Excerpt: ...n for attorney's fees as the prevailing party at trial, pending the outcome of related proceedings instituted by Newport Crest in Plaintiff's bankruptcy case. (See ROA 1464.) On March 13, 2018, the Court, having been informed that the bankruptcy case was pending before the Ninth Circuit Bankruptcy Appellate Panel, extended the stay “until a ruling is made by the Bankruptcy Court Appellate Panel.” (ROA 1496.) Meanwhile, on January 22, 2019, th...

Excerpt: ...owner's insurance policies. Plaintiff alleges that his home was damaged by smoke and soot as a result of the Holy Fire in August 2018. (Compl. ¶¶ 15-16.) Plaintiff does not allege that his home was actually damaged by flames, only smoke, soot, etc. His homeowner's insurance policy has a Wildfire Smoke Sublimit that limits coverage to smoke damage from wildfires to $2,500 if a claim is not made within 45 days. (Compl. Ex. 1, at 5.) Plaintiff all...

Excerpt: ... non-exempt employees who worked for Mitchell International, Inc., within the State of California at any time during the period from April 5, 2013, to a date to be determined based on the notice and opt-out period. The Court granted certification only as to Plaintiff's seventh and tenth causes of action (Labor Code § 226(a) and Business & Professions Code § 17200), and only on the theory that wage statements provided by Defendant to putative cl...

Excerpt: ...ontribution from a number of alleged subcontractors, including Porter's. (ROA 22.) The Liedle firm was retained by the third-party administrator of Porter's insurance plan to represent Porter's. (Larson Decl. ¶ 2.) On May 17, 2019, the Liedle firm filed an answer to the cross- complaint on Porter's behalf. (ROA 111.) Counsel now declares that “[s]ince the filing of Porter's answer, we have become aware that coverage for Porter's was denied.”...

Excerpt: ...udicial notice is GRANTED. Defendant prevailed in a bench trial of this insurance coverage dispute and sought costs as the prevailing party. Plaintiff moved to tax the claimed costs. In a minute order dated April 19, 2019 (ROA 663), the Court granted Plaintiff's motion in part, and ruled that Plaintiff could file a supplemental motion to tax costs after reviewing certain invoices relating to travel for depositions. Plaintiff now moves to tax Defe...

Excerpt: ...ng all changes, deletions, and additions must be submitted as well. As to the Settlement: 1. The proposed settlement includes a settlement of Plaintiffs' PAGA claims. The Campbell Declaration includes proof that the required PAGA notice letters were sent to the LWDA, but it does not include the letters themselves so that the Court can evaluate compliance with PAGA requirements. Please provide copies of Plaintiffs' letters to the LWDA. 2. Addition...

Excerpt: ...tted, a redline showing all changes, deletions, and additions must be submitted as well. As to the Settlement: 1. The proposed settlement includes a settlement of Plaintiffs' PAGA claims. Although the SAC states that PAGA prerequisites were followed, the Court's file does not contain Plaintiffs' PAGA letters to the LWDA. Please provide copies of the letters. 2. PAGA has a one-year statute of limitations and Plaintiffs sent their PAGA letters to t...

Excerpt: ...tions of Labor Code sections 201-203, 204, 226, 226.3, 226.7, 516, 558, 1174, 1174.5, 1175, 1182.12, 1194, 1194.2, 1197, 1198, 2800, and 2802 and applicable IWC Wage Orders. (Compl. ¶¶ 24-35 [ROA 2].) He seeks solely civil penalties under PAGA and does not pray for recovery of unpaid wages. (Id. at Prayer for Relief, ¶ 1.) Defendants move to dismiss Plaintiff's “representative PAGA claims,” order his “individual claims against Defendants...

Excerpt: ...ckson Lewis, P.C. are jointly ordered to pay sanctions to Plaintiff in the amounts set forth in the tentative rulings by August 12, 2019. Defendant moves to compel arbitration of Plaintiff's claims on an individual basis and to dismiss or stay the remainder of the case pending the outcome of the arbitration proceeding. As an initial matter, although neither party appears to have addressed the issue, the Court notes that Plaintiff's PAGA cause of ...

