Excerpt: ...ncouraging requests for unnecessary rulings, the request is denied. The defendant relies upon an arbitration provision in the RISC, but the defendant is not a party to the RISC. Instead, it invokes the doctrine of equitable estop#l. A party to an arbitration agreement may be equitably estopped from refusing to arbitrate with a nonparty in two circumstances: (1) when the signatory must depend on a written agreement, which sets forth an arbitration...

Excerpt: ...rn, K. Hovnanian sued several of its subcontractors, including the moving cross-defendants' insured, Palomar, for indemnity, breach of contract, negligence, and breach of warranty. The moving cross-defendants argue that the claims in the cross-complaint are barred by the statutes of limitation in Code of Civil Procedure sections 337.15. (Notice, p. ii That argument fails, because section 337.15 is inapplicable. "Sections 337.15 and 337.1 ofthe Co...

Excerpt: ...m 60% of BAP to 55%. The Court adopts that recommendation. The verified production does not currently exceed PSY, and thus the area is not currently being overdrafted. However, the FPA should be ramped down now so that, if production increases in the future, the FPA will be low enough to ensure that the increased pumping does not exceed PSY. The Court orders that the FPA for all producers in Este shall be reduced to 55% of BAP for Water Year 2023...

Excerpt: ... facts giving rise to the amended allegations were discovered. (Rule 3. 1324(b)(3).) They simply state: "After researching the matter and consulting with attorneys, plaintiffs discovered that new allegations should be added to their SAC." They do not allege either when that research occurred or when that consultation occurred. And while they state when they discovered that the allegations of their pleading need to be supplemented, they still do n...

Excerpt: ...fendant's conduct was "malicious and/or oppressive, and done with a willful and conscious disregard for Mrs. Jasperson's rights," and justifies an award of punitive damages. 53 & 58.) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, S 3294, subd. (c)(l).) "Oppres...

Excerpt: ...re is not any actual controversy on that point. Exhibit L to the SAC, a letter from the State to Cemex, states: "Pursuant to CCR, tit. 22, section 56262.11, the generator is required to make a hazardous waste determination at the point of generation." That section provides: "A person who generates a waste, as defined in section 56261.2, shall determine if that waste is a hazardous waste ... ." The SAC cites to secton 66262.11 for the same proposi...

Excerpt: ...rine of equitable estoppel. A party to an arbitration agreement may be equitably estopped from refusing to arbitrate with a nonparty in two circumstances: (1) when the signatory must depend on a written agreement, which sets forth an arbitration provision, in asserting claims against the nonsignatory; Page 3 of 4 or (2) when the signatory alleges "substantially interdependent and concerted misconduct" by the nonsignatory and a signatory and the a...

Excerpt: ...port of consolidation, Meritage made the following representations to the Court: "The Michael Edwards case and the Meritage case present essentially the same overlapping issues, and have common issues of law and fact. First, the subject matter of both cases are the same 27 homes in the Meridian community (with two additional homes in the Meritage action) that alleged the construction of their homes violated Civil Code sections 896 and 897. Second...

Excerpt: ... two plaintiffs against TEG were either ordered into arbitration, dismissed, or stayed. Therefore, the moton must be denied as to them. As to the claims against TEG by the remaining moving plaintiffs, the undisputed evidence is that they were not employed by TEG. (Castillo decl., '1 9.) Although the plaintiffs point to allegations that every defendant was a joint employer of every plaintiff (SAC '1 23), the truth of that allegation is highly doub...

Excerpt: ...ncorporated part of the County of Riverside, and 336 acres are within Colton. (Ibid.) Within the portion that is within Colton lies Pellissier Ranch (hereinafter, "the Ranch"), a 227-acre parcel owned by the City of Riverside's public utilities department. (Ibid.) The principal argument raised in the petitioner's opening brief is that the City violated CEQA by falling to impose mitigation measures on the Ranch. (0B 1, 5-8.) It complained that the...

Excerpt: ...non- individual claims is stayed. Analysis: Since the moton is directed only to plaintiffs Brockington and Mikael Riley, declarations of other plaintiffs describing the duties of those other plaintiffs are irrelevant. The agreements have been sufficiently authenticated. The plaintiffs do not argue to the contrary. Page 3 of 4 The agreements expressly apply the FAA. The plaintiffs do not fall within the scope of the "transportation worker" excepti...

Excerpt: ...t be prepared to explain how she would amend the complaint to cure the defects described in the tentative ruling. The Court re-issues the same tentative ruling. The RJN is largely denied because, other than the SAC, the memorandum of points and authorities in support of the demurrer does not refer or otherwise rely upon any of the documents of which judicial notice is requested. A private person has stand-ng to bring an action for relief for a vi...

Excerpt: ...23, the plaintiff shall submit a revised proposed order, a further amendment to the settlement agreement, or both. Page 4 of 4 Analysis: On 3-20-23, the Court granted the plaintiff's request for judicial notice, approved the claim for costs in the sum of $32,253.55 as requested, and approved the administrator's fee of $183,000 as requested. All other issues were continued to 5-23-23. The Portion that Is Denied: The claim for a $10,000 enhancement...

