Excerpt: ...il Procedure section 631. Here is no such evidence, because the plaintiffs' motion is not supported by any declaration or any other evidence whatsoever. Although the court takes judicial notice of the documents in the court record, nothing in those documents explains why the plaintiffs failed to deposit their jury fees in a timely fashion. ...

Excerpt: ...e County seeks a continuance in order to take the depositions of Ms. Levy and Mr. Yoder prior to trial. However, it is entirely speculative whether those depositions will be taken. Ms. Levy was served with a subpoena but failed to appear. Whether she will respond to an order compelling her appearance for deposition is speculative. Mr. Yoder has not been located. Whether he will be located and will testify at deposition is similarly speculative. A...

Excerpt: ...ich would be to July 3, 2020. What is the extent of the requested continuance? a. Assuming that the former is the intended continuance, trials in Riverside are called on Fridays, not Tuesdays. b. If the latter is the intended continuance, July 3 is a holiday. 2. The defendants fail to identify the additional discovery needed to meet the alleged new theory, or to explain how long it will take them to complete that discovery. (Trial setting order, ...

Excerpt: ...ing a timely proof of service, and on 10‐8‐19 for the failure to comply with that portion of the Court's order of 6‐24‐19 that directed the plaintiff to file a case management statement within three weeks that described the nature and amount of the damages being sought. The motion thereafter refers to both orders, but is vague as to which order is being challenged. Similarly, the declaration (at ¶ 20) says that the moving party seeks a d...

Excerpt: ...me unspecified date in late November to some unspecified date in early December does not demonstrate good cause for the continuance of a trial in which no testimony is likely until December 10. Moreover, assuming there is a conflict, there is no evidence of reasonable efforts to avoid it. Specifically, there is no evidence of when she was retained, when she was informed of the trial date (set at the TSC on 5‐1‐19), and when she committed to b...

Excerpt: ...Thursday, November 7, 2019. Analysis: Lents seeks a continuance of the trial, currently set for 12‐6‐ 19, for 120 days. The motion fails to demonstrate good cause. Lents argues that the naming of Vive TFP and Canterra Creek as cross‐defendants in the Dunlap cross‐complaint requires a continuance. The Court is not persuaded. Neither Vive nor Canterra are cross‐complainants. Therefore, they are not asserting any claims against Lents. The ...

Excerpt: ... no detailed description of what discovery has been conducted, what discovery still needs to be completed, why it has not been completion earlier, and how long it will take to complete. (Trial Setting Order, § F.4.) In particular, there is no showing that the remaining depositions could not, with reasonable diligence, have been completed prior to now. There is no showing that the depositions that remain to be conducted cannot, with reasonable di...

Excerpt: ... 3.1332(c)(6).) Here, the defendants fail to demonstrate the requisite diligence. The defendants appeared in the case 2.5 years ago, in April of 2017. Apparently, the defendants propounded no discovery in either 2017 or 2018. (Decl. of Mojtehedi, ¶ 2 [discovery in 2017 and 2018 “included various sets of discovery from Plaintiff.”]) On 2‐28‐18, the Court set a trial date of 7‐27‐18. On 6‐15‐18, the defendants applied ex parte for ...

Excerpt: ...al. Any future motion shall either be properly served or shall be accompanied by the defendant's waiver of proper notice. Analysis: Service of the motion is inadequate. The motion was served by email, which required 16 court days and 2 calendar days of notice. (C.C.P. § 1010.6(a)(4)(B).) Plaintiffs only provided 16 court days. In addition, the second motion fails to comply with directives issued by the Court when it denied the first motion. For ...

Excerpt: ...ollowing: 1. On March 4, 2019, at the parties' request, the hearing was continued to allow the parties time to re‐evaluate whether they want to use Controller rather than a cy pres. The next day, March 5, 2019, the parties signed a stipulation (a) reciting that the unclaimed funds would be distributed to the Wage Justice Center as a cy pres, (b) attaching copies of the previous agreement in the form of the July 2018 Amended Stipulation and Adde...

