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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ... 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...