Excerpt: ... 4, § E.) The phrase, “which arose during the Settlement Period” should be added at the end of the first sentence in § E (after the word, “lawsuit”). • The Notice has been streamlined. Typos and other errors have been corrected. However, § “D” was eliminated without changing the remaining paragraph – that is, the sections on pages 3‐4 are now numbered/lettered: A, B, C, E. • The Exclusion Form has been appropriately revised...

Excerpt: ... 7). The Notice also defines Galasso's Bakery twice. (Notice, p. 1 and 3.) Further, defined terms are not consistently capitalized (e.g., “Settlement,” “Class Counsel” and “Class Members”) and are not consistently used. The documents should be reviewed carefully in order to eliminate awkward syntax and correct typos. • CMO, § H(5)(c) – The Notice appropriately indicates where Class Members may find a copy of the Settlement; howev...

Excerpt: ...bol, which may be unfamiliar to Class Members. It also contains references to statutes like PAGA without explanation.) Also, the procedures for objecting are somewhat confusing in that the Objection Form appears to require the Class Members to mail the Form to counsel for both parties in addition to the Administrator, while the Settlement Agreement and Notice require that the Form be sent only to the Administrator who will be responsible for forw...

Excerpt: ...ers including the range. Counsel indicates that the total damages at trial s $5,952,391.70, broken down as follows: rounding ($52,514.82); meal breaks ($2,089,486.48); rest breaks ($771,704.80); wage statement ($948,000); waiting time ($632,985.60); and PAGA ($1,457,700). (Nourmond Decl. ¶8.) Counsel fails to comply with (b) as to reasonable damages. For the estimate recovery, counsel provides an average of $1,431.88, but fails to provide the ac...

Excerpt: ...eral punctuation errors).  The revised Proposed Order was submitted without the referenced exhibits in derogation of the CMO.  Paragraph 2(k) of the Proposed Order incorrectly refers to a “claims period.”  The motion should be simply styled, Motion for Preliminary Approval of Class Action Settlement.  The Settlement's use of Net Fund Value (“NFV”) as a defined term is confusing, especially as it is repeated in the Notice (§ D...

Excerpt: ...is no discussion in accordance with Paragraph E(4) with respect to the number of alleged aggrieved employees, the number of alleged violations or the total penalties for which Page 2 of 2 Defendants are potentially liable. Plaintiff is under the mistaken impression that he has not actually settled the PAGA action. However, he has agreed to accept a monetary payment for the release of his unpled individual causes of action, which necessarily precl...

Excerpt: ...ame time. The court is inclined to approve the settlement once the following changes have been made: 1. The Nazarian declaration states at paragraph 23 that uncashed checks will be sent to the State of California Controller at no additional charge, the Settlement Agreement (Section IV.D.3) still provides for deposit with the State of California Industrial Relations Department. The Settlement Agreement shall be amended to reflect that uncashed che...

Excerpt: ...ubmission of the proposed order, it is reasonably clear that the minute order was not the final ruling on the motion for class certification. Moreover, a notice of entry was not served for either the August 23, 2019 ruling or the October 3, 2019 Order (nor was notice waived). (See Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 203 disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164 [10‐day period in § 1...

Excerpt: ...emental briefing complying with the court's tentative ruling shall be filed no later than five court days prior to the hearing. Plaintiffs shall correct the following: 1. The court is not yet convinced that email service of notice to class members will provide the best method of notice and the most cost effective. The declaration of the administrator does not provide a cost estimate for providing notice to all class members by first class mail, a...

Excerpt: ...ourt has great discretion in granting or denying certification. Under CCP § 382, class actions are authorized when there is a readily ascertainable class and a well‐defined community of interest among class members. (Sav‐on Drug Stores v. Superior Court (2004) 34 Cal.4th 319, 326‐327.) It is a plaintiff's burden to support each of the above factors with a factual showing. (Sotelo v. MediaNews Group, Inc. (2012) 207 Cal.App.4th 639, 647.) T...

Excerpt: ...nt to the maximum recovery to account for all of the potential defenses for a total of $313,168.80. (Id., ¶ 18.) The discussion is wanting with respect to counsel's reasons for the 30% reduction, and there is little to no discussion regarding the defenses and attendant risks. Further, counsel does not indicate the number of class certification orders he and his firm have obtained or the number of trials he and his firm have conducted concerning ...

Excerpt: ...rties other than the named defendant and there is no explanation of facts justifying their inclusion. There is no evidence concerning the likely age, education, experience, and Englishlanguage facility of the class members. The “Background of the Lawsuit” in Section II of the Class Notice should be condensed and simplified to notify the class of the nature of the allegations only. The class notice should include information required in CMO §...

Excerpt: ...ihood of prevailing on the merits of the wage, meal break, rest break, wage statements and waiting time claims. 2. Counsel does not indicate whether he is aware of any other class actions involving similar claims against Defendant. 3. The Declaration includes a list of the causes of action asserted in the Complaint and FAC. However, counsel does not provide any factual or legal basis for the claims. (Paragraph 5.) He also does not provide any inf...

Excerpt: ...ence claims it is or (b) the establishment of such facts by any other means provided by law.” Evidence Code § 1400. While Trust indicates he is Hosopo's custodian of record, he does not indicate where the document at issue came from. He Page 2 of 2 does not state that the document came from Plaintiff's personnel record. He does not state the document came from Hosopo. Plaintiff provides evidence that after