Excerpt: ...at hearing (which led to defendant serving supplemental responses) before deciding whether to file this motion. Defendant's request for monetary sanctions is denied. Defendant's argument that CCP §2030.090(c) precluded plaintiff from filing this motion pending defendant's Motion for Protective Order is not supported by the statute. The tentative ruling is to continue the hearing on Plaintiff's Motion to Compel Defendant's Further Response to Pla...

Excerpt: ...revised papers, including the class notice. Even though the Settlement Agreement provides in ¶34(d) on pp. 12-13 that “Settlement Class Members may also have a right to have their objections heard at the Final Approval/Settlement Fairness Hearing”, the Class Notice on p. 5 in §13 informs class members that written objections are required. The Class Notice must be amended to inform class members that either an objection may be in writing, or...

Excerpt: ...revised papers, including the class notice. The Settlement Agreement attached to the Declaration of Reuben D. Nathan does not reflect signatures, but only an electronic “/s/” for each signer. Plaintiff must submit a copy of the signature page with copies of actual signatures for the court's review. For final approval, the three plaintiff law firms presumably sharing in the attorneys' fees award must identify the proposed split of their attorn...

Excerpt: ...h is consistent with the allegations in the operative pleading, the LWDA letters and the Settlement Agreement release of the PAGA claims. Dates of employment must be part of the definition. Dates for released claims also must be specified in the Settlement Agreement. Plaintiff must then confirm the number of aggrieved employees under that definition. The Gutierrez Declaration in ¶¶5-7 provides information that could lead to a calculation of the...

Excerpt: ...any revised papers, including the class notice. Since plaintiff asserts that he is unable to provide the estimated high and low payments to class members under the proposed settlement, he must provide those figures in his Motion for Final Approval. Those figures are needed to assist the court in properly determining the fairness of the proposed settlement to the class. Since the settlement calls for the employer's share of payroll taxes to come o...

Excerpt: ...ible retaliation or other detriment to plaintiff as the result of serving as the named plaintiff. The court concludes that the $161,571.43 class action settlement, as approved, is fair, adequate and reasonable, and approves the following specific awards: ● $53,857.14 to plaintiff's counsel for plaintiff's attorneys' fees, as requested; ● $8,797.52 to plaintiff's counsel for plaintiff's attorney costs, as requested; ● $2,500.00 to plaintiff ...

Excerpt: ...s filed on October 30, 2019, but which was not part of the document filed with the court. (Nor were Exhibits 4 or 7.) The court has a copy of Exhibit 9 from the courtesy copy binder plaintiffs submitted, and defendant appears to have the declaration since defendant referenced it in its opposition. Plaintiffs may not recover their costs of suit for the trial. Plaintiffs filed a Memorandum of Costs, defendant moved to tax costs, this court granted ...

Excerpt: ...aintiff's Request for Judicial Notice is granted. The Euland Parties' Request for Judicial Notice is granted as to #2-8 and 10-14, and is denied as to #1 and 9. However, when the court takes judicial notice of documents, it does not accept the truth of matters stated in those documents. Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375. Petitioner/Plaintiff's Second Cause of Action alleging CEQA violations is barred ...

Excerpt: ...ere, Jose de Jesus Gutierrez Mercado (“Mercado”), was a class action plaintiff, not just an individual plaintiff. Yet Gutierrez has not filed any reply to the opposition, let alone anything at all addressing defendants' important factual assertion. The court concludes that when Gutierrez received the notice of class action settlement in Mercado's case, he should have sent it to his lawyer or discussed it with him. In fact, from the very outse...

Excerpt: ...l on this motion, that all three plaintiffs reside out of state or are foreign corporations, and that there is a reasonable possibility that defendant will obtain judgment in this action. However, defendant has failed to provide an affidavit that sets forth the nature and amount of the costs and attorneys' fees defendant has incurred and expects to incur by the conclusion of the action. Defendant's Memorandum of Points and Authorities cites Monks...

Excerpt: ...uling denying defendants' prior Motion for Judgment on the Pleadings, within the meaning of CCP §1008. However, at the hearing the court modified its tentative ruling to note that defendants' original motion was for judgment on the pleadings as to the entire First Amended Complaint, not as to its separate causes of action. Since the 1st cause of action for the recovery of expense reimbursements was not subject to the outside salespersons exempti...

Excerpt: ...ication. In Flatt v. Superior Court (1994) 9 Cal. 4th 275, the California Supreme Court held, “Courts and ethical codes alike prohibit an attorney from simultaneously representing two client adversaries, even where the substance of the representations are unrelated.” Id. at 285. The court added, “Indeed, in all but a few instances, the rule of disqualification in simultaneous representation cases is a per se or automatic one.” Id. at 284....

