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

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

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

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

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

Excerpt: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ..., 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: ...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: ... 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: ... 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: ... §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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...