Res Ipsa Loquitor in California

As the Complaint asserts a cause of action for res ipsa loquitur, and no such cause of action exists, the demurrer must be SUSTAINED. Leave to amend will not be granted to allege a separate cause of action for res ipsa loquitur. That said, the complaint currently does not allege joint ownership or control of the defendants to establish the theory of res ipsa loquitur. (See Ybarra v.

Defense counsel declares that on August 12, 2021, he conversed with Plaintiff’s counsel over the telephone regarding the cause of action for res ipsa loquitur. (Colbert Decl., ¶ 3.) The parties did not reach an agreement. ( Id ., ¶ 4.) Defense counsel’s declaration satisfies the meet and confer requirement. Defendant demurs to the third cause of action for “res ipsa loquitur.” Res ipsa loquitur is not a separate tort cause of action.

Demurrer to the Second Cause of Action for Res Ipsa Loquitur Defendant demurs to the second cause of action for res ipsa loquitur on grounds there is no separate cause of action for res ipsa loquitur. It is true res ipsa loquitur is not a separate tort cause of action and Plaintiff cannot obtain damages for both negligence and res ipsa loquitur arising out of the same accident. Rather, res ipsa loquitur is an evidentiary doctrine whereby negligence may be presumed if the evidentiary requirements are met.

Because there is no cause of action for res ipsa loquitur, the demurrer is sustained. Leave to amend will not be granted to allege a separate cause of action for res ipsa loquitur. Instead, Plaintiff is granted leave to amend the complaint to allege res ipsa loquit‘ur as a part of the underlying negligence claim in the second cause of action. Defendants’ Request for Judicial Notice No. 2 is granted. Request No. 1 is denied.

Similarly, the Court in Cordova stated: “While a plaintiff may properly rely on the doctrine of res ipsa loquitur even though he was not inactive at the time of the accident and participated in the events leading up to it, before he can do so the evidence must exclude his conduct as the responsible cause.” (Id. at 187.) Based on the above, although the application of res ipsa loquitur is limited, it applies where the evidence eliminates the possibility of fault on the part of Plaintiff.

The question presented here is whether plaintiff has adequately put in issue the question of res ipsa loquitur with the operative pleading. Plaintiff does not mention the doctrine in the Complaint, but neither does plaintiff plead a specific basis for negligence. The rule is this: “where a plaintiff pleads negligence both generally and specifically the doctrine of res ipsa loquitur may be relied upon.” Radisich v. Franco-Italian Packing Co. (1945) 68 Cal.App.2d 825, 839.

Harvard states generally that there is no recognized cause of action for res ipsa loquitur. Harvard cites no authority for this proposition. While res ipsa loquitur is an evidentiary presumption, courts have recognized a cause of action for negligence based on res ipsa loquitur with elements the same as the elements for the presumption. See, e.g., Bushling v. Fremont Medical Center, 117 Cal.App.4th 493, 517 (2004).

Whether a pleading generally or specifically alleges negligence may impact whether a party can subsequently present res ipsa loquitur to the trier of fact.

The Complaint asserts causes of action for: General Negligent Product Liability against Samsung – Res Ipsa Loquitur; Specific Negligent Product Liability against Samsung; General Negligence against Samsung – Res Ipsa Loquitur; Specific Negligence against Samsung; General Negligent Product Liability against Best Buy – Res Ipsa Loquitur; Specific Negligent Product Liability against Best Buy; General Negligence against Best Buy – Res Ipsa Loquitur; and Specific Negligence against Best Buy.

Third Cause of Action for Res Ipsa Loquitur Negligence: Plaintiffs state the doctrine of res ipsa loquitur as a separate cause of action. �Res ipsa loquitur is an evidentiary rule for �determining whether circumstantial evidence of negligence is sufficient.�� Howe v. Seven Forty Two Co., Inc., 189 Cal.App.4th 1155, 1161 (2010). �The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.� Evid. Code � 646(b).

