Excerpt: ...ted by any evidence. While the court could grant the summary judgment motion given that opposing parties have not supported their arguments with any evidence that might create triable issues of fact, the court will provide plaintiffs with an opportunity to supplement their papers. The hearing on this matter is continued to January 31, 2020 at 1:30PM in CX 101 so that plaintiffs can, if they wish, supplement their papers appropriately. Any supplem...

Excerpt: ...es that Lutsky and other defendants engaged in the “illegal unlicensed practice of dentistry, in violation of Business and Professions Code sections 1625(a) and (e), 1629, 1630, 1701.1, and 1807.” Long Form Master Complaint, ¶¶ 120- 121. Based on the allegations, Plaintiffs seek to recover damages, including punitive damages. Long Form Master Complaint, ¶¶ 122-127. The Tenth Cause of Action seeks a declaration as to whether Lutsky and oth...

Excerpt: ...s settlement. However, Kirby v. Kindred, Case No. 5:19-cv-00833 is still active and might be impacted by this settlement. The First Amended Complaint in this matter alleges overtime, minimum wage, meal period, rest period, wage statement and waiting time penalties under both class and PAGA theories. The alleged classes include “all of Defendants' current and former non-exempt employees” who were subject to certain alleged violations, e.g. an ...

Excerpt: .../12/19, the Court adopted the recommendation and ordered Plaintiff to provide supplemental responses to those form interrogatories within 30 days. Exhibit K. Defendants now move for terminating sanctions or evidentiary sanctions or an order compelling further responses, based on the assertion that Plaintiff's responses to Form Interrogatories 2.6 and 17.1 remain deficient. In addition, Defendants ask this Court to designate Plaintiffs' responses ...

Excerpt: ...vide Accurate Itemized Wage Statements; (5) Failure to Pay All Wages Due Upon Separation of Employment; (6) Violation of Business and Professions Code §§ 17200, et seq.; and (7) Enforcement of Labor Code § 2698, et seq. (“PAGA”). Defendant Woodbridge demurs to the entire complaint and the 1st through 6th causes of action on the ground that they are fatally uncertain because Plaintiff fails to sufficiently allege the employment relationship...

Excerpt: ...y “the CDG Defendants”) argue that Plaintiffs lack standing to bring the Ninth Cause of Action for Illegal Ownership and Operation of Dental Clinics and the Tenth Cause of action for Declaratory Relief because there is no private right of action under the California Dental Practice Act, Business & Professions Code § 1600 et seq. Defendant Jerry Minsky, D.D.S. joins in the motion. The Ninth Cause of Action alleges that the CDG Defendants and ...

Excerpt: ...time. However, the mediator did not “require” in person attendance. Rather, as shown in Exhibit C to the Hanle Dec., it was “strongly recommend[ed] that the principal parties” attend in person. Defendants also argue that the Plaintiffs' counsel promised that Plaintiffs would appear in person. However, the email exchange between counsel does not include either a specific request for in-person attendance or a specific representation that Pl...

Excerpt: ...tions against Plaintiffs in connection with discovery. Plaintiffs argue that the order must be “clarified” because it was based on misinformation provided by Defendants at the hearing of the matter. Plaintiffs also argue that pursuant to a private agreement between the parties, the motions to compel which were the basis of the sanctions were to have been taken off- calendar. The Court's original order does not require clarification. Defendant...

Excerpt: ...the Company, or its officers, agents or other employees . . . [¶] includ[ing] but [] not limited to . . . claims for wages and other compensation, . . . and claims for violation of any of the federal, state, or other government law, statute, regulation, or ordinance . . .” Plaintiff's complaint alleges claims which fall within the arbitration provision. Plaintiff alleges that the provision cannot be enforced because it is both procedurally and...

Excerpt: ...ies Act. As one of the requested remedies, Plaintiffs seek public injunctive relief. Complaint, ¶¶ 2, 82, 84, 86, 89- 91 and Prayer for Relief. By its motion, Defendant seeks to compel arbitration of the claims pursuant to an arbitration provision included in the “Loan Agreement[s] and Promissory Note[s]” signed by the Plaintiffs. The arbitration provision (¶ 14 or ¶ 16, depending upon the year of the agreement) includes a class action wa...

Excerpt: ...sion included at the conclusion of its handbook. According to Defendant, the provision covers “any dispute or aspect of the terms and conditions.” (Emphasis added.) MPA at 1:8-10. The provision does not include that specific phrase. It reads, in full: “I agree that any dispute involving discharge that is left unresolved by the company and is covered under California's Fair Employment and Housing Act or Title VII of the Civil Rights Act of 1...

