Excerpt: ...defendant. Nevertheless, the motion addresses only the first cause of action. Because the motion does not attempt to show that there is no triable issue of material fact as to the second cause of action, the motion for summary judgment fails. The motion for summary adjudication relies on the declaration of an expert, Dr. Ricci, who in turn relies upon medical records describing what Dr. Farag did and did not do. In light of Ricci's reliance on Fa...

Excerpt: ... the county, the owner appeared ex parte and obtained a temporary restraining order, preventing the enforcement of the warrant, and an OSC. The order to show cause asks why a preliminary injunction should not be issued. A preliminary injunction seeks to preserve the status quo until a trial is conducted on the Page 4 of 4 merits of the competing claims. But the County's present action is very limited in scope, and seeks nothing but the issuance o...

Excerpt: ...e Partnership has available to it adequate cash to make such payment . . . .” It is not limited to currency, but rather includes liquid assets, i.e., assets that could be readily converted to cash. • “Defendant” is defined to mean University Campus Hotel, LLC. • “The date of the response to this demand” is replaced with “May 1, 2020. With those modifications, the plaintiff's motion to compel defendant University Campus Hotel, LLC,...

Excerpt: ...eges that the defendant owed her a fiduciary duty as the trustee of the Lawrence and Doris Kleinfelter Family Trust and that he breached that fiduciary duty by withholding trust amendments from the Probate Court and by withholding bank statements for trust bank accounts from the plaintiff. (¶ 1.) The plaintiff alleges that she was unaware of those wrongful acts until the period of March 8 to March 28, 2017. (¶ 4.) Rather than file suit upon dis...

Excerpt: ...o the extent that it vaguely refers to the “pleadings filed in this action and the judicial admission set forth therein” without identifying the particular records or the particular admission to which it is referring, it fails to comply with Evidence Code section 453, subdivision (b). The general demurrer is sustained because there is not allegation of a relationship giving rise to a duty to disclose. The elements of a cause of action for fra...

Excerpt: ...t “the claimant has not commenced an action to enforce the lien within the time provided in Section 8460,” i.e., within 90 days of the recordation of the claim of lien. The motion presents no evidence or argument that the action was commenced more than 90 days after recordation of the lien. To the contrary, the petition alleges that the claim of lien was recorded on October 3, 2019 (¶ 5) and that the plaintiff filed the instant action to enf...

Excerpt: ...nference on August 10, 2020, at 8:30 A.M. Analysis: The Court does not approve the service award or general release payment to the plaintiff. The settlement agreement provides that the Arispe Class Presentative Service Award is intended to compensate Arispe “for her time and effort in prosecuting the Arispe Lawsuit on behalf of the State of California and Arispe Aggrieved Employees since filing the Lawsuit on January 17, 2018.” (Abstract, ¶�...

Excerpt: ...o discuss whether they would be willing to stipulate to agree that the issue of whether the guaranty was signed by the defendant may be bifurcated and tried to the court without a jury. Analysis: The plaintiff's request for judicial notice of public records is relevant to issue of the signatures used by the defendant. The evidentiary objections on the ground of hearsay are sustained to the extent the declarant relies upon the contents of the plai...

Excerpt: ...allegations because the facts of that case bear no similarity whatsoever to the facts alleged here. While the facts in Taylor v. Superior Court of Los Angeles County (1979) 24 Cal.3d 890 are closer, since they both involve a traffic accident in which the plaintiff was allegedly injured, the similarity ends there. The Taylor court held "that the act of operating a motor vehicle while intoxicated may constitute an act of 'malice' under [Civil Code]...

Excerpt: ...n. (Code Civ. Proc., § 2025.450, subd. (b)(2).) Such a declaration must “state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (§ 2016.040.) Here, the moving parties relied entirely on letters and emails. (Decl. of Mazzo, ¶¶ 5‐11; decl. of Anguiano, ¶¶ 3‐9.) An exchange of written communications is not a meeting, and does not constitute a reasonable or good‐faith ...

Excerpt: ... for agricultural uses be reduced from 75% to 70%. The Court is inclined to approve that proposal. However, in the effort to eliminate the differential between M&I and agricultural producers, should the rampdown on agricultural producers be greater than 5% (so long as it is less than 5% for the sub‐area as a whole)? Phrased differently, to achieve a 5% rampdown in the Alto FPA as a whole while keeping the FPA for M&I constant at 55% of BAP, wha...

Excerpt: ...nference on July 21, 2020, at 8:30 A.M. Analysis: The Court does not approve the service award to the plaintiff. The Court's CMO#2 requires the party seeking a service award in a PAGA case to provide authority for such a distribution. (Id., § E.8.) Despite the Court pointing out this omission at the first hearing on the motion, it appears that there is still no citation to any such authority from an appellate opinion in a PAGA case. Although the...

