Excerpt: ...der submission. A written decision on the writ petition will follow shortly. Reply Brief Issues The Court exercises its discretion to consider the City's and RPI's joint reply brief (ROA 95), which was filed on December 2, 2019 even though the briefing schedule for this motion (ROA 87) set a deadline of November 29, 2019. Although the reply was untimely, it was still filed 18 days in advance of the hearing, and Petitioner Residents of Westminster...

Excerpt: ... Court's ruling on this motion, the Court DECLINES to take judicial notice of them. Cross-Complainant Parkview Community Hospital Medical Center (“Parkview”) has filed evidentiary objections to both AmTrust's request for judicial notice and the declaration of Scott T. Melnik. The objections to the request for judicial notice are OVERRULED AS MOOT in light of the above. As to the objections to the Melnik Declaration, the Court OVERRULES Object...

Excerpt: ...t and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. The class is estimated to have 250 members. How was the class size determined? If the number came from Defendant, did Plaintiffs or counsel make any effort to independently verify this number? 2. The escalator clause applies when the number of workweeks exceeds 7,506 by 10% or more. (Stipulation, § III.O....

Excerpt: ...y. Should Plaintiff wish to pursue any claims relating to off-the-clock work on a class basis, he must file a second amended complaint, either by stipulation or with leave of the Court. Plaintiff's original putative class action complaint was filed on August 31, 2018. Plaintiff's counsel asserts that at Plaintiff's deposition on June 24, 2019, he learned for the first time that Defendant Southern California Discount Tire Co. allegedly required Pl...

Excerpt: ...2020. Named Defendants demur to each cause of action in the FAC on the grounds of uncertainty. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) As a result, “Where a demurrer is made upon this ground, it must distinctly specify exactly how or w...

Excerpt: ...distinguished itself in this discovery dispute. EVIDENTIARY ISSUES The Court first notes that Defendant's opening papers are supported both by a Declaration of Ronald W. Novotny (ROA 72, filed 10/18/19) and an Amended Declaration of Ronald W. Novotny (ROA 76, filed 10/23/19). Although the title of the “Amended Declaration” suggests it simply corrects errors in the original declaration, the Amended Declaration includes a discussion of events t...

Excerpt: ...nuary 22, 2020. If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions, and additions must be submitted as well. As noted below, the Court has concerns about apparent changes in the methodology and assumptions underlying the potential liability analysis that have occurred during the preliminary approval process. To the extent that post-settlement analyses result in significantly lower potentia...

Excerpt: ...ed by absent members of the certified class. A court “may, in the furtherance of justice . . . allow a party to amend any pleading.” (CCP, § 473(a)(1).) “[C]ourts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial.” (Magpali v. Farmers Group, Inc., 48 Cal.App.4th 471, 487.) Liberal amendment is particularly favored with respect to answers, �...

Excerpt: ...t makes perfect sense to preclude them from arguing that someone else is to blame. However, as made clear by the parties' filings, this motion is far broader than that and potentially affects much of the evidence at issue in this case. Accordingly, rather than rule on any particular evidence or argument, the Court sets forth some basic principles it will apply at trial. Evidence (and argument) that goes solely to the issues of Jeffries LLC's scie...

Excerpt: ...se submit the LWDA letters of all plaintiffs in the Wade, Rafael, Thomas and Ortega matters currently pending in this Court so the Court may review compliance with PAGA pre-filing requirements. 2. Other than the Actions (as that term is defined in the parties' Stipulation and Agreement (“Stip.”)), are the parties aware of any other pending matters that will be affected if this settlement is approved? 3. How many Eligible Employees are there, ...

Excerpt: ...ions must be submitted as well. As to the Settlement: 1. Exhibit 1 to the Spivak Declaration is supposed to be Plaintiff's letter to the LWDA. Exhibit 1 as filed is the original complaint in this matter. Please provide a copy of Plaintiff's letter to the LWDA so the Court may evaluate compliance with pre-filing requirements for PAGA claims. 2. The “Eligible Employees” under the settlement are defined as all non-exempt hourly employees of Defe...

