Excerpt: ...int Opposition Reply Tentative: Overrule; 14 days to answer For the purposes of the demurrer, the court accepts as true all well-pleaded allegations in the FACC. HOB has alleged negligence and willful misconduct by demurring parties. (See § 13.5 of Lease.) This is sufficient to withstand demurrer at this stage. ...

Excerpt: ... the demurrer. (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799.) The court agrees the Biakanja v. Irving (1958) 49 Cal.2d 647 factors provide the framework for the analysis. “The test for determining the existence of such an exceptional duty to third parties is set forth in the seminal case of Biakanja, supra, 49 Cal.2d at page 650, 320 P.2d 16, as follows: ‘The determination whether in a specific case the defendant will be held liable to a thi...

Excerpt: ...tiff's RJN; treat Motion as one for Judgment on the Pleadings and Grant without leave to amend This is a putative class action by a driver who, without a FasTrak account or transponder, allegedly failed to pay for his one-time use of the 91 toll road. The sole defendant is the out-of-state firm that sought to collect on the “debt,” i.e., the unpaid toll ($3.20) + penalties. Plaintiff sued defendant for violation of the Fair Debt Collection Pr...

Excerpt: ...tlement in the Judgment, as described on page 6, lines 25, to page 7, line 21 of the Motion for Final Approval. 2. Modify paragraph 5 on page 2, and section 4 on page 3, to delete reference to an “award” of attorneys' fees. The court is not awarding fees in this case, but rather approving defendant's payment of $88,500 as part of the parties' overall settlement, which the court finds is reasonable for the work performed, and the result obtain...

Excerpt: ...issuance of this Order to the extent responsive documents to any of the requests exist but are being withheld from production on grounds of privilege. With respect to the moving papers, the court notes plaintiff failed to specify in the notice of motion the specific requests to which plaintiff seeks further responses, and plaintiff did not request a privilege log in the notice of motion. Plaintiff filed a separate statement that identified every ...

Excerpt: ...as they relate to plaintiffs' alleged practice of paying insureds' premiums and referral fees and waiving of deductibles, coinsurance and copayments. The basis for the motion is that Health Net's claims lack merit and plaintiffs' counsel is concerned Health Net is pursuing the discovery for political gain in connection with its opposition to California Senate Bill 1156, which would legislatively authorize third-party premium and cost sharing paym...

Excerpt: ...nsel, Mr. Trush, indicates the class member should be permitted to opt out because the request for exclusion form and the settlement agreement did not state that a request for exclusion would be invalid if a single item of information was missing from the form. (6/8/18 Trush Declaration, § 3.) Please confirm defendant does not object to the court deeming the request for exclusion valid as recommended by class counsel. This individual and the nin...

Excerpt: ...This is a construction defect action. Plaintiffs are the owners of 19 homes in Irvine, California, built and sold by Taylor Morrison. Plaintiffs allege their homes have defects with respect to soil, water intrusion, concrete slabs, foundation, plumbing, electrical, drainage, roofs, HVAC, waterproofing, windows and doors, landscaping and irrigation, framing, siding, tile, flooring, countertops, drywall, fencing and walls, cabinets and wood trim, f...

Excerpt: ...ed to bring this motion in order to compel Victoria Fire to serve a verified response, which Victoria Fire did only after the motion was filed. The monetary sanctions are payable by defendant within 30 days. Despite acknowledging that Victoria Fire has now produced the subject policy and verified its response to the subject request for production, plaintiff asks this court to rule on whether Victoria Fire was permitted to produce the policy subje...

Excerpt: ...f documents within 20 days (by May 3). The records sought private information of defendant's non-party employees, including the full name of each employee, their hire and termination date, punch in and punch out data and their hourly rate of pay. Plaintiffs' counsel failed to serve a copy of the subpoena on defendant and failed to serve consumer notices on the third party employees to whom the records pertained. On May 2, 2018, at 10:28 a.m., Ste...

Excerpt: ...s a non- party for discovery purposes pending the court's ruling on the motion to quash. In support of its motion, Teva PI Ltd. introduced evidence that it is an Israeli company with its principal place of business in that country. It does not manufacture, market, promote or sell opioid prescription medicines in California and has no office, property, employees or registered agent in California; nor does it transact business in California. Plaint...

Excerpt: ...ia Public Utilities Code section 130220.5 and Code of Civil Procedure sections 1240.110 and 1240.120, OCTA is vested by law with the authority to exercise the power of eminent domain to acquire private property, or interests therein for public purposes as may be necessary, incidental, or convenient to the exercise of OCTA's powers. OCTA has made all of the findings required in order to exercise its power of eminent domain over the Property Intere...

