Excerpt: ...esponses June 26, 2018. Defendants did not seek to meet and confer about the responses until August 7, 2018, just a week before the 45‐day deadline to file a motion to compel. (Where responses are served through e‐filing, there is a two‐day extension on any deadlines. Service after close of business is deemed to have occurred the next day. (CRC 2.251(h)(2), (4).) The e‐mails of the 7th and 8th show that there was some good faith meeting a...

Excerpt: ...llegations where ‘it concludes as a matter of law that, assuming the truth of the factual allegations in the complaint, there is no reasonable possibility that the requirements for class certification will be satisfied.'” (Schermer v. Tatum (2016) 245 Cal.App.4th 912, 923 (“Schermer”).) “Class actions are permitted ‘when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is i...

Excerpt: ...moving party, Phillips 66 bears the burden of proof on this issue. (Jobe v. City of Orange (2001) 88 Cal. App. 4th 412, 419 [award “requires that the claimant show that the cost of its legal victory transcended its personal interest”]; Evidence Code § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is as...

Excerpt: ...arbitration. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 378‐89. The critical issue here is whether Plaintiff's claims under Labor Code sections 558 and 1197.1 may be compelled to arbitration. There is a conflict on this issue as between Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 and Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, review granted March 21, 2018. Broadly speaking, Esparza says that section ...

Excerpt: ...zed wage statements, 4) failure to pay wages on termination, and 5) unfair business practices. Onyx demurs as to Robinson's individual claims (but not as to the class' claims) on the basis that res judicata applies because the parties previously settled a wage claim while it was before the Labor Commissioner. “In demurrer analysis, we test the sufficiency of the plaintiff's pleading against the relevant principles of law. (Linda Vista Villa...

Excerpt: ...ts' unopposed requests for judicial notice are granted. Defendants' demurrer is sustained without leave to amend, as to the First, Second, and Fifth Causes of Action. The demurrer is moot as to the Third Cause of Action for fraud, because the Court has granted defendants' companion motion to strike that cause of action. The Court notes that the Third Cause of Action is stated only against defendant First American; it is not stated against defenda...

Excerpt: ..., Sr. (collectively, “Plaintiffs”). Defendant moves pursuant to § 438(c)(1)(B)(ii) on the grounds that Plaintiffs cannot state facts sufficient to constitute a viable cause of action for violation of Bus. & Prof. Code § 17200, et seq. For the following reasons, the MJOP to the second cause of action for violation of Bus. & Prof. Code § 17200 is denied. Request for Judicial Notice Defendant has requested judicial notice of over three hundre...

Excerpt: ...bit J. The proposed settlement provides for Defendants to pay a total of $400,000 as follows: (1) $15,000 to the settlement administrator; (2) $133,333.33 in attorneys' fees and costs; (3) $5,000 to the Plaintiff as an enhancement award; (4) $106,500 to aggrieved employees pro rata via an “underpaid wage fund;” (5) $130,166.67 to a “penalties fund” which will go 75% to the State of California ($97,625) and 25% ($32,541.66) to aggrieved em...

Excerpt: ...ithout court approval; (4) preventing him from restoring control over the company's computers; (5) operating video surveillance at the business premises; and (6) making any loans or extraordinary transfers to the Garaventa Trust, without either unanimous Board approval or court approval. To the extent the issues overlap with those considered in the motion for a preliminary injunction in the related case (C18‐ 01450), the Court retains the same ...

Excerpt: ...uly 11. The creditors submitted the application to the court, through electronic filing, on July 11. Six days later, it was rejected by the clerk, because electronic filing was not appropriate for this type of application. When plaintiffs refiled, the deadline had passed. A number of cases concern circumstances in which a clerk rejects a document, causing the filing party to miss a critical deadline: Rojas v. Cutsforth (1998) 67 Cal.App.4th 774 [...

Excerpt: ... Kizors' goals and demands. The Court, nonetheless believes that the Kizors did prevail, although not on all claims. While the Court is guided by Hsu v. Abbara (1995) 9 Cal.4th 863, which the Redigs rely on heavily, that case is of mixed help to the Redigs. It does state that “the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclos...

Excerpt: ...kansas law, add the affirmative defense of comparative fault under Arkansas law, and correct typographical errors. The law applies a general policy of liberality in permitting amendments to pleadings, where the opposing party will not be prejudiced by the amendment. (Harris v. City of Santa Monica (2013) 56 Cal. 4 th 203, 240.) While some cases have stated that unwarranted delay may be enough by itself to justify denial, such cases tend to be at ...

Excerpt: ...arily, money judgments are not stayed pending appeal unless the appellant files an undertaking. (CCP § 917.1(a)(1).) The code provides an exception, however, for costs‐only judgments. (CCP § 917.1(d) [“no undertaking shall be required pursuant to this section solely for costs awarded under Chapter 6 (commencing with Section 1021) of Title 14.”) Because the attorney fees awarded were pursuant to contract, they are considered “costs” un...

