Excerpt: ...epresentatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1021. These elements are typically referred to as (1) ascertainability; (2) numerosity; (3) commonality; (4) typicality; (5) adequacy; and (6) superiority. Capitol People First v. State Dept. of Developmental Services (2007) 155 Cal. App. 4th 676, 681...

Excerpt: ...nia Supreme Court's decision in Adolph v. Uber Technologies, Inc., Case No. S274671. Defendant's Request for Judicial Notice is granted. A Post-Arbitration Review Hearing is set for July 28, 2023 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 PAGA claim ...

Excerpt: ...eable due to unconscionability. The defense of unconscionability requires that the arbitration agreement be both procedurally and substantively unconscionable. De La Torre v. CashCall, Inc. (2018) 5 Cal. 5th 966, 982; Baltazar v. Forever 21, Inc. (2016) 62 Cal. 4th 1237, 1243; Baxter v. Genworth North America Corp. (2017) 16 Cal. App. 5th 713, 723. Procedural unconscionability is present here because the court has weighed the evidence and conclud...

Excerpt: ...e a red-lined version 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 or brief simply asserting that the issues have been resolved. There is an individual...

Excerpt: ... also should provide a red-lined version of any revised papers, 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 or brief that simply asserts the issues have been resolved. Although the motion provides the estimated average payment to cla...

Excerpt: ...l prejudice to Team Makena since it filed a reply that made substantive responses to the arguments raised in the opposition papers. The court overrules Team Makena's objection to, and denies its motion to strike, Lasso's opposition papers. Nonetheless, the court expects all future filings to be timely and compliant with all applicable procedural rules. Team Makena seeks summary adjudication of John Lasso's second cause of action for breach of con...

Excerpt: ...e, pursuant to Gov. Code §70617(e)(2). Defendant Fusion is ordered to give notice of the ruling unless notice is waived. Plaintiff Robert L. Crysel's (1) Motion to Compel Further Response to Special Interrogatories, Set 2, Propounded on Defendant Thomas W. Savino and Request for Sanctions, (2) Motion to Compel Further Response to Special Interrogatories, Set 1, Propounded on Defendant Tucker Advisory Group, Inc. and Request for Sanctions, and (3...

Excerpt: ...ement. Counsel also should provide a red-lined version of any revised papers, 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 or brief that simply asserts the issues have been resolved. The motion fails to provide the court with the esti...

Excerpt: ...lso should provide a red-lined version of any revised papers, 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 or brief that simply asserts the issues have been resolved. There is no definition in either the settlement agreement or the cl...

Excerpt: ...nagement Conference set for January 13, 2023 is ordered off calendar. A Post- Arbitration Review Hearing is set for May 26, 2023 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 by Stipulation and Order before the hearing or in their Joint Status Report if arbitration is not yet complete. The court concludes that there exists a valid agreement to arbitrate the individual cl...

Excerpt: ...tions #1 and 3 to the Declaration of Carenna Vargas are overruled, #2 is sustained as to the first sentence and overruled as to the second sentence, and #4 is overruled as to the first sentence and sustained as to the second sentence. Defendant's Specific Objections to the Declaration of Eric Yaeckel are sustained in full. The case of Gamboa v. Northeast Community Clinic (2021) 72 Cal. App. 5th 158, 165, compels the denial of this motion. There, ...

Excerpt: ...ons why the attendance of each would be inconvenient. Peiser v. Mettler (1958) 50 Cal. 2d 594, 607. Defendant's moving declarations simply provide, in ¶4 of attorney Lee's Declaration, “I anticipate that Plaintiff will require depositions from witnesses and/or experts that Defendant intends to call to trial. The depositions will require several trips to Fresno County to complete the several depositions of the following witnesses and/or experts...

