Excerpt: ...g various wage‐related causes of action. Shefayee and his wife currently are litigating a hotly‐disputed dissolution proceeding. Plaintiff served defendants with Special Interrogatories, Form Interrogatories, Requests for Admission, and Requests for Production of documents on July 3, 2019. No response was provided within the statutory time. After a dispute about whether the discovery was properly served, Defendants served responses on October...

Excerpt: ...er 21, 2017. Defendant Central East Bay IPA Medical Group, Inc. dba Muir Medical Group IPA, Inc. (“Defendant” or “MMG”) opposes certification on several grounds: (1) that the proposed class is not ascertainable; (2) that multiple individualized issues predominate over and negate any supposed commonality of law or fact; (3) that Plaintiff's claim is not typical of the class she purports to represent; (4) that Plaintiff cannot adequately re...

Excerpt: ...NT: 39 HEARING DATE: 01/23/20 ‐ 7 ‐ A. Terms of the Settlement. The gross settlement amount is $750,000, non‐reversionary. Class counsel requests a fee of one‐third of that amount. Costs of $15,000, a plaintiff's enhancement fee of $7,500, and settlement administration costs of approximately $10,000, would be deducted from that amount, leaving a payment to the class of $467,500. The settlement was negotiated with the assistance of an expe...

Excerpt: ...� 10 ‐ Durkee, Brian Lawrence and Linda Mayo (collectively “Defendants”) unopposed demurrer (the “Demurrer”). The Demurrer related to Plaintiff's Complaint for forfeiture and damages pursuant to Code of Civil Procedure § 1992. The Court previously sustained Defendants' unopposed Demurrer without leave to amend; while the Demurrer was originally scheduled for hearing on November 14, 2019 Plaintiff was granted an extension to file an opp...

Excerpt: ...fornia Rule of Court 2.550, the underlying gravamen of the motion is that the discussions are “protected” under Evidence Code section 1152 and this constitutes the required “overriding interest” needed to overcome the presumption of the right of public access. While some documents in this case involve individual privacy interests and very personal information, no such claim is made with respect to this particular information. Nor is there...

Excerpt: ...8. The automatic stay of discovery was lifted on March 26, 2019. Plaintiff served extensive discovery requests on defendants the next day. Some responses were provided, and some meeting and conferring occurred. A mediation was scheduled. On July 19, 2019, with a motion to compel cutoff looming, counsel for plaintiffs sent an e‐mail to all counsel proposing an extension to either 30 days after the mediation scheduled for late September, or, if t...

Excerpt: ...ement. No monetary payment will be made to the class. For three years, when Fry's sells a gift card in California, it will either include written notice that it can be redeemed for cash value “to the extent required by law,” or cover any inconsistent language on the card with a sticker. In addition, Fry's will train employees on how and when to redeem gift cards. The settlement does not define “to the extent required by law” either with r...

Excerpt: ...2,750,000. Class counsel requests a fee of 25% of that amount. Costs of $25,000, a plaintiff's enhancement fee of $15,000, settlement administration costs of $20,000, and a PAGA payment of $50,000 (75% of which goes to the LWDA) would be deducted from that amount, leaving a payment to the class of $1,965,000. The settlement was negotiated with the assistance of an experienced mediator. The Second Amended Complaint attaches a copy of the initial P...

Excerpt: ...violations arising from those failures. The matter was initially set for hearing October 17, 2019, and the day before the hearing, the Court issued a tentative ruling setting forth specified concerns, and requesting supplemental briefing. The matter was continued to January 9, 2020. A. Terms of the Settlement. The gross settlement amount is $305,000. The settlement was negotiated with the assistance of an experienced mediator. Notice of the PAGA ...

Excerpt: ...ry judgment is denied. Defendants' motion for summary adjudication is granted as to all claims based on retirement payments for the years 2008‐09 through 2015‐16; the Court finds that these claims are barred by both claim preclusion and issue preclusion. The motion for summary adjudication is otherwise denied. The basis for this ruling is set forth below. A. Evidentiary Matters. A‐1. Plaintiff's Declaration And Request For Judicial Notice. ...