The court merely noted that a “general plea of negligence does not preclude the plaintiff from relying on the doctrine of res ipsa loquitur” in its jury instructions. (Id. at 636-37.) Plaintiff also cites Chauvin v. Krupin (1935) 4 Cal.App.2d 322 which also did not involve a separate claim for negligence based upon res ipsa loquitor.

Instead, "[t]he attorney shall certify upon filing of the complaint that the attorney is solely relying on the doctrines of 'res ipsa loquitur' or failure to inform of the consequences of a procedure or both, and for that reason is not filing a certificate required by this section." (Code Civ. Proc., § 411.35(d).) Defendants assert that the complaint is not based solely on the doctrine of res ipsa loquitur nor a failure to inform of the consequences of a procedure.

Code, § 646 states, in relevant part: (b) The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.

“Though there is a separate jury instruction for res ipsa loquitur,” Prime Wheel contends “the jury instruction specifically provides that this a manner of proving negligence.” (Id., citing CACI 518.) The Court SUSTAINS the demurrer to the 5 th cause of action for res ipsa loquitur WITH LEAVE TO AMEND. Res ipsa loquitur is not a cause of action; it is “an evidentiary rule for ‘determining whether circumstantial evidence of negligence is sufficient.’” ( Howe v.

Further, Plaintiff has established triable issues as to res ipsa loquitur. The fact that this case involves a fire does not make the doctrine inapplicable. (Seeley v. Combs (1966) 65 Cal.2d 127, 133.)

The Complaint asserts causes of action for: General Negligent Product Liability against Samsung – Res Ipsa Loquitur; Specific Negligent Product Liability against Samsung; General Negligence against Samsung – Res Ipsa Loquitur; Specific Negligence against Samsung; General Negligent Product Liability against Best Buy – Res Ipsa Loquitur; Specific Negligent Product Liability against Best Buy; General Negligence against Best Buy – Res Ipsa Loquitur; and Specific Negligence against Best Buy.

In addition, Plaintiff has made a prima facie showing on each of these elements pursuant to the doctrine of res ipsa loquitur. The doctrine of res ipsa loquitur creates a presumption affecting the burden of producing evidence. (Evid. Code § 646, subd. (b).)

(Fact Nos. 20, 21) Plaintiff seems to set forth an argument for res ipsa loquitur. Specifically, because defendant's crew may have used the garden hose when completing the project that defendant must have been responsible for plaintiff's injuries. However, the law requires that a defendant have exclusive control over the premises in order for res ipsa loquitur to apply. (Brown v.

The facts alleged are sufficient to support a claim of negligence under res ipsa loquitur. As to the contract claim, the First Amended Complaint fails to allege that Mark Shanley is a party to any agreement between the corporate Defendant and Plaintiff's insured. The Motion to Strike is granted as to the prayer for attorney's fees and the allegation on Page 3, Lines 24-25. There is no contract or statute providing for attorney's fees.

Opposing Burden Plaintiffs argue the motion should be denied because (a) the doctrine of res ipsa loquitur precludes entry of judgment, (b) Plaintiffs’ expert raises triable issues of material fact, and (c) the hearing on the motion must be continued if the Court is otherwise inclined to grant the motion. Res Ipsa Loquitur Plaintiffs first argue the doctrine of res ipsa loquitur precludes entry of judgment in this case.

“Res ipsa loquitur is a rule concerning the presentation of evidence; it is not an independent ground of liability.” Gicking v. Kimberlin (1985) 170 Cal. App. 3d 73, 78 (“Thus, appellants could not invoke the doctrine as their theory of recovery.”) (Citations omitted). “The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.” Evidence Code §646(b).

