Excerpt: ... the objections to ¶6, p. 2:27-28 and p. 2:28-3:33 as to the portion “they understand Clarker will not be supervising their breaks, reminding them to take their breaks, or preventing them from taking their breaks”, ¶11, p. 4:15-16 and 4:18-20 as to the sentences beginning with “Plaintiff understood…”, and ¶12, p. 4:28-5:2 as to the sentence beginning with “Plaintiff understood…”. The Court OVERRULES the remaining objections to ...

Excerpt: ...and the party's failure to obey the court order actually prejudiced the opposing party. (J.W. v. Watchtower Bible & Tract Soc'y of New York, Inc. (2018) 29 Cal.App.5th 1142, 1166-1171; Moofly Prods., LLC v. Favila (2020) 46 Cal.App.5th 1, 11; Cal. Judges Benchbook (2021) Civ. Proc. Discovery § 6.18, citing.) Because terminating sanctions are drastic, they should be used sparingly and should generally not be imposed unless less severe sanctions h...

Excerpt: ...tration of Plaintiff's individual PAGA claim, and stays the representative PAGA claim pending arbitration. The Court SUSTAINS ESI's objections (ROA 70) to the Sorroza Declaration as to the portion of his statement that he would load and unload flatbeds “containing materials shipped and received all throughout the United States.” The Court declines to consider the Erselius Declaration (ROA 66) because it is new evidence presented in the Reply ...

Excerpt: ...on for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc. §437c(f)(1).) A moving plaintiff meets his or her “burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc. § 437c(p)(...

Excerpt: ...ettlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. All references to Labor Code § 510 must be removed from the Releases since overtime violations are not alleged in the operative First Amended Complaint or PAGA Notice. 2. Are there any related or overlapping matters that may be affected by this Settlement? It is unclear if the Jackson Declaration's reference to Daniel Carillo was in error or if it is ...

Excerpt: ...ettlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. All of the PAGA Notices to the LWDA should be submitted to the Court. 2. Are there any related or overlapping matters that may be affected by this Settlement? 3. There are 1,655 former employees. How are the waiting time penalties being taken into account in the calculation of the Individual Settlement Payments? 4. Why are the Individual PAGA Payments ...

Excerpt: ...tute a cause of action. (Code Civ. Proc. § 430.10(e).) The allegations in the complaint as a whole must be reviewed to determine whether a set of alleged facts constitutes a cause of action. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, which requires a statement of facts constituting a cause of action in ordinary and concise language, and should allege ...

Excerpt: ...ird-party beneficiary of the arbitration agreement between Adecco and Plaintiff. For the reasons set forth below, the Motion to Compel Arbitration is GRANTED. The motion to dismiss is DENIED. The Court DENIES Plaintiff's request for judicial notice (ROA 157) as Plaintiff failed to attach any of the orders for which he sought judicial notice. There Is a Valid Arbitration Agreement. To compel arbitration under either the CAA or FAA, there must be a...

Excerpt: ... 1008 which reads, in pertinent part:  “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made t...

Excerpt: ...ar waiver or grace period” (Request 16), as well as PHH's calculation of the Stated Principal Balance (Request 11), Call Price (Request 18), and market value of the Deferred Amounts (Requests 3 and 6); b. “Business plans,” to the extent they are responsive to any of Requests 3 and 6-10, including documents made available in the “data room” referenced in the Offering Memorandum (Request 7); c. All documents and communications responsive ...

Excerpt: ...s standing to allege representative PAGA claims because he released his individual claims when he entered into the Settlement Agreement. ROA 57, P&A, pp. 12-13. Defendants argue that since Plaintiff can no longer allege his individual PAGA claims, he cannot pursue representative PAGA claims as set forth in Viking River Cruises, Inc. v. Moriana (2002) 142 S. Ct. 1906, 1925 (“But as we see it, PAGA provides no mechanism to enable a court to adjud...

Excerpt: ...ritten agreement to arbitrate; (2) One or more of the claims at issue are covered by that agreement; and (3) The responding party refused a prior demand for arbitration under the agreement of the claims at issue. (Code Civ. Proc., § 1281.2; Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, 1230.) If the moving party meets this burden, the burden shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., f...

Excerpt: ...f the representative portion of Plaintiff's PAGA claims. This request follows the decision in Viking River Cruises v. Moriana (2022) 142 S. Ct. 1906, where the majority explained that under its view of California law, plaintiffs who are ordered to arbitrate their individual PAGA claims lose standing to prosecute representative PAGA claims: “But as we see it, PAGA provides no mechanism to enable a court to adjudicate non- individual PAGA claims ...

