Excerpt: ...h CMO The motion does not fully comply with the CMO. In particular, the motion fails to comply to at least the following provisions. H.3.a.i.(B). The supplemental declaration of Barnes is inconsistent regarding the number of aggrieved employees employed during the applicable PAGA period. At ¶ 4 and on page 10, he says 1,100. In ¶ 16, he says 1,110. That inconsistency must be resolved. H.3.j.ii. The supplemental declaration of Barnes describes t...

Excerpt: ... Court finds that attorney's fees in the sum of $101,500.67 are not justified. First of all, those fees are measured by the escalator clause which raised the GSA to $304,505.94. The circumstances that triggered that clause are independent of any efforts of the attorney, and thus would constitute a windfall for counsel. Second, the lodestar is inflated by services that were, or should have been, unnecessary. For instance, it was unnecessary to fil...

Excerpt: ... in the reduced sum of $4,500. The hearing on the portion of the motion regarding administrator's fees will be continued to afford the administrator an additional chance to comply with the CMO. The motion for final approval cannot be granted in its present form because it does not comply with the court's CMO. In addition to the administrator's incomplete declaration, the CMO violations include: The administrator has not complied with section H.5 ...

Excerpt: ...t only on the following conditions: 1) the motion must be based on “new or different facts, circumstances or law” and 2) the motion must be supported by an affidavit or declaration disclosing “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances of law are claimed to be shown.” (CCP § 1008(b); Graham v. Hansen (1982) 128 Cal.App.3d 965, 969‐970.) If ...

Excerpt: ... Failure to comply with CMO: The motion fails to comply with the following provisions of the CMO: G.3.a.iv.: The plaintiff's counsel has failed to state the estimated range of potential recovery by the class members. The Court would expect counsel to be able to estimate the total hours worked by all employees (219,360), the hours worked by the class member with the shortest employment during the class period, and the number of hours worked by the...

Excerpt: ... and conditional use permit on 1‐25‐22, and the notice of exemption was filed 1‐31‐22. Therefore, to be timely, the petition challenging those decisions were required to be filed within 35 days of the notice of exemption, or by 3‐7‐22. (Pub. Res. Code § 21167, subd. (d).) Here, the petition was not filed until 3‐16‐22. Therefore, the petition is untimely. In resisting that conclusion, the petitioner argues that the limitations pe...

Excerpt: ... penalties were calculated or otherwise established. c. The following revisions to the proposed order submitted 5‐2‐22: i. Given that the settlement agreement has been amended, the citation in ¶ 1 is no longer correct. [Ex 13 to 2d suppl. decl. filed 6‐23‐22] ii. Attorney's fees shall be reduced to $855,000 in ¶ 7.a. iii. The $15,000 incentive payments shall be approved without change. (¶ 7.b.) iv. The NSA must be increased accordingly...

Excerpt: ...rections below. 1. Compliance with CMO The moving papers fail to comply with at least the following sections of the CMO: a. H.6.: The scope of the release in the proposed judgment (¶ 26) exceeds the limits in the CMO. b. I.2.: There are declarations from only 5 of the 6 plaintiffs. There is no declaration from Blanca Reina Gonzalez Ortiz. c. I.3.b.: Neither the Kramer declaration nor the Beaman declaration discusses the percentage of clients tha...

Excerpt: ...d. Failures to Comply: The motion fails to comply with the CMO in at least the following respects: • Section D.2.g.: The declaration of Mankin fails to describe how the agreed‐upon amount of penalties was calculated. Counsel notes that the amount was the result of a mediator's proposal. Did the mediator explain how he arrived at that sum? • Section D.6.a.: There is no declaration from the plaintiff, and the declaration of counsel on this is...

Excerpt: ...gement conference scheduled for 7‐6‐22 is vacated. Failures to comply with CMO: F.5.c. Other than Mallison (¶ 66), counsel fail to state whether they work exclusively on contingency. F.6. Fite does not provide the requisite information concerning the value of the individual claim being released. F.8.a. This issue is not addressed in the declaration of Diaz, Fite, Lauby, or Mallison. F.8.b. The order of dismissal does not contain the requisit...

Excerpt: ...time spent on litigation related activities, any expenses incurred, any risk or adverse consequences of filing the lawsuit and any other benefits received. The declaration from the plaintiff, filed 6‐28‐22, is not signed, and thus fails to provide any evidentiary basis for the award. Moreover, it fails to describe the services he performed or to estimate the time that the plaintiff incurred as a PAGA representative. Any reward that the plaint...

Excerpt: ...a manner that cures these defects, the sustention will be without leave to amend. If leave to amend is granted, any SAC shall comply with California Rules of Court, rule 2.112(4). In addition, when alleging acts by one or more named defendants, the SAC shall identify each alleged actor by name rather than collectively as “defendants.” Analysis: The Court rejects the Weldon defendants' assertion that the complaint is barred by the applicable s...

Excerpt: ...ion from which the total number of violations can be calculated, but appears to leave it to the Court to make that calculation. The Court did not ask for the factors from which the number could be calculated; it asked for the result of that calculation. Is there some reason that it is not being provided? 2. E.4.d. It does not appear that the plaintiffs have explained how the agreed‐upon penalties were calculated or otherwise established. Davis ...

