Excerpt: ...should provide a red-lined version of any revised papers, including the notice to the class. Counsel must explain why the parties are using April 1, 2014 as the start date for both subclasses, since the pleadings used October 18, 2013 as the start date. Counsel also must explain why the parties are using October 31, 2018, rather than the date of preliminary approval or some other later date, as the end-date for the Commissions/Break Class. The se...

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: ...ecord. Patel's claims are subject to conflict preemption under ERISA. In Port Medical Wellness, Inc. v. Connecticut General Life Ins. Co. (2018) 24 Cal. App. 5th 153, the court summarized the ERISA preemption doctrine in the context applicable to this case: “Stated simply, these cases (and others cited therein) stand generally for the proposition that a health care provider that treats a beneficiary of a welfare benefit plan may assert a claim ...

Excerpt: ...f points and authorities may not exceed 15 pages in length (exclusive of exhibits, attachments and/or table of contents) without a prior court order. The court may properly refuse to consider memoranda that exceed this limit. (Cal. Rules of Ct., rules 3.1113(d), (e), (g), 3.1300(d).) Plaintiff's counsel filed an oversized opposition, without having first obtained a court order. The court declines to strike the oversized opposition, as requested b...

Excerpt: ...has considered plaintiff's argument, but believes that some of defendants' employees could implement the proposed new employee instructions in a way that would violate Civil Code §1747.08 (and thus also sections 1.2 and 1.3 of the Settlement Agreement). The last sentence of the last paragraph is not clear enough to be sure of a consistently proper interpretation, and must be modified to clearly instruct defendants' employees to comply with the l...

Excerpt: ...14) 227 Cal.App.4th 107, 127 [elements of negligent misrepresentation]; Cadlo v. Owens- Illinois, Inc. (2004) 125 Cal.App.4th 513, 519 [“Each element in a cause of action for ... negligent misrepresentation must be factually and specifically alleged.”].) Fourth cause of action for constructive fraud – OVERRULED. The first amended complaint states sufficient facts in support of this claim. (See Civ. Code, § 1573; Assilzadeh v. California Fe...

Excerpt: ...8; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) 2. Defendant Sham's motion to strike portions of plaintiff's first amended complaint (punitive damages and attorney fees.) Motion granted in part and denied in part. The motion is granted as to the prayer for attorney fees (Page 17, Line 6) as to this moving party only. The remainder of the motion to strike is denied. Based on the ruling on the demurrer, the Firs...

Excerpt: ...ruling re: Defendants' demurrer to Plaintiff's Second Amended Complaint with attached February 15, 2019 Minute Order, is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court's attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9:53.1a.) Business and Professions Code section...

Excerpt: ...he Third Amended Complaint. The demurrer is overruled and the motion to strike is denied. Pertinent Background On 09/03/14, plaintiff entered into a services and joint venture agreement with the Boy Scouts to provide rowing equipment and instruction to the public. In pertinent part: 1. Boy Scouts would register participants and collect fees; 2. Boy Scouts would take a cut, and give the net to plaintiff; 3. Plaintiff would furnish and store the re...

Excerpt: ... any motions seeking relief or affirmatively requesti n filed a joinder in Dr. Wong's demurrer and motion to s t Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 66 0 Additionally, the joinder is moot in light of the ruling o n to Strike and Plaintiffs' filing of a First Amended Compl a Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 11 complaint moots a motion directed to a prior complain t Defendant Matthew P. Hannon, M.D. to give notice. ...

Excerpt: ...ed to settle Plaintiff's claims for the amount of $3,501 plus “[t]he amount of reasonable attorneys' fees and costs incurred by Plaintiff” against that Defendant as of the date of the offer. (Emphasis added). While the court, for the reasons set forth below will not consider the merits of the motion, it does note that unlike the situation in Linton vs. County of Contra Costa (2019) 31 Cal. App. 5 th 628 at 635, Defendants' offers to pay reaso...

Excerpt: ...ust be within the “reasonable range” (i.e., within the “ballpark”) of the settling tortfeasor's share of liability for the plaintiff's injuries. (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc.(1985) 38 Cal.3d 488, 499.) The factors to determine good faith, include: (1) a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds amon...

