Excerpt: ...justment program which, under Civil Code §1795.92, must be communicated to all owners of Kia vehicles with the same sunroof. Plaintiff pleads the claim as one for an unfair or unlawful business practice under B&P Code §17200. Kia calls its program a “goodwill gesture” rather than an actual adjustment to its formal written warranty. Class certification was denied in the related action (Kondash v. Kia Motors America, Inc., Case No. 1:15-cv-50...

Excerpt: ...laim, the trial court must review and approve any settlement thereof. Procedurally, the trial court must confirm that plaintiff satisfied all of the pre-filing and post-filing requirements. For example, before the lawsuit was filed, plaintiff was required to give the LWDA pre-filing notice via its online portal, within one year of the offense, “of the specific provisions of this code alleged to have been violated, including the facts and theori...

Excerpt: ...e operative pleading contains two causes of action: one based on consumer misrepresentation (Civil Code §1750 et seq), and the other on the Patient's Bill of Rights (H&S Code §1430(b). Before the Court are a myriad of discovery disputes, summarily described as follows:  Defendants' motion for a protective order to stay a managing agent deposition;  Plaintiff's motion to compel the very same deposition;  Plaintiff's motion to compel the...

Excerpt: ...papers, including the class notice. Paragraph 12(M) of the settlement agreement is ambiguous. Must the settlement amount be increased if there are more than 32 class members, or if the number of class members increases by at least 10% over 32, meaning 36 or more class members? Clarification is required. Paragraph 28 of the settlement agreement on p. 23 provides that 16 calendar days before the Final Approval Hearing the Administrator will prepare...

Excerpt: ...d judgment which did not match the definition in the Settlement Agreement. The court suggests that moving parties consult the “Guidelines for Approval of PAGA and Class Actions” published on this court's Tentative Rulings Site. Doing so may assist in the preparation of declarations and proposed orders more consistent with this court's expectations. The documents presented for the upcoming February 26, 2021 hearing are still inconsistent regar...

Excerpt: ...ares v. Braemar Country Club, Inc. (1999) 29 Cal.4th 1019]. The pendency of an appeal does not divest the court of jurisdiction to determine ancillary or collateral matters which do not affect the judgment on appeal. (See Silver v. Gold (1989) 211 Cal.App.3d 17, 26; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4 th 180, 191). This includes setting the amount of attorney's fees already awarded in the Judgment. The court finds that, given ...

Excerpt: ...reof. Procedurally, the trial court must confirm that plaintiff satisfied all of the pre- and post-filing requirements. For example, before the lawsuit was filed, plaintiff was required to give the LWDA pre-filing notice via its online portal, within one year of the offense, “of the specific provisions of this code alleged to have been violated, including the facts and theories to support the alleged violation.” The notice must contain at lea...

Excerpt: ...the Kirk Defendants. (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-662.) The joinders are granted. The demurrer as to the second cause of action is sustained without leave to amend. The motion to strike is granted without leave to amend as to the portions of the first cause of action at issue, and moot as to the portions of the second cause of action at issue. REQUEST FOR JUDICIAL NOTICE Defendants request judicial notice for two...

Excerpt: ... Although a demurrer is ordinarily limited to matters found within the four corners of the challenged pleading, in the case of a plea in abatement under sub (c), a trial court will often consider matters outside the four corners that are subject to judicial notice. See CCP §430.30; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 191-192. Pursuant to Evid. Code §452(d), a trial court may take judicial notice of court records. Here, defendant p...

Excerpt: ...plemental briefing shall be filed on or before March 30, 2021. If a revised settlement agreement and/or proposed notice is submitted, a redline version showing all changes, deletions and additions must be submitted as well. In addition, Plaintiffs must provide proof of service of any revised settlement agreement and supplemental papers on the LWDA. The Court notes that while Plaintiff's settlement of his individual claims is apparently meant to b...

Excerpt: ...or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the action; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Here, Defendant, Silviano Vergara Vences, contends that both cases share common questions of law and fact, in that both actions arise out of the same three-car motor vehic...

Excerpt: .... By way of her opposition to the demurrer, Plaintiff asserts that she will amend her 1st through 7th causes of action with respect to individual defendants and will amend her 8th cause of action with respect to entity defendants. Plaintiff also asserts that she will amend her 15th cause of action by way of eliminating the negligent training allegation therein. Plaintiff further asserts that she will “delete” her 10th, 13th, 14th, 16th, and 1...