Excerpt: ...ttlement agreement”, to avoid waste of limited Court time and resources. As to the Settlement 1. Was the Settlement and moving papers served on the LWDA? A proof of service must be filed with the Court. 2. There is no definition for aggrieved employees or time frame for the PAGA period. 3. The Settlement does not include the calculation for the individual PAGA payments. 4. The phrase “…, which shall include any and all claims, rights, deman...

Excerpt: ... the entirety of the Nguyen Declaration (Obj. No. 3) is SUSTAINED, rendering Objection No. 4 MOOT. The Court DENIES the Plaintiff's Request for Judicial Notice (ROA 515) since the documents are not relevant to the Court's ruling on this Motion. Since the filing of this Motion, Hoang Nguyen has been dismissed from this case. ROA 473. As such, the Motion is MOOT as to Nguyen. For the reasons set forth below, the Motion is DENIED as to Plaintiffs Ma...

Excerpt: ...ettlement agreement', to avoid use of limited Court time and resources. The parties are reminded to properly bookmark their filings. As to the Settlement 1. Although the Individual Settlement Payment is based on number of work weeks worked during the Class Period, the Settlement provides that the Class Notice will give Class Members the number of bi-weekly pay periods worked and permits them to object to the number of pay periods. Settlement, ¶7...

Excerpt: ...ettlement agreement', to avoid use of limited Court time and resources. The parties are reminded to properly bookmark their filings. As to the Settlement 1. Although the Individual Settlement Payment is based on number of work weeks worked during the Class Period, the Settlement provides that the Class Notice will give Class Members the number of bi-weekly pay periods worked and permits them to object to the number of pay periods. Settlement, ¶7...

Excerpt: ...ettlement agreement', to avoid use of limited Court time and resources. Further, the parties are reminded to properly bookmark their filings. As to the Settlement 1. Defendant and its counsel need to submit a declaration that they do not have any interest in the cy pres recipient. 2. The Court has wide discretion on assessing the reasonableness of fees, including basing fees on the percentage of fund method, conducting a lodestar cross-check on a...

Excerpt: ...ained for confidentiality in their confidential settlement (see Monster Energy Co. v Schechter (2019) 7 Cal.5 th 781, 793), and the strong public policy in favor of settlements such as this overcomes the right of public access. A substantial probability exists that this interest will be prejudiced if this information is not sealed, and this sealing order is narrowly tailored, pertaining only to are the monetary terms of the Confidential Settlemen...

Excerpt: ... (collectively, Defendants) and their counsel of record, Morley Mason P.L.C., in the total amount of $28,600 for fees and costs incurred in connection with the motions. Plaintiff presents evidence the responses to the Discovery Requests were due on September 28, 2021. ROA 99, Omnibus Haritoonian Decl., ¶¶5-7 and Exs. 3 and 4. Defendant Bar Bakers Defendants have not opposed the Motions but filed their responses to the Discovery Requests after t...

Excerpt: ... pursuant to Emergency Rule 10]. An action must be brought to trial within 5 years after it is commenced against the defendant. If not, dismissal is mandatory on motion of any party, or on the court's own motion. (Code Civ. Proc. §§ 583.310, 583.360.) The 5-year period in which an action must be brought to trial is tolled (extended) by any period of time during which: (1) The court's jurisdiction to try the action was suspended (Code Civ. Proc....

Excerpt: ...itation omitted).) This liberality only applies so long as there is no prejudice to the opposing party. (Higgins v. Del Faro (1981) 123 Cal. App. 3d 558, 564.) Denial of leave to amend is appropriate where inexcusable delay and probable prejudice to the opposing party is shown. This may happen where a proposed amendment opens up an entirely new field of inquiry without any satisfactory explanation as to why the major change in point of attack had...

Excerpt: ... of the pleading or from other matters properly subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) 2nd COA for Unfair Busines...

Excerpt: ...March 17, 2017. ROA 473, Meade Decl., Exs. B and C. Pursuant to CCP § 2031.310(c), Plaintiff was required to serve its motion to compel within 45 days of any verified response or supplemental verified response or any specific later date to which the parties have agreed in writing. Otherwise, the demanding party waives the right to compel any further responses. (Code Civ. Proc. § 2031.310(c); Sperber v. Robinson (1994) 26 Cal.App.4 th 736, 745.)...

Excerpt: ...ual subpoena is not provided, but since this issue is not addressed by Defendants, the Court assumes the requests in the respective subpoenas are substantively identical. The subpoena issued by Defendants is for production of business records from Benchmark Administrators for documents related to Plaintiff's workers' compensation matter, claim number 6885951. Plaintiff contends the subpoena seeks irrelevant private medical information, arguing th...

