Excerpt: ...ations 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 ultimate facts that, as a whole, apprise defendant of the factual...

Excerpt: ...p.4 th 314, 318.) The inquiry on such a motion is limited to the “probable validity” of the lien. (Ibid.) As the lien claimant, Acon bears the burden to establish the probable validity of its mechanics lien by a preponderance of the evidence. (Id. at 319.) Thus, Acon must establish a prima facie case for its lien, and if opposed, the Court must consider the relative merits of the positions of the respective parties and make a determination of...

Excerpt: ... to the allegedly duplicative PAGA causes of action. In the Blanchard Action, Plaintiff sues only for civil penalties (along with attorney's fees and costs) pursuant to Labor Code section 2699. The defined “aggrieved employees” are those from December 6, 2018 through date of judgment. In this Action, Plaintiff seeks class certification of an “Overtime Class,” for a 4 year period immediately preceding the filing of the complaint; a “Wage...

Excerpt: ...he defendant and continues to run until the action is “brought to trial.” (Code Civ. Proc. § 583.310.) The 5-year period in which an action must be brought to trial is tolled (extended) by any period of time during which:  The court's jurisdiction to try the action was suspended (Code Civ. Proc. § 583.340(a)); or  Prosecution or trial of the action was stayed or enjoined (Code Civ. Proc. § 583.340(b)); or  Bringing the action to t...

Excerpt: ...onstitutes 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 claim. (Code Civ. Proc. §425.10(a)(1); Navarrete v. Meyer (2015) 237 Cal.App.4th 1...

Excerpt: ... deductions or conclusions of fact or law. The court may also consider matters which may be judicially noticed. Further, the court gives the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a complaint makes both general allegations and specific allegations, and a conflict or inconsistency exists between them, the specific allegations control over the in...

Excerpt: ...ercise of constitutional rights. The purpose of a SLAPP suit is to punish and distract those that oppose the suing party [plaintiff or cross-complainant] by threatening ruinous damages and imposing litigation costs for exercising their free speech rights. (Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 741.) To protect the constitutional right of petition and free speech, the SLAPP statute is broadly construed. (Code Civ. Proc. § 425.16(a).)...

Excerpt: .... The Subpoena seeks the Berman Firm's entire litigation file related to its representation of Pacific Hydrotech Corporation (“PHC”) in the underlying action, Gonzalez v. Pacific Hydrotech Corporation, Orange County Superior Court, Case No. 2016-00861439 (“Gonzales Action”) (RPD 1); all communications between the Berman Firm and PHC (RPD 2); all communications between the Berman Firm and James River (RPD 3); all communications between the...

Excerpt: ...enue is proper where defendant is a resident applies. (California State Parks Foundation v. Superior Court (2007) 150 Cal. App. 4th 826, 833.) CCP §395(a) sets forth the general venue statute and provides in relevant part: “Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the com...

Excerpt: ... Baker Electric, Inc. (2019) 32 Cal.App.5 th 602, 613.) Plaintiff has complied with the timing requirements under the general motions statute. Even if the arbitration petition statute did apply, that statute permits this Court to extend the time for a response for good cause. Similarly, this Court may consider late-filed oppositions for good cause if there is no undue prejudice to the moving party and in furtherance of the strong policy favoring ...

Excerpt: ...ck Parties (collectively, “Defendants”) make the same arguments, and therefore, are discussed together. The Subpoena seeks essentially all Bank records regarding or related to Defendants Mo Murrayfield, LLC (“Murrayfield”), Mo Azzurri, LLC (“Azzurri”), TRP Fund, TwinRock Partners, LLC (“TwinRock Partners”), TwinRock Holdings, LLC (“TwinRock Holdings”) and TwinRock Management Inc. (“TwinRock Management”) (collectively, “S...

Excerpt: ...be appointed as Liason Counsel, and to have an Executive Committee appointed, made up of a representative from each of the five cases. Counsel in the Dias, Knipe and Romero cases seek to have three attorney firms appointed as Co-Lead Counsel, and to have attorneys Silverstein and Westerman appointed as Liaison Counsel. This case is now proceeding under the “Consolidated Complaint for Civil Penalties Pursuant to the Private Attorneys General Act...

Excerpt: ...s impracticable to bring them all before the court …” “The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. [Citations.] In turn, the community of interest requirement embodies three factors: (1) predominant common questions of la...