Excerpt: ...ions must be submitted as well. As to the Settlement: 1. Exhibit 1 to the Spivak Declaration is supposed to be Plaintiff's letter to the LWDA. Exhibit 1 as filed is the original complaint in this matter. Please provide a copy of Plaintiff's letter to the LWDA so the Court may evaluate compliance with pre-filing requirements for PAGA claims. 2. The “Eligible Employees” under the settlement are defined as all non-exempt hourly employees of Defe...

Excerpt: ...urt, submitted an amended settlement agreement without a redline showing all changes, deletions and submissions. The Court reminds counsel that if a revised settlement agreement and/or proposed notice is submitted, a redline version showing all changes, deletions and additions must be submitted as well. Late papers will not be accepted. The Court continues to have serious concerns about how carefully the settlement materials were drafted and whet...

Excerpt: ... and additions must be submitted as well. As to the Settlement: 1. Exactly how many persons are in the class, and approximately how many allegedly noncompliant sparkplugs are at issue? The Court needs both figures in order to evaluate the fairness of the settlement. 2. When will coupons be mailed relative to final approval? This information does not appear to be in the parties' Stipulation (“Stip.”). 3. The coupon option offers class members ...

Excerpt: ...rupsky v. Ford Motor Company, No. 2013-00662411. Plaintiffs object to this request on the grounds that Ford asks the Court to take judicial notice of the truth of Mr. Taylor's statements and the content of his opinions, not their mere existence. Plaintiff's objection is SUSTAINED, and Ford's request for judicial notice is DENIED. The Court has not considered Mr. Taylor's declaration. Plaintiffs have also filed evidentiary objections to the declar...

Excerpt: ...gs, they allege that they were terminated on or about March 6, 2014 after they complained to the DFEH about alleged FEHA violations by Uni-Caps. Their operative SAC alleges wage and hour violations and discrimination based on their Korean descent. Uni-Caps' answer raises numerous affirmative defenses, including the after-acquired evidence doctrine. As discussed in the order granting Uni-Caps leave to file the cross-complaint, Uni-Caps learned at ...

Excerpt: ...tion is GRANTED in the amount of $4,235. MOTION TO TAX COSTS Plaintiff, the prevailing party in this Song-Beverly Act action, filed a verified memorandum of costs seeking to recover a total of $46,886 in costs. (ROA 572.) Ford moves to tax $37,322 of this amount. I. Standard of Review The Song-Beverly Act allows a prevailing plaintiff to recover “the aggregate amount of costs and expenses . . . determined by the court to have been reasonably in...

Excerpt: ...since November 1. Plaintiffs' and Defendants' motions to seal (respectively ROAs 284 and 360 [Plaintiffs], 276 and 352 [Defendants]) are GRANTED IN PART AND DENIED IN PART as set forth below. Except for documents the Court orders sealed below, the clerk is directed to publicly file the unredacted versions of the parties' summary judgment papers that were conditionally lodged with the Court. Standard for Sealing A court may order a record to be fi...

Excerpt: ...ty of solar PV roof panels as a mitigation measure for greenhouse gas emissions. Specifically, in May 2019, the Court of Appeal issued an opinion (See Protect Our Homes and Hills v. County of Orange (May 8, 2019, No. G055716) 2019 WL 2022564 (the “Opinion”)) directing this Court to rescind the order discharging the original peremptory writ and to modify the peremptory writ to address the RFEIR's analysis of the feasibility of rooftop solar ph...

Excerpt: ...ecember 31, 2019. If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. The class period begins on July 16, 2014, but the underlying complaint was filed on August 1, 2018. Why does the class period extend more than four years before filing? 2. The class definition excludes plaintiffs in other pending wage-and-hour actions again...

Excerpt: ...ll changes, deletions, and additions must be submitted as well. As to the Settlement: 1. Please provide proof of service of the settlement and supporting papers on the LWDA, and please provide a copy of Plaintiffs' letters to the LWDA so the Court may evaluate PAGA filing prerequisites. 2. Why is it necessary for the GSA to be funded in five installments instead of a single payment? The moving papers provide no explanation for why the settlement ...