Excerpt: ...entation or fraudulent omission in connection with the purchase or sale of a covered security. Nor does plaintiff allege that the fees defendants charged and/or caused plaintiff to incur drained plaintiff's investments. Plaintiff's First Cause of Action for Violation of the Consumer Legal Remedies Act alleges that defendants provided services within the meaning of the Act apart from providing software, including defendants providing spare change ...

Excerpt: ...papers, including the proposed letter to the aggrieved employees. The Status Conference set for January 10, 2020 is ordered off calendar. Since the amount of the proposed settlement is so small, as to both the total settlement and the average aggrieved employee's individual payment, the court requires more details as to the “data, information and documents produced by defendant” that led to the settlement. Plaintiff must inform this court as ...

Excerpt: ...:00 a.m. Although plaintiffs' First Amended Complaint alleges compliance with the Government Claims Act, plaintiffs' compliance was untimely. Gov. Code §911.2 requires that a claim be presented not later than one year after the accrual of the cause of action. Plaintiffs allege that on May 23, 2016 they received notice from defendant M.A.S. that their tenancy would be terminated on October 31, 2016, and OCTA forced the car wash off the premises o...

Excerpt: ... 1366, 1375. Defendant's Objections to the Declaration of Aparajit Bhowmik are sustained. A Motion for Judgment on the Pleadings must be based on matters that appear on the face of the challenged pleading or that the court must judicially notice. CCP §438(d). Here, however, the court cannot establish through plaintiff's First Amended Complaint and/or defendant's judicially-noticeable documents that plaintiff did not opt out of the settlement in ...

Excerpt: ...Judicial Notice is granted. Defendant's Reply Request for Judicial Notice is denied. Plaintiff's employment with defendant terminated on April 10, 2012. The statute of limitations for a PAGA claim is one year. CCP §340(a). Before filing suit, a plaintiff must give notice to the LWDA. Labor Code §2699.3(a)(1)(A). Plaintiff did not provide the LWDA with notice of his claim for unpaid business expenses in violation of Labor Code §2802 until Novem...

Excerpt: ... revised papers, including the notice to the class. The motion fails to provide the estimated high and low payments to be paid to members of both subclasses based on their workweeks and subclass. The settlement agreement and the notice to class require written objections and do not allow class members to speak at the Final Approval Hearing unless they file and serve a written objection, but that is overly restrictive. The settlement agreement and...

Excerpt: ...allege any actual conduct by defendants that could constitute substantial assistance or encouragement. Plaintiff argues that her pleading alleges that the demurring defendants substantially assisted Probst's breaches of fiduciary duty by not insisting that CTI take control of the MFS trailers and grow containers. In fact, the First Amended Complaint does not allege such facts, either in paragraph 44(d) as claimed, or elsewhere. In any case, that ...

Excerpt: ... Counsel also should provide a red-lined version of any revised papers, including the notice to the class. 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 pr...

Excerpt: ...ser fails to allege that it complied with the notice requirement of 28 Cal. Code Regs. tit. 28, §1300.71(b)(5), which provides 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. If the provider contests the notice, the provisions of Cal. Code Regs. tit. 28 §1300.71(d)(3)-(4) apply. The p...

Excerpt: ...lso should provide a red-lined version of any revised papers, including the notice to the class. • The size of the class is unclear. From the Employer Defendant's information, 107 notices were mailed. However, it is believed that not all of those persons are actually class members because Cashiers and Managers were included in the list but do not qualify as “Car Wash Workers” under the statute. Mandel Dec. ¶6. It is also proposed that the ...

Excerpt: ...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 enforcement of the agreement. CCP §1281.2. However, based on Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 386-88, defendant may not compel plaintiff to arbitrate his PAGA ...

Excerpt: ... Motion for Judgment on the Pleadings within the meaning of CCP §1008. Defendants originally made a Motion for Judgment on the Pleadings, including on the second cause of action, the motion was denied, and defendants now bring a second motion seeking the same relief. However, defendants have failed to comply with CCP §1008. Defendants did not file this motion within ten days of service of notice of the July 5, 2019 order, and defendants have no...

Excerpt: ...t plaintiff worked for defendant for only about two months. In addition, the settlement calls for plaintiff to be fully paid out of the first installment. The court concludes that the $300,000 class action settlement, as approved, is fair, adequate and reasonable, and approves the following specific awards: ● $100,000.00 to plaintiff's counsel for plaintiff's attorneys' fees, as requested; ● $6,532.14 to plaintiff's counsel for plaintiff's at...

