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: ...f $10,000 plus $12,500 in adjudicated reasonable costs” to “the total amount of $24,827.29, consisting of an agreed amount to Claimant of $10,000 plus $12,500 in adjudicated reasonable attorney fees and $2,327.29 in adjudicated reasonable costs”. The award may be corrected pursuant to CCP §1286.6 because the arbitrator exceeded his powers but the award may be corrected without affecting the merits of the decision upon the controversy submi...

Excerpt: ...ot to demur to it even though other defendants did so, and successfully. This court is not interested in having a pleading challenge motion granted with leave to amend (since these defendants have never demurred, and the prior court of appeal decision doesn't address causes of action challenged here), and then going through one or more further rounds of demurrers. Indeed, now the Thompson defendants say they want to move for judgment on the plead...

Excerpt: ...judice along with the entry of final Judgment, which is expressly prohibited by CRC Rule 3.769(h). The Administrator Declaration of Chris Pikus (at p. 3, para. 12) reflects that one out of four disputes was denied. However, the revised Notice of Estimated Individual Settlement Payment attached to the December 1, 2017 Supplemental Declaration of Jared Hague, which the court approved, reflected (at p. 1, para. 5) that the court would address any di...

Excerpt: ...nd denied as to #4-5 and 10. Plaintiffs fail to allege sufficient facts to state causes of action against these moving defendants. Plaintiffs must allege actual facts, not conclusions, which would establish liability against each of the defendants. Plaintiffs should keep in mind that entities cannot act except through persons, even if through persons employed by other entities, if appropriate. It is not enough to vaguely assert that four or more ...

Excerpt: ..., “it is a rare case 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. For ACIC to seek to interplead a $15,000 bond does not change the nature of this case, and ACIC's new claims are based on the same nucleus of operative facts existing in this case. ACIC's proposed new causes of action appear to be based on...

Excerpt: ...using 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. Plaintiffs are not changing the nature of this case, and their new claims are based on the same nucleus of operative facts. Plaintiffs' proposed new cause of action appears to be based on the same overall transaction and course of events. The amendment would not result in any undue prejudice to defenda...

Excerpt: ...reakdown whatsoever of their claimed costs. Plaintiffs seek 1.8 hours for needlessly appearing at the Default Prove-Up Hearing on December 1, 2017, but an MSC was also set for that date, requiring plaintiffs' appearance even if there had been no Default Prove-Up Hearing. Plaintiffs also want 7.3 hours in preparing both counsel and a witness for the prove-up hearing, but default prove-ups are done on the papers, not with live testimony, and plaint...

Excerpt: ...llege sufficient facts that would establish an oral contract, or the terms of the contract. The only alleged misrepresentations of a past or existing fact in Patel's 3rd cause of action for negligent misrepresentation are that plan participants were covered beneficiaries and that treatment was covered by the plan, but Patel alleges the contrary in paragraph 5, that plan participants were in fact covered beneficiaries. Further, Patel's factual all...

Excerpt: ...terrogatories seek information that is relevant to the subject matter of the action, and defendant has not justified any of its objections. Plaintiff may seek information that could justify class action allegations. Union Mutual Life Ins. Co. v. Superior Court (1978) 80 Cal. App. 3d 1, 10-11. The discovery sought does not come close to invading anyone's privacy, even if follow-up discovery might trigger discovery concerns. Defendant has not prese...

Excerpt: ...a trial. Defendants made modifications to their lighting system both before trial and during the one and then two month break the court afforded the parties to resolve the lighting issue before closing argument and the ruling. The court even informally advised the parties there would be no money damages awarded, but there was no agreement, the parties wanted a ruling at trial, and the ruling was in plaintiffs' favor. The settlement of plaintiffs'...

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: ...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: ... 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...

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: ...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: ...proval moving papers (p. 3) reference one opt-out, as do the fees and costs moving papers (p. 4, line 18), but the moving papers consistently represent elsewhere that there are no opt-outs. The moving papers (p. 5) reference a class size of 180, but also (p. 6) a class size of 198, while the Makarem declaration (p. 8, para. 33) references a class size of 25. The moving papers (p. 7) explain that a Class Member who worked the entire Class Period w...