Excerpt: ...icularly the case in the context of an unopposed motion for class certification where Mr. Thompson will serve as a class representative. Absent class members are entitled to know the terms of his individual settlement so they may evaluate potential objections to his adequacy as a representative Plaintiff. The Clerk is ordered to publicly file the unredacted version of the Kwak Declaration and all attachments. Furthermore, as discussed in more det...

Excerpt: ...ntered a verdict in Plaintiff's favor in this trade secret dispute, Defendants prevailed on a motion for judgment notwithstanding the verdict. Defendants now seek to recover their costs both (1) as a prevailing party under CCP § 1032, and (2) as a prevailing party under the terms of a 2006 nondisclosure agreement, governed by Oregon law, which allows for the recovery of “reasonable . . . costs incurred in resolving or settling the dispute.” ...

Excerpt: ...rock Low Volatility (Master) Fund, Ltd.'s Motion for Summary Judgment, or in the Alternative, Summary Adjudication, By Plaintiffs DEFENDANTS' MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION Defendants Jefferies LLC and Jefferies International Limited (“JIL”)'s motion for summary judgment, or in the alternative summary adjudication, on the amended complaint of Plaintiffs Rimrock High Income Plus (Master) Fund, Ltd. and Rimrock Low Volatility ...

Excerpt: ...4th 1109, 1124.) The Court bases this ruling on the papers filed by the parties with respect to the original August 16, 2019 hearing date and the continued hearing date of October 4, 2019. Plaintiff's October 30, 2019 reply was not timely filed pursuant to CCP § 1005(b) and therefore is not considered by the Court in its ruling. Likewise with respect to Defendant's sur-reply. That being said, this ruling does not preclude Plaintiff from renotici...

Excerpt: ...erior Court No. RIC10014774 (Curry), on the grounds that the plaintiff in the first-filed Curry matter sought to certify the same class as Plaintiff here. Summary judgment was entered in Equilon's favor in the Curry matter, and on April 26, 2018, the Court of Appeal affirmed in a published opinion. (23 Cal.App.5th 289.) Following the Court of Appeal's decision in Curry, the Court lifted the stay in this matter. Plaintiff and Equilon then agreed t...

Excerpt: ...tiff's unopposed request for judicial notice (ROA 28) is GRANTED, although only as to the existence of the documents at issue, and not as to the legal effect thereof, which is discussed in more detail below. Pursuant to Evidence Code § 455, the Court proposes to take judicial notice of the current Employment Arbitration Rules of the American Arbitration Association, which are amended and effective as of November 1, 2009. The arbitration agreemen...

Excerpt: ...9 for a continued deposition not to exceed seven hours on the record. The Court expects Tien to provide straightforward, non-evasive answers to Defendants' questions at the continued deposition. Furthermore, at the continued deposition, Tien is ordered to answer the following question set forth in Defendants' statement of disputed questions and answers: “With the Waste Italia notes, Rimrock funds purchased those notes in November 2014. Do you a...

Excerpt: ...ing all changes, deletions and additions must be submitted as well. As to the Settlement: 1. Although the briefing says administrative costs will not exceed $23,000 and suggests Habitat for Humanity Orange County as a cy pres recipient, the settlement agreement itself contains no such provisions. The Court will not grant approval of the settlement unless the agreement itself contains this information. 2. Counsel states that he “determined” th...

Excerpt: ... strike Plaintiff Rachel Segui's motion for class certification is DENIED as untimely. The motion was filed on October 11, 2019, only 10 court days before it was set for hearing on October 25. Generally speaking, motions must be filed at least 16 court days in advance of the scheduled hearing. (CCP § 1005(b).) However, the Court will exercise its discretion to consider the motion to strike as an opposition to Plaintiff's motion for class certifi...

