Excerpt: ...e evidence on which the moving party is relying must be served with the moving papers, not with the reply. To the extent that the defendant seeks to strike the class claims on the ground that the plaintiff is not a suitable class representative as the class is defined, the motion is in substance a motion to deny class certification. No defendant may file a motion to deny class certification without leave of court. (CMO, § J.1.) The defendant nei...

Excerpt: ...der the CLRA and UCL, are not enforceable. (McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 956; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 307 (public injunctive relief claims under the UCL and false advertising law are not arbitrable); Broughton v. Cigna Healthplans of Calif. (1999) 21 Cal.4th 1066, 1081 (actions under CLRA is not arbitrable).) However, in AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333, the United State...

Excerpt: ...e Court is mistaken, the plaintiff shall file a supplemental declaration explaining how this motion complies with the CMO, and asking that the hearing on the motion be re‐calendared. Even if the motion were to be heard on the merits, it would appear to be without merit. The defendant objected to the interrogatories on the ground that the plaintiff never worked for the defendant and that therefore the discovery is not likely to lead to the disco...

Excerpt: ...pel arbitration of the plaintiff's individual PAGA claim is granted. The request to dismiss the plaintiff's non‐ individual claims for an alleged lack of standing is denied. However, the plaintiff's prosecution of those nonindividual claims is stayed pending the resolution of the arbitration. In the meantime, the trial setting conference is vacated and the matter is placed in inactive status. Analysis: Defendants' first RJN seeks judicial notic...

Excerpt: ... cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control." (Preston v. Goldman (1986) 42 Cal.3d 108, 119.) Here, Page 5 of 7 the plaintiffs do not attempt to allege possession, and there is no sufficient allegation of either ownership or control. The allegations that the Weldon defendants are owners is contrary to the grant deed that shows that the Weldon defendants conveyed the propert...

Excerpt: ...is case) when forced into litigation with a third party as a result of the tortious conduct by the defendant (cross‐defendant in this case). (Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504, 512.) This doctrine was established by Prentice v. North Amer. Title Guaranty Corp., Alameda Div. (1963) 59 Cal.2d 618, in which the court held “[a] person who through the tort of another has been required to act in the protection of his interests by bring...

Excerpt: ...ion. That declaration shall describe the information contained in the defendant's financial records that cause the plaintiff to believe that the defendant cannot afford a greater sum. The latter description shall be in sufficient detail to allow the Court to make an independent evaluation of the defendant's ability to fund a larger settlement. All revised, amended, or supplemental documents shall be filed and served no later than September 22, 20...

Excerpt: ...at it seeks to tax the costs claimed by the district in that memorandum. Analysis: Procedural Background This motion was initially heard on 6‐24‐22. Prior to that hearing, the Court tentatively ruled as follows: “The plaintiff's motion is denied to the extent that it seeks an order striking the district's cost memorandum. “The plaintiff's motion is granted in part to the extent that it seeks to tax costs. Specifically, the district's cost...

Excerpt: ... After the district demurred, the plaintiff filed a first amended petition and complaint on 5‐15‐19. The district again demurred (6‐17‐19). The demurrer was sustained in part. (9‐25‐19.) The district answered the FAP/C on 10‐10‐19. Shortly thereafter, the district petitioned the Court of Appeal for a writ of mandate, seeking a writ directing the trial court to sustain the demurrer to all of Roberts's claims. (11‐4‐19.) The Cou...

Excerpt: ...truction defects in their homes. That dispute was ordered to arbitration. After the initiation of the Bressler action, the Schneiders sold their house to the Browns and assigned their rights under their purchase and sale agreement (PSA) with Meritage to the Browns. Thereafter, Meritage filed a separate action against the Schneiders and the Browns by which Meritage seeks declarations: that the Schneiders' assignment to the Browns of their rights t...

Excerpt: ...s of the value of the individual claims that he is releasing (Decl. of Elliot, ¶ 7), the Court is not persuaded, for two reasons. First, the values stated are for the defendant's maximum exposure, not for the reasonable settlement value of those claims. Second, the plaintiff does not claim to have any personal knowledge of the value of those claims. Instead, he merely reiterates the estimated values that his attorneys reportedly described to him...

Excerpt: ...es 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.) The plaintiff does not deny that his sign...

Excerpt: ...ludes that the clerk did not err. Analysis: In their FAC, the plaintiffs alleged that the class has been wronged by the acts and omissions of the owners of the park. In particular, the plaintiffs sought relief for alleged wrongs that were committed, at their earliest, in 2017. The Court found that allegation failed because, as shown by the deed of which judicial notice was taken, the Weldon defendants transferred their interest in the park on Jul...