Excerpt: ...essed the fact that the release of class claim language on p. 8 of the settlement agreement and in paragraph 3 of the proposed Order and Judgment is too broad, since it applies to claims that were or could have been litigated in the operative Complaint, rather than claims based on the facts alleged in the First Amended Class Action Complaint. Plaintiff has failed to adequately show that class members are not entitled to notice of the proposed set...

Excerpt: ...d his powers under CCP 1286.2(a)(4) and 9 U.S.C. §10(a)(4). In Luckey v. Superior Court (2014) 228 Cal. App. 4th 81, the court held that a retired judge sitting as a temporary judge had no authority to approve the settlement of a class action. The court noted that the California Constitution provides that for a stipulation to a temporary judge to be effective, the stipulation must be made by the parties litigant, but in a pre-certification class...

Excerpt: ... to the Castro declaration are overruled as to #1 and sustained as to #2. Defendant's Motion for Protective Order is denied as moot. The OSC re Dismissal and Status Conference set for today will have to be discussed to see if they are moot and should go off calendar. The ADP defendants have shown that they were employers of plaintiffs under all applicable legal definitions. If they weren't, there would be no basis for their liability. They did a ...

Excerpt: ...ce presented supports the granting of the motion as to some, but not all, of the issues involved in the action, specifically, plaintiff's cause of action for wrongful termination. There is no substantial evidence to support the jury's verdict in plaintiff's favor as to plaintiff's cause of action for wrongful termination. In the verdict form the jury answered “yes” (9-3) to the following question: “Was Rogelio Arellano's refusal to engage i...

Excerpt: ...state (part of the 12th cause of action), which claims are stayed. The unpaid wage part of the 12th cause of action asserting representative PAGA claims is dismissed without prejudice. This case is ordered stayed pending the conclusion of the arbitration. A Post-Arbitration Review Hearing is set for October 25, 2018 at 9:00 a.m. Defendants' Request for Judicial Notice is granted. The court concludes that there exists an agreement to arbitrate the...

Excerpt: ...raph 5 of his opposition declaration filed on March 5, 2018 regarding his diligent search and inability to locate any additional documents. The court also wants to make it clear that “see all trial documents” and “see trial exhibit list” are not legally proper responses to a document request. Bonnier Corporation and World Publications, LLC's Motion to Compel Further Responses to Request for Production of Documents from Bare Sports Canada,...

Excerpt: ...) added two court days to the Monday, March 5, 2018 due date. Thus, defendants' response was originally due on March 7, 2018. The one- week extension made the due date March 14, 2018, which was the date on which defendants filed this motion. The reply declaration includes a February 27, 2018 email from plaintiff's counsel confirming the one-week extension, without any disagreement as to the original response date. Plaintiff thus is estopped from ...

Excerpt: ...) added two court days to the Monday, March 5, 2018 due date. Thus, defendants' response was originally due on March 7, 2018. The one- week extension made the due date March 14, 2018, which was the date on which defendants filed this motion. The reply declaration includes a February 27, 2018 email from plaintiff's counsel confirming the one-week extension, without any disagreement as to the original response date. Plaintiff thus is estopped from ...

Excerpt: ... Bank Regarding Wellpoint Management Company is granted. Production must take place within 30 days after notice. The documents sought are relevant to the subject matter of the action or are reasonably calculated to lead to the discovery of admissible evidence. Good cause exists to compel production. Plaintiff's request for monetary sanctions against Wellpoint Management Company is granted in the amount of $1,200, payable within 30 days. The Motio...

Excerpt: ...d have been set forth in the lawsuit, if amended” must be deleted from the second paragraph of the Release section on p. 3 of the Notice to Class. Because attorney Marcus S. Loo's new declaration reflects (at p. 2, para. 4) that the Administrator is accepting $5,000 as the maximum Administrator fee to be paid, p. 2 of the Notice to Class should also reflect that number, rather than the estimate of $7,788.41. The proposed Order Preliminarily App...

Excerpt: ... notice to the class. Service of the moving papers by mail on March 21, 2018 provided defense counsel with insufficient notice of this hearing (only 16 court days, without the five additional days per CCP §1005(b)). Notice also was less than 28 calendar days as required for a provisional certification request in conjunction with settlement under CRC Rule 3.764(c)(1). Plaintiff also must provide the LWDA, the real party in interest as to the PAGA...