Excerpt: ...ause of Action for Negligence, and Fifth Cause of Action for Unfair Business Practices, Violation of Bus. & Prof. Code § 17200, et seq. of Plaintiff Salvador Ojeda's Complaint for failure to state facts sufficient to constitute causes of action under Code of Civil Procedure section 430.10(e). The Complaint alleges causes of action based on violations of the Homeowners' Bill of Rights (“HBOR”), negligence, and Violation of Business & Professi...

Excerpt: ...E contends that she is entitled to partition of the real property known as 223 E. Avenida Ramona, San Clemente, CA 92672 (APN 690-431-25) “Property”) because it is undisputed that PRICE, on the one hand, and Plaintiffs Marion Bendix Creasman (“CREASMAN”) and David Barker (“BARKER”) (collectively “Plaintiffs”), on the other hand, jointly own an undivided 50% interest in the Property, as tenants in common. Request for Judicial Notic...

Excerpt: ...lement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. There is no proof of service of this Motion on the LWDA. Confirm whether the LWDA was provided notice of this Motion. Any supplemental brief and/or amendments made pursuant to this Order should also be filed with LWDA along with notice of the continued hearing date, with a proof of service submitted to the Court. 2. The definition of “Released Parties...

Excerpt: ... deposition dates for several individuals and have agreed on three dates in March. CCP § 437(h) reads: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or mak...

Excerpt: ... As explained below, Defendants are entitled to mandatory relief. Code Civ. Proc.§ 473(b) states: “Notwithstanding any other requirements of this section, the court shall, 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 default entered ...

Excerpt: ...ing signed by the parties outside court. (CCP § 664.6.) As with any contract, the settlement agreement requires mutual consent: “The existence of mutual consent is determined by objective rather than subjective criteria, the test being what the outward manifestations of consent would lead a reasonable person to believe.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811, internal quotes omitted.) Moreover, to be binding, ...

Excerpt: ...er Directing the Clerk to Enter Renewal of Judgment Judgment Creditor asks the court for a nunc pro tunc order renewing the Judgement, originally entered on 8/9/10, pursuant to the renewal application submitted on 10/15/20, which was rejected by the Clerk on or about 11/4/20. Judgment Creditor argues that Governor Gavin Newsom issued Executive Order N-33-20 (the “Stay at Home Order”) on March 19, 2020 which prompted the total and complete cou...

Excerpt: ...property to share an identity of interest with the property-owners for purposes of seeking the statutory remedy of expungement of the recorded lis pendens. For this reason, the Court does not grant any relief to the party on the “joinder”. (See Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149) (noting that a “purported [monetary] interest does not go to legal title or possession of the subject property”); see CCP § 405.30.) ...

Excerpt: ...aintiff to demonstrate by a preponderance of the evidence that all necessary jurisdictional criteria are met. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232-1233.) This burden must be met by competent evidence in affidavits and authenticated documentary evidence. (Id. at 1233.) “Once facts showing minimum contacts with the forum state are established, however, it becomes the defendant's burden to demonstrate tha...

Excerpt: ... to be effective, must be lodged with the court's electronic service providers. Rather than lodging the documents as required by the CRC, the court was referred to an internal website at the defendant's law firm. Defendants have offered no authority that provides “lodging” occurs when the court is provided with a web link. The defendants were given two chances to comply with the CRC and have been unable to comply. Tentative Ruling: Motion to ...

Excerpt: ...the sake of example and to punish the defendant, they are proper when tortious conduct rises to levels of extreme indifference to the plaintiff's rights, which decent citizens should not have to tolerate. (See e.g. Lackner v. North (2006) 135 Cal.App.4th 1188, 1212; Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894; American Airlines, Inc. v. Sheppard, Mullin, Richter & H...

Excerpt: ...Record (2008) 162 CA4th 431, 450 (citing text.)]. Here, Swift Financial, LLC has filed a Complaint for this relief. However, the court will construe the Complaint (the first cause of action) as a petition to confirm the arbitration award because there is no prejudice to Defendants/Respondents BaDa International Inc. dba Simply Pure American and dba Simply Pure USA and dba Chung Ho USA, and Edward Park. (See Landis v. Pinkertons, Inc. (2004) 122 C...

Excerpt: ...purpose of ruling on the demurrer. Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. Day v. Sharp (1975) 50 Cal.3d 904, 914; Sosinsky v. Grant (1992) 6 Cal.App.4th 1746, 1749. “In our examination of the co...