Excerpt: ...rt observed: “The plaintiff appears to rely on the defendant's financial condition as part of the reason for the amount of the settlement, but fails to comply with § F.4.” The plaintiff's only response appears to be to Page 4 of 5 delete paragraph 14 from the 7‐5‐22 declaration. Was the defendant's ability to pay a factor in the settlement negotiations or not? • Attorney's Fees: Pride claims to have incurred $62,000 in fees. None of th...

Excerpt: ... is denied. Analysis: The plaintiffs move for an order “approv[ing] the Arbitrator's ruling to substitute Emanuel and Anita Brown as real parties in interest for Scott and Noel Schneider as to the pending Arbitration proceeding . . . .” (Petition, pp. 1‐2.) The plaintiffs contend that the arbitrator made that ruling in his Scheduling Order #2. (Pet., pp. 6‐7.) The arbitrator did not do so. (Ex. 2 to 6‐14‐22 decl. of Turner.) Instead, ...

Excerpt: ...sed and refiled. Therefore, the following list of deficiencies is probably incomplete. The hearing on the motion is continued to 9‐14‐22 at 8:30 A.M. No later than 9‐6‐22, the plaintiff shall file amended, supplemental, or revised documents sufficient to fully comply with the CMO and all prior directives of the court. Those documents shall provide the court with specific references to the CMO provision at issue and a pinpoint cite to the ...

Excerpt: ...t to fully comply with the following: 1. The motion does not comply with § F.9.c. of the CMO. The language of the release as stated in the order at page 2 and in the SA at ¶ 21continues to exceed the limits prescribed by the CMO, i.e., that the claims to be released are limited to “only those claims described in the notice sent by the plaintiff to the LWDA, and only to the extent that they are alleged in the complaint.” The parties appear t...

Excerpt: ...ith the following directions. a. The release still does not comply with the CMO, given that it purports to release all claims “arising out of or related to” various topics. (Proposed order, ¶ 26.) The release must be limited to the claims alleged and those that could have been asserted based solely on the facts alleged. (CMO, § H.6.b.) The agreement shall be amended. b. The declaration of Singh does not comply with I.5.c. & d. If a suppleme...

Excerpt: ...roposed order will be signed. The petitioner may, but is not required to, respond. Any responsive brief shall be filed and served no later than 8‐26‐22, and shall not exceed 8 pages. Alternatively, if the petitioner expressly limits itself to the assertion that the funds raised by the SWP taxes are spent on or otherwise diverted to improper purposes, and expressly abandons all other arguments, including arguments challenging the necessity of ...

Excerpt: ...of e moving parties' counsel, Chad Morgan. That request is untimely, having been served less than 16 court days before the hearing. Moreover, it is not relevant to the motion, because it shows only that the State Bar has recommended to the Supreme Court that Morgan be suspended, and there is no evidence of what action, if any, the Supreme Court has taken in response to that recommendation. Code of Civil Procedure section 473 “The court may, upo...

Excerpt: ... of the putative class. On that same date, the Court issued its case management order. That CMO provides in relevant part: “The discovery stay under RSC Local Rule 3160(B) is vacated as to interrogatories concerning the identity of and contact information for members of the putative class. Any such interrogatories propounded by the plaintiff to the defendant shall be accompanied by (a) a proposed Belaire West notice, (b) the name of a proposed ...

Excerpt: ... 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.) When a preliminary inju...

Excerpt: ...e proposed cross‐complaint would be alleged against cross‐defendants who are not parties to the underlying judgment. Similarly, the Court has no doubt that the Agency is authorized by the judgment to bring an action to abate the unauthorized or excessive use of water within the basin against water producers who are not now parties to the judgment. That is what the Agency proposes to do by way of its second amended cross‐complaint. The quest...

Excerpt: ... the action without prejudice rather than with prejudice. 3. ¶ 2 of the order shall be revised to delete the reference to “claims of the Aggrieved Employees.” The aggrieved employees have no claims, only the state and the named plaintiff. 4. The order states that the amount of the administrator's fees is $4,000, but the administrator quotes a fee of not‐to‐exceed $3,600. The order (¶ 4.b.) shall be revised to match the quote. 5. The amo...

Excerpt: ...the motion into full compliance shall be filed no later than 8‐3‐2022. Deficiencies The deficiencies include the following: H.3.a.ii. The total amount of exposure is still unclear. In Wheeler's original declaration, he stated that the maximum exposure to PAGA penalties is $140,000. (P. 9.) Now he says that it is “approximately $125,000. (Supp. Decl. ¶ 4.) That inconsistency needs to be explained. H.3.a.iii.D. Does not state the number of w...