Excerpt: ...ts is granted in part and denied in part. It is granted to the extent that it seeks a determination that Federal is the prevailing party on the action on the payment bond. It is denied to the extent that it seeks an award of costs of suit and attorney's fees. Analysis: Cell‐Crete sued Federal and Granite. Granite sued Cell‐Crete. The two actions were consolidated. Cell‐Crete's action was stayed while Granite's action was submitted to arbitr...

Excerpt: ... be either general taxes or special taxes.” (Cal. Const., art. XIII C, § 2, subd. (a).) Local governments may not impose, increase or extend (a) any general tax unless it has been approved by a majority vote at a general election, or (b) any special tax, unless it has been approved by a two‐thirds vote of the electorate. (Id., subd. (b) & (d).) Proposition 218 did not define “tax.” That omission was cured when article XIII C, section 1, ...

Excerpt: ...rez filed 1‐30‐ 20? • Why is the administrator's estimate based on a “class size” of 2166 (Exh B to declaration of administrator) when the number of aggrieved employees is no more than 1,500? • If the defendants' total assets are only $3.5 million, as represented by both Perez and Pike, what is the source of the $6.6 million gross settlement amount? Page 3 of 3 • What was the basis for the parties' allocation of the gross settlement...

Excerpt: ...es of Action are against the County of Riverside only, and the 7th Cause of Action is against Sanchez only. 1st cause of action: Granted as there is no evidence of severe or pervasive harassment. 2nd cause of action: Granted as there is no evidence of pretext that suggests that County placed Plaintiff on leave or terminated him as a result of a perceived disability. 3rd cause of action: Denied as there is evidence of pretext demonstrating a retal...

Excerpt: ...n a way that ‘affirmatively contribute[d]' to the employee's workplace injury.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 595.) In short, it is not sufficient that the employer retained control. The employer must have also exercised that control in a way that is causally related to the injury. Actuant acknowledges that this is the rule. (Opposition, p. 7, l. 26 – p. 8, l. 5; p. 9, ll. 22‐25.) By itself, the contractua...

Excerpt: ...t is not aware of any authority that requires the Court to grant relief from intentional decisions not to preserve that right. Thus, although the evidentiary burden is slight, it is not non‐existent. A party moving for relief must offer evidence that the failure to deposit jury fees in a timely fashion was negligent rather than intentional. The plaintiff having offered no evidence whatsoever, the plaintiff's motion is denied. The defendant's de...

Excerpt: ...failure to file proofs of service of the summons and complaint on the defendants. In light of the monetary sanctions previously imposed on plaintiff and plaintiff's counsel, the Court will refrain from imposing the fine authorized by Code of Civil Procedure section 473, subdivision (c)(1)(A) or the contribution to the State Bar Client Security Fund authorized by subdivision (c)(1)(B), so long as those monetary sanctions are paid in full forthwith...

Excerpt: ...of the plaintiff's expert. The plaintiff has failed to do so. Instead, Plaintiff provides the declaration of Dr. Dushyant Viswanathan. He disputes most of the factual recitals on which Dr. Hamburg's opinion relies, but does not provide another opinion. He fails to actually address anything that this Defendant did to breach the standard of care or causation. A plaintiff must establish causation within a “reasonable medical probability” based u...

Excerpt: ...ers no facts that she has any personal knowledge regarding this issue. What was her role? Did she decide that a jury trial would be requested? Did she instruct someone to deposit jury fees to preserve the right to such a trial? How does she know that the failure to deposit fees was inadvertent rather than intentional? The Court grants relief for inadvertent forfeitures, but not if the party has simply changed its mind after an intentional waiver....

Excerpt: ...veral reasons, including that “[t]he motion fail[ed] to comply with California Rules of Court, rule 3.1324(b).” That rule requires the motion to be supported by a declaration that explains “[w]hen the facts giving rise to the amended allegations were discovered.” Accordingly, the Court directed Bogh to provide “a declaration explaining how and when the facts supporting each of the proposed new ‘defenses' came to the attention of Bogh....

Excerpt: ...n, jury fees were timely deposited by Hallbert, and it does not appear that Hallbert has expressly waived the right to a jury trial. Unless and until such a right is waived by Hallbert, the trial shall remain set as a jury trial. The Court believes that the only issue to be bifurcated is whether the fungi/bacteria exclusion endorsement (Form UMB 01 03 01 03) is enforceable. The plaintiff contends that it is unenforceable because it is not conspic...

Excerpt: ...il Procedure section 631. Here is no such evidence, because the plaintiffs' motion is not supported by any declaration or any other evidence whatsoever. Although the court takes judicial notice of the documents in the court record, nothing in those documents explains why the plaintiffs failed to deposit their jury fees in a timely fashion. ...