Excerpt: ...rge batch of documents produced on March 20, 2019 and clawed back late on March 21, 2019, the night before the Jacks deposition. Moriarty used the document the following day at the deposition. Then, in August at the deposition of Jay Lutsky, Moriarty used a different privileged document. That document had been included in a production made many months earlier. However, Defendants hadn't identified it as privileged or requested its return until it...

Excerpt: ...1-800”). Defendant Marc Lazo sold the property on 1-800's behalf. Plaintiff alleges he did so without permission or authority. Sunset Escrow was the escrow company on the sale. Defendant Shirley Thompson owned Sunset Escrow and Defendant Jessica Sarpong was her assistant on the sale. At some time prior to the sale, Lazo, an attorney, represented Sunset Escrow and a small amount remained on unpaid for legal services. 1-800 alleges that because o...

Excerpt: ... Temenoujka Marinov, Maria Martinez, and Rosa Islas as time-barred under CCP § 583.360 (5-year statute). As a preliminary matter, the Court takes judicial notice of the pleadings attached to the Declaration of Simren K. Gill. The motion is opposed only by Casas. Pursuant to CCP § 583.340, a case which has not been brought to trial within five years of its filing must be dismissed. The statute dictates that the five-year period is tolled during ...

Excerpt: ... 2), or (2) establishing that only Plaintiff could have accessed her work email regarding the revised agreements by, for example, demonstrating by way of admissible evidence (rather than “information and belief” or “an understanding”) that after initially signing on at the commencement of her employment using the default password she was required to create a unique password or identifier that only she could use. While the declarations cre...

Excerpt: ...filed on or before August 9, 2019. If a revised settlement and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues: 1. Provide a valuation for each individual cause of action. 2. There still is no mechanism within the stipulation for payment of the $625 (25% of the LWDA amount) to “aggrieved employees” as opposed to class members. T...

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: ...s raised by both the motion and the demurrer. Both motions, therefore, constitute improper filings because they violate this Court's stay which was lifted for the limited purpose of permitting motions that did not implicate class action allegations. Motion for Summary Judgment The Motion for Summary Judgment is denied. Defendant moves for summary judgment of this action comprising a single cause of action, contending that Plaintiff Lily Chiang, w...

Excerpt: ... Paul Martin's settlement of $15,001—a total of $640,001 in approved settlements. This ruling addresses only the proposed settlements by Nico Designs, Inc. (paying $155,000), Bahrami (contributing $5,000 to Nico Design's settlement amount of $155,000), Safarpour (paying nothing) and MPH Construction (paying nothing). “The party seeking a determination of good faith may file a ‘bare bones' motion, stating the grounds on which the determinati...

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: ...nued, or whether final approval was granted or denied. Absent any such notice, the class members do not have any knowledge as to whether the court granted the preliminarily approved settlement and so whether will ultimately be bound by a judgment. Most parties simply post notice of final approval on the administrator's website, which is sufficient notice if they have been told in the Notice of Preliminary Settlement to consult the website as to t...

Excerpt: ...ow turns to the merits of the demurrer. Farmer (added as a Doe defendant on 1/23/19) demurs to the 4th and 5th c/a of the Second Amended Complaint on the following grounds: (1) defect or misjoinder of parties (CCP § 389); (2) duplicative claims; and (3) failure to state facts/uncertainty. Each of those grounds is addressed below. Defect or Misjoinder of Parties. Farmer demurs on the grounds that OC Investment Pros, LLC is an indispensable party ...

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: ... action. The Suns may not have the court summarily adjudicate whether documents were forged, or whether real property interests are subject to certain liens, both of which constitute the four issues the Suns seek adjudicated. For example, two of the relevant causes of action seek declarations that trust deeds were signed by other parties, yet this motion addresses only if reconveyances were signed by the Suns. In addition, the Separate Statement ...

Excerpt: ... Josiah N. Drew because he does not have any relevant personal knowledge about the events at issue in this case, and any second-hand information he has is protected by the attorney-client, attorney work product and/or mediation privileges. Drew is an in-house attorney for defendant and is responsible for managing defense counsel in the defense of this lawsuit. Plaintiff even admits in her opposition that Drew acted as defendant's main point of co...

Excerpt: ...der § 558 is subject to arbitration based on Esparza v. KS Industries, LP (2017) 13 Cal.App.5th 1228, review denied (Nov. 15, 2017). The Court agrees. Although the Fourth District, Division One came to the contrary conclusion in Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, review was granted in that matter and so it has no precedential effect. CRC, Rule 8.1115(e). Accordingly, the Court must follow Esparza and Defendant's motion is granted. Dur...