Excerpt: ...destar cross‐check as a way to determine whether the percentage allocated is reasonable. It stated: “If the multiplier calculated by means of a lodestar cross‐check is extraordinarily high or low, the trial court should consider whether the percentage used should be adjusted so as to bring the imputed multiplier within a justifiable range, but the court is not necessarily required to make such an adjustment.” (Id., at 505.) Counsel in thi...

Excerpt: ...approached by management personnel who wanted to conduct an exit interview before giving him his final paycheck. He was given the documents that included the arbitration agreement, but he did not read them and did not understand their possible consequences. He believed that he was required to sign the documents in order to receive his final check. He did not consult his attorney. Hasa objects to the admissibility of parts of the Guerrero declarat...

Excerpt: ...ot revisit the preliminary approval as to that issue. The Court specifically reserved approval of the attorneys' fees based CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 09/12/19 ‐ 2 ‐ on a lodestar cross‐check, the amount of the incentive payment to the named plaintiffs, and the recipient of any cy pres payment. As to the cy pres payment, it is expected to be quite small, and is capped at $20,000. California...

Excerpt: ...rd Cause of Action for equitable indemnity. The demurrer is sustained without leave to amend as to the Fourth Cause of Action for negligence; in JHF's opposition memorandum, JHF does not oppose the demurrer as to this cause of action. JHF shall file any amended complaint on or before September 25, 2019. 1st C/A. The first cause of action is for breach of contract. JHF has failed to plead this cause of action with adequate particularity. A complai...

Excerpt: ...ction for (1) violation of Civil Code § 2923.6 and § 2924.11; (2) negligence; and (3) violation of Cal. Bus. & Prof. Code § 17200 et seq. Request for Judicial Notice Defendant requests Judicial Notice of several County Recorder documents as well as pleadings and orders filed in other actions (“RJN”). The unopposed Request is granted. Evid. Code §§ 452, 453. CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 09/...

Excerpt: ... of $111,688.67 is to be paid, 75% of which ($83,751.50) will be paid to the LWDA. The aggrieved employees will receive $139,585.83, which includes their 25% share of the PAGA penalty ($27,922), along with payments under Labor Code section 2698 of $111,663.83. The underlying dispute concerns payment of certain commission wages for Personal Bankers employed by Citibank, in particular the proper implementation of changes made to Citibank's “Varia...

Excerpt: ...Apartments in San Pablo. The apartment complex consists of five buildings on one contiguous parcel, and defects are alleged at all five of the buildings. JHF relies on the statute of repose, i.e., Code of Civil Procedure section 337.15, which provides that action for construction defects may not be brought more than ten years after “substantial completion” of the construction in question. “Substantial completion” is defined as the earlier...

Excerpt: ...n answer on or before September 6, 2019. The basis for this ruling is as follows. A. Claim Preclusion. The Court finds that this action is not barred by the claim preclusion aspect of res judicata, for two independent reasons. A‐1. The LWDA Notice. Defendants' argument that claim preclusion applies is based on the premise that the plaintiffs in the earlier Torres litigation “could have” brought claims based on the failure to provide appropr...

Excerpt: ... and that if this dispute were only between Abbington and Shapell, it must be arbitrated. Thus, the Court need not engage in the customary analysis of the arbitration agreement to determine whether it covers this particular dispute between these particular parties. Waiver While Abbington does not expressly argue waiver, it does say that by filing a demurrer, Shapell subjected itself to the jurisdiction of the Court. Such a statement sounds like a...

Excerpt: ...ourt concluded that the PAGA claims of Collins are not subject to arbitration, and that this PAGA claim would not be stayed. The contract between Collins and Hasa limited arbitration to individual claims of the parties. (It provided that the arbitration would be required for “all existing disputes between you and Hasa that are related in any way to your employment.”) Because Mr. Collins had not brought an individual claim, the arbitration cla...

