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2021.05.06 Motion for Approval of PAGA Settlement 436
Location: San Bernardino
Judge: Cohn, David S26
Hearing Date: 2021.05.06
Excerpt: ...ployees or how their shares will be calculated. But whatever the individual shares would be, the amount to be paid to the named representative—apparently $23,500.00—exceeds the entire amount designated as the PAGA component of the settlement by $20,536.66. Of the $30,000.00 gross settlement amount, the approximate distributions are as follows: 7.22%: Attorney fee 4.56%: “PAGA and administration” costs (unexplained what this means) 7.40%: ...
2021.05.06 Demurrer, Motion to Strike 937
Location: San Bernardino
Judge: Poncin, Lynn M S28
Hearing Date: 2021.05.06
Excerpt: ...nting and Drywall dba T&R Construction Group (“T&R”), filed its original Complaint against defendants, Fore Construction, LLC 2 (“Fore”) and CPR/FPC Foothill Owner, LLC (“CPR/FPC”). On March 10, 2020, as a matter of right, T&R filed the operative First Amended Complaint (“FAC”) alleging the eight causes of action: (1) Breach of Contract; (2) Quantum Meruit; (3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Enforce...
2021.05.06 Demurrer, Motion to Strike 036
Location: San Bernardino
Judge: Poncin, Lynn M S28
Hearing Date: 2021.05.06
Excerpt: ...rer to the third, fifth, sixth, and seventh causes of action with leave to amend. The operative First Amended Complaint (“FAC”) was filed on January 12, 2021. Plaintiffs allege they purchased a new 2015 KIA Sportage vehicle on July 27, 2015. The vehicle was purportedly covered by KIA's 5‐year or 60,000‐mile express bumper to bumper warranty and its 10‐year/100,000 mile powertrain warranty. Subsequently, KIA provided a 10‐year/120,000 ...
2021.05.05 Petition for Writ of Mandate 952
Location: San Bernardino
Judge: Cohn, David S26
Hearing Date: 2021.05.05
Excerpt: ...unsteady gait. Using the license plate number provided to him, Officer Stark traced Ortolani to her residence. After arriving at her residence, Officer Stark observed the vehicle described by the other parties to the collision and noted it was warm to the touch. He made contact with Ortolani where he noted she had bloodshot and watery eyes, an odor of alcohol, and slurred speech. Ortalani admitted driving and being involved in the accident. While...
2021.05.05 Motion to Strike 867
Location: San Bernardino
Judge: Cohn, David S26
Hearing Date: 2021.05.05
Excerpt: ...o be futile. In moving to strike paragraph 32, pertaining to subsequent penalties, on the ground that there has been no determination of an initial violation, defendant relies on Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1209. In Amaral), the Court found, "Until the employer has been notified that it is violating a Labor Code provision (whether or not the commissioner or court chooses to impose penalties), the employer cannot be p...
2021.05.05 Motion to Set Aside Dismissal 744
Location: San Bernardino
Judge: Poncin, Lynn M S28
Hearing Date: 2021.05.05
Excerpt: ...as to Defendant Glass only. 1 Because some parties share a common last name, first names are used for clarity. No disrespect is intended. 2 The motion was set to be heard April 13, 2021, but at that hearing was continued by the Court to May 5, 2021. DISCUSSION Discretionary Provision under Code of Civil Procedure section 473(b) Under Code of Civil Procedure section 473, subdivision (b), “the court may, upon any terms as may be just, relieve a p...
2021.05.05 Motion to Set Aside Dismissal 244
Location: San Bernardino
Judge: Poncin, Lynn M S28
Hearing Date: 2021.05.05
Excerpt: ...ve any publicly viewable content on the internet regarding any party to this litigation or the merits of this litigation. Finally, Defendants move for an order prohibiting Plaintiff's counsel or its surrogates from sending any communications to any state agency regarding any parties to this litigation or relating to the merits of this litigation. Plaintiff opposes arguing that there is insufficient legal authority, that there has not been a viola...
2021.05.05 Motion for Court Approval of PAGA Settlement 714
Location: San Bernardino
Judge: Cohn, David S26
Hearing Date: 2021.05.05
Excerpt: ...matters: 1. The number of aggrieved employees. 2. The number of work‐weeks in the PAGA period. Although the motion seeks $25,000 as an estimate of costs, Ms. Carney's declaration documents only $18,433.09 in costs. Included in this amount are the following: 1. $4,309.92 for “Outside Contractor.” Counsel must explain this entry. 2. Counsel also seeks $734.81 for LexisNexis charges. The court considers LexisNexis to be an item of overhead, no...