Excerpt: ...he attention of the attorney or party.” (Code Civ. Proc. § 128.7(a).) It is undisputed that at least by April 12, 2022, Plaintiff's counsel was made aware that the First Amended Complaint was not signed and “shall be stricken” unless promptly corrected. ROA 52, Joint Status Conference Statement, pp. 3-4. This issue was also raised at the Status Conference on May 6, 2022. At that time, this Court deemed the First Amended Complaint filed as ...

Excerpt: ...tlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. Although the Davis Declaration indicates “information regarding the preliminary approval hearing” was provided to the LWDA (ROA 386, Davis Decl., ¶75), it is unclear if this means the moving papers were served on the LWDA. If so, proof of service of the moving papers on the LWDA should be filed with the Court. 2. The Settlement and Plaintiffs repres...

Excerpt: ... Case No. 30-2017- 00908279; Anderson v. The Irvine Company, LLC, Case No. 30-2017-00907780; Anderson v. The Irvine Company, LLC, Case No. 30-2017-00908262 and Abousheta v. The Irvine Company, LLC, Case No. 30-2017-00920789. The Court GRANTS Moving Plaintiffs' Request for Judicial Notice (ROA 875). When there are actions involving common questions of law or fact pending, a court may order a joint trial of any or all of the matters in issue in the...

Excerpt: ... claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4 th 1004, 1021 [internal quotations and citations omitted].) These elements are typically referred to as: (1) ascertainability; (2) numerosity; (3) commonality; (4) typicality; (5) adequacy; and (6) superiority. (See e.g. Capitol People First v. State Dept. of Developmental S...

Excerpt: ...ties shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, “to determine whether it is fair, reasonable, and adequate in view of PAGA'...

Excerpt: ...they had been unsuccessful in contacting Elias and, as a result, could not provide any discovery responses on her behalf. (Lambert Decl. ¶ 7.) After no responses were made, even after extensions, a motion to compel further responses was filed, went unopposed, and was granted by the Court on 01-07-22, including an award of monetary sanctions. (ROA 124.) At that time, the Court declined to issue terminating sanctions absent proof of service of the...

Excerpt: ...on's outstanding loan obligation. ROA 1075, NOM. GF Capital's Motion for Summary Judgment is GRANTED. The Court SUSTAINS GF Capital's Objection Nos. 4, 5, 8 and 9. ROA 1151, Objections. The Court OVERRULES GF Capital's Objection Nos. 1, 2, 3, 6 and 7. Notwithstanding that the Court overrules the Objection Nos. 1, 2, 3, 6 and 7, the Court notes that the statements therein are irrelevant because Defendants signed the Forbearance Agreement, which ac...

Excerpt: ...ent to the settlement agreement is directed, rather than “amended settlement agreement”, to avoid use of limited Court time and resources. Further, the parties are reminded to properly bookmark their filings. As to the Settlement 1. Plaintiff represents in the Memorandum of Points and Authorities that “[u]pon final approval of the settlement, the other named defendant, Kushagram will be dismissed from the case without prejudice." (ROA 185, ...

Excerpt: ... [PAGA Action]. For the reasons set forth below, the Motions are DENIED. Plaintiff does not dispute that the parties entered into the Inside Loan Officer Employment Agreement (“Employment Agreement”) and the Mutual Arbitration Agreement (Arbitration Agreement) and that the latter encompasses the claims in this action. ROA 38, Randall Decl. in the Class Action [ROA 28 in the PAGA Action], at ¶¶6-14 and Ex. 1, Inside Loan Officer Employment A...

Excerpt: ...nd 4 are SUSTAINED. Plaintiff's objection no. 5 is OVERRULED. Plaintiff's objection no. 6 is OVERRULED. Defendants' objection nos. 1, 2, and 3 are OVERRULED. Defendants' objection no. 4, as to Foss Decl. ¶ 22 is OVERRULED; as to Foss Decl. Ex. B is SUSTAINED. Legal Standard A defendant moving for summary judgment or adjudication bears the initial burden to show the plaintiff's claims have no merit. It may do this by demonstrating either “that ...

Excerpt: ...s shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, “to determine whether it is fair, reasonable, and adequate in view of PAGA's p...

Excerpt: ...s as follows:  $178,771.88 for exhibits, trial tech and graphic support – Category 11, and  $65,125 in costs for discovery referee fees (Category 16). ROA 8176, Reply, p. 2. The Court concludes there is no basis for staying a determination of costs pending the appeal in this matter. (See Code Civ. Proc. § 916(a); Korchemny v. Piterman (2021) 68 Cal.App.5 th 1032, 1052 [“filing a notice of appeal does not stay any proceedings to determi...

