Excerpt: ...and the Fourth Cause of Action for Usury and Loan Sharking as against Manchester and MFG. Standard. "CF]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one that is sufficient to support the position of ...

Excerpt: ...ting amendments to the complaint at any stage of the proceedings, up to and including trial," unless prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) log Cal .App.4th 739, 761.) It is a "rare case" in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal. App. 3d 155, 158 (citation omitted); Kittredge Sports Co. v. Superior court (1989) 213 cal.App.3d 1045, 1048.) This liberality only app...

Excerpt: ... Arbitration Agreement is unconscionable. ROA 38, Opp., p. 2. The party opposing arbitration bears the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. Enga\la v. Permanente Medical Group, Inc. (1997) 15 Cal.4&' 951, 971.) Plaintiff argues the Arbitration Agreement is procedurally and substantively unconscionable. Unconscionability. Procedural unconscionability, which focuses on oppression or surprise due ...

Excerpt: ...eement is directed, rather than 'amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 2. 3. 4. 5. 6. Issues 2. 3. 4. 5. Was the L WDA served with the moving papers? The proof of service must be filed with the Court. The Court generally prefers 60 days for the Response Deadline. Why should the Response Deadline be shorter in this case? The requirement that Objections must state whether the Objecti...

Excerpt: ...is directed, rather than "amended settlement agreement", to avoid waste of limited Court time and resources. As to the Settlement . Defendants cannot be in default for failing to fully fund the MSA by November 1, 2024 if they are permitted to pay in monthly installments from February 1, 2023 to December 1, 2024, with a final payment by January 1, 2025. Settlement, "3.06.a and f. Why should Exclusion Requests and Disputes not be treated the same a...

Excerpt: ...s section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or ...

Excerpt: ...trial," unless prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) log Cal.App.4th 739, 761.) It is a "rare case" in which denial of leave to amend can be justified. (Douglas v. Superior Court (1989) 215 Cal. App. 3d 155, 158 (citation omitted); Kittredge Sports Co. v. Superior Court (1989) 213 cal.App.3d 1045, 1048.) This liberality only applies so long as there is no prejudice to the opposing party. (Higgins v. Del Faro (1981...

Excerpt: ...ate, the drafting party [Defendant] is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee . . . to proceed with that arbitration as a result of the material breach.” Here, it is undisputed that after the Court granted Defendant's Motion to Compel Arbitration, Plaintiff initiated and served a Demand for Arbitration with JAMS on October 28, 2022. ROA 74, Ly Decl., ¶¶11-...

Excerpt: ...iled by the County. The County's Response correctly sets forth the law applicable to this motion, and also corrects the factual record in an important respect concerning other late and/or unresolved discovery responses by Plaintiff. The County ultimately submits to the discretion of the Court in determining whether, under all the circumstances, relief should be granted. Pursuant to Code of Civil Procedure sections 2030.290(a) [interrogatories], 2...

Excerpt: ...l's Request for Judicial Notice (ROA 1371) is GRANTED. GF Capital's Request for Judicial Notice (ROA 1434) is GRANTED. Evidentiary Objections. The objections (ROA 1437) to paragraph 7, lines 22-24 of the Park Declaration are OVERRULED. Objection Nos. 1, 2, 4, 5, 7, and 8 (ROA 1436) to the Stahl Declaration are OVERRULED. Objection No. 3 is SUSTAINED as to the characterization of the denial as “wrongful”. The parties dispute centers on two iss...

Excerpt: ...id use of limited Court time and resources. The parties shall also provide redline copies of the revised Notice and Proposed Ordre. 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...

Excerpt: ...ment 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 2. 3. 4. 5. 6. 7. 8. g. The PAGA Notice letter(s) to the L WDA must be submitted to the Court. The stipulated class set forth in the Settlement does not match the proposed class in either Diaz's SAC or Salazar's FAC. see, ROA 74 at 21 and ROA 123 ...

Excerpt: .... It is undisputed that Plaintiff satisfied the procedural requirements for bringing these motions (ROA 218, NOM and POS and 21 g, NOM and POS) and that Defendant did not withdraw its Motion to Compel Arbitration within the safe harbor (ROA 247). (Code Civ. Proc. Pursuant to CCP 128.5(a) "[a] trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a resu...

Excerpt: ...OA 1332) as it was not relevant to the ruling on this matter. It is undisputed that Pickell agreed to produce non-privileged documents in response to these RPDs but did not do so because Plaintiffs and Cohen alleged Pickell acted as their counsel. Although Pickell disputes that he had any attorney-client relationship with Plaintiffs or Cohen, Pickell argued that he could not produce any documents in response to Cohen's RPDs unless and until they ...