Excerpt: ... made to the agreement. A comparison of the final agreement (exhibit 1) with the redlined version (Exhibit 1A) reveals that the changes, additions, and deletions in the redlined version do not always appear in the final version. Compare, e.g., ¶ 26 in both documents. That lack of consistency is both very serious and very disturbing. The Court must be able to rely on counsel's representations that a redlined document accurately reflects the final...

Excerpt: ...on this motion, the defendants sought leave to respond to the analysis in the Court's tentative ruling. The Court granted the defendants leave to file sur‐reply or other supplemental briefing. Both defendants did so. After reviewing those briefs, the Court's analysis of the situation is not changed. The defendants challenged the original complaint by filing special motions to strike pursuant to Code of Civil Procedure section 425.16. (Mtns. fil...

Excerpt: ...e PAGA claims, that the plaintiff has failed to do so, and that the defendant is entitled to an order enforcing the agreement by dismissing the complaint. The motion fails. PAGA was amended in 2016 to require that any settlement of any action that includes a PAGA claim must first be approved by the Court. (Lab. Code, § 2699, subd. (l)(2).) Unless and until the Court grants such approval, the agreement is unenforceable. Here, no such approval has...

Excerpt: ...otions. However, the Court will not consult multiple declarations from the same declarant. If the plaintiff wishes to rely upon selections from multiple declarations from the same declarant, a new declaration shall be filed to consolidate the relevant parts of those prior declarations. If the sixth motion is filed but denied, then the Court will require that any future motion comply with Code of Civil Procedure section 1008. Analysis: The motion ...

Excerpt: ... questions listed below. An future motion shall either pertain to a new settlement or shall be based on new law or other new facts, as required by Code of Civil Procedure section 1008. Analysis: The motion still fails to comply with the Court's CMO. For instance: The CMO requires an explanation of how counsel arrived at the agreed‐upon amount of the PAGA penalties. (§ E.4.e.) That was noted in the ruling denying the second motion, but is still...

Excerpt: ...7 court days' notice when 18 were required. By specifying 2‐21‐ 19 as the last day in which to answer, the Court did not shorten notice for any response to the FAC other than an answer. However, the Court may strike portions of a pleading “at any time in its discretion and upon terms it deems proper.” (Code Civ. Proc., § 436, subd. (a).) The merits having been fully briefed, the Court exercises its discretion in this instance. To qualify...

Excerpt: ...ttlement is not enough when the action being settled is a representative action the settlement of which requires court approval. Any information that the court relies upon when deciding whether to approve the settlement should be in the publicly accessible record. The defendant's reliance upon Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481 is misplaced, because the settlements there were not of class or other representa...

Excerpt: ...e the amendment is not shown to be necessary. Bogh claims that the amendment is necessary to allege additional affirmative defenses. Affirmative defenses are factual contentions on which the defendant bears the burden of proof at trial. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.) Bogh has not presented any authority for the proposition that it bears the burden of proof on any of the proposed “defenses.” Nor has Bogh stated th...

Excerpt: ....: There is no description of the range of potential recoveries by class members.  3.k.ii.: There is no declaration from a declarant with personal knowledge.  4.c.: The motion asserts that the class period is 3/24/13 to 6/1/18. The notice is consistent on page 1, but pages 3 and 4 of the notice state the class period is 3/24/16 to 6/1/18. This inconsistency must be resolved. 2. The Court will not approve the class definition as currently dr...

Excerpt: ...e a PAGA case is not enforceable until it has been approved by the Court. Here, the Court has never approved the settlement agreement, and indeed has not yet been asked to do so. Therefore, there is no enforceable agreement. In the absence of such an agreement, the motion to enforce cannot be granted. This problem was discussed with counsel at the status conference on January 24, 2019. At that time, defense counsel acknowledged that PAGA settleme...