Excerpt: ...Inc. v. DavisReed Construction, Inc., Case No. 30- 2018-00996904; 5. Kone, Inc. v. DavisReed Construction, Inc., Case No. 2018-01007275; 6. Empire Insulation, Inc. v. DavisReed Construction, Inc., Case No. 30-2018- 01007452; 7. Traditions Drywall, Inc. v. DavisReed Construction, Inc., Case No. 30-2018- 01008344; 8. Troxy Enterprises, Inc. v. DavisReed Construction, Inc., Case No. 30-2018- 01010315; 9. Qwest Engineering, Inc. v. The Waterfront Hot...

Excerpt: ...ch discovery is reasonably calculated to lead to evidence admissible under section 1094.5.” (Pomona, supra, 55 Cal.App.4th at 102.) “[D]iscovery under section 1094.5, unlike general civil discovery, cannot be used to go on a fishing expedition looking for unknown facts to support speculative theories.” (Pomona, supra, 55 Cal.App.4th at 102). “The stringent requirements set forth in section 1094.5, subdivision (e) require the moving party ...

Excerpt: ..., against Defendant Cylance, Inc. (“Cylance”) and (2) to arbitrate all his claims, except his PAGA claims, against Blackberry Corporation (“Blackberry”) through April 30, 2019. Saunders does not dispute that he entered into an Agreement and Acceptance of Arbitration Agreement (“AAA”) with Defendant Cylance, Inc. (“Cylance”) that encompasses this dispute. Regarding Blackberry, Defendants have shown only that Saunders agreed to arbi...

Excerpt: ...re applicable in determining if a complaint states a cause of action.” (South Shore Land Co. v. Petersen (1964) 226 Cal. App. 2d 725, 732.) A determination of the sufficiency of an answer requires an examination of the complaint because the adequacy of the answer is with reference to the complaint it purports to answer. (Id. at 733.) Further, the same pleading of ultimate facts rather than legal conclusions is required in pleading an answer as ...

Excerpt: ...t be a valid arbitration agreement between the parties. (Code Civ. Proc., § 1281.2; Chiron Corp. v. Ortho Diagnostic Sys., Inc. (9th Cir. 2000) 207 F.3d 1126, 1130.) Moving party bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal); Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Def...

Excerpt: ...cted, rather than an “amended joint stipulation,” so as to avoid use of limited Court time and resources. A redlined copy of any amended Notice Packet materials should also be submitted for the Court's reference and convenience. As to the Settlement Agreement 1. Plaintiff's counsel seeks attorneys' fees of 1/3 of the Gross Settlement Amount (“GSA”) (SA, ¶¶ 16, 50.) The GSA includes amounts paid by Defendant under the Direct Settlement P...

Excerpt: ...g times: (a) After the claimant ceases to provide work. (b) Before the earlier of the following times: (1) Ninety days after completion of the work of improvement. (2) Thirty days after the owner records a notice of completion or cessation. While the briefs suggest disagreement on the applicable standard, the parties each cite to Civil Code §8180(a)(2) and authority discussing the same. Ultimately, the parties agree that occupation “accompanie...

Excerpt: ... on Defendants' motion to permit Leonard an opportunity to submit admissible evidence as to the presence of mold in his unit and causation of his injuries. Following a hearing on July 9, 2020, on July 10, 2020, the Court issued a minute order further continuing the hearing to July 30, 2020. On July 30, 2020, the Court continued the hearing to September 10, 2020 and allowed for limited supplemental briefing. Regarding the continuances in this matt...

Excerpt: ...nd Defendant's objections to attorney Wong's declaration in support of the opposition (ROA 121), the Court SUSTAINS the hearsay objections but OVERRULES all other objections. Both declarants declare that they spoke to the same Anaheim police detective who is investigating Defendant. Unless the facts are declared by both attorneys, the court will not consider the detective's statements for the truth of the matter asserted therein, but may consider...

Excerpt: ...sonably calculated to lead to evidence admissible under section 1094.5.” (Pomona Valley Hospital Medical Center v. Superior Court (1997) 55 Cal.App.4th 93, 102). “[D]iscovery under section 1094.5, unlike general civil discovery, cannot be used to go on a fishing expedition looking for unknown facts to support speculative theories.” (Pomona, supra, 55 Cal.App.4th at 102). “The stringent requirements set forth in section 1094.5, subdivision...