Excerpt: ... is GRANTED. Plaintiffs seek to compel a response to their Special Interrogatory No. 3, which provides: IDENTIFY each and every AGGRIEVED EMPLOYEE employed by YOU during the RELEVANT TIME PERIOD. (As used in these interrogatories, the terms "DEFENDANT," "DEFENDANTS," "YOU," or "YOUR," all mean and refer to Defendant IEC CORPORATION WHICH WILL DO BUSINESS IN CALIFORNIA AS INTERNATIONAL EDUCATION CORPORATION, and shall also include all current or f...

Excerpt: ...tion project in San Diego. 5 th Rock now seeks to file a third amended cross-complaint that adds a Business & Professions Code § 17200 based on the same overbilling allegations. A. Relation Back While the Court has broad discretion to grant leave to amend, it cannot grant leave to amend to add a cause of action on which the statute of limitations has run. The statute of limitations for a § 17200 claim is four years (Bus. & Prof. Code, §17208),...

Excerpt: ...iled on or before July 26, 2019. 1. Per the May 30, 2019 declaration of Kevin Mahoney, the class now comprises 393 members. (Mahoney Decl. ¶ 27.) The executed settlement agreement, on the other hand, estimates the class at 290 members. (Settlement at 14.) Counsel previously identified, at preliminary approval, a class of 280-290 members. (Mahoney Decl. of 01/09/19 [ROA 87], ¶¶ 43, 57.) Please explain the approximately 35% increase in class siz...

Excerpt: ...allocated to the PAGA claim. Moreover, given other significant issues with respect to both the structure and explanation of the settlement (detailed below), the Court can see no reason for merely continuing the motion to allow for “corrections.” If the parties want this Court to approve the release of penalties for 146 employees, then they will need to rethink the settlement terms. The Motion is DENIED in view of the following significant iss...

Excerpt: ...vings Bank, N.A. Motion to Quash There is no tentative ruling on Plaintiff Richard Mateos's motion to quash subpoenas for various bank records. In a minute order dated May 3, 2019, the Court explained potential problems with the subpoenas and suggested how they should be limited. The Court also ordered the parties to meet and confer to attempt to agree on the timing and scope of the records to be produced pursuant to these subpoenas and to finali...

Excerpt: ... defendant may demur to a pleading on the basis “[t]here is another action pending between the same parties on the same cause of action.” The above provision codifies “the common law plea in abatement.” The “rule of exclusive concurrent jurisdiction,” which is the principle Defendant seeks to enforce herein, is similar (see People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4 th 760, 770), and may be raised by demur...

Excerpt: ...ed as of June 30, 2016. Plaintiff's lawsuit was filed on May 12, 2017; she timely filed her PAGA letter with the LWDA on May 15, 2017. Without any stays, the deadline for filing a PAGA cause of action was November 2, 2017. (See Labor Code 2699.3; Brown v. Ralphs Grocery Company (2018) 28 Cal. App. 5 th 824, 839; Defendant's Reply at 3.) Defendant's motion to compel arbitration was filed on September 13, 2017 and was decided on October 27, 2017. D...

Excerpt: ... of the petition to compel arbitration is without prejudice in the event that the Supreme Court, in theLawson case, rules that the part of a PAGA case seeking victim-specific relief in the form of unpaid wages is subject to arbitration pursuant to Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 (Esparza). Grounds for Ruling This is a PAGA-only action based primarily on alleged minimum wage and rest break violations. Plaintiff alleges vi...

Excerpt: ...aint (FAC) is OVERRULED, and its motion to strike portions of the FAC is DENIED. Plaintiff De Trinh's request for leave to file a second amended complaint is DENIED AS MOOT. Defendant's unopposed request for judicial notice is GRANTED. Defendant shall have until June 28, 2019 to file an answer to the FAC. DEFENDANT'S DEMURRER TO FAC Defendant demurs only to Plaintiff's ninth cause of action alleging a PAGA claim. In general, Defendant argues that...