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: ...nchbook: Civil Proceedings— Discovery (CJER 2018 update) Inspection Demands, § 19.15; see Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) However, if a response to an inspection demand is a hybrid (i.e., contains both responses and objections), the response is effective to preserve the objections even though it is unverified. Where the response contains both answer and objections, there is no need to verify that portion of the resp...

Excerpt: ...the specificity requirem e concerning fraud are vague. When were the statement s made to both Plaintiffs? What specifically was stated? I ignored the requirement of particularity. Plaintiffs had an opportunity to amend with particularit y it is an abuse of discretion to sustain a demurrer witho u reasonable possibility that the defect can be cured by a burden is on the plaintiff to demonstrate that the trial c Plaintiff must show in what manner h...

Excerpt: ...requires a trial court to reconsider its earlier ruling if the decision materially changed the law. [Citations.] Even without a change of law, a trial court has the inherent power to reconsider its prior rulings on its own motion at any time before entry of judgment.” (State of California v. Superior Court (Flynn)(2016) 4 Cal.App.5th 94, 100; see also Code Civ. Proc., § 1008(c).) Zakaryan v. Men's Wearhouse, Inc. (2019) 33 Cal.App.5th 659 was ...

Excerpt: ....4th 365, 370.) The evident purpose of the notice requirement is to afford the [LWDA], the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge of the allegations an aggrieved employee is making and any basis for those allegations. Notice to the employer serves the purpose of allowing the employer to submit a response to the agency [citations], again thereby promoting an informed ag...

Excerpt: ...correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. (Code Civ. Proc. § 473(a)(1).) California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings in order to resolve cases on their merits. (IMO Development Corp. v. Dow Corning (1982) 135 Cal. App. 3d 451, 461.) This liberality only applies ...

Excerpt: ...al date has been set and that discovery is ongoing. (Nassiri Decl. at ¶ 6.) Shapiro represents that she now believes she suffered property damage caused by Puroclean's negligence. This belief is based upon “recent” information obtained from her expert, a licensed general building contractor, who completed his professional estimate and opinion in late Nov. 2018. Accordingly, Shapiro seeks to add a second cause of action for General Negligence...

Excerpt: ...dered on its own merits. CRC 3.1332(c). Rule 3.1332(c)-(d) states the factors the Court should consider in evaluating whether good cause exists. Here, Defendants seek a trial continuance due to the sudden and departure of all but one member of defense counsel's litigation team. The departure of these attorneys has caused an extreme burden on the sole remaining member of Defendants' litigation team. Pursuant to the Declaration of Daniel Watts, Ste...

Excerpt: ...as a substantial interest in the action as a whole and (2) the health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation. Section 36(d) states that, “[i]n its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial med...

Excerpt: ...mitted claims. “[T]rial courts [are] urged to exercise pragmatism and flexibility in dealing with class actions.” (Cartt v. Superior Court (1975) 50 Cal.App.3d 960, 970.) California courts may look to federal cases interpreting class action procedure “for guidance or where California precedent is lacking.” (Hefczyc v. Rady Children's Hospital-San Diego (2017) 17 Cal.App.5th 518, 531.) Federal “district court ha[ve] discretion to grant l...

Excerpt: ..., Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. If the moving party meets his or her burden of demonstrating “good cause,” the burden shifts to responding party to justify any objections made to the document production. See, Kirkland v. Superior Court(2002) 95 Cal.App.4th 92, 98. Plaintiff contends that these disputed requests all generally relate to records concerning the perpetrator student at issue, Cameron, wh...

Excerpt: ... the following reasons, Plaintiffs' motion is granted. Section 473(b) states that 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 relief . . . shall be made within a reasonable time, in no case exceeding six months, after th...

Excerpt: ...ettlement Agreement (“Amendment”) states the “individual employee shall be eligible to receive a settlement payment without regard to whether he or she worked any minimum number of Pay Periods.” (Amendment, § III, ¶ 2.) However, the Amendment is unclear as to whether this language is replacing any language in the Settlement or being added to the existing language. If the former, Counsel needs to explain what language is being struck and...