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...