Excerpt: ...ich would be to July 3, 2020. What is the extent of the requested continuance? a. Assuming that the former is the intended continuance, trials in Riverside are called on Fridays, not Tuesdays. b. If the latter is the intended continuance, July 3 is a holiday. 2. The defendants fail to identify the additional discovery needed to meet the alleged new theory, or to explain how long it will take them to complete that discovery. (Trial setting order, ...

Excerpt: ...e County seeks a continuance in order to take the depositions of Ms. Levy and Mr. Yoder prior to trial. However, it is entirely speculative whether those depositions will be taken. Ms. Levy was served with a subpoena but failed to appear. Whether she will respond to an order compelling her appearance for deposition is speculative. Mr. Yoder has not been located. Whether he will be located and will testify at deposition is similarly speculative. A...

Excerpt: ...ing a timely proof of service, and on 10‐8‐19 for the failure to comply with that portion of the Court's order of 6‐24‐19 that directed the plaintiff to file a case management statement within three weeks that described the nature and amount of the damages being sought. The motion thereafter refers to both orders, but is vague as to which order is being challenged. Similarly, the declaration (at ¶ 20) says that the moving party seeks a d...

Excerpt: ...me unspecified date in late November to some unspecified date in early December does not demonstrate good cause for the continuance of a trial in which no testimony is likely until December 10. Moreover, assuming there is a conflict, there is no evidence of reasonable efforts to avoid it. Specifically, there is no evidence of when she was retained, when she was informed of the trial date (set at the TSC on 5‐1‐19), and when she committed to b...

Excerpt: ...Thursday, November 7, 2019. Analysis: Lents seeks a continuance of the trial, currently set for 12‐6‐ 19, for 120 days. The motion fails to demonstrate good cause. Lents argues that the naming of Vive TFP and Canterra Creek as cross‐defendants in the Dunlap cross‐complaint requires a continuance. The Court is not persuaded. Neither Vive nor Canterra are cross‐complainants. Therefore, they are not asserting any claims against Lents. The ...

Excerpt: ... no detailed description of what discovery has been conducted, what discovery still needs to be completed, why it has not been completion earlier, and how long it will take to complete. (Trial Setting Order, § F.4.) In particular, there is no showing that the remaining depositions could not, with reasonable diligence, have been completed prior to now. There is no showing that the depositions that remain to be conducted cannot, with reasonable di...

Excerpt: ... 3.1332(c)(6).) Here, the defendants fail to demonstrate the requisite diligence. The defendants appeared in the case 2.5 years ago, in April of 2017. Apparently, the defendants propounded no discovery in either 2017 or 2018. (Decl. of Mojtehedi, ¶ 2 [discovery in 2017 and 2018 “included various sets of discovery from Plaintiff.”]) On 2‐28‐18, the Court set a trial date of 7‐27‐18. On 6‐15‐18, the defendants applied ex parte for ...

Excerpt: ...he Court's tentative is to deny the continuance. Analysis: The Court does not continue the trial on the ground of Ms. Gentile's mother's alleged illness and Ms. Gentile's alleged responsibility to care for her mother because there is no declaration from Ms. Gentile describing either that illness or that responsibility. Nor is there any other admissible evidence on either of those topics. Moreover, there is no evidence of what Ms. Gentile's involv...

Excerpt: ...ion, does not refer to the department in which the motion was heard, and does not bear the date on which the hearing was actually conducted. Analysis: The plaintiffs correctly state the law to the effect that a party must be relieved of a forfeiture, or even an express waiver, upon request unless either the opposing parties or the court would be prejudiced by that relief. Unlike a motion under Code of Civil Procedure section 473 directed to other...

Excerpt: ...mply with California Rules of Court, rule 3.110, and RSC Local Rule 3116. Pursuant to Code of Civil Procedure section 473, subdivision (c)(1)(B), Jeremiah Raxter is ordered to pay $1,000 to the State Bar Client Security Fund no later than September 20, 2019. Proof of that payment shall be filed with the clerk of the Court no later than September 30, 2019. Because this case is no longer at issue, the trial setting conference previously set for Aug...

Excerpt: ...ely to find that the defendant is at least partially responsible for the accident because the defendant did not avoid hitting the plaintiff. As long as the degree of fault assigned to the defendant is greater than zero, the jury will need to determine the amount of damages suffered by the plaintiff. If the jury is likely to need to determine the damages issues regardless of the likely decision on the liability phase, the promised efficiencies res...

Excerpt: ...t 30, 2019, to early February of 2020 is denied. The Court extends the discovery cut‐off to August 16, 2019. Analysis: The request to continue the MSC is moot, because that MSC was scheduled for and was conducted on July 29, 2019, two days ago. The parties represent that the requested trial continuance will permit the plaintiff to undergo surgery and allow the defendants to complete their discovery concerning both the plaintiff's physical condi...

Excerpt: ...t to the extent that the oral agreement is executed by the parties. (c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions. Application of this rule to construction subcontracts is well established. For example in Miller v. Brown (1955) 136 C...