Excerpt: ...h CMO The motion does not fully comply with the CMO. In particular, the motion fails to comply to at least the following provisions. H.3.a.i.(B). The supplemental declaration of Barnes is inconsistent regarding the number of aggrieved employees employed during the applicable PAGA period. At ¶ 4 and on page 10, he says 1,100. In ¶ 16, he says 1,110. That inconsistency must be resolved. H.3.j.ii. The supplemental declaration of Barnes describes t...

Excerpt: ... Court finds that attorney's fees in the sum of $101,500.67 are not justified. First of all, those fees are measured by the escalator clause which raised the GSA to $304,505.94. The circumstances that triggered that clause are independent of any efforts of the attorney, and thus would constitute a windfall for counsel. Second, the lodestar is inflated by services that were, or should have been, unnecessary. For instance, it was unnecessary to fil...

Excerpt: ... in the reduced sum of $4,500. The hearing on the portion of the motion regarding administrator's fees will be continued to afford the administrator an additional chance to comply with the CMO. The motion for final approval cannot be granted in its present form because it does not comply with the court's CMO. In addition to the administrator's incomplete declaration, the CMO violations include: The administrator has not complied with section H.5 ...

Excerpt: ...t only on the following conditions: 1) the motion must be based on “new or different facts, circumstances or law” and 2) the motion must be supported by an affidavit or declaration disclosing “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances of law are claimed to be shown.” (CCP § 1008(b); Graham v. Hansen (1982) 128 Cal.App.3d 965, 969‐970.) If ...

Excerpt: ... Failure to comply with CMO: The motion fails to comply with the following provisions of the CMO: G.3.a.iv.: The plaintiff's counsel has failed to state the estimated range of potential recovery by the class members. The Court would expect counsel to be able to estimate the total hours worked by all employees (219,360), the hours worked by the class member with the shortest employment during the class period, and the number of hours worked by the...

Excerpt: ... and conditional use permit on 1‐25‐22, and the notice of exemption was filed 1‐31‐22. Therefore, to be timely, the petition challenging those decisions were required to be filed within 35 days of the notice of exemption, or by 3‐7‐22. (Pub. Res. Code § 21167, subd. (d).) Here, the petition was not filed until 3‐16‐22. Therefore, the petition is untimely. In resisting that conclusion, the petitioner argues that the limitations pe...

Excerpt: ... penalties were calculated or otherwise established. c. The following revisions to the proposed order submitted 5‐2‐22: i. Given that the settlement agreement has been amended, the citation in ¶ 1 is no longer correct. [Ex 13 to 2d suppl. decl. filed 6‐23‐22] ii. Attorney's fees shall be reduced to $855,000 in ¶ 7.a. iii. The $15,000 incentive payments shall be approved without change. (¶ 7.b.) iv. The NSA must be increased accordingly...

Excerpt: ...rections below. 1. Compliance with CMO The moving papers fail to comply with at least the following sections of the CMO: a. H.6.: The scope of the release in the proposed judgment (¶ 26) exceeds the limits in the CMO. b. I.2.: There are declarations from only 5 of the 6 plaintiffs. There is no declaration from Blanca Reina Gonzalez Ortiz. c. I.3.b.: Neither the Kramer declaration nor the Beaman declaration discusses the percentage of clients tha...

Excerpt: ...d. Failures to Comply: The motion fails to comply with the CMO in at least the following respects: • Section D.2.g.: The declaration of Mankin fails to describe how the agreed‐upon amount of penalties was calculated. Counsel notes that the amount was the result of a mediator's proposal. Did the mediator explain how he arrived at that sum? • Section D.6.a.: There is no declaration from the plaintiff, and the declaration of counsel on this is...

Excerpt: ...gement conference scheduled for 7‐6‐22 is vacated. Failures to comply with CMO: F.5.c. Other than Mallison (¶ 66), counsel fail to state whether they work exclusively on contingency. F.6. Fite does not provide the requisite information concerning the value of the individual claim being released. F.8.a. This issue is not addressed in the declaration of Diaz, Fite, Lauby, or Mallison. F.8.b. The order of dismissal does not contain the requisit...

Excerpt: ...time spent on litigation related activities, any expenses incurred, any risk or adverse consequences of filing the lawsuit and any other benefits received. The declaration from the plaintiff, filed 6‐28‐22, is not signed, and thus fails to provide any evidentiary basis for the award. Moreover, it fails to describe the services he performed or to estimate the time that the plaintiff incurred as a PAGA representative. Any reward that the plaint...

Excerpt: ...ion from which the total number of violations can be calculated, but appears to leave it to the Court to make that calculation. The Court did not ask for the factors from which the number could be calculated; it asked for the result of that calculation. Is there some reason that it is not being provided? 2. E.4.d. It does not appear that the plaintiffs have explained how the agreed‐upon penalties were calculated or otherwise established. Davis ...

