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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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