Excerpt: ...re-review of previously filed documents. A redlined copy of any amended Notice Packet materials should also be submitted for the Court's reference. As to the Settlement 1. It appears that in section 1.24, Participating Class Members should mean "those Settlement Class Members and PAGA Members . . ." 2. The Settlement Class Released Claims includes a release of PAGA claims, but it is unclear whether such overlap with the PAGA Released Claims is ap...

Excerpt: ....) “The evident purpose of the notice requirement is to afford the [LWDA], the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge of the allegations an aggrieved employee is making and any basis for those allegations. Notice to the employer serves the purpose of allowing the employer to submit a response to the agency [citations], again thereby promoting an informed agency decis...

Excerpt: ...intiffs' objections to paragraphs 4-5 of defense counsel Pilchman's declaration in support of the opposition (ROA 96) are SUSTAINED. Plaintiffs ask that the FAA be stricken because it is unverified. Subject to exceptions not applicable here, if a complaint is verified, the defendant must verify the answer. (Code Civ. Proc., § 446, subd. (a).) An unverified answer that is required to be verified is subject to motion to strike. (See Code Civ. Proc...

Excerpt: ...s motions for sanctions against specially appearing defendants Robert Hill (“Hill”), Greg Logsdon (“Logsdon”), Southside Ventures, LLC (“Southside”) and Log Hill Properties & Consulting LLC (“Log Hill”) (collectively the “Southside Parties”) are GRANTED IN PART as follows. On November 19, 2019 Plaintiff filed an ex parte application to continue the hearing on the Southside Parties' motion to quash service of the summons and co...

Excerpt: ...ICIAL NOTICE of the existence and filing of the following pleadings in the related case of Guy Yocom Construction, Inc. v. Davis/Reed Construction Inc. (OCSC Case No. 2018-01034744) (the GYC Action): DavisREED Construction, Inc.'s (Davis) Cross-Complaint (ROA 23); and Waterfront Hotel, LLC's (Waterfront) Cross-Complaint (ROA 35). Code of Civil Procedure section 425.16 “provides a procedure for weeding out, at an early stage, meritless claims ar...

Excerpt: ...s a matter of law because California Labor Code section 1174 does not contemplate a private right of action. Groceryworks is correct.”). “‘[W]hen regulatory statutes provide a comprehensive scheme for enforcement by an administrative agency,'” as with the Labor Code, “ ‘courts ordinarily conclude that the Legislature intended the administrative remedy to be exclusive unless the statutory language or legislative history clearly indicat...

Excerpt: ...as noted in the court's Minute Orders of July 9, 2020 and July 10, 2020. Plaintiffs have filed nothing further since the July 9, 2020 hearing. As discussed below, Leonard does not meet his burden of proof. Evidentiary Objections 1. Overruled. 2. Sustained. (Evid. C. §§ 403, 1200, 702, 801-803.) 3. Sustained. (Evid. C. §§ 403, 1200, 702, 801-803.) 4. Sustained. (Evid. C. § 403, 702.) 5. Sustained. (Evid. C. § 403, 702, 801-803, 1200.) 6. Sus...

Excerpt: ...avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced.” (Farmland Irr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215.) While there is overlap between this action...

Excerpt: ...avoiding unseemly conflicts with the courts of other jurisdictions. It should also consider whether the rights of the parties can best be determined by the court of the other jurisdiction because of the nature of the subject matter, the availability of witnesses, or the stage to which the proceedings in the other court have already advanced.” (Farmland Irr. Co. v. Dopplmaier (1957) 48 Cal.2d 208, 215.) While there is overlap between this action...

Excerpt: ...defendant negates any essential element of a particular cause of action. (See Cantu v Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880.) In ruling on a demurrer, the court accepts as true the facts alleged and inferences therefrom. (Sheehan v San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998; Thompson v Ioane (2017) 11 Cal.App.5th 1180, 1190; Cundiff v GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1405, 125.) However, the court need not assu...

Excerpt: ...f exclusive concurrent jurisdiction, ‘when two [California] superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.” (People ex rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4 th 760, ...

Excerpt: ... defendant KSL Resorts Corporation is dismissed from the lawsuit. When does Plaintiff intend to dismiss the claims against defendant KSL MBR Management II, LLC? 2. As set forth in the 1/23/2020 minute order, Plaintiff must provide an estimate of the low and high recovery of the “aggrieved employees,” and state the amount expected to be received by Plaintiff. Plaintiff has only provided the average recovery of the aggrieved employees. (See Sup...