Excerpt: ...e called in the two proposed phases of the trial, and (3) the extent to which the defendants have conceded causation. The plaintiff's supplemental memorandum shall clarify the division of issues between the two proposed phases of the trial: liability and apportionment of comparative fault in the first phase, and causation and quantification of damages in the second? Or something different? In either event, the proposed order shall be revised to i...

Excerpt: ...e application for continuance based upon the plaintiff's alleged refusal to appear for a properly noticed IME. Analysis: The defendant does not explain how the plaintiff's decision to represent himself will prevent the case from being ready for trial on August 2. The defendant does not describe the discovery that it needs to complete prior to trial, does not explain how long it will take to complete that discovery, and thus does not explain why t...

Excerpt: ...alysis: Lee's unfounded assumption that he was free to wait until the date of the case management conference to file the proof of service is refuted by California Rules of Court, rule 3.110(c), which required the proof of service to be filed concurrently with the cross‐complaint. It was Lee's failure to do so that prompted the Court to issue its OSC. Similarly, Lee's unfounded assumption that he was free to do nothing in response to the OSC unt...

Excerpt: ...t to the extent that the oral agreement is executed by the parties. (c) Unless the contract otherwise expressly provides, a contract in writing may be modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is required to be satisfied if the contract as modified is within its provisions. Application of this rule to construction subcontracts is well established. For example in Miller v. Brown (1955) 136 C...

Excerpt: ...ans despite knowledge of when the trial was scheduled to occur, there is no good cause. If the defendant was never informed by his counsel of when the trial was scheduled to occur, there is no good cause. In addition, the extent of the defendant's unavailability is unclear. Both the declaration and the stipulation state that the defendant will be out of the country through September 31. No such date exists. As to the plaintiff's future surgeries,...

Excerpt: ...concedes, however, that the defendant nevertheless has a due‐process right to participate in the trial. In the Court's 4‐19‐19 order, it had noted that “[t[he defendant has previously been convicted of committing the conduct of which the plaintiff complains. That conviction was recently affirmed by the Court of Appeal. Accordingly, it appears that the defendant's liability is established, and the only issues left to be decided are those o...

Excerpt: ...otion for reconsideration. The motion fails to comply with Code of Civil Procedure section 1008. Second, the motion also fails on the merits. The plaintiff moves for preference under subdivisions (d) and (e) of section 36. Both theories are unsupported. Subdivision (d) requires “clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of ...

Excerpt: ...court consolidated Salto's action with RIC1706150 and issued an OSC why any party who is not at‐issue should not be dismissed, returnable on January 3, 2019. Mr. Drouet, Salto's counsel, had appeared at the hearing and was given responsibility for serving notice of the OSC. (See minutes of October 3, 2018.) There is no proof of service of any such notice. Page 2 of 2 Defendant Cacares was dismissed by the Court when Salto failed either to reque...

Excerpt: ...itial CMC was November 7, 2018. The plaintiff failed to deposit any jury fees on or before that date. Nevertheless, the plaintiff's application for a further fee waiver has been granted. Although it was not granted as to jury fees, that partial denial was only because the right to a jury trial had been forfeited. The entitlement to a fee waiver excuses the plaintiff's failure to timely deposit those jury fees. ...

Excerpt: ...directed to both dismissals, it fails as to the dismissal of Li as a cross‐defendant. As to the dismissal of Li as a defendant, there is still no valid proof of service. The proof of service attached to the motion as part of exhibit C suffers from two problems. First, it is directly contradictory to Exhibit B. Exhibit B states that the summons served on Hertz said the person served was served on behalf of Hertz Vehicles LLC in the care of Jiong...

Excerpt: ...�issues” is not good cause for a trial continuance. The “declaration” of Mr. Vosburg is not signed under penalty of perjury, and thus is not considered. Even if it were to be considered, there is no showing of diligence, because the injury occurred in January 28, 2019. Nor is there any evidence of why a different attorney cannot conduct the trial, or why efforts to find a different trial attorney have not been made. ...

Excerpt: ...or preliminary approval on June 6, 2019, at 8:30 A.M. in Department 6. 1. The motion fails to comply with CMO#2 in at least the following respects: a. Fails to provide the Compliance Chart required by § H.3.l. b. The declaration of Jusuf fails to state the total potential recovery, as required by § H.3.a.ii; fails to estimate the likely recovery at trial, as required by § H.3.a.iii; fails to state the average individual distribution and the ra...

Excerpt: ...dence. In resisting the motion, the plaintiff contends that the deposition would be burdensome because he has no recollection of the accident that resulted in his injury and because he is incompetent to testify on any other subject. The Court is not persuaded. As to whether the plaintiff has any recollection, the defendants are entitled to test his memory themselves, without relying on the opinion of plaintiff's counsel or of Drs. Nudleman and Me...

