Excerpt: ...ent to the Settlement, an amended proposed Notice and preliminary approval order are submitted, redlined versions showing all changes, deletions, and additions must also be submitted electronically to the Court, else they will not be reviewed. 1. There is a place in the Settlement for Defendant's authorized representative to print a name, but that has not been completed. 2. The operative Complaint (FAC ¶ 20) contains a limitation to “Janitoria...

Excerpt: ...pposition: 1:3- 6). Indeed, a review of the Complaints attached to Defendant's Request for Judicial Notice confirms the prior Complaints overlap with the Complaint herein. (See Exhibits A through D to Defendant's RJN). The claims asserted within these Complaints are asserted against Defendant Windsor Capital Group, Inc. and encompass identical classes. (See ¶1 of Exhibit A, ¶13 of Exhibit B, ¶2 of Exhibit C and ¶16 of Exhibit D to Defendant's...

Excerpt: ...nt. (¶27(b), ¶28, ¶38 and ¶60 of Complaint). Thus, Plaintiff alleges “unnecessary and injurious methods of operation,” which prevent the application of the immunity articulated in C.C.P. §731a. Additionally, Plaintiff's allegations of negligence assert conduct which is not expressly authorized by statute, as contemplated in Civil Code §3482. The potion of the Demurrer directed to Plaintiff's claims for Negligence, however, is SUSTAINED,...

Excerpt: ...ent to the Settlement, an amended proposed Notice and preliminary approval order are submitted, redlined versions showing all changes, deletions, and additions must also be submitted electronically to the Court, else they will not be reviewed. 1. There is a place in the Settlement for Defendant's authorized representative to print a name, but that has not been completed. 2. The operative Complaint (FAC ¶ 20) contains a limitation to “Janitoria...

Excerpt: ...pposition: 1:3- 6). Indeed, a review of the Complaints attached to Defendant's Request for Judicial Notice confirms the prior Complaints overlap with the Complaint herein. (See Exhibits A through D to Defendant's RJN). The claims asserted within these Complaints are asserted against Defendant Windsor Capital Group, Inc. and encompass identical classes. (See ¶1 of Exhibit A, ¶13 of Exhibit B, ¶2 of Exhibit C and ¶16 of Exhibit D to Defendant's...

Excerpt: ...nt. (¶27(b), ¶28, ¶38 and ¶60 of Complaint). Thus, Plaintiff alleges “unnecessary and injurious methods of operation,” which prevent the application of the immunity articulated in C.C.P. §731a. Additionally, Plaintiff's allegations of negligence assert conduct which is not expressly authorized by statute, as contemplated in Civil Code §3482. The potion of the Demurrer directed to Plaintiff's claims for Negligence, however, is SUSTAINED,...

Excerpt: ...arty) 3. Dana Hayes, c/o Citivest (Third-Party) 4. Dwight Belden, c/o Citivest (Third-Party) 5. COMOC America Corp. 6. Don Krotee, c/o DKP 7. Fred Fourcher (Third-Party) 8. Jim Mosher 9. Melanie Schlotterbeck c/o Banning Ranch Conserv. 10. Meyer Properties 11. Olen Commercial Realty Corp., attn Julie Ault 12. Susan DeSantis, c/o Arellano Assoc. 13. Olen Development Co., attn Julie Ault The subpoenas contain various entity and other definitions an...

Excerpt: ...through F thereto). Plaintiff challenges the validity of the Agreement given the documents presented were not signed by Defendant and the Handbook itself was not signed by Plaintiff; however, California recognizes that consent to an Arbitration Agreement may be “implied-in-fact where…the employee's continued employment constitutes her acceptance of an agreement proposed by her employer.” (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 41...

Excerpt: ...sserted in the summary judgment motion.” A similar standard is contained in C.C.P. § 1008(b), which governs renewed motions. This provision states that a party “may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before….and what new of different facts, circumstances or law are claimed to be shown.” On October 16, 2...

