Excerpt: ...rbitrate her individual claims and to stay prosecution of the class claims pending the result of that arbitration. On 12‐ 1‐11 and 2‐2‐12, the trial court granted the motion to arbitrate as to all claims except for the claims for injunctive relief under B&P Code sections 17200 (unfair competition) and 17500 (false advertising) and Civil Code section 1750 (consumer legal remedies), and stayed those three claims pending the result of the ar...

Excerpt: ...ns listed below. Page 5 of 6 Analysis: By an order filed December 18, 2017, the Court preliminarily approved the settlement in this case. That order provides that the “Final Approval Hearing” would be conducted on May 20, 2018, at which the court would decide whether to grant final approval, and would also decide whether to grant any request for attorney's fees and costs, and for enhancements. The court's case management order provides at ¶ ...

Excerpt: ...no more than one month's dues of $10.  Are all memberships terminable without penalty with one month's notice or less?  If so, was that true during the entire class period? 2. The Court had asked whether any evidence supported the plaintiff's assertion that: “Defendant does not possess sufficient assets to pay an award of statutory damages exceeding [$750,000]. Accordingly, there is a 100 percent probability that the defendant could not p...

Excerpt: ...correct, how does that affect the estimated value of the claims to be released by the plaintiff? 2. The order continuing this hearing to April 27 stated: “The declaration of counsel states that the defendant produced pay records for other relief sales representatives. How many did the defendant produce? What percentage is that of the total number of such representatives? Do any of those records indicate that there are any other such representat...

Excerpt: ...plain: a. Why Mr. & Mrs. Oliver are named as plaintiffs in both cases. They were amended into the Wilder complaint on 1‐5‐18 but then filed their own action 19 days later on 1‐24‐18. Page 3 of 4 b. Why the consolidated complaint has not been served on the defendant. c. The plaintiffs' reference to “likely up to thirty or more subcontractors” (mtn., p. 2, l. 7), given that the developer has answered without filing any cross‐complaint...

Excerpt: ...he action as to that defendant. That same ruling applies in Randall v. William Lyon Homes, Inc. RIC1709214 and Escott v. William Lyon Homes, Inc. RIC1515142. Analysis: The plaintiff represents that a global settlement has been reached in this case and in four other related cases. The defendant agrees. However, the defendant asks the Court to proceed with a ruling on the motion to compel arbitration because the parties had previously stipulated th...

Excerpt: ...37. However, the plaintiff has now submitted a “second corrected proposed” order, which re‐inserts language to the effect that the participating class members are bound by sections 5.01, 5.02, and 5.05 of the agreement. Unless the Agreement has been modified since the version attached to the declaration of Benowitz filed 3‐7‐18, section 5.02 requires the class members to covenant not to sue the defendants. (Pg. 22, ll. 3‐4.) As pointe...

Excerpt: ...Ruiz DeLeon v. Estate of Vides (BC660530); and other cases as yet not received from Los Angeles County Superior Court. Into that same master file, the State seeks to consolidate three additional cases:  Hernandez v. Guilford (RIC1714082);  Car v. Guilford (RIC1714086); and  Alvarez v. USA Holiday (PSC1801449). Page 3 of 3 The State has failed to comply with the rules governing motions for consolidation in at least two respects. First, th...

Excerpt: ... do not expect to be ready by that date, when would plaintiffs estimate that plaintiffs would be ready for trial? 4. Regarding the defendant's desire to move for a judgment on the pleadings based on the judgment in the Herpel case: a. Are the plaintiffs in this case in privity with the plaintiffs in Herpel, even though no class was every certified in Herpel? b. Do all of the plaintiffs in this action hold leasehold interests in the trust lands of...

Excerpt: ...otion to include a copy of the proposed complaint in intervention. (§ 387, subd. (c).) Although the moving (and opposing) papers are voluminous, it does not appear that they include a copy of the proposed complaint in intervention. ...

