Excerpt: ... Judicial Council Emergency Order 10 extended the five-year deadline to bring a case to trial contained in CCP §§583.310 and 583.360 by an additional six months. Thus, the five-year mandatory dismissal statute becomes applicable on August 26, 2021, in 41 days. This case is a wage and hour class action lawsuit. Even though the case is more than five years old, plaintiffs have not filed a motion for class certification. The court in Warner Bros. ...

Excerpt: ...t to enforce these provisions. Similarly, defendants have not shown that Maryland law applies to determine standing. Further, as previously noted, the court will not make standing rulings at the pleading stage, in the absence of full briefing and the opportunity for an evidentiary showing. This court also rejects defendants' statute of limitations argument. Defendants argue that plaintiff's allegations of delayed discovery fail, but absent a deta...

Excerpt: ..., Fourth, Seventh and Eighth Causes of Action. The Demurrer to the Second Amended Complaint by Defendant Northwood Investors, LLC is SUSTAINED with 15 days leave to amend as to the First, Second, Third, Fourth, Seventh and Eighth Causes of Action. Based on the Request for Dismissal plaintiff filed on June 21, 2021, the Demurrers to the Fifth and Sixth Causes of Action are MOOT and off calendar. Plaintiff's Request for Judicial Notice is GRANTED. ...

Excerpt: ...rted privilege objections to plaintiff's document requests, this motion involves the content of discovery responses, and the Separate Statement requirement of CRC Rule 3.1345(a) applies. Nonetheless, the court orders defendant ManaMed to comply with its agreement to provide a privilege log, as referenced in its opposition brief at 2:1-2. Plaintiff's request for monetary sanctions is denied. Defendant acted with substantial justification in connec...

Excerpt: ...ntiff's request for sanctions against Spartamed and its counsel, Thomas A. Moore and Brownstone Law Group, P.C., is granted in the amount of $4,000, payable within 30 days. The opposition was not substantially justified. Plaintiff Össur Americas, Inc.'s Motion for an Order Compelling Defendant Spartamed, LLC, to Provide Responses, Without Objections, to Plaintiff Össur Americas, Inc.'s Special Interrogatories is granted as to #5, 8, 11 and 16, ...

Excerpt: ...une 24, 2019. Renee Mann's cause of action for financial elder abuse against Alex Mann, the only cause of action in any of the many petitions being set for trial that was subject to a right to jury trial, was placed in Phase 2. This court already heard Phase 1 as a court trial. Jack Mann Jr. correctly notes that the trial on the financial elder abuse claim would include some of the undue influence evidence that was part of the Phase 1 trial, in w...

Excerpt: ...ned with Team Makena, LLC. Lasso argues that the preliminary injunction may last for only three years, from the sale of the last of his ownership interests in Team Makena. Lasso has not submitted any evidence in support of this motion, including any declaration of his own, and he relies solely on judicially noticed documents, two Minute Orders and a 2018 Declaration of Otto Fernandez, a Manager of Team Makena, LLC. Fernandez asserted in paragraph...

Excerpt: ...apers, including the class notice. The settlement agreement (in §3.04(a) on pp. 9-10) and the class notice (in §4 on pp. 2-3) provide that the Administrator will resolve any workweek disputes. The documents should reflect instead that the Administrator and the parties will attempt to resolve any such dispute, but that the court ultimately will decide any unresolved dispute. In §§8 and 13 of the class notice, the four references to the Final F...

Excerpt: ...sion of any revised papers, including the proposed letter to the aggrieved employees. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the proposed letter to the aggrieved employees, rather than with just a supplemental declaration simply asserting that the issues have been resolved. The PAGA Settlement Agreement provides in ¶12 t...

Excerpt: ...ntain nonpublic information that is entitled to confidential treatment under applicable law”. Since tax returns are privileged under California law, MFS's tax returns are entitled to confidential treatment. Webb v. Standard Oil Co. (1957) 49 Cal. 3d 509, 513. Since accounting and financial records are typically treated as confidential, and are typically labeled confidential when being produced pursuant to a protective order, MFS's accounting an...

Excerpt: ...-65; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375. Under CCP §405.31, the court shall order a lis pendens expunged if it finds that the pleading on which the notice is based does not contain a real property claim. CCP §405.4 defines a real property claim as a cause of action in a pleading that would, if meritorious, affect title to, or the right to possession of, specific real property. The burden is on the pa...

Excerpt: ...an arbitration award is due 10 days from service of the petition. Code Civ. Proc., § 1290.6. Petitioner did not object to the untimeliness of Respondent's opposition, did not show any prejudice as a result of the untimely opposition, and served and filed a reply. Accordingly, the Court exercises its discretion and considers the opposition. Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 847. As noted in the Court's 3/25/2021 Minu...