Excerpt: ...he time, but directed Springhill to file one later. 956 Holdings subsequently dismissed the action. Objections: On August 6, 2019, 956 Holdings filed objections to certain matters raised in Springhill's reply. As to the objections on the ground that they constitute new matter in a reply, the submitted information responded to issues raised in the opposition. Overruled. As to the objections on the ground that the materials constitute inadmissible ...

Excerpt: ...ct case. In support of that argument, the demurrer cites only federal cases. On reply, Hirschhorn cites Roth v. Rhodes (1994) 25 Cal.App.4th 530. In her reply brief, Hirschhorn contends (for the first time) that the agent's immunity rule insulates her from liability for acting on behalf of a corporate principal. Sanctions Hirschhorn does not dispute that she failed to comply with the statutory meet and confer requirement set out in Code of Civil ...

Excerpt: ...t expressly ordered by the court is not recoverable, and the motion to strike is granted as to that item. Item 16: Other: travel expenses for hearings ($100,753.94); mediation expenses (2,462.57, 724.50); other transcripts not ordered by the court ($3,681.56); As to mediation expenses, the motion to strike is denied. This Court, like many other courts, strongly encourages mediation, and views it as an important part of attempting to resolve dispu...

Excerpt: ...ope of work was installation of doors and door hardware, installation of appliance panels, millwork, closet shelves, framing for a kitchen hood, cabinet hardware, a wine rack, and casings on interior doors. The settlement with the Allards is for $12,500. Most of the defects in the building alleged by the Allards are exterior problems, but interior problems involve cracked walls, electrical, plumbing, and HVAC. Some problems concerning alignment o...

Excerpt: ...The First Cause of Action (Fraud). The First Cause of Action is for intentional fraud. This cause of action is based on two alleged intentional misrepresentations. Defendant represented that it “would accurately describe the Lots to be encumbered by” each deed of trust. (SAC, ¶ 44.) Also, defendant represented “that the documents presented for signing in March 2007, were correctly drawn with the accurate description of the lot to be encumb...

Excerpt: ...�) (collectively, “Defendants”). The Demurrer relates to Plaintiff Abbington Owners' Association (“Plaintiff” or “Abbington”)'s Complaint for (1) Violation of Civil Code Section 895, et. seq.; (2) Violations and Enforcement of Governing Documents; (3) Breach of Fiduciary Duty; (4) Breach of Construction Contracts; (5) Strict Liability; (6) Negligence; and (7) Breach of Implied Warranty. Defendants demur to the fourth, sixth, and seven...

Excerpt: ...been entitled to a point‐by‐point admission or denial of the Complaint's allegations only if he had verified the Complaint. (Ibid.) B. Not Affirmative Defenses. Plaintiff demurs to certain affirmative defenses on the ground that they are not really affirmative defenses, but rather constitute extraneous legal contentions more appropriately asserted in law and motion papers. These defenses are as follows: the First (“failure to state facts su...

Excerpt: ...ves for a new trial on damages, asserting that the damages were excessive. There are actually seven separate awards of damages here. As to the family of Gary Eaves, the jury awarded $950,000 for loss of financial support from his death to the present, $1 million for loss of financial support from the present to Gary's expected date of death, and damages of $9 million for the loss of Gary's “love, companionship, comfort, care, assistance, protec...

Excerpt: ...oduce substantial evidence that the alleged defects in rubber solvents cause the harm to plaintiffs. A. Standard for JNOV The standards for the motion are well‐described by the parties and are not materially in dispute. In summary, the court does not simply determine whether it agrees with the jury's findings, but whether the verdict is without foundation. (Oakland Raiders v. Oakland‐ Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175,...

Excerpt: ... the names of all parties named to the lawsuit in the consolidated action, (2) correct a misspelling, (3) substitute the correct names of real parties in interest for several properties, and (4) add a cause of action for negligence based on a change of ownership and subsequent work by Defendant. For the reasons described further, below, the motion for leave to amend is granted. Analysis Code of Civil Procedure § 473(a)(1) provides the Court disc...