Excerpt: ...Matern a. The declaration of Matern refers to the estimates and opinions of unidentified persons in the 26-attorney Matern Law Group. (E.g„ 40-48.) That is not consistent with S H.3.a.i-iv. of the CMO, which requires the estimates to be of the declarant, not some other person. b. The declaration of Matern describes the experience of several attorneys, but does not provide the information required by S H.3.a.iii: "the number of class certificati...

Excerpt: ...t of the demurrer does not refer or otherwise rely upon any of the documents of which judicial notice is requested. A private person has standing to bring an action for relief for a violation of Business and Professions Code secton 17200 only if the person "has suffered injury in fact and has lost money or property as a result of the unfair competition." (Bus. & Prof. Code, S 17204.) Here, the plaintiff has not alleged that any of the conduct of ...

Excerpt: ... against the nonsignatory; or (2) when the signatory alleges "substantially interdependent and concerted misconduct" by the nonsignatory and a signatory and the alleged misconduct is "founded in or intimately connected with the obligations of the underlying agreement." (Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, 218-219.) Neither of those circumstances are present here. Plaintiff does not base any of her claims against Defendant on the RISC...

Excerpt: ...s name statements are not relevant because they do not establish beyond dispute that the plaintiff was not an owner of the business. The Court may take judicial notice that the statements were filed with the county clerk, but not that the statements are true. First Cause of Action The first cause of action does not state facts sufficient to state a cause of action for conversion because it fails to allege a demand for the return of the property. ...

Excerpt: ...l.) The agreements expressly apply the FAA. The plaintiffs do not fall within the scope of the worker" exception to the FAA. The exemption in section 1 of the FAA is limited to classes of workers who "play a direct and 'necessary role in the free flow of across borders." (Southwest Airlines Co. v. Saxon (2022) 142 s.ct. 1783, 1790, quoting Circuit City stores, Inc. v. Adams 532 U.S. 105, 121.) Here, there is evidence only of the roles of only thr...

Excerpt: ...ience in '148. The CMO seeks the experience of the declarant estimating the value of the various claims, not simply the experience of the law firm asa whole. (S F.12.b.) b. Is internally inconsistent: i. Is Haque's hourly rate $925 ('1 51) or $825 ('166)? ii. Is Campbell's hourly rate $725 (q 57) or $700 (q 56)? iii. Is the total time spent 119.93 hours as stated in the text of 65, or 251.6 hours as stated in the chart in '1 66? c. Does not indic...

Excerpt: ...e revised at page 1 to identify the settlement agreement that is being preliminarily approved by stating the name of the declarant and the filing date of the declaration to which the agreement is attached. b. 915 provides that the final approval hearing may be continued without notice, but 6 and 17 provides that any objectors shall be given notice of any continuance. That inconsistency shall be resolved. c. Paragraph 8 provides that objectors are...

Excerpt: ...will be deleted, and if so, it does not describe by page and line number what allegations in the first amended complaint are being deleted. (Rule 3.1324(a)(2).) • The motion does not state what allegations are proposed to be added, and where in the proposed SAC the new allegations are found. (Rule 3.1324(a)(3).) • The declaration supporting the motion does not explain why the amendments are necessary. (Rule 3.1324(b)(2).) It says only that th...

Excerpt: ...f action of the Third Amended Cross-complaint of Qilin Chang, Golden Taste LLC, and Golden Globe, LP, is granted as to the claims of all three cross-complainants. Analysis: The third amended cross-complaint was filed on 11-19-20. The seventh cause of action asserts a claim for indemnity of all cross-complainants by all cross-defendants. (P. 20.) Specifically, it seeks a determination that the cross-complainants should be indemnified by the cross-...

Excerpt: ...intiffs' opposition to the demurrer is inconsistent, both internally and with res#ct to the allegations of the complaint. For instance, the complaint alleges that the plaintiffs own and reside in the subject property. ('1 1.) The representation that they own the property is repeated in the opposition. (P. 1, II. 11.) Consistent with that representation is the prayer of the complaint, in which the plaintiffs ask for injunctive relief to restrain a...

Excerpt: ... is overruled. Analysis: The plaintiff asserts seven causes of action in his complaint. The County demurs to the first, fourth, fifth, and seventh, all of which are asserted solely against the Counw. The County and Miller demur to the sixth, which is alleged against all defendants. The demurrer also states that it is brought by "Defendants County of Riverside, Ronald L Miller and Does 1 through 50 ('Defendant<)." No fictitiously named defendants ...

Excerpt: ...to fully comply with the Court's CMO. 1. The proposed order must be revised. a. The order refers to the settlement agreement rather than the amended settlement agreement. (P. 3.) All such references shall be corrected. In addition, the order shall be revised to identify the declaration to which the amended agreement is attached, both by name of declarant and filing date. Page 5 of 6 b. The class definition (q 3) is unclear in two respects. i. Wha...

