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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

EXPERT WITNESSES SHOULD BE PRECLUDED FROM TESTIFYING TO ANY OPINIONS NOT EXPRESSED IN THEIR DEPOSITIONS

Code of Civil Procedure § 2034.210 et. seq. provides for the designation of expert witnesses, as well as the discovery of their opinions or conclusions. Section 2034.260 (c)(4) requires that the designated expert be sufficiently familiar with the pending action to submit to a meaningful oral deposition … including any opinion and its bases, that the expert be expected to give at trial. The expert opinion of a witness who was not designated as an expert shall, upon objection of the party that fully complied with the requirement of § 2034.210 et seq., be excluded from evidence at trial (Code of Civil Procedure § 2034.300.)

The importance of pre-trial discovery of an expert’s opinions and conclusions, which the expert intends to express at trial, was discussed in the matter Kennemur v. Slate of California (1982) 133 Cal.App.3rd 907, where the appellate court held that the trial court had properly excluded the testimony of an expert witness who, at his deposition testified that he was not going to express an opinion at trial regarding the issue of causation. The court noted that:

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this personal injury lawsuit and its proceedings.)

FACTS

Plaintiff originally presented to defendants’ facility for chiropractic adjustment and treatment. Upon evaluation by another chiropractor in defendant’s office, it was found that plaintiff had tenderness in and around her right knee. On May 25, 2010, after the first chiropractor believed she was unable to perform a manipulation of plaintiff’s left hip she summoned defendant for his assistance.

Plaintiff alleges that defendant performed and/or attempted to perform a chiropractic manipulation on plaintiff’s left hip, which coincidently involved the use of plaintiff’s right knee. Plaintiff alleges that when defendant was preparing to perform the manipulation, and while he had his hand on plaintiff’s right knee, plaintiff experienced a great deal of pain and discomfort in her right knee and asked defendant to not perform the manipulation. Plaintiff alleges that defendant went ahead and performed the manipulation anyway, delivering a great amount of force to her right knee, which caused tearing of the meniscus in her right knee.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

ARGUMENT TWO
THE HALL’S COMPLAINT ADEQUATELY STATES A CAUSE OF ACTION TO ALLOW COURT THE DISCRETION TO OVERRULE A DEMURRER

Black alleges that several causes of action are not sufficient to state a claim because specificity of facts are not alleged. When a court decides whether a complaint adequately states a cause of action, it must decide whether the allegations of the complaint adequately state a cause of action under any legal theory, or that it states some right to relief. The allegations are limited to the face of the pleading not whether there are facts to be discovered, or evidence that may arise in defense of the complaint. Essentially, are there allegations that present causes of actions despite legal conclusion, or unclear facts, such that a defendant is unable to defend in an answer.

Black’s demurrer reads like a motion for summary judgment or affirmative defenses to an answer. Black does not state he does not understand what is being alleged against him but that the law protects him from being sued as the complaint states. Discovery has not been conducted to determine whether Black’s acts were “in the scope of his employment.”

Demurrers are not meant to test the sufficiency of the evidence or other matters outside the pleading. Demurrers are improper to where complaint shows some right to relief even though facts are not clearly stated or are intermingled with irrelevant matters, or the plaintiff has demanded relief to which they are not entitled. Gressley v. Williams (1961) 193 CA 2d 636.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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https://www.moseleycollins.com/lawyer-attorney-1245027.htmlThe following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

ARGUMENT
MOTION TO COMPEL IS BROUGHT FOR AN IMPROPER PURPOSE WHEN ALL FAITHFUL EFFORTS HAVE BEEN MADE TO COMPLY WITH REQUESTS

Plaintiffs acted in good faith and with reasonable diligence in their responses to XYZ’s questions. Plaintiffs are aware of their obligations to investigate if they lack information (Smith v. Circle P. Ranch Co. Inc. (App. 2 Dist. 1978) 150 Cal.Rptr. 828., however, plaintiffs are not able to answer many of the questions that XYZ has propounded. Plaintiffs have asked XYZ essentially what in particular they are seeking, and XYZ responded, it was not up to them to determine this fact. Well, then how can plaintiffs?

Mr. Hall is 84 years old. Though he is cooperative, he is not one to have long discussions and analysis of facts in one setting. It has taken a series of conversations to get additional facts. His allocation of time is short, and he does not provide all that is necessary immediately. He asks for patience and time when things are requested, in order that he can think and look for items. Plaintiffs responses were not willfully meant to evade or avoid answering.

Plaintiffs have produced all documents in their possession as stated above and there is no further responses as of this date to produce. Plaintiffs did serve the Responses to Document Production, contrary to XYZ statements. XYZ also admits receipt of documents, but because they are few in number, they suggest plaintiffs must be withholding other items and are not responsive. No, plaintiffs do not have any. Plaintiffs only want to settle, and whatever it takes to do so, It is not in their best interest to hide documents.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

Special Interrogatories

XYZ served 54 special interrogatories without declaration for plaintiffs to respond. Plaintiffs answered 35 and informed XYZ they should provide a declaration for response to the additional special interrogatories. XYZ provided the declaration and the plaintiffs answered to the best of their ability.

XYZ contends that Mr. Hall’s responses to the first 35 special interrogatories and form interrogatories were incomplete and requested further responses without objections. Plaintiffs provided supplemental responses and letter addressing the request. Plaintiffs asked clarification as to what XYZ was seeking. XYZ responded with their letter of January 12, 2009.

