Excerpt: ...eritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc., 5425.16, subd. (a); see Martinez v. Metabolife Intern. , Inc. (2003) 113 Cal.App.4th 181, 186.) plaintiffs/cross-defendants prevailed on their ant-SLAPP motion as to the second cause of action in defendant/cross-complainant's cross complaint. The prevailing defendant on a special motion to strike "shall be e...

Excerpt: ...claration, the declaration requires members having more than 50 percent of the votes in the association, in a single class voting structure, or members having more than 50 percent of the votes in more than one class in a voting structure with more than one class, to vote in favor of the amendment, the association, or any member, may petition the superior court of the county in which the common interest development is located for an order reducing...

Excerpt: ...ies concerning this vehicle under the Song-Beverly Consumer Warranty Act (Civ. Code, SS 1790, et seq.).l Defendant moves to compel plaintiffs to arbitrate these claims based on the Retail Installment Sales Contract ("RISC") they signed with Turlock CDJR when they purchased the subject vehicle. Applicable Law A trial court is required to grant a motion to compel arbitration "if it determines that an agreement to arbitrate the controversy exists." ...

Excerpt: ...ecton ["The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency' at the same tme that it is submitted to the court."]) The trial court is to "evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforceme...

Excerpt: ...or a writ of possession by filing a written application for the writ with the court in which the action is brought." Under secton 512.010, subdivision (b), "The application shall be executed under oath and shall include all of the following: (1) A showing of the basis of the plaintiffs claim and that the plaintiff is entitled to possession of the property claimed. If the basis of the plaintiffs claim is a written instrument, a copy of the instrum...

Excerpt: ...thin five days of service of the minute order by the clerk. To deny leave to file a cross-complaint as moot. Explanation: Summary Judgment Plaintiff filed suit for two causes of action: premises liability, and general negligence .1 Defendant Chipotle Mexican Grill, Inc. ("CMG") moves for summary judgment on the basis that no triable issues of material fact exist as to CMG's knowledge of a dangerous condition, and in any event, any alleged dangero...

Excerpt: ...entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.'" (Ramon v. Aerospace Corp. (1996) 50 Cal .App.4th 1233, 1236, quoting Passavant v. Williams (1990) 225 Cal.App.3d 1602, 1506.) Here, the court issued a tentative ruling granting defendant's motion to compel...

Excerpt: ...ity issues. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 240; see Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1803, fn. 9, 19.a) The trial court has a "fiduciary responsibility" as the guardian of the absentee class members' rights to decide whether to approve a settlement of a class action. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 95.) A precertification settlement may stipulate that a defined class be condition...

Excerpt: ...tion by the plaintiff supported by appropriate affdavits and after a hearing, if the court deems a hearing to be necessary, the court may at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to S...

Excerpt: ...ns shall be in boldface type. To deny the motion for sanctions. Explanation: Demurrer The first cause of action is for breach of contract. "A cause of acton for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach." (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226...

Excerpt: ...to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." (Civ. Code, S 1717, subd. (a).) Also, under Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney's fees are recoverable as an item of costs when fees are authorized by contract. Here, de...

Excerpt: ... amend. (Code Civ. Proc. S 430.10, subd. (e).) To overrule the demurrer on all other grounds. (Code Civ. Proc. S 430.10, subd. (e),(f).) Plaintiff shall file and serve an amended complaint within ten (10) days of the date of service of this order. All new allegations shall be in boldface. If oral argument is timely requested, such argument will be heard at 2:30 p.m. on June 28, 2023, in Department 501. Explanation: On August 22, 2022, plaintiff f...

Excerpt: ...be (1990) 219 cal.App.3d 1527, 1529; Nicholson v. Barab (1991) 233 cal.App.3d 1671, 1681.) The reply brief makes clear that plaintiff seeks summary judgment based on the parties' oral agreement, only, and not based on that agreement plus the email he sent to defense counsel later in the day after the mediation. However, this only complicates the issue, since the complaint includes a PAGA claim, and plaintiff's counsel's email included a term allo...