Excerpt: ...ded settlement agreement. Counsel also must provide a red-lined version of any revised papers, including the proposed letter to the aggrieved employees. Although the settlement agreement provides in ¶33 that uncashed checks will be deposited in the California Unclaimed Property Fund in the name of the employees, the cover letter to be sent with the aggrieved employees' PAGA checks provides that any uncashed checks will go to the California Depar...

Excerpt: ... of efforts and inefficiency. Although plaintiff has cited cases authorizing this court to award a fee multiplier to the lodestar, this court will not do so, just like 40 of the 44 courts did not do so in the 44 cases cited by plaintiff in paragraphs 34-77 of his attorney's declaration. Plaintiff's counsel's contingency and payment delay risks appear to be taken into consideration in setting counsel's hourly rates in this contingency case, making...

Excerpt: ...al, but plaintiff alleges in ¶38 that due to the taping of the sprinkler heads the fire sprinkler covers would not open as required during a fire, and the sprinklers would not deploy to put out the fire, creating a serious safety issue that put tenants and visitors at risk. Defendant argues plaintiff fails to allege that defendant had knowledge of the concealed defects, but plaintiff alleges in ¶97 that defendant knew of the material fire sprin...

Excerpt: ...t approval of a PAGA or Class Action settlement files the settlement agreement, and the parties must do so here as well. If the parties want to file the settlement agreement conditionally under seal, and file a Motion to Seal, they are free to do so, and the court will consider the motion pursuant to CRC Rules 2.550 and 2.551. The court notes that it does not appear that the individual settlement amount is confidential, because the motion disclos...

Excerpt: ...s a 50% shareholder of CSS. Thus, even if all this litigation had never been filed, Wardak would have been free to invoke the involuntary dissolution procedures of Corp. Code §1900(a). This ruling is without prejudice to (1) a petition under Corp. Code §1904 asking the court to take jurisdiction over the voluntary winding-up proceeding if it appears necessary for the protection of any parties in interest, or (2) defendants, or any other appropr...

Excerpt: ...ut of having their personal information disclosed in response to a mutually agreeable (or court- ordered) Belaire-West notice, whose cost defendant fully bears. In addition, defendant's supplemental response to Special Interrogatory #30 may be limited to “AGGRIEVED EMPLOYEES” instead of “PERSONS”, as defined in plaintiff's Special Interrogatories. Plaintiff indicated a willingness to have a Belaire-West notice sent in connection with the ...

Excerpt: ...ecord. Patel's claims are subject to conflict preemption under ERISA. In Port Medical Wellness, Inc. v. Connecticut General Life Ins. Co. (2018) 24 Cal. App. 5th 153, the court summarized the ERISA preemption doctrine in the context applicable to this case: “Stated simply, these cases (and others cited therein) stand generally for the proposition that a health care provider that treats a beneficiary of a welfare benefit plan may assert a claim ...

Excerpt: ...has considered plaintiff's argument, but believes that some of defendants' employees could implement the proposed new employee instructions in a way that would violate Civil Code §1747.08 (and thus also sections 1.2 and 1.3 of the Settlement Agreement). The last sentence of the last paragraph is not clear enough to be sure of a consistently proper interpretation, and must be modified to clearly instruct defendants' employees to comply with the l...

Excerpt: ...should provide a red-lined version of any revised papers, including the notice to the class. Counsel must explain why the parties are using April 1, 2014 as the start date for both subclasses, since the pleadings used October 18, 2013 as the start date. Counsel also must explain why the parties are using October 31, 2018, rather than the date of preliminary approval or some other later date, as the end-date for the Commissions/Break Class. The se...

Excerpt: ...istrator's fee is $20,000 (P's & A's at 6:26, Settlement Agreement at p. 4, proposed Order at 2:22) or $12,000 (P's & A's at 7:13, Nordrehaug declaration at 4:2). The distribution numbers do not add up. The Settlement Agreement on p. 3, in Section III(4), says the allocations to be paid from the $450,000 gross settlement amount are the $168,000 PAGA payment, $150,000 in attorneys' fees, $12,000 in attorney costs, and not to exceed $20,000 for the...

Excerpt: ...f nebulous evidentiary objections, a fair sample of which appear to be meritless, the court can properly overrule, and a reviewing court ignore, all of the objections on the ground that they constitute oppression of the opposing party and an imposition on the resources of the court”. Plaintiff's Objection #24, 26-28, 38-39, 41, 58 and 61, which object to statements of direct, personal knowledge, which the court can address without having to dig...