Excerpt: ... 531, 549.) As to the Settlement 6. Please confirm Plaintiff is the only aggrieved employee. 7. Plaintiff must provide valuations for each component of the PAGA claim so the Court can assess whether the $1,000 allocated to PAGA is fair. Plaintiff must also state the documents it reviewed in determining its valuations. 8. What claims if any remain pending against defendants who are not party to the settlement? 9. Do any of the parties know of any ...

Excerpt: ... Heartland Payment Systems, Inc. (2018) 29 Cal.App.5th 725, 732 [internal quotations and citation omitted].) Mandatory intervention is improper. Rubio is unable to establish the second prong of the test. The settlement does not impair or impede Rubio's ability to protect his interests. In particular, if Rubio is unhappy with the settlement he may opt out. Or, if he does not want to opt out, he may object and explain why it is unfair or inadequate...

Excerpt: ...d documents of which Defendants seek judicial notice. Judicial notice is granted as to the initial complaint, first amended complaint (“FAC”), and seconded amended complaint (“SAC”) filed by Plaintiffs in this action. (Evid. Code, § 452(d).) Judicial notice is also granted as to Facts 1 through 5. (Evid. Code, § 452(d), (h).) However, judicial notice is denied as to Facts 6 through 10, which are disputed by Plaintiffs. (See Herrera v. D...

Excerpt: ...' Request for Judicial Notice, Exs. A and B.) A party may demur to a pleading if “[t]here is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10(c).) “The theory underlying this defense is that because the first action will normally provide an adequate remedy the second action is unnecessary and vexatious.” (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 175.) Such demurrers are...

Excerpt: ...g class sufficiency at the pleading stage and directed that this issue be determined by a motion for class certification. In order to effect this judicial policy, the California Supreme Court has mandated that a candidate complaint for class action consideration, if at all possible, be allowed to survive the pleading stages of litigation.” (Gutierrez v. California Commerce Club (2010) 187 Cal.App.4th 969, 976.) Resolving issues of class certifi...

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, ensuring that any negotiated resolution is fair to those affected.” (Willia...

Excerpt: ..., the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Doheny Park Terrace Homeow...

Excerpt: ...e USA, LLC's (“Hearthside”) motion to compel arbitration is GRANTED. The FAA applies to the arbitration agreement. The agreement specifies that the FAA applies. (Mundo Decl., Ex. B, ¶ 1; Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122.) Moreover, sufficient evidence has been presented that the arbitration agreement concerns interstate commerce. (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 2...

Excerpt: ...e USA, LLC's (“Hearthside”) motion to compel arbitration is GRANTED. The FAA applies to the arbitration agreement. The agreement specifies that the FAA applies. (Mundo Decl., Ex. B, ¶ 1; Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122.) Moreover, sufficient evidence has been presented that the arbitration agreement concerns interstate commerce. (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 2...

Excerpt: ... matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence ….” (Code Civ. Proc., § 2017.010.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....'” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) “[D]iscovery must be construed liberally in ...

Excerpt: ...rovide a redline copy of the amended notice. 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 v. Superior Court (2017) 3 Cal.5th 53...

Excerpt: ...on stating facts showing that the actions are complex, as defined by the Judicial Council and that the actions meet the standards specified in Section 404.1.” (Code Civ. Proc., § 404; Ford Motor Warranty Cases (2017) 11 Cal.App.5th 626, 634.) Petitioner has not established the Phan Action is complex. The Phan Action only involves three parties. The complaint filed by Robert Phan alleges that Phan gave Linh and Vy Nguyen a $52,000 loan, which t...

Excerpt: ...sibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) However, “[c]ourts must insist discovery devices be used as tools to facilitate litigati...

Excerpt: ...o this by demonstrating the action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) “Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that...

Excerpt: ... agreement is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. Paragraph 4.C of the Settlement provides that class members will not receive payment until 10 days after full funding of the Maximum Settlement Amount. Full funding may not occur until June 4, 2021. Settlement, ¶ 3.B. The Court will not approve a settlement in which payments for attorneys' fees/costs, ...