Excerpt: ...prior to the subject incident to the present. To deny both parties' requests for monetary sanctions against each other. Plaintiffs shall serve further responses within 10 days of the date of service of this order. Explanation: Request for Production number 18 requests "A true and complete copy of all WRITINGS related to disability benefits received by Mr. Shire, including, but not limited to, the applications for such benefits, medical reports, d...

Excerpt: ...red by the agreement. The party opposing the motion must then prove by a preponderance of evidence that a ground for denial of the moton exists (e.g., fraud, unconscionability, etc.) (Hotels Nevada v. LA. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.) Written Agreement Unless there is a dispute over authenticity, the mere recitation of the terms is suffcient for a party to move to compel arbitration. (Sprunk v. Prisma LLC (2017) 14 Cal.Ap...

Excerpt: ...the order entered by the court on the request for pretrial discovery conference. To grant plaintiffs motions to compel defendant to provde further responses to the disputed form interrogatories, special interrogatories, and requests for production of documents. Defendant shall provide supplemental responses, without objections, within 10 days of the date of service of this order. To grant plaintiff's request for monetary sanctions against defenda...

Excerpt: ...uest for Court Judgment. (Cal. Rules of rule 3.1800(a); Holloway v. Quetel (2015) 242 cal.App.4th 1425, 1432.) This alone requires the denial of the application. The specific relief requested must be indicated on Form CIV- IW, and the relief must list the categories of damages. Second, the present application further fails to submit a declaration of nonmilitary status for each defendant against whom judgment is sought. (Cal. Rules of rule Federal...

Excerpt: ... vehicle ensued which form the basis of the complaint for damages. Plaintiff brought four causes of action against each of defendant Lithia NC, Inc., dba Lithia Nissan of Clovis ("Lithia"), and the moving defendant Nissan North America, Inc. ("Nissan"), for violations of the Song-Beverly Act regarding warranties. Compel Arbitration Nissan moves to com#l arbitration on an arbitration clause in a retail installment sales contract ("RISC") made betw...

Excerpt: ...sis of the instant complaint for damages. Plaintiff brought a single cause of action against defendant, for an express violation of warranties afforded through the Song-Beverly Act. Though the complaint characterizes the agreement as a lease, is undisputed that the agreement is a retail installment sales contract ("RISC") made between plaintiff and a non-party, Toyota of Clovis. Compel Arbitration A trial court is required to grant a motion to co...

Excerpt: ...e Judicial Council complaint form, but filed only the first three introductory pages and failed to attach the pages required to comprise the causes of action. Even so, plaintiff did check the box for "general negligence" at Item 10b (page 3), and also added the following at the "other" box at Item 10f: "Missing the Statue [Sicl of Limitations, Not Keeping Copies of Client File, Failure to Perform, Failure to Communicate, Improper Withdraw." Const...

Excerpt: ...murrer Generally The function of a demurrer is to test the sufficiency of a plaintiff's pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff's possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697....

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 acton 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 uncontested ...

Excerpt: ...ls to state facts sufficient to constitute a cause of action[.l " (Dem., p. 2:15-17, citing Code Civ. Proc., 5430.10, subd. (e).) Any valid cause of action overcomes a general demurrer. (Quelimane Co., Inc. v. Stewart Title Guarantee Co. (1998) 19 Cal.426, 38-39.) The court must overrule a general demurrer if the complaint states a cause of action under any possible legal theory. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) ...

Excerpt: ...s "[dlisobeying a court order to provide discovery" a "misuse of the discovery process," but sanctions are only authorized to the extent permitted by each discovery procedure. Once a motion to compel answers is granted, continued failure to respond or inadequate answers may result in more severe sanctions, including evidence, issue or terminating sanctions, or further monetary sanctions. (Code Civ. Proc. SS 2030.290, subd. (c); 2031.300, subd. (c...

Excerpt: ...are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." (Civ. Code, S 1717, subd. (a).) Also, under Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), attorney's...