Excerpt: ...ts employees for work-related cell phone costs. On 11/7/15, Isabel Garibay (replaced Gama as named plaintiff in the Gama action. The following year, on 3/9/16, Plaintiff Uribe filed a proposed class action in OCSC, alleging that Crown Building Maintenance Co. failed to reimburse its employees for work-related uniform costs. On 11/13/17, Uribe filed a motion for preliminary approval of a settlement. In connection with the motion and the settlement...

Excerpt: ..., 24, and 31-36. Plaintiffs South Coast Shipyard, Inc. is a business located in Newport Beach which performs repairs and maintenance on large boats and ships. Plaintiff Peter Stewart is the president of South Coast Shipyard, Inc. Plaintiffs allege they suffered damage to their property as a result of development of NPB Marina LLC on a neighboring property. Defendants Clauss Construction and Patrick Michael Clauss (collectively “Clauss” or Def...

Excerpt: ...ion to compel arbitration. The Court issued a ruling on that motion on 9/11/18. On 10/10/18, after the ruling was issued, Plaintiffs named SCI as a doe defendant. SCI now brings a motion to compel arbitration of Plaintiff's 1st -9th causes of action against SCI. (The Court notes that before this motion was filed, Plaintiff agreed to submit the 5th-9th causes of action against SCI to arbitration, so the only causes of action at issue are the 1st-4...

Excerpt: ...ed by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” Baral v. Schnitt (2016) 1 Cal.5th 376, 384. Step 1: Does the alleged misconduct arise from protected activity? Defendant has the burden in step one and must show that the plaintiff's claim arises from protected activity, i.e. that the conduct underlying...

Excerpt: ...plemental materials shall be filed on or before April 12, 2019. If a revised settlement and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues: 1. The Court requires all parties to identify any pending actions of which they are aware that potentially overlap with the claims in this action or which might be impacted by the release inclu...

Excerpt: ...tion of causes of action as against each of the four causes of action alleged by Plaintiff Jannette Campos in the Fifth Amended Complaint: (1) Intentional Misrepresentation; (2) Negligent Misrepresentation; (3) Unfair Competition (§ 17200); and (4) Wrongful Foreclosure. The motion is unopposed. A defendant moving for summary judgment may prevail on the motion by affirmatively negating at least one of plaintiff's essential elements. CCP §437c; A...

Excerpt: ...ith Defendant. Defendant responded with boilerplate objections. On July 29, 2018, after a meet and confer process and two informal discovery conferences, the Court ordered Defendant to provide “contact information for homecare caregivers through a Belaire-Westnotice process.” The order specified that it was without prejudice to Plaintiff's renewal of her motion to compel contact information for employees other than homecare caregivers. Defend...

Excerpt: ...he action.” However, as the earlier denial was without prejudice, this Court considers it may hear this subsequent petition. Petitioners' first request for consolidation was denied because Stevens v. Suncrest, the case it sought to coordinate, had settled and the parties were seeking preliminary approval of that settlement. Now, two years later, not only has the settlement been preliminarily approved but it has also been finally approved and ju...

Excerpt: ...e lawsuit. Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939. Denial of leave to amend is rarely justified. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (“the policy favoring amendments is so strong that it is a rare case in which denial of leave to amend can be justified”). Plaintiff sued on behalf of “job coaches.” On...

Excerpt: ... the Court received any notice of a stay in this matter. Accordingly, the Court proceeds to rule on the motions which are before it. Garibay's Motion for Stay Invoking the rule of exclusive concurrent jurisdiction, Intervenor Isabel Garibay moves to stay this action pending resolution of Gama v. Able Services, et al., Case No. RG15773582, currently pending in Alameda Superior Court. In connection with her motion, Garibay requests that the Court t...

Excerpt: ... lead counsel is denied. The Court finds that both firms are competent and experienced and either could have been appointed as lead counsel. Given the apparently equal competence of the two firms in this case, the Court exercises its discretion and appoints the firm that filed the first complaint as lead counsel in this matter. As lead counsel, Lawyers for Justice, PC will be required to:  oversee case management;  sign and file all pleadin...

Excerpt: ...he GSINDA Policy, is such coverage subject to a $1 million self- insured retention that applies at GSINDA's layer of coverage after exhaustion of the limits underlying GSINDA's policy? If so, does that self-insured retention apply to losses falling within Insuring Agreement B (excess)?” This case relates to various layers of insurance obtained by Defendant Lennar for its operations during the years 2004 to 2009. The first layer of insurance was...