Conclusion Defendant Edgewater Towers Condominiums Homeowners’ Association’s (“Defendant”) demurrer to the res ipsa loquitur cause of action and motion to strike that cause of action are continued to October 1, 2018 at 1:30 pm in Department 5. Defendant is ordered to provide notice of this order and file proof of service of such. DATED: August 1, 2018 ___________________________ Elaine Lu Judge of the Superior Court

Res Ipsa Loquitur as to Comcast Res ipsa loquitur is not itself a separate, independent cause of action. It is a principle that allows the trier of fact to infer a defendant’s negligence under specified circumstances. (Newing v. Cheatham (1975) 15 Cal.3d 351, 359; Gicking v. Kimberlin (1985) 170 Cal.App.73, 75.) “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’ ” (Brown v.

The commission gives several examples of situations in which the res ipsa loquitur doctrine is applicable.

Based on the record, the Court cannot properly make this determination at this juncture. 4th COA for Res Ipsa Loquitur Miller acknowledges that res ipsa loquitur is a doctrine and not a stand-alone cause of action. As stated, above, there are triable issues of fact as to whether Miller’s negligence can be presumed under this doctrine. Plaintiff is ordered to give notice.

Motion: Defendant moves to strike the allegations regarding ultrahazardous activity, strict liability and res ipsa loquitur. The motion to strike is moot in light of the ruling on demurrer. In the event plaintiffs decide to file an amended complaint for general negligence only, the court would strike the ultrahazardous activity and strict liability allegations as those do not belong in a general negligence cause of action.

With respect to the third cause of action for Negligence – Res Ipsa Loquitur, “Res ipsa loquitur is a rule concerning the presentation of evidence; it is not an independent ground of liability.” (Gicking v. Kimberlin (1985) 170 Cal.App.3d 73, 78.) Like negligence per se, the doctrine of res ipsa loquitur is an evidentiary rule, not a cause of action.

Moving Defendant further argues that any theory of liability under the doctrine of res ipsa loquitur fails because: (1) Plaintiff cannot prove that her harm ordinarily would not have happened unless someone was negligent (the first element of the standard res ipsa loquitur doctrine); and (2) Plaintiff cannot show that her harm was caused by an instrumentality within the exclusive control of Moving Defendant (the second element of the standard res ipsa loquitur doctrine). Plaintiff objects to Ms.

Accordingly, demurrer to the 7 th cause of action is SUSTAINED with 10 days leave to amend. 8 th CAUSE OF ACTION RES IPSA LOQUITUR: Res Ipsa Loquitur is not a cause of action. It is an evidentiary rule for determining circumstantial evidence of negligence. ( Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163-1164.)

Plaintiff contends that the doctrine of res ipsa loquitur as applied to foreign object cases essentially eliminates the need for expert testimony on causation. First, the res ipsa loquitur exception to the requirement for expert testimony in medial malpractice in foreign object cases generally applies when a foreign object (i.e., scalpel, sponge, etc.)

Plaintiffs also argue that the doctrine of res ipsa loquitur should apply in this case.

“Res ipsa loquitur is a doctrine affecting the burden of producing evidence applicable to certain kinds of accidents that are so likely to have been caused by a defendant’s negligence that, in the Latin equivalent, ‘the thing speaks for itself.’” (Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1389.) “If applicable, the doctrine of res ipsa loquitur establishes a presumption of negligence requiring the defendant to come forward with evidence to disprove it.” (Id.)

Fourth Cause of Action for Res Ipsa Loquitur BUSD avers the doctrine of res ipsa loquitur is not a separate theory of recovery. Res ipsa loquitur is not a cause of action; rather, it is a presumption affecting the burden of producing evidence. (Evid. Code §§ 646, 604.) The doctrine is applied to permit the jury to infer a defendant's negligence from the fact of a defect under appropriate circumstances. (Romig v.

Res Ipsa Loquitur Defendant contends Plaintiffs second cause of action for res ipsa loquitur fails to state facts sufficient to constitute a cause of action because res ipsa loquitur is not a separate tort. The Court agrees. Res ipsa loquitur is an evidentiary doctrine that allows negligence to be inferred based on circumstantial evidence. (See Evid. Code, § 646, subd. (b); Hale v. Venuto (1982) 137 Cal.App.3d 910, 918; Zentz v.

