Excerpt: ... discussed in those rulings. The same settlement is now submitted for approval a third time. In the time since it was signed, case law has clarified several issues which also weigh against approval. In Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal. App. 5th 667, 674‐ 675, the Court of Appeal determined that the 226.3 penalty applied to all violations of Labor Code section 226(a), not just where the employer completely failed t...

Excerpt: ...ned by the parties outside of the presence of the court . . . for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Emphasis added.) In ruling on a Section 664.6 motion, the court may receive oral testimony, or may rule on the motion based on declarations alone. (Corkland v. Boscoe (1984) 156 Cal.App.3d 989, 994.) Where the settlement agreement is ambiguous, the court ...

Excerpt: ...for nonperformance; (3) defendant's breach; and (4) damages to plaintiff as a result of the breach.” CDF Firefighters v. Maldonado (5th Dist. 2008) 158 Cal. App. 4th 1226, 1239. The pleading alleges a workers compensation policy, with a limit of $1,000,000, policy number GWRC847238, with a coverage period of October 15, 2017 to October 15, 2018, for a price of $4,850, payable in 11 monthly installments with a deposit of $727.50. That is rev...

Excerpt: ...n which the complaint may be amended will run from service of the order by the clerk. All new allegations shall be placed in boldface type. Prior to filing an amended complaint, the parties shall hold a telephonic or inperson conference pursuant to Code of Civil Procedure section 430.41, subdivision (c). With the amended complaint, plaintiff shall file a declaration detailing the compliance with this requirement. Explanation: First Cause of Actio...

Excerpt: ...39;s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) The statute “requires the trial court to make an initial determination of the actual time expended; and then to ascertain whether under all the circumstances of the case the amount of actual time expended and the monetary charge bein...

Excerpt: ...laintiff, as only a defendant has standing to move for a change of venue based on the action being filed in the wrong court. (Code Civ. Proc. §§ 395, subd. (a); 396a, subd. (b).) Plaintiff shall pay all fees and costs for transfer of the action to Kern County within 30 days of the date of service of this order. (Code Civ. Proc. § 399, subd. (a).) Explanation: Plaintiff moves to transfer the action from Fresno County to Kern County, contending ...

Excerpt: ...in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Orange Cnty. Air Pollution Control Dist. v. Superior Court (1972) 27 Cal.App.3d 109, 113.) “The purpose of the motion for summary judgment is to determine whether issues presented by the pleadings actually are triable iss...

Excerpt: ...laintiff, as only a defendant has standing to move for a change of venue based on the action being filed in the wrong court. (Code Civ. Proc. §§ 395, subd. (a); 396a, subd. (b).) Plaintiff shall pay all fees and costs for transfer of the action to Kern County within 30 days of the date of service of this order. (Code Civ. Proc. § 399, subd. (a).) Explanation: Plaintiff moves to transfer the action from Fresno County to Kern County, contending ...

Excerpt: ...he initial burden of demonstrating facts justifying the exercise of jurisdiction. The plaintiff must do more than merely allege jurisdictional facts; plaintiff must provide affidavits and other authenticated documents demonstrating competent evidence of jurisdictional facts. (BBA Aviation PLC v. Superior Court (2010) 190 Cal.App.4th 421, 428‐429.) If this is met, the defendant then has the burden of demonstrating that the exercise of jurisdicti...

Excerpt: ...itations.]” (Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181.) The terms “extrinsic fraud” and “mistake” are “given a broad meaning and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” (In re Marriage of Park (1980) 27 Cal.3d 337, 342.) To set aside a default judgment “based on extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate...

Excerpt: ...tion: A motion to strike can be used to: “(a) Strike out any irrelevant, false, or improper matter inserted in any pleading”; or “(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”(Code Civ.Proc. §§ 431.10, subd.(b); 436, subd.(a).) A court will “read allegations of a pleading subject to a motion to strike as a whole, all parts in their ...