2021.05.04 Petition for Writ of Mandate 931
Location: San Bernardino
Judge: Cohn, David S26
Hearing Date: 2021.05.04
Excerpt: ...ned before his death. She asserts that the tax basis for the property was established decades ago, either before her father's death or upon his death in 1997. Upon his death, however, the property was transferred not to petitioner alone, but to petitioner and her sisters. Apparently based on equitable concerns,2 the sisters eventually transferred their interests in the property to petitioner by grant deed, recorded in 2015. Based on that transfer...
2021.05.04 Motion for Summary Judgment 205
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.04
Excerpt: ...e Civ. Proc., § 437c, subd. (a)(2).) Costco filed its MSJ on February 11, 2021. The proof service attached to the MSJ indicates Costco served its MSJ by mail on February 10th. Seventy‐five days beyond that date is Monday, April 26th. Adding the five court days for mail service results in a date of Saturday, May 1st. The hearing should have thus been noticed on or after Monday, May 3rd. Instead, it was noticed for March 23rd. However, this issu...
2021.05.04 Demurrer, Motion to Strike 374
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.04
Excerpt: ...onstruction, Inc. and Katherine Hall a. Discussion i. 1st Cause of Action (“COA”) – Fraud 2nd COA – Negligent Misrepresentation The Koala Defendants assert both the allegations of fraud and negligent misrepresentation are not specifically pled as required. Cross‐Complainants argue the causes of action are well‐pled. For Hani and Frances Sayegh as to the second cause of action, they argue the cross‐ complaint does not allege they mad...
2021.05.03 Motion for Summary Judgment, Adjudication 550
Location: San Bernardino
Judge: Frangie, Janet M S29
Hearing Date: 2021.05.03
Excerpt: ...sustain 28. overrule B. Declaration of Floyd E. Clark (Exhibit C): 1. overrule 2. sustain 3. overrule 4. overrule 5. overrule 6. overrule 7. overrule 8. overrule 9. sustain C. Deposition of Bryan Shropshire (Exhibit 1): 1. – 2. overrule 3. sustain 4 4. ‐ 8. overrule 9. sustain D. Deposition of Arthur Andres (Exhibit 2): 1. ‐ 2. overrule 3. sustain 4. ‐ 9. overrule E. Deposition of Michael Pelletier (Exhibit 3): 1. ‐ 5. Overrule F. Depos...
2021.05.03 Motion to Submit Tardy Witness Info 803
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.05.03
Excerpt: ...he premises expert witness declarations would not be based on the new trial date. Now, Defendant seeks to subvert the court order they prepared in stipulated to. Defendants have not complied with Code Civ. Proc., §2034.720 and the motion must be denied. Here, Plaintiff will be prejudiced by allowing Defendant to submit tardy expert witness information. Plaintiff was prepared to go to trial in February 2020. Defendant offered to go to mediation a...
2021.05.03 Motions to Compel Discovery 342
Location: San Bernardino
Judge: Poncin, Lynn M S28
Hearing Date: 2021.05.03
Excerpt: ... at ¶¶4‐5, 9, and Exhs. 1‐2, 8; Whitman Decl. [RFA] at ¶¶4‐5, Exhs. 1‐2; Brignoni Decl. at ¶¶5‐7, Exhs. D‐F.)1 Finding the responses and/or further responses deficient to (i) FR #1.1, 12.1, 15.1, and 17.1, (ii) SR #14, 19‐20, 23, 40‐41, 46, and 51‐53, (iii) RFPs #1‐5, 9, 17, 19, 31‐33, 37‐45, 53‐ 54, and (iv) RFAs #1‐2, 10‐11, 17‐20, 22, and 24, Plaintiffs Tindell and Libretti move to compel further responses...
2021.04.29 Motion for Summary Judgment, Adjudication 400
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.04.29
Excerpt: ...dog. The motion is supported by a separate statement of fact, a declaration from defense counsel (Tracy W. Goldberg), and portions of the transcript from Foster's deposition. The undisputed facts presented with the motion indicate Foster was walking her dog, Doodles, when one of defendants' dog attacked and bit Doodles. (Fact No. 1.) In response, Foster attempted to protect Doodles by pulling him away from defendants' dog to get Doodle's back int...
2021.04.29 Motion for Approval of PAGA Settlement 628
Location: San Bernardino
Judge: Cohn, David S26
Hearing Date: 2021.04.29
Excerpt: ...he amount is reasonable. Counsel should confirm the exact amount of the administrator's fee 3. The requested attorney fee of 35% of the gross is excessive under the common fund doctrine and is unsupported by the lodestar analysis, which shows hourly rates substantially exceeding appropriate rates in the relevant community. The court will award 1/3 of the gross under the common fund doctrine, or $1,000,000.00. 4. The incentive fees of $15,000 each...