Excerpt: ...iSave Employee Manual (Acknowledgment) electronically signed by Plaintiff. ROA 23, Garcia Decl., 'IT15-7 and Exs. A (Acknowledgment] and B [Arbitration Agreement], p. 13-14. Plaintiff does not dispute that he signed the Acknowledgment. ROA 38, Yeganeh Decl., Tl'12-4. Nor is there any dispute that this action is encompassed within the Arbitration Agreement. ROA 23, Garcia Decl., 117 and Ex. B, p. 13, 112. Thus, Defendant met its initial burden of ...

Excerpt: ...t agreement is directed, rather than "amended settlement agreement", to avoid use of limited Court time and resources. As to the Settlement 2. 3. 4. 5. 6. 7. 8. The PAGA Notice letter(s) to the L WDA must be submitted to the Court. The parties should reconsider the releases in the Settlement Agreement (Agreement). As currently defined, "Settled Claims" creates ambiguity and conflicts regarding what is being released. For example, "Settled Claims"...

Excerpt: ...ed. The requirements for judgment under CCP 664.6 are: 2. 4. There is a valid and binding settlement agreement of all or part of the case; The parties agreed to all material settlement terms; If it is a written stipulation, the writing is signed by both parties; The settlement agreement was made pending litigation; A Motion to Enforce is made. (Code Civ. Proc. 664.6; Weil, et al., (The Rutter Group) Cal. Prac. Guide: Civ. Proc. Before Trial 'IT11...

Excerpt: ....) All factual allegations set forth in the complaint "are deemed to be true, however improbable they may be." (De/ E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) Facts which are not specifically alleged but which may be reasonably inferred or implied from the matters alleged may be considered. (Parada v. City of Colton (1994) 24 Cal. App. 4th 356, 362.) A demurrer admits all material facts properly pleaded, bu...

Excerpt: ...inued to address the newly published opinion, Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App. 5th 746, 766-767 (Wesson), which held that the court has the authority to strike PAGA claims based on manageability. As a result, this Court permitted Plaintiff to file a supplemental opposition and to submit a trial plan. ROA 296. As explained in Wesson, manageability requires that individual issues can be tried fairly and efficiently, w...

Excerpt: ...is GRANTED, in the terms set forth below. While the Court largely agrees with CTC Defendants that there presently does not appear to be a disagreement (or confusion) regarding the definition/scope of the class claims, the class definition is so central to the case that complete clarity is in the interest of all parties. The class sought to be certified is hereby defined as follows: "The Class Definition as set forth in the operative 5th Amended C...

Excerpt: ...parties agreed to arbitrate Plaintiff's PAGA claims. The Arbitration Agreement is broad and encompasses "any and all claims or controversies in any way arising out of, relating to or associated with Employee's employment", including "claims for wages or other compensation due" and claims under the Fair Labor Standards Act, the California Labor Code and Wage Orders and "any other statutory or common law claims relating to employment, the recruitme...

Excerpt: ...n agreements relied upon by Defendant were (according to Defendant) signed by Plaintiffs on February 4, 2020 and May 6, 2020, respectively. Wang Decl., Exs. A and B. (ROA 37). Each of the agreements expressly excepts from arbitration “claims that are not subject to arbitration under current law." Defendant argues that "current law" should be read as retroactively established by Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. The Co...

Excerpt: ...e “death knell” doctrine, an order which allows plaintiff to pursue individual claims but prevents plaintiff from maintaining claims as a class action is treated as a final judgment and is immediately appealable if it entirely terminates the class claims. (In re Baycol Cases I & II (2011) 51 Cal.4 th 751, 757-758, citing Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695.) “What mattered was not the form of the order or judgment but its impact.”...

Excerpt: ... face of the pleading or which are apparent from other matters properly subject to judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) All factual allegations set forth in the complaint “are deemed to be true, however improbable they may be.” (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) Facts which are not specifically alleged but which may be reasonably inferred or implied from the matter...

Excerpt: ... agreement is directed, rather than “amended settlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. The settlement and proposed notices address the fact that a prior notice was sent to the class, but do so in a manner that is potentially ambiguous and/or misleading. By way of example, in the settlement agreement, while the class is defined as present owners who have not replaced or coated their piping...

Excerpt: ...o the settlement agreement is directed, rather than “amended settlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. Plaintiff must submit all PAGA Notice letter(s) to the LWDA to the Court. 2. Did the parties intend to include an escalator clause? In Section 3.06(a) the Settlement provides that the gross settlement amount is “subject to a pro rata increase under the conditions set forth in Section 3...