Plaintiff now moves for leave to file a First Amended Complaint (“FAC”) to include causes of action for lack of informed consent and negligence based on res ipsa loquitur. The Court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading. Cal. Code of Civ. Proc. § 473(a)(1).

Therefore, the doctrine of res ipsa loquitur cannot be applied. Because res ipsa loquitur cannot be applied, Plaintiffs failure to provide contravening expert evidence is fatal. Plaintiff has not met her burden of producing evidence to show a triable issue of material fact as to whether Defendants breached their duty of care. Therefore, moving party Antelope Valley Hospital is entitled to summary judgment.

Even if the res ipsa loquitur theory is properly before the court, summary judgment would still be appropriate.

On January 10, 2020, Plaintiff filed a complaint for Negligence, Res Ipsa Loquitur, Private Nuisance, Trespass, Premises Liability, Negligent Infliction of Emotional Distress, Intentional Infliction of Emotional Distress, and Violation of California Civil Code section 1942.4.

Because Stater Bros. did not meet its initial burden on the negligence claim, finding that res ipsa loquitur does not apply would not completely dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Code Civ. Proc., § 437c(f)(1). Thus, summary adjudication is not available on the res ipsa loquitur “claim.” (2) Harbor’s Joinder Harbor’s second joinder is barred by CCP Sections 437c(f)(2) and 1008.

“Res ipsa loquitur is a doctrine affecting the burden of producing evidence applicable to certain kinds of accidents that are so likely to have been caused by a defendant’s negligence that, in the Latin equivalent, ‘the thing speaks for itself.’” (Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1389.) “If applicable, the doctrine of res ipsa loquitur establishes a presumption of negligence requiring the defendant to come forward with evidence to disprove it.” (Id.)

Under the facts presented, res ipsa loquitur does not apply as a matter of law because Plaintiff's have not ruled out driver error or incapacity as the cause of the accident. Accordingly, summary judgment is proper.

Res ipsa loquitur is a doctrine affecting the burden of producing evidence applicable to “certain kinds of accidents [that] are so likely to have been caused by a defendant’s negligence that one may fairly say ‘the thing speaks for itself.’” Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825. “If applicable, the doctrine of res ipsa loquitur establishes a presumption of negligence requiring the defendant to come forward with evidence to disprove it.

Res Ipsa Loquitur Wang also argues that the doctrine of res ipsa loquitur applies here because Plaintiff was given general anesthesia in the procedure and was under total control of the Defendants. (Opposition, p.2: 7-10.)

The doctrine of res ipsa loquitur applies to the incident underlying his allegations. In order to invoke the doctrine of res ipsa loquitur a plaintiff must demonstrate that the event in question is of a kind which does not ordinarily occur absent someone’s negligence, that the event was caused by an agency or instrumentality in exclusive control of the defendant, and that the event was not due to any voluntary action or contribution on the part of the plaintiff. (Howe v.

This evidence does not have a tendency to establish the elements of res ipsa loquitur. (See Brown v.

Although Defendant relies on CCP § 411.35 and § 411.36, Defendant fails to establish the applicability of CCP § 411.35 (titled "Malpractice actions; architects, engineers, or surveyors; certificate of review and consultation; res ipsa loquitur exception; failure to file") and CCP § 411.36 has been repealed. If this tentative ruling is confirmed, the Minute Order will be the final order of the court, and the parties shall not submit any further order on this motion.

Defendant State of California generally demurs to the third cause of action labeled res ipsa loquitur in the Complaint filed on June 15, 2023. Despite meet and confer efforts, the parties could not reach a resolution resulting in Defendant filing the present demurrer. On November 3, 2023, Plaintiff filed a First Amended Complaint (“FAC”) which removes the challenged third cause of action.