Excerpt: ...amen of the dispute is the alleged rest period violations, with the remaining violations relying entirely on the rest period violations. Defendant Hospital Couriers Nevada LLC demurs as to the rest period claims, arguing that they are preempted by federal law. Defendant correctly points out that, pursuant to the Federal Hazardous Material Transportation Law, the Pipeline and Hazardous Material Safety CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORN...

Excerpt: ...the meet‐and‐confer requirement of Code of Civil Procedure section 430.41, at 8:30 a.m., on July 24, 2019, and to file a response to the Order to Show Cause no later than Thursday, July 18, 2019. The basis for this ruling is as follows. A. Preliminary Matters. Defendant Luk's unopposed request for judicial notice is granted. Counsel for plaintiff J.H. Fitzmaurice, Inc. (“JHF”) do not dispute that they failed to meet and confer with defend...

Excerpt: ... 1 and 2 in Plaintiff's Third Amended Notice of Deposition of a Person Most Knowledgeable on specified topics. ALS provides collection services to Homeowners' Associations in collecting debts from HOA members, and plaintiffs allege that ALS has violated various laws in the course of doing so. Plaintiff moves for an order compelling notice to the class, which was certified by order of the Court dated August 27, 2018. In order to provide mailed cla...

Excerpt: ...rk and a variety of parties, not including McHale Engineering. Trademark, however, filed its own cross‐complaint naming its subcontractors, including McHale Engineering. Trademark's claims against McHale are indemnity, equitable indemnity, and contribution. After some expert reports were obtained and discovery taken, two experts (Peter Curry and Glen Tofani), opined that McHale's work met the standard of care. The Allards and McHale then reache...

Excerpt: ...or when a pre‐suit demand on the board of directors is excused. Under Nevada law, and because there is no board‐considered transaction at issue, the applicable standard is that articulated by the Delaware Supreme Court in its Rales decision: Rales v. Blasband (Del. 1993) 634 A.2d 927, 936. (Kahn v. Dodds (In re AMERCO Derivative Litig.) (2011) 127 Nev. 196, 218‐219.) Under Rales, the court must evaluate whether particularized facts in the s...

Excerpt: ...mployee suffering injury as a result of a knowing and intentional failure to comply with itemized statement requirements], 2699(g)(1) [employee who prevails in any Labor Code Action], and Code of Civil Procedure section 2033.420 [cost of proving matters that should have been admitted in discovery]. She seeks $115,683.75 in fees, based on a lodestar of $77,122.50, with a 1.5 multiplier. She also seeks costs of $4,843.89. Defendant Security Officer...

Excerpt: ... defendant by virtue of a voluntary dismissal. Thus, the motion remains on calendar.) When a party files a motion for summary judgment in an unlawful detainer, defendant is entitled to present opposition “orally at the time of hearing or in writing.” (C.R.C. 3.1351(b).) Defendant Shawna Frasier moves for summary judgment on the ground that she is a tenant entitled to either a 30 or 90 day notice under both state and federal law. More specific...

Excerpt: ... This would apply to all pending and future discovery. “Any broader discovery” would be permitted only after the Court approves a “trial plan establishing that trial of Plaintiff's PAGA claim would be manageable.” Only after the Court approves the trial plan would any other discovery, including a Belaire‐West notice, be permitted. Defendant's argument centers around “manageability,” with the goal being to “enable the Court to dete...

Excerpt: ...ts. Plaintiffs allege that the notices were adequate, and Shea has improperly refused to act on them. They argue that both sides agree that the matter is subject to arbitration, and that the issue of whether the notices are valid is a threshold issue of arbitrability, which should be decided by the arbitrator. Accordingly, they seek an order compelling arbitration. Shea argues that such relief cannot be granted in opposition to their motion, but ...