Excerpt: ...the court in which the action is pending to expunge the notice.” (Code Civ. Proc., § 405.30.) (Emphasis added.) The motion to expunge is “confine[d] … to the court where ‘the action' of which notice has been recorded is pending to avoid inconsistent judgments and forum shopping.” (The Formula Inc. v. Superior Court (2008) 168 Cal.App.4th 1455, 1464.) Based on this authority, only the Court can hear this motion to expunge. (See also Gol...

Excerpt: ... 2; Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122.) Further, Defendant is involved in interstate commerce as it receives reimbursement for services from Medicare. (Bohn Decl., ¶ 8; Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277; Summit Health, Ltd. v. Pinhas (1991) 500 U.S. 322, 327; Willis v. Prime Healthcare Services, Inc. (2014) 231 Cal.App.4th 615, 625–626.) A court's role in consideri...

Excerpt: ...rth below in both actions. The demurrers are OVERRULED. “A demurrer tests only the sufficiency of the pleading and lies only where the defect appears on the face of the pleading or from matters judicially noticed by the court.” (Fiorito v. Superior Court (1990) 226 Cal.App.3d 433, 437.) All factual allegations set forth in the complaint “are deemed to be true, however improbable they may be.” (Del E. Webb Corporation v. Structural Materia...

Excerpt: ... jurisdiction over a nonresident defendant who has not been served with process within the state comports with the requirements of the due process clause of the federal Constitution if the defendant has such minimum contacts with the state that the assertion of jurisdiction does not violate “‘traditional notions of fair play and substantial justice.'” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 443 [quoting Internati...

Excerpt: ...alifornia Rules of Court, rule 3.400; Code Civ. Proc., § 404.) The coordination of the actions will promote the ends of justice. The actions have overlapping factual and legal issues due to the common PAGA claim based on Labor Code § 2802. Given the overlap, a single, coordinated action will be more convenient for all the parties, witnesses, and counsel, and will promote efficient utilization of judicial resources. Coordination will also increa...

Excerpt: ...ations omitted].) “The trial court has broad discretion to determine whether the settlement is fair.” (Ibid.) At preliminary approval, Plaintiff's valuations and settlement calculations were made under the expectation that the class consisted of around 235 people. (11/9/17 Mahoney Decl., ¶ 8; Supp. Mahoney Decl., at ¶ 14.) Based on this expectation, Plaintiff valued the claims asserted to be worth a maximum $1,644,520, with a reasonable val...

Excerpt: ...ndum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.” (Id. at rule 3.1113(g).) “A trial court has broad discretion … to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.) Plaintiffs' opposition is 20 pages. Plaintiffs did not file an ...

Excerpt: ...uena Park Successor Agency and City of Buena Park (together, “Plaintiffs”) filed a first amended lis pendens the same day this motion was filed. Plaintiffs then filed a first amended complaint (“FAC”) on May 30, 2019 and a second amended lis pendens on June 4, 2019. The effect of the FAC and the first and second amended lis pendens on this motion is unclear. Thus, the Court requests the parties provide supplemental briefing on the followi...

Excerpt: ...ht of public access to the information. (See Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1070.) Further, a substantial probability exists that her right to privacy will be prejudiced if the information is not redacted from the public record. Because the entire Pal Declaration contains sensitive medical information, the proposed sealing is narrowly tailored and there is no less restrictive means to achieve the overriding interest. The Pal Declaration...

Excerpt: ...on to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron Corp. v. Ortho Diagnostic Sys. Inc.(9th Cir.2000) 207 F.3d 1126, 1130.) “The United States Supre...

Excerpt: ...om translating a document presented to the court. Mr. Denis is qualified to translate. He has also stated under oath that his translations are true and accurate. (Supp. Denis Decl., ¶¶ 4-5; see also Certificates of Translation.) Mr. Denis's potential bias does not bar the evidence but rather goes to the weight of it. “The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a wel...

Excerpt: ... of action for breach of fiduciary duty without leave to amend. A demurrer challenges the defects appearing on the face of the pleading or 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.) The inten...

Excerpt: ...tiary fact that might eventually form part of the plaintiff's proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action …. There is no need to require specificity in the pleadin...

Excerpt: ...n by MFI. (Prasher Decl., ¶ 7, Ex. A.) The MSA contains a mandatory forum selection clause that states: “[t]his Agreement shall be governed by and interpreted according to the laws of the Province of Ontario and the laws of Canada applicable therein. The parties attorn to the exclusive jurisdiction of the courts in the Province of Ontario in respect of all matters arising out of or in connection with this Agreement.” (Prasher Decl., Ex. A, �...