Excerpt: ...er. Analysis: 1. The declaration of Haines certifies the factual representations to be true "to the best of my knowledge." The Court requires an unconditional certification consistent with Code of Civil Procedure section 2015.5. An amended declaration shall be filed. 2. Because of its unsatisfactory performance as an administrator in other cases, the Court no longer approves Simpluris as an administrator in any case. The parties shall select a di...

Excerpt: ...all other requests for judicial notice are granted. The plaintiffs submitted additional evidence with their reply. Rather than exclude that evidence, the Court agreed to consider it, but on the condition that the defendants would be allowed to rebut that untimely evidence during the course of the supplemental br-efing ordered by the Court. The Court did not authorize the plaintiffs to submit yet another round of evidence. Accordingly, the Court d...

Excerpt: ...er, 1; hereinafter, the "Fees." ) In addition, the County admits that the Fees "are levied in addition to any property taxes levied on timeshare estate holders or their timeshare interests .. " (Ibid.) It also admits that the amount of those fees and the ordinances establishing those amounts are as follows: • County of Riverside Ordinance No. 735.3 establishes the current Fee collected by the Riverside County Assessor, and sets the Fee at $23.0...

Excerpt: ...sary to cure the following errors and omissions: 1. The settlement agreement: a. The agreement is internally inconsistent regarding the identity of the plaintiff. It identifies the plaintiff both as Brandon Fiore (p. 1) and as Cindi Vasquez (q 29). Similarly, the introductory language on page 1 refers to the plaintiff with a masculine pronoun ("himself") but 32 and 52 of the agreement refer to the plaintiff with feminine pronouns (she, her). That...

Excerpt: ...ons to which he refers in 15 of his declaration filed 2-6-23, and stating the nature and amount of any loss of income he suffered as a result of those unsuccessful applications." The plaintiff has not done so. Instead, the parties stipulated to continue the hearing to 5-11-23. The sole basis for the requested continuance was that Ward was still working on his supplemental declaration. However, the stipulation did not explain why Ward required 10 ...

Excerpt: ... law authorizing it, much less requiring it. Plaintiff's reliance on Van Vranken v. Atlantic Richfield Co. (N.D.Cal. 1995) 901 F.Supp. 294 is misplaced, because that was a class action alleging violations of section 201 of the Economic Stabilization Act. It has nothing to do with PAGA. Although Valdez gave a general release of individual claims, he did not describe the nature or value of any individual claims he was releasing. Indeed, in 41 of th...

Excerpt: ...]o policy of insurance shall provide, or be construed to provide, any coverage or indemnity for the payment of any fine, penalty, or restitution in any criminal action or proceeding .. (Ibid.) It does not prohibit the use of insurance proceeds to offset criminal restitution. To the contrary, case law establishes that settlement payments made to a crime victim by the criminal defendant's insurance carrier must be offset to respondent's restitution...

Excerpt: ...losure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. Where, as here, a fiduciary relationship does not exi...

Excerpt: ...22, 2023, the plaintiff shall file the following: 1. A supplemental declaration from Ward, stating the dates on which he submitted the job applications to which he refers in ¶ 16 of his declaration filed 2-6-23, and stating the nature and amount of any loss of income he suffered as a result of those unsuccessful applications. 2. An amended declaration of Lo. The declaration filed 2-6- 23 (a) is not signed, (b) refers to but does not authenticate...

Excerpt: ... to a memorandum of costs are not jurisdictional [citation], and the premature filing of a memorandum of costs is treated as ‘a mere irregularity at best' that does not constitute reversible error absent a showing of prejudice. [Citations.] Rather, courts treat prematurely filed cost bills as being timely filed.” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) Here, there is no showing of how the petitioner was preju...

Excerpt: ...ith the Administrative Procedure Act, as to the second cause of action, and as to the third cause of action. As to the claim that the plaintiff attempted to allege in ¶ 57, it is sustained with 21 days' leave to amend. Analysis: First Cause of Action To the extent that it alleges that the defendant's December 8, 2021, letter constitutes an underground regulation by requiring that every batch of EMSW be tested prior to being used for EMSW convers...

Excerpt: ...-23 hearing date. Accordingly, they are untimely. (Code Civ. Proc., § 1005, subd. (b).) The default was entered on 8-2-22. The Motion was filed on 1-24-23, less than six months later. The motion is therefore timely. “An attorney has both an ethical and statutory obligation to warn opposing counsel, if counsel's identity is known, of an intent to seek a default and to give counsel a reasonable opportunity to file a responsive pleading.” (Shap...

Excerpt: ...n fails because it does not allege a tender of the amount of the indebtedness owed. The plaintiff notes that no tender is required if It would be inequitable to enforce that condition against the plaintiff. (Oppo., p. 4, l. 17, through p. 5, l. 22.) In arguing that the enforcement of the tender rule would be inequitable in this case, the plaintiff contends that the defendants' “misconduct was in the filing of the Notice of Default with a false ...