Excerpt: ..., memorandum of points and authorities, and exhibits filed on 1‐5‐18;  The defendant's opposition to the motion, and attached exhibits and transcripts, filed 1‐29‐18;  The declaration on behalf of defendant regarding the timeliness of that opposition, filed 1‐30‐18;  The plaintiff's reply, filed 2‐5‐18;  The declaration on behalf of plaintiff, filed 2‐9‐18;  The declaration of Sherise Histen filed 3‐ 12‐18. ...

Excerpt: ...ian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 386‐387.) The reasoning of the Court of Appeal is the same: “[A] defendant cannot rely on a predispute waiver by a private employee to compel arbitration in a PAGA case, which is brought on behalf of the state.” (Betancourt v. Prudential Overall Supply (4th Dist., div. 2, 2017) 9 Cal.App.5th 439, 445, emphasis added.) The MAP was not signed by the State and is therefore irrel...

Excerpt: ...r class member). He implies, but does not expressly state, that any settlement larger than $750,000 would not survive constitutional scrutiny. Page 2 of 3 a. Does the plaintiff contend that this is the largest award that could pass constitutional scrutiny? b. If so, why do you believe that this is the maximum? c. If not, what is the maximum, and why? 2. The plaintiff asserts: “Defendant does not possess sufficient assets to pay an award of stat...

Excerpt: ...tion as the City's PMQ on a mutually agreeable date no later than April 30, 2018. If the City chooses to produce only Mr. Smith, he shall come prepared with all information reasonably available to him on the topics in the deposition notice to which the defendant did not object. The City shall pay to plaintiffs monetary sanctions in the sum of $3,290. In addition, the City shall bear the cost of court reporter and videographer for the renewed PMQ ...

Excerpt: ...raneous time records, does not indicate whether such records were kept, and does not offer any explanation of why those records were not kept. Alternatively, it does not offer a detailed description of the date, nature, and time incurred to perform legal services. b. It does not comply with section H.3.b. 2. The declaration of Beaman does not comply with the CMO#2. a. It does not comply with section H.3.a. Although she admits to having such time ...

Excerpt: ...efendant. Analysis: The plaintiffs do not dispute the existence or enforceability of the arbitration provision. Instead, they ask the Court to exercise its discretion to “refuse to enforce the arbitration agreement” when “a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party,” that other action arises out of the same transaction or series of related transactions as does...

Excerpt: ...¶ 5.b. of counsel's declaration does not explain the number of weeks during which the plaintiff was allegedly deprived of breaks. ¶ 5.c. does not explain the number of months in which she used her car. ¶ 5.d. does not explain the calculation of the value of that claim at all. 2. The declaration of counsel does not address E.5.a.(ii). 3. The declaration of counsel states that the defendant produced pay records for other relief sales representat...

Excerpt: ...ty to meet and confer with the opposing party before filing a motion for judgment on the pleadings. Page 2 of 2 This Court's CMO entered on February 28, 2018 requires the moving party to “strictly comply” with CCP § 439. (CMO, § B, ¶ 6.a.) The CMO further requires that declaration by the moving party describe the meet and confer efforts, including the date of the meeting, whether it was in person or by telephone, the persons involved, and ...

Excerpt: ...continue the case management in this case, currently scheduled for 5‐9‐18, to 5‐10‐ 18, to coincide with the trial setting conference in the Garcia case. Any party wishing to oppose that order should appear on 3‐29‐18. Analysis: The demurrer is overruled because it does not dispose of the entire cause of action alleged. “No action shall be brought under this part for any violation of a posting, notice, agency reporting, or filing re...

Excerpt: ... irrelevant to the Court's analysis. The plaintiff alleges that the defendant violated Labor Code section 2802 by failing to reimburse travel expenses incurred for “pre‐employment drug testing and physical examination . . . .” Subdivision (a) of that section requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, o...

Excerpt: ...r. Thereafter, the demurring party must file a declaration demonstrating compliance with those provisions by describing “the means by which” the parties met and conferred. (§ 430.41, subd. (a)(3)(A).) The declaration of Wasser – which is identical for all three demurrers – does not describe the means by which she met and conferred with opposing counsel, or otherwise demonstrate compliance with the “in person or by telephone” requirem...