Excerpt: ...roc., § 437c(b)(3)), the Court has exercised its discretion to excuse noncompliance with the Code of Civil Procedure and reach the merits of the motions. Finally, “[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty ….” (Code Civ. Proc., § 437c(f)(1); see also Dunn v. County of Santa Barbara (2006) 1...

Excerpt: ...ement is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. The class definition excludes employees that “executed a release of all claims against Greenstone Materials, Inc.” (Settlement, ¶ A.4.) Does this refer to the release from the DOL settlement? If not, to what does it refer? If it does refer to the DOL settlement, that settlement only appears to release m...

Excerpt: ... on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless. In this regard the court passing upon the question of the demurrer may look to affidavits filed on behalf of plaintiff ….” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, “[t]aking judicial notice of a document is not the same as accepting the truth of its contents or acce...

Excerpt: ...action has no merit, that plaintiff cannot prove an element of his or her claim, or that it has a complete defense entitling it to judgment as a matter of law. (Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) “Once the defendant meets this burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defens...

Excerpt: ... FAA applies. A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron Corp. v. Ortho Diagnostic Sys. Inc.(9th Cir.20...

Excerpt: ...td. was properly served with the complaint and summons. Plaintiff argues it properly served Teva Ltd. through its California-based subsidiary, Teva Parenteral Medicines, Inc. (“TPM”). The parties agree that TPM is an indirect subsidiary of Teva Pharmaceuticals USA, Inc. (“Teva USA”), which is an indirect subsidiary of Teva Ltd. (See e.g. Plaintiff's Supp. Brief, p. 7:15-18.) “Delivery by hand of a copy of any process against a foreign c...

Excerpt: ... § 472(a).) ACSC, not the American Automobile Association, Inc. (“AAA”), is Plaintiff's employer. Plaintiff's offer letter, W-2 forms, paystubs, and other employment documents confirm this. (Philipp Decl., Exs. A-D; Tercero Decl., Ex. A.) ACSC is a party to the arbitration agreement at issue. (4/16/19 Alexander Decl., ¶ 4, Ex. A, p. 1.) The arbitration agreement is governed by the FAA. (See 4/16/19 Alexander Decl., ¶ 3; Allied-Bruce Termin...

Excerpt: ...t time and resources. “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549 [citing Lab. Code, § 2699(l)(2)].) As to the Settlement 1. It is unclear whether the definition of “aggrieved employees” in Recital B applies to the Settlement, is a description of the definition contained in the LWDA notice, or bo...

Excerpt: ...iffs' right to privacy.” (See Notice of Motion). While Plaintiffs attach seven subpoenas to the Declaration of Babak Semnar (See Exhibits A through G), Plaintiffs phrase their request to extend beyond these subpoenas and potentially affect subpoenas which have not been identified to the Court. (See also Proposed Order attached to Motion). No blanket order is possible or permissible where there is no particular delineation of the “Plaintiffs' ...

Excerpt: ..., 2019 and June 27, 2019. (See ROA Nos. 356, 358 and 360). Accordingly, the requests for discovery responses from these parties has been rendered MOOT. Additionally, per Plaintiffs' Counsel, verified discovery responses were served by mail on June 26, 2019, on behalf of Plaintiffs Amy Booty, General Booty, Avery Booty, John Booty, Charles Leonard, Guiliana McDaniel, Megan Woodruff-McDaniel, Kyle McDaniel, Olivia McDaniel, Billie Christine Walker,...

Excerpt: ...hfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) As to Plaintiff's breach of contract claim, Defendant contends it properly denied Plaintiff's claim because the policy at issue allows it to “deny coverage for any claim or loss and void this policy if any insured has concealed or misrepresented a material fact or circumstance … in the presentation of a claim or loss, or at any time either before or after a claim or loss.” (Defendant's S...

Excerpt: ...as commenced would be at odds with the right of a plaintiff to dismiss a case voluntarily and without prejudice set forth in [CCP] section 581, subdivision (b)(1) and subdivision (c), both of which provide that a plaintiff may voluntarily dismiss his or her complaint at any time before the ‘actual commencement of trial.'” (Id. at 1549.) The Court's 3/7/19 order does not prohibit Plaintiff from filing a PAGA claim. Instead, it notes that such ...