Excerpt: ...er to the 9th cause of action is overruled on each of the stated grounds. A. Standing Defendants argue that Plaintiffs lack standing to bring the 1st-8th causes of action because they do not allege any direct injury or interest. Plaintiffs argue that they have taxpayer standing to pursue all the claims alleged in the First Amended Complaint (“FAC”). Plaintiffs' 1st, 4th and 7th causes of action assert claims under §42 U.S.C. § 1983 based on...

Excerpt: ...tion Los Angeles, LLC (2014) 59 Cal.4th 348. Epic Systems does not alter the ruling of Iskanian. The FLSA claims addressed in Epic Systems are fundamentally different from PAGA claims: (1) The FLSA does not require a pre-litigation demand on the agency/employer nor any of the other devices designed to keep the agency apprised of the private action; (2) FLSA plaintiffs must “opt in” while all “aggrieved employees” are bound by a PAGA actio...

Excerpt: ...ionable in the following ways:  It was a contract of adhesion.  The font size is too small and Plaintiff wasn't given much time to review (about ten minutes).  It includes an illegal PAGA waiver.  It does not include any discovery rules. A court may refuse to enforce an unconscionable arbitration provision. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 122. Whether a provision is unconscionable is a qu...

Excerpt: ...personal information to third parties who used it for their direct marketing purposes.  Plaintiff's claim fails because Tillys satisfied the STL by adopting and disclosing ‘a policy of not disclosing person information of customers to third parties for the third parties' direct marketing purposes unless the customer first affirmatively agrees to that disclosure.'” CC § 1798.83(c)(2). Each of those grounds is briefly addressed below. Plain...

Excerpt: ...s.” Citing Kim v. Reins International California, Inc. (2017) 18 Cal.App.5th 1052, defendant refused to answer the interrogatory because plaintiff did not have standing to continue the action because she had settled her claims. Defendant relies on Kim v. Reins International California, Inc. (2017) 18 Cal.App.5th 1052 to supports its refusal to provide the information. In that case, the plaintiff accepted a § 998 offer and, pursuant to that off...

Excerpt: ...on of Robert Thompson. Evid. Code §§ 1202 and 1220. The court does not rule on plaintiffs' objections to the Declaration of Lorilyn Hayes as the objections were not material to the court's disposition of the motion. Defendants move for summary judgment on the following theories: 1. The loans were not usurious because they were arranged by Hayes, a licensed real estate broker. 2. Plaintiff lacks standing to pursue a § 17200 claim because he can...

Excerpt: ... The Ninth Circuit allowed him to proceed “holding that the reasoning of American Pipe extends to successive class claims.” The Supreme Court disagreed. The China Agritech opinion addresses only class action plaintiffs. That is clear from the very outset when the court frames the issue to be decided as follows: “The question presented in this case is whether American Pipe tolling applies not only to individual claims, but to successive clas...

Excerpt: ...rprises, LLC, C.D. Dal., Case No. 17-cv-00603 has a preclusive effect. However, defendant fails to provide this court with a judgment. Instead, defendant provides a June 5, 2018 order granting partial summary judgment in defendant's favor. An order granting partial summary judgment is not a judgment and is not a final decision on the merits. Further, because the order was entered only two months ago, it is unclear whether there will be an appeal....

Excerpt: .... App. 3d 22 and Brousseau v. Jarrett (1977) 73 Cal.App.3d 864. Those cases do not impose a heightened standard of pleading, and neither limits the general rule that factual allegations in pleadings must be liberally construed. The punitive damage allegations in Searle failed because the plaintiff's allegations were “egregiously uncertain” and did not allege any intentional wrongdoing. As the Court explained: “When the plaintiff alleges an ...

Excerpt: ...dients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he or she does not have. (7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another. (9) Advertising goods or services with intent not to sell them as advertised. (13) Making false or misleading statem...

Excerpt: ...redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Any revised proposed order should be submitted in two formats. One copy should be filed in Word version, and another copy in .pdf with attachments, including the class notice and related forms to be provided to the class Issues: 1. Counsel for both parties are to inform the Court of any other matter(s) of which they are aware which m...

Excerpt: ...tected by privacy rights. Defendant further argues that the requests are “limitless.” As set forth below, the Court does not find Defendants' arguments persuasive. The parameters of discovery under California law are very broad. As the California Supreme Court explained in Williams v. Superior Court (2017) 3 Cal.5th 531, 548: “In the absence of privilege, the right to discovery in this state is a broad one, to be construed liberally so that...