Defendant State of California generally demurs to the third cause of action labeled res ipsa loquitur in the Complaint filed on June 15, 2023. Despite meet and confer efforts, the parties could not reach a resolution resulting in Defendant filing the present demurrer. On November 3, 2023, Plaintiff filed a First Amended Complaint (“FAC”) which removes the challenged third cause of action.

Defendant State of California generally demurs to the third cause of action labeled res ipsa loquitur in the Complaint filed on June 15, 2023. Despite meet and confer efforts, the parties could not reach a resolution resulting in Defendant filing the present demurrer. On November 3, 2023, Plaintiff filed a First Amended Complaint (“FAC”) which removes the challenged third cause of action.

Defendant State of California generally demurs to the third cause of action labeled res ipsa loquitur in the Complaint filed on June 15, 2023. Despite meet and confer efforts, the parties could not reach a resolution resulting in Defendant filing the present demurrer. On November 3, 2023, Plaintiff filed a First Amended Complaint (“FAC”) which removes the challenged third cause of action.

Plaintiff filed a complaint alleging causes of action for: (1) negligence; (2) negligence res ipsa loquitur; (3) negligent training; (4) battery; and (5) declaratory relief. Moving Defendant filed a demurrer to the complaint. Plaintiff then filed a First-Amended Complaint (“FAC”). Moving Defendant filed a demurrer and motion to strike as to Plaintiff’s FAC. Moving Defendant’s demurrer to Plaintiff’s complaint is MOOT given the filing of the FAC which is now the operative complaint.

Defendant State of California generally demurs to the third cause of action labeled res ipsa loquitur in the Complaint filed on June 15, 2023. Despite meet and confer efforts, the parties could not reach a resolution resulting in Defendant filing the present demurrer. On November 3, 2023, Plaintiff filed a First Amended Complaint (“FAC”) which removes the challenged third cause of action.

Defendant State of California generally demurs to the third cause of action labeled res ipsa loquitur in the Complaint filed on June 15, 2023. Despite meet and confer efforts, the parties could not reach a resolution resulting in Defendant filing the present demurrer. On November 3, 2023, Plaintiff filed a First Amended Complaint (“FAC”) which removes the challenged third cause of action.

Defendant State of California generally demurs to the third cause of action labeled res ipsa loquitur in the Complaint filed on June 15, 2023. Despite meet and confer efforts, the parties could not reach a resolution resulting in Defendant filing the present demurrer. On November 3, 2023, Plaintiff filed a First Amended Complaint (“FAC”) which removes the challenged third cause of action.

Defendant State of California generally demurs to the third cause of action labeled res ipsa loquitur in the Complaint filed on June 15, 2023. Despite meet and confer efforts, the parties could not reach a resolution resulting in Defendant filing the present demurrer. On November 3, 2023, Plaintiff filed a First Amended Complaint (“FAC”) which removes the challenged third cause of action.

Defendant now demurs to the complaint arguing the second cause of action for res ipsa loquitur and general negligence fails to state a claim against Defendant. Further, Defendant contends the second cause of action is duplicative of the first. In opposition, Plaintiff contends the complaint sufficiently states a claim for res ipsa loquitur and general negligence against Defendant under Government Code § 815.2.

To succeed on a res ipsa loquitur theory, as plaintiff is trying to do, plaintiff “must produce the following evidence in order to receive the benefit of the doctrine: 1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and 3) the accident must not have been due to any voluntary action or contribution on the part of the plaintiff.” Gicking v.

To succeed on a res ipsa loquitur theory, as plaintiff is trying to do, plaintiff “must produce the following evidence in order to receive the benefit of the doctrine: 1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and 3) the accident must not have been due to any voluntary action or contribution on the part of the plaintiff.” Gicking v.

To succeed on a res ipsa loquitur theory, as plaintiff is trying to do, plaintiff “must produce the following evidence in order to receive the benefit of the doctrine: 1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must have been caused by an agency or instrumentality within the exclusive control of the defendant; and 3) the accident must not have been due to any voluntary action or contribution on the part of the plaintiff.” Gicking v.