Excerpt: ... last month in which the plaintiff alleges to have worked for the defendants). The request for sanctions is granted. Hollandia Farms and its counsel are ordered to pay, jointly and severally, the sum of $1,060 to counsel for plaintiff forthwith. Analysis: Hollandia Farms, Inc., objected inter alia on the ground that the requested information would not lead to the discovery of admissible evidence because Plaintiff did not work for this Defendant a...

Excerpt: ...me claim at $582,570, “using a violation rate of three (3) hour of overtime wages per workweek.” The other estimated maximum values of the remaining claims are based on similar assumptions. But the declaration appears to be silent as to whether there are any facts that would justify those assumptions. The Court is asking for an estimate of the highest value justified by the evidence, not a number based on an assumption for which there is no e...

Excerpt: ...s denied to the extent that it seeks the dismissal of the non-individual PAGA claims. The prosecution of the plaintiff's representative PAGA claims is stayed pending the resolution of the arbitration. The status conference is vacated. Analysis: In her oral testimony on 11-14-22, the plaintiff conceded that she received “paperwork” during the on-boarding process when she first started working for Riverside Medical Clinic. (RT 8 & 12.) Specific...

Excerpt: ...dressing each of the following issues: 1. Moon states that there are 175 class members. (Moon decl., ¶ 17.) The fixed fee quoted by the administrator is based on 170 class members. (Lawrence decl., Exhibit B.) Is the administrator's fee changed if the number of class members is 175? 2. By including claims that could have been alleged “based on the . . . legal theories contained in the Action” (Agreement, ¶ 69; Order, p. 4; part 8 of the not...

Excerpt: ...rict”). (Case RIC1905897, hereinafter, “RAC Mandate Action.”) In response to the defendant's demurrers, a first amended petition and second amended petition (“SAP”) were subsequently filed. On 12-11-20, the defendant's demurrer to the SAP was sustained without leave to amend. Pursuant to the stipulation of the parties, on 9-3-21 the Howard Jarvis Taxpayer Association (hereinafter, “plaintiff” or “the association”) substituted in...

Excerpt: ...7.6, subd. (3)(10).) Each of the five documents appear to be relevant to that compliance, as shown by the fact that they were repeatedly cited in the initial study and mitigated negative declaration and in the Water Quality Management Plan: Document #1 – the Fontana Study: It is referenced throughout the AR, the party's respective briefs, in the Initial Study/MND (IS/MND) (AR 414, 447‐448, 648‐649), and in the Traffic Impact Analysis (AR 39...

Excerpt: ...eclaration, describing when he first became aware that the administrator had failed to mail the notices in a timely fashion, and explaining why counsel should not have discovered that delay sooner. No later than 3‐1‐23, the plaintiff shall file an amended declaration of Lee, curing the following inconsistencies and ambiguities in the declaration filed: 1. Paragraph 22 states: “Phoenix has agreed to perform all the listed Settlement Administ...

Excerpt: ...he parties previously deleted such a provision. Now they have put it back into the release. 2. The explanation for limiting the scope of the settled claims to butchers and meat cutters is still unclear. As the Court previously observed: “The LWDA claim letter was sent on behalf of all employees of the two defendants. Apparently, those employees numbered 143. The settlement focuses solely on those employees who worked as butchers and meat cutter...

Excerpt: ...n the property since 2024. (See SSUF #1.) Here, the relevant time period is from 11‐19‐17 to the present. (SAC, ¶ 8.) Therefore, the facts listed in the separate statement fail to establish a prima facie showing that the plaintiffs' claims cannot be proven. Second, even assuming that the 2024 date is a typographical error, intended to be 2014, other SSUFs also fail to address the entire period during which the plaintiffs seek to establish he...

Excerpt: ...ecause Facebook was a party to the communications that were allegedly intercepted. (See Rogers v. Ulrich (1975) 52 Cal.App.3d 894, 899 [“only a third party can listen to what is said in private”].) The Court is not persuaded. The Complaint alleges that Plaintiffs provided their personal information to Defendant through accessing its website, which was transmitted to Facebook without Plaintiffs' consent or authorization. There is no allegation...

Excerpt: ...cheduled for September 28, 2023, at 8:30 A.M. Analysis: The Court had questioned the request for reimbursement of the “$3,150 paid to Rust Consulting to issue Belaire West notices. That appears to the Court to be unreasonably expensive. Given that Phoenix is conducting the entirety of settlement administration for $5,750, it is difficult to understand how it reasonably cost nearly 55% of that sum just to send out a letter. The Court requires a ...

Excerpt: ...tained with 20 days' leave to amend. The plaintiff has leave to assert a new claim for relief under Business and Professions Code section 17200, but only against defendants Quistorf and Inland Empire Latino Lawyers Association. Analysis: First cause of action, for negligent misrepresentation The plaintiff acknowledges that a plaintiff alleging negligent misrepresentation must allege “a misrepresentation of a past or existing material fact.” (...