Excerpt: ...he one hand, and defendants, cross-defendants and Cross-complainants Young Chin Kim and Kyong Ja Kim, on the other hand, have settled all claims between them for a payment of $475,000 through the Kims' insurer. In the initial application, the Kims argued that the settlement amount represented the full amount of remediation of the contamination which is the subject of this litigation. In subsequent papers, the Kims argued that the settlement amoun...

Excerpt: ...Oxnard Harbor Dist. (2007) 146 Cal. App. 4th 511, 514; Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064; and Pomona College v. Superior Court (1996) 45 Cal. App. 4th 1716, 1727-28; Defendant's demurrer is overruled. Defendant demurs to the sole cause of action on the ground that Plaintiffs, who sold their shares in response to the Second Repurchase Offer, cannot represent those shareholders who sold their shares in response to the First...

Excerpt: .../18 ruling as to the issues of notice and prejudice.) Petitioner (“Friends”) amended its writ to allege that it had filed the objections and motion for amended supplemental writ rather than filing a new writ because it had believed those procedures to be appropriate under County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 and City of Caramel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964. Amended Petition, ¶¶ 24 an...

Excerpt: ...documentation, Plaintiff has conducted adequate discovery and investigation into claims that Defendant failed to reimburse employees for uniform and cell phone expenses. Motion for Preliminary Approval at 1:3-21, 2:20-27; 3:23-6:28 and 7:13- 8:13. The Court is also satisfied that Plaintiff has considered the risks of a denial of class certification on the non-reimbursement alleged labor law violations such as claims for unpaid minimum wages and o...

Excerpt: ...Court first notes that it denied the original motion on procedural as well as substantive grounds. Specifically, Defendant failed properly identify the allegation to be stricken from the 3rd cause of action in its notice of motion. The notice identified page 18, lines 4-5 which is not part of the 3rd cause of action. A similar procedural error dooms this motion for reconsideration. As referenced above, Defendant's original motion sought to strike...

Excerpt: ...iness in the State of California. The demurrer and motion to strike are supported by a Request for Judicial Notice which attaches Plaintiffs' “Business Searches” for Defendant and Defendant's counsel on the California Secretary of States Website. The Request for Judicial Notice is denied as superfluous regarding Defendant Fidelity National Title Group because Defendant admits it is not registered to do business in California. The request is d...

Excerpt: ...��) move for summary judgment on their Cross-Complaint to Set Aside Void Judgment or, in the alternative, for summary adjudication of the single cause of action contained in the cross- complaint. The motion is brought on the grounds that the judgment obtained by Plaintiff HCR Moorpark Investors, LLC (“HCR”) in 2012 is void because HCR, a Delaware LLC, filed a Certificate of Cancellation in 2008 and did not correct the cancellation until 2017....

Excerpt: ...ecoveries for the class members as a whole should also be stated. For final approval as to the fee and cost requests, evidence should be presented as to the services provided by counsel, including time records, to allow the Court to evaluate the lodestar, and as to the basis for the costs claimed, including supporting documentation for all claimed costs. Plaintiffs' counsel must also either address any fee-splitting arrangement with any other cou...

Excerpt: ...ing an action on behalf of an individual or in the public interest, and a private person lacks an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”) Accordingly, the trial court must “review and approve” a PAGA settlement. Cal. Lab. Code § 2699(l)(2). There is little direction in either the statute or the cases as to the...

Excerpt: ...e (Long Form) DEMURRER Defendants, with the exception of James Kidong Cho and Tiffani C. Wu, demur to the 1st - 13th causes of action, as supplemented by the Short Form Complaints, on the grounds that each cause of action is uncertain and fails to state sufficient facts. 1st, 2nd and 8th causes of action. [1] Defendants demur to the First Cause of Action for Professional Negligence, Second Cause of Action for Lack of Informed Consent and Eighth C...

Excerpt: ...efendant James Baldwin, Orci Inc and Orc Investments LP's Joinder in Motion to Strike First Amended Cross-Complaint 6)Plaintiff Faith Devine in her Capacity as Successor Receiver for Fostar, LLC and JB Finco LLC's Motion to Strike First Amended Cross-Complaint of Ronald Therrien and Noble Court I. HCR MOORPARK'S DEMURRERS TO THE ALAN G. RYE AND OTAY VILLAGE CROSS-COMPLAINTS For the reasons set forth in the related matter of HCR v. Baldwin, Case N...

Excerpt: ...r. Lazo's cross-complaint in 1-800-Battery, Inc. v. Lazo is brought by Lazo, Hattouni and H&L Holdings against Keller, 1-800-Battery, Inc. and Marcus La Pittus. The stipulation which is the basis of this action is referenced in a single cause of action in the First Amended Cross-Complaint (the governing pleading when this motion was filed) and in two causes of action in the Second Amended Cross-Complaint (which is the subject of a motion to strik...