To the extent that Plaintiff seeks to impose the doctrine of res ipsa loquitur, she may do so through the first cause of action since res ipsa loquitur is a presumption affecting the burden of producing evidence. (Evid. Code §§646, 604.) The Court also finds that Plaintiff’s reliance on Kraft v.

Moving Defendants further argue that Plaintiff failed to allege sufficient facts to support a claim for res ipsa loquitur. A demurrer cannot be sustained for a failure allege sufficient facts to support a claim for res ipsa loquitur because res ipsa loquitur is an evidentiary doctrine affecting the burden of producing evidence, not a cause of action. (See Cal. Evid. Code, § 646.)

Medical Malpractice (Res Ipsa Loquitur) Surgical Error On December 22, 2023, Attorney C. Gregory Shamoun (Shamoun) filed this instant Verified Application to Appear Pro Hac Vice. No opposition has been filed. DISCUSSION I.

“The doctrine of res ipsa loquitur creates a presumption affecting the burden of producing evidence.” (Elcome v. Chin (2003) 110 Cal.App.4th 310, 316; Evid. Code, § 646, subd. (b).)

Negligence – res ipsa loquitur The doctrine of res ipsa loquitur authorizes an inference of negligence in the absence of a showing to the contrary. (Roddiscraft, Inc. v. Skelton Logging Co. (1963) 212 Cal.App.2d 784, 793.)

Plaintiff relies on another theory to establish the existence of a dangerous condition of public property: res ipsa loquitur. Defendant contends that the fact that the LAUSD is a public entity means that res ipsa loquitur does not apply citing to the case of Brown v. Poway (1993) 4 Cal.4th 820. Defendant is correct, except for establishing the existence of a dangerous condition of public property, which Brown still permits under a res ipsa loquitur theory.

If applicable, the doctrine of res ipsa loquitur establishes a presumption of negligence requiring the defendant to come forward with evidence to disprove it. ( Id . at p. 825, 15 Cal.Rptr.2d 679, 843 P.2d 624; Evid.Code, § 646, subd. (b).) ( Fields v. Yusuf (2006) 144 Cal.App.4th 1381, 1389.) Res ipsa loquitur is inapplicable to WME because there is no evidence showing that WME had control over the Vehicle.

Fifth Cause of Action (Res Ipsa Loquitur). Likewise, res ipsa loquitur is an evidentiary presumption, not an independent cause of action. “In California, the doctrine of res ipsa loquitur is defined by statute as "a presumption affecting the burden of producing evidence." (Evid. Code, § 646, subd. (b).)” Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825. Accordingly, the demurrer to the fifth cause of action is SUSTAINED without leave to amend.

Southland argues that under the doctrine of res ipsa loquitur, Sanders is solely negligent. However, res ipsa loquitur is a presumption affecting the burden of producing evidence. (Evid. Code §§646, 604.) As such, this is not a proper ground for demurrer. Southland also argues that Plaintiff has not pled the second and third elements of negligence with sufficient facts to constitute a cause of action.

Cause of Action for Res Ipsa Loquitur Lastly, Lloyds contends that Plaintiffs first cause of action for res ipsa loquitur is not a cause of action. Lloyds notes that the res ipsa loquitur rule is not a rule of substantive law imposing liability in the absence of negligence but is a rule of evidence giving rise to an inference of negligence in certain cases.

Second, Plaintiff is not entitled to an inference of Res Ipsa Loquitur . California requires a showing that the “defendant exercise control over the article involved in the accident or exercise right of control”. Black v Partridge (1953) 115 Cal. App.2d 639,645.

Second, Plaintiff is not entitled to an inference of Res Ipsa Loquitur . California requires a showing that the “defendant exercise control over the article involved in the accident or exercise right of control”. Black v Partridge (1953) 115 Cal. App.2d 639,645.