Excerpt: ...s statements” by failing “to include the total number of hours worked by Plaintiff and the other class members.” (See ¶90 of FAC). Plaintiff alleges that, as a result of the above, Plaintiff and the class have suffered damage. (See ¶91 and ¶93 of FAC). Additionally, earlier in the Complaint Plaintiff alleges Defendant had a practice of “failing to pay them for all regular and/or overtime wages earned…” (See ¶25 of FAC, incorporate...

Excerpt: ...co, Inc. (2003) 539 U.S. 52, 56-58.) Thus, the FAA applies. A court's role in considering a petition to compel arbitration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron ...

Excerpt: ...2018-01019366. It has also reviewed the Declaration of Scott A. Brooks filed on June 10, 2019 (“Brooks Declaration”). Pursuant to Code Civ. Proc., § 404.1, the petition for coordination is GRANTED. All three actions have already been deemed complex by their respective courts. (Code Civ. Proc., § 404.) Further, coordination of the actions will promote the ends of justice. The actions have a substantial amount of overlap of factual and legal ...

Excerpt: ...ble evidence ….” (Code Civ. Proc., § 2017.010.) “Courts must insist discovery devices be used as tools to facilitate litigation rather than as weapons to wage litigation. These tools should be well calibrated; the lancet is to be preferred over the sledge hammer.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 221.) Here, each request for production follows the same format: “ALL emails between email address [...

Excerpt: ... how, when, where, to whom, and by what means the representations were tendered.” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) “We enforce the specificity requirement in consideration of its two purposes. The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. The second is to permit a court to weed out meritless fraud claims on the basis of the ple...

Excerpt: ...pellate decisions are in conflict. In such a situation, the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 456.) Currently, there are two binding appellate decisions that contain conflicting holdings on whether claims for unpaid wages under Labor Code § 558 are arbitrable: Zakaryan v. Men's Wearhouse, In...

Excerpt: ...is directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. Counsel's valuation of the wage statement claim states there are “46 pay periods in the wage statement Class Period and 26 full time equivalent employees who each worked 46 pay periods ….” (Ackermann Decl., ¶ 31.c.) Counsel should explain whether the “wage statement Class Period” differs from the “Cla...

Excerpt: ...2017-00941552 (“RNR Action”). Because the allegations in the FACCs in both actions are nearly identical, as are the demurrers and the motions to strike, the Court permitted Health Net to file a joint opposition to the motions to strike and a joint opposition to the demurrers. Similarly, it allowed RNR and NDR to file a joint reply in support of the motions to strike and a joint reply in support of the demurrers. (4/25/19 Minute Order.) The Co...

Excerpt: ...tinued the hearing as to the remaining causes of action (second through seventh) to allow for supplemental briefing. The Court has reviewed the supplemental briefs submitted by the parties and SUSTAINS the demurrer as to the second, third, fourth, fifth, sixth, and seventh causes of action. These causes of action challenge the facial constitutionality of PAGA under the state and federal constitutions. “A facial challenge to the constitutional v...

Excerpt: ...ment agreement', to avoid waste of limited Court time and resources. “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549 [citing Lab. Code, § 2699(l)(2)].) As to the Settlement 1. Why is “SCP Distributors, LLC” included in the definition of “Aggrieved Employees.” 2. Plaintiff has not provided any val...

Excerpt: ...her than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. As to the release in Section 7.1, please clarify the meaning of the phrase “alleged in the Action” and how it differs from the phrase “alleged in the operative complaint.” Also clarify whether class members are releasing any claims that are unrelated to or do not arise from the allegations in the operative complaint. In s...

Excerpt: ... prior to that conference regarding the status of the settlement administration. Plaintiffs should suggest a date for the status conference. The final report must include all information necessary for the Court to determine the total amount actually paid to class members. Plaintiffs shall also submit, at least 10 days prior to the conference, a [Proposed] Amended Judgment directing Defendant (or the Claims Administrator on Defendant's behalf) to ...

Excerpt: ...tions were filed. Thus all discovery regarding hourly-paid employees is moot. The scope of discovery is broad and is construed liberally in favor of disclosure. (Code Civ. Proc., § 2017.010; Williams v. Superior Court(2017) 3 Cal.5th 531, 541.) There is “no obligation on a party propounding interrogatories to establish good cause or prove up the merits of any underlying claims.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 550.) Further...