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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: .... (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: ...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: ...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: ...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: ... 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: ...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: ..., 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: ...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: ...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: ...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: ... 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: ... 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: ...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: ...e payable to Plaintiff on or before May 13, 2019. This matter was initially set for trial on February 11, 2019. [ROA 469.] On February 1, 2019, the trial was trailed to February 14, 2019. [ROA 708.] On February 14, 2019, the trial was trailed again to August 19, 2019. [ROA 738.] The Court did not reopen discovery or extend the motion cut-off dates when it trailed the trial. (Id.) Pursuant to CCP § 2024.020(a), a party has the right to have motio...

Excerpt: ... FLSA cause of action and defer ruling on the motion to compel pending resolution of the overlapping claims under the Labor Code and UCL involving Defendant's alleged failure to pay overtime and reimburse business expenses. The latter ruling would be made pursuant to CCP § 1281.2(d) and the Court's own inherent authority to issue stays and manage the cases before it. The Arbitration Agreement signed by Plaintiff Raigoza on which Defendant relies...

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...

Excerpt: ... the Prayer for Relief), and that portion of Paragraph 21 that states “and subject to fines and penalties in the amount of at least $25,000 per day for every day the Spill continues to go underreported and the City fails to remove the contamination from the Property.” The Motion is DENIED as to the remaining allegations in Paragraph 21. As explained below, while Plaintiff is prohibited from seeking to recover in this action statutory penaltie...

Excerpt: ...mail notification to all parties of this order. While the motion is unsupported by any evidence, there is no dispute that criminal charges are pending against Vinh C. Phan. Assuming the criminal charges arise from the same events that are the subject of this civil action, the Court is inclined to stay discovery as to Mr. Phan only pending the outcome of the criminal proceeding and allow discovery and other pre-trial procedures to proceed as to ot...

Excerpt: ...oss-Defendant Department of Toxic Substances Control (DTSC) to Cross-Complaint of Soco West, Inc. (“Soco”) DTSC's demurrer is SUSTAINED with 20 days' leave to amend in accordance with the terms of this Order. The Court agrees with DTSC that Soco does not allege an actual controversy between Soco and DTSC in the Cross- Complaint. As framed, the only dispute alleged is between Soco and Orange County Water District, which is not named as a cross...

Excerpt: ...aration requesting permission to dismiss the PAGA claims without prejudice and to continue the hearing in this case scheduled for March 15. The March 6 Declaration references class claims even though this case no longer includes class claims and refers to Defendant as a small pita making company, not a clothing business. The Declaration was served on defense counsel in this action and contains the correct case information on the pleading for this...

Excerpt: ...ies, LLC (SME) to vacate or modify the interpleader is GRANTED IN PART and DENIED IN PART pursuant to the terms of this Order. The motion is granted solely as to SME's request for an order directing BNY Mellon (BNY) to release possession, custody and control over the Bond Portfolio to First Foundation Bank (FFB), which will maintain custody and control (not ownership) of the Portfolio pending further order of this Court in the same capacity that ...

Excerpt: .... To state a cause of action for inverse condemnation, the plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff's property. (Gutierrez v. County of San Bernardino (2011) 198 Cal.App.4th 831, 842.) In its Demurrer, Caltrans does not contend that a street sweeping project is not a “public project or impro...

Excerpt: ...nal Complaint at Paragraphs 23 and 24 and Paragraph 1 of the Prayer was inadvertent and that he is not seeking underpaid wages in this action. (Opp., p. 3, lines 13- 20, pp. 4:18-5:8, p. 8, lines 3-5 [“Plaintiff is only seeking those civil penalties that are required to be shared with the LWDA and no individual/victim-specific relief or underpaid wages”]; Messrelian Decl., ¶2-7) After Defendant filed the motion, Plaintiff filed a First Amend...

Excerpt: ...represented to the Court, that there were 441 putative class members (non-exempt employees employed by Defendant in California between September 29, 2013, through March 19, 2018). (See 6/14/18 Setareh Decl., ¶9 [ROA 42].) Now that number has increased by more than 50% to 693 without any explanation. (2/13/19 Alcantara Decl., ¶6.) Presumably, counsel for Plaintiff assessed Defendant's maximum potential liability and the value of the claims in co...