Excerpt: ...nc., dba Paragon Schmid Building Products. Analysis: The arbitration provision in the contract between K. Hovnanian and BSG provides that the only disputes that must be arbitrated are disputes that arise “out of this Master Subcontract . . . , including disputes involving claims made by homebuyers, . . . which involve[] a matter with economic value in excess of the jurisdictional limit of a small claims court….” (See Exh. S to decl. of Josh...

Excerpt: ... declaration was actually filed with the motion. The only evidence in support of the motion is the declaration of Field filed with the reply. The Court will not consider that evidence, because the opposing parties have not had a chance to respond to or rebut it. Because this denial is not on the merits of the motion, it is without prejudice to the filing of a second motion that is supported by evidence. Alternatively, if the Field declaration was...

Excerpt: ..., memorandum of points and authorities, and exhibits filed on 1‐5‐18;  The defendant's opposition to the motion, and attached exhibits and transcripts, filed 1‐29‐18;  The declaration on behalf of defendant regarding the timeliness of that opposition, filed 1‐30‐18;  The plaintiff's reply, filed 2‐5‐18;  The declaration on behalf of plaintiff, filed 2‐9‐18;  The declaration of Sherise Histen filed 3‐12‐18. �...

Excerpt: ...ary approval on May 21, 2018, at 8:30 A.M. in this department. If a second motion is filed at least three court days before that date, the Court is likely to vacate that status conference. Page 3 of 7 Analysis: New Evidence With Reply New evidence is generally not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537‐1538.) Plaintiff submits his declaration and deposition transcripts, as well as the supplemental declar...

Excerpt: ...urately described the terms of the judgment and escrow instructions proposed by or otherwise agreeable to the defendant. When the defendant failed to appear on March 6, 2018, the Court ordered an OSC to be issued as to why sanctions should not be imposed for the failure to appear. However, the clerk mistakenly failed to issue that order. Accordingly, that hearing is vacated. However, the defense shall be prepared to explain why no appearance was ...

Excerpt: ...ile a “Fourth Amended Complaint Following Motion to Strike,” that deletes the stricken provisions without changing any paragraph numbering or adding or deleting anything else. The defendants shall prepare a formal order consistent with this ruling. Analysis: All Class Action Allegations The Court is not persuaded that all of the class claims are insufficient as a matter of law to qualify for prosecution on behalf of a class. For instance, the...

Excerpt: ...plaintiffs do not dispute the existence or enforceability of the arbitration provision. Instead, they ask the Court to exercise its discretion to “refuse to enforce the arbitration agreement” when “a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party,” that other action arises out of the same transaction or series of related transactions as does the arbitration, and th...

Excerpt: ...laintiffs $15,000 in satisfaction of their individual claims, and an additional $5,304 to McAfee regarding an unemployment claims, but the complaint alleges no such individual claims. 3. The motion contends that the “financial viability” factored into the amount of the settlement, but no evidence of the financial condition of the defendant is offered. 4. The plaintiffs' counsel claims time billed at up to $700 per hour. Does plaintiffs' couns...

Excerpt: ...ects: 1. It violates ¶ H(6), because the release is not limited to claims based solely on the facts alleged in the first amended complaint. It purports to release “any and all claims for recordkeeping or pay stub violations,” not just those at termination, and “all claims for failure to get consent for a payroll debit card or self‐issued check payment,” not just those claims involving final wages. In addition, the release includes a wa...

Excerpt: ...473, subdivision (b) [6 months], subdivision (d) (2 years), or section 473.5 [2 years]. ...

Excerpt: ...oration. If true, how can that entity have a current address, as represented in the motion? And why should the Court believe that a dissolved corporation has an account manager, as claimed in the proof of service? The declaration and the proposed order both state that the case is stayed. That is true as to the prosecution of the case against Skypatrol, LLC, in light of the bankruptcy petition filed by Skypatrol in December of 2017. What is the ba...

