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2021.05.13 Demurrer
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.05.13
Excerpt: ...o matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. See 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. See Day v. Sharp (1975) 50 ...
2021.04.22 Motion to Strike Petition to Compel Arbitration
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.04.22
Excerpt: ...8(a)(2) and the inherent authority discussed in Neal v. Bank of America Nat. Trust & Savings Association (1949) 93 Cal.App.2d 678. The Court finds, however, that the Petition is not an improper Motion for Reconsideration. Plaintiff notes that the Petition to Compel Arbitration re-argues issues which were the subject of this Court's January 15, 2021 Minute Order, granting a Motion for Preliminary Injunction brought by Plaintiff. While Plaintiff is...
2021.04.22 Motion for Approval of PAGA Settlement
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.04.22
Excerpt: ...right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”)) Accordingly, the trial court must “review and approve” a PAGA settlement. (Cal. Lab. Code § 2699(l)(2)). As the California Supreme Court explained: “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (W...
2021.04.22 OSC Re Sanctions
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.04.22
Excerpt: ...record of this action demonstrates the Court granted Motions to Compel Further responses on October 13, 2020 and ordered Defendants to provide further responses within 30-days. (See October 13, 2020 Minute Order [ROA No. 183]). Additionally, Defendants were ordered to implement a Belaire-West process, for Special Interrogatory No. 1. (Id.) Notice of this order was served by the Clerk on October 21, 2020. (ROA No. 184). On March 18, 2021 a hearing...
2021.04.15 Motion to Compel Further Responses
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.04.15
Excerpt: ... Declaration and Exhibit C thereto [incorrectly cited as Exhibit D]). Plaintiff's Counsel does not dispute the above. As the parties have not meaningfully met and conferred as to this motion - which the Court notes includes an 884-page Separate Statement in Opposition - the Court exercises its discretion to decline to rule on the entirety of the merits, prior to sufficient efforts to do so. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 43...
2021.04.15 Motion for Reconsideration
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.04.15
Excerpt: ...ing of the Defendant's Objection to Recommended Decision No. 20 of the Discovery Referee.” (Mot. at 2.) However, the issue of ambiguity and the parties' competing interpretations existed prior to the hearing and thus affords no basis for reconsideration. Defendant has failed to demonstrate new or different facts, as required by C.C.P. §1008 and the Court simply has no jurisdiction Motions for reconsideration are governed by CCP § 1008 which r...
2021.04.15 Motion for Approval of PAGA Settlement
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.04.15
Excerpt: ..., deletions, and additions must also be submitted electronically to the Court. Any supplemental or revised papers should also be served on the LWDA and proof of service filed with the Court. 1. Counsel states “Plaintiff and her counsel are unable to estimate the potential maximum civil penalties because Defendant did not provide the total number of pay periods in which those employees were paid by direct deposit or pay card.” How is it possib...
2021.03.25 Motion for Preliminary Approval of Class Action Settlement
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.03.25
Excerpt: ...ed version showing all changes, deletions, and additions must also be submitted electronically to the Court. 1. Counsel indicates that stacking of the PAGA penalties was not applied, given language in Labor Code §2699(g)(1), which refers to “one or more of the alleged violations.” (¶12 of Supplemental Solouki Declaration). Counsel interprets this language as providing for only a single penalty, regardless of whether the violations are of �...
2021.03.25 Motion for Attorney Fees
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.03.25
Excerpt: ...ny Notices which were re-mailed, please identify the date the mailing occurred. Additionally, any individuals who have requested exclusion must be specifically named. 3. Please articulate the lowest payment under the settlement. 4. The unexecuted Declaration from the Settlement Administrator indicates the Net Settlement Amount is $306,091. (¶11 of unexecuted Kincannon Declaration). The Motion for Approval indicates the Net Settlement Amount is $...
2021.03.18 Demurrer
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.03.18
Excerpt: ...roperly pleaded, and reasonable inferences, must be accepted as true. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) Fourth Cause of Action for Intentional Misrepresentation The elements for fraud or misrepresentation are: (1) a misrepresentation by defendant; (2) defendant's knowledge of its falsity; (3) intent to defraud; (4) plaintiff's justifiable reliance; and (5) resulting damages. (Stansfield v. Starkey (1990) 220 Cal...
2021.03.18 Motion to Contest Application for Determination of Good Faith Settlement
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.03.18
Excerpt: ...parative indemnity, based on comparative negligence or comparative fault. As the parties both acknowledge, this bar does not extend to Hayhoe's contractual indemnity claims against WPE. The Court concludes that the settlement between Plaintiff The Doner Enterprises, LLC and WPE in the amount of $20,000 was made in good faith within the meaning of CCP §877.6 because it satisfied the weight of the factors set forth in Tech-Bilt, Inc. v. Woodward-C...
2021.03.18 Motion for Leave to Intervene
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.03.18
Excerpt: ...dge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 554 at fn. 2, citing Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386). Firstly, Shavina Luckett has appropriately sought leave to intervene via a noticed motion and included a proposed Complaint in Intervention, as required by C.C.P. §387(c). Consequently, the proper procedures have been followed. Moreover, while C.C.P. §387(d) refers to a “timely application,...
2021.03.11 Motion to Approve Settlement
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.03.11
Excerpt: ...n lacks an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”)) Accordingly, the trial court must “review and approve” a PAGA settlement. (Labor Code §2699(l)(2)). As the California Supreme Court explained: “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair ...
2021.01.21 Motion to Strike (2)
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.01.21
Excerpt: ...nd for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10(b)). A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010)). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.). The grounds for a motion to ...
2021.01.21 Motion to Strike
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.01.21
Excerpt: ...e sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10(b)). A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010)). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) M...
2021.01.21 Motion to Compel Further Responses
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.01.21
Excerpt: ...endants must supplement these responses. Form Interrogatory Employment Nos. 216–217 GRANTED. As Plaintiff asserts, Defendant's response is incomplete per CCP 2030.220(a) for failure to provide complete information, including identification of specific documents and persons. Defendants must supplement these responses. Form Interrogatory Gen. No. 15 GRANTED. As Plaintiff asserts, Defendant's response is incomplete per CCP 2030.220(a) for failure ...
2021.01.21 Motion to Compel Arbitration
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.01.21
Excerpt: ...intiff agreed to arbitrate “any claims or disputes” she has against Dollar General, arising from her employment or termination. (¶17 of Roach Declaration and Exhibit 3 thereto). Additionally, the Agreements provide that: “You and Dollar General may not assert any class action, collective action, or representative action claims in any arbitration pursuant to this Agreement or in any other forum.” (¶17 of Roach Declaration and Exhibit 3 t...
2021.01.14 Motion for Leave to File Amended Complaint
Location: Orange County
Judge: Nakamura, Kirk H
Hearing Date: 2021.01.14
Excerpt: ...s to the underlying factual allegations,” within the amended pleading. (¶5 of De Castro Declaration). The motion is granted, as plaintiff maintains the right to dismiss his individual claims pursuant to C.C.P. §581(b)(1) and C.C.P. §581(c), given trial has not commenced, either within this action or within any pending arbitration. The evidence indicates plaintiff declined to proceed with arbitration and, instead, has opted to dismiss the per...

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