Excerpt: ...h the court finds acceptable), in which case defendant must provide supplemental responses to #2 and 4 within 90 days only for employees who do not respond that they do not want their information shared, and must provide a supplemental response to #3 within 90 days only for employees who respond that they intend to contest their alleged obligation to arbitrate this dispute. The supplemental responses will be pursuant to a protective order whereby...

Excerpt: ...er than two weeks before the next hearing date. Counsel should 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 notice to the class. The settlement agreement and Workweek Dispute Form provide that the Administrator will resolve any workweek disputes. The documents should instead reflect that the court will resolve any ...

Excerpt: ...s denied. Patch's Request for Judicial Notice is granted. Patch must file an Answer within 10 days. NVSI now adequately alleges misrepresentations of fact by Patch and how a representation of fact by Patch was false. NVSI also now adequately alleges the unjust enrichment of Patch. NVSI sufficiently alleges facts that would constitute fraud, malice or oppression, including despicable conduct, as defined in Civil Code §3294, potentially justifying...

Excerpt: ...ed case has gone forward, and if its outcome affects this case. In the case of In re Anna S. (2010) 180 Cal. App. 4th 1489, the court held: “The effect of an unqualified reversal (‘the judgment is reversed') is to vacate the judgment, and to leave the case at large for further proceedings as if it had never been tried, and as if no judgment had ever been rendered. Generally an unqualified reversal has the effect of remanding the case for a ne...

Excerpt: ...Homeowners Association (13th cause of action) are sustained with 30 days leave to amend based on the failure of each challenged cause of action to state facts sufficient to constitute a cause of action. Defendants Professional Community Management of California, Inc. and Cabo Del Mar Homeowners Association's Motion to Strike is deemed moot and off calendar by virtue of their demurrer being sustained with leave to amend. Defendants AMC Inc. dba St...

Excerpt: ...the factual issue of whether the clothing Nike required its employees to wear constitutes a uniform or whether it was suitable for everyday wear and therefore a fringe benefit under federal law. Defendants' arguments and authority are based on Nike legally withholding taxes from its employees, rather than a situation where withholding was not legally authorized. Plaintiff arguably may seek restitution from Nike for the taxes employees had to pay ...

Excerpt: ...so should provide a red-lined version of any revised papers, including the notice to the class. All such documents must have numbered pages, unlike the Addendum to Class Action Settlement filed for this hearing. In addressing Section 14.2 of the settlement agreement, which provides that the attorneys' fees award will include work done by past class counsel, plaintiff explained work done by and payment to The Cooper Law Firm, but nothing as toHaeg...

Excerpt: ...so should provide a red-lined version of any revised papers, including the notice to the class. The moving points and authorities are 22 pages long, far exceeding the 15-page limit of CRC Rule 3.1113(d) and even the 20-page limit of CRC Rule 3.764(c)(2) for motions to certify a class, which usually are contested. The court expressly orders that plaintiff's points and authorities in support of the Motion for Final Approval be limited to no more th...

Excerpt: ...an amendment to the settlement agreement rather than any amended settlement agreement. Counsel also should provide a red-lined version of any revised papers. Plaintiff requests the dismissal of this action, but CRC Rule 3.769(h) provides that when a court approves a class action settlement, the court must make and enter judgment. This Rule suggests that in a PAGA case a Judgment should also be entered, consistent with class action settlements, an...

Excerpt: ...d new employee instructions appear to violate Civil Code §1747.08 and are contrary to sections 1.2 and 1.3 of the Settlement Agreement. The last paragraph says that employees may not ask a customer for personal identifying information until after completing the transaction. This language suggests that employees may ask all customers for personal identifying information right after completing each transaction, even if there is no legal justificat...

Excerpt: ..., i.e., factors that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses, and the interests of the public in retaining the action for trial in California, i.e., factors which include avoidance of overburdening local courts with ...

Excerpt: ... action. The Suns may not have the court summarily adjudicate whether documents were forged, or whether real property interests are subject to certain liens, both of which constitute the four issues the Suns seek adjudicated. For example, two of the relevant causes of action seek declarations that trust deeds were signed by other parties, yet this motion addresses only if reconveyances were signed by the Suns. In addition, the Separate Statement ...

Excerpt: ... Josiah N. Drew because he does not have any relevant personal knowledge about the events at issue in this case, and any second-hand information he has is protected by the attorney-client, attorney work product and/or mediation privileges. Drew is an in-house attorney for defendant and is responsible for managing defense counsel in the defense of this lawsuit. Plaintiff even admits in her opposition that Drew acted as defendant's main point of co...