Excerpt: ... papers, including the proposed letter to the aggrieved employees. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the proposed letter to the aggrieved employees, rather than with just a supplemental declaration simply asserting that the issues have been resolved. The Status Conference set for June 18, 2021 is ordered off calendar...

Excerpt: ...apers, including the class notice. Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the class notice, rather than with just a supplemental declaration simply asserting that the issues have been resolved. The Status Conference set for April 29, 2021 is ordered off calendar. Plaintiff provides virtually no information as to defendant...

Excerpt: ...apers, including the class notice. The Status Conference set for May 21, 2021 is ordered off calendar. The settlement agreement (on p. 11 in §III(D)(3)) requires objections to be in writing. Even though the class notice provides that class members may appear at the Final Approval Hearing to object to the settlement even if they have objected in writing, such notice is unclear. The class notice must be amended. In the third paragraph of §10 on p...

Excerpt: ...n Deon Sims are sustained. The joint declaration is not executed under penalty of perjury under the laws of the State of California, nor does it expressly state that it was executed in California. It therefore fails to comply with Code of Civil Procedure §2015.5 and its contents are inadmissible. Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal. 4th 601, 610-11 (a declaration that doesn't strictly comply with §2015.5 is inadmissible on...

Excerpt: ...o have allocated none of plaintiff's attorneys' fees or costs to plaintiff's individual settlement. Plaintiff must submit an amended Proposed Final Approval Order that does not provide for the dismissal of this action in violation of CRC Rule 3.769(h), and that does not provide (in ¶16) for an injunction against unnamed class members. Res judicata and collateral estoppel arguments should provide defendant with sufficient protection against facin...

Excerpt: ...papers, including the class notice. Paragraph 12(M) of the settlement agreement is ambiguous. Must the settlement amount be increased if there are more than 32 class members, or if the number of class members increases by at least 10% over 32, meaning 36 or more class members? Clarification is required. Paragraph 28 of the settlement agreement on p. 23 provides that 16 calendar days before the Final Approval Hearing the Administrator will prepare...

Excerpt: ...f any revised papers, including the class notice. The allocation of only 20% of the settlement payments for wages appears to be low. Either an increase to 33 1/3% or an explanation of why the figure is not at least 33 1/3% is required. The release language used in the settlement agreement and in the class notice is too broad. The release must be limited to claims that are asserted in the operative pleading or that could be asserted based on the f...

Excerpt: ...L Insurance Company Limited, XL Insurance Company PLC; XL Insurance Company PLC Irish Branch and XL Insurance Company SE cannot be granted. The applicants have not complied with CRC Rule 9.40(c)(1) since they have not filed with the court a proof of service by mail of copies of the applications and the notice of hearing of the applications on the State Bar of California at its San Francisco office. The applicants also have not complied with CRC R...

Excerpt: ...s set for August 6, 2021 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. The court concludes that there exists a valid agreement to arbitrate the individual claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. Plaintiff does not dispute entering into the agreement, and makes no claims ...

Excerpt: ... plaintiff lives and that defendant Powerstone does not manage either property. Undisputed Material Facts 6 and 8. Defendants also have established that plaintiff Lewellen has admitted in her verified discovery responses that she has no basis for any of the allegations or her causes of action as alleged against the moving party defendants. Undisputed Material Facts 9-16. Defendants served written discovery on Lewellen seeking to discover the basi...

Excerpt: ...te. The court concludes that there exists a valid agreement to arbitrate the individual claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. Plaintiff does not dispute that she signed the arbitration agreement, and she has failed to meet her burden of proving the facts of any defense to enforceability. Chin v. Advanced Fresh Concepts Franchise Corp. (2011) 194 Cal. App. 4th 704, 708. California...

Excerpt: ...ed papers, including the class notice. Although the motion provides the estimated average payment to class members under the proposed settlement, it fails to provide the estimated high and low payments. Those estimates are needed to assist the court in properly determining the fairness of the proposed settlement to the class. If those figures are not available now, they must be provided in the motion for final approval. The allocation of only 20%...

Excerpt: ...ed papers, including the class notice. The release for plaintiff Hamadah and all members of the Contingent Employee Sub-Class releases both PAGA and Class Claims. However, plaintiff Hamadah's Complaint does not assert PAGA claims. The release for plaintiff Tran and all members of the Direct Employee Sub-Class also releases both PAGA and Class Claims. However, plaintiff Tran's Complaint does not assert Class claims. (Settlement Agreement, pp. 10-1...