Excerpt: ...P)'s cross-complaint are sustained with leave to amend. The 2nd causes of action in the two cross-complaints are nearly identical and assert extrinsic fraud. The 3rd causes of action in the two cross-complaints are also nearly identical but assert extrinsic mistake. Extrinsic fraud (2nd causes of action). A judgment may be set aside for extrinsic fraud. “Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he h...

Excerpt: ...mended Complaint in this action is granted. Plaintiffs are ordered to file and serve an original copy of the proposed Verified Second Amended Complaint within five days of this order. Defendant 3132 Montego Rd. LLC's Motion for Leave to File a Cross-Complaint Defendant 3132 Montego Rd. LLC's motion for leave to file a cross-complaint is granted. Pursuant to CCP § 426.50, a motion to file a cross-complaint “shall” be granted in the absence of...

Excerpt: ... Dr. Ashley Wysong's Motion to Strike Second Amended Cross-Complaint 7)Status Conference MOTION TO STRIKE Plaintiff/Cross-Defendant 1-800-Battery, Inc. and Cross-Defendants Richard Keller, Morton La Pittus, and Dr. Ashley Wysong's motion to strike Cross-Defendants' Second Amended Cross-Complaint is denied. On December 15, 2017, the Court gave Cross-Complainants Marc Y. Lazo, Jacques Hattouni 30 days in which to amend the 3rd, 10th and 11th causes...

Excerpt: ...ees and costs. CC §1794(d). In determining what was reasonable, the Court may examine factors “such as the complexity of the case and procedural demands, the skill exhibited and the results achieved. If the time expended or the monetary charge being made for the time expended are not reasonable under all the circumstances, then the court must take this into account and award attorney fees in a lesser amount.” Goglin v. BMW of North America, ...

Excerpt: ...e Supreme Court's statements in Livitsanos arguably created the impression that claims for intentional or negligent infliction of emotional distress are not preempted by the Workers' Compensation law in two situations namely, (1) where the employer's conduct contravenes fundamental public policy or (2) where the employer's conduct exceeds the risks inherent in the employment relationship. But as the Supreme Court later explained in Miklosy v. The...

Excerpt: ... venture allegations appear in ¶¶ 12 and 13 of the Fourth Amended Complaint: 12. Plaintiff is informed and believes, and thereon alleges, that the Developer Defendants created a number of corporate entities that all share a series of characteristics that define them all as alter egos of one another, as they were all formed to avoid debts and obligations. 13. Plaintiff is informed and believes, and thereon alleges, that there exists, and at all ...

Excerpt: ...(“When a government agency is authorized to bring an action on behalf of an individual or in the public interest, and a private person lacks an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”) Accordingly, the trial court must “review and approve” a PAGA settlement. Cal. Lab. Code § 2699(l)(2). There is little direct...

Excerpt: ...n Department CX101 so that Plaintiff may address the issues identified below. It is not necessary for Plaintiff to resubmit briefing which has already been filed with the Court. Supplemental declarations or other supplemental materials shall be filed on or before June 15, 2018. If a revised settlement and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically ...

Excerpt: ... in entertaining a sua spontereference to a discovery referee include whether there are “multiple issues to be resolved,” “multiple motions to be heard simultaneously,” previous and/or subsequent discovery motions and “time- consuming” documents to be reviewed. “Where one or more of the above factors unduly impacts the court's time and/or limited resources, the court is clearly within its discretion to make an appropriate reference....

Excerpt: ...ing in 3713 which is the earlier filed complaint in which only an individual claim was originally pled. The caption of the First Amended Class Action Complaint reflects both individual and class claims. The pleading alleges the following seven causes of action: 1. Failure to Pay Overtime 2. Failure to Pay for All Hours Worked 3. Failure to Provide Meal Periods 4. Failure to Provide Rest Breaks 5. Failure to Provide Accurate Itemized Wage Statemen...

Excerpt: ... mortar restaurant) offers the tacos individually and if she had purchased the tacos through the app, the price would have been 20 cents cheaper than it was when purchased by her at the restaurant, e.g. $7.50 for two chicken and one steak. Complaint, ¶¶ 8-10. However, according to the allegations of the complaint, tacos at the restaurant were offered only as an order of three tacos using one type of meat, e.g. $7.70 for three steak tacos; $7.70...