Plaintiff contends that they are entitled to an inference of Res Ipsa Loquitur. First, Plaintiffs have not alleged anywhere in their complaint that the dangerous condition of the property relates to the absence of properly installed carbon monoxide alarms or faulty maintenance of the HVAC unit.

Southland argues that under the doctrine of res ipsa loquitur, Sanders is solely negligent. However, res ipsa loquitur is a presumption affecting the burden of producing evidence. (Evid. Code §§646, 604.) As such, this is not a proper ground for demurrer. Southland also argues Plaintiff has not pled sufficient facts supporting the second and third elements of negligence.

As Plaintiffs have not submitted opposition, the Court will grant summary judgment as to the second cause of action sounding in res ipsa loquitur negligence.

The Complaint asserts causes of action for: General Negligent Product Liability against Samsung – Res Ipsa Loquitur; Specific Negligent Product Liability against Samsung; General Negligence against Samsung – Res Ipsa Loquitur; Specific Negligence against Samsung; General Negligent Product Liability against Best Buy – Res Ipsa Loquitur; Specific Negligent Product Liability against Best Buy; General Negligence against Best Buy – Res Ipsa Loquitur; and Specific Negligence against Best Buy.

Thus, SGA has not met its prima facie burden to show a triable issue exists as to the Res Ipsa Loquitur cause of action. Retina Defendants' argument for the res ipsa loquitur claim also relies on the Declaration of Smith, as discussed above. The Court finds the same deficiencies in the expert declaration applies here and thus, Retina Defendants have not met their prima facie burden to show a triable issue exists as to the Res Ipsa Loquitur cause of action.

Plaintiff seeks leave to file a corrected First Amended Complaint (herein referred to as “SAC”) to add Stephen Harris as a Plaintiff, and add five additional causes of action: res ipsa loquitur, intentional misrepresentation, breach of oral contract, breach of the implied covenant of good faith and fair dealing, and loss of consortium. Plaintiffs had initially filed a pleading as their first amended complaint on April 26, 2019, but erroneously filed the wrong document.

The Supreme Court defines res ipsa loquitur as follows: In California, the doctrine of res ipsa loquitur is defined by statute as “a presumption affecting the burden of producing evidence.” (Evid.Code, §646, subd. (b).)

Third Cause of Action: Res Ipsa Loquitur Against Defendants Plaintiff Bita stipulates that Res Ipsa Loquitur should not be plead as a separate cause of action but is a legal theory that is best incorporated into the fourth cause of action for Medical Malpractice/Negligence. (Opposition p. 2). Therefore, the Third Cause of Action is dismissed. Plaintiff has leave to amend the Fourth Cause of Action to add allegations supporting the res ipsa loquitor theory. C.

Res Ipsa Loquitur Presumption : Res Ipsa Loquitur ( Res Ipsa ) is a presumption of negligence and - if established - Plaintiffs burden of producing evidence to support negligence is no longer required. To establish Res Ipsa , Plaintiff must show three conditions: (1) the incident is one that does not generally happen in the absence of negligence; (2) defendant had exclusive control over the instrumentality of the incident; and (3) plaintiff did not contribute to the incident.

Plaintiffs also argue they are entitled to have the jury determine if the doctrine of res ipsa loquitur applies here. (Opp., p. 8.) However, Plaintiffs fail to establish the factors required for res ipsa loquitur to apply, as explained below: “Res ipsa loquitur is a rule of evidence allowing an inference of negligence from proven facts. [Citations].

Res Ipsa Loquitur Plaintiff raises res ipsa loquitur in opposition, but the operative complaint lists no such cause of action. “The pleadings play a key role in a summary judgment motion. ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’ and to frame ‘the outer measure of materiality in a summary judgment proceeding.’ (Citation.)

Koutoulas filed a complaint for negligence and res ipsa loquitur [Evid. Code § 646] against defendants Raymond Arias Construction (Arias) and Ruben’s Carpet & Janitorial (Ruben’s). Plaintiffs subsequently added Ruben Zarate and Francisco Perez as defendants. Plaintiffs allege as follows: On August 4, 2008, the Villa Mesa Condominium Homeowners Association hired Arias to construct a new deck in plaintiff’s condominium unit.