Excerpt: ...apers. The moving papers do not include a copy of the PAGA letter that was alleged to have been sent to the LWDA on May 2, 2019. The court needs a copy of the letter to verify that the settlement terms are consistent with the notice provided to the LWDA. Plaintiff provides no information as to defendant's potential exposure for the violations alleged by the aggrieved employees or for plaintiff's individual claims. Plaintiff must provide and expla...

Excerpt: ...ides: “Color And/Or Design. The Division has historically taken the position, based upon notes of the Commission, that nurses can wear their white uniforms wherever they work, and the employer, consequently, need not pay for them. Other workers in occupations for which the particular white uniform is generally useable would fall into the same category.” But whether plaintiff's white pants are generally usable in the fast-food or other relevan...

Excerpt: ...Determination of Good Faith Settlement is granted, but only to the extent of CCP §877.6(c), such as to “bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault”. Alpha's evidentiary objections are overruled. The court concludes that the settlement between ...

Excerpt: ...sion of any revised papers, including the class notice. Inexplicably, and despite the need for such information in every motion for settlement approval, and despite the fact that plaintiff's law firm has presented this court with dozens of motions for settlement approval, plaintiff provides no information as to defendant's potential exposure for the violations alleged. Plaintiff must provide the court with information showing what potential outco...

Excerpt: ...mits. However, the Complaint already had been filed in 2018, before MedPro paid its policy limits, and plaintiff's allegations of various contract breaches in paragraph 29 of his Second Amended Complaint include several items that MedPro's motion does not address, precluding summary adjudication. One of those issues, whether MedPro should have tendered its $1 million policy limits sooner, is also a triable issue on plaintiff's bad faith claim, di...

Excerpt: ...438, 449, that the court has the discretion to consider reply evidence on a summary judgment motion as long as the opposing party has notice and an opportunity to respond to the new material, including the opportunity to ask the court for permission to submit responsive evidence or file a sur-reply. As to Issue No. 1, challenging plaintiff's First Cause of Action for Failure to Pay All Overtime and Double Time Wages, defendant has shown that its ...

Excerpt: ... are overruled as to #1-3 and sustained as to #4-6. As to plaintiff's 2nd cause of action for Fraudulent Concealment, defendants have shown that they had no actual knowledge of any of the five alleged false representations contained in ¶75 of the Third Amended Complaint. Plaintiff responds not with contrary relevant facts, but by noting that plaintiff's pleading also alleges constructive knowledge, that defendants should have known the concealed...

Excerpt: ...violations were committed against her, fails because plaintiff's showing on this issue, taking up less than one page in her points and authorities, is inadequately explained and woefully insufficient. Plaintiff vaguely mentions wage statements, but defendants' brief says plaintiff is relying on wage statements from December 2018, long after plaintiff's employment terminated. Defendants also have established triable issues of material fact on this...

Excerpt: ... settlement amount. The reduction from 1/3 to 30% is based on the fact that no additional money is being paid to the class members even though the number of class members has increased by about 30% since the time of preliminary approval and the number of class member workweeks has increased by about 12% since preliminary approval. In addition, the average net recovery by class members is only about $117 (reduced from the $150 estimate at the prel...

Excerpt: ...defendant Hojreh or his family members from coming into contact with the Doe Plaintiffs' family members. CCP §2025.420(b)(12) authorizes a protective order directing “that designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition”. By implication, parties and their counsel may not be excluded, no matter how adversely their presence might affect the deponent. Willoughby ...

Excerpt: ...fect during the pay period and the corresponding number of hours worked at each hourly rate by the employee”. In opposition, plaintiff has not presented any evidence that creates a triable issue of material fact. Plaintiff asserts that overtime payments are improperly listed as two separate line items on her pay stubs. Defendant provides pay stubs which include one line item for the base part of the overtime rate and another line item for the p...

Excerpt: ...submit an amendment to the settlement agreement rather than any amended settlement agreement. Counsel also should provide a red-lined version of any revised papers, including the class notice. Plaintiffs do not provide the court with the estimated high, low or average individual payments to the class members. Those estimates are needed to assist the court in properly determining the fairness of the proposed settlement to the class. The average pa...

Excerpt: ...ive Record are overruled. The citations to the Administrative Record contained in Respondent's and Real Party in Interest's Joint Opposition are consistent with the court's copy of the Administrative Record. In fact, Petitioner's copies of the Administrative Record attached as exhibits to its Objections match the court's copies of the Administrative Record. The City did not create an Environmental Impact Report because of its finding that the pro...

Excerpt: ...C and cross-defendant Stone Interiors, Inc. in the amount of $7,500 was made in good faith within the meaning of CCP §877.6 because it satisfied the weight of the factors set forth in Tech- Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488, 499. Stone Interiors has sufficiently shown that the settlement was within the reasonable range of its proportional share of liability for plaintiff's alleged damages. The settlement is not so f...