Excerpt: ...ement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. Were the Settlement and moving papers served on the LWDA? Proofs of service on the LWDA should be filed with the Court. 2. The PAGA notice letter(s) to the LWDA should be submitted to the Court. 3. The Participating Class Members' Release is confusing. The Settlement states “Plaintiffs and all other Participating Class Members shall be deemed to have set...

Excerpt: ...ete the sentence commencing “The Objection . . .” Requirements for the objection are adequately addressed in the Notice, as more fully discussed below. f. Propose dates for paragraphs 25 and 26 based on the implementation schedule approved by the Order. Final approval hearings are held on Thursdays at 2 PM. The motion for final approval must be filed at least 16 court days before the hearing g. The Settlement Agreement and Notice, including E...

Excerpt: ...lement agreement”, to avoid use of limited Court time and resources. As to the Settlement 17. There are references to PAGA claims or PAGA penalties in the Settlement Agreement and Class Notice, and the settlement purports to release PAGA claims, but no portion of the settlement amount is allocated to any PAGA penalties and there is no PAGA claim in the Complaint (ROA 2). With no reference to PAGA in the Complaint, and with no pre-filing notice ...

Excerpt: ...The Court DENIES Defendants' Request for Judicial Notice (ROA 89) and Supplemental Request for Judicial Notice (ROA 104) because they are not necessary or relevant to the Court's decision in this matter. As such, Plaintiff's evidentiary objections (ROA 96) to Defendants' Request for Judicial Notice are MOOT. The Court GRANTS all of Defendants' Objections (ROA 106) to the Anbari Declaration. The Merits. To compel arbitration under either the CAA o...

Excerpt: ...e proceeding. (Code Civ. Proc. §473(a)(1); Hulsey v. Koehler (1990) 218 Cal.App.3f 1150, 1159.) Similarly, any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading, including answers. (Code Civ. Proc. §576.) California courts generally allow great liberality, at all stages of the proceeding, in permitting the amendment of pleadings ...

Excerpt: ...t of pleadings to resolve cases on their merits. (IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal. App. 3d 451, 461.) Because the policy favoring amendment is so strong, “It is a rare case in which denial of leave to amend can be justified. Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but under substantive law, no liability exists and no amendment would chan...

Excerpt: ..., is entitled to “the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees”. To warrant attorney fees for defending against a sanctions motion, Defendant must show the sanctions motion is frivolous, unfounded, filed for an improper purpose, or otherwise unreasonabl...

Excerpt: ...nd confer as required under CCP §§ 430.41 and 435.5. Although the Court elects to proceed on the merits, the Court reminds the parties of their obligation to meet and confer and expects that the parties will make more robust efforts to comply with their meet and confer requirements in the future. A general demurrer challenges the legal sufficiency of a complaint on the ground that it fails to state facts sufficient to constitute a cause of acti...

Excerpt: ...court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice.' (People v. Bell (1984) 159 Cal.App.3d 323, 329.) As the Court in Landis v. North American Co. (1936) 299 U.S. 248, 254, explained, “the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for ...

Excerpt: ...improper purpose, such as to harass or to cause unnecessary delay or needless increase in the costs of litigation”; (2) the claims, defenses, and other legal contentions “are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law” and (3) the allegations and other factual contentions have evidentiary support or are likely to have evidentiary suppor...

Excerpt: ...tlement agreement', to avoid use of limited Court time and resources. Further, the parties are reminded to properly bookmark their filings. As to the Settlement 1. How are the PAGA payments treated for tax purposes? 2. The Settlement expressly provides there is no extension for objections. Is the same intended for requests for exclusion and disputes? How does re-mailing effect these deadlines? 3. If a Class Member submits an objection and request...

Excerpt: ...tion. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, which requires a statement of facts constituting a cause of action in ordinary and concise language, and should allege ultimate facts that, as a whole, apprise defendant of the factual basis of the claim. (Code Civ. Proc. §425.10(a)(1); Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1284.) In ruling on...

Excerpt: ... Rounding Policies, Practices and Procedures; and 4. Topics 18 and 21 – Payroll Systems and Software. Defendant responds that Plaintiff's topics were not clearly stated and that Trocellier testified completely given the broad descriptions of the topics. In particular, Defendant argues that nowhere in Plaintiff's then-existing operative complaint or the Amended Notice did Plaintiff specifically identify “pay codes” or “rounding” with rea...

Excerpt: ...were insufficient. Therefore, the remaining discovery issues are: RPD Nos. 1 and 3, SI Nos. 5 and 6, and the PMQ and Peter Swartz depositions. Petitioner argues that Gemdale was required to move to reopen discovery before seeking to compel discovery. This argument has already been considered and rejected in connection with Gemdale's second ex parte application. See ROA 249; ROA 266, Hedenkamp Decl., Ex. 1, at pp. 7:9-8:13. This Court has discreti...

