Excerpt: ...ssal as expressly stated in the statute. (Huh v. Wang (2007) 158 Cal. App. 4th 1406, 1415; English v. IKON Business Solutions (2001) 94 Cal. App. 4th 130, 143.) Because the present motion does not involve a default, default judgment or dismissal, the mandatory relief provision does not apply. Therefore, the plaintiffs must establish that Libertino's stipulation was entered into by mistake, and that her mistake was excusable. Libertino's assertion...

Excerpt: ... applies where (1) the plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member; (2) the action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons; and (3) private enforcement is necessary and places ...

Excerpt: ...s. It further concedes that the Purchase and Sale Agreements for those 11 homes require binding arbitration. Instead of denying the existence of those agreements, it argues that the owners of those 11 homes waived arbitration by filing this action. That argument, which is supported by no argument or citation to authority whatsoever, fails. The complaint filed by the plaintiffs specifically sought a declaration that the agreement between the plain...

Excerpt: ...(2018) 4 Cal.5th 241 and (2) describe their progress in serving the defendants named 5‐9‐18. At the TSC, all parties shall be prepared to discuss their compliance with the CMO timeline filed 8‐10‐17. Analysis: The plaintiffs seek to have a referee appointed to decide “all claims related to all causes of action in this litigation, including, but not limited to, all matters related to discovery, law and motion, pre‐trial hearings, and t...

Excerpt: ...representative action. Accordingly, the motion describes the PAGA claims brought on behalf of other aggrieved employees. (Pg. 3, ll. 17‐26.) Nevertheless, the motion states in the very next paragraph, at page 4, line 1: “There are no representative claims in this action.” The same language is repeated in ¶ 4 of the Portner declaration. This contradiction must be resolved. 2. There is nothing in the agreement that allocates $15,000 of the s...

Excerpt: ... in the notice. (366‐386 Geary St., L.P. v. Superior Court (1990) 219 Cal. App. 3d 1186, 1199.) This Motion was initially brought under Fed. Rule Civ. Pro. §60(b), which provides for relief from a final judgment, order or proceeding on motion and just terms. However, Defendant has provided no authority that allows a party to move for relief from a state court judgment under the rule governing challenges to federal court judgments. After Plaint...

Excerpt: ...nt by the defendant would be less than $750,000? 3. The declaration of Bello states at ¶ 30 that he “generally” obtains estimates from several potential administrators, but does not say whether he did so in this instance. Nor does it describe the results of those competitive bids. 4. ¶ 42 of the settlement concerns objections, but the last sentence refers to requests for exclusion. 5. The first sentence of ¶ 44 of the settlement is incompl...

Excerpt: ... Since that estimate was given in June of 2016, the terms of the settlement have changed to eliminate the requirement of any claims being submitted. That eliminates the need for “reminder postcard,” “postage reminder postcard,” “claims processing,” and possibly other expenses, and may reduce other categories of services. In addition, the size of the class has risen from 833 to 946. The Court will require an updated quotation based on ...

Excerpt: ... 1,981. No explanation is offered for that drop of 24%. 2. The administrator's fee is limited to a maximum of $24,500, which was the estimated cost when the class was expected to number 2,600. Although the class was actually only 1,981, the administrator estimates its total costs as being $24,562.27. How is it that a 24% decrease in the size of the class results in an increase in the administrator's costs? 3. The declaration of Crawford is unclea...

Excerpt: ...es customarily charged by each attorney for that attorney's time during the period in which those services were performed, and (ii) the attorney's experience and expertise that justify such a rate. The declaration shall state whether the attorney has clients that pay that rate, and if so, the percentage of the attorney's clients that do so. If the attorney works exclusively on a contingency basis, the declaration shall explain the basis for the h...

Excerpt: ...aintiff has filed a First Amended Complaint.” The Court granted leave to amend (4‐12‐ 18), but no such pleading has been filed. 2. The agreement provides for the entry of judgment that would purport to bind all aggrieved employees. The parties rely on the Supreme Court's statement that “the judgment in [a PAGA action brought by an aggrieved employee] is binding not only on the named employee plaintiff but also on government agencies and a...

Excerpt: ...spects: ¶ E.3.b. Where is the evidence of the estimate of the total number of alleged individual violations? ¶ E.4.c. Where is the evidence of the estimate of the penalties for which the defendant would be likely to be found liable at trial? ¶ E.4.e. Where is the evidence of how the amount of the agreed‐upon penalties was calculated? Page 2 of 5 ¶ E.6.a. Baker appears to say that the maximum value of the plaintiff's wage and hour claims is ...