Excerpt: ...ed papers, including the class notice. Plaintiffs provide no information as to defendant's potential exposure for the violations alleged. Plaintiffs must provide the court with information showing what potential outcome putative class members and aggrieved employees are giving up in exchange for this settlement. The motion fails to provide the class members' and aggrieved employees' estimated individual recovery under the proposed settlement, inc...

Excerpt: ... settlement amount. The reduction from 1/3 to 30% is based on the fact that no additional money is being paid to the class members even though the number of class members has increased by about 30% since the time of preliminary approval and the number of class member workweeks has increased by about 12% since preliminary approval. In addition, the average net recovery by class members is only about $117 (reduced from the $150 estimate at the prel...

Excerpt: ... judgment, ruling or award in its favor, it argues that the chronology of events shows that its actions were the catalyst to the City rescinding the challenged Ordinances and ceasing operation of the campsite. However, Respondents have shown that neither the filing of this lawsuit nor the letter sent by the Coastal Commission at Petitioner's behest caused the City to rescind the Ordinances and cease the campsite operations. Rather, they were unde...

Excerpt: ...t, i.e., California's labor laws, a significant benefit has been conferred on a large class of persons, i.e., the Porterville employees, the necessity and financial burden of private enforcement are such as to make the award appropriate in this class action and PAGA lawsuit, and the fees should not in the interest of justice be paid out of the recovery in this court's opinion. Plaintiffs also are entitled to an award of reasonable attorneys' fees...

Excerpt: ...d papers, including the class notice. Although the motion provides the $1,853.93 estimated average payment to class members under the proposed settlement, it fails to provide the estimated high and low payments. Those estimates are needed to assist the court in properly determining the fairness of the proposed settlement to the class. If those figures are not available now, they must be provided in the motion for final approval. The allocation of...

Excerpt: ... days before the new hearing date. The Status Conference set for October 2, 2020 also is continued to October 30, 2020 at 10:00 a.m. To hopefully assist the parties in their meet and confer, the court is providing portions of the tentative ruling the court prepared for defendants' Demurrer to Plaintiffs' Complaint, which became moot when plaintiffs filed their First Amended Complaint. The court has not analyzed the merits of the new demurrer to t...

Excerpt: ... interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. Defendant Tucker Advisory Group, Inc.'s Joinders to those motions (ROA #636 and 640) are also granted. Defendant American Equity Investment Life Insurance Company must submit...

Excerpt: ...not have to stop or show anything upon exiting, but even for those who do, it is not uncommon for an employee to exit the property without showing their bag, and they do not face discipline for failing to show their bag, (3) defendant does not require employees to locate a manager or security guard and wait for that person to become available because loss prevention officers are sitting at the desk ready to perform any check that may occur, (4) t...

Excerpt: ... Farm Mutual Automobile Insurance Company's Request for Judicial Notice is granted. Plaintiff's summary judgment motion requests a judgment that plaintiff owes no duty to defend or indemnify under the policy it issued because defendant Auto Network Group concealed critical information and made material misrepresentations in its insurance application, rendering the policy void ab initio, and entitling plaintiff to rescind the policy, and further t...

Excerpt: ...earing, and may request a continuance if arbitration is not yet complete. The court concludes that there exists a valid agreement to arbitrate the individual claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. The FAA applies because defendant is engaged in interstate commerce. Plaintiff concedes that he signed the arbitration agreement and does not argue unconscionability or any other defense...

Excerpt: ...r payment to the 35 additional class members using the formula set forth in Amendment No. 2 to the Stipulation for Settlement, which provides that MicroVention will deposit with CPT Group a sum equal to the total amount of the Individual Settlement Payments for all of the 35 additional employees, using the formula set forth in the Stipulation for Settlement, which shall be added to the Net Settlement Amount and distributed to class members who do...

Excerpt: ...papers, including the class notice. Plaintiff provides no information as to defendant's potential exposure for the violations alleged. Plaintiff must provide the court with information showing what potential outcome putative class members are giving up in exchange for this settlement. Plaintiff also fails to provide the class members' estimated individual recovery under the proposed settlement, including maximum, minimum and average workweeks, an...

Excerpt: ... and is ordered off calendar. California courts allow great liberality at all stages of the proceeding in permitting the amendment of pleadings to resolve cases on their merits. IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal. App. 3d 451, 461. Plaintiffs are not changing the nature of this case, and their new allegations are based on the same nucleus of operative facts. The amendment would not result in any undue prejudice to defendant...