Excerpt: ...ciently alleges damage to Plaintiffs. The Complaint alleges Plaintiffs were required to file a Motion to Disqualify, based on Defendant's refusal to withdraw from the representation of an adverse party. (¶32 of Complaint). This refusal to withdraw is alleged to be a basis for the First Cause of Action and Defendant does not challenge the same. (¶48(f) of Complaint). The fees and costs incurred for the referenced Motion to Disqualify are properl...

Excerpt: ...subpoena within 60 days after completion of the deposition record. (Code Civ. Proc. § 2025.480(b); see Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.) The motion must be accompanied by a meet and confer declaration. (Code Civ. Proc. § 2025.480(b).) Plaintiffs argue that the Argus Parties did not object to their appearance at their depositions. This is not correct as to the individual Argus Parties [Gee, Snodgrass and Drever]. A...

Excerpt: ...and 25. ROA 234, Hapak Decl., ¶¶3, 6; ROA 243, Supp. Welch Decl., ¶2. As for RPD No. 32, it appears undisputed that UCI has not produced all responsive documents (ROA 234, Hapak Decl., ¶6), and has not fully complied with the 1/16/20 Order. UCI represents that it will produce all responsive documents to RPD No. 32 but has not set a date certain for the production. The Court orders UCI to produce all documents responsive to RPD No. 32 within 1...

Excerpt: ... Defendant claims that it has been substantially prejudiced since it cannot conduct its own tests to verify the test results and challenge the factual basis for the 60-day notices. As such, Defendant contends the only remedy is to terminate this lawsuit and impose monetary sanctions against Plaintiff for the attorney fees and costs in bringing the motion. To establish spoliation, Defendant must establish Plaintiff was under a duty to preserve the...

Excerpt: ... Notice Letter to the LWDA since the PAGA notice letters are not found in the Court records. The Court GRANTS Defendant's supplemental request for judicial notice (ROA 52) of records from the California Secretary of State but only for their existence and legal effect, not for the truth of the matters asserted. The Demurrer Is Overruled. A demurrer lies when there are two actions pending “between the same parties on the same causes of action.”...

Excerpt: ... 178, Lin Decl., Ex. 1, ROA 60, 2/4/21 Order; see also, ROA 58, 2/4/21 Minute Order. It is undisputed that Defendant did not provide supplemental responses nor pay the monetary sanctions as ordered (ROA 178, Lin Decl., ¶12), forcing Plaintiff to file a motion to compel compliance with the 2/4/21 Order, to impose issue sanctions precluding Defendant from presenting testimony from any putative class member that may support Defendant in any motions...

Excerpt: ... is the ground for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342.) A motion to strike may attack the entire pleading or any part thereof. (Code Civ. Proc. § 435; Baral v. Schnitt (2016) 1 Cal.5 th 376, 393-394.) A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a cour...

Excerpt: ...rties shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, “to determine whether it is fair, reasonable, and adequate in view of PAGA...

Excerpt: ...ettlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. Was the LWDA served with the moving papers? Proof of service is to be filed with the court including the proof(s) of service required under this Order below. 2. The PAGA Notice to the LWDA and all amendments must be submitted to the Court. 3. The estimated class size appears to be as of November 2019. Ackermann Decl., ¶4. What, if anything, has been...

Excerpt: ...281.2). "The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; See also Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92). Questions of the enforc...

Excerpt: ...fendants' objections to the Rios Declaration (ROA 80) in opposition to the Motion to Compel Arbitration. The Court GRANTS Defendants' request for judicial notice in support of the Motion to Compel Arbitration (ROA 48) and Plaintiff's request for judicial notice in opposition to the Motion to Stay (ROA 72). Motion to Compel Arbitration For the reasons which follow, the motion to dismiss the class claims, and to compel arbitration of Plaintiff's in...

Excerpt: ...ed Court time and resources. The parties shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution i...

Excerpt: ... they were able to substantively respond. However, the objection to the additional Opposition papers filed on November 24, 2021 (ROA 743, 745, 747 and 749) is SUSTAINED since they were filed after the Reply papers had been filed. Defendants' objection to Exhibit O to the Denis Declaration filed with the Reply (ROA 739) is SUSTAINED since Exhibit O presents new evidence to which Defendants have not had the opportunity to respond. Request for Judic...