Excerpt: ...a manner that cures these defects, the sustention will be without leave to amend. If leave to amend is granted, any SAC shall comply with California Rules of Court, rule 2.112(4). In addition, when alleging acts by one or more named defendants, the SAC shall identify each alleged actor by name rather than collectively as “defendants.” Analysis: The Court rejects the Weldon defendants' assertion that the complaint is barred by the applicable s...

Excerpt: ...s: The notice is inadequate because the motion was served on 6‐3‐22, only 16 court days before the hearing, and was not served by personal service. However, the defendant affirmatively states that it does not oppose the motion, inferentially waiving that defect. Violations of CMO The moving papers once again fail to comply with the Court's CMO in a variety of ways, including the following: H.1.a. & I.12: Paragraph 16 of the order is inconsist...

Excerpt: ...appear at the hearing on that motion. With that exception, the motion to tax is denied. The parties are ordered to meet and confer in an effort to agree as to the amount of the fees incurred in drafting that opposition and attending the hearing on that motion. If the parties can agree, they shall submit a stipulation memorializing that agreement no later than 7‐1‐22. If the parties cannot agree, the Court will accept further briefing on that ...

Excerpt: ...f the common fund. Initially, the Court will reduce the attorney's fees from 35% to 33.33%, or $245,809. As the result of the failure of plaintiff's counsel to comply with the CMO, the order granting preliminary approval of the settlement was delayed from 6‐30‐21 to 2‐23‐22, a period of nearly eight months. During that period, inflation was running at an annual rate of approximately 8%. Therefore, as the result of the delay, the value of ...

Excerpt: ...‐ 13‐2022. The status conference is vacated. Deficiencies The deficiencies include the following: H.3.a.ii. The total amount of exposure ($584,167) does not appear to be equal to the total of the individual claims. Explain that inconsistency. H.3.a.iii. No response to A, B, or C, and incomplete response to D. H.3.a.iv. No response re range of recoveries. H.3.a.vi. No response re Wheeler's knowledge or inquiry. No response re Wand's inquiry. H...

Excerpt: ...no later than 7‐11‐22, and shall fully comply with the CMO, including § G.10. Violations of CMO: The declaration of Lurtz at ¶ 18 estimates the number of class members (539) but fails to estimate of the number of aggrieved employees during the applicable PAGA period. (G.3.a.i.) The declaration of Lurtz states the average class distribution (¶ 19) but not the range. (G.3.a.iv.) The declaration of Lurtz does not estimate the average PAGA dis...

Excerpt: ...with at least four provisions of the CMO. The Court directed that a second, revised motion shall be filed that fully complies with the Court's CMO. The plaintiff filed a second motion on 5‐20‐22, but it too fails to comply with the CMO. In particular, it fails to comply in at least the following respects: • The plaintiff's counsel's declaration does not describe the range (high and low) of the possible distributions to class members. Nor do...

Excerpt: ...chard Guirbino, Stacey Page 4 of 6 Leimas, Manuel Llamas, Aaron Martinez, Jorge Martinez, Sergio Martinez, Joe Meza, Chad Orr, Lonnie Patino, Dejuan Reed, Alfred Rivas, Gustavo Sanchez Ruiz, William Seremak, Peter Short, Manuel Soto, Lataurian Swanigan, Michael Travis, Mario Valdez, Juan Vargas, and Locanno Wair; and also as to plaintiffs Gabriel Cota, Joshua Gomez, Andres Lopez Gonzalez, Daniel Mares, Edgar Montesinos, and Jorge Sanchez. All cla...

Excerpt: ...on of arbitration, further proceedings in this case are stayed. The request for sanctions is denied. The defendant's request for a statement of decision is acknowledged. Analysis: The documents of which the defendant initially requested judicial notice are irrelevant, both factually (since they involve different contracts) and legally (because they are trial court decisions that are not authority on which this court must or may rely). The documen...

Excerpt: ...a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy,” the court must order the controversy to arbitration unless certain exceptions apply. If the exception in subdivision (c) applies, then the court may stay the arbitration until the pending court action is resolved. That reliance is misplaced, for two reasons. First, the arbitration of the claims alleged between the plaintiff a...

Excerpt: ...ght to be sealed is (a) the amount to be paid to the plaintiff by the moving defendants and (b) information from which that amount could be calculated. In all, the moving defendants seek to seal 25 separate portions of the petition. The Court does not find that the defendants' desire to enforce the confidentiality provision of the settlement agreement constitutes an “overriding interests overriding interest that overcomes the right of public ac...