Excerpt: ... subject matter of the action nor likely to lead to the discovery of admissible evidence. If the Landry defendants have discoverable documents, they must produce them (subject to other potential issues). Conversely, if any of the requested categories of documents have never been in the possession, custody or control of the Landry defendants, they can respond to those requests pursuant to CCP §§2031.210(a)(2) and 2031.230 and will have no burden...

Excerpt: ...he three other items, plaintiffs lost their mid-trial motion to reinstate waiting time penalties and their ex parte application to advance the hearing on their motion to reopen the case, but prevailed on their motion to reopen the case. Since under CCP §1033.5(c)(2), costs must be reasonably necessary to the conduct of the litigation, this court will tax the costs for those matters where plaintiffs did not prevail, but allow the $72.20 in costs,...

Excerpt: ...ian v. Renovate America, Inc. (2019) 42 Cal. App. 5th 1062, 1067-70; Espejo v. Southern California Permanente Medical Group (2016) 246 Cal. App. 4th 1047, 1058-62; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal. App. 4th 836, 842-46. Based on these cases, defendants satisfied their burden in their moving papers by simply attaching the contract to their motion. But in plaintiff's opposition, plaintiff took issue with defendants' failure to pro...

Excerpt: ...y judgment motion, defendants could delay bringing that motion and thereby prevent plaintiff from ever taking any class discovery or bringing a motion for class certification. Defendants claim the pending discovery is unduly burdensome, but do not inform the court what the pending discovery is, or if the burden goes to liability discovery, damages discovery, or both. Plaintiff asserts he simply wants raw data, and that defendants' 14-terabyte est...

Excerpt: ...on their motion to reopen the case, but prevailed on their motion to reopen the case. Since under CCP §1033.5(c)(2), costs must be reasonably necessary to the conduct of the litigation, this court will tax the costs for those matters where plaintiffs did not prevail, but allow the $72.20 in costs, dated 6/14/19, where plaintiffs did prevail. Defendant seeks to tax costs of $6,976.30 under Ginez Item 6, Court reporter fees as established by statu...

Excerpt: ...ian v. Renovate America, Inc. (2019) 42 Cal. App. 5th 1062, 1067-70; Espejo v. Southern California Permanente Medical Group (2016) 246 Cal. App. 4th 1047, 1058-62; Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal. App. 4th 836, 842-46. Based on these cases, defendants satisfied their burden in their moving papers by simply attaching the contract to their motion. But in plaintiff's opposition, plaintiff took issue with defendants' failure to pro...

Excerpt: ...y judgment motion, defendants could delay bringing that motion and thereby prevent plaintiff from ever taking any class discovery or bringing a motion for class certification. Defendants claim the pending discovery is unduly burdensome, but do not inform the court what the pending discovery is, or if the burden goes to liability discovery, damages discovery, or both. Plaintiff asserts he simply wants raw data, and that defendants' 14-terabyte est...

Excerpt: ...Judgment ¶¶2 and 3B) and defendant prevailed on five issues (Judgment ¶¶1A, 1B, 3C, 4 and 5). Plaintiffs did not appeal from that ruling, and thus that ruling is final, even though the court of appeal reversed this court's ruling on issue 3C. Even after the reversal, the ruling as a whole was still a mixed bag. Plaintiffs may recover the attorneys' fees they incurred on or before the date the original Judgment was entered, December 28, 2017, ...

Excerpt: ...alespersons exemption applied to defendants' employees, and dismissed the action. The only new allegation plaintiffs point to in their opposition is from the Second Amended Complaint, ¶22 at 10:3-10, in which plaintiff Collins alleges that the supervisors whom defendants sent into the field with salespersons were instructed by defendants to, and did, control all relevant aspects of the salespersons' work, when and how many hours a salesperson wo...

Excerpt: ...rsion of any revised papers, including the Notice of Class Action Settlement (Class Notice). The pages of the Class Notice must be numbered. Section D(1) of the Class Notice should include an estimate of the Net Settlement Amount to be paid to the class, based on the Maximum Settlement Amount and the proposed deductions. The motion fails to provide the class members' estimated individual recovery under the proposed settlement, including the estim...

Excerpt: ...$200 each to plaintiffs Anacia Garcia- Ruiz, Anthony Bai, Anthony Stafford, Aree Said, Daniel Morones, Elisha Fiel, Jimmy Flores, Joanna Marin, Myron Galsim, Norman Garcia, Richard Carlson, Ryan Chan, Tu Bui, John Brian Jensen, Pauline Osofsky and Amal Radwan. There was nothing noteworthy about plaintiffs' attorneys' services to justify an award greater than 1/3 of the gross settlement amount. The court also notes that in the Motion for Prelimina...