Excerpt: ... effective, and that the purported opt-out by Sarah A. Villar was untimely and thus not effective. The Settlement Agreement provided in Section III(E)(3)(c), “Class Members who wish to exclude themselves from the Settlement must mail to the Settlement Administrator postmarked not later than forty-five (45) calendar days after the Settlement Administrator mails the Class Notice Packets, a signed Election Not to Participate in Settlement.” The ...

Excerpt: ..., Inc., Case No. S274671. The Status Conference set for November 18, 2022 is ordered off calendar. A Post-Arbitration Review Hearing is set for May 26, 2023 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 asserted by plaintiff and that no grounds exist to bar...

Excerpt: ...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 asserted by plaintiff and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. Plaintiff 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. Pl...

Excerpt: ...tion and pending the California Supreme Court's decision in Adolph v. Uber Technologies, Inc., Case No. S274671. Plaintiff's Request for Judicial Notice is denied as moot. The Case Management Conference set for November 18, 2022 is ordered off calendar. A Post-Arbitration Review Hearing is set for April 6, 2023 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...

Excerpt: ...tters stated in those documents. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264- 65; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375. The court declines to rule on plaintiffs' evidentiary objections because the court does not deem such evidence material to its disposition of the motion under CCP §437c(q). There are triable issues of fact as to whether plaintiffs agreed to the release, and as ...

Excerpt: .... Aller's efforts resulted in the enforcement of an important right affecting the public interest, a significant benefit was conferred on a large class of persons, the necessity and financial burden of private enforcement were such as to make the award appropriate, and such fees and costs should not in the interest of justice be paid out of the recovery by the class. The gross settlement amount in this case increased from $1,750,000 to $2,254,280...

Excerpt: ...nc.'s Demurrer to Third Amended Complaint is sustained without leave to amend. All four of the Requests for Judicial Notice are granted. However, while courts may take judicial notice of public records and their dates, parties and legally operative language, they do not accept the truth of matters stated in those documents. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264-65; Herrera v. Deutsche Bank National Trust Co. (2011) ...

Excerpt: ...d version of any revised papers, 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 motion does not provide the court with the estimated high and low payments to be paid to class memb...

Excerpt: ... any revised papers, 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. Plaintiff did not provide the court with a copy of his separate individual settlement agreement, referenced in ¶28...

Excerpt: ...that the court deems material to its disposition of the motion. CCP §437c(q). SSMF moved for summary judgment on the ground that plaintiff Richard Carlson lacked standing. Since the filing of this motion, the complaint has been amended to replace Carlson with another beneficiary of the Trust, Rohinton T. Aresh. Since Aresh and Carlson are similarly situated as beneficiaries of the Trust, the analysis is the same. The Maryland Code, which both si...

Excerpt: ...t. Counsel also should provide a red-lined version of any revised papers, 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 or brief that simply asserts the issues have been resolved. The motion does not provide the court with the estimate...

Excerpt: ...sed papers, 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 or brief that simply asserts the issues have been resolved. Plaintiffs' 35 pages of moving points and authorities exceed not just the usual 15-page limit of CRC Rule 3.1113(d), ...

Excerpt: ...t Agreement, all claims for civil penalties under PAGA that were asserted or could have been asserted based on the facts alleged in the Second Amended Complaint, including the specific claims set forth in subsections (a) through (h) of Section 2.2 of the Settlement Agreement. It is within the extent allowed by law to permit the release of the claims for (e) failure to reimburse necessary business- related expenses and (g) failure to pay all veste...

Excerpt: ...age was 181,892 unique Acorn accounts. However, the list provided to the administrator included 232,199 accounts. Plaintiff must provide an explanation for the substantial increase in the number of accounts. The Administrator cleansed the list of accounts to remove duplicates and otherwise remove purportedly invalid e-mail addresses, and so notice was sent for only 218,684 of those accounts, and only 213,035 successfully received the notice, as t...