Excerpt: ...udge hearing all of the actions for all purposes in a selected site or sites will not promote the ends of justice, taking into account whether the common question of fact or law is predominating and significant to the litigation, the convenience of parties, witnesses and counsel, the relative development of the actions and the work product of counsel, the efficient utilization of judicial facilities and manpower, the calendar of the courts, the d...

Excerpt: ...the car wash bond periods involved here. The tentative ruling is to continue the hearing on Cross-Complainant American Contractors Indemnity Company's Motion for Leave to File an Amended Cross-Complaint to May 4, 2018 at 10:00 a.m. The moving papers failed to fully comply with CRC Rule 3.1324, the opposition noted the failure, the reply papers have purported to cure the failure, but plaintiffs have not had an opportunity to respond to the attempt...

Excerpt: ...evised Notice to Class to the “Claims Administrator” should be changed to the “Settlement Administrator” to avoid confusion to Class Members. The Notice to Class (on p. 4) must reflect that the court will resolve any disputes not otherwise resolved by the Settlement Administrator and the parties. The court needs a brief explanation of the reasons for the increase in plaintiffs' attorneys' cost ceiling from $21,000 to $24,000. A realistic ...

Excerpt: ...tiff did not timely file an amended pleading, defendant has not yet sought a dismissal. Thus, there will be no tentative ruling on the motion at this time. A Status Conference is also set for today and will go forward. Moving counsel is ordered to give notice of the ruling. ...

Excerpt: ...notice to the class. Ambiguity exists as to whether the $500,000 for plaintiffs' attorneys is only for attorneys' fees or for both attorneys' fees and costs. The settlement agreement (p. 21, l. 16) and notice to class (p. 3) suggest costs are not included in the $500,000, but the Nathan declaration (p. 8, l. 28) and the Baker declaration (p. 8, l. 17) are ambiguous. Clarification is needed. Further ambiguity exists as to the court ultimately reso...

Excerpt: ... debtor for money or property that is the subject of the action or proceeding.” Thus, the court is baffled by plaintiff's argument that the settlement in this case does not constitute “income” as defined in Family Code §4058, an issue that has nothing to do with any exemption issues. Plaintiff makes no other arguments as to why his settlement proceeds should be exempt, and his procedural arguments lack merit. The lien is timely since no ju...

Excerpt: ...Dorman v. DWLC Corp. (1995) 35 Cal. App. 4th 1808, 1813-15. CCP §1033(b) has a similar provision for Limited Civil cases that could have been brought in Small Claims Court. Here, plaintiff obtained a Verdict and Judgment for only $2,000 after using court resources to the extent of a 12½ day jury trial. Plaintiffs were the prevailing parties only technically, but not as a practical matter. The rationale behind CCP §1033(a) is fully at play here...

Excerpt: ...provided this court with any response by plaintiff. Nor has defendant fashioned this motion as one where plaintiff did not respond, under CCP §2031.300. Defendant also has not filed any Separate Statement under CRC Rule 3.1345. Thus, this motion is not procedurally proper and must be denied. Plaintiff is ordered to give notice of the ruling unless notice is waived. ...

Excerpt: ...ised papers, including the notice of settlement to the class. The revised class notice on p. 2, section 3 references the old four-part payment schedule, and on p. 4, section 5, references annual distribution checks to Class Members even though the supplemental papers now describe a bi-annual distribution plan. The revised class notice must be corrected. Moreover, bi-annual means twice a year, while plaintiffs presumably intend payments to be made...

Excerpt: ...nd if she wishes to assert an individual claim for any alleged violations of Labor Code §§201 and 202, since her pleadings do not allege any such violation as to her personally. However, any such claim would be subject to arbitration pursuant to the parties' written agreement to arbitrate. The court in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 381, drew a distinction between civil penalties recovered on behalf of t...

Excerpt: ... range of their proportional share of liability for plaintiff's alleged damages. The settlement is not so far out of the ballpark as to be inconsistent with the equitable goals of CCP §877.6. Plaintiff has agreed to allocate $181,885 of the $1,875,000 WRAP policy limits settlement to window defects, which will offset any judgment plaintiff obtains against Milgard. That figure was reached based on 10% of a vinyl window replacement cost estimate o...