Excerpt: ...papers, including the Notice of Settlement (Class Notice). Plaintiff must provide this court with a copy of the written notice he sent to the LWDA of the specific provisions of the Labor Code and IWC Wage Orders alleged to have been violated, so that the court can determine if the settlement is consistent with the letter. The motion fails to provide the class members and aggrieved employees' estimated individual recovery under the proposed settle...

Excerpt: ...ings. The Status Conference set for April 3, 2020 will remain on calendar pending entry of judgment for defendants. Plaintiffs have not alleged any new facts in their Second Amended Complaint that would support a ruling different from the one this court made as to plaintiffs' First Amended Complaint, and have not set forth any facts warranting further leave to amend. Plaintiffs have had three opportunities to allege the causes of action challenge...

Excerpt: ...ides that a plan shall not request reimbursement for the overpayment of a claim unless the plan sends a written request for reimbursement to the provider within 365 days of the date of payment on the overpaid claim. However, Kaiser cites Ogo Associates v. City of Torrance, (1974) 37 Cal. App. 3d 830, 834, for the proposition that the doctrine of exhaustion of administrative remedies has several exceptions, including where the aggrieved party can ...

Excerpt: ... papers, including the class notice. Plaintiffs provide no information as to defendant's potential exposure for the violations alleged. Plaintiffs must provide the court with information showing what potential outcome putative class members and aggrieved employees are giving up in exchange for this settlement. The motion fails to provide the class members and aggrieved employees' estimated individual recovery under the proposed settlement, includ...

Excerpt: ... costs, and this court granted the motion on February 16, 2018 on the ground that there was no prevailing party at trial because plaintiffs prevailed on two issues (Judgment ¶¶2 and 3B) and defendant prevailed on five issues (Judgment ¶¶1A, 1B, 3C, 4 and 5). Plaintiffs did not appeal from that ruling, and thus that ruling is final, even though the court of appeal reversed this court's ruling on issue 3C. Even after the reversal, the ruling as...

Excerpt: ...l Notice is granted. Plaintiff's 1st cause of action, for Breach of Contract for Purchase, now alleges (per CACI 303 and case law) that defendant Anthony failed to do something that the contract required her to do, as well as all other required elements. Plaintiff alleges that Anthony failed to transfer the washer and dryer as required by the Purchase Agreement, paragraph 8B(2) (TAC ¶¶48, 64(f)), that possession of the Corbina Property was deli...

Excerpt: ...(K), for ambulance drivers and attendants. Under that provision, “The daily overtime provision of subsection (A) above shall not apply to ambulance drivers and attendants scheduled for 24-hour shifts of duty who have agreed in writing to exclude from daily time worked not more than three (3) meal periods of not more than one (1) hour each and a regularly scheduled uninterrupted sleeping period of not more than eight (8) hours. The employer shal...

Excerpt: ...010) 559 U.S. 662, 686; Kinecta Alternative Financial Solutions, Inc. v. Superior Court (2012) 205 Cal. App. 4th 506, 510-11. This action is ordered stayed pending completion of the arbitration. The Case Management Conference set for March 20, 2020 is ordered off calendar. A Post-Arbitration Review Hearing is set for July 17, 2020 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a contin...

Excerpt: ...off calendar. The Trial and Pre-Trial Conference are vacated. The court sets a Review Hearing for March 19, 2020 at 1:30 p.m. to ensure the submission of a proposed Judgment. It is settled law in California that an insurer denying or delaying the payment of policy benefits due to the existence of a genuine dispute with its insured as to the amount of the insured's coverage claim is not liable in bad faith. Chateau Chamberay Homeowners Assn. v. As...

Excerpt: ...resentation of CTI and interests adverse to CTI. In the Mesa case Catanzarite is representing the plaintiffs in a derivative action on behalf of CTI, meaning that his representation is for the benefit of CTI. Thus, the same principles that warranted Catanzarite's disqualification in the FinCanna case apply to the Mesa case and compel disqualification here. The pending motion in the FinCanna case is to disqualify Catanzarite from representing thre...

Excerpt: ...g document requests and interrogatories, and defendants ask that these motions be continued to give them a chance to review plaintiffs' supplemental responses. Plaintiffs and the moving party defendants must file declarations or other papers at least two weeks before the new hearing date advising the court if these motions are still going forward, and if so, as to what issues. The tentative ruling is to continue the hearing on plaintiffs' Applica...

Excerpt: ...al. App. 4th 1366, 1375. This motion is brought under CCP §436, which allows a court to: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, or (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Under CCP §437(a), the grounds for a motion to strike must appear on the face of the challenged pleading or from any matter ...