Excerpt: ...cause it suggests that the class members must have worked for the defendant during the entire class period. It shall be modified by inserting “at any time” before “from December 8, 2013,” as was done in part 3 of the Notice. 2. Regarding the proposed order: a. ¶ 18 shall be modified to delete the sentence at lines 12‐14, which is redundant to ¶ 15. b. ¶ 19 of the order must be modified to limit its scope to actions between the partie...

Excerpt: ...ended allegations were discovered, and rule 3.1324(b)(4), concerning the reasons why the request for amendment was not made earlier. Here, the plaintiff notified the LWDA of her claims against the defendants by letter dated July 25, 2018. The plaintiff could have filed a PAGA action 65 calendar days later. (Lab Code § 2699.3, subd.(a)(2)(A).) Thus, it appears that the plaintiff discovered the facts supporting her PAGA claims sometime prior to Ju...

Excerpt: ...324(b).” That rule requires the motion to be supported by a declaration that explains “[w]hen the facts giving rise to the amended allegations were discovered.” Accordingly, the Court directed Bogh to provide “a declaration explaining how and when the facts supporting each of the proposed new ‘defenses' came to the attention of Bogh.” The second motion fails because it does not comply either with rule 3.1324(b) or with the Court's dir...

Excerpt: ...at website. 2. The declaration of Hammond is not executed in accordance with Code of Civil Procedure section 2015.5. 3. The Court has no objection to delivering unclaimed funds to the New Media Rights program at California Western School of Law. However, the Court is concerned about section III.G.2 of the agreement as modified, to the extent that it requires a second distribution to the class members before any distribution to the cy pres so long...

Excerpt: ... 1‐9‐19 hearing]: ‘The CMO requires that the release by participating class members (other than class representatives) be limited to the claims stated in the complaint and those based solely upon the facts alleged in the complaint. Plaintiffs do not explain why the release exceeds that limit by purporting to release “any and all claims, that were or could have been alleged in the Lawsuit. In addition, the release requires a waiver by the ...

Excerpt: ...tion on September 5, 2017. The instant motion is an improper attempt to reconsider the denial of the earlier motion. Code of Civil Procedure section 1008 provides that reconsideration may be granted only upon new or different facts, circumstances, or law. Not only must the motion be based upon different facts or law, but it must also satisfactorily explain why that law or those facts were not presented at the time of the earlier hearing. (Baldwin...

Excerpt: ...t is not enough when the action being settled is a representative action the settlement of which requires court approval. Any information that the court relies upon when deciding whether to approve the settlement should be in the publicly accessible record. The defendant's reliance upon Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481 is misplaced, because the settlements there were not of class or other representative ac...

Excerpt: ...al. Any future motion shall either be properly served or shall be accompanied by the defendant's waiver of proper notice. Analysis: Service of the motion is inadequate. The motion was served by email, which required 16 court days and 2 calendar days of notice. (C.C.P. § 1010.6(a)(4)(B).) Plaintiffs only provided 16 court days. In addition, the second motion fails to comply with directives issued by the Court when it denied the first motion. For ...

Excerpt: ...ollowing: 1. On March 4, 2019, at the parties' request, the hearing was continued to allow the parties time to re‐evaluate whether they want to use Controller rather than a cy pres. The next day, March 5, 2019, the parties signed a stipulation (a) reciting that the unclaimed funds would be distributed to the Wage Justice Center as a cy pres, (b) attaching copies of the previous agreement in the form of the July 2018 Amended Stipulation and Adde...

Excerpt: ...on this motion, the defendants sought leave to respond to the analysis in the Court's tentative ruling. The Court granted the defendants leave to file sur‐reply or other supplemental briefing. Both defendants did so. After reviewing those briefs, the Court's analysis of the situation is not changed. The defendants challenged the original complaint by filing special motions to strike pursuant to Code of Civil Procedure section 425.16. (Mtns. fil...

Excerpt: ... made to the agreement. A comparison of the final agreement (exhibit 1) with the redlined version (Exhibit 1A) reveals that the changes, additions, and deletions in the redlined version do not always appear in the final version. Compare, e.g., ¶ 26 in both documents. That lack of consistency is both very serious and very disturbing. The Court must be able to rely on counsel's representations that a redlined document accurately reflects the final...

Excerpt: ...e PAGA claims, that the plaintiff has failed to do so, and that the defendant is entitled to an order enforcing the agreement by dismissing the complaint. The motion fails. PAGA was amended in 2016 to require that any settlement of any action that includes a PAGA claim must first be approved by the Court. (Lab. Code, § 2699, subd. (l)(2).) Unless and until the Court grants such approval, the agreement is unenforceable. Here, no such approval has...

Excerpt: ...otions. However, the Court will not consult multiple declarations from the same declarant. If the plaintiff wishes to rely upon selections from multiple declarations from the same declarant, a new declaration shall be filed to consolidate the relevant parts of those prior declarations. If the sixth motion is filed but denied, then the Court will require that any future motion comply with Code of Civil Procedure section 1008. Analysis: The motion ...