Excerpt: ...e and fail to comply with the Court's 10/5/2020 Minute Order (ROA 244) because the supplemental responses do not include all potentially aggrieved employees, such as Real Parties in Interest Brenda Martinez, Natalia Alvarez and Leticia Ramirez, who worked for Defendants in 2017 and/or 2018 and speak a language other than English. ROA 732, Travosan Decl., at ¶14 and Ex. H. DFEH further argues that PCS failed to make a reasonable and good faith in...

Excerpt: ... complaint as a whole must be reviewed to determine whether a set of alleged facts constitutes a cause of action. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, which requires a statement of facts constituting a cause of action in ordinary and concise language, and should allege ultimate facts that, as a whole, apprise defendant of the factual basis of the...

Excerpt: ...nded settlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. The Settlement does not include a definition for Aggrieved Employees, nor is there a separate PAGA period in the Settlement. Was this intentional? 2. It appears that the employer's share of payroll taxes will be paid from the gross settlement amount. E.g., Settlement, at § 5.1.8. Why is Defendant not responsible for paying its share of payroll...

Excerpt: ...ons awarded may only be based on the reasonable expenses “incurred by anyone as a result of that conduct” and be reasonable. (Id. at 790-791; see also, Ghanooni v. Super Shuttle (1993) 20 Cal.App.4 th 256, 262-263 [trial judge erred in imposing what was essentially a $1,100 penalty in monetary sanctions for the refusal to make discovery even where a prior order was in effect].) Reasonable expenses may include attorney fees, filing fees, refer...

Excerpt: .... 3 and 5, and ¶8 are SUSTAINED. Defendant objects to Exhibits 11 and 12 to the Request for Judicial Notice. The objections to Ex. 11 is OVERRULED and the objection to Ex. 12 is SUSTAINED. Plaintiff's request for judicial notice is DENIED as to Exhibits 11 and 12. These exhibits are being offered for the truth of the matters stated but the Court may not take judicial notice of hearsay statements or disputed facts. (Sosinksy v. Grant (1992) 6 Cal...

Excerpt: ...e petition was served, and this deadline may be extended by agreement of the parties, or for good cause by order of the court. CCP § 1285.6 sets forth the requirements of the contents of a response to a petition. Unless already included in the petition, the response must include the substance of or a copy of the arbitration agreement unless respondent disputes its existence, the names of the arbitrators and the written opinion, if any, of the ar...

Excerpt: ...isdiction founded on the defendant's minimum contacts with the forum. (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229; Bank of America v. Jennett (1999) 77 Cal.App.4th 104, 115.) On a motion challenging the assertion of personal jurisdiction, the plaintiff has the burden of proof. (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413; Burdick v. Superior Court (2015) 233 Cal.App.4th 8, 17.) The plaintiff must meet...

Excerpt: ...RRULED. Defendants' objections (ROA 1251 and 1254) to Plaintiff's Request for Judicial Notice are OVERRULED. Plaintiff's request for judicial notice (ROA 1192) is GRANTED. The Court SUSTAINS Plaintiff's Objection No. 1 (ROA 1264) to the entirety of the Philips Declarations and exhibits thereto (ROA 1251 and 1256) for noncompliance with CCP § 2015.5 for failing to state they were signed under penalty of perjury under the laws of the State of Cali...

Excerpt: ... action. (People v. Superior Court (Cahuenga's the Spot) (2015) 234 Cal.App.4th 1360, 1376.) A complaint need only meet fact-pleading requirements, which requires a statement of facts constituting a cause of action in ordinary and concise language, and should allege ultimate facts that, as a whole, apprise defendant of the factual basis of the claim. (Code Civ. Proc. §425.10(a)(1); Navarrete v. Meyer (2015) 237 Cal.App.4th 1276, 1284.) In ruling...

Excerpt: ...ion to Seal Financial Records is GRANTED in part. Defendant argues this Court ordered it to produce its financial records, but the Court did not make any such order. See ROA 64, Minute Order. This argument does not support sealing of any records. Defendant filed the Dabi Declaration under seal and seeks to keep confidential its profit and loss statements for fiscal years 2019-2020 and 2020-2021, which are attached as Exhibits A and B to the Dabi ...

Excerpt: ...hler (2010) 181 Cal.App.4th 1153, 1169.) Service on counsel of the OSC re Contempt is not sufficient. Cedars-Sinai makes it clear service on counsel is an exception to the general rule available only when the citee is intentionally avoiding service. (83 Cal.App.4th at 1286-87 [service must be made in the same manner as service for summons and unless the citee has been concealed from the court, personally service is required].) Consequently, the C...

Excerpt: ...ettlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. The Settlement provides that the Settlement Administrator's determination of disputes will be final and non-appealable. Settlement, §13. This must be revised. The parties should file with the Court all disputes submitted by class members, the evidence submitted, and the resolution of those disputes. The Court shall have the right to review any decis...