Excerpt: ...r claims. In Diaz' amendment, she points out that although she did not formally schedule her claims against BofA as an asset in the bankruptcy, she identified BofA as a secured creditor on Schedule D and identified that she had a claim against BofA on her Statement of Intention. Exhibit 1 to Diaz Dec. "[T]he `bankruptcy code place[s] an affirmative duty on [the debtor] to schedule his assets and liabilities. [Citation.] . . . [¶] "The debtor has...

Excerpt: ...ts of that article. (C) There is an overriding need for the plaintiff to possess the property prior to the issuance of final judgment in the case, and the plaintiff will suffer a substantial hardship if the application for possession is denied or limited. (D) The hardship that the plaintiff will suffer if possession is denied or limited outweighs any hardship on the defendant or occupant that would be caused by the granting of the order of posses...

Excerpt: ...te has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the [parties'] choice, or . . . application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which . . . would be the state of the applicable law in the absence of an effective choice of law b...

Excerpt: ...2016) 246 Cal.App.4th 1047, 1060. Plaintiff acknowledged executing the agreement. Thus, an agreement to arbitrate exists that potentially covers Plaintiff's claims, all of which arise out of his employment. Plaintiff asserts, however, that the agreement is not enforceable because it is unconscionable. Whether the Court may consider the unconscionability issue depends on whether the delegation clause in the agreement is enforceable. If the delegat...

Excerpt: ...errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief]. Moreover, a demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made. People v. Lim (1941) 18 Cal.2d 872, 883; Fenton v. Groveland Community Services Dept. (1982) 135 Cal...

Excerpt: ...d Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Any revised proposed order should be submitted in two formats. One copy should be filed in Word version, and another copy in .pdf with attachments, including the class notice and related forms to be provided to the class Issues: 1. The Stipulation attached as part of Exhibit A to the Declaration of Kevin Lip...

Excerpt: ...ovide a supporting declaration which specifies: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. The original declaration filed in support of the motion fails to satisfy the second, third or fourth requirement. The declaration centers on Christi Torres' September 2014 tra...

Excerpt: ... for Breach of Insurance Contract Defendant argues that Plaintiff's breach of contract claim fails because Plaintiff has “failed to plead the essential terms of a binding agreement providing coverage for disputes sued upon.” To establish a cause of action for breach of contract, a plaintiff must plead and prove: (1) a contract, (2) the plaintiff's performance or excuse for nonperformance, (3) the defendant's breach, and (4) resulting damages ...

Excerpt: ...ge is the moving party. The motion also fails to comply with the requirements of CCP § 403 and CRC, Rule 3.500. Both § 403 and Rule 3.500 require that a motion for coordination be supported by a declaration stating certain facts. The motion before the Court is not supported by any declaration. Further, § 403 requires that the motion be served on each court in which an action is pending. The proof of service which accompanies the motion does no...

Excerpt: ...6 Cal.App.4th 1047, 1060 (the party seeking to compel arbitration “may meet [its] initial burden to show an agreement to arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing party's signature.”) Plaintiff does not dispute the fact that she signed the agreement and does not make any claim of fraud, duress or unconscionability. Thus, the arbitration agreement is enforceable. The agreement includes a delega...

Excerpt: ... a “claims made” settlement? 2. Since this is a “claims made” settlement, why are the proposed class members required to request exclusion or be bound by the release (Joint Stipulation, ¶¶ 18, 21 and 26)? 3. There does not appear to be a provision for the payment of employer-side taxes. How will those be paid? 4. The proposed release language and terms (see Joint Stipulation, ¶¶ 24, 53 and 71- 73) appear to negatively impact the fairn...

Excerpt: ... an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”) Accordingly, the trial court must “review and approve” a PAGA settlement. Cal. Lab. Code § 2699(l)(2). There is little direction in either the statute or the cases as to the court's responsibility in connection with the required approval. However, § 2699(e)(2), auth...

Excerpt: ...a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. No appearance is necessary today. Issues/Questions to Be Addressed 1. The parties must identify any pending actions of which they are aware that potentially overlap with the claims in this action or which might be impacted by the release included in the Joint Stipulation. If neither party is aware of any such action, they should pr...

Excerpt: ...endant to drill along the side of plaintiff's #3 tooth broke loose and lodged in the portal between the maxilla and sinus cavity. Bijal immediately packed the area and referred plaintiff to an expert who could safely retrieve the broken bur head. The bur was removed the following day. Plaintiff alleges that as a result of the botched extraction, and subsequent remedial procedure, she suffers ongoing physical symptoms. On 01/05/18, this Court gran...