Excerpt: ...7 court days' notice when 18 were required. By specifying 2‐21‐ 19 as the last day in which to answer, the Court did not shorten notice for any response to the FAC other than an answer. However, the Court may strike portions of a pleading “at any time in its discretion and upon terms it deems proper.” (Code Civ. Proc., § 436, subd. (a).) The merits having been fully briefed, the Court exercises its discretion in this instance. To qualify...

Excerpt: ... questions listed below. An future motion shall either pertain to a new settlement or shall be based on new law or other new facts, as required by Code of Civil Procedure section 1008. Analysis: The motion still fails to comply with the Court's CMO. For instance: The CMO requires an explanation of how counsel arrived at the agreed‐upon amount of the PAGA penalties. (§ E.4.e.) That was noted in the ruling denying the second motion, but is still...

Excerpt: ...ttlement is not enough when the action being settled is a representative action the settlement of which requires court approval. Any information that the court relies upon when deciding whether to approve the settlement should be in the publicly accessible record. The defendant's reliance upon Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481 is misplaced, because the settlements there were not of class or other representa...

Excerpt: ...e the amendment is not shown to be necessary. Bogh claims that the amendment is necessary to allege additional affirmative defenses. Affirmative defenses are factual contentions on which the defendant bears the burden of proof at trial. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.) Bogh has not presented any authority for the proposition that it bears the burden of proof on any of the proposed “defenses.” Nor has Bogh stated th...

Excerpt: ....: There is no description of the range of potential recoveries by class members.  3.k.ii.: There is no declaration from a declarant with personal knowledge.  4.c.: The motion asserts that the class period is 3/24/13 to 6/1/18. The notice is consistent on page 1, but pages 3 and 4 of the notice state the class period is 3/24/16 to 6/1/18. This inconsistency must be resolved. 2. The Court will not approve the class definition as currently dr...

Excerpt: ...urt, rule 2.108. No declaration in support of that motion shall be attached as an exhibit to any other declaration. Analysis: 1. Plaintiff's motion is in violation of Cal. R. Ct. 2.108 which requires line spacing of 1.5 or 2.0. Plaintiff's nine page memorandum is single‐spaced, thereby effectively getting around the 15 page limit under Cal. R. Ct. 3.1113. 2. The numbers described in ¶ 2 of the settlement do not match the memorandum (p. 5) or p...

Excerpt: ...e a PAGA case is not enforceable until it has been approved by the Court. Here, the Court has never approved the settlement agreement, and indeed has not yet been asked to do so. Therefore, there is no enforceable agreement. In the absence of such an agreement, the motion to enforce cannot be granted. This problem was discussed with counsel at the status conference on January 24, 2019. At that time, defense counsel acknowledged that PAGA settleme...

Excerpt: ... amount to the administrator. Although the settlement agreement was amended in November of 2018, the amended agreement inexplicably continues to provide for the gross settlement to be paid in two installments, in May and July of 2018. (¶ 9.) Since those dates are months in the past, and already were when the agreement was amended, there is no term describing when the defendant will fund the settlement. The Court will not approve an agreement tha...

Excerpt: ...ed as to the eighth cause of action, without leave to amend. Any amended complaint shall be filed and served no later than February 25, 2019. A case management conference shall be conducted on April 8, 2019, at 8:30 A.M. in this department. Analysis: The first cause of action is sufficiently pled in ¶¶ 53 and 54. The second cause of action is sufficiently pled in ¶¶ 62‐65. The third cause of action is sufficiently pled in ¶¶ 72‐74. The ...

Excerpt: ...ly with the Court's CMO#2, which shall be issued forthwith. Analysis: The motion fails to comply with the current CMO, filed 6‐29‐17. For instance:  E(1)(a)‐(b) – Counsel's declaration does not set forth his estimate of the total amount that would be awarded if the action were successful at trial and does not set forth his estimate of the total amount the class could reasonably expect to be awarded at trial, taking into account the lik...

Excerpt: ...2 of 3 The plaintiff shall provide a revised proposed order in the form filed 1‐11‐19, but modified (a) to correct the date of the hearing and (b) to change ¶ 2 to read: “The Court hereby enjoins KPM Enterprises, Inc., and Mary Katherine Maes Moody from operating any business at 27629 Commerce Center Drive in Temecula, California, that provides dog daycare, dog boarding, or dog spa services, or associated retail products, other than a Dogt...

Excerpt: ... further motion shall fully comply with the Court's CMO and with the ruling by which the first motion was denied. Analysis: The motion is denied because the plaintiff has failed to comply with the Court's CMO. In particular, it appears that the plaintiff failed to fully comply with the following sections of the CMO, because the plaintiff:  Has failed to address the PAGA claim when responding to H.3.a.iii.;  Has failed to comply with H.3.k.,...