Excerpt: ...‐22, the plaintiff filed a second motion for approval. That was heard on 12‐16‐ 22 and continued to this date. 1. Enhancement: The motion seeks a $1,000 enhancement for the plaintiff. (Memo., pp. 19‐20.) That request was denied on 6‐30‐22. As the Court explained at the time: “The CMO, at § F.7.c., requires a declaration from the plaintiff providing an evidentiary basis for an enhancement award, such as the time spent on litigation ...

Excerpt: ...grounds for a plea in abatement have also been met. The two cases share a common threshold issue of whether the named plaintiff in each case is an employee or an independent contractor. This threshold issue must be resolved before either plaintiff has standing to assert claims for violations of their rights as employees under the Labor Code and the IWC Wage Order. Both the plaintiff in the Quinn Action and Plaintiff in this action are alleging th...

Excerpt: ... signed. Analysis: The plaintiff purported to serve both defendants by mail with return receipt requested to an address out of state. (Code Civ. Proc., § 415.40.) The proofs of service show that both mailings were addressed to Northern Pacific Group. Therefore, the service as to Honour is defective. The default of Honour is vacated, the proof of service filed 7‐12‐22 is stricken, and service of the summons is quashed. The mailings to Norther...

Excerpt: ...this department. Analysis: Because it deprives the opponent of the opportunity to counter all the evidence offered in support of the motion, “[t]he general rule of motion practice . . . is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) It should be allowed only in an exceptional case, and only on the condition that the opposing party be given the opportunity to respond. (Ibid...

Excerpt: ...lysis As to the first cause of action, it is barred by the economic loss rule. As recently as 10 months ago, the California Supreme Court endorsed the Restatement, § 3, for the proposition that “‘there is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contract between the parties.'” (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 923.) In other words, a “person may not ordinaril...

Excerpt: ...r than 2‐6‐23. 1. Notice a. The definition of “non‐exempt” added to the Notice is technically correct but unlikely to be helpful to any lay class member, since they are not likely to know whether they are exempt from wage and hour laws. (P. 2, part I.) b. The Notice continues to refer to the original settlement agreement, even though it has been replaced by the first amended settlement agreement. (P. 2, part II.) c. In defining the clas...

Excerpt: ...filed his Private Attorneys General Act (“PAGA”) action against TMSO, Inc. (“Defendant”).” (Memo., p. 2, ll. 13‐14.) No case number is given. Where was that action filed, and what is the status of that action? 2. The plaintiff asserts that “on December 16, 2019, Plaintiff filed his initial complaint on behalf of himself and all other similarly situated persons employed by Defendant in California . . . .” (Memo., p. 2, ll. 14‐16....

Excerpt: ...ayed pending the resolution of the arbitration. Analysis: The plaintiff does not deny that she executed the arbitration agreement or that it is governed by the FAA. She does, however, deny that the waiver of the right to bring PAGA actions is enforceable. She contends instead that the PAGA waiver is unenforceable and severable, and therefore the terms of the Agreement require her individual PAGA claim to be “litigated in a civil court of compet...

Excerpt: ... order is signed. Analysis: Vehicle Code section 35701 provides: “Any city, or county for a residence district, may, by ordinance, prohibit the use of a street by any commercial vehicle or by any vehicle exceeding a maximum gross weight limit . . . .” (Subd. (a).) Perris adopted such an ordinance, purporting to prohibit trucks over a particular weight from using Ethanac Road. (Ordinance 1419, Menifee RJN Exh. 2.) In its 3rd cause of action, M...

Excerpt: ...th reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) It should be allowed only in an exceptional case, and only on the condition that the opposing party be given the opportunity to respond. (Ibid.) This is not an exceptional case. The plaintiff's individual PAGA claim was ordered to arbitration, and the further prosecution of the action was stayed pending the resolution of the arbitration. Since then, the plaintiff has ...

Excerpt: ...he allegations are uncertain such that it cannot reasonably determine what issues must be admitted or denied, or what claims are directed against her. The first cause of action fails to state facts sufficient to state a cause of action for breach of contract because it fails to plead, in more than a conclusory fashion, three elements: Plaintiff's' performance or excuse for nonperformance; the defendant's breach; and the resulting damages to the p...

Excerpt: ... agreement and proposed order do not comply with the CMO at § D.10. • The proposed order does not comply with the CMO at § D.11. • At the last hearing, the Court objected to the $7,500 release fee being paid to the plaintiff, in part on the ground that the plaintiff was receiving the entire release fee, without any deduction for the attorney's fees and costs incurred to obtain that release fee. As a result. the LWDA and the aggrieved employ...

Excerpt: ...a red‐lined version of that amended agreement. Terms of Settlement In the Court's prior tentative ruling, the Court questioned why the PAGA claims were settled for only 4.3% of their reasonable value at trial (from $114,300 to $5,000) while the plaintiff's individual claims were settled for 17% of their reasonable value at trial (from $408,280 to $70,000). The supplemental declaration of Geshgian fails to explain that difference. As a percentag...

Excerpt: ...issue Belaire West notices. That appears to the Court to be unreasonably expensive. Given that Phoenix is conducting the entirety of settlement administration for $5,750, it is difficult to understand how it reasonably cost nearly 55% of that sum just to send out a letter. The Court requires a declaration from Rust explaining why the amount charged is reasonable. 2. Separate settlement a. The plaintiff has entered into a separate settlement with ...

Excerpt: ...ph 13 of the order shall be modified to acknowledge the defendant's liability for employer's payroll taxes. 3. The attorney's fee award shall be reduced from $93,000 to $88,500. Paragraph 20 shall be modified accordingly. 4. The cost award to plaintiff's counsel shall be reduced from $13,293.60 to $12,078.45. Paragraph 21 of the order shall be modified accordingly. 5. The award to CPT, the administrator, shall be reduced from $7,500 to $6,000. Pa...

Excerpt: ...ies' respective requests for judicial notice are granted. The defendant's special demurrer is sustained. The proposed order is signed as modified by striking everything following “Angeles” in line 10 of page 1. The Court finds that the doctrine of exclusive concurrent jurisdiction applies. Therefore, the Court need not determine whether the statutory grounds for a plea in abatement have also been met. The two cases share a common threshold is...

Excerpt: ...ised documents as are necessary to address the following concerns and otherwise to fully comply with the Court's CMO. 1. The moving papers are inconsistent regarding the distribution of any unclaimed sums. The Spivak declaration states (at ¶ 64) that the uncashed checks will be distributed to Legal Aid at Work, but the Notice to class members states (at § 7, p. 5) that the uncashed checks will be sent to the State Controller. 2. If Legal Aid at...

Excerpt: ...anagement order of 8‐15‐22 shall be filed and served no later than 1‐11‐23. Order: The notice, exclusion form, and objection form are not attached to the order, despite statements in the order to the contrary at ¶¶ 6, 7, & 8. (CMO, ¶ H(4)(a).) That omission must be cured. The order (at p. 1) refers to a “proposed Amended Joint Stipulation of Class Action Settlement and Release attached as Exhibit 3 to the Declaration of Cody Payne fi...

Excerpt: ...cribed in Tech‐Bilt. “[M]any judges simply refuse to grant a motion under § 877.6 unless the moving papers address each of the applicable Tech‐Bilt factors.” (Weil & Brown at § 12:874.) However, “when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a Page 3 of 3 declaration which sets forth a brief background of the case is sufficient.” (City of Grand Terrace v. Superior Court (1987) 19...

Excerpt: ...g papers continue to fail to comply with the court's CMO in at least the following respects: Second Amended Agreement: Paragraph 1.B. does not match the title of the agreement. Because the administration costs are capped at $8,500 (see order, ¶ 12), the circumstance described in the last sentence of ¶ GG cannot occur. That sentence should be stricken. Item (5) at lines 2 and 3 of page 16 of the agreement is contrary to the CMO and shall be dele...

Excerpt: ...ablish that the agreement is governed by the FAA. That argument fails. suspect that the reply is correct: If federally regulated, then involved in interstate commerce, and the FAA applies. The defendant offers evidence that its operation is governed by extensive federal regulations. The plaintiff does not dispute that; she simply argues that such regulation by itself is insufficient. The Court disagrees. “The Federal Arbitration Act (FAA), titl...

Excerpt: ...f 3 Defendants, Plaintiff was required to sign various onboarding documents, including” an arbitration agreement. He also alleges that the defendants were his joint employers, and that each was the alter ego of the other. (Compl., ¶ 10.) Therefore, the lack of an express definition of “Company” is immaterial. Plaintiff also points out that the arbitration agreement was not signed by any Defendant. However, there was no signature block to b...

Excerpt: ...r declaratory relief, unfair competition, and PAGA, there are 10 individual claims for monetary relief. The CMO requires that the value of each be estimated. (§ D.4.b.) The moving papers estimate the value of some but not all. The value of two of them is estimated to be $408,280, but it is not clear whether that estimate represents the value if entirely successful at trial or the value of what could reasonably be expected to be awarded at trial....

Excerpt: ...issions shall be filed no later than 12‐19‐ 22. Page 3 of 4 The declaration of counsel is titled as being by Patel and is signed by Patel, but the first line of the declaration (page 2, line 1) identifies the declarant as Bibiyan, as does the footer of the document. That inconsistency must be resolved. The changes mandated by the Court's last order have not all been made. For instance, the notice (at p. 2) continues to state that the final‐...

Excerpt: ...ted, the Court presumes that the imaging is the firm's internal digital filing system. The Court will not compensate for such an item of overhead. The plaintiff seeks compensation for a telephone charge incurred on 10‐11‐22 in the sum of $1,173.34. The Court requires explanation of the nature and amount of that charge. The plaintiff seeks compensation for $3,150 paid to the administrator, Rust, on 10‐23‐19, for “claims administration se...

Excerpt: ...se of the number of defects, the Court has suspended its detailed review of the motion. Therefore, the list may not be complete. However, the defects include the following: Burns's declaration, ¶ 12. The form declaration (which the court has encountered in other motions brought by other counsel in this firm) is not sufficiently tailored to facts of this case. For instance, counsel reviewed the employment records of plaintiff and “other Class M...

Excerpt: ...is denied. The remedy for the filing of a responsive pleading after the deadline for doing so is a request for entry of default, not an order Page 6 of 6 striking the responsive pleading. Besides, there is no showing of how the petitioner was prejudiced by the filing of the answer a couple days later than the Court had ordered. CCOLE Can Prosecute this Proceeding The City requested judicial notice of the records of the Secretary of State to show ...

Excerpt: ... to plaintiff J.R. II is denied. Analysis: J.R. I The application to dismiss J.R. I does not comply with sections E.1., E.2., and E.5. of the Court's case management order. Plaintiff J.R. I having continued to use the defendant's services after the complaint was filed and after his purported disaffirmation dated 8‐17‐22, there is no unequivocal expression of an intent to disaffirm the agreement. Therefore, the motion to compel arbitration of ...

Excerpt: ...s denied in part on 6‐30‐22, and denied in its entirety on 7‐28‐22 after the parties could not reach agreement on the terms of a revised release. On 9‐12‐22, the plaintiff filed a second motion for approval. 1. Enhancement: The motion seeks a $1,000 enhancement for the plaintiff. (Memo., pp. 19‐20.) That request was denied on 6‐30‐22. As the Court explained at the time: “The CMO, at § F.7.c., requires a declaration from the p...

Excerpt: ...ve claims is stayed pending the resolution of the arbitration. Analysis: Almost all of the documents of which the plaintiff requests to judicially notice, and both of the documents requested by the defense, are state trial court decisions. State trial court opinions have no precedential value and are not citable authority. (Aixtron, Inc. v. Veeco Instruments, Inc. (2020) 52 Cal.App.5th 360, 399.) Only published appellate opinions may be cited. (C...

Excerpt: ...recipient that complies with Code of Civil Procedure section 384. The motion fails to comply with the CMO in at least the following respect: The scope of the release exceeds the limitations prescribed by the CMO. (H.3.e.) The amended agreement addresses the scope of the released parties, but does not correct the definition of “Class Released Claims.” By releasing all claims “that could have been asserted against the Released Parties in the ...

Excerpt: ...f first filed a motion for preliminary approval 5‐21‐20. It was set for hearing on 6‐15‐20. Finding that the motion failed to comply with the Court's case management order in numerous respects, the Court continued the hearing to 7‐14‐20, and ordered the plaintiff to supplemental documents seven court days in advance. Therefore, the parties repeatedly – at least five times – stipulated to continue the hearing, ultimately to 2‐23�...

Excerpt: ...lysis: It is not necessary, and thus improper, to ask a court to take judicial notice of published appellate court opinions. Therefore, the defendant's request that this Court take judicial notice of the United States' Supreme Court's opinion in Viking River is denied. The plaintiff asks the Court to take judicial notice of over a dozen trial court opinions. (Exhibits 1 – 8, 11 – 15.) Trial court opinions are not published, and thus have no p...

Excerpt: ...the declaration of Terry Fillman, sustained as to Nos. 1, 12, and 13, and overruled as to Nos. 2‐11, 14, and 15; To the declaration of Alyssa Vernal, sustained as to Nos. 15 and 18, and overruled as to Nos. 1‐14, 16, 17, and 19. The defendants' evidentiary objections are: To the Declaration of Carlos Franco‐ Paredes, M.D., sustained as to Nos. 1, 6‐9, and 11 ‐13, and overruled as to Nos 2‐5, and 10; To Exhibits L, M, N. O, and P, sust...

Excerpt: ...he motion for summary judgment is denied. The motion for summary adjudication is granted as to Issues 3 and 6, and denied as to Issues 1, 2, 4, 5, and 7. Analysis: Evidence submitted with a reply is not timely. Issue #1: First Cause of Action, for Breach of Contract: The critical issue is whether there is a prior burial in the same space as that in which Mr. Garrett is buried. The defendant fails to present affirmative evidence that there is no p...

Excerpt: ...itration of the individual claims. Analysis: The plaintiff appears to concede that he executed the arbitration agreement, that the agreement is enforceable, and that as a result his individual claim must be arbitrated. The plaintiff opposes the motion only to the extent that it seeks dismissal of the representative claims. Thus, the only dispute is whether the PAGA claim should be dismissed, as suggested by the U.S. Supreme Court, or stayed pendi...

Excerpt: ...orney $275,000. A condition of the settlement is that the class claims be dismissed. The Court previously directed the parties to comply with the Court's case management order to obtain such a dismissal. (See minutes of 4‐5‐22.) In particular, requests for dismissal must comply with section F of the CMO. The defendants' motion fails to do so. Instead, the defendants mischaracterize the Court's CMO as a “local rule,” assert that local rule...

Excerpt: ...iew of the motion as a whole. 1. The Proposed Order/Judgment filed on September 2, 2022, shall be amended as follows: A. Paragraph 7 shall be amended to state that the release is limited to the facts alleged in the Lawsuit. B. Correct the definition of “released parties” in compliance with H.3.e. C. Provide in Paragraph 6(e) for the settlement administrator to file a final accounting report at least 10 court days prior to the nonappearance he...

Excerpt: ...were unnecessary. Moreover, the time claimed by the plaintiffs is fairly nominal, and neither suffered adverse consequences. The Court reduces the payments from $5,000 apiece to $1,500 apiece. • Attorney's fees: o The Haffner firm claims a lodestar of $102,330. The Stevens firm claims a lodestar of $190,225. Neither estimate is supported by any contemporaneous time records, and thus neither can be independently evaluated by the court. o The tot...

Excerpt: ...endants have failed to produce evidence of an arbitration agreement signed by the plaintiff and hence failed to meet their initial burden to show that an agreement exists. That is incorrect. The existence of the agreement is established by the declaration of Castro, and exhibits A and B thereto. Although the declaration erroneously refers to Zamudio, in the event of inconsistency between the declaration and the exhibit, the exhibit controls. Thus...

Excerpt: ...ng is continued to 12‐5‐22 at 8:30 A.M. in this department. Any supplemental evidence or argument by the defendant must be filed and served at least 16 court days in advance. Any supplemental opposition must be filed and served in accordance with Code of Civil Procedure section 1005, subdivision (b). It is denied as to the plaintiff's motion to consolidate and amend. In light of the discovery proposed by the defendant, the stay on formal disc...

Excerpt: ...d to 10 pages in length and shall confine itself to the issue of whether the plaintiffs have unequivocally expressed their intent to disaffirm the arbitration agreement in a timely fashion. Page 3 of 4 Analysis: The plaintiffs assert that T.M. will be dismissed, and otherwise offer no opposition by that plaintiff to the defendant's motion. At present, however, no such dismissal has been requested. Therefore, the unopposed motion is granted as to ...

Excerpt: ...ng issues no later than 9‐26‐ 22, and continued the hearing to 9‐30‐22. As this tentative ruling is written on 9‐28‐22, no such supplemental documents appear to have been received. The issues are: 1. Although not required by the terms of the CMO, the Court asks for more information concerning the individual settlement reached by the plaintiff, including the nature of the claims released, the maximum value of those claims at trial, the...

Excerpt: ...the CMO. 4. The Court previously noted that the “description of the means by which individual shares will be calculated (Notice, pp. 2‐3, Aiwazian decl., ¶23) is unclear,” and asked: “If the initial shares of the previously paid settlement class members will be reduced by the amount of those previously paid settlement payments, which totals $97,500, and if “the total amount by which the initial shares of all previously paid settlement ...

Excerpt: ...on fails to comply with the CMO in the following respects: Contrary to CMO § H.3.a.v., the declaration of counsel fails to describe the range of the anticipated distributions to individual class members. (Wheeler decl., ¶ 22.) The administrator's declaration is inconsistent with counsel's declaration. The administrator's quotation is based on there being 128 class members (Mullins decl., Exh. B), but counsel says that there are only 93, 27% few...

Excerpt: ...ct with the plaintiffs or their minor children, and (2) from interfering with the plaintiffs' quiet enjoyment of the premises at 30407 Early Round Drive, Canyon Lake, California, and of the rights associated with those premises, during the term of the current lease and any renewal or extension of that leasehold interest. If counsel for the defendant believes that the injunction requires a more detailed definition, defense counsel shall propose al...

Excerpt: ...e is continued to 11‐29‐22, 8:30 A.M., Dept. 1. Analysis: First Cause of Action re failure to comply with APA The parties appear to agree that relevant test is from Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571, in which the court adopted this rule for when an agency has adopted a regulation that should be subject to the APA: “First, the agency must intend its rule to apply generally, rather than in a specific case. ...

Excerpt: ...executed the arbitration agreement or that it is governed by the FAA. She does, however, deny that the waiver of the right to bring PAGA actions is enforceable. She contends instead that the PAGA waiver is unenforceable and severable, and therefore the terms of the Agreement require her individual PAGA claim to be “litigated in a civil court of competent jurisdiction.” The Court is not persuaded. The PAGA waiver only applies to the representa...

Excerpt: ...‐28‐22), the California Department of Fish and Wildlife (on 8‐4‐22), Mitsubishi Cement Corporation (on 8‐4‐22), the Silver Lakes Association (on 8‐5‐22), and the CalPortland Company (on 9‐6‐22). In addition, the Watermaster filed a reply to the DF&W's response (on 8‐5‐22). After considering the arguments raised in those responses, the Court rules as follows: The free production allowance for all producers in the Alto Subar...

Excerpt: ...of any authority for such compensation for services as the plaintiff in PAGA cases, as opposed to class actions. The proposed order shall be revised accordingly. Both Marquez and Mor state in their declarations that these individual payments are, “in part,” consideration “for a general release of [their] individual claims.” To the extent that they are not given in consideration for those releases, what is the consideration? If the payment...