Excerpt: ...ployee Handbook” and agreed to “abide by these rules during my employment”. (However, defendant did not provide the court with the actual handbook that allegedly contains the arbitration agreement to show that plaintiff in fact received the arbitration agreement on June 26, 2017.) On July 3, 2017, after plaintiff's week of training, plaintiff signed the arbitration agreement in the employee handbook. Around July 26, 2017, plaintiff signed a...

Excerpt: ...ng of a redacted version of the document, attached as Exhibit A to the Declaration of Tyler J. Scott in support of this motion. It is further ordered that ROA 1012 be sealed upon the filing of a redacted version of the document, attached as Exhibit B to the Scott Declaration. It is further ordered that ROA 950 be sealed upon the filing of a redacted version of the document, attached as Exhibit C to the Scott Declaration. Defendant must file the r...

Excerpt: ...ial Notice are denied as irrelevant. Zucchet v. Galardi (2014) 229 Cal. App. 4th 1466, 1474 n.5. Plaintiff's evidentiary objections were neither numbered consecutively nor accompanied by a proposed order. As such, they did not comply with CRC Rule 3.1354(b) and (c) and the court declines to rule on them. Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal. App. 4th 1, 8. Under CCP §437c(f)(1), a party may bring a motion for summary ad...

Excerpt: ...ployee Handbook” and agreed to “abide by these rules during my employment”. (However, defendant did not provide the court with the actual handbook that allegedly contains the arbitration agreement to show that plaintiff in fact received the arbitration agreement on June 26, 2017.) On July 3, 2017, after plaintiff's week of training, plaintiff signed the arbitration agreement in the employee handbook. Around July 26, 2017, plaintiff signed a...

Excerpt: ...records under Evidence Code §§452(d). However, while courts may take judicial notice of court records and their dates, parties and legally operative language, they do not accept the truth of matters stated in those documents. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264-65; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375. NMAC has shown good cause for a subsequent deposition of Michael Kah...

Excerpt: ...version of any revised papers, 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 or brief that simply asserts the issues have been resolved. The moving points and authorities are 28 pages long, far exceeding the 15-page limit of CRC Rule 3...

Excerpt: ...t apply to any class member, and defendant has provided evidence raising triable issues of fact as to this affirmative defense. Under the Industrial Welfare Commission's orders concerning employees in the mercantile industry, “the overtime provisions do not apply when more than one half the employee's compensation represents commissions”. Keyes Motors, Inc. v. Division of Lab. Standards Enforcement (1987) 197 Cal. App. 3d 557, 561. Specifical...

Excerpt: ...tract or Unjust Enrichment, was adopted recently, in November 2019. The instruction provides that a plaintiff “is entitled to restitution if it proves that defendant knew or had reason to know that [specify act constituting unjust enrichment]”. The Directions for Use state, “The elements of a claim for unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. (Professional Tax Appeal v. Kenned...

Excerpt: ...referee, who will be appointed to hear and determine any and all discovery motions and disputes relevant to discovery in this action. CCP §§639-645.1 and CRC Rules 3.920-3.932 will apply to the reference. The court concludes that disputes exist between the parties as to multiple discovery matters and that the interests of justice and efficiency will be best served by the appointment of a discovery referee to hear and determine the discovery mat...

Excerpt: ...932 will apply to the reference. The court concludes that disputes exist between the parties as to multiple discovery matters and that the interests of justice and efficiency will be best served by the appointment of a discovery referee to hear and determine the discovery matters and make recommendations to the court on them. Pursuant to CCP §639(a)(5), the court specifically finds that the following exceptional circumstances exist in this case:...

Excerpt: ... jointly and severally, in the amount of $1,720, payable within 30 days. Defendants' request for monetary sanctions against plaintiff is denied. Plaintiff first noticed PMK depositions for defendants on December 4, 2018, over 3 1/2 years ago. Plaintiff noticed the depositions for January 15-17, 2019. Defendants took issue with the dates, but after several attempts to meet and confer, none of the depositions went forward. On April 27, 2020, plaint...

