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...