Excerpt: ...greement. Counsel also must provide a red-lined version of any revised papers, including the proposed letter to the aggrieved employees. The moving points and authorities are not numbered, they are 33 pages long, far exceeding the 15-page limit of CRC Rule 3.1113(d) and even the 20-page limit of CRC Rule 3.764(c)(2) for motions to certify a class, which usually are contested, and they fail to include a table of contents or table of authorities, a...

Excerpt: ... §340(a). The doctrine of equitable tolling does not apply in this case (although the doctrine might apply in some other PAGA case). A PAGA plaintiff may recover for violations that continue through the date of trial if they were properly included in the PAGA letter and the Complaint. PAGA cases are subject to a one-year statute of limitations. Brown v. Ralphs Grocery Co. (2018) 28 Cal. App. 5th 824, 839. This PAGA case is an action on a statute...

Excerpt: ...o should provide a red-lined version of any revised papers, including the notice to the class. The papers are ambiguous as to whether the attorneys' fees and costs, enhancement, and administrator fees are intended to be paid out of the $500,000 (Settlement Agreement at 21:19-21 and 22:9-11) or in addition to the $500,000 (P's & A's at 2:7-9 and 5:12-16; Notice to Class, Section II, para. 3). Clarification is required. Section 14.2 of the settleme...

Excerpt: ...agreement. (Counsel disregarded this direction in the supplemental papers for this hearing.) Counsel also should provide a red-lined version of any revised papers, including the notice to the class. The amended settlement agreement defines the class in Section I, para. 4 (on p. 2) to cover employees and independent contractors who worked through March 18, 2017, but the revised notice to class (on p. 1) reflects the end-date as the date of prelimi...

Excerpt: ...rticipating class members based on 5,524 total class members and 39 opt-outs, but 5,524-39 = 5,485, not 5,487. An explanation is required. Delivery of uncashed checks to the State of California Industrial Relations' Unpaid Wage Fund in the names of the respective payees appears to no longer be viable, since it is the court's understanding that the Department of Industrial Relations is no longer accepting funds from Settlement Administrators. Both...

Excerpt: ...ounsel also should provide a red-lined version of any revised papers. The Arbitration Review Hearing set for March 29, 2019 is ordered off calendar. The Settlement Agreement (p. 3) estimates the size of the group of other aggrieved employees at 120 through February 20, 2018. Plaintiff must provide the updated, correct number of other aggrieved employees. The moving papers inconsistently identify the Administrator as CPT Group, Inc. (Settlement Ag...

Excerpt: ...in California. In re Automobile Antitrust Cases I & II (2005) 135 Cal. App. 4th 100, 110. However, plaintiffs have justified neither general nor specific jurisdiction over this former Delaware LLC that was headquartered in New York and simply owned Illinois real estate, while having no California presence. Defendants Etienne Locoh, Tom Rini, American Recovery Property OP, LP, Sovereign Capital Management Group, Inc., Northwood Investors, LLC, and...

Excerpt: ...eritless, the court can properly overrule, and a reviewing court ignore, all of the objections on the ground that they constitute oppression of the opposing party and an imposition on the resources of the court”. Defendants' voluminous objections include several as to materiality and relevance that are meritless, and several as “repetitive”, which is not a proper basis for objecting. Triable issues of fact exist as follows: - whether Safeco...

Excerpt: ...ve to amend. Patch's Request for Judicial Notice is denied. NVSI fails to adequately allege any misrepresentation of fact by Patch or how any representation of fact by Patch was false. Nor does NVSI adequately allege any unjust enrichment of Patch. Civil conspiracy is not an actionable cause of action on its own but requires an underlying civil wrong. Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 510-11. NVSI does not...

Excerpt: ...urt will not enforce the PAGA waiver. This action is ordered stayed pending completion of the arbitration. The Case Management Conference set for today is ordered off calendar. A Post- Arbitration Review Hearing is set for August 23, 2019 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing. Defendant has shown that there exists a valid written agreement to arbitrate the individual claims asserted by plainti...

Excerpt: ...nsel. The cases share common questions of fact and law. Legal issues will recur and would consume additional trial and appellate court time if the litigation is not coordinated. In addition, there is a potential for inconsistent rulings on the same or related legal issues if the cases are not coordinated and appeals are presented to different appellate courts. Coordination of discovery will substantially reduce duplicative document and deposition...

Excerpt: ...ds the policy and defeats coverage, and plaintiff has failed to raise a triable issue of material fact as to the application of that defense. “A fraud and concealment clause in an insurance policy generally voids the policy upon the insured's attempts to deceive the insurer. Deceit may involve false representations to obtain benefits after a claimed loss.” Leasure v. MSI Ins. Co. (1998) 65 Cal. App. 4th 244, 248; Cummings v. Fire Ins. Exchang...

