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 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...