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: ...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: ... 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: ... 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: ...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: ...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: ..., 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: ...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: ... 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: ...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: ...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: ...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...