2021.04.28 Motion to Strike 344
Location: San Bernardino
Judge: Poncin, Lynn M S28
Hearing Date: 2021.04.28
Excerpt: ...ently filed Plaintiff's Opposition to Defendant's Motion rather than the Motion to Strike itself. Meanwhile, it appears the Motion was served on Plaintiff as she filed her Opposition to the Motion on December 10, 2020. A Reply was filed on December 16, 2020. However, as the Motion was never filed with the Court, it was not placed on calendar. On March 15, 2021, Defendants refiled the Motion to Strike Punitive Damages. The Court notes that there h...
2021.04.28 Motion to Strike 238
Location: San Bernardino
Judge: Poncin, Lynn M S28
Hearing Date: 2021.04.28
Excerpt: ...were willful and deliberate, and that they constitute a wanton disregard of Plaintiff's interests. (Complaint, ¶¶ 25‐26.) However, the Motion to Strike does not move to strike these portions of the Complaint. 2 for punitive damages against him, as there are no facts pled demonstrating Defendant's actions or inactions rose to the level of malice, oppression, or fraud. Statement of Law “Any party, within the time allowed to respond to a plead...
2021.04.28 Motion to Compel Depositions 444
Location: San Bernardino
Judge: Frangie, Janet M S29
Hearing Date: 2021.04.28
Excerpt: ...te hearing, the Court set the matter on noticed motion, since it advised the parties that the March 22 trial would have to be continued due to COVID and the rules in place for social distancing. Once continued, it was hoped that the parties would come to some mutual agreement and have these depositions noticed by agreement once a new trial date is set at the TSC which will not occur until January, 2022 or later. After being called by the Court's ...
2021.04.28 Motion for Summary Judgment 605
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.04.28
Excerpt: ...on contained in the SAC and make the mistaken assumption that a positive ruling as to the 1st, 4th, and 5th causes of action will moot the 2nd, 3rd, and 6th causes of action resulting in a judgment in their favor. Code of Civil Procedure, section 437c specific states: Page | 2 “… the fact that a motion for summary adjudication is granted as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty within the...
2021.04.27 Motion to Compel Arbitration 653
Location: San Bernardino
Judge: Frangie, Janet M S29
Hearing Date: 2021.04.27
Excerpt: ... that ruling be exhausted or waived, both FedEx Office and the Team Member nevertheless waive their right to proceed before a jury, meaning all actions shall proceed only before a judge.” Plaintiff's claims of procedural unconscionability are not persuasive. There is no evidence that Plaintiff was unaware of the arbitration agreement or that he did not understand it. There is no evidence Plaintiff specifically asked about the arbitration agreem...
2021.04.27 Motion for Reconsideration 337
Location: San Bernardino
Judge: Cohn, David S26
Hearing Date: 2021.04.27
Excerpt: ...dismiss the individual claims with prejudice, and therefore seeks “reconsideration” of the minute order. While a mistake on the part of counsel would not constitute proper grounds for a motion for reconsideration, and a motion for reconsideration filed more than ten days later would be untimely, no motion was necessary, because the individual claims were never, in fact, dismissed with prejudice. The only papers filed with the court by the dea...
2021.04.26 Motion to Strike 639
Location: San Bernardino
Judge: Poncin, Lynn M S28
Hearing Date: 2021.04.26
Excerpt: ...e damages, as the conscious disregard of the safety of others is not, by itself, sufficient to establish malice or oppression. 2 Plaintiff timely filed his Opposition on April 9, 2021, arguing his allegation that Andrew Rodriguez willfully and wantonly operated a motor vehicle while intoxicated, and in total disregard of the health and safety of Plaintiff's father is sufficient, at the pleading stage, and before any discovery is conducted, to ove...
2021.04.21 Petition for Writ of Mandate 071
Location: San Bernardino
Judge: Cohn, David S26
Hearing Date: 2021.04.21
Excerpt: ...Ralph Diaz. On August 14, 2019, Petitioner, a correctional officer with the CDCR was served with a “notice of adverse action” accusing her of violating CDCR policies in connection with an attempted prison escape. Based on the policy violations, Petitioner's salary was reduced by 5% for ten pay periods. Page 3 of 12 Petitioner appealed the notice of adverse action and the appeal was heard by an SPB Administrative Law Judge (ALJ). The ALJ rende...
2021.04.20 Motion to Stay Proceedings 804
Location: San Bernardino
Judge: Ochoa, Gilbert G S24
Hearing Date: 2021.04.20
Excerpt: ...stice seem[] to require such action.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886.) The proponent of the stay or protective order must establish good cause. (GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 754 [indicating “a presumption of good cause exists should be indulged only if circumstances warrant”].) The U.S. Supreme Court has also stated that the power to stay a proceeding is incidental to the power inhere...

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