Excerpt: ...5 Cal.App.3d 496, 504.) The Court notes that at the conclusion of a status conference in June 2020, before the case was transferred to this Department, the Court scheduled a phased trial with the jury trial proceeding first. (ROA 674.) Now having considered the parties' recent papers, the Court agrees with and will adopt the Court's prior sequencing for the additional reasons below. Defendant argues that an initial trial of Plaintiff's individual...

Excerpt: ...n showing all changes, deletions, and additions, which shall be submitted electronically to the Court. 1. What is the current number of class members and when was that number calculated? (Hartranft Decl. Ex. B (725); Bradley Decl. ¶ 58 (804).) 2. For what time period(s) are the maximum potential exposure calculated for the PAGA claim? 3. Counsel states he was provided “electronic time as well as and payroll records for a representative sample ...

Excerpt: ...t include a redlined version showing all changes, deletions, and additions, which shall be submitted electronically to the Court. 1. What is the current number of class members and when was that number calculated? (Wilson Decl. ¶ 4) 2. Please estimate Defendants' maximum potential exposure, per claim asserted in the Complaint. Additionally, please articulate the discounts applied to the same, in arriving at the $280,000 settlement. Counsel shoul...

Excerpt: ... grounds that the answer is evasive or incomplete, an exercise of the option to produce documents under CCP § 2030.230 is unwarranted or the required specification of those documents is inadequate, and/or an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).) If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully answer the interrogatories. ...

Excerpt: ...See also C.C.P. §1281.4 and 9 U.S.C. §3). Initially, the Court finds that Plaintiff has executed an arbitration agreement, which is enforceable by Defendants and applies to the claims asserted herein: In support of this Motion, Defendants rely on a Declaration from Terry Bohn, the Vice President of Human Resources for Defendant KPC, who asserts she has access to the personnel records for Defendant SCGMC. (¶2-¶3 of Bohn Declaration). Per this ...

Excerpt: ...able limitations periods, which, for all causes of action, are either three or four years. General Principles for Summary Adjudication A defendant moving for summary judgment or adjudication bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) “A prima facie showing is one that is sufficient to support...

Excerpt: ...efendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” (Code Civ. Proc., § 425.16(c)(1).) “It is settled that a plaintiff may not avoid liability for attorney fees and costs by voluntarily dismissing a cause of action to which a SLAPP motion is directed.” (Sylmar Air Conditioning v. Pueblo Contracting Servs., Inc. (2004) 122 Cal.App.4th 1049, 1054; accord Pfeiffer Venice Properties v. Ber...

Excerpt: ...at this matter does not justify invoking the punitive powers of the Court in a contempt proceeding and therefore discharges it as to Messrs. Yeremian, Rothman, and Haines. Order to Show Cause re Sanctions While it is axiomatic that an attorney must represent a client to the best of the attorney's ability and owes a duty to the client to present the case with vigor in a manner that is as favorable to the client as the rules of law and professional...

Excerpt: ...lification of the Arbitrator. CCP Section 1281.9 sets forth the requirements to protect the neutrality of arbitrators and outlines what information is required to be disclosed, including “all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial…” Here, the parties were notified via March 4, 2020 letter that the Arbitrator was selected (by the ...

Excerpt: ...erson moves (CCP §§ 1280, 1281.2) for an order consolidating the Samson Arbitration with this action into a single action before this Court. Patterson also requests a stay as to the Samson Arbitration pursuant to Code of Civil Procedure section 1281.2(c) until this Court issues a ruling on this motion. For the reasons set forth below, this motion is DENIED. California law reflects a strong public policy in favor of arbitration as a quick and in...

Excerpt: ...2005) 130 Cal.App.4th 540, 554 at fn. 2, citing Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386). First, Hutcherson has appropriately sought leave to intervene via a noticed motion and included a proposed Complaint in Intervention, as required by C.C.P. §387(c). Consequently, the proper procedures have been followed. Moreover, while C.C.P. §387(d) refers to a “timely application,” case law demonstrates “timeliness is ha...

