Excerpt: ...ion for Summary Judgment/Adjudication The motion for summary judgment brought by defendant Culligan International Company is granted. “California law permits third party beneficiaries to enforce the terms of a contract made for their benefit.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4 th 1004, 1021; See also Civil Code §1559). “The test for determining whether a contract was made for the benefit of a third per...

Excerpt: ...ad not belatedly found the paper courtesy copy, it would not have known about the supplemental brief prior to the hearing. Because the court was not aware a supplemental opposition had been filed until the day before the hearing, the court may not be able to post a tentative ruling in this motion and indeed, it may need to continue the hearing of this motion. Motion to Augment Expert Witness List This Motion to Augment is brought by Plaintiff Ale...

Excerpt: ... no changes to the underlying factual allegations,” within the amended pleading. (¶5 of De Castro Declaration). The Motion is granted, as Plaintiff maintains the right to dismiss his individual claims pursuant to C.C.P. §581(b)(1) and C.C.P. §581(c), given that trial has not commenced, either within this action or within any pending arbitration. The evidence indicates Plaintiff declined to proceed with arbitration and, instead, has opted to ...

Excerpt: ...oduction, brought by Plaintiff Mostafa Gad against Defendants St. George Auto Sales, Inc. and St. George Auto Center, Inc. are GRANTED, with the limitation that the Court orders a production of a 25% sampling of the records sought by Requests Nos. 3 and 5. This order is without prejudice to Plaintiff returning to Court, should the sample prove insufficient. Additionally, consistent with Plaintiff's proposal, Defendant is ordered to redact the rec...

Excerpt: ...egards them as there was no demurrer to that claim. Defendants shall file a responsive pleading within 10 days. Class Allegations: It is “settled” that courts may weed out legally meritless class action suits prior to certification by demurrer. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 440.) A demurrer to class action allegations may be sustained without leave only if court concludes as matter of law that, assuming truth of factual al...

Excerpt: ...ng the complaint, plaintiff not only must have been genuinely ignorant of defendant's identity, but also ignorant of the facts giving rise to the cause of action against that defendant. (San Diego Navy Broadway Complex Coalition v. California Coastal Commission (2019) 40 Cal.App.5th 563, 579.) A motion to quash service on a purported “Doe” defendant may be brought where the terms of CCP § 474 have not been met. (See Fireman's Fund Ins. Co. v...

Excerpt: ... lodged in connection with that discovery motion. CRC rule 2.550 regarding sealed records does not apply to discovery motions and records filed or lodged in connection with discovery motions or proceedings. Ford makes this application out of an abundance of caution. Ford argues that its CO Requirement, the rationale for developing the requirement, the testing Ford has conducted to set the CO standard, and any other discussion of the actual requir...

Excerpt: ...ay permit amendments at any stage in the proceedings, up to and including trial, so long there is no prejudice to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) That it would make defending the case more difficult or expensive to defend is not sufficient. (Landis v. Superior Court (1965) 232 Cal.App.2d 548, 557.) Defendants have not described any prejudice of the type courts typically consider in denying leave to amen...

Excerpt: ...rst Set of Special Interrogatories is granted as to #1 and #17, but only for the time period from December 16, 2017 to April 27, 2018, and is otherwise deemed withdrawn based on an apparently successful meet and confer. The other four discovery motions set for today are deemed withdrawn in full based on an apparently successful meet and confer. Both sides' Requests for Judicial Notice are granted. Plaintiff Evangelista is entitled to equitable to...

Excerpt: ...1) Failure to Reimburse for Necessary Work Expenditures (Cal. Labor Code Section 2802); (2) Unfair Competition under Business & Professions Code Section 17200; and (3) Violation of Cal. Labor Code §§ 2699 et seq. Defendant seeks an order compelling some or all of plaintiff's claims to arbitration and staying whatever remains. Plaintiff does not dispute agreeing to arbitration, so the first issue to be addressed is what the court can decide unde...