First Cause of Action: Negligence (Res Ipsa Loquitur) Defendant demurs to the first cause of action for negligence on grounds that Plaintiff fails to allege sufficient facts to demonstrate the cone that purportedly caused Plaintiff’s damages was within Defendant’s control.

The "common knowledge" exception is principally limited to situations in which Plaintiff can invoke the doctrine of res ipsa loquitur, i.e., when a layperson is able to say as a matter of common knowledge and observation that the consequences of professional treatment were not such as ordinarily would have followed if due care had been exercised. Id. Otherwise, expert evidence is conclusive and cannot be disregarded. Id.

( Id. ) As a preliminary matter, the Court notes that the parties dispute whether res ipsa loquitur applies in this case. The Court of Appeal in Blackwell v.

Plaintiff describes this as a combination of res ipsa loquitur and active negligence. Res ipsa loquitur arises as a presumption affecting the burden of proof when the evidence satisfies three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Plaintiff describes this as a combination of res ipsa loquitur and active negligence. Res ipsa loquitur arises as a presumption affecting the burden of proof when the evidence satisfies three conditions: (1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Finally, Defendant argues that res ipsa loquitur cannot save Plaintiff’s causes of action. However, as discussed above, there are triable issues of material fact regarding whether Defendant may be liable for negligence or premises liability. As such, the Court need not address res ipsa loquitur. The Court also notes that Plaintiff does not rely on res ipsa loquitur as a theory of liability in her complaint or in the opposition brief to the motion for summary judgment.

Instead, Defendant merely argues that the doctrines identified by Plaintiff res ipsa loquitur, non-delegable duty, and captain of the ship - should not be applied because Defendant did not breach those duties. Again, breach of a duty is not the proper subject of a motion for summary adjudication. Finally, the doctrine of res ipsa loquitur does not impose a duty of care. The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence. Evid. Code, § 646(b).

Plaintiffs first amended complaint (FAC) alleges a claim under the doctrine of res ipsa loquitur against Defendant Harris.

Fremont Medical Center (2004) 117 Cal.App.4th 493, 517 (claim of negligence may be based upon allegations that the harm would not have occurred but for negligence that is premised on a theory of the doctrine of res ipsa loquitur); Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 745 (res ipsa loquitur). In this case, Plaintiffs fifth cause of action for negligence states facts that are sufficient to state a cause of action against the Appraiser Defendants.

Plaintiff therefore relies on a res ipsa loquitur theory. “The doctrine of res ipsa loquitur has three conditions: the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” Ybarra v. Spangard (1944) 25 Cal. 2d 486, 489. Accord Howe v.

Plaintiff opposes on the ground that a cause of action for res ipsa loquitur can be alleged against multiple defendants and thus the cause of action is adequately alleged, citing Martinides v. Mayer (1989) 208 Cal.App.3d 1185, 1195. The court finds that the FAC sufficiently pleads a cause of action for res ipsa loquitur against Defendants.

With this finding, the court need not reach the doctrine of res ipsa loquitur. Defendant’s objection to Plaintiff’s evidence numbered 1-8 are overruled. If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

The complaint alleges claims for negligence, gross negligence, premises liability, res ipsa loquitur, and negligence per se. Since Plaintiff has not alleged intentional conduct, and in order to recover punitive damages, Plaintiff must allege conduct that is “despicable” and “carried on by the defendant with a willful and conscious disregard of the rights or safety of others” which constitutes malicious conduct.

“The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.” (Evidence Code §646). It is a way for a plaintiff to use a shortcut of circumstantial evidence to prove negligence. Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1161.

Here, Plaintiff seeks to amend the operative Complaint to add several causes of action for negligent hiring, training, and supervision; vicarious liability; res ipsa loquitur; negligence per se; and a prayer for punitive damages.