Excerpt: ... Analysis: Thornton was obligated to comply with section 9.E and 9.H. of the CMO issued by the Court on 6‐20‐2014. Thornton concedes that it did not comply with the CMO after it appeared in December of 2015. (Oppo., p. 3.) It nevertheless claims that the motion should be denied. The Court disagrees. First, Thornton claims that the CMO has “expired” and “is no longer in place.” (Oppo., p. 2 & 4.) That unsupported assertion is false. No...

Excerpt: ... forth in Martinez v. Combs (2010) 49 Cal.4th 35 (Martinez). Because Mehtar and Naji could potentially be liable even without being an “employer” under Labor Code sections 558 and 1197.1, plaintiffs' PAGA notice cannot be invalid for failing to identify Mehtar or Naji as the “employer.” Because the facts alleged in the opening statement indicate that Mehtar and Naji might both qualify as an “employer” under the Martinez test, plaintif...

Excerpt: ...o should be stricken in its entirety. Therefore, that request is denied. It appears that the plaintiff's motion to tax is directed exclusively to the costs claimed for the preparation of the AR. The recovery of that cost is not expressly authorized by statute. (Code Civ. Proc., § 1033.5, subd. (a). Nor is it expressly disallowed. (Id., subd. (b).) However, costs not mentioned may be recoverable in the court's discretion if they were reasonably n...

Excerpt: ...��Opposition/Response” of Mitsubishi Cement Corporation, the Court tentatively rules as follows: Centro: The Watermaster proposed that the FPA be reduced from 65% of BAP to 60%. The Court approves that proposal. The Court orders that the FPA for all producers in Centro is reduced to 60% of BAP for Water Year 2022‐2023. Este: The Watermaster proposed that the FPA be reduced from 65% of BAP to 60%. However, the Watermaster also asked the Court ...

Excerpt: ...epared to address that issue. Administrator Fees The Court's tentative ruling of 5‐12‐22 stated: The “invoice” from the administrator is not credible, for at least two reasons. First, although the administrator's declaration states that there were 396 class members, the invoice says that only 392 notice packets were mailed. There is no explanation offered for that inconsistency. More significantly, the amount of most of the separate charg...

Excerpt: ...es employees assigned to work at the defendant's business? If not, then it would appear that the definition is broader than intended. The provisions of ¶ 10 are inconsistent with CMO, § H.14. ¶ 15 should either be changed to impose that obligation or else be deleted. As it is, it does not resolve the issue one way or the other. Proposed Notice: Same issue as in the order concerning the class definition. The notice includes terms that the class...

Excerpt: ...o 6‐22‐22 at 8:30 A.M. in this department. Not later than 6‐15‐22, the plaintiffs shall file amended or supplemental documents that resolve each of the following eight deficiencies: 1. The declaration of Setareh fails to state whether any of the firm's clients pay the hourly rates claimed, as required by CMO, § I.3.b., and fails to indicate whether there is any fee‐splitting agreement, as required by § I.3.c. 2. The declaration of Set...

Excerpt: ...those deficiencies persist in the supplemental documents. • E.3.e. There is no evidence or discussion concerning the issue of whether the violations were knowing and intentional. • E.3.f. There is not evidence or discussion concerning the issue of whether the imposition of the full amount of penalties would be unjust, arbitrary or confiscatory. • E.3.g. There is no explanation of how the amount of the agreed‐upon penalties was calculated....

Excerpt: ...accept expert‐witness declarations from which the Court could determine the difference, if any, between the Class 2 rates and what a constitutional rate would have been. That request is denied. That evidence is irrelevant to the determination of the proper remedy. The Court's role in the first phase of these proceedings was simply to determine whether the district had proven that its existing rate was constitutional. It was not to determine wha...

Excerpt: ...isted below. Because of the number of defects, the Court has suspended its review of the moving papers. For that reason, the following list may not be complete. The plaintiff shall review the CMO and provide whatever supplemental or amended documents that are necessary to bring the motion into conformity with all applicable provisions of the CMO. 1. The plaintiff has failed to describe the range of estimated recoveries by individual class members...

Excerpt: ... the statutory minimum. 2. The motion fails to comply with the case management order filed 2‐11‐19 in at least the following respects: a. ¶ I.3.b. & d. through i.: The plaintiff's declaration does not address d. through i. at all, and addresses b. only by saying “several hours.” (¶ 13.) Moreover, the declaration is ambiguous, in that he seeks an enhancement of “six thousand dollars ($2,500).” (¶ 13.) b. ¶ I.3.c.: Counsel's declara...

Excerpt: ...ish that a proposed class is ascertainable, the class definition must be precise, objective and presently ascertainable. (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal. App. 4th 836, 858.) Here, the class is defined as: “All persons who are employed or have been employed by Defendants as non‐exempt telephone‐based employees, in the State of California who, during any time from four years prior to the filing of this class a...