Excerpt: ...nsel also should provide a red-lined version of any revised papers, including the notice to the class. Section 9 of the Notice of Class Action Settlement, entitled, “What can I get from the settlement?”, fails to reference the Workweeks Form or otherwise inform class members that the amount of their proposed distribution is included in the papers, and that they can dispute the workweek information provided. Modification is required. The “Re...

Excerpt: ...ery motions set for hearing on October 18, 2019 are also ordered off calendar. A Post- Arbitration Review Hearing is set for March 20, 2020 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. Defendants' Request for Judicial Notice is granted based on Evidence Code §§452(h) and 453. Plaintiff's Request for Judicial Notice is denied. The co...

Excerpt: ...nsel also should provide a red-lined version of any revised papers, including the notice to the class. This court will not approve a settlement where the Settlement Amount “shall not exceed $294,950”, as provided in ¶5.1 of the Stipulation and Agreement of Settlement (Settlement Agreement). Using that language, the actual settlement amount could be $1. A fixed amount (or an acceptable minimum amount) is required. Section 7 of the Notice of P...

Excerpt: ... stayed pending completion of plaintiff's arbitration with PriorityWorkforce. The Case Management Conference set for today is ordered off calendar. A Post-Arbitration Review Hearing is set for March 13, 2020 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. The court concludes that there exists a valid agreement to arbitrate the claims ass...

Excerpt: ...008) 160 Cal. App. 4th 514, 519. The United States Supreme Court's decision three months ago in The Dutra Group v. Batterton (2019) 139 S. Ct. 2275, compels the conclusion that plaintiff may not recover on her claims under general maritime law for loss of society damages based on the diving injury to her father, in the waters off French Polynesia, for which he and plaintiff's mother already received $7,800,000 in settlement. The Dutra Court held ...

Excerpt: ...so should provide a red-lined version of any revised papers, including the notice to the class. The moving papers are premised on plaintiff having filed a Second Amended Complaint. But even though the court approved the filing of the Second Amended Complaint on November 13, 2018, plaintiff did not file it. Nor did defendant file any response to the unfiled Second Amended Complaint. Thus, the First Amended Complaint is the operative pleading for p...

Excerpt: ...fendants rely heavily on a ruling in a separate case that Mobile Farming Systems, Inc. is not a shareholder of Cultivation Technologies, Inc. However, the plaintiffs in this case are three individuals, not CTI, and the claims in the other lawsuit are not alleged to be identical to the claims in this lawsuit, so the prior ruling is irrelevant to this motion. Under Corp. Code §800(c)(1), defendants must show that there is no reasonable possibility...

Excerpt: ...tion #5 and 46 do not exist. The Declaration of Darren Ashby, defendant's employee, admits in ¶7 that plaintiff's fitness machine was designed to shut down if it detected a “rogue” signal from the customer's Wi-Fi system. This fact creates a triable issue as to whether defendant violated Civil Code §1770(a)(5) by representing that defendant's goods had characteristics, uses or benefits that they did not have when defendant advertised that t...

Excerpt: ...cational Nurses from October 18, 2014 to March 31, 2017. Plaintiff's Motion for Summary Adjudication of Issues is denied in part as to Issue No. 1, in that Labor Code §514 exempts defendants from California's overtime requirements for Registered Nurses from January 1, 2015 to the present, and for Licensed Vocational Nurses from April 1, 2017 to the present, and is granted in part as to Issue No. 1 in that Labor Code §514 does not exempt defenda...

Excerpt: ...ious order as well as what new or different facts, circumstances or law are claimed to be shown. Plaintiffs' Notice of Motion also fails to comply with CRC Rule 3.110 and state the grounds on which this motion is brought. Putting aside the technicalities of a motion for reconsideration, there is still ample justification for the sanctions award. Plaintiffs now contend that defendant Arther Masaoka was in jail from March to June 2019. But the subj...

Excerpt: ...he amount of $2,560, payable within 30 days. The requests which are being granted seek documents that are relevant to the subject matter of the action or are reasonably calculated to lead to the discovery of admissible evidence, and good cause exists to compel their production. Plaintiff's Motion to Compel Defendant Canus Corporation to Provide Further Responses to Plaintiff's Special Interrogatories (Set One) (as to #1 and 2) is granted. Plainti...

Excerpt: ...he state's Department of Housing and Community Development has exclusive jurisdiction over mobile home remodeling projects. Rather, Public Resources Code §30600(a) requires Petitioners to obtain a CDP before performing or undertaking any development in the coastal zone. The statutes on which Petitioners rely apply only to local entities, like cities and counties, but the California Coastal Commission is a statewide entity. Moreover, the Californ...

