Motion to Be Relieved as Counsel of Record
accompanied by a motion to recall the remittitur so as to restore the appellate court’s jurisdiction. (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group) ¶¶ 5:51, 14:2, 14:34).
Plaintiff failed to file motions to vacate the dismissals with the appellate court. However, she filed motions to recall the remittiturs, which asserted essentially the same grounds presented in the instant motion – her attorney failed to file the opening briefs resulting in dismissal “due to serious personal and mental health challenges”/ “mental illness, which rendered him unable to meet court deadlines” and Plaintiff had no knowledge of the dismissals. (See Dreyfuss Decl., Exs. 3, 8.) The California Supreme Court denied Plaintiff’s petitions for review. It would not be appropriate or within this court’s jurisdiction to review or reverse the appellate court’s prior rulings. This court does not have jurisdiction to reinstate Plaintiff’s appellate rights where the court of appeal already declined to do so on the same general basis she is reasserting here.
Plaintiff does not cite any authority that would allow this court to grant her requested relief. The cases she cites concern appeals from trial court orders denying motions to set aside dismissals or defaults entered by the trial court. (See, e.g., Daley v. Butte County (1964) 227 Cal.App.2d 380 [reversing trial court’s order denying § 473(b) motion to vacate trial court’s judgment of dismissal for failure to prosecute holding that where consistent and long-continued inaction by counsel of records for plaintiff effectually deprived plaintiff of representation, ends of justice required that motion to vacate judgment of dismissal should have been granted with or without conditions, and its denial was an abuse of discretion]; Rappleyea v.
Campbell (1994) 8 Cal.4th 975 [reversing appellate court’s affirmance of trial court’s order denying § 473(b) motion to set aside trial court’s entry of default and default judgment holding denial was abuse of discretion as it should have been granted on equitable grounds].) They do not concern a trial court reviewing an appellate court’s order dismissing the appellant’s appeal.
The motion is denied. 4 25-01499896 Motion to Be Relieved as Counsel of Record
Exim Engineering, Inc. The motion of attorney William Kersten from Kersten & Associates to be vs. Orange Courier Inc. relieved as counsel of record for defendant, Orange Courier Inc. is CONTINUED to _______.
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Although the declaration in support of the motion states client was served with the moving papers by mail, no proof of service was filed showing moving papers were served on client or on the other parties who have appeared in the case.
Moving attorneys are to serve all moving papers in compliance with Rule 3.1362, subdivision (d) and file proof of service no later than 5 court days prior to the continued hearing.
Moving attorney to give notice. 6 26-01568888 Motion to Strike - Anti SLAPP
Howden US Services, Defendants Acrisure of California, LLC; Acrisure, LLC; Acrisure of LLC vs. Acrisure of California Partner Group, LLC; and RSI Insurance Brokers, Inc.’s California, LLC Special Motion to Strike is DENIED.
Legal Standard
A special motion to strike is authorized against SLAPP suits (Strategic Litigation Against Public Participation), i.e., lawsuits brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) A special motion to strike, or anti-SLAPP motion, may be used to strike allegations of protected activity, even if the motion does not defeat the entire “cause of action.” (Baral v. Schnitt (2016) 1 Cal.5th 375, 385-390, disapproving Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 and its progeny).
To prevail on the motion, the plaintiff’s claim must (1) arise out of the defendant’s protected speech or petitioning; and (2) lack even minimal merit. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.) Thus, in ruling on an anti-SLAPP motion, courts engages in a two-step process: “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] [Second,] [i]f the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384.)
Merits
First Prong – Protected Activity
A claim may be struck pursuant to section 425.16 only “if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884). “Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section 425.16. Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral, 1 Cal.5th at 394 [cleaned up]; see also Newport Harbor Offices v.
Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 43.) While the California Supreme Court has rejected the “gravamen” test to evaluate anti-SLAPP motions directed to an entire cause of action or complaint, the court did not disprove of its use when used to determine the acts on which liability is based or whether protected activity allegations are incidental