Excerpt: ...SAR”) and/or proposed Class Notice is submitted, a redline version showing all changes, deletions and additions shall be submitted as well. As to the Settlement: 1. The SAR provides for a class of 1,206 persons (SAR § 1.03), while the subsequent declaration of George Hurley states the class, after the discovery of additional persons who should be excluded, consists of 1,174 persons. (Hurley Decl. ¶ 10.) The class sizes differ by 32, but the H...

Excerpt: ...October 24, 2018 Declaration (ROA 93), Attorney Scott Leviant stated the size was approximately 2700 at the preliminary approval stage. Additionally, Counsel previously represented that the average individual payment to be $925. However, despite the reduction in class size, the average payment is now represented to be lower, at $723.24. Please explain how a reduction in class size results in a reduction in the average payment as opposed to larger...

Excerpt: ...n showing all changes, deletions and additions shall be submitted as well. As to the Settlement: 1. There is insufficient evidence from which this Court can make a finding that the settlement is fair, adequate and reasonable. Plaintiff Counsel's declaration submitted with the motion is conclusory as to this issue, without sufficient analysis of Plaintiff's valuation of each of the causes of action based on the documents and testimony, including t...

Excerpt: ...chael Rodarte Jointly and Severally Motions by Defendants (1) Estates of Monarch Cove Community Association, (2) Robert Shipp, (3) Estate of Jeffrey Rhoades, and (4) William and Sophie Bendush for Attorneys' Fees The motions for attorneys' fees and costs are GRANTED pursuant to Civil Code Sections 1717 and 5975(c) and the Memorandum of Costs filed 1/16/19. The Judgment awarding attorneys' fees and costs in favor of the moving parties will be ente...

Excerpt: ...ence Code §452(d)). The second Request is DENIED as irrelevant. (See Zucchet v. Galardi (2014) 229 Cal.App.4 th 1466, 1474, fn. 5). “[A] written trial court ruling has no precedential value.” (Se Bolanos v. Superior Court (2008) 169 Cal.App.4 th 744, 761). As set forth in its Notice of Motion, the primary legal bases for Defendant's motion are CCP §128 and CCP §187. However, neither provision expressly permits a determination as to a Plain...

Excerpt: ...s, deletions and additions shall be submitted as well. As set forth in detail below, the Court has serious concerns about how carefully the settlement materials were drafted and whether the settlement is reasonable for a number of reasons. While the Court does not expect the first go-around of a motion for preliminary approval to be letter perfect, it expects a lot more than what was provided here. This is especially true where one of the lawyers...

Excerpt: ...ional request for an order striking the class action allegations is DENIED. Preliminarily, both the Federal Arbitration Act and the California Arbitration Act require the existence of a valid Arbitration Agreement before arbitration can be compelled. (See 9 U.S.C. §2 and CCP §1281.2). "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition...

Excerpt: ...appears that the Sixth Amended Complaint alleges the same fraudulent scheme as in Barrons, with differences in the parties and the property at issue. For the same reasons set forth in the Court's ruling in the Barrons Demurrer, the Demurrer in this action is SUSTAINED without leave to amend as to the 3 rd, 7 th, 8 th, 10 th and 13 th causes of action. Plaintiffs' request for judicial notice is GRANTED. PETITION TO VACATE ARBITRATION AWARD BY KORN...

Excerpt: ...suant to Evidence Code §452(h). 7th, 8 th and 10 th Causes of Action for Constructive Fraud, Intentional Misrepresentation and Fraud by Concealment Paragraph 126 of the 5AC alleges that CBRE aided and abetted other defendants in misrepresenting the actual purchase price of the property in question. This allegation is incorporated by reference into all of the causes of action at issue here. As explained by the court in Casey v. U.S. Bank National...

Excerpt: .... (2006) 144 Cal.App.4 th 824, the court stated as follows with respect to a CLRA claim: “[A] claim may be stated under the CLRA in terms constituting fraudulent omissions, [however] to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” (Id. at 835). The court there found no allegations which demonstrated a duty to disclose, as “[t]...

Excerpt: ...pport of the motion. Nonetheless, it appears to the Court that the settlement remains fair, adequate and reasonable to a class of 123 individuals in light of the result obtained, counsel's prior valuation of the claims, the average settlement payment of $2,716.51, and the results of the class notice. Provided Class Counsel confirms at or prior to the hearing that he considered the actual size of the class in determining the fairness, adequacy and...

