Excerpt: ...h causes of action, is sustained with 15 days leave to amend as to the 10th cause of action, and is sustained without leave to amend as to the 11th cause of action. Defendant Pacific Life Insurance Company's Demurrer to Second Amended Complaint is overruled as to the 1st and 9th causes of action, and is sustained without leave to amend as to the 11th cause of action. Defendants NFP Insurance Services, Inc. and Robin Johnston's Demurrer to Second ...

Excerpt: ...and Complaints created by plaintiff's counsel in other cases are neither necessary, helpful or relevant here. Defendant's 5/24/21 RJN, Exhibit A, and Defendant's 8/13/21 RJN, Exhibit 3, do not fall within any statutory category for judicial notice. Plaintiff's PAGA letter is not attached to plaintiff's Complaint and is not incorporated by reference in plaintiff's Complaint, as defendant contends. Nor are website printouts a proper subject of judi...

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 simply asserting that the issues have been resolved. Although the motion provides the estimated average payment to class members under the proposed settlement, it fails to provi...

Excerpt: ...ion for the employer's share of payroll and unemployment taxes, which the court does not consider to be part of the common fund on which plaintiff's attorneys' fees should be calculated. An enhancement award of $5,000 is sufficient and proper for a class and settlement of this size, and considering the work (of an unstated amount of hours) that plaintiff spent on this case. The court concludes that the $190,000 class action settlement, as approve...

Excerpt: ...nterested in the action or proceeding.” In 2004, the Court of Appeal held that the relief provisions of CCP §473(b) do not apply to a failure to comply with Public Resources Code §21167.4(a). Nacimiento Regional Water Management Advisory Com. v. Monterey County Water Resources Agency (2004) 122 Cal. App. 4th 961, 968. The court reasoned that the application of the §473(b) relief provisions to CEQA dismissals for failing to request a hearing ...

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