Excerpt: ...stitution if it proves that defendant knew or had reason to know that [specify act constituting unjust enrichment]”. The Directions for Use state, “The elements of a claim for unjust enrichment are receipt of a benefit and unjust retention of the benefit at the expense of another. (Professional Tax Appeal v. Kennedy-Wilson Holdings, Inc. (2018) 29 Cal. App. 5th 230, 238-242.)” The Sources and Authority for the instruction quote the Professi...

Excerpt: ... papers, 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 or brief that simply asserts the issues have been resolved. Paragraph 13 of the settlement agreement defines the Effective Date to require approval of the settlement by the Superio...

Excerpt: ... of any revised papers, 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 or brief that simply asserts the issues have been resolved. Counsel has identified the estimated average and high payments to class members under the proposed settle...

Excerpt: ...dant's Motion to Seal Certain Portions of Plaintiff Heritage Fields El Toro, LLC's Oppositions to AIG Specialty's Motions in Limine is granted as to plaintiff's Opposition to Motion in Limine #5 and 6, but is denied as to plaintiff's Opposition to Motion in Limine #2. Contrary to the assertion in defendant's Notice of Motion, pages 17-19 of Exhibit 1 to the Declaration of Jeffery A. Kiburtz in Support of Heritage Fields' Opposition to AIG Special...

Excerpt: ...hat all of the requested documents are privileged, or that she inspected all of the potentially responsive documents to establish they are all privileged, and thus Peck has not established good cause for the protective order she seeks. Snell and Grad's opposition request for sanctions is granted against Judith Peck in the amount of $6,750, payable within 30 days. Peck's motion lacks substantial justification, and no other circumstances make the i...

Excerpt: ...ontract at issue was entered into. In its opposition papers, plaintiff explains that it made this assertion because plaintiff was the last party to sign the release, and that it did so in Orange County. Plaintiff cites Braunstein v. Superior Court (1964) 225 Cal. App. 2d 691, 696, in which the court held that the place of making a contract is the place where the last act necessary for its validity was done. Defendant responds that venue is proper...

Excerpt: ...ion is not supported by the findings, or the findings are not supported by the evidence. 11 Lagunita, LLC vs. California Coastal Commission (2020) 58 Cal. App. 5th 904, 918. The agency is the finder of fact, and the court must indulge all reasonable inferences from the evidence that would support the agency's determinations, resolve all conflicts in the evidence in favor of the agency's decision, and presume the correctness of the decision. Save ...

Excerpt: ...t 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 Rule 9.40(e) since they have not shown that they paid the $50 fee to the State Bar of California with the copy of the application and the notice of hearing that must be served on the State Bar. Defendant Kelcourt Plastics, Inc.'s Demurrer...

Excerpt: ...as established the criteria set forth in CRC Rule 2.550(d). The court expressly finds that the facts establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding 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 restric...

Excerpt: ...rties 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 that he signed the arbitration agreement, or that the agreement applies to all of his claims ...

Excerpt: ...revised papers, 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 or brief that simply asserts the issues have been resolved. The parties failed to file a Notice of Related Case, even though defense counsel here also represents the same de...

Excerpt: ...ttlement agreement. Counsel also must provide a red-lined version of any revised papers. Because a PAGA settlement binds the State and forecloses other employees' PAGA actions that are based on the claims being settled, counsel must disclose whether there are any other pending class action, individual, or PAGA lawsuits, whether filed with a court or in the pre-filing LWDA waiting period, that could be affected by this settlement. The motion fails...

Excerpt: ...o Second Amended Complaint (ROA #253), and (3) Defendant Wolfgang F. Hahn's Demurrer to Plaintiff's Second Amended Complaint, are all sustained with leave to amend until 30 days after the court rules on plaintiff's Motion for Leave to Amend Plaintiffs' Complaint, set for hearing on May 27, 2022. All parties' Requests for Judicial Notice are granted. Plaintiff Richard Carlson has split his causes of action to the extent he asserts in both this cas...