Excerpt: ...ss.”) 2. Include a brief description of the material terms of the settlement in paragraph 6 of the order, including the gross settlement amount to be paid, the distributions preliminarily approved (as not-to-exceed amounts), funding and installment payment arrangements, and any other material terms. 3. Fill in the date in Section 17 for the final approval hearing. Counsel may select any Wednesday at 1:30 p.m. 4. The “Short Form Notice” atta...

Excerpt: ...he declaration merely provides that “[a] difference occurred with clients.” ...

Excerpt: ...nd Knipe). These other cases, initiated before this action, involve the same threshold issue of whether Amazon Flex delivery drivers were misclassified as independent contractors, and the Rittman action includes a PAGA action that pre-dates the filing of this action (plaintiff is correct, however, it does not include all of the alleged Labor Code violations in this action). This court will want to know before ruling on defendant's motion to stay ...

Excerpt: ...iff has sufficiently alleged for pleading purposes facts to state a claim for punitive damages. Specifically, plaintiff alleged there exists a cloud on the title to plaintiff's property falling squarely under one or more CLTA policies issued by defendants; plaintiff tendered the claim; six months elapsed between the tender and the filing of plaintiff's complaint, during which defendants took no action on the tender; and defendants' failure to com...

Excerpt: ...ire case. (Prudential-Bache Securities, Inc. v. Superior Court (1988) 201 Cal.App.3d 924, 925.) The purpose of such an appeal is to avoid the need for further proceedings in the trial court. “In that situation, the proceeding itself is inherently inconsistent with a possible outcome on appeal and must therefore be stayed under section 916, subdivision (a).” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 190.) Here, plaintiff ...

Excerpt: ... attorneys' fees being received by plaintiffs' attorneys (CRC 3.770 [requires disclosure of the consideration being exchanged for the dismissal]), (2) there is insufficient evidence from which the court can conclude no collusion exists and that no prejudice will result to the PAGA aggrieved employees (who are not defined as part of the settlement) or the putative class members as a result of this case being filed three years ago, only to be dismi...

Excerpt: ...ext hearing. 1. The court preliminarily approved up to $31,999.00 for settlement administration costs. The amount requested at final approval has increased slightly to $32,727.00. The court is not inclined to award more than the amount preliminarily approved. 2. The evidence does not support the requested enhancement of $20,000 in light of the estimated 40-60 hours plaintiff worked on this case, the total settlement amount, and the estimated aver...

Excerpt: ...ts One, Two and Three), Form Interrogatories propounded on Juan Soto (Sets One, Employment and General), and RFAs propounded on MIGC (Sets One and Two). The statutory 45-day deadline for bringing motions to compel further responses is mandatory and jurisdictional. Even assuming the court would have authority to grant relief from the 45-day rule pursuant to Section 473, subdivision (b) of the Code of Civil Procedure, the court does not find counse...

Excerpt: ...AGA claim is stayed pending arbitration and further order of this court. Plaintiff's class claims are dismissed. Plaintiff has argued the class action waiver renders the arbitration agreement unenforceable under Morris v. Ernst & Young, LLP (9th Cir. 2016) 834 F.3d 975 (Morris) as violating the NLRA. On March 21, 2018, the United States Supreme Court reversed Morris and held Congress did not, in adopting the NLRA, manifest an intention to displac...

Excerpt: ...by creating a headless class. And, as plaintiff points out in the opposition, the effect would be to impose a class action waiver, a provision to which plaintiff did not agree. Defendant drafted the policies and should be bound by them. Additionally, although arbitration is identified as the 15th affirmative defense, defendant did not file this motion for more than one year after answering the complaint, participating in status conferences, and e...

Excerpt: ...ant met its initial burden on the motion, plaintiffs have raised one or more triable issues of material fact as to the level of their supervision while employed by defendant that precludes summary judgment. The court need not decide whether defendant established the other factors applicable to the exemption because all factors must be established for the exemption to apply. Issues Framed by the Pleadings Plaintiffs are former claims examiners emp...

Excerpt: ...laint, filed November 28, 2017, plaintiff alleges one cause of action for breach of contract against defendant General Reinsurance Corp. (GenRe). Plaintiff alleges defendant provided plaintiff with workers' compensation coverage in excess of plaintiff's Self-Insured Retention (SIR) under the policy. Plaintiff alleges the policy obligates defendant to reimburse plaintiff for liability to plaintiff's former employee, Ikegami, in excess of the SIR, ...

Excerpt: ...liminate the PAGA settlement (SA § 8(j)); but, if that was the intent, (1) the court file does not contain a signed amended settlement agreement attached to a declaration indicating the changes made to the settlement (the only copy is not labeled amended, is unsigned, and is attached to the 5/3/18 proposed order), (2) the revised proposed order still indicates at page 2, lines 20-21, that a portion of the settlement will be paid to the LWDA, (3)...