Excerpt: ...ithholding, whether she is complying in part because of an inability to comply, and if so, the reason for the inability to comply. Plaintiff fails to disclose if documents are withheld based on privilege, or the particular privilege asserted for the documents, and she has failed to provide a privilege log. (See Code Civ. Proc. § 2031.240(a), (b), (c)(1); Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 901 [objections constitute im...

Excerpt: ...ndant contends the proposed new claims are barred by res judicata based on the settlement in the related Gonzalez Action and that the additional proposed PAGA representatives waived their right to be PAGA representatives based on Releases they allegedly signed when they were terminated from their employment. However, Defendant concedes at least some of the new claims are not barred by to the Gonzales judgment, such as the failure to provide a saf...

Excerpt: ...tation of the filing date based on CRC Rule 2.259(a). An honest mistake of law is a valid ground for relief when the legal problem posed “ ‘is complex and debatable.' ” (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 360, 243 Cal.Rptr. 617; Brochtrup v. Intep (1987) 190 Cal.App.3d 323, 329, 235 Cal.Rptr. 390.) The controlling factors in determining whether a mistake of law is excusable are the reasonableness of the misconcepti...

Excerpt: ...ying this action based on forum non conveniens because of a parallel earlier-filed Texas Action. Defendants NP Skyloft St, LLC and NP Skyloft JV, LLC join in Moving Defendants' Motion for Stay. For the reason set forth below, the Motion and Joinder are GRANTED. Moving Defendants bear the burden of proving that California is an inconvenient forum. (Ford Motor Co. v. Ins. Co. of North America (1995) 35 Cal.App.4th 604, 610- 11.) There must be evide...

Excerpt: ...settlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. Was the Motion served on the LWDA? 2. Should the Settlement include Coolsys, Inc. since it is a named defendant in the Complaint and operative First Amended Complaint? ROA 2, Complaint, at ¶9 and ROA 50, First Amended Complaint, at ¶12. 3. The average individual PAGA settlement payment was not provided. 4. The definition of “Released Parties” is...

Excerpt: ...rder. In the event the parties cannot agree on the Belaire West notice and protective order, the Court sets a hearing on August 26, 2021, and orders the parties to file a joint statement of issues in dispute at least 5 court days prior to the continued hearing. The costs for the Belaire West notice will be shared 50/50 by the parties. With certain exceptions, parties have a right to inquire about any matter which – based on reason, logic and co...

Excerpt: ...”, to avoid use of limited Court time and resources. As to the Settlement 1. Given the scope of the settlement, the Release is overly broad and should be limited to the claims for injunctive relief asserted in the Complaint. The Release should continue to expressly state that expressly excluded from the release are any statutory monetary damages claims, punitive damages or any monetary relief of any kind. 2. The Release should specify an actual...

Excerpt: ...ment as a matter of law. (Code Civ. Proc. § 437c(c).) A moving defendant is entitled to summary judgment if it establishes either one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc. § 437(c)(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the moving defendant meets its initial burden of production to make a prima facie showing that th...

Excerpt: ... to provide certain evidence to the opposing party as required by the discovery rules, preclusion of that evidence may be appropriate, even if such a sanction proves determinative in terminating the plaintiff's case. But “ ‘[t]he ratio decidendi behind such cases[ ]' ... is ‘that a persistent refusal to comply with an order for the production of evidence is tantamount to an admission that the disobedient party really has no meritorious clai...

Excerpt: ... attempts to meet and confer and EMI's repeated assurances that responses would be provided. ROA 95, Lin Decl., at ¶12; ROA 105, Lin Decl., at ¶¶8-12; ROA 118, Lin Decl. re Meet and Confer Efforts, at pp. 4-5 and Ex. 1. The motions to compel responses to RPD #1 and SI #2 are GRANTED. EMI is ordered to provide responses to RPD #1 and SI #2, without any objections, within 30 days. Plaintiff also requested to inspect and copy all documents respon...

Excerpt: ...lement agreement”, to avoid waste of limited Court time and resources. As to the Settlement 1. There is no proof of service showing the LWDA was served with this Motion. 2. The Settlement designates 80% of the settlement payment “as wages, penalties, damages and interest” and 20% to the Former Employee Settlement Fund. Settlement, at ¶55.A.i and ii. Did the parties intend to have separate percentage designated for the PAGA payment? How wil...

Excerpt: ...nal Area Emergency Operations Center Press Release #014 issued March 20, 2020 is GRANTED, as to the existence and legal effect of the records but not as to the truth of the matters asserted. (Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4 th 471, 482.) A motion for judgment on the pleadings may be made, and granted, on the same grounds as a general demurrer. (Stoops v. Abbassi, supra, 100 Cal. App. 4th at 650; Code Civ. Proc. § 438...