Excerpt: ...d an appropriate amount as required by statute; (iii) there is an overriding need for prejudgment possession; (iv) Plaintiff will suffer a substantial hardship if the application for possession is denied or limited; and (v) the hardship that the Plaintiff will suffer if possession is denied or limited outweighs any hardship on the occupants that would be caused by the granting of the order of possession. MOTION TO STRIKE Plaintiff's Motion to Str...

Excerpt: ...ment and/or proposed Class Notice are submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues/Questions to Be Addressed 1. The parties must identify any pending actions of which they are aware that potentially overlap with the claims in this action or which might be impacted by the release included in the Joint Stipulation. If neither party is aware of any such action,...

Excerpt: ...k v. Children's Hosp. L.A., 237 Cal. App. 4th 1454, 1469 (2015); Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) (hereinafter “Murphy”). Except as specifically granted, Defendant's motion is denied. Although the wage and hour claims may be governed by a three-year statute of limitations, the UCL claim is governed by a four-year statute of limitations. The logical result of granting Defendant's motion would be to require requ...

Excerpt: ...predominate, resolution in a class context will be more efficient.” (Third sentence of the first full paragraph of page 3 of the order; emphasis added.) Plaintiff also argues that Defendant is required to make a heightened showing before proceeding with depositions of absent class members. Pursuant to CRC, Rule 3.768, Defendant was entitled to notice the depositions without a court order. Because Plaintiff responded with a motion for protective...

Excerpt: ... Contents or a Table of Authorities in violation of the statutory requirements. 2. The notice of motion states that Plaintiff is moving for “Approval of the proposed Class Notice.” However, no proposed Class Notice was submitted to the Court in connection with the motion. 3. The agreement is unclear on the nature of the settlement as it requires both submission of a claim for payment and submission of an exclusion to be excluded from payment....

Excerpt: ...od regulations, which require payment of a premium wage for each improper meal., give rise to claims under sections 203 and 225 of the California Labor Code where the employer does not include the premium wage in the employee's pay or pay statements during the course of the violations?”. Stewart v. San Luis Ambulance, Inc., California Supreme Court No. S246255; C.D. No. 2:13-cv-09458-BRO-SS. This question, therefore, has yet to be settled and m...

Excerpt: ...101. The Court's Research Attorney, will be available to assist the parties in their meet and confer efforts at that time. The Case Management Conference is also continued to March 8, 2018 at 1:30p.m. The Court recognizes that Defendants (the moving parties) have attempted to meet and confer but is concerned by Plaintiffs' lack of responses to those efforts. The Court notes that on 2/23/18, it addressed motions to compel responses from Plaintiffs...

Excerpt: ... Notice is submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the Court. Issues raised by the Stipulation and/or Plaintiff's Memorandum of Points and Authorities 1. The memorandum of points and authorities states that Plaintiff Miranda filed a similar case against Genex, Case No. 3:17-cv-01438 (USDC, N.Cal.) The parties do not, however, provide any further information regarding the...

Excerpt: ...ving papers at 6:12-14. The parties cite Cal. Labor Code § 2699 in support of that proposition. Cal. Labor Code § 2699 does not include that language but reads, in pertinent part: “The superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” Cal. Labor Code § 2699(l)(2). The language r...

Excerpt: ... fails for the following reasons. First, the evidence offered by Plaintiff in support of its motion is not “new.” Plaintiff first raised the issue of the escrow agents' alleged knowledge in 2015 (when it made allegations regarding the same in a related action). It has had evidence regarding Lazo's lack of authority to sell the property since at least 2013 (the evidence comes from a 2013 email in Plaintiff's possession). Second, Plaintiff does...

Excerpt: .... As set forth in CCP § 387(d)(1)(B), a nonparty shall be allowed to intervene (mandatory intervention) if he/she/it “claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties.” Th...

Excerpt: ...l conferral of benefit or relief from burden when measured against the benchmark condition." Folsom v. Butte County (1982) 32 Cal.3d 668, 685- 686. Here, Plaintiff's lawsuit did not enforce any right as a practical matter. The appeal to the California Coastal Commission was the method and means of enforcing his rights. That very appeal was the reason why Defendants' demurrer was sustained without leave. Thus, Plaintiff was not the “successful�...

Excerpt: ... disgruntled class defendant to seek a do-over of its previously unsuccessful opposition to certification. Modifications of an original class ruling, including decertifications, typically occur in response to a significant change in circumstances, and [i]n the absence of materially changed or clarified circumstances ... courts should not condone a series of rearguments on the class issues[.]” Williams v. Superior Court (2013) 221 Cal.App.4th 13...