Excerpt: ...agreement is directed, rather than “amended settlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. The class notice to non-arbitration owners has the typical language that if the recipient does nothing, he or she will receive their share of the settlement fund. That language should be revised to reflect the reality here. A prior owner who replaced or coated their piping must submit a Prior Owner Verif...

Excerpt: ...the settlement agreement is directed, rather than “amended settlement agreement”, to avoid use of limited Court time and resources. As to the Settlement 1. The settlement and proposed notices address the fact that a prior notice was sent to the class, but do so in a manner that is potentially ambiguous and/or misleading. By way of example, in the settlement agreement, while the class is defined as present owners who have not replaced or coate...

Excerpt: ... or disallowed under CCP § 1033.5: 1. Item 4 Deposition Costs - $495.88 for travel expenses in connection with the deposition of Walter Apodaca; 2. Item 5 Service of Process - $618.75 for fees related to service of process on Christopher Swope ($90), Carlos Ontiveros ($75), Darren Weiland ($90), Mark Lamunyon ($90), Scott Clayon ($90), Tim Jones, Jr. ($75) and David Curtis ($108.75); 3. Item 16 Other - $4,691.84 in trial travel expenses for Walt...

Excerpt: ...and Adreani, LLP. Defendant filed an omnibus opposition to the Motions. ROA 226, Opp. Defendant did not submit a response to Plaintiff's separate statement of issues in dispute. Special Interrogatories (SI) SI Nos. 11 – 16 and 21 and 22: These interrogatories seek the names and contact information of Defendant's employees from October 1, 2018 to the present and who worked at Capital Logistics and whose wages statements showed their full nine di...

Excerpt: ... and contends that the respective Motions are moot and no judicial intervention is necessary. ROA 83, Opp SS; ROA 85, Larsen Decl., ¶10 and Ex. F; ROA 87, Opp. SS; ROA 89, Larsen Decl., ¶6 and Ex. E. Plaintiff has not filed any reply briefs, and as such, has not disputed Defendant's contention. Consequently, the Court considers the Motions as to the FIs and RFAs are MOOT, and therefore, DENIED. As for further responses to SI, Defendant has alre...

Excerpt: ...e records are not relevant to the ruling in this matter. Relevant Law. “The threshold question presented by every petition to compel arbitration is whether an agreement to arbitrate exists. The party seeking to compel arbitration bears the burden of proving by a preponderance of the evidence an agreement to arbitrate a dispute exists.” (Trinity v. Life Ins. Co. of N. Am. (2022) 78 Cal. App. 5th 1111, 1120, citations omitted; Code Civ. Proc. �...

Excerpt: ...irmative defense or claim for damages is proper when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law on that issue. (Code Civ. Proc. § 437c(c), (f)(1).) “When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion “only if it completely disposes” of the defense. (Code Civ. Proc., § 437c, subd. (f)(1), italics added.) The plaintiff ...

Excerpt: ...to constitute 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 shoul...

Excerpt: ... Summary judgment is proper when there are no triable issues of material fact and the moving party is entitled to judgment 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 C...

Excerpt: ..., and (3) 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 sanc...

Excerpt: ...reement is directed, rather than “amended settlement agreement”, to avoid use of limited Court time and resources. Plaintiff is also reminded to properly bookmark his papers. 1. The parties must submit a fully executed Addendum to the Amended Settlement. 2. The parties should explain why a Claims Form is necessary in order to receive a settlement payment. Why should Class Members who do not submit a Claim Form also be required to opt out? 3. ...

Excerpt: ...e Court granted a stay for “all purposes” within the meaning of CCP § 583.340 based on overlapping claims in the earlier filed Hayward Action. However, as an exception to the stay, Plaintiff was permitted to seek leave to file a First Amended Complaint by stipulation or duly noticed motion without violating the stay. ROA 116, 7/21/2022 Minute Order. The Court also advised that it would “revisit” the stay on September 30, 2022 status conf...

Excerpt: ...ial notice of Exhibit 2, Certificate of Incorporation of Adaptive Modular Solutions, Inc. filed on September 18, 2018 with the Delaware Secretary of State and Exhibit 3, Certificate of Amendment of Certificate of Incorporation of Adaptive Modular Solutions, Inc. filed on February 22, 2019 with the Delaware Secretary of State. The Court DENIES WindSail Cross-Defendants' request for judicial notice of Exhibit 1, Key Employee Incentive Agreement dat...