Excerpt: ...o the defendant rather than being distributed to the class? (Order, ¶ 6.) 2. The release described in the settlement agreement purports to release all claims arising out of the sale of the property, and thus is considerably broader than the claims described in the complaint, and is broader than the release described in the notice. Why does the proposed release not conform to CMO#2, § H.6.b? 3. Why is the partial SSN sought on the exclusion form...

Excerpt: ...a “cross‐complaint”) is overruled. Granite shall serve and file its answer the complaint in intervention no later than May 29, 2018. Analysis: The demurrer will not be sustained, because there is no evidence that Granite complied with Code of Civil Procedure section 430.41, subdivision (a), which expressly requires the demurring party to meet and confer “in person or by telephone . . . .” On the merits, the challenge to the first cause ...

Excerpt: ...n is required to be added to the 16 court days required under Code of Civil Procedure section 1005, subdivision (b), when service is done electronically. The joinder was electronically served on 4/23/18. This only provided 16 court days of notice, plus 1 court day for electronic service. Therefore, the notice was shorter than required. However, the plaintiff opposed the motion on the merits without objecting to the insufficient notice. Therefore,...

Excerpt: ...hen the hearing may be continued to afford the defendants statutory notice. If the defendants do not oppose the motion, then the issue of the length of service is moot, and the court may either deny the motion or continue the hearing to allow the plaintiffs sufficient time to address the following: 1. The notice of motion states that the motion is made pursuant to “this Court's July 6, 2015 Class Action Case Management Order.” But that order ...

Excerpt: ...4‐30‐18. The Right to Repair Act describes the exclusive remedy for deficiencies in residential construction, “except as specifically set forth” in the Act. (Civ. Code, § 896.) The exceptions are described in Civil Code section 943, which provides that “[e]xcept as provided in this title, no other cause of action for a claim covered by this title or for damages recoverable under Section 944 is allowed. In addition to the rights under t...

Excerpt: ...nature and expected duration of the plaintiff's disability, and shall be filed no later than May 29, 2018. Analysis: When the Court sustained the prior demurrer in part with leave to amend, the Court did not expressly limit the scope of the amendment. Moreover, the court's CMO requires the parties to meet and confer about proposed amendments and directs that consent to amendment shall not be unreasonably withheld. The defendant has not explained ...

Excerpt: ...ncloud (1997) 56 Cal.App.4th 91, 96‐97.) Page 2 of 2 Second, any demurrer must dispose of the entire cause of action, not merely some of the claims alleged in that cause of action. The defendant ignores that rule. For instance, in the first cause of action, Plaintiff has pled violations of Labor Code §201‐ 202, 226.2, 227, 510 and 1194. (FAC ¶16‐17.) Defendant has attacked sections 201, 202 and 227, but does not address why sections 226.2...

Excerpt: ... the contract at issue and fails to plead verbatim the terms alleged to have been breached. As pointed out by Cross‐Complainants, however, the written contract does not necessarily need to be attached to the complaint, and its terms may be pleaded generally “according to its legal intendment and effect.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198‐199.) CrossComplainants properly allege tha...

Excerpt: ...tising) and Civil Code section 1750 (consumer legal remedies). The defendant contends that those claims for injunctive relief are preempted by federal law, and in any event are barred by a consent decree issued by the Office of the Comptroller of the Currency, and are therefore “irrelevant, false, or improper” allegations subject to a motion to strike. As described above, the prosecution of those statutory claims for injunctive relief has bee...

Excerpt: ... Action . . . .” Relying on that language, the plaintiff contends that she is not a member of that class because she filed the instant action in February of 2017, and thus she had a pending civil complaint at the time that the final judgment was entered in Watson on June 7, 2017. The Court is not persuaded. The exact same language is recited in the order granting preliminary approval. That order conditionally certified the class as thus defined...

Excerpt: ... the plaintiff leave to file a First Amended Complaint that would delete two “background check” claims (under the Investigative Consumer Reporting Agencies Act [Civ. Code, § 1786, et seq.] and the Consumer Credit Reporting Agencies Act [Civ. Code, § 1785, et seq.]) and to add a claim for penalties under PAGA. The Court denied that request on 1‐24‐18, because (1) no proposed amended complaint had been submitted, and (2) no court approval...

Excerpt: ... of DSS for leave to intervene. If the motion of DSS is granted, any renewed motion by Ikezawa shall explain why it is still necessary to grant her leave to intervene as well. Analysis: Ikezawa's interests in the defendant and in the defendant's property may be sufficient to justify intervention into this action. Even assuming that intervention is appropriate in the abstract, however, the Court is not persuaded that leave should be granted to her...

Excerpt: ...party or a complaint by a new party. It is not merely a request to participate in another lawsuit in some undefined way. Because this motion is not denied on the merits, the denial is without prejudice. ...