Excerpt: ...ehicle ensued which form the basis of the Complaint for damages. Plaintiff brought two causes of action against each of defendant Lithia NF, Inc. (“Lithia”), and the moving defendant Nissan North America, Inc. (“Nissan”), for express and implied violations of the Song‐Beverly Act regarding warranties. Compel Arbitration Nissan moves to compel arbitration on an arbitration clause in a retail installment sales contract (“RISC”) made b...

Excerpt: ...ination in Violation of California's Fair Employment and Housing Act (“FEHA”); 2) Failure to Accommodate in Violation of FEHA; 3) Failure to Engage in a Good Faith Interactive Process in Violation of FEHA; 4) Retaliation in Violation of FEHA; 5) Associational DisabilityBased Discrimination in Violation of FEHA; 6) Discrimination and Retaliation in Violation of the California Family Rights Act; 7) Failure to Prevent Discrimination in Violation...

Excerpt: ...n: Notice of Hearing Following the progression of the asserted instruments, it appears that plaintiff has a basis for bringing this action. Assuming such evidence is admitted at the hearing, there appears a presumptive basis to grant the proposed judgment. Nevertheless, reflecting the general uniqueness conferred to real property, quiet title proceedings do not follow the typical path toward obtaining judgment. (Harbour Vista, LLC v. HSBC Mortgag...

Excerpt: ...d, resulting in a balance of $90) in favor of defendant and against plaintiff and its counsel, jointly and severally, payable within 30 days of service of this order. (Cal. Rules of Court, rule 3.1348(a).) Explanation: The instant motions were filed on June 15, 2022. The opposition and reply papers confirm that code‐ compliant responses to the discovery at issue were served on August 15, 2022. Therefore, the court denies the instant motions as ...

Excerpt: ...settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. (Code Civ. Proc., § 664.6, subd. (a).) Here, the parties entered into a written settlement agreement including a stipulation for entry of judgment in the event defendant failed to pay the amounts it agreed to pay under the settlement agreement, and then failed to cure its default. It does not appear to be disputed that alt...

Excerpt: ... grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontest...

Excerpt: ...ll, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting … dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect.�...

Excerpt: ...lanation: Defendants have admitted to liability by allowing their default to be entered, so liability is not an issue. (Morehouse v. Wanzo (1968) 266 Cal.App.2d 846, 853 [by defaulting, defendants admit liability for the debt or obligation on all well pleaded causes of action].) However, default does not admit that the amount prayed for is the proper amount. (Brown v. Superior Court (1966) 242 Cal.App.2d 519, 526.) Damages must be proved up with ...

Excerpt: ...ss nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., §425.16, subd. (a); see Martinez v. Metabolife Intern., Inc. (2003) 113 Cal.App.4th 181, 186.) The court engages in a two‐step process in determining whether an action is subject to the anti‐SLAPP statute: first, the court decides whether defendant has made a threshold showing that the challenged...

Excerpt: ...9. Code of Civil Procedure section 529, subdivision (a) provides, in relevant part: On granting an injunction, the court or judge must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined any damages, not exceeding an amount to be specified, the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction. Damages wh...

Excerpt: ...der (1990) 217 Cal.App.3d 1509, 1512; see also Rev. & Tax. Code, § 23305.5, subd. (a)(2).) In addition, “a plea of lack of capacity of a corporation to maintain an action by reason of a suspension of corporate powers for nonpayment of its taxes ‘is a plea in abatement which is not favored in law, is to be strictly construed, and must be supported by facts warranting the abatement' at the time of the plea.” (Traub Co. v. Coffee Break Servic...

Excerpt: ...plaint. The time in which the answer can be filed will run from service by the clerk of the minute order. Explanation: Demurrer Defendant‐attorney demurs to plaintiff's sole cause of action for legal malpractice on the grounds that the Third Amended Complaint (“TAC”) fails to state facts sufficient to constitute a cause of action and the pleading is uncertain. Objections that a complaint is ambiguous or uncertain, or that essential facts ap...

Excerpt: ...applicable summary judgment framework is well explained in Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150: “In an employment discrimination case, an employer may move for summary judgment against a discrimination cause of action with evidence of a legitimate, nondiscriminatory reason for the adverse employment action. [Citation.] A legitimate, nondiscriminatory reason is one that is unrelated to prohibit...