Excerpt: ...ify a specific date, time and place for the deposition. While Plaintiff's counsel represents in his opposition the motion was unnecessary and that he is willing to appear for deposition on March 8, the Court agrees with Defendant's counsel that a court order is appropriate in light of the prior communications, cancelations and delays in scheduling this deposition. It is not clear whether Defendant's counsel is available on March 8, so the Court w...

Excerpt: ...arch Cove Community Association failed to properly maintain a wall within the community. Prior to trial, Plaintiff objected pursuant to Evidence Code § 352 to the introduction at trial of several judgments previously obtained by Defendant Estates and or Jeffrey Rhoades against Mr. Rodarte (a principal of Plaintiff R&R). [ROA 425.] The Court gave Plaintiff's counsel the option of working on a stipulation or having the judgments admitted. Plaintif...

Excerpt: ...ion 13.2(f) in ruling on SCE's motion for prejudgment possession, the Court invokes its inherent authority to reconsider its own interim orders. (LeFrancois v. Goel (2005) 35 Cal. 4th 1094, 1107-1108.) CCP § 1260.040 provides as follows: “If there is a dispute between plaintiff and defendant over an evidentiary or other legal issue affecting the determination of compensation, either party may move the court for a ruling on the issue. The motio...

Excerpt: ...A-Rural Residential? 2. Where in the General Plan are there statements that supports the County's position that the proposed Project is in “harmony” with the terms of the Plan insofar as the Rural Residential designation is concerned? 3. Is the property in question truly a commercial facility? Would it be permissible to have a wedding at the property without charging for use of the facility, i.e., a “non-commercial” use? 4. Can the Court ...

Excerpt: ...be determined in connection with Plaintiff's Third Cause of Action is whether Plaintiff's subdivision application should be “deemed approved” under California's Permit Streamlining Act (the “Act”), Government Code section 65920 et seq., and in particular, pursuant to Section 65956(b). (See Plaintiff's Motion, p. 1, lines 16-19, p. 2 [heading II], lines 12-14, Plaintiff's SSUF No. 10; Defendant's Motion, p. 2, lines 8-10.) In his motion, P...

Excerpt: ...t an “employer” as a matter of law under FEHA. Pursuant to a Stipulation and Order, the parties agreed to bifurcate Defendant's motion, so the only issues to be decided in this phase are Issues 1 and 2 and any legal effect that may result as to the remaining issues as a result of the Court's ruling. The Motion for Summary Adjudication is DENIED as to Issue 1 (Ministerial Exception) and GRANTED as to Issue 2 (FEHA). Rulings on Evidence Plainti...

Excerpt: ...halter's Memorandum of Costs erroneously states in Attachment 16, line 2, that a total of $11,936.58 was incurred for the discovery referee, but the correct amount is $7,330.58 in light of a credit issued by the referee of $4,600. (Id., Ex. H.) Accordingly, the Court awards costs of suit to Buchalter in the amount of $282,545.24. Grounds for Denial of Motion In their motion to tax costs, Plaintiffs challenge Items 4 (Deposition Costs), 12 (Models...

Excerpt: .../1/19. BTC has alleged facts sufficient to constitute cause of actions for declaratory relief against WRW regarding whether BTC has continuing obligations under the Ground Lease. BTC alleges WRW's decision to terminate the Ground Lease as to the assignee, JVS, effects a termination of the Ground Lease as to BTC, and that the foreclosure of the Ground Lease by ARC Retail I extinguished BTC's continuing liability thereunder. (FACC ¶¶ 19-22, 24, 2...

Excerpt: ...Defendant Ragland is to answer the Second Amended Complaint by March 1, 2019. The gravamen of Plaintiff's SAC is that Defendant violated the law when he issued to Plaintiff a medical marijuana recommendation without first performing a required medical examination and having a licensed physician sign off on the recommendation. Assuming Plaintiff's allegations are true, the foregoing alleged conduct would constitute violations of laws applicable to...