Excerpt: ...re plaintiffs must make sure they timely file and serve all their papers in this case, and serve them in compliance with the Code of Civil Procedure. Plaintiffs' Complaint does not allege compliance with the Government Claims Act, Gov. Code §§810, et seq., for any of plaintiffs' tort-based causes of action. Attaching a copy of an alleged claim directed to the City of Garden Grove cannot take the place of alleging compliance in the Complaint, es...

Excerpt: ...aintiffs intend to allege both types of fraud, they should have separate causes of action, and clearly allege, as against all three of the defendants, the facts and elements required of each different type of fraud in each of their separate causes of action. Plaintiffs also must allege their fraud claims with the specificity required of such claims. Conclusory allegations will not suffice. The Status Conference set for today is continued to Octob...

Excerpt: ...nsel also should provide a red-lined version of any revised papers, including the notice to the class. The Notice to Class on p. 4 incorrectly states the amount of PAGA penalties to be paid to the LWDA under the Settlement Agreement (¶47) as $10,000 rather than $7,500, and thus incorrectly states the Net Settlement Amount as $637,500 rather than $630,000. The Settlement Agreement defines the Putative Class on p. 3 in ¶24 as starting on August 1...

Excerpt: ...record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest. Defendant's customers have a privacy interest in their contact information. Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360, 368. Defendant has a privacy interest in its business and financial information. Cassidy v. California Bd. of Accountancy (2013) 220 Cal. App. 4th 620, 625...

Excerpt: ...ime limit for bringing a motion to compel further responses to a document demand is 45 days from the service of a verified response. The statutes are ambiguous as to whether their 45-day deadlines are applicable to a response that is made up only of objections and therefore need not be verified. There is no known authority on this point. Motion to Compel Answers, Cal. Practice Guide, Civ. Proc. Before Trial, Ch. 8F-7, §8:1150.8. However, since r...

Excerpt: ...settlement that includes $7,500 being paid to each of seven allegedly aggrieved employees who are not named plaintiffs in this action, like the other six named plaintiffs who have asserted individual claims for relief. Counsel's assertion that those seven people filed arbitration actions against defendant is insufficient to bring those claims into this case without a pleading having been filed on their behalf. Since a PAGA settlement involves one...

Excerpt: ...icy, is not a proper subject for summary adjudication under CCP §437c(f)(1). Defendant Casa Apartments LP's Objections to Declaration of Robert Closson are sustained. As a result, there is no foundation for the relevant insurance policy and application. While there is testimony within the deposition of defendant Sohi confirming that a document marked as Exhibit 15 is the Application for the 2014-2015 policy he signed, Exhibit 15 is not provided ...

Excerpt: ...t identifies an allegedly unfair business practice and potentially seeks restitution of the premium plaintiffs paid, they state a cause of action. Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal. App. 4th 667, 676. Defendant's arguments that go to the merits of plaintiffs' case have no relevance to this kind of motion. Defendant USAA Casualty Ins. Co.'s unopposed Motion to Bifurcate Punitive Damages and Exclude USAA CIC's Financial Condition is g...

Excerpt: ...Hearing is set for January 10, 2020 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. Defendant has shown that there exists a valid written agreement to arbitrate the claims asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. The FAA applies since defendant is engaged in interstate commerce. P...

Excerpt: ...“In computing the time within which service must be made pursuant to this article, there shall be excluded the time during which any of the following conditions existed: The validity of service was the subject of litigation by the parties.” Here, plaintiffs purported to serve defendant Nguyen with the Summons and First Amended Complaint by substituted service on April 28, 2018. Defendant failed to respond, and plaintiffs had his default enter...

Excerpt: ...ters stated within documents. This action is ordered stayed pending completion of the arbitration. The Status Conference set for today is ordered off calendar. A Post-Arbitration Review Hearing is set for December 6, 2019 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing, and may request a continuance if arbitration is not yet complete. Defendants have shown that there exists a valid agreement to arbitrat...

Excerpt: ... add up, and because plaintiffs failed to provide the court with an updated figure for the amount of payroll taxes to be paid from the settlement funds, the court cannot figure this out for itself. Plaintiffs request attorneys' fees of $98,418.26 based on that number being 1/3 of the settlement amount minus the employer's share of payroll taxes to be paid from the settlement funds. Since 1/3 of $300,000 is $100,000, the difference of $1,581.74 su...

Excerpt: ...ear to be taken into consideration in setting counsel's hourly rates in this contingency case, making it improper for this court to use a multiplier based on those same factors. Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal. App. 4th 785, 822. In addition, defendant made a 998 offer for the full purchase price of the vehicle only five days after plaintiff filed this case. For plaintiff to confidently refuse the offer s...