Excerpt: ...nctions against Seller Defendants and their counsel. ROA 765-768, 772-775, 779-782, 786-789. These motions were based, in part, on the Seller Defendants' failure to appear for their noticed depositions in violation of this Court's February 24, 2020 Order Authorizing Jurisdictional Discovery (ROA 632), including depositions. On August 13, 2020, at the hearing on the initial motions, the Court expressly found “no merit” in the bases for Seller ...

Excerpt: ...es shall also provide redline copies of the revised notice and proposed order. A judgment in a PAGA action “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias v. Superior Court (2009) 46 Cal.4th 969, 986.) Thus, “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams...

Excerpt: ...whose interest is such that: (1) In the person's absence, complete relief cannot be accorded among those already parties to the action; or (2) Any judgment rendered in the person's absence might either (a) prejudice the person's ability to protect his or her interest in later litigation; or (b) leave any of the parties before the court exposed to a risk of additional liability or inconsistent obligations. (Code Civ. Proc. § 389(a); see Olszewski...

Excerpt: ...e all or any of the issues in an action or proceeding, whether of fact or of law, and to report a statement of decision. (b) To ascertain a fact necessary to enable the court to determine an action or proceeding. CCP § 638 “authoriz[es] courts to transfer a dispute to a referee” pursuant to a written agreement between the parties. (Grafton Partners L.P. v. Sup.Ct. (PriceWaterhouseCoopers L.L.P.) (2005) 36 Cal.4th 944, 960-961.) Where the par...

Excerpt: ...tisfied their discovery obligations." Reply 6: 9-10. As the issue of discovery depends on the Court's determination of Petitioner's request to file an amended petition, leave to amend is addressed first. There is no dispute that the Arbitration Award was issued and served on August 20, 2020, that under CCP section 1288 the 100-day period to file and serve a Petition to Vacate the award ended on November 28, 2020, and that Petitioner timely filed ...

Excerpt: ... defense to that cause of action. (Code Civ. Proc. § 437(c)(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) To show that a claim cannot be established, moving defendant must present affirmative evidence negating, as a matter of law, an essential element of plaintiff's claim (Guz v. Bechtel Nat'l, Inc. (2000) 24 Cal.4th 317, 334; Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 849 fn. 16), or show the absence of evidence to ...

Excerpt: ...ts) seek summary judgment on Plaintiff The People of the State of California's (People) Sixth Amended Complaint (6AC), or in the alternative, summary judgment on the First Cause of Action for Violations of the False Advertising Law, Second Cause of Action for Violations of the Unfair Competition Law, and Third Cause of Action for Public Nuisance. The Motion is DENIED in its entirety. Request for Judicial Notice The Court GRANTS Defendants' reques...

Excerpt: ...he has expressly agreed to do so by entering into a valid and enforceable written contract with the party who seeks arbitration.”].) Even though the law favors agreements for arbitration of disputes, “there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate …” (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744 [internal quotes omitted].) When presented with a motion to compel ...

Excerpt: ...lement agreement”, to avoid unnecessary use of limited Court time and resources. As to the Settlement 1. Although Plaintiff's counsel indicates the Settlement was submitted to the LWDA (Marquez Del., at ¶8), there is no proof of service of the Settlement or the Motion for Preliminary Approval on the LWDA. The LWDA must be given notice of the Settlement and any related motions. Any supplemental brief and/or amendments made pursuant to this Orde...

Excerpt: ...lement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. There is no proof of service of this Motion on the LWDA. Confirm whether the LWDA was provided notice of this Motion. Any supplemental brief and/or amendments made pursuant to this Order should also be filed with LWDA along with notice of the continued hearing date, with a proof of service submitted to the Court. 2. The definition of “Released Parties...

Excerpt: ...f the Keefe Family 2006 Trust are GRANTED as to Trilogy, the Langenwalter Family Revocable Living Trust, and the Keefe Family 2006 Trust and CONTINUED to March 25, 2021 as to David E. Keefe, individually and Richard D. Langenwalter, individually. The remedy of attachment is wholly statutory, its scope and procedure are limited by the statutes, and these statutes are strictly construed., i.e. unless specifically provided for by the attachment law,...

Excerpt: ...tlement agreement”, to avoid waste of limited Court time and resources. As to the Settlement 1. Was notice of this hearing provided to the LWDA? Any supplemental brief and/or amendments made pursuant to this Order should also be filed with LWDA along with notice of the continued hearing date, with a proof of service submitted to the Court. 2. Why is Defendant's share of payroll taxes being paid out of the gross settlement amount instead of in a...