Excerpt: ...��22‐ 22. Any amended declarations shall be accompanied by a red‐lined version to highlight the changes or additions. Similarly, any amended settlement agreement shall be accompanied by a red‐lined version. Analysis: This motion was served via electronic transmission on 5/2/22. Under C.C.P. § 1010.6(a)(4)(b), the notice period “shall be extended after service by electronic means by two court days.” Due to this, 18 court days of notice ...

Excerpt: ...ng the defendants' motion for determination of good faith settlement, filed 11‐8‐21, were conditionally sealed, that conditional seal should have ended when the motion to seal that information was denied on 12‐16‐21. The full text of the documents shall be imaged as part of this case file. Analysis: The information sought to be sealed is (a) the amount to be paid to the plaintiff by the moving defendants and (b) information from which tha...

Excerpt: ...cies listed below. Status conference: The status conference is vacated. Analysis: The motion fails to comply with the CMO in the following respects: 1. Plaintiff shall file an amended declaration: which includes the headings required by CMO § D.1; in which he states whether he is being compensated for individual claims as required by § D.4.; and which answers the questions posed in § D.6.a. 2. Plaintiff's counsel shall file an amended declarat...

Excerpt: .... Co. (2020) 53 Cal.App.5th 476, 483, is misplaced, because those cases deal with the res judicata effect of judgment, not with whether the aggrieved employees may be deemed to have signed releases. Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.4th 56, pages 68‐69, to which they also cite, do not assist them, because those pages merely recite the parties' arguments in the trial court and the trial court's ruling on those arguments. The Moniz cour...

Excerpt: ...ce is continued to July 13, 2022, at 8:30 A.M. Analysis: The motion fails to comply with numerous sections of the Case Management Order #2. The moving papers having thus demonstrated that the plaintiff has not exercised reasonable care in attempting to comply with the CMO, the Court has suspended its review of the moving papers until the motion is revised and refiled. Therefore, the following list of deficiencies is probably incomplete. • The P...

Excerpt: ...ng form: Both Pongs and Simpson allege invasion of the same primary right, i.e., the right to be free from the overcharging of water service by the City. The alleged injury in both actions is that the plaintiffs overpaid for water service. A violation of a single primary right gives rise to but a single cause of action. (Crowley v. Katleman (1994) 8 Cal.4th 666, 681‐682.) Full recovery for each cause of action (i.e., to enforce the same “prim...

Excerpt: ...re the following identified defects: the improper release (¶ G(3)(e)); the failure to submit a proposed order (¶ G(4)); an improper notice (¶ G(5)(a)‐ (c)); the failure to submit a proposed objection form (¶ G(7)); and the failure to submit a proposed exclusion form (¶ G(8)). The supplemental documents do not cure all the defects identified by Judge Sykes. In particular, the scope of the release (described in ¶ 7 of the Notice) persists i...

Excerpt: ... necessary to fully comply with the CMO shall be submitted no later than June 1, 2022. Analysis: The plaintiff's motion for preliminary approval was initially heard on 4‐12‐22. At that time, Judge Sykes found that it did not comply with the CMO, continued the hearing to 5‐3‐22, and ordered the plaintiff to comply with specified portions of the CMO: ¶¶ H(4)(a) & (c), H(5)(c), H(7)(a), and H(8)(a). No amended or supplemental documents wer...

Excerpt: ...t two reasons. First, although the administrator's declaration states that there were 396 class members, the invoice says that only 392 notice packets were mailed. There is no explanation offered for that inconsistency. More significantly, the amount of most of the separate charges in the invoice are exactly the same as was estimated for the same line items in the estimate attached to the administrator's declaration filed on 10‐19‐21. Indeed,...

Excerpt: ...) 192 Cal.App.4th 1149, 1158.) 2d and 4th Causes of Action (Product Liability) The allegations of causation are speculative or otherwise inadequate. 6th Cause of Action (Trespass) “The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defend...

Excerpt: ...160 638 4172 Please MUTE your phone until your case is called and it is your turn to speak. It is important to note that you must call fifteen (15) minutes prior to the scheduled hearing time to check in or there may be a delay in your case being heard. For additional information and instructions on telephonic appearances, visit the court's website at https://www.riverside.courts.ca.gov/PublicNotices/remote‐appearances.php Tentative Ruling: The...

Excerpt: ...se is called and it is your turn to speak. It is important to note that you must call fifteen (15) minutes prior to the scheduled hearing time to check in or there may be a delay in your case being heard. For additional information and instructions on telephonic appearances, visit the court's website at https://www.riverside.courts.ca.gov/PublicNotices/remote‐appearances.php Tentative Ruling: Page 3 of 6 The Court regrets that it does not have ...