Excerpt: ...fy the “aggrieved” employees. In Khan, the plaintiff's LWDA notice “expressly applied only to him” and “suggested only an individual violation”. Khan, 19 Cal.App.5th 804 at 809. Here, plaintiff's notice was not so limited. The cover letter sent to the LWDA (attached as Exhibit A to plaintiff's First Amended Complaint) specifies that counsel represents plaintiff “and other aggrieved employees” and states that defendant failed to pa...

Excerpt: ... 7-11); 8:7-8 and 9-10; 9:28 and 10:5-6 and 15-16  The following page and line references from the Anwandter Declaration filed in opposition to the motion to enforce (ROA 154): 2:8-20; 3:24-28; Exhibit A at i:12- 14, 2:11-14 and 21-28, 3:1-3, 5:11-23, 8:15-27, 14:16-17 and 20-26, pp.15-18, 19:13-28, 20:1-3, 22:15-17; Exhibit B at i:12-14, 2:12-14 and 22-28, 3:1-4, 5:14- 24, 8:23-28, 9:1-7, 14:23-28, pp.15-19, 20:1-5 and 18-23, 21:1-10, 24:3-5;...

Excerpt: ...lable penalties. Attorneys' fees and costs, class representative enhancements, settlement administration costs (excluding employer's share of withholding taxes) shall be paid out of the GSA to calculate the Net Settlement Amount (NSA) to be distributed to the class.” The MOU stated that plaintiff would file an amended complaint including a PAGA claim. Under the terms of the MOU, “in addition to the GSA”, plaintiff was to receive a specified...

Excerpt: ...  the allocation of settlement proceeds among plaintiffs  recognition that the settlor should pay less in settlement than he would if he were found liable at trial  the financial conditions and insurance policy limits of settling defendants  the existence of collusion, fraud or tortious conduct aimed to injure the interests of non-settling defendants.  These factors are not exhaustive and may not apply in every case. Dole Food Comp...

Excerpt: ... Worksite Employee Notice & Acknowledgements” and will be referred to as “Section 3” in this order. Because it is entitled “Section 3”, the court presumes it is part of a larger document including at least Sections 1 and 2. The larger document was not provided for the court's review. Further, there is no supporting declaration authenticating Section 3. Shelton does not, however, deny that his signature appears on the document. According...

Excerpt: ...stayed, pending arbitration. C.C.P. §1281.4. The uncontested evidence demonstrates the existence of an implied-in-fact agreement to arbitrate all “claims, disputes, or controversies” relating to Plaintiff's employment. This agreement is enforceable by either Defendant Resource or Defendant Houdini as a “customer/client” of Resource. Brown Declaration Exhibit A and Perez Declaration, ¶3. Defendants offer uncontested testimony which prove...

Excerpt: ...hibits 1-10. Responses were due on May 4, 2018. As of December 7, 2018 (the date the motions were filed), the Summers had not provided responses or asked for additional time. Defendant filed a motion to compel responses and to have the requests deemed admitted. On January 18, 2019, the court issued a minute order granting the requested relief. However, after the order was issued, defendant learned that the Summers had not been properly served wit...

Excerpt: ...s ruling on this motion will apply to the Fifth Amended Complaint. Defendant Residential Fire Systems (“RFS”) identifies itself as a “privately-owned small business that installs fire sprinkler systems for residential community developments and custom homes throughout Southern California.” Motion at 2:7-8. Plaintiffs were/are employees of RFS and brought this action alleging several wage and hour violations on behalf of a class of RFS emp...

Excerpt: ...es from respondents in the amount of $126,600. This matter is currently on appeal. The notices of appeal automatically stayed proceedings on the judgment. Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727 (perfecting of an appeal stays proceedings in the trial court upon the judgment granting a writ of mandate].) However, that stay does not divest the court of jurisdiction to consider these motions for fees. Robertson v. Rodriguez (1995)...