Excerpt: ...olidation. The Court of Appeal has held as follows: When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending [1] may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or [2] it may consolidate the actions. [Bracketed numbers added.] (Martin‐Bragg v. Moore (2013) 219 Cal.App.4th 3...

Excerpt: ... amount of $250 should not issue for failure to follow the relevant statutes for timely filing and service. The hearing on the order to show cause is set for June 18, 2019, 8:30 a.m. Response to be filed by June 11, 2019. All requests for judicial notice are unopposed and granted. The motion of defendant William Lyon Homes to compel arbitration is granted as to the three remaining homes owned by original purchasers, whose covenant to arbitrate ap...

Excerpt: ...CA 94517 (the “Subject Property”) at a foreclosure sale. Plaintiff seeks recovery of possession from Defendant, the tenant of the former owner of the Subject Property. Defendant demurs pursuant to Code of Civil Procedure § 430.10(e) on the grounds that Defendant's claim against her does not comply with the Protecting Tenants at Foreclosure Act of 2009 (“PTFA” or “the Act”). Specifically, she asserts that she is a “bona fide” tena...

Excerpt: ...tion alleging a variety of wage‐and‐hour violations, including minimum wage, meal breaks, rest breaks, overtime, and misclassification of employees as independent contractors. Defendants are K2 Health Care, LLC, a corporation running a temporary services agency, and a number of related persons and entities. On May 2, 2017, a First Amended Complaint was filed identifying two additional plaintiffs (Josel Vasquez and Jericho Francisco), and asse...

Excerpt: ... capacity as “owners, principals, officers, directors managers, members, partners, agents, and/or employees” of High CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 39 HEARING DATE: 05/23/19 ‐ 4 ‐ End Development, Inc. (“High End”). (SAC ¶ 4(d).) Defendants argue that plaintiffs' allegations are uncertain and insufficient to state a cause of action. (See Code of Civil Procedure § 430.10 (e)‐(f).) The tort liability of...

Excerpt: ...CO is the general contractor for one, and Discovery Builders is the contractor for another. Plaintiffs allege that the two contractors are alter egos, that some of the involved employees work for both companies, that the two developments are close to each other, that a number of the subcontractors are the same for each development, and that many of the experts in the trial would be the same. Code of Civil Procedure section 1048(b) provides that s...

Excerpt: ...and New Lifestyle eventually paid it off. On July 29, 2014, the parties entered into a second agreement for a $50,000 revolving line of credit. (Declaration of Bert Simons, Exh. A.) As part of the packet of loan documents, Erridge executed a Commercial Guaranty, personally obligating himself to the debt and acknowledging that he read the document itself. The debt went into default in 2018 after the company shut down. As of the date of this motion...

Excerpt: ...r Co. (1996) 48 Cal.App.4th 1794, 1801, including “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the state of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction … to the proposed settlement....

Excerpt: ...d by either side and became the order of the Court. The order granting the motion was filed on September 26, 2018. Judgment for defendants was also entered on September 26, 2018. Notices of entry of the order and judgment were mailed to plaintiff on October 2, and filed with this Court on October 4, 2018. Plaintiff filed these two motions on March 25, 2019. Plaintiff's motion to vacate summary judgment is based upon an argument that she did not r...

Excerpt: ...however, relied primarily on the argument that the Court ought not to reach the merits of the issue, and therefore did not provide evidence in support of its opposition. Plaintiff asserts that this is a straight‐forward post‐foreclosure unlawful detainer, i.e., that the plaintiff foreclosed on the property in a non‐judicial foreclosure complying with all statutory notice requirements, that title was perfected, that a notice to quit was issu...

Excerpt: ...ed pleading motions on calendar. While settlement is a noble goal, these eleventh‐hour stipulations pose difficulties because they would not permit the Court to continue all matters, which leads to confusion and potential decisions on some of the issues that some parties may wish to settle. For example, Save Mount Diablo's stipulation would continue Oak Hill Park Company's Motion for Judgment on the First and Tenth Causes of Action in its Petit...