Excerpt: ... opposing the motion, the Commission challenges only the number of hours incurred in prosecuting the appeal and preparing this motion. It argues that the fees should be reduced by 20 percent, but it never explains how it comes to that figure. The only task that it identifies as having consumed an unreasonable amount is oral argument. It fails to propose what a reasonable amount of time would be for that task, and thus does not identify the number...

Excerpt: ...ntiff must be represented by an executor, administrator, trustee, or other personal representative. Second, to the extent that the motion is seeking reconsideration, there is no evidence that the procedural circumstances that require such a motion exist. Such a motion is necessary “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms . . . ...

Excerpt: ...s to other employees); Travis Booth – none; Nicholas Bouzikian – 8 and 14; Daniel Cerda – 10; Dejuanne Davis – 1, 4‐5, 8 and 14 (as to other employees); Ericka Eisenman – 3 (as to other employees) and 8; Ollie Ervin – 12, 20, and 23 (as to what other employees were told); Courtney Fisher – 6, 11 and 17 (as to other employees); Robert Geason – 6; Anthony Hidalgo – 10, 18, 21 (as to other employees were told); William Homsany �...

Excerpt: ... by the enactment of Penal Code section 688.5, and may now be dismissed without prejudice. They contrast that claim with the claim for a writ of coram nobis, the subject of the third count, suggesting that they agree to the dismissal of counts one and two. Are the plaintiffs conceding that the demurrer to the first and second counts may both be sustained without leave to amend? If not, exactly what are they stipulating may be dismissed? Second, t...

Excerpt: ...Safety Code section 1339.51, which requires a certain notice to be posted. (TAC, ¶¶ 31‐32.) She also complains that the defendant failed to make certain other disclosures. (Id., ¶ 47.) In order to establish standing under the UCL, a plaintiff must demonstrate some form of economic injury, i.e., a plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e. economic injury, and (2) s...

Excerpt: ...ate Claim for Coram Nobis The defendant cites People v. Kim (2009) 45 Cal.4th 1078 for the proposition that a party moving for a writ of error coram nobis must demonstrate factual innocence. The Supreme Court said no such thing anywhere in that opinion. To the contrary, it said: “The writ of [error] coram nobis is granted only when three requirements are met. (1) Page 3 of 4 Petitioner must ‘show that some fact existed which, without any faul...

Excerpt: ...6.) Here, the plaintiff's attorney signed it, but it is unclear whether it is also signed by Iris Landing Homeowners Association, the only plaintiff in the action. (Complaint.) There are two signature pages attached to the agreement. (Harrington decl., Ex. A.) On one of them, a signature line is prepared for “Iris Landing Homeowners Association, Plaintiff.” That signature line is blank. On a second signature page, there is signature line labe...

Excerpt: ...3.1382, regarding the identification of the pleadings proposed to be dismissed. Any further effort to obtain a determination that a settlement is in good faith shall do so by notice (Code Civ. Proc., §.877.6, subd. (a)(2)) rather than by noticed motion (id., subd. (a)(1)) unless either (1) the party expects the effort to be opposed or (2) the party will be requesting an order shortening time for the hearing on the motion. If a noticed motion is ...

Excerpt: ...y for the relief sought. That reliance is misplaced. To the extent relevant, that section says that a motion to compel appearance and testimony may be brought if “a person designated by an organization that is a party under Section 2025.230” fails to appear at the deposition or to proceed with it. (§ 2025.450, subd. (a).) Here, the person designated by the city appears and testified. Therefore, the section has no application. The Court could...

Excerpt: ...subdivision (c), defines “aggrieved employee” to mean “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” Subdivision (i) says that, of the civil penalties recovered by aggrieved employees, 25 percent shall be distributed “to the aggrieved employees.” Allocation of the entire 25% share of the penalties to a single aggrieved employee, rather than to all the aggriev...

Excerpt: ...nce will be vacated. Any renewed motion shall comply with CMO#2, to be issued forthwith. Analysis: 1. The motion fails to comply with the Court's initial CMO in at least the following respects: a. No declaration from plaintiff's counsel re other class or representative actions. (CMO ¶E.1.d.) b. The proposed release (Settlement, p. 16, ¶31) exceeds the limitations on the scope of the released parties. (CMO ¶E.5.a.) c. There is no declaration fr...

Excerpt: ...��17‐18, the Court raised several questions concerning the settlement terms. The parties have not fully answered the Court's questions, in the following respects: 1. The first motion was premised in part on the assertion that a settlement in any amount greater than $65,000 “would be financially burdensome” to the defendant. The Court asked, “Where is the evidence supporting that assertion?” In the second motion, the parties do not answe...