Excerpt: ...stay. Plaintiff Salvation Investment, LLC (Salvation), Plaintiffs West Coast Lending, Inc., Trenton Rhodes, and California Anchor Consulting, Inc. (collectively, West Coast Plaintiffs), Intervening Plaintiffs Norman Rockmaker, as Trustee of the Norbrite, Inc. Retirement Trust, Alice Noble, as Trustee of the Noble Family Trust dated 11/21/1983), Mike Rozenblatt as Trustee of the Manhattan Revocable Trust dated 4/16/2013 and Eric Windeman (collecti...

Excerpt: ...t agreement is directed, rather than ‘amended settlement agreement', to avoid use of limited Court time and resources. As to the Settlement 1. Plaintiff must provide to the Court all PAGA Notice letters to the LWDA. 2. The Class release should be simplified and limited to “any and all claims, … pleaded or that could have been pleaded, based on the facts alleged in the Operative Complaint.” 3. Similarly, the PAGA release should be limited ...

Excerpt: ... not relevant the Court's ruling. ROA 53. Relevant Law. “The threshold question presented by every petition to compel arbitration is whether an agreement to arbitrate exists. The party seeking to compel arbitration bears the burden of proving by a preponderance of the evidence an agreement to arbitrate a dispute exists.” (Trinity v. Life Ins. Co. of N. Am. (2022) 78 Cal. App. 5th 1111, 1120, citations omitted; Code Civ. Proc. § 1281.2.) Whil...

Excerpt: ...Associates (BHA). BHA was hired by Western National Construction as its expert in a prior litigation by Defendants against Western National Construction. ROA 989, Turgliatto Decl., ¶3. In that prior litigation, Defendants contended that Western National defectively constructed the Newport Bluffs apartments resulting in water intrusion and mold. ROA 960, Sampson Decl., ¶12. As an expert in the prior litigation, BHA conducted inspections, took ph...

Excerpt: ...st judicial notice is DENIED because Defendant fails to specify the other matters of which it seeks judicial notice. Plaintiff's request for judicial notice (ROA 158) is DENIED because the arbitration agreement in Viking River Cruises, Inc. v. Moriana (2022) 142 S. Ct. 1906 is not relevant to the Court's ruling. Objections. Plaintiff's Objections (ROA 166) to the ROA 119, Nazihi Declaration are SUSTAINED as to Nos. 1, 3, 4 and 6 and OVERRULED as ...

Excerpt: ...ps, and Michael L. Meyer (collectively, TwinRock Defendants) from involuntarily withdrawing Intervenors as members of MO Murrayfield, LLC (Murrayfield); or to the extent Intervenors have already been involuntarily withdrawn as members of Murrayfield, ordering TwinRock to immediately reinstate Intervenors as members of Murrayfield; and enjoining TwinRock from withdrawing Intervenors as members of Murrayfield absent a Court order during the pendenc...

Excerpt: ...ew residential units where the purchase agreement with the buyer was signed by the seller on or after January 1, 2003.” (Civ. Code § 938.) It is undisputed that the Right to Repair Act applies here since Plaintiff made a claim under the statute. Civil Code § 910 requires that the homeowner “provide written notice via certified mail, overnight mail, or personal delivery to the builder, in the manner prescribed in this section, of the claiman...

Excerpt: ...ration, for the reasons set forth below. Defendant Express Services, Inc. (ESI) moves to compel Plaintiff to binding arbitration of his individual PAGA claims and seeks dismissal of his representative PAGA claims. Defendant Jellco Container, Inc. (Jellco) joins in the Motion. The Court SUSTAINS ESI's objections (ROA 70) to the ROA 62, Sorroza Declaration as to the portion of his statement “containing materials shipped and received all throughou...

Excerpt: ...e § 201-203 (Waiting Time Penalties Subclass);  Subclass B: All Class Members employed during the time from January 29, 2017, through Class certification, who incurred reasonable business expenses in the discharge of their duties and were not reimbursed (Expense Reimbursement Subclass);  Subclass C: All Class Members employed during the time from January 29, 2017, through Class certification, who did not receive accurate itemized wage stat...

Excerpt: ... of limited 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, “to determine whether it is fa...

Excerpt: ...Plaintiff; (3) Plaintiff's negligence claim fails because Plaintiff cannot establish that Olympus caused or contributed to Plaintiff's alleged injuries; and (4) Plaintiff was a “sophisticated user” of the products at issue. Evidentiary Objections: Olympus' objections (ROA 783) to paragraphs 12 and 13 of the ROA 735 (Redacted) and 748 (Unredacted) Metzger Declaration and Exhibits A-I are SUSTAINED. Request for Judicial Notice: Olympus' ROA 614...