Excerpt: ...e based on violations of Labor Code §§1198 and 510, but neither of those statutes is listed in Labor Code §210 as a statute that may give rise to civil penalties under §210. Plaintiff argues that defendant violated Labor Code §204, which is listed in Labor Code §210, but plaintiff does not cite §204 in her 2nd or 3rd causes of action (and already has her 5th cause of action addressing that statute). The decision in Nationwide Biweekly Admi...

Excerpt: ...to exercise its discretion to find this motion timely under CCP §436. Thus, the motion is untimely under CCP §435(b)(1). In any event, this motion, at this time, is not the proper vehicle by which to challenge the case's manageability (if that even is a death knell for PAGA cases, which itself is not legally beyond dispute). Moreover, the other case is a class action suit, and the manageability standards for class action cases are not necessari...

Excerpt: ...ting compliance and copies of letters to the State Bar are insufficient. Unless defendants file the required proof of service before the hearing, the hearing will have to be continued. The Karolyi defendants are ordered to give notice of the ruling unless notice is waived. ...

Excerpt: ...relieved from default, but ruled that “Defendant is to pay for the cost of the unsuccessful attempts (2) to serve him in Arizona before being allowed to file his answer. Defendant is to file with the court a clean copy of the answer once the costs noted have been paid.” This language rendered the order conditional, which was within the court's discretion under Code of Civil Procedure sections 473 and 473.5. Howard v. Thrifty Drug & Discount S...

Excerpt: ...ntiffs may file another motion to file under seal which complies with this directive. Plaintiff's Motion for Contempt and Request for Sanctions Against Hyder M. Mukadam and Mukadam Medical Center, Inc. is denied. This court did not order defendants to pay sanctions to plaintiff, but rather awarded plaintiff sanctions against defendants. The court phrased the ruling this way specifically to prevent a failure to pay sanctions from being used as a b...

Excerpt: ...y 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: There have a...

Excerpt: ...ery Referee in this case, Michael Garey Balmages. Both of these motions seek relief found in the discovery statutes, and they are based on plaintiffs' alleged discovery violations. In addition, defendants' arguments hinge on the long discovery history of this case before the Discovery Referee. His input and recommendation on this motion would be exceedingly helpful, since he is in the best position to weigh the parties' discovery abuse arguments ...

Excerpt: ...e response does not comply with CCP §2031.220 since it does not state that all documents or things in the demanded category that are in defendant's possession, custody or control already have been produced. Plaintiff's justification for #82 is that he wants to discover who defendant's owners are, but that request is overbroad as phrased. Such information is specifically and narrowly requested in #103, which is not overbroad, because it seeks onl...

Excerpt: ...aving been filed more than six months after plaintiff received notice of entry of the Judgment. Finally, defendant Eric Woods lacks standing to seek to vacate the Judgment as against defendant Rick Back, who was in default at the time of trial. Plaintiff is ordered to give notice of the ruling. ...

Excerpt: .... The revised Notice to Class still provides that the Administrator will resolve any workweek disputes. Counsel must delete the clause (on p. 6, in the last para. of sec. 9), “and that determination will be final and binding on Plaintiffs, Pinnacle, and you and will be non- appealable”. Plaintiff still hasn't disclosed the terms of her agreement to settle and release all of her claims except for her PAGA claims, including the attorneys' fees ...

Excerpt: ...aving been filed more than six months after plaintiff received notice of entry of the Judgment. Finally, defendant Eric Woods lacks standing to seek to vacate the Judgment as against defendant Rick Back, who was in default at the time of trial. Plaintiff is ordered to give notice of the ruling. ...

Excerpt: ...the notice to the class. In their future pleadings counsel also must avoid points and authorities that exceed the legal page limits, as well as redundant, lengthy declarations that repeat the same material. The pages of the Notice of Settlement of Class Action and Settlement Hearing (notice to class) must be numbered. The moving papers assert that a copy of the settlement agreement was sent to the LWDA with the filing of this motion, but no proof...

Excerpt: .... The revised Notice to Class still provides that the Administrator will resolve any workweek disputes. Counsel must delete the clause (on p. 6, in the last para. of sec. 9), “and that determination will be final and binding on Plaintiffs, Pinnacle, and you and will be non- appealable”. Plaintiff still hasn't disclosed the terms of her agreement to settle and release all of her claims except for her PAGA claims, including the attorneys' fees ...

Excerpt: ...d and the Administrator provides an updated report. E-service of the moving papers on June 7, 2018 provided defense counsel with insufficient notice of this hearing. Plaintiffs must either give counsel statutory notice of the next hearing date or file a waiver of notice from them. The moving papers report that five of six workweek disputes have been resolved. Plaintiffs must explain what happened to the sixth workweek dispute, and if there is any...

