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

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...