Excerpt: ...ubdivision (b).1 On application, the court may, on any terms as may be just, relieve a party from a default taken against it due to mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) In order to obtain relief under Code of Civil Procedure section 473, the party's application for relief, among other things, “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, othe...

Excerpt: ...tial responses to Form Interrogatories, Set Two from plaintiff Ericka Lollis; and request for sanctions Tentative Ruling: To grant the motion seeking an order deeming the truth of matters specified in the Requests for Admission, Set Two established pursuant to Code of Civil Procedure section 2033.280, subdivision (b) against plaintiff Reginald Robinson unless responses in substantial conformity with Code of Civil Procedure section 2033.220 are se...

Excerpt: ...order consistent with the court's summary adjudication ruling. Explanation: Summary Judgment/Adjudication A motion for summary judgment is generally directed toward an entire action or pleading. (Code of Civ. Proc., §437c, subd. (a).) By comparison “[a] party may move for summary adjudication as to one or more causes of action within an action ….” (§ 437c, subd. (f)(1).) In addition, “[a] motion for summary adjudication shall be granted...

Excerpt: ...ion In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three‐prong analysis: identifying the issues as fra...

Excerpt: ...stayed until plaintiff proffers proof that he has posted the security as ordered. (Code Civ. Proc. § 391.6.) If plaintiff fails to post security within 30 days as ordered, the court will dismiss the action upon an ex parte application by defendants. (Code Civ. Proc. § 391.4.) Explanation: “The vexatious litigant statutes were created to curb misuse of the court system by those acting in propria persona who repeatedly file groundless lawsuits ...

Excerpt: ... dismiss the representative portion of the PAGA claim. Explanation: Notice of Joinder Defendant Aerotek, Inc. (“Aerotek”) seeks an order compelling plaintiff to private arbitration of his wage and hour claims and his PAGA claim as an individual, and to dismiss the representative portion of the PAGA claim brought on behalf of all aggrieved employees. A notice of joinder to join in Aerotek's motion was filed by DMM Packaging, Inc. (“DMM”) o...

Excerpt: ...certified for settlement purposes. The court may make an order approving or denying certification of a provisional settlement class after the preliminary settlement hearing. (Cal. Rules of Court, rule 3.769(d).) Before the court may approve the settlement, however, the settlement class must satisfy the normal prerequisites for a class action. (Amchem Products, Inc. v. Windsor (1997) 521 US 591, 625‐627; see also Newberg, Newberg and Rubenstein ...

Excerpt: ...t, or in the alternative summary adjudication. (Ibid.) Defendant shall submit a proposed judgment consistent with this court's order within 10 days of the date of service of the order. Explanation: First, to the extent that plaintiffs have moved for summary adjudication of their first cause of action under an unjust enrichment theory, the motion has been improperly brought because the court has already ruled that plaintiffs cannot state a claim a...

Excerpt: ...btor is not the occupant, on the judgment debtor. Service shall be made personally or by mail. At the hearing on the motion the court shall determine the occupant's right to possession and shall make an order including terms and conditions that are appropriate under the circumstances of the case. (Code Civ. Proc., § 700.080(c) (emphasis added).) Where, as here, the personal property subject to the writ of possession is being used as a dwelling t...

Excerpt: ...it can grant preliminary approval of the proposed settlement. An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. (Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied); see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an unc...

Excerpt: ...) no. 3. Plaintiffs shall provide a further response to Special Interrogatory (set two), no. 3 within twenty (20) days from the date of this order. The motions are denied in all other respects. To deny the request for imposition of monetary sanctions. Explanation: Associational Privacy (Special Interrogatory no. 2/Requests for Production of Documents nos. 3 and 4) Defendants contend that the requested discovery is justified because “[t]he plain...

Excerpt: ...ones Food Company, Fresno County Superior Court case no. 21CECG01408 and Sarmiento v. The Neil Jones Food Company, Fresno County Superior Court case no. 21CECG03825, have been resolved. Explanation: “The party against whom a complaint or cross‐complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (c) There is another action pending between the...