Excerpt: ...arch 20, 2018, but plaintiff served her moving papers on defendant's prior counsel, Morgan Lewis & Bockius, on June 1, 2018. Plaintiff must either give counsel of record statutory notice of the next hearing date or file a waiver of notice from them. Plaintiff must submit an invoice from Administrator ILYM Group, Inc. to support the requested Administrator fee. Plaintiff now seeks an Administrator fee of $11,750 even though the original papers, in...

Excerpt: ...missible evidence. In addition, the discovery sought would unnecessarily invade plaintiff's privacy rights, which outweigh defendant's claimed interest in the requested information. At the hearing the parties should address whether the court should appoint a discovery referee for the Sadeghi portion of this case. Moving party is ordered to give notice of the ruling. ...

Excerpt: ...ludes 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. Plaintiff's claims of unconscionability are unsupported by the language of the arbitration agreement and th...

Excerpt: ...ite no authority supporting the proposition that vouchers should be considered part of a common fund. The court in Dunk v. Ford Motor Co. (1996) 48 Cal. App. 4th 1794, 1809-10, questioned the common fund theory in a coupon settlement. In this court's view, a reasonable fee would be 1/3 of the cash settlement, which is $312,500, but in this case the $50,000 being used to pay the employer's share of payroll taxes (which seems high for this settleme...

Excerpt: ...arch 20, 2018, but plaintiff served her moving papers on defendant's prior counsel, Morgan Lewis & Bockius, on June 1, 2018. Plaintiff must either give counsel of record statutory notice of the next hearing date or file a waiver of notice from them. Plaintiff must submit an invoice from Administrator ILYM Group, Inc. to support the requested Administrator fee. Plaintiff now seeks an Administrator fee of $11,750 even though the original papers, in...

Excerpt: ...d and the Administrator provides an updated report. E-service of the moving papers on June 7, 2018 provided defense counsel with insufficient notice of this hearing. Plaintiffs must either give counsel statutory notice of the next hearing date or file a waiver of notice from them. The moving papers report that five of six workweek disputes have been resolved. Plaintiffs must explain what happened to the sixth workweek dispute, and if there is any...

Excerpt: ...missible evidence. In addition, the discovery sought would unnecessarily invade plaintiff's privacy rights, which outweigh defendant's claimed interest in the requested information. At the hearing the parties should address whether the court should appoint a discovery referee for the Sadeghi portion of this case. Moving party is ordered to give notice of the ruling. ...

Excerpt: ...ite no authority supporting the proposition that vouchers should be considered part of a common fund. The court in Dunk v. Ford Motor Co. (1996) 48 Cal. App. 4th 1794, 1809-10, questioned the common fund theory in a coupon settlement. In this court's view, a reasonable fee would be 1/3 of the cash settlement, which is $312,500, but in this case the $50,000 being used to pay the employer's share of payroll taxes (which seems high for this settleme...

Excerpt: ...arch 20, 2018, but plaintiff served her moving papers on defendant's prior counsel, Morgan Lewis & Bockius, on June 1, 2018. Plaintiff must either give counsel of record statutory notice of the next hearing date or file a waiver of notice from them. Plaintiff must submit an invoice from Administrator ILYM Group, Inc. to support the requested Administrator fee. Plaintiff now seeks an Administrator fee of $11,750 even though the original papers, in...

Excerpt: ...ite no authority supporting the proposition that vouchers should be considered part of a common fund. The court in Dunk v. Ford Motor Co. (1996) 48 Cal. App. 4th 1794, 1809-10, questioned the common fund theory in a coupon settlement. In this court's view, a reasonable fee would be 1/3 of the cash settlement, which is $312,500, but in this case the $50,000 being used to pay the employer's share of payroll taxes (which seems high for this settleme...

Excerpt: ... plaintiffs and that no grounds exist to bar enforcement of the agreement. CCP §1281.2. 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 January 11, 2019 at 9:00 a.m. The parties must file a Joint Status Report at least a week before the hearing. The unopposed motion of K&L Gates LLP to be relieved as counsel of record fo...

Excerpt: ... she is in default. In amending, the court specifically grants Wardak leave to derivatively assert, on behalf of CSS, Inc., claims for breach of fiduciary duty in both the 082 case and the 168 case. In the amended pleadings Wardak must include captions showing all the parties to his new pleadings, and specifically assert whether his claims are derivative. Both sides' Requests for Judicial Notice are granted as to documents in the court's file, an...

