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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...(“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: ... 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...