Statement of Damages

XYZ sent a statement of damages on November 3, 2008, after plaintiffs had mailed a letter in October 2008 indicating they were willing to settle the case for the cost to repair per the estimate of Clive Lee, water and fire restoration expert, that was submitted to the federal court.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

XYZ states in their motion there is no issue as to Mrs. Hall’s response. However, Mrs. Hall responded to the same questions as did Mr. Hall because they are joint plaintiffs and suffer the same loss and seek the same recovery. If XYZ had no issue as to Mrs. Hall’s response, then there is no as to Mr. Halls initial responses and supplemental responses. Ms. Hall provided information to the same form interrogatories that Mr. Hall responded.

Request for Production of Documents

In XYZ’s motion on page 2, line 11, they state plaintiffs did not respond at all (as to production of documents, then on line 12-14, state plaintiffs produced some documents (despite not responding to the document requests themselves), their production is obviously deficient. Again, XYZ states on page 3, line 24 to page 4, line 2, there was document production. As stated above plaintiffs faxed their pleaded responses to the production of documents on 12/08/08.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

The District Court’s Order to Remand was filed on October 14, 2008, in the Sacramento County Superior Court. Defendant Black had thirty days to file an answer or a demurrer. Instead a notice of a demurrer was served upon plaintiffs. A notice of intent is not a filing. An intent to do something is not sufficient to satisfy the requirement of the act being completed. Anyone can file a notice to answer, or a notice to dismiss, or a notice to complain. A notice of intent does not satisfy the statute of limitations. A timely filing must occur per codes or statutes. The filing date of the demurrer was set by the date the Order of Remand was received by the state court.

Defendants filed their demurrer on January 8, 2009. This is nearly 90 days after the remand order was received by this Court. Even for argument sake, the defendants cannot rely on the case management order issued in October 2008 as guidance because personal service of the complaint and summons on Daniel Black and Paul Smith had occurred prior the removal by XYZ in August 2008. Service was complete upon these defendants and they were required to answer the complaints after remand within the time per C.C.P. 430.90.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident lawsuit and its proceedings.)

DR. LEE’S RELIANCE ON CASES FOCUSED POST-JUDGMENT OR -VERDICT IS MISPLACED SINCE PLAINTIFF NEED NOT PROVE THAT HE SHOULD BE AWARDED PUNITIVE DAMAGES AT THIS STAGE OF THE LITIGATION

Dr. Lee relies on Ebaugh v. Rabkin, (1972) 22 Cal.App.3d 891, which is not applicable to Plaintiff’s First Amended Complaint. Ebaugh concerned the reversal of a jury’s award of punitive damages because the evidence was insufficient to support the verdict for punitive damages against the employee and employer. There was also prejudicial error because one of the jury instructions permitted punitive damages against the employer if it found the employee was acting in a willful, reckless or wanton manner without regard to the employer’s conduct in directing or ratifying the employee’s actions. Id. at 895-896. Ebaugh does not apply to this stage of the litigation since it was an appeal of a jury verdict at trial. The standard for meeting the burden of proof to overturn a jury verdict is certainly different from the notice pleading requirements of California law.

Dr. Lee cites the following cases, all after judgment, verdict or nonsuit, which do not support granting her motion to strike since the cases do not concern the pleadings stage of litigation: American Airlines, Inc. v. Sheppard, Muffin, Richter & Hampton (2002) 96 Cal.App.4th 1017.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this insurance bad faith lawsuit and its proceedings.)

ARGUMENT ONE

DEFENDANT’S DEMURRER IS UNTIMELY PER CODE OF CIVIL PROCEDURE SECTION 430.90, AND MUST BE OVERRULED AND DISMISSED.

430.90. (a) Where the defendant has removed a civil action to federal court without filing a response in the original court and the case is later remanded for improper removal, the time to respond shall be as follows:

(1) If the defendant has not generally appeared in either the original or federal court, then thirty (30) days from the day the original court receives the case on remand to move to dismiss the action pursuant to Section 583.250 or to move to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, if the court has not ruled on a similar motion filed by the defendant prior to the removal of the action to federal court.

(2) If the defendant has not filed an answer in the original court, then 30 days from the day the original court receives the case on remand to do any of the following:

(A) Answer the complaint.

(B) Demur or move to strike all or a portion of the complaint if:

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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The following blog entry is written to illustrate a common motion filed during civil litigation. Reviewing this kind of filing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury lawsuit and its proceedings.)

The opinion of an expert witness may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390. In the Dee case, the trial court properly granted Defendants’ motions in limine to exclude Plaintiffs proposed expert testimony on causation. The experts sought to testify that exposure to mycotoxins caused Plaintiffs symptoms without any evidence that Plaintiff was exposed to mycotoxins. The experts’ opinions lacked foundation, relying on unsupported assumptions. Similarly, here, Mr. Gold provides opinions based on speculative facts with no evidence that such facts actually apply to the parties and the occurrences in this case. See also, Hyatt v. Sierra Boat Co. (1978) 79 CA3d 325,337 (holding that a motion in limine to exclude an expert’s opinion was properly granted where the expert who was prepared to testify as to plaintiffs probable speed at the time of the accident, stated at deposition that he based this opinion on a particular assumption, but there was no evidence of the facts assumed by the expert.)

While it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the historical facts, expert opinion evidence that is based upon a guess, surmise, or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence. In re Anthony C. (2006) 138 Cal.App.4th 1493. Mr. Gold’s opinions are based purely on speculation as opposed to relevant probative facts. As such, the Mr. Black and the City seek an Order from this Court precluding Mr. Gold from improperly testifying at trial.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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