Excerpt: ...vidual settlement. Paragraph 34 of Neil Pedersen's declaration says that counsel is getting 40% and plaintiff is getting the other 60% minus costs. But paragraph 1 of the Settlement Agreement and General Release reflects that counsel is getting 50% for fees, 40% is going toward liens, and plaintiff is getting 10% herself. Plaintiff must clarify, since this information could be relevant to the PAGA settlement. Section 6(d) of the PAGA Settlement A...

Excerpt: ...f calendar. The court concludes that a valid arbitration agreement exists, that plaintiff's claims of unconscionability are unsupported by the language of the arbitration agreement and the law, and that defendant did not waive its right to arbitrate. 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. The arbitration agree...

Excerpt: ...st that opportunity. GAIC must make any and all arguments it wants to make in opposition to having the class certification order modified to apply to GAIC, now that GAIC has had a chance to submit its pleading challenges, conduct discovery, and file its Answer and Cross-Complaint for indemnity. Any supplemental opposition is due nine court days before the continued hearing date, and any reply is due five court days before the continued hearing da...

Excerpt: ...ment of Class Action, Settlement Hearing and Claims Procedure (Notice to Class). The estimated number of Class Members has increased from 35 to 55, an increase of over 50%, but there is no proposed increase in the settlement amount. Counsel should explain how that is fair and reasonable. Since the Class Period may well be further extended to April 13, 2018, the class size could increase further. No agreement by the class members (as opposed to th...

Excerpt: ...ipulation for the court to sign. If plaintiff still wants the court to sign such an Amended Judgment, plaintiff must submit not only the proposed Amended Judgment, but also a copy of the version of the Stipulation signed by defense counsel, which the court will require pursuant to CRC Rule 2.257(c)(2) for this significant matter. Plaintiff is ordered to give notice of the ruling. ...

Excerpt: ...sted of three lines. Plaintiffs' Motion to Compel Further Responses to Requests for Production of Documents, Set Two, is granted, except as to No. 116, since the moving papers do not address that request (but rather No. 115, which is not in the notice of motion). Defendants Hyder M. Mukadam and Mukadam Medical Center, Inc. must serve full and complete responses, without objections, to Request Nos. 83-86, 88, 98 and 101-103 within 30 days. Plainti...

Excerpt: ...it obtains at the Phase III trial should be offset against the amount it owes AWPA due to AWPA's judgment against KDF. However, KDF's cross- complaint which is going to trial is against Paul Harper, not AWPA. Although KDF named AWPA as a cross-defendant, the court sustained AWPA's demurrer to KDF's cross-complaint without leave to amend on December 10, 2014, and KDF did not appeal from the ensuing September 9, 2015 Judgment. Thus, AWPA is not res...

Excerpt: ...Review Hearing is set for September 7, 2018 at 9:00 a.m. Both sides' Requests for Judicial Notice are granted. Based on Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 386-88, and Esparza v. KS Industries, L.P. (2017) 13 Cal. App. 5th 1228, 1243-46, plaintiffs are required to arbitrate their individual, victim-specific claims, recovery on which they will personally retain, but may have the court determine their representat...

Excerpt: ...' attorney cost breakdowns, an Administrator declaration and invoice, and plaintiffs' declarations to support enhancement requests, must be filed no later than 16 calendar days before the Final Fairness Hearing date, to provide enough time for court review. Plaintiffs should explain why their counsel should be awarded 35% of the settlement amount as attorneys' fees, rather than the 33 1/3% which most plaintiffs' attorneys request in these cases. ...

Excerpt: ...inadequate. Plaintiffs' motion simply repeats the arguments they unsuccessfully made to the jury. The jury awarded plaintiffs only $2,000 in damages based on their allegations of numerous, significant problems with the house they purchased. Plaintiffs' Motion for New Trial is denied. Plaintiffs have failed to establish any of the criteria set forth in CCP §657. The award of damages was adequate. CCP §657(5). The evidence was sufficient to justi...

Excerpt: ...lemental responses have mooted the original responses. Plaintiff is incorrect that when defendant responds over its objections it is allowed to give only partial responses – those responses will be treated as full and complete, but with defendant reserving its right to object to plaintiff using the responses as evidence. Plaintiff's motion to compel further responses to form interrogatories is granted as to #1.1, 3.1-3.6, 15.1, and 50.1- 50.6, ...