Excerpt: ...n order compelling the appearance of Defendant's Person Most Qualified at the location chosen by Plaintiff within the statutory mileage limitations. (Code Civ. Proc. §§2025.250, 2025.450(a).) Counsel shall meet and confer to select a mutually agreeable date to complete the deposition, which should occur no later than February 15, 2023. With regard to specific issues presented by Defendant's objections to certain categories of testimony and docu...

Excerpt: ...has failed to meet his burden in this regard. Specifically, Plaintiff has failed to demonstrate the existence of a material factual dispute with regard to (1) his independent contractor status as defined by the factors set forth in Labor Code §2750.5, or (2) Defendant's alleged retained control over the work. Therefore the Court finds that Defendant has established the absence of liability for Plaintiff's claimed injuries in this context as a ma...

Excerpt: ...y Process – DENIED; c) Defendant City of Oakdale's Motion to Compel Responses and Further Responses to Plaintiff Fernando Jaquez's Responses to Special Interrogatories, Set One; Motion for Monetary Sanctions for Misuse of the Discovery Process – DENIED; d) Defendant City of Oakdale's Motion to Compel Further Responses to Plaintiff Fernando Jaquez's Responses to Request for Admissions, Set One; Motion for Monetary Sanctions for Misuse of the D...

Excerpt: ...cks standing, he cannot state a claim for violation of the Act, and therefore granting Plaintiffs the ability to amend the complaint would be futile. Initially, the Court notes that it GRANTS Defendant's request for judicial notice of the Retail Instalment Sales Contract (RISC) and vehicle registration card in this matter. Plaintiffs did not oppose the Defendant's request for judicial notice and the RISC, most importantly, establishes that Plaint...

Excerpt: ...iew of Estrada, supra, in June 2022, explicitly allowing the opinion to continue to be cited both for persuasive value and for the limited purposed of establishing the existence of a conflict in authority which supports the exercise of the trial courts' discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 to choose between sides of such a conflict. (See Standing Order Exercising Authority Under California Rules of ...

Excerpt: ... a material factual dispute preventing judgment thereon. Plaintiff has failed to carry this burden. Specifically, Plaintiff has failed to demonstrate that the additional insured endorsement for completed operations coverage in the 2010‐2012 policies covered Plaintiff's insured, since the definition of an additional insured under that endorsement and the related schedule requires reference to the terms of the subcontract between the parties' ins...

Excerpt: ... submit admissible evidence demonstrating the existence of a material factual dispute preventing judgment thereon. Cross‐Complainant has failed to carry this burden. Specifically, the undisputed evidence demonstrates that Cross‐Defendants complied with the requirements of the parties' agreement with regard to the provision of general liability insurance covering Cross‐Complainant as an additional insured. Therefore, Cross‐Complainant cann...

Excerpt: ...sition Testimony and Request for Sanctions – DENIED, without prejudice; d) Cross‐Defendants Staffing Solutions, Inc. and Balance Staffing Workforce LLC's Motion to Compel Attendance of Deposition and Testimony of Gailann Stargardter – DENIED. (a) The motion demonstrates insufficient efforts to meet and confer with opposing counsel in good faith toward an informal resolution of the stated issues. (Code Civ. Proc. §2025.420(a).) Discovery is...

Excerpt: ...ering claim generally seen in a personal injury case. However, the Court is mindful of the law's protection of a plaintiff's privacy interest in records reflecting physical or mental conditions unrelated to the issues in the subject suit and of the Court's duty to balance the respective rights of the parties in this situation to reach a proper resolution of the issue. Therefore, the Court finds that the scope of the subject subpoena should be lim...

Excerpt: ...ion, within 15 days. (Code Civ. Proc. §§2030.290(b), 2031.300(b).) The Court further finds that Defendants are entitled to an award of monetary sanctions in connection with Plaintiff's failure to respond to the subject discovery, necessitating this motion. (Code Civ. Proc. §§2030.290(c), 2031.300(c), 2023.010(d), 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Therefore, monetary sanctions in the amount of $235 are awarded against Plaintiff,...

Excerpt: ...arbitration, based on the U.S. Supreme Court's holding in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. Therefore, the stay is lifted with regard to that portion of Plaintiff's PAGA claim and the motion is GRANTED in that respect. However, the issue of whether Plaintiff retains any ability to pursue a representative PAGA claim despite the existence of the arbitration agreement appears to be an open question under California law. Th...

Excerpt: ...es/officers of the entity Plaintiff, counsel for Plaintiff, percipient witnesses on essential disputed issues, and non‐retained expert witnesses on behalf of Plaintiff, the Court has concluded that the informed‐consent exception contained in California Rule of Professional Conduct 3.7 is inapplicable under the circumstances, due to the risk of prejudice to the defendants and to the integrity of the judicial process. In reaching this conclusio...

Excerpt: ...e Court and found to be insufficient in connection with Cross‐Defendants' demurrers to the original and First Amended Cross‐Complaints. Additionally, the Court notes that the motion is procedurally deficient in that it fails to comply with the requirements of Cal. Rules of Court, Rule 3.1324. Lastly, Cross‐Complainants fail to explain the reason for the delay of over three years since the filing of the original cross‐complaint in April 20...

Excerpt: ...ath, 4) negligent infliction of emotional distress, and 5) violation of patient's rights. Defendant's moving separate statement sets forth thirty‐nine (39) undisputed material facts (UMFs) – many of them repeated for each cause of action – focusing on two legal issues – first, that the Defendant met the applicable standard of care, and second, that Defendant did not cause the injuries Plaintiffs complain of in their complaint. Defendant a...