Excerpt: ...rst Amended Complaint 5)Status Conference 1. Demurrer by Defendants Catlin Specialty Insurance Company and Catlin, LLC to First Amended Complaint The Demurrer by the Catlin Defendants is SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the Sixth Cause of Action for Fraud and the Ninth Cause of Action for Breach of Contract. Catlin Specialty demurs to the Sixth Cause of Action for Fraud, and Catlin, LLC demurs to the Ninth Cause of Action for Breach of...

Excerpt: ...he named plaintiffs. Defendants have failed to show, pursuant to CRC 2.550(d)(1), that their interest in keeping out of the public record the amount they have agreed to allocate to the individual plaintiffs in settlement of their individual claims overcomes the right of public access to the record. As a general rule, amounts paid in settlement are not confidential. See Copley Press, Inc. v. Superior Court(1998) 63 Cal. App. 4 th 367, 376 [“Howe...

Excerpt: ...hanges, deletions and additions shall be submitted as well. As to the Settlement: 1. The Court cannot locate in the file a proof of service of the settlement agreement on the LWDA. 2. There is insufficient evidence from which the Court can determine the GSF is fair, adequate and reasonable. The valuation provided by Attorney Hawkins is conclusory and lacks specific information as to the investigation and analysis performed, and the total maximum ...

Excerpt: ...tion is GRANTED in part at this time. As to the aspect of the motion seeking an order prohibiting Gulfstream Finance, Inc., Bruce Elieff, Kathy Elieff and WCR Development Company, LLC, or anyone acting on their behalf, from submitting a credit bit at the non-judicial foreclosure sale, that portion of the motion is GRANTED as an unopposed motion. No party other than Gulfstream, a competing junior lienholder, filed an opposition to the motion. Howe...

Excerpt: ...pondence attached as Exhibit 5 to 5th Rock, LLC's (5th Rock) Notice of Lodging, Bates Nos. 5TH000001--5TH00104 was authenticated in the Holland Depo., Volume VII, 1539:8-1540:15. 5th Rock's objections made as part of its responsive Separate Statement are overruled in their entirety. Facts set forth in a Separate Statement are not evidence and 5th Rock did not properly object to the evidence filed in support of the motion. (CRC 3.1354(b).) Grounds...

Excerpt: ... on the status of Plaintiff's application to the Fresno Superior Court for permission to file a petition for coordination, which Plaintiff represents will be heard on March 19. When Plaintiff initiated this action, there was already pending in Fresno Superior Court an action by another employee of Defendant seeking civil penalties under PAGA based on similar claims, including allegations that Defendant failed to comply with the Labor Code regardi...

Excerpt: ...IES Plaintiff's motion to consolidate this action with Lavelle vs. Nationstar Mortgage, OCSC Case No. 30- 2017-00917438. Defendant's RJN is GRANTED. The Court schedules a Status Conference for April 24, 2019 at 9:00 a.m., in Department CX-104. Plaintiff initiated this case as a wage and hour putative class action against Defendant Nationstar Mortgage, LLC, and WMIH Corp., on October 5, 2018. The matter initially was assigned to the Honorable Rand...

Excerpt: ...19. Please submit clean and redlined copies of any changes to the Settlement Agreement and the proposed letter to aggrieved employees, and a revised Proposed Order. 1. What amount, if any, has been paid or will be paid to Plaintiffs individually either as part of the PAGA settlement or separately for the settlement of this action and for what purpose are/were such payments being made? Submit any individual settlement agreements entered into in co...

Excerpt: ...aint that added new factual allegations and causes of action that were not present in the original complaint. Although the parties stipulated to its filing, and further stipulated that the filing would not preclude the Court from ruling on the pending motion for summary adjudication, case law mandates that the Court refrain from doing so. As stated by the court in State Compensation Insurance Fund v. Superior Court (2010) 184 Cal.App.4th 1124: Be...