Excerpt: ...eek fees in the following amounts: Baldwin Park ($45,875); Rancho Palos Verde ($17,763.50); Signal Hill ($14,968); Carson ($8,122.50); and West Covina, Lakewood, Santa Fe Springs and Clarement (total of $363,180). This matter is currently on appeal. The notices of appeal automatically stayed proceedings on the judgment. Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727 (perfecting of an appeal stays proceedings in the trial court upon th...

Excerpt: ...n the alternative, summary adjudication of the 1st-4th c/a against Plaintiffs William and Louise Debnam on the ground that in connection with a separate case relating to the servicing of the loan which forms the basis of the claims in this action, Los Angeles Superior Court Case No. YC072073, the Debnams waived all claims against Defendant. Exhibit 9 submitted in support of the motion establishes that on 11/8/17, William and Louise Debnam entered...

Excerpt: ...nctions pursuant to CCP § 128.7. This petition arises out of a Coastal Development Permit (“CDP”) relating to a development in Laguna Beach. The CDP has already been the subject of various challenges and litigation by Petitioner, including two prior petitions in Orange County Superior Court. Amended Petition, ¶¶ 15-30. The underlying CDP was approved, with conditions, on August 9, 2017. Amended Petition, ¶¶ 2, 10-23, 29 and 36. The condi...

Excerpt: ...ed the phrase “INCIDENT”. The form interrogatories direct the propounding party to provide a definition of “INCIDENT”. Plaintiff may have done so when propounding the interrogatories, but the definition is not included in the separate statement in violation of Rule 31.345(c)(5) (the separate statement must include, “[i]f necessary, the text of all definitions, instructions, and other matters required to understand each discovery request...

Excerpt: ... not oppose the motion, it is granted as to Avila and judgment will be entered in CRH's behalf on Avila's complaint. CRH's request for judicial notice of Exhibit E to McDermed declaration re recommended standards of hygiene in dental clinics, is denied as irrelevant to the court's determination of the motion. At the outset, the court notes that CRH's motion does not address any claim of the CDG defendants' cross-complaint. Indeed, the Notice of M...

Excerpt: ... court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” A matter is “embraced” or “affected” within the meaning of § 916 when: (1) it seeks to enforce, vacate or modify the appealed judgment or order, (2) it would substantially interfere with the appellate court's ability to conduct the appeal, (3) possible outcomes of the appeal and the actual or possible results of the proceeding ar...

Excerpt: ...Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696. Any doubts in applying California Code of Civil Procedure section 473 “must be resolved in favor of the party seeking relief from default.” Id. The same principles apply to a motion brought pursuant to CCP 2033.300 seeking the withdrawal of matters deemed admitted. New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-1421. In explaining their conduct here, both with...

Excerpt: ... was on the second page. Plaintiff's failure to read the entire contract is not a defense. “[I]t is well established that a party who signs a document is presumed to have read it and to understand its contents.” Baker v. Italian Maple Holding (2019) 13 Cal.App.5th 1152, 1163, n. 6. See also 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal. App. 4th 1199, 1215 (“Reasonable diligence requires the reading of a contract before signing it. ...

Excerpt: ...ial court efficiency and avoid the substantial danger of inconsistent adjudications. Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978- 979. “There are two types of consolidation: a complete consolidation resulting in a single action, and a consolidation of separate actions for trial. Under the former procedure, which may be utilized where the parties are identical and the causes could have been joined, the pleadings...

Excerpt: ...381 (“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). As the California ...

Excerpt: ...tion 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). As the California Supreme Court explained: “PAGA settlements are subject to t...

Excerpt: ...fornia State Auto. Ass'n. Inter-Insurance Bureau v. City of Palo Alto (2006) 138 Cal.App.4th 474, 479 (“CSAA”), a case cited by Defendant in support of its demurrer, “damage caused by the public improvement as deliberately conceived, altered, or maintained may be recovered.” (Emphasis added.) In an opinion issued on August 15 of this year, the California Supreme Court reiterated that inverse condemnation claims may be based on damage caus...