Excerpt: ...e‐year delay was unreasonable and prejudicial. The Court is not persuaded. Nothing in the evidence on which the defendant relies identifies the defendant as the plaintiff's employer. Essentially, the defendant argues that the plaintiff should have known that it was the plaintiff's employer. However, the applicable test is actual knowledge, not constructive knowledge. Besides, any delay in the amendment and service is prejudicial only if the def...

Excerpt: ...y now argues that, as to a charter city, Riverside “cannot be liable on implied contract claims for utility service unless their charter expressly provide such power.” (Demurrer, 20:14‐16.) In support of its argument, the City cites Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425 (Green Valley), in which the court held that, where a city's charter, which did not include provisions on how the city may form contrac...

Excerpt: ...rmining whether a settlement is in good faith is “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability . . . .” (Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499.) Neither the defendants' motion nor Feldman's declaration addresses that subject. They merely state that the defendants have agreed to pay over twice the cost of connecting to the city's sewer line. Obviously, ther...

Excerpt: ... any work on the tree, the evidence may show that the defendant is liable for that omission. For instance, since the tree trimming and maintenance services to be provided to the city by WCA included an “arborist survey,” evidence may develop that such a survey includes an evaluation of the condition of the trees surveyed, that the WCA conducted the survey, that its survey included the subject tree, but that it failed to observe or document th...

Excerpt: ...nfer in an attempt to agree upon two trial dates. Those dates shall be on Fridays and no more than six months from the TSC. Analysis: “Any district superintendent of schools . . . . may be elected for a term of no more than four years. . . . In the event the governing board of a school district determines the superintendent of schools of the district . . . is not to be reelected or reemployed as such upon the expiration of his or her term, he o...

Excerpt: ...intentional misrepresentation. However, just as with the prior pleading, it is unclear whether Gardner is relying upon affirmative misrepresentation or lack of disclosure. For instance, he alleges that upon the representations made in the governing documents. (¶¶ 158, 161, 165, 182.) However, he does not specify what those representations were or Page 4 of 5 whether they were known by the x‐defendant to be false. Therefore, to the extent that...

Excerpt: ... is rare and exists when Congress intended to displace a statebased cause of action and provided a substitute cause of action. (Winn v. California Post Acute, LLC (C.D. Cal. 2021) 532 F. Supp.3d 892, 898.) The PREP Act only applies to an inaction claim where “(1) there are limited covered countermeasures; and (2) there was a failure to administer a covered countermeasure to one individual because it was administered to another individual.” (I...

Excerpt: ... the motion decided by Judge Riemer. Because Judge Riemer had not had the benefit of the arguments presented at the hearing on the motion, the motion was set for a second hearing, to be heard on March 4. In the Court's tentative ruling for the initial hearing, Judge Daum had indicated that if the fees incurred by plaintiff for pursuing his claims against Sullivan are included in the total amount of fees sought in plaintiff's motion, then the hear...

Excerpt: ...vil Code section 1788.58(a) (3) to (8) and the contract or other document required by subdivision (b). (Civil Code section 1788.60.)” The Court ordered: “Any further application for a default judgment shall be accompanied by a declaration of counsel, describing in detail how that application differs from the most recently denied application.” The plaintiff subsequently applied for a default judgment a second time. It was not accompanied by ...

Excerpt: ...on should commit that wrongful act and intended that Iverson wrongfully obtain the funds. (CACI No. 3600.) The plaintiff has failed to do so. Indeed, in her opposition, the plaintiff never bothers to identify the elements of conspiracy to convert or to explain how those elements are satisfied by the allegations of the complaint. Negligence To maintain a cause of action for negligence, the plaintiff must show: (1) a legal duty to use due care; (2)...

Excerpt: ...ty prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” Civil Code §1717(b)(1) defines prevailing party—one who recovered a greater relief on the contract, or the court may determine there is no prevailing party. If the action has been voluntarily dismissed or dismissed pursuant to a settlement, there is no prevailing party. (...

Excerpt: ...essary for the furtherance of justice. (William H. Raley Co. v. Sup. Ct. (1983) 149 Cal.App.3d 1042, 1048.)4 However, in exercising 4 “A trial court's authority to disqualify an attorney derives from the power inherent in every court to control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.” (People e...

Excerpt: ... the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642. “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but ...

Excerpt: ...ny matter of which the court is required to or may take judicial notice.” (Code Civ. Proc., § 430.30, subd. (a).) “As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) 2. Res judicata “The doctrine of res judicata rests upon the ground that the party to be affected...

Excerpt: ...meet and confer process, Defendant shall identify the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. Plaintiff shall provide legal support for their position that the pleading is legally sufficient or, in the alternative, how the complaint may be amended to cure any legal insufficiency. After meeting and conferring, 10 days before the continued hearing date set abo...

