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...