Excerpt: ...e entered shortly. Analysis: On 1‐4‐18, the Court continued the hearing on the motion to allow the parties the opportunity to address a variety of questions and concerns posed by the Court in its tentative ruling. The supplemental documents submitted address some but not all of those concerns. To pick just some of the examples of concerns that are not resolved by the supplemental documents: 1. The Court informed the parties that it would not ...

Excerpt: ... plaintiffs and the defendant, the petition would have to be denied. (Iskanian v. CLS, 59 Cal.4th 348, 384‐390.) ...

Excerpt: ...rry declaration); 1,714 (Bello declaration at ¶ 4 (422 + 1,292); and 1,764 (Bello's declaration at ¶ ¶ 21 & 27). This inconsistency must be resolved. 2. The Bello declaration refers to a sample of the time records of the class members, but does not describe the size of the sample, i.e., the number or percentage of employees whose records were included in the sample. (¶ 22.) 3. The Bello declaration (at ¶ 25) justifies the claim requirement f...

Excerpt: ... provides for payment to the named plaintiff of a “service award. The Court will require citation of authority for such an award in a PAGA case. The motion shall explain why such an award is fair under the circumstances of this case. The motion shall be supported by a declaration from the named plaintiff in which the declarant: a. Describes the services performed by the declarant to further the prosecution of the action; b. Estimates the time i...

Excerpt: ...d associated forms in detail. However, it violates at least the following portions of section H: ¶ 1.b. & c. As to the first subclass, there is no explanation of how the potential “full value” damage amount per class member ($3,700) is calculated. The compliance as to the 2d and 3d subclasses is vague. ¶ 1.e. The description of discovery is vague. ¶ 2 There is no declaration from defense counsel. ¶ 3.b. The agreed‐upon distribution does...

Excerpt: ...ss and any subclasses as clearly as possible given the plaintiff's current understanding of the facts; and  Be confined to allegations of fact. The case management conference is continued from March 27, 2018, to April 26, 2018, at 8:30 A.M. However, any party desiring to preserve its right to a jury trial shall deposit jury fees no later than March 27, 2018. (Code Civ. Proc., § 631.) Analysis: The declaration of Milhaupt purports to be filed ...

Excerpt: ...ask the Court to issue a judgment for over 5 months after the ruling on American's motion for summary judgment. Second, the parties are vague as to how the eventual decision on appeal will affect the claims between Scottsdale and Truck. For instance, if the motion for summary judgment in favor of American is affirmed, will the plaintiff's action against Truck be dismissed? Or are there other claims that would nevertheless need to be litigated...

Excerpt: ...mited to the city or community of residence, as opposed to the full residence address. Except as expressly limited, the PMK shall appear for a deposition and otherwise comply with the deposition notice on a day to be agreed upon by counsel no sooner than 10 days and no later than 20 days from February 14, 2018. The real party's request for sanctions against the petitioner and its counsel, Blum Collins, is granted in the sum of $6,310. Analysis: R...

Excerpt: ...er of them are members or shareholders of the petitioner. Under those circumstances, the petitioner has no standing to seek a protective order on behalf of those individuals. As to all of the deposition notices, for the reasons stated above in the discussion of the motion to compel, the petitioner and moving party has failed to demonstrate that Page 8 of 8 the discovery would subject any of the deponents to “unwarranted annoyance, embarrassment...

Excerpt: ...odified. Plaintiff's counsel shall be prepared to describe the nature of the anticipated amendment. At the Case Management Conference:  Plaintiff's counsel shall be prepared to explain why no defaults have been requested as to the defendants served 11‐30‐17, 12‐3‐17 and 12‐6‐ 17 who have not appeared.  Counsel for all appearing parties shall be prepared to discuss whether this case should be designated “complex” pursuant to ...

Excerpt: ...rt's analysis. Page 2 of 6 Objection to Berger Declaration The declaration of the plaintiff's expert, Bennett Berger, fails to establish the foundation for his opinions. He states that he analyzed records provided by plaintiff's counsel that consisted of “42 PDF files which contained the time punch records for the years 2009, 2010, 2011, and 2012 as well as the payroll reports for the years 2015, 2016 and 2017.” But there is no evidence in hi...