Excerpt: ...glect.” (Code Civ. Proc., §473(b).) “Section 473, subdivision (b) provides for two distinct types of relief. (Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 615‐616.) Under the discretionary relief provision, “on a showing of ‘mistake, inadvertence, surprise, or excusable neglect,' the court has discretion to allow relief from a ‘judgment, dismissal, order, or other proceeding taken against' a party or his or her...

Excerpt: ...of plaintiff's cause of action. In making the motion, the defendant moving for summary judgment/adjudication has the burden of persuasion that “one or more elements” of the “cause of action cannot be established” or that there is a “complete defense.” and the burden of production to make a prima facie showing of no triable issues of material fact. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the defendant h...

Excerpt: ...e expressly alleged, and material facts of which judicial notice has been taken. Crowley v. Katleman (1994) 8 Cal.4th 666, 672. However, it does not assume the truth of contentions, deductions, or conclusions of law alleged within the complaint. Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713. First Cause of Action for Intentional Misrepresentation: The necessary elements of a fraud cause of action based on intentional misrepresentation are: (1)...

Excerpt: ...nt with CMO, Section I 3(b)(ii), 8(b), and 11: • CMO, §I(3) – Any request for compensation for attorney's fees in a case that does not result in the creation of a common fund shall be supported by a lodestar analysis and supported by a lodestar analysis declaration that: o (b) Description of:  (ii) the attorney's experience and expertise that justify such a rate; whether the attorney has clients that pay that rate and the percentage of th...

Excerpt: ...actual knowledge of the action. Such knowledge does not dispense with the statutory requirements for service of summons. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466.) A. Timeliness Plaintiff contends the motion is untimely. The motion to quash must be made at defendant's initial appearance in the action, on or before the last day to plead “or within any further time that the court may for good cause allow.” (CCP § 418.10(a); Marriag...

Excerpt: ...tain needed evidence. C.C.P. §437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826. When a defendant has met his burden, it then shifts to plaintiff to show that a triable issue of fact exists. Betancourt's complaint contains one PAGA claim. It is based on Prudential's alleged failure to: pay overtime wages, provide uninterrupted meal and rest breaks, pay aggrieved employees all wages owed to them upon discharge or resignation, pr...

Excerpt: ...to any pleading. CCP §473 and §576, and case law establish a “policy of great liberality in Page 3 of 7 permitting amendments at any stage of the proceeding.” (Rocky Mountain Export Co. v. Colquitt (1960) 179 Cal.App.2d 204, 207.) This policy is so strong that denial of a motion for leave to amend is rarely justified. (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) The court has discretion to allow any kind of amendment, including enti...

Excerpt: ...ion nor diligence in seeking to set aside the default upon discovery of the default. I.Moving Defendant cannot establish that he is entitled to relief under Code of Civil Procedure section 473.5. Where service of summons has not resulted in actual notice to a party in time to defend the action, the party may file a motion to set aside a default or default judgment. (Code Civ. Proc., §473.5(a).) “Actual notice” for purposes of section 473.5 m...

Excerpt: ...e benefit of the arguments presented at the hearing on the motion, the motion was set for a second hearing. In the Court's tentative ruling for the initial hearing on February 8, the Court had indicated that if the fees incurred by plaintiff for pursuing his claims against Sullivan are included in the total amount of fees sought in plaintiff's motion, then the hearing would be continued and the parties would be directed to submit further briefing...

Excerpt: ...ation of Cook or the Compendium of Further Exhibits filed by the plaintiff on 2‐9‐22. Accordingly, the Court does not consider the defendant's objections to the supplemental declaration of Cook. The plaintiff's motion for attorney's fees is granted in the reduced sum of $92,979.50. The motion for prejudgment interest is granted in the sum of $4,654.38. The proposed judgment shall be signed with the following modifications: In paragraphs 4, 5,...

Excerpt: ...ese motions to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it early. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The burden is comparable to that of a party seeking a new trial on the ground of newly discovered evidence, i.e. the information must be such that the moving party could not with reasonable diligence have discovered or produced it...

Excerpt: ... v. Santa Maria Public Airport Dist. (1995) 39 Cal. App. 4th 1017, 1028.) The requirement of “new” or “different” facts or law is jurisdictional. (C.C.P. §1008(e); Baldwin v. Home Savings of America (1998) 59 Cal.App.4th 1192.) Furthermore, the motion must be brought within 10 days of the service of the notice of entry of the order. (C.C.P. §1008(a).) “To merit reconsideration, a party must give a satisfactory reason why it was unable...

Excerpt: ... Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. Tri‐City Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) The complaint must be construed liberally… with a view to substantial justice between the parties.” (CCP § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the complaint fails to state a cause of action, the court...