Excerpt: ...atz Declaration and Exhibit A thereto), and (3) the Agreement encompasses the claims at issue here. This position is reinforced by the broad language of the Arbitration Provision, which requires the parties to “arbitrate any and all disputes or claims in any way relating to the relationship between you and us….” (See ¶3 of Katz Declaration, Exhibit A, §18.2). In opposing the Motion, Plaintiff asserts that the agreement to arbitrate is une...

Excerpt: ... Katz Declaration and Exhibits A-I), and (3) the Agreements encompass the claims at issue here. This position is reinforced by the broad language of the Arbitration Provision, which requires the parties to “arbitrate any and all disputes or claims in any way relating to the relationship between you and us….” (See ¶¶3-12 of Katz Declaration, Exhibits A-I, §18.2). While there are no arbitration agreements signed by Plaintiffs Julie Arlotti...

Excerpt: ...s in place of identifying information as agreed to by Plaintiff. (See Motion: 4:17- 19). Additionally, any records produced in connection with this discovery may be used only within the instant action. As to Request No. 5 which seeks pay records, the Court finds Defendant has sufficiently identified a “legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that...

Excerpt: ...ril 9, 2019. Consistent with this Court's April 26, 2019 order, the Court converts Defendant's motion for summary adjudication of the contract claims (i.e. the First, Fourth and Fifth Causes of Action) to a motion for judgment on the pleadings and GRANTS the same with 7 days leave to amend as to Plaintiffs T-12 and HRG to permit these Plaintiffs to allege third-party beneficiary status in connection with the applicable subcontract. The Court DENI...

Excerpt: ... of Appeal's decision in LaMelza et al. v. Lindsay et al., G057421. The stay applies to all disputes stemming from Plaintiffs' claim to the subject bond portfolio as “creditors” of Robert Gilroy under the UVTA and Plaintiffs' allegation that Gilroy's transfer of the Bond Portfolio to SME was a fraudulent transfer and is voidable under the UVTA. The stay extends to all claims of priority by FFB and SME to the Bond Portfolio, and also extends t...

Excerpt: ...or violation of Labor Code §226(a) and Business & Professions Code §17200 based on the theory that paystubs provided by Defendant to putative class members during the class period failed to include Defendant's legal name “Mitchell International, Inc.” In all other respects, the motion is DENIED. The class is defined as follows: All current and former hourly-paid or non-exempt employees who worked for Mitchell International, Inc., within the...

Excerpt: ...ion for violation of Penal Code § 496. At most, Plaintiff has alleged that Orange Coast breached its duties of care as an escrow company to Plaintiff's assignor. Plaintiff has not alleged Orange Coast knowingly received, withheld or concealed any stolen property, or knowingly aided in the conduct prohibited by Penal Code § 496 as required to state a claim under this provision. (See Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal....

Excerpt: ...itted, a redline version showing all changes, deletions and additions shall be submitted as well. As to the Settlement: 1. The proposed Class Definition contained in Article I, subsection c, of the Settlement Agreement and ¶17 of the First Amended Complaint, references security guards or individuals in a “functionally equivalent position.” The Class Notice is directed to, and defines the Class as, only security guards. Please confirm that th...

Excerpt: ...l of the out-of-state action initiated by Defendant and bringing this motion for fees. It is premature for Plaintiff to seek any remedies in this action, including attorneys' fees, pursuant to Section 925(c) before there has been a determination whether Plaintiff was an employee or independent contractor, and whether Defendant violated Labor Code § 925. Pursuant to Section 925, an employer may not require an employee who primarily resides and wo...

Excerpt: ...3, 2018 (ROA 167). Four weeks later, the attorneys for the parties (but not the parties themselves) stipulated to class-wide arbitration based on the representation that most of the putative class members had signed arbitration agreements. The stipulation (ROA 170) provided for arbitration of all “disputes arising from or related to the facts pleaded in the Complaint,” and gave no indication that the role of the arbitrator would be to approve...