Excerpt: ... independently. However, plaintiffs have alleged facts with respect to the allegedly inadequate design of the driver's seat structure of the subject automobile, and MMC's knowledge of internal and external test results and external investigations which revealed these inadequacies. The remoteness of time regarding some of these tests does not invalidate these allegations, since adoption of, and continued retention of, defective designs despite all...

Excerpt: ...rt's files. The granting or denial of a motion to consolidate rests in the sound discretion of the court and will not be reversed except upon a clear showing of abuse of discretion. (Fellner v. Steinbaum (1955) 1332 Cal.App.2d 509, 511.) Consolidation is proper when it would avoid unnecessary costs and delays and when the proposed consolidated action contain common questions of law or fact. (CCP §1048, subdivision (a).) California Rule of Court ...

Excerpt: ...ust be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Am...

Excerpt: ...improper requests for fees. To grant the motion for costs, less $520 for Court Call fees which are expressly prohibited by Civil Code section 1033.5. Sukhdev Gill and Harjit Singh are awarded costs in the amount of $3,724.38. Explanation: In the case at bar, Sukhdev Gill and Harjit Singh move for an award of attorney fees in the amount of $ 41,852.00 pursuant to Civil Code section 1717, as well as costs in the amount of $ 4,244.38. Opposing parti...

Excerpt: ...e).) To overrule the demurrer to the fifth cause of action. (Code Civ. Proc. § 430.41(b).) To grant the motion to strike SACC ¶ 55 and page 17, lines 1‐2 of the prayer for relief, without leave to amend. (Code Civ. Proc. § 436.) Ross shall file their answer to the SACC within 10 days of service of the order by the clerk. Explanation: Demurrer Ross demurs only to the fourth and fifth causes of action, for intentional and negligent misrepresen...

Excerpt: ...t SEIU Local 2015 plaintiff alleges causes of action for negligence and intentional tort. Plaintiff alleges that he was an employee of the State of California In Home Supportive Services. As an employee plaintiff was represented by defendant SEIU Local 2015, who informed plaintiff that he would have insurance within a few months. On May 4, 2017, plaintiff was in an auto accident caused by an uninsured motorist. Though plaintiff was employed by th...

Excerpt: ...onse within 10 days after service, the Court will exercise its discretion and consider Plaintiff/Respondent Inmany's (“Respondent”) late‐filed opposition, as no prejudice to Petitioner is apparent. (See, e.g., Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847; Hoover Community Hotel Development Corp. v. Thomson (1985) 168 Cal.App.3d 485, 488.) PAGA/Waiver A PAGA action may be brought “by an aggrieved employee on behalf o...

Excerpt: ... accordance with the rules applicable to motions generally. (Knight, Fannin, Chernick & Haldeman, California Practice Guide: Alternative Dispute Resolution (Rutter Group 2017) “Contractual Arbitration” §§ 5:301, 5:304; Code Civ. Proc. §1290.2.) The motion/petition must allege specific facts demonstrating the existence of an arbitrable controversy, rather than mere conclusions, and must allege not only the existence of the arbitration agree...

Excerpt: ...s President of the Sikh Center; and (3) plaintiff is seeking damages for the alleged conspiracy, yet damages are not permitted under a conspiracy theory. Issue 1: Is civil conspiracy an actionable tort? The elements of a civil conspiracy are (1) formation and operation of the conspiracy, (2) damage resulting to plaintiff, and (3) from an act done in furtherance of the common design. (I‐CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Ca...

Excerpt: ...s in the amount of $500. (Ibid.) Defense counsel shall pay the fees within 30 days of this order. Explanation: Defendant Dawn Bray moves for relief from the default and default judgment under the attorney affidavit of fault provision of Code of Civil Procedure section 473, subdivision (b). Under that provision, Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six mont...

Excerpt: ...elieving the petitioner from Section 945.4." (Gov't. Code § 946.6, subd. (a).) Under section 946.6, subdivision (c), "The court shall relieve the petitioner from the requirements of Section 945.4 if the court finds that the application to the board under Section 911.4 was made within a reasonable time not to exceed that specified in subdivision (b) of Section 911.4 [e.g., no more than one year after the claim accrued] and was denied or d...