Excerpt: ...not approve the dismissal of class claims as a condition of a settlement of the plaintiff's individual claims without knowing the consideration paid to the plaintiff as part of that settlement. The defendant concedes that a prior motion to file the settlement agreement under seal has been denied, yet in this motion files the agreement in a redacted form that does not disclose the amount of the consideration. As a result, the motion lacks the info...

Excerpt: ...g of the last motion on 5‐30‐18, there is nothing in the agreement that allocates $15,000 of the settlement to PAGA penalties. 2. There is nothing in the agreement that explains how the aggrieved employees' 25% share of the PAGA penalties will be allocated among the aggrieved employees, how their respective shares will be distributed to the aggrieved employees, or who will be responsible for that distribution. 3. As noted in the prior tentati...

Excerpt: ...dvises the defendant that the plaintiff will not amend, whichever is sooner. The case management conference is continued to August 16, 2018, at 8:30 AM in this department. Analysis: The complaint does not allege, and seems unlikely to be amended to allege, a cause of action for conversion because there is no specific, identifiable sum to which the plaintiff has a right to possess. The failure to pay money owed does not constitute conversion. Page...

Excerpt: ...of any persuasive evidence that the agency knew or should have known of the existence of this case before May 11, 2018, the agency's commitment that it will be prepared to participate in trial as scheduled subject to its counsel's availability, and the lack of evidence of any prejudice to the plaintiffs, intervention is appropriate. The Court is unavailable on July 27, 2018, the date currently set for the trial readiness conference. Counsel for t...

Excerpt: .... a. Have the other two courts agreed to accept this Court's decision as to whether the settlement should be approved? b. Alternatively, are similar motions being filed in each case? If so, why is the court being asked to approve all three? 2. The motion appears to fail to comply with the Court's CMO in multiple respects. For instance: CMO ¶ E.3.c: It appears that the Perez and Hunt Cottrell declarations may include all claims from all three act...

Excerpt: ...'s estimates. Bradley's declaration repeatedly refers to the estimates of his “office.” Are these his estimates or those of someone else? In addition, the estimates are conclusory in that there is no explanation of how the estimator arrived at those estimates. 2. Section G.1.d of the CMO requires a statement of the range of recovery for the class members if the recovery by the class members will vary. 3. Section G.6.requires a basis for inclu...

Excerpt: ...A, CC, and DD; and Exhibits 553 and 555. In all other respects, it is denied. Regardless of whether the parties submit on the tentative ruling, the parties shall appear in person or by Courtcall, as the respective parties prefer, to discuss the following issues (see order filed June 18, 2018):  Whether the defendants intend to move to strike portions of the AR that postdate the RONs at issue.  The estimated length and date of the abuse‐of...

Excerpt: ...AGA penalties should be Page 3 of 3 paid to the named plaintiffs, to the exclusion of any of the other 632 aggrieved employees. The statement in the case on which the plaintiff principally relies – that after the 75% of penalties are paid to the LWDA, “[t]he remaining twenty‐five percent of the penalties recovered are distributed to the aggrieved employees who initiated the claim under PAGA, not to the group of aggrieved employees on whose ...

Excerpt: ...e whether there is a fee‐splitting agreement. (CMO ¶ G.1.f.) 3. The release in the agreement does not comply with CMO ¶ G.6.a. Moreover, the language of the release in the notice differs from the language of the release in the agreement. 4. The exclusion form requires a class member's complete social security number, which appears to be unnecessary to identify the employee, and which is contrary to part 7 of the notice (only last four digits)...

Excerpt: ...visions of the Court's CMO: § H(6) The Release includes a Civ. Code § 1542 waiver on behalf of all Class Members. Such a waiver applies only to general releases. The named plaintiff may be giving a general release, but the class members are not. What is the intended scope of the release? § H(11) The Proposed Order does not include copies of the Notice, Exclusion Form and Objection Form. § H(12) Two issues: First, while the Notice and Settleme...

Excerpt: ...ch of the requirements prescribed by section H of the CMO#2, one line for each requirement in each paragraph or sub‐paragraph. The other column shall describe – by document name, page, and line numbers – where in the moving papers each of the corresponding requirements is satisfied. Analysis: The motion fails to comply with the Court's Case Management Order #2 in numerous respects. For instance: ¶ H.1.a. Plaintiff's counsel's declaration d...

Excerpt: ...6, 2018. The status conference to set a deadline for a motion for class certification is vacated as moot in light of the dismissal of the class claims. The Court shall conduct a TSC on September 26, 2018, at 8:30 A.M. in this department. Analysis: The Court does not rule on the City's evidentiary objections 1 through 17 because the evidence to which they relate is immaterial to the Court's analysis. That evidence relates to why the dismissal of t...

Excerpt: ...ns relate was not material to the Court's analysis. Defendant Paul Jun's motion for summary judgment is denied, and his alternative motion for summary adjudication is denied. Analysis: Labor Code § 558.1 provides in relevant part: (a) Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commissi...