Excerpt: ...plaintiff caused to be filed and served a Second Amended Complaint, containing (in pertinent part) a single cause of action for breach of written contract. On 09/25/19, defendants filed a motion for judgment on the pleadings, directed at the 4th (fraud), 6th (unjust enrichment), 8th (rescission) and 9th (rescission) causes of action contained in the then-operative Second Amended Complaint. Defendant did not attack plaintiff's 1st cause of action ...

Excerpt: ...ted as true for the purpose of ruling on the demurrer. (See Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) If a demurrer is sustained as to any cause of action or causes of action, it is an abuse of discretion to deny leave to amend if there is any reasonable possibility that plaintiff can state a good cause of action. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiff's sole cause of action is sty...

Excerpt: ...parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. A court ruling on a motion under 3.769 must determine whether the parties entered into a valid and binding settlement. A settlement is enforceable under section 664.6 only if the part...

Excerpt: ...h 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 Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurr...

Excerpt: ...l right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”)) Accordingly, the trial court must “review and approve” a PAGA settlement. (Labor Code §2699(l)(2)). As the California Supreme Court explained: “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (Will...

Excerpt: ...o 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 Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Absent court orders or other items subject to judicial notice, or items attached as exhibits to the complaint, the court may not consider the contents of pleadings or other exhibits when ruling on a demurrer. See Day v. Sharp (1975) 50 ...

Excerpt: ...record of this action demonstrates the Court granted Motions to Compel Further responses on October 13, 2020 and ordered Defendants to provide further responses within 30-days. (See October 13, 2020 Minute Order [ROA No. 183]). Additionally, Defendants were ordered to implement a Belaire-West process, for Special Interrogatory No. 1. (Id.) Notice of this order was served by the Clerk on October 21, 2020. (ROA No. 184). On March 18, 2021 a hearing...

Excerpt: ...8(a)(2) and the inherent authority discussed in Neal v. Bank of America Nat. Trust & Savings Association (1949) 93 Cal.App.2d 678. The Court finds, however, that the Petition is not an improper Motion for Reconsideration. Plaintiff notes that the Petition to Compel Arbitration re-argues issues which were the subject of this Court's January 15, 2021 Minute Order, granting a Motion for Preliminary Injunction brought by Plaintiff. While Plaintiff is...

Excerpt: ...right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”)) Accordingly, the trial court must “review and approve” a PAGA settlement. (Cal. Lab. Code § 2699(l)(2)). As the California Supreme Court explained: “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair to those affected.” (W...

Excerpt: ... Declaration and Exhibit C thereto [incorrectly cited as Exhibit D]). Plaintiff's Counsel does not dispute the above. As the parties have not meaningfully met and conferred as to this motion - which the Court notes includes an 884-page Separate Statement in Opposition - the Court exercises its discretion to decline to rule on the entirety of the merits, prior to sufficient efforts to do so. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 43...

Excerpt: ...ing of the Defendant's Objection to Recommended Decision No. 20 of the Discovery Referee.” (Mot. at 2.) However, the issue of ambiguity and the parties' competing interpretations existed prior to the hearing and thus affords no basis for reconsideration. Defendant has failed to demonstrate new or different facts, as required by C.C.P. §1008 and the Court simply has no jurisdiction Motions for reconsideration are governed by CCP § 1008 which r...

Excerpt: ..., deletions, and additions must also be submitted electronically to the Court. Any supplemental or revised papers should also be served on the LWDA and proof of service filed with the Court. 1. Counsel states “Plaintiff and her counsel are unable to estimate the potential maximum civil penalties because Defendant did not provide the total number of pay periods in which those employees were paid by direct deposit or pay card.” How is it possib...