Excerpt: ...minute order. Explanation: Motion for Attorney's Fees: A prevailing buyer in an action under the Song– Beverly Act “shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney's fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ...

Excerpt: ...n of documents is ordered stayed until five days after the protective order is signed by the Court. Explanation: A motion to quash or modify a subpoena may be made on the grounds that the matters sought to be discovered are privileged, protected, or otherwise beyond the scope of discovery. (Code Civ. Proc. §2017.010.) A motion may also be brought on the grounds that the discovery sought is unreasonable, or oppressive or is an unreasonable violat...

Excerpt: ...construction project. The motion is opposed by plaintiff, as well as by George A Bics Plumbing, Inc. (“Bics”). Bics' opposition will not be considered due to the untimely service of the papers. (See Code Civ. Proc. §§ 437c(b)(2), 1005(c); Sande Dec. ¶ 2.) Regarding evidentiary objections, the court sustains plaintiff's objection no. 2, and overrules no. 1. Objections nos. 3‐12 are also overruled, as evidentiary objections can only be mad...

Excerpt: ...h sides have already paid the complex case fees. The Court finds that this matter meets the definition of “complex” under California Rules of Court, Rule 3.400(b)(1). 2. Class Certification a. Standards An agreement of the parties is not sufficient to establish a class for settlement purposes. There must be an independent assessment by a neutral court of evidence showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. ...

Excerpt: ...t summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party bears the initial burden of production to make a prima facie showing of the “nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[A]ll a defendan...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...proceeding. Explanation: A motion to quash or modify a subpoena may be made on the grounds that the matters sought to be discovered are privileged, protected, or otherwise beyond the scope of discovery. (Code Civ. Proc. §2017.010.) A motion may also be brought on the grounds that the discovery sought is unreasonable, or oppressive or is an unreasonable violation of a right to privacy. (Code Civ.Proc. §1987.1, subd.(a).) Defendants seek to quash...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...ninth causes of action, and stay litigation thereof until after arbitration is completed. Explanation: When a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine: (1) whether the agreement exists and, (2) if any defense to its enforcement is raised, whether it is enforceable. The petitioner (seeking to compel arbitration) bears the bur...

Excerpt: ...ee. In addition to the claims pertaining to the internal affairs of the trust, the petition asserts a cause of action for financial elder abuse. The Probate Court has exclusive jurisdiction over proceedings concerning the internal affairs of trusts. (Prob. Code § 17000, subd. (a).) Under Probate Code section 7000, subdivision (b), the Probate Court has concurrent jurisdiction over: “(1) Actions and proceedings to determine the existence of tru...

Excerpt: ...l basis. These motions were Plaintiff's motions to strike Defendant's cross‐complaint and his verified answer (and portions thereof), and to set aside the Court's order of August 30, 2018. Section 128.7, subdivision (b) provides that by submitting any motion or similar paper to the Court, the submitting person is certifying that, after a reasonable inquiry: (1) It is not being presented primarily for an improper purpose, such as to harass or to...

Excerpt: ...ion, fees are to be awarded as a matter of right. There is no discretion to deny fees under such circumstances. (Rancho Mirage Country Club Homeowners Ass'n. v. Hazelbaker (2016) 2 Cal.App.5th 252, 263.) The arguments made by Westcare California, Inc. (“Westcare”) against any fee award are unpersuasive. The fees request is made directly by Comprehensive Addiction Program, Inc. (“CAP”) on a cross‐complaint brought against CAP by Westcare...

Excerpt: ... filed no later than July 15, 2019. Explanation: 1. Failure of Service of Moving Papers The proof of service omits Mr. Delao, who substituted himself in pro per in August of 2018. As a named party to this action, he must be served as any other named party. 2. Final Approval of Settlement a. General Standards California Rules of Court, rule 3.769(g) states: “Before final approval, the court must conduct an inquiry into the fairness of the propos...