Excerpt: ...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). As the California Supreme Court explained: “PAGA settlements are subject to...

Excerpt: ... subject of the action, and tending to render the judgment ineffectual.” CCP § 526(a)(3). “[A]s a general matter, the question whether a preliminary injunction should be granted involves two interrelated factors: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the relative balance of harms that is likely to result from the granting or denial of interim injunctive relief.” White v. Davis (2003) 30 Cal.4th 528, 554,...

Excerpt: ...ed Complaint adding a PAGA claim (Labor Code § 2699). On May 9, 2017, Plaintiff requested dismissal of both her class and individual claims, without prejudice. Both requests were granted and Plaintiff was left with her PAGA claim only. Defendant now moves for summary judgment, asserting that because she dismissed her individual claims, Plaintiff is without standing to pursue the PAGA claims. The motion raises a single, legal issue: If a plaintif...

Excerpt: ...ones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1267. The burden falls on the party seeking to tax the costs to show that they were improper, unreasonable or unnecessary. 612 South LLC v. Laconic Ltd. Partnership (2010) 184 Cal.App.4th 1270, 1285. Here, Petitioner challenges the amount of Item 1 (filing and motion fees) and Item 9 (court-ordered transcripts). Filing and motion fees. Filing and motion fees are generally allowable costs. CCP 1033.5(a...

Excerpt: ...plaint is read as a whole: material facts properly pleaded are assumed true; contentions, deductions or conclusions of fact/law are not. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Not every fact which ultimately supports a cause of action needs to be pled, and trial courts are obligated to accept as true even the most improbable factual averments without regard to the pleader's ability to actually prove those facts. See C.A. v. William S. Hart Un...

Excerpt: ...gatories (set one) as to Donald Grammer and Richard McGrath 5. Plaintiff Baer's Motion to Compel Production (set one) as to Richard McGrath and Donald Grammer 6. Plaintiff Baer's Motion to Compel Response to Request for Admissions (set one) as to Richard McGrath, Dennis Hartmann and Donald Grammer 7. Status Conference 1. The Demurrer Defendants Hartmann, Grammer, McGrath, Banyan LP, Orange Blossoms LP and Pear Tree LP (“the Grammer parties”) ...

Excerpt: ...Aguilar, 25 Cal.4th at 851. A defendant moving for summary judgment may prevail on the motion in one of three ways: (1) by affirmatively negating at least one of plaintiff's essential elements; (2) by showing that plaintiff does not have, and cannot get despite adequate discovery efforts, evidence to establish an essential element; or (3) by presenting evidence as to each element of an affirmative defense upon which defendant bears the burden of ...

Excerpt: ... Defendant filed its answer. The answer included a general denial, refuting the alleged violations. It also included several affirmative defenses, including a defense that Plaintiff lacked standing to bring the claims. The same day, Defendant served Plaintiff with a Demand for Arbitration with JAMS filed, not by NGC but by its subsidiary, Northrup Grumman Systems Corporation (NGSC). (Warbus Dec., ¶ 2). The arbitration demand sought “declarator...

Excerpt: ....App.4th 1047, 1060. An electronic signature may be authenticated “in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” CC § 1633.9. An electronic signature or agreement may be established by evidence that the signature and agreement could only be given by one using a unique login ID and password and establishing ...

Excerpt: ...ployee Guide and acknowledged and agreed to by Plaintiff. Plaintiff opposes the motion, asserting: (i) she entered into a subsequent agreement; (ii) the agreement is the result of fraud, duress and economic compulsion; and (iii) the agreement is both procedurally and substantively unconscionable. In addition, Plaintiff argues that Pegatron cannot enforce that agreement because it is not a signatory to the agreement and is not bound thereby, so th...