Excerpt: ...14, 519. A triable issue of material fact exists as to whether the Motor Carrier Act exemption applies in this case. No class has yet been certified, and so putative class members are not parties to this action. Thus, any substantive ruling on this motion presumably would not bind them or fully resolve this matter. While the court in Fireside Bank v. Superior Court (2007) 40 Cal. 4th 1069, 1082-83, recognized that a defendant may assume the risk ...

Excerpt: ...at 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's claims of unconscionability are unsupported by the language of the arbitration agreement and the law, and defendants did not waive their right to arbitrate. Plaintiff has failed to meet her burden of proving the facts of any defense to enforceability. Chin v. Advanced Fresh Concep...

Excerpt: ...s supplemental reply papers must be filed no later than two weeks before the hearing. In discussing the law that applies to the specific facts that plaintiff can establish, plaintiff must directly address recent U.S. Supreme Court case law, which is stricter against the exercise of personal jurisdiction than the old California cases on which plaintiff relies. Moving party is ordered to give notice of the continuance. ...

Excerpt: ...ement. Counsel also should provide a red-lined version of any revised papers, including the notice to the class. Service by mail of the moving papers on May 15, 2018 provided defense counsel with insufficient notice of the hearing. Plaintiff must give adequate notice of the continued hearing date, and also must provide the LWDA with courtesy notice of the new hearing date. The operative pleading is plaintiff Savannah Epps' original Complaint, whi...

Excerpt: ...claimants. The court also will need the Administrator's final estimated invoice for its services. Detailed hourly billing breakdowns are required from all of plaintiffs' law firms or attorneys who intend their hours to be considered in the lodestar base to be used to cross-check the attorneys' fees requested, and who want to be awarded part of the $3.39 million in attorneys' fees requested here. Charts summarizing those hours are not adequate (wi...

Excerpt: ...es have undertaken sufficient discovery. It is too early for the court to make any such conclusions. The court notes that it would have heard the Corp. Code §709 trial by now, and potentially had a better sense of the merits of the new pleading, if the parties hadn't stipulated to continue the trial multiple times. Intervenor Bastel Wardak's request for attorneys' fees is denied. The court does not yet know if the First Amended Complaint in Inte...

Excerpt: ...er 2, 2014, almost four years ago, noted that construction of the underground parking structure, a planned mitigation measure, was no longer an available or realistic option. The court therefore ruled that plaintiff's construction of the surface parking lot would not be admissible at trial as a mitigation measure. Defendants thus will be entitled to recover their eminent domain damages based on no mitigation having taken place. The court even obs...

Excerpt: ...o be only for plaintiff Sadeghi while the Kibriya plaintiffs still intend to use the original Complaint. The motion is therefore denied without prejudice, but defendant's Motion for Judgment on the Pleadings will create the window for plaintiff Sadeghi to file a proper pleading. Defendant Shapell Industries, Inc.'s Motion for Judgment on the Pleadings, as joined in by defendant Richfield Tile & Construction Company, Inc., is granted with 15 days ...

Excerpt: ...onfer before the hearing). Plaintiff's request for monetary sanctions is denied. Defendant has shown that plaintiff did not serve a formal response to the demand, waiving his objections. Defendant must nonetheless show good cause, and it has done so. Plaintiff appears to have no objection to a second inspection of his treadmill. Although plaintiff has concerns as to defendant inspecting his home's computers, which would be legitimate if defendant...

Excerpt: ...l cures these deficiencies before the hearing date, the hearing will be continued. Moving parties are ordered to give notice of the ruling. ...

Excerpt: ...uld be fine. (1) On p. 4, line 24, change “Class Notice” to “revised Notice of Settlement of Class Action Lawsuit (Class Notice)”; (2) On p. 4, line 25, change “Request for Exclusion form” to “revised Request for Exclusion Form (Request for Exclusion)”; (3) On p. 5, line 18, the Administrator's declaration is due at least 16 court days before the Final Approval Hearing, just like all other papers for that hearing; and (4) On p. 6,...

Excerpt: ...ase in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case”. Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530. The amendment would not result in any undue prejudice to plaintiffs, since both sides have operated under the premise that defendant already asserted the administrative exemption defense. Plaintiffs even filed a Motion for Summary Adjudication as to that def...

Excerpt: ... court cannot reach a determination as to whether the settlement is fair, adequate and reasonable absent fully updated information on the efforts to locate class members and obtain class claims, along with final opt-out and objection figures. Plaintiffs must file an updated Administrator declaration with the final numbers. Detailed hourly billing breakdowns are required from each of plaintiffs' law firms to permit this court to complete an inform...