Motion to Strike Portions of Complaint
public nuisance, their claim that they will be entitled to attorney fees under section 1021.5 if they prevail on their claims may stand. Lastly, Defendant argues that the prayer for injunctive relief is not supported by any of the claims set forth in the Complaint because those claims arise out of a hotel stay that has been concluded. Defendant ignores the fact that Plaintiffs have asserted a public nuisance claim, under which they may seek to enjoin the nuisance. (Code Civ. Proc., § 731.) In light of all the above, the Motion to Strike is DENIED. Defendant to give notice.
104 Halum vs. Jaguar Land Rover North America, LLC
25-01523324 Motion to Strike Portions of Complaint Defendant Jaguar Land Rover North America, LLC’s (“Defendant”) motion to strike portions of Complaint is GRANTED with 15 days leave to amend. This is an action for Violations of the Song-Beverly Consumer Warranty Act (CCP §1790, et seq.). Defendant moves for an order striking Prayer for Relief, Page 8, Section 5, line 18 of the Complaint, which reads “For civil penalty in the amount of two times Plaintiff's actual damages.” Defendant contends that Plaintiff did not plead compliance with CCP §871.24 and is therefore not entitled to civil penalties.
CCP §871.24 provides, in relevant part: (a) At least 30 days prior to the commencement of an action seeking civil penalties under subdivision (c) of Section 1794 of the Civil Code, the consumer shall do all of the following: (1) Notify the manufacturer of the consumer’s name, the accurate Vehicle Identification Number (“VIN”) of
the motor vehicle, and a brief summary of the repair history and problems with the motor vehicle. (2) Demand that the manufacturer repurchase or replace the motor vehicle. *** (e)(1) A request for or action seeking civil penalties under subdivision (c) of Section 1794 of the Civil Code shall not be allowed or maintained if both of the following conditions are present: (A) Within 30 days after receipt of the notice, the manufacturer makes an offer of restitution or replacement of the motor vehicle for the amount provided by subdivision (d) of Section 1793.2 of the Civil Code and Section 871.27, plus reasonable attorney’s fees and costs, if the consumer is represented by an attorney. (B) The motor vehicle replacement or restitution is completed within 60 days from the date of receipt of the original notice. *** (h) An action seeking restitution or replacement under Section 871.20 may be commenced without compliance with subdivision (a).
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In that event, the consumer shall have possession of the motor vehicle at the time of the filing of the complaint, and shall not seek civil penalties, whether by amendment of the complaint or otherwise. If, however, notice is provided pursuant to subdivision (a) and the manufacturer fails to comply with their obligations under subdivision (e), the consumer may commence an action for restitution or replacement, including, but not limited to, civil penalties under subdivision (c) of Section 1794 of the Civil Code.
In opposition, Plaintiff does not deny that Section 871.24 is applicable to this case. However, Plaintiff contends that, because the statute does not expressly state that compliance must be pled, there is no pleading requirement. In addition, Plaintiff contends that the statute was in fact complied with prior to the filing of the Complaint. While the statute does not address the pleading requirements, courts interpreting statutes in other contexts have held that compliance with statutory prerequisites is an element that must be pled by the plaintiff. (See, e.g., Caliber Bodyworks, Inc. v. Superior Ct. (2005) 134 Cal. App. 4th 365, 371 (pleading in PAGA action); Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1345- 46 (pleading requirement in actions for FEHA violations). Accordingly, the motion is granted. Defendant to give notice
105 Abinante vs. Collins
25-01457284 1. Motion to Appear Pro Hac Vice x 2 Plaintiffs Dr. Matthew Abinante, D.O., Rume Health, LLC, and Rume Medical Group, Inc. move this Court for orders granting the Applications of Kelly B. Kramer and Hiral D. Mehta for Admission Pro Hac Vice as counsel herein. (ROAs 369, 370). Motions are granted per CRC 9.40(a).
2. Case Management Conference Moving party to give notice.
106 Prime Healthcare Services - Garden Grove, LLC vs. Motion to Seal