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: ... 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: ...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: ...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: ....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: ...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...