Excerpt: ... subdivision (a)(2) to enjoin “some act during the litigation [that]would result in waste, or great or irreparable injury[,]” and subdivision (a)(3) to prevent “some act in violation of the rights of another party to the action respecting the subject of the action.” In deciding to issue a preliminary injunction, the court must evaluate (1) the likelihood that plaintiff will prevail on the merits and (2) the interim harm the plaintiff is l...

Excerpt: ...uent HOA fees and where at any time during the period from April 2, 2011 through the date of Judgment in this case ALS either: (1) collected a payment from the homeowner and applied that payment to costs of collection before delinquent assessments were paid in full; and/or (2) either rejected a partial payment from the homeowner or charged the homeowner a partial payment fee; and/or (3) threatened or initiated non‐judicial foreclosure on assess...

Excerpt: ...itations set forth in Civil Code § 3439.09 (“Uniform Voidable Transactions Act”). Background Facts Plaintiff Sandra Rizzardi and Defendant Russell Rizzardi were married on October 23, 1976. Sandra and Russell separated on May 15, 1997 and a Stipulated Judgment on Reserved Issues was entered on July 7, 1998 in the Dissolution Action in Sacramento County. Russell Rizzardi was ordered to pay spousal support to Sandra Rizzardi. Russell Rizzardi ...

Excerpt: ...ts”). The Demurrer relates to the First Amended Complaint (“FAC”) filed by Plaintiff Nab A. Hayfron (“Plaintiff” or “Hayfron”). The FAC states causes of action for (1) constructive fraud; (2) violation of Business & Professions Code §§ 17200 et seq.; (3) violations of HBOR; (4) violations of Civil Code § 2923.5; (5) cancellation of written instruments; (6) negligence; (7) intentional infliction of emotional distress; (8) slander ...

Excerpt: ...never alone” and that if anything happens, defendants will contact the customer “immediately.” (¶ 26.) On December 30, 2017, Shadow was attacked by another dog, suffering significant injuries that required surgery at a veterinary hospital. (¶ 12.) Defendants did not notify plaintiffs of the incident until December 31, 2017. (¶ 12.) There was no manager on site when the incident occurred, when plaintiffs asked to speak to one after they w...

Excerpt: ...ner's office for an autopsy. The motion is granted. Factual and Procedural Background (In stating the “facts,” below the court is not making factual findings. In cases, it states “facts” from plaintiff's additional facts even though defendant disputes those facts. It does this to show that even if those facts favor plaintiffs as strongly as claimed they are still insufficient.) Centerpoint does business under the names of Alta Vista Crema...

Excerpt: ...ithin the time otherwise allowed to respond to the complaint” files the motion. Mr. Christ did not file the motion with a responsive pleading, thus the issue is whether the motion was filed “within the time otherwise allowed to respond to the complaint.” It appears undisputed that Mr. Christ's responsive pleading was due on April 2, 2018, but that the parties extended that time to 14 days “after the conclusion of the mediation[.]” Concl...

Excerpt: ... future, and; (2) whether plaintiffs are estopped from asserting waiver, in light of the fact that they opted out of the class action settlement in the consolidated Esqueda cases and commenced a new class action lawsuit. The Court rules as follows on the petition to compel arbitration, brought by all named defendants. Plaintiffs oppose the petition. The petition is denied. With regard to plaintiff Thomas A. Sacco, the Court finds that his arbitra...

Excerpt: ...cope of the response. The information sought, with respect to all of the hotels in the state, has some relevance to class certification, because it will help establish whether the individual plaintiff's claims are typical and common to the members of the putative class. Defendant's assertion that the hotels are quite different in material respects may be correct, but this needs to be tested through discovery, which may show that Defendant is corr...

Excerpt: ...ounsel to keep track of their hours for purposes of a sanctions determination. PCB opposes the request, arguing, among other things, that a request for sanctions must be directed toward the opposition to a particular motion to compel, and that such a motion exists only for one narrow sub‐ category of discovery (responses to Special Interrogatories, Set One, and Request for Production of Documents, Set Two). While the Court has general authority...

Excerpt: ...enors object to the terms of the settlement. Intervenors contend that Code of Civil Procedure section 387 provides the Court authority to permit their intervention. The Court continued the hearing on settlement approval and instead set Intervenors' application for leave to intervene for hearing on July 26, 2018. Both plaintiff James Neil and defendant Hanlees have opposed intervention. Analysis under CCP section 387 CONTRA COSTA SUPERIOR COURT MA...

Excerpt: ...vil Procedure section 1008, which requires (1) that the motion be filed within ten days after service of written notice of the order being reconsidered; and (2) that the moving party show “new or different facts, circumstances, or law” that justify reconsideration. The moving party must show that the new evidence could not, with reasonable diligence, have been discovered or produced for the previous motion. (New York Times v. Superior Court (...