Excerpt: ...rt must apply a balancing test and weigh the actual or potential abuse of the class action procedure against the potential benefits that might be gained by allowing the discovery. Id; Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300-301. See also CVS Pharmacy, Inc v. Superior Court (2015) 241 Cal.App.4th 300, 313. The facts before the Court establish that granting these discovery motions would create a significant potential for abuse of t...

Excerpt: ...nd other claims. About two years into the case, Jones Day substituted in to represent both PenBen and DeVone (the “PenBen parties”). The PenBen Litigation was tried in August and September 2015. The jury reached a verdict: (1) against PenBen on all their claims; and (2) in favor of the individual defendants on their defamation claim against DeVone. The individuals were each awarded $1 in nominal damages and $200,000 collectively in punitive d...

Excerpt: ...delayed in providing full and complete responses to discovery propounded by Clauss in May 2017. The record demonstrates that while Plaintiffs delayed in responding to the discovery, the issue appears to have been resolved. Second, Plaintiffs failed to respond to discovery propounded by Weiland-Davco in 2017. In February 2018, motions to compel that discovery were granted and sanctions of $2,520 were ordered. Third, Plaintiffs failed to file a tim...

Excerpt: ...he entire period. Plaintiffs accepted the offers and continued working. Defendant learned thereafter that Plaintiffs lacked proper documentation to work in the U.S. and, on May 7, 2018, terminated Plaintiffs' employment. Defendant paid Plaintiffs through the date of termination but did not pay wages through the scheduled termination dates and did not pay the promised severance. Plaintiffs sued for various wage and hour violations as well as breac...

Excerpt: ...e pursuing this PAGA action. If that occurs, Defendant can take whatever action it deems appropriate. However, it is only a theoretical possibility and is not an issue which is ripe for adjudication at this point. Defendant's other argument is that Plaintiff seeks wages under § 558 which must be arbitrated under Esparza v. KS Industries, LP (2017) 13 Cal.App.5th 1228, review denied (Nov. 15, 2017). Esparza is not the only opinion regarding arbit...

Excerpt: ...endant as of the date of the offer. Pursuant to those offers, Plaintiff now seeks attorneys' fees in the amount of $93,791 and costs of $5,341.99. This is Plaintiff's second attempt. Her first motion was denied, without prejudice, because it did not specify which defendant she sought fees from and in what amount. Defendants argue that this second attempt is also defective because Plaintiff seeks an award of fees “jointly and severally “ again...

Excerpt: ...Retail North America, Inc. (9th Cir. 2015) 803 F.3d 425, 429 (holding that Iskanian governs PAGA claims even when the agreement is controlled by the FAA); Mandviwala v. Five Star Quality Care, Inc. (9th Cir. 2018) 723 F. App'x 415, 417-418 (same); and Whitworth v. SolarCity Corp. (N.D.Cal. Aug. 21, 2018) 2018 WL 3995937 (same). Defendant also argues that Plaintiff's PAGA claim must be compelled to arbitration because Plaintiff seeks, in part, unp...

Excerpt: ... owed to the aggrieved employees will be paid to the participating class members. PAGA claims are subject to a one- year statute of limitations while the class wage and hour claims are subject to a four-year statute of limitations. This means there may be class members who cannot be “aggrieved employees” as they were not employed within the proper time frame. Such employees are not entitled to payment of the LWDA penalties as the statute requ...

Excerpt: ... Plaintiff filed this class action seeking to recover for alleged labor code violations on behalf of individuals employed by Defendant as “Job Coaches.” Over time, Plaintiff filed a First and Second Amended Complaint. Each time, Plaintiff sought to recover on behalf of individuals employed as “Job Coaches.” On March 12, 2019, Plaintiff filed a Third Amended Complaint. In this complaint, Plaintiff sought to recover for the same alleged vio...