Excerpt: ...s: The notice is inadequate because the motion was served on 6‐3‐22, only 16 court days before the hearing, and was not served by personal service. However, the defendant affirmatively states that it does not oppose the motion, inferentially waiving that defect. Violations of CMO The moving papers once again fail to comply with the Court's CMO in a variety of ways, including the following: H.1.a. & I.12: Paragraph 16 of the order is inconsist...

Excerpt: ...appear at the hearing on that motion. With that exception, the motion to tax is denied. The parties are ordered to meet and confer in an effort to agree as to the amount of the fees incurred in drafting that opposition and attending the hearing on that motion. If the parties can agree, they shall submit a stipulation memorializing that agreement no later than 7‐1‐22. If the parties cannot agree, the Court will accept further briefing on that ...

Excerpt: ...f the common fund. Initially, the Court will reduce the attorney's fees from 35% to 33.33%, or $245,809. As the result of the failure of plaintiff's counsel to comply with the CMO, the order granting preliminary approval of the settlement was delayed from 6‐30‐21 to 2‐23‐22, a period of nearly eight months. During that period, inflation was running at an annual rate of approximately 8%. Therefore, as the result of the delay, the value of ...

Excerpt: ...‐ 13‐2022. The status conference is vacated. Deficiencies The deficiencies include the following: H.3.a.ii. The total amount of exposure ($584,167) does not appear to be equal to the total of the individual claims. Explain that inconsistency. H.3.a.iii. No response to A, B, or C, and incomplete response to D. H.3.a.iv. No response re range of recoveries. H.3.a.vi. No response re Wheeler's knowledge or inquiry. No response re Wand's inquiry. H...

Excerpt: ...no later than 7‐11‐22, and shall fully comply with the CMO, including § G.10. Violations of CMO: The declaration of Lurtz at ¶ 18 estimates the number of class members (539) but fails to estimate of the number of aggrieved employees during the applicable PAGA period. (G.3.a.i.) The declaration of Lurtz states the average class distribution (¶ 19) but not the range. (G.3.a.iv.) The declaration of Lurtz does not estimate the average PAGA dis...

Excerpt: ...with at least four provisions of the CMO. The Court directed that a second, revised motion shall be filed that fully complies with the Court's CMO. The plaintiff filed a second motion on 5‐20‐22, but it too fails to comply with the CMO. In particular, it fails to comply in at least the following respects: • The plaintiff's counsel's declaration does not describe the range (high and low) of the possible distributions to class members. Nor do...

Excerpt: ...chard Guirbino, Stacey Page 4 of 6 Leimas, Manuel Llamas, Aaron Martinez, Jorge Martinez, Sergio Martinez, Joe Meza, Chad Orr, Lonnie Patino, Dejuan Reed, Alfred Rivas, Gustavo Sanchez Ruiz, William Seremak, Peter Short, Manuel Soto, Lataurian Swanigan, Michael Travis, Mario Valdez, Juan Vargas, and Locanno Wair; and also as to plaintiffs Gabriel Cota, Joshua Gomez, Andres Lopez Gonzalez, Daniel Mares, Edgar Montesinos, and Jorge Sanchez. All cla...

Excerpt: ...on of arbitration, further proceedings in this case are stayed. The request for sanctions is denied. The defendant's request for a statement of decision is acknowledged. Analysis: The documents of which the defendant initially requested judicial notice are irrelevant, both factually (since they involve different contracts) and legally (because they are trial court decisions that are not authority on which this court must or may rely). The documen...

Excerpt: ...a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy,” the court must order the controversy to arbitration unless certain exceptions apply. If the exception in subdivision (c) applies, then the court may stay the arbitration until the pending court action is resolved. That reliance is misplaced, for two reasons. First, the arbitration of the claims alleged between the plaintiff a...

Excerpt: ...ght to be sealed is (a) the amount to be paid to the plaintiff by the moving defendants and (b) information from which that amount could be calculated. In all, the moving defendants seek to seal 25 separate portions of the petition. The Court does not find that the defendants' desire to enforce the confidentiality provision of the settlement agreement constitutes an “overriding interests overriding interest that overcomes the right of public ac...

Excerpt: ... Analysis: Thornton was obligated to comply with section 9.E and 9.H. of the CMO issued by the Court on 6‐20‐2014. Thornton concedes that it did not comply with the CMO after it appeared in December of 2015. (Oppo., p. 3.) It nevertheless claims that the motion should be denied. The Court disagrees. First, Thornton claims that the CMO has “expired” and “is no longer in place.” (Oppo., p. 2 & 4.) That unsupported assertion is false. No...

Excerpt: ... forth in Martinez v. Combs (2010) 49 Cal.4th 35 (Martinez). Because Mehtar and Naji could potentially be liable even without being an “employer” under Labor Code sections 558 and 1197.1, plaintiffs' PAGA notice cannot be invalid for failing to identify Mehtar or Naji as the “employer.” Because the facts alleged in the opening statement indicate that Mehtar and Naji might both qualify as an “employer” under the Martinez test, plaintif...