Excerpt: ..., very minimal, and Trilogy was often dismissed from construction defect suits for waiver of costs or with payment of very little money. But Navigators directed its attorneys to avoid vigorously defending Trilogy and to try to use money Trilogy would have to reimburse to resolve claims. This created circumstances where other law firms Navigators selected were subject to conflicts of interest, often receiving conflicting instructions from their cl...

Excerpt: ...from Plaintiff's financial institutions is constitutionally protected private financial information. On the other hand, Defendant has established that to the extent Plaintiff's ATM, bank statements or credit card statements reflect time stamps which show Plaintiff left his work premises from August 2016 to July 2017 and made meal and other purchases, that information would be directly relevant to this action because Plaintiff admittedly did not c...

Excerpt: ...ceeding as a class superior to the alternatives. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Brinker Restaurant Corporation v. Superior Court (2012) 53 Cal.4th 1004, 1021 [internal quotes and citations omitted].) These elements ...

Excerpt: ...lement Agreement and/or proposed Class Notice is submitted, a redline version showing all changes, deletions, and additions shall be submitted as well. As to the Settlement: 1. The information provided with the motion is still insufficient for the Court to assess whether the settlement is fair, adequate and reasonable to the class, and whether Plaintiff's counsel sufficiently analyzed the value of the claims. Plaintiff's counsel filed two declara...

Excerpt: ... Judgment or, in the Alternative, Summary Adjudication Against Plaintiffs 1. Motion by Saddleback Corp. dba Saddleback Waterproof for Summary Judgment or Adjudication as to Plaintiffs' First Amended Complaint Defendant Saddleback's motion for summary judgment and summary adjudication of Issues 5 and 6 (statute of limitations) is DENIED. The motion for summary adjudication is GRANTED as to Issues 1, 3 and 4 (contract-based claims), with leave to a...

Excerpt: ...998, which Plaintiff did not timely accept. The offers, which are attached to the McLeod Declaration, fail to specify in any respect how the offer may be accepted. Therefore, the cost-shifting provision was not triggered. (CCP § 998(b) [“[t]he written offer shall include … a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted]; Perez v. Torres (2012) 206 Cal.App.4th ...

Excerpt: ...48 Cal.3d 341 (Borello). The Court examined the nature of Plaintiffs' PAGA claims and determined that the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, applied to Plaintiffs' PAGA claims to the extent they are based on alleged Labor Code violations which, in turn, are rooted and inseparably tied to the applicable wage order, which included all of Plaintiffs' claims other than the gratuity claim. (See 7/...

Excerpt: ... not recover additional waiting time penalties under Labor Code § 203 in connection with Plaintiff's First Cause of Action. However, the First Cause of Action, which is based on several alleged Labor Code violations and includes a prayer for damages as well as penalties, is not barred by the doctrine of res judicata. The issue before this Court is whether putative class members in this action who are bound by the release approved by the court pu...

Excerpt: ...Fourth and Fifth Causes of Action for wrongful termination in violation of public policy and termination in violation of the California Constitution are not grounded solely on the FEHA, and that ruling does not mandate dismissal of these causes of action. The gravamen of Plaintiff's Third Amended Complaint (TAC) is that Biola refused to promote, demoted and ultimately terminated Plaintiff due to race and gender. Plaintiff has alleged Biola's alle...

Excerpt: ...ining the current method of calculating and/or paying commissions, and is DENIED as to the allegations referencing “independent contractors” and Labor Code section 226.8. Defendants' unopposed Request for Judicial Notice is GRANTED but not for the truth of any statements made in the exhibits thereto. (See Notice of Non-Opp. to RJN [ROA 57].) The Court declines Plaintiff's last-minute request (filed at 5:30 p.m. on April 3, 2019) to take judic...

Excerpt: ...h Cause of Action against All Surface for breach of contract is STAYED pending resolution of Pacific Construction Group's (“Pacific's”) fifth cause of action for breach of contract in its cross-complaint against All Surface pending in the action entitled Stapleton v. Pacific Construction Group, Los Angeles Superior Court case no. BC613913 (the “Stapleton action”). The action before this Court involves insurance coverage issues arising fro...