Excerpt: ...s within 5 days of the clerk's service of the minute order. Explanation: A defendant may cross‐complain against a co‐defendant or third person not yet a party to the action where the cause of action asserted “(1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against [it] or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause ...

Excerpt: ...f the minute order. Explanation: Upon timely application, any person who has an interest in a matter in litigation, or in the success of either of the parties, or an interest against both, may intervene in the action or proceeding. (Code Civ. Proc. § 387; Fireman's Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 303‐ 305.) The intervention must not enlarge the issues in the case and the reasons for intervention must outweigh any opposit...

Excerpt: ...rd, eighth, eleventh, fifteenth, sixteenth and eighteenth causes of action. (Code Civ. Proc. § 437c(f)(1).) Explanation: Plaintiff asserts 18 different employment‐related claims, including discrimination, harassment, retaliation, and wage and hour claims. As pointed out in the moving papers, plaintiff made many admissions at his deposition that were devastating to most of his claims. The court notes that the moving papers primarily rely on pla...

Excerpt: ...stake, inadvertence, surprise, or excusable neglect, and therefore the court should set aside the default. Under the discretionary relief portion of section 473, subdivision (b), The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this...

Excerpt: ...stake, inadvertence, surprise, or excusable neglect, and therefore the court should set aside the default. Under the discretionary relief portion of section 473, subdivision (b), The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this...

Excerpt: ... is correct that the plaintiff's causes of action survive even after her death. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc.,...

Excerpt: ... action for sex discrimination based on the fact that she, as a division manager, was paid less than other division managers. Just before trial, the court ruled that the comparison of plaintiff's salary with that of other managers was inappropriate evidence, as a similarity in job duties had not been shown. At the end of plaintiff's presentation of her case, she moved for leave to amend her complaint to proof offered that she was paid les...

Excerpt: ... motion for reclassification after the time for that party to amend that party's initial pleading or to respond to a complaint, crosscomplaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: (1) The case is incorrectly classified. (2) The moving party shows good cause for not seeking reclassification earlier. Also, “[i]f a case is re...

Excerpt: ... is correct that the plaintiff's causes of action survive even after her death. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period.” (Code Civ. Proc., § 377.20, subd. (a).) Also, “A pending action or proceeding does not abate by the death of a party if the cause of action survives.” (Code Civ. Proc.,...

Excerpt: ...d of litigation costs under [Code of Civil Procedure] section 1032, subdivision (b), implements a clear legislative goal of encouraging potentially meritorious FEHA suits. (Williams [v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97], 112 . . . .) Although section 1032, subdivision (b), also serves an important purpose, relieving a party whose position was vindicated in court of the basic costs of litigation, when those costs have not b...

Excerpt: ...ade on one of the following grounds: (A) If the moving party is a plaintiff, that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Code Civ. Proc., § 438, subd.'s (b)(1) and (c)(1)(A).) Here, plaintiff contends that the answer fails to allege any facts to support an affirmative defense to the claims al...

Excerpt: ...mon question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Here, it does not appear that there are sufficient overlapping facts or issues of law that would justify consolidating the cases. Plaintiffs claim tha...

Excerpt: ...a class action is proper. (Luckey v. Superior Court (2014) 228 Cal.App.4th 81; see also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3 [“The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.”].) The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted with ...

Excerpt: ...tion is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section 7:3: “The parties' representation of an uncontested motion for class certification does not relieve the Court of the duty of determining whether certification is appropriate.” The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620 (“Amchem”): “Confronted wit...

Excerpt: ...irs of the decedent.” (Adams v. Superior Court (2011) 196 Cal.App.4th 71, 76.) As there is only a “single action for wrongful death, an heir bringing the action should join all known heirs. If an heir refuses to join as a plaintiff, he or she may be named as a defendant, so all heirs are before the court in the same action.” (Adams, supra, 196 Cal.App.4th at p. 77; see Romero v. Pacific Gas & Electric Co. (2007) 156 Cal.App.4th 211, 216 [�...