Excerpt: ...mitted claims. “[T]rial courts [are] urged to exercise pragmatism and flexibility in dealing with class actions.” (Cartt v. Superior Court (1975) 50 Cal.App.3d 960, 970.) California courts may look to federal cases interpreting class action procedure “for guidance or where California precedent is lacking.” (Hefczyc v. Rady Children's Hospital-San Diego (2017) 17 Cal.App.5th 518, 531.) Federal “district court ha[ve] discretion to grant l...

Excerpt: ...requires a trial court to reconsider its earlier ruling if the decision materially changed the law. [Citations.] Even without a change of law, a trial court has the inherent power to reconsider its prior rulings on its own motion at any time before entry of judgment.” (State of California v. Superior Court (Flynn)(2016) 4 Cal.App.5th 94, 100; see also Code Civ. Proc., § 1008(c).) Zakaryan v. Men's Wearhouse, Inc. (2019) 33 Cal.App.5th 659 was ...

Excerpt: ....4th 365, 370.) The evident purpose of the notice requirement is to afford the [LWDA], the opportunity to decide whether to allocate scarce resources to an investigation, a decision better made with knowledge of the allegations an aggrieved employee is making and any basis for those allegations. Notice to the employer serves the purpose of allowing the employer to submit a response to the agency [citations], again thereby promoting an informed ag...

Excerpt: ...ettlement Agreement (“Amendment”) states the “individual employee shall be eligible to receive a settlement payment without regard to whether he or she worked any minimum number of Pay Periods.” (Amendment, § III, ¶ 2.) However, the Amendment is unclear as to whether this language is replacing any language in the Settlement or being added to the existing language. If the former, Counsel needs to explain what language is being struck and...

Excerpt: ... are deemed as complex. (Code Civ. Proc., § 404; California Rules of Court, rule 3.502.) The actions involve a significant number of parties, witnesses and documents. Trial will likely exceed 20 days. And both actions involve securities claims and investments. (California Rules of Court, rule 3.400(b) and (c).) Coordination of the actions will promote the ends of justice. Both actions have substantial overlap of factual and legal issues. Given t...

Excerpt: ...s “[t]at there is no reasonable possibility that the prosecution of the cause of action alleged in the complaint against the moving party will benefit the limited liability company or its members.” (Corp. Code, § 17709.02(b)(1) [emphasis added].) “The burden of establishing the statutory condition is on the party moving for security.” (Burt v. Irvine Co. (1965) 237 Cal.App.2d 828, 868.) The trial court has “broad discretion … to dete...

Excerpt: ...oduction of information neither relevant nor reasonably calculated to lead to the production of admissible evidence. RFP No. 6 is not limited to the type of policy at issue in this lawsuit. Thus, the request would extend to the claims handling and procedures for other types of policies that are irrelevant here, e.g. auto insurance RFP Nos. 24 and 29 are not limited in time. Further, as to No. 29, Plaintiff has not made a fact specific showing of ...

Excerpt: ...directed, rather than ‘amended settlement agreement', to avoid waste of limited Court time and resources. As to the Settlement 1. The Court will not approve class members “opting-in” to the FLSA portion of the settlement by cashing checks. (Settlement, ¶ 45.) This procedure is unnecessary, in an opt- out settlement under California class action procedural law. A recent 9th Circuit decision confirms the release here is sufficient to extend ...

Excerpt: ...tion 387 should be liberally construed in favor of intervention.” (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1200.) Intervention is mandatory upon timely application if “[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect ...

Excerpt: ...oid unnecessary costs or delay.” (Code Civ. Proc., § 1048(a).) Consolidation is “a matter committed to the sound discretion of the trial judge.” (Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.) Neither Waterfront nor Davis/Reed has established sufficient common questions of fact or law. The plaintiffs in the 24 actions (the “Waterfront Actions”) sought to be consolidated all provided different goods and/or services at the hotel p...

Excerpt: ...ration under the FAA is limited to “determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. If the response is affirmative on both counts, then the Act requires the court to enforce the arbitration agreement in accordance with its terms.” (Chiron Corp. v. Ortho Diagnostic Sys. Inc. (9th Cir.2000) 207 F.3d 1126, 1130.) If these requirements are met, “the court...