Excerpt: ...ny Notices which were re-mailed, please identify the date the mailing occurred. Additionally, any individuals who have requested exclusion must be specifically named. 3. Please articulate the lowest payment under the settlement. 4. The unexecuted Declaration from the Settlement Administrator indicates the Net Settlement Amount is $306,091. (¶11 of unexecuted Kincannon Declaration). The Motion for Approval indicates the Net Settlement Amount is $...

Excerpt: ...ed version showing all changes, deletions, and additions must also be submitted electronically to the Court. 1. Counsel indicates that stacking of the PAGA penalties was not applied, given language in Labor Code §2699(g)(1), which refers to “one or more of the alleged violations.” (¶12 of Supplemental Solouki Declaration). Counsel interprets this language as providing for only a single penalty, regardless of whether the violations are of �...

Excerpt: ...parative indemnity, based on comparative negligence or comparative fault. As the parties both acknowledge, this bar does not extend to Hayhoe's contractual indemnity claims against WPE. The Court concludes that the settlement between Plaintiff The Doner Enterprises, LLC and WPE in the amount of $20,000 was made in good faith within the meaning of CCP §877.6 because it satisfied the weight of the factors set forth in Tech-Bilt, Inc. v. Woodward-C...

Excerpt: ...dge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 554 at fn. 2, citing Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386). Firstly, Shavina Luckett has appropriately sought leave to intervene via a noticed motion and included a proposed Complaint in Intervention, as required by C.C.P. §387(c). Consequently, the proper procedures have been followed. Moreover, while C.C.P. §387(d) refers to a “timely application,...

Excerpt: ...roperly pleaded, and reasonable inferences, must be accepted as true. (See Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) Fourth Cause of Action for Intentional Misrepresentation The elements for fraud or misrepresentation are: (1) a misrepresentation by defendant; (2) defendant's knowledge of its falsity; (3) intent to defraud; (4) plaintiff's justifiable reliance; and (5) resulting damages. (Stansfield v. Starkey (1990) 220 Cal...

Excerpt: ...n lacks an independent legal right to bring the action, a person who is not a party but who is represented by the agency is bound by the judgment as though the person were a party.”)) Accordingly, the trial court must “review and approve” a PAGA settlement. (Labor Code §2699(l)(2)). As the California Supreme Court explained: “PAGA settlements are subject to trial court review and approval, ensuring that any negotiated resolution is fair ...

Excerpt: ...nd for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10(b)). A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010)). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.). The grounds for a motion to ...

Excerpt: ...e sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10(b)). A motion to strike can also strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010)). Conclusory allegations are permitted, however, if they are supported by other factual allegations in the complaint. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) M...

Excerpt: ...endants must supplement these responses. Form Interrogatory Employment Nos. 216–217 GRANTED. As Plaintiff asserts, Defendant's response is incomplete per CCP 2030.220(a) for failure to provide complete information, including identification of specific documents and persons. Defendants must supplement these responses. Form Interrogatory Gen. No. 15 GRANTED. As Plaintiff asserts, Defendant's response is incomplete per CCP 2030.220(a) for failure ...

Excerpt: ...intiff agreed to arbitrate “any claims or disputes” she has against Dollar General, arising from her employment or termination. (¶17 of Roach Declaration and Exhibit 3 thereto). Additionally, the Agreements provide that: “You and Dollar General may not assert any class action, collective action, or representative action claims in any arbitration pursuant to this Agreement or in any other forum.” (¶17 of Roach Declaration and Exhibit 3 t...

Excerpt: ...s to the underlying factual allegations,” within the amended pleading. (¶5 of De Castro Declaration). The motion is granted, as plaintiff maintains the right to dismiss his individual claims pursuant to C.C.P. §581(b)(1) and C.C.P. §581(c), given trial has not commenced, either within this action or within any pending arbitration. The evidence indicates plaintiff declined to proceed with arbitration and, instead, has opted to dismiss the per...