Excerpt: ... amount to the administrator. Although the settlement agreement was amended in November of 2018, the amended agreement inexplicably continues to provide for the gross settlement to be paid in two installments, in May and July of 2018. (¶ 9.) Since those dates are months in the past, and already were when the agreement was amended, there is no term describing when the defendant will fund the settlement. The Court will not approve an agreement tha...

Excerpt: ...ed as to the eighth cause of action, without leave to amend. Any amended complaint shall be filed and served no later than February 25, 2019. A case management conference shall be conducted on April 8, 2019, at 8:30 A.M. in this department. Analysis: The first cause of action is sufficiently pled in ¶¶ 53 and 54. The second cause of action is sufficiently pled in ¶¶ 62‐65. The third cause of action is sufficiently pled in ¶¶ 72‐74. The ...

Excerpt: ...ly with the Court's CMO#2, which shall be issued forthwith. Analysis: The motion fails to comply with the current CMO, filed 6‐29‐17. For instance:  E(1)(a)‐(b) – Counsel's declaration does not set forth his estimate of the total amount that would be awarded if the action were successful at trial and does not set forth his estimate of the total amount the class could reasonably expect to be awarded at trial, taking into account the lik...

Excerpt: ...2 of 3 The plaintiff shall provide a revised proposed order in the form filed 1‐11‐19, but modified (a) to correct the date of the hearing and (b) to change ¶ 2 to read: “The Court hereby enjoins KPM Enterprises, Inc., and Mary Katherine Maes Moody from operating any business at 27629 Commerce Center Drive in Temecula, California, that provides dog daycare, dog boarding, or dog spa services, or associated retail products, other than a Dogt...

Excerpt: ... opposing the motion, the Commission challenges only the number of hours incurred in prosecuting the appeal and preparing this motion. It argues that the fees should be reduced by 20 percent, but it never explains how it comes to that figure. The only task that it identifies as having consumed an unreasonable amount is oral argument. It fails to propose what a reasonable amount of time would be for that task, and thus does not identify the number...

Excerpt: ... further motion shall fully comply with the Court's CMO and with the ruling by which the first motion was denied. Analysis: The motion is denied because the plaintiff has failed to comply with the Court's CMO. In particular, it appears that the plaintiff failed to fully comply with the following sections of the CMO, because the plaintiff:  Has failed to address the PAGA claim when responding to H.3.a.iii.;  Has failed to comply with H.3.k.,...

Excerpt: ...ntiff must be represented by an executor, administrator, trustee, or other personal representative. Second, to the extent that the motion is seeking reconsideration, there is no evidence that the procedural circumstances that require such a motion exist. Such a motion is necessary “[w]hen 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 . . . ...

Excerpt: ...s to other employees); Travis Booth – none; Nicholas Bouzikian – 8 and 14; Daniel Cerda – 10; Dejuanne Davis – 1, 4‐5, 8 and 14 (as to other employees); Ericka Eisenman – 3 (as to other employees) and 8; Ollie Ervin – 12, 20, and 23 (as to what other employees were told); Courtney Fisher – 6, 11 and 17 (as to other employees); Robert Geason – 6; Anthony Hidalgo – 10, 18, 21 (as to other employees were told); William Homsany �...

Excerpt: ... by the enactment of Penal Code section 688.5, and may now be dismissed without prejudice. They contrast that claim with the claim for a writ of coram nobis, the subject of the third count, suggesting that they agree to the dismissal of counts one and two. Are the plaintiffs conceding that the demurrer to the first and second counts may both be sustained without leave to amend? If not, exactly what are they stipulating may be dismissed? Second, t...

Excerpt: ...Safety Code section 1339.51, which requires a certain notice to be posted. (TAC, ¶¶ 31‐32.) She also complains that the defendant failed to make certain other disclosures. (Id., ¶ 47.) In order to establish standing under the UCL, a plaintiff must demonstrate some form of economic injury, i.e., a plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e. economic injury, and (2) s...

Excerpt: ...ate Claim for Coram Nobis The defendant cites People v. Kim (2009) 45 Cal.4th 1078 for the proposition that a party moving for a writ of error coram nobis must demonstrate factual innocence. The Supreme Court said no such thing anywhere in that opinion. To the contrary, it said: “The writ of [error] coram nobis is granted only when three requirements are met. (1) Page 3 of 4 Petitioner must ‘show that some fact existed which, without any faul...

Excerpt: ...6.) Here, the plaintiff's attorney signed it, but it is unclear whether it is also signed by Iris Landing Homeowners Association, the only plaintiff in the action. (Complaint.) There are two signature pages attached to the agreement. (Harrington decl., Ex. A.) On one of them, a signature line is prepared for “Iris Landing Homeowners Association, Plaintiff.” That signature line is blank. On a second signature page, there is signature line labe...

Excerpt: ...3.1382, regarding the identification of the pleadings proposed to be dismissed. Any further effort to obtain a determination that a settlement is in good faith shall do so by notice (Code Civ. Proc., §.877.6, subd. (a)(2)) rather than by noticed motion (id., subd. (a)(1)) unless either (1) the party expects the effort to be opposed or (2) the party will be requesting an order shortening time for the hearing on the motion. If a noticed motion is ...

Excerpt: ...y for the relief sought. That reliance is misplaced. To the extent relevant, that section says that a motion to compel appearance and testimony may be brought if “a person designated by an organization that is a party under Section 2025.230” fails to appear at the deposition or to proceed with it. (§ 2025.450, subd. (a).) Here, the person designated by the city appears and testified. Therefore, the section has no application. The Court could...

Excerpt: ...subdivision (c), defines “aggrieved employee” to mean “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” Subdivision (i) says that, of the civil penalties recovered by aggrieved employees, 25 percent shall be distributed “to the aggrieved employees.” Allocation of the entire 25% share of the penalties to a single aggrieved employee, rather than to all the aggriev...

Excerpt: ...nce will be vacated. Any renewed motion shall comply with CMO#2, to be issued forthwith. Analysis: 1. The motion fails to comply with the Court's initial CMO in at least the following respects: a. No declaration from plaintiff's counsel re other class or representative actions. (CMO ¶E.1.d.) b. The proposed release (Settlement, p. 16, ¶31) exceeds the limitations on the scope of the released parties. (CMO ¶E.5.a.) c. There is no declaration fr...

Excerpt: ...��17‐18, the Court raised several questions concerning the settlement terms. The parties have not fully answered the Court's questions, in the following respects: 1. The first motion was premised in part on the assertion that a settlement in any amount greater than $65,000 “would be financially burdensome” to the defendant. The Court asked, “Where is the evidence supporting that assertion?” In the second motion, the parties do not answe...

Excerpt: ...not approve the dismissal of class claims as a condition of a settlement of the plaintiff's individual claims without knowing the consideration paid to the plaintiff as part of that settlement. The defendant concedes that a prior motion to file the settlement agreement under seal has been denied, yet in this motion files the agreement in a redacted form that does not disclose the amount of the consideration. As a result, the motion lacks the info...

Excerpt: ...g of the last motion on 5‐30‐18, there is nothing in the agreement that allocates $15,000 of the settlement to PAGA penalties. 2. There is nothing in the agreement that explains how the aggrieved employees' 25% share of the PAGA penalties will be allocated among the aggrieved employees, how their respective shares will be distributed to the aggrieved employees, or who will be responsible for that distribution. 3. As noted in the prior tentati...

Excerpt: ...dvises the defendant that the plaintiff will not amend, whichever is sooner. The case management conference is continued to August 16, 2018, at 8:30 AM in this department. Analysis: The complaint does not allege, and seems unlikely to be amended to allege, a cause of action for conversion because there is no specific, identifiable sum to which the plaintiff has a right to possess. The failure to pay money owed does not constitute conversion. Page...

Excerpt: ...'s estimates. Bradley's declaration repeatedly refers to the estimates of his “office.” Are these his estimates or those of someone else? In addition, the estimates are conclusory in that there is no explanation of how the estimator arrived at those estimates. 2. Section G.1.d of the CMO requires a statement of the range of recovery for the class members if the recovery by the class members will vary. 3. Section G.6.requires a basis for inclu...

Excerpt: .... a. Have the other two courts agreed to accept this Court's decision as to whether the settlement should be approved? b. Alternatively, are similar motions being filed in each case? If so, why is the court being asked to approve all three? 2. The motion appears to fail to comply with the Court's CMO in multiple respects. For instance: CMO ¶ E.3.c: It appears that the Perez and Hunt Cottrell declarations may include all claims from all three act...

Excerpt: ...of any persuasive evidence that the agency knew or should have known of the existence of this case before May 11, 2018, the agency's commitment that it will be prepared to participate in trial as scheduled subject to its counsel's availability, and the lack of evidence of any prejudice to the plaintiffs, intervention is appropriate. The Court is unavailable on July 27, 2018, the date currently set for the trial readiness conference. Counsel for t...

Excerpt: ...A, CC, and DD; and Exhibits 553 and 555. In all other respects, it is denied. Regardless of whether the parties submit on the tentative ruling, the parties shall appear in person or by Courtcall, as the respective parties prefer, to discuss the following issues (see order filed June 18, 2018):  Whether the defendants intend to move to strike portions of the AR that postdate the RONs at issue.  The estimated length and date of the abuse‐of...

Excerpt: ...AGA penalties should be Page 3 of 3 paid to the named plaintiffs, to the exclusion of any of the other 632 aggrieved employees. The statement in the case on which the plaintiff principally relies – that after the 75% of penalties are paid to the LWDA, “[t]he remaining twenty‐five percent of the penalties recovered are distributed to the aggrieved employees who initiated the claim under PAGA, not to the group of aggrieved employees on whose ...

Excerpt: ...e whether there is a fee‐splitting agreement. (CMO ¶ G.1.f.) 3. The release in the agreement does not comply with CMO ¶ G.6.a. Moreover, the language of the release in the notice differs from the language of the release in the agreement. 4. The exclusion form requires a class member's complete social security number, which appears to be unnecessary to identify the employee, and which is contrary to part 7 of the notice (only last four digits)...

Excerpt: ...6, 2018. The status conference to set a deadline for a motion for class certification is vacated as moot in light of the dismissal of the class claims. The Court shall conduct a TSC on September 26, 2018, at 8:30 A.M. in this department. Analysis: The Court does not rule on the City's evidentiary objections 1 through 17 because the evidence to which they relate is immaterial to the Court's analysis. That evidence relates to why the dismissal of t...

Excerpt: ...ch of the requirements prescribed by section H of the CMO#2, one line for each requirement in each paragraph or sub‐paragraph. The other column shall describe – by document name, page, and line numbers – where in the moving papers each of the corresponding requirements is satisfied. Analysis: The motion fails to comply with the Court's Case Management Order #2 in numerous respects. For instance: ¶ H.1.a. Plaintiff's counsel's declaration d...

Excerpt: ...visions of the Court's CMO: § H(6) The Release includes a Civ. Code § 1542 waiver on behalf of all Class Members. Such a waiver applies only to general releases. The named plaintiff may be giving a general release, but the class members are not. What is the intended scope of the release? § H(11) The Proposed Order does not include copies of the Notice, Exclusion Form and Objection Form. § H(12) Two issues: First, while the Notice and Settleme...

Excerpt: ...ns relate was not material to the Court's analysis. Defendant Paul Jun's motion for summary judgment is denied, and his alternative motion for summary adjudication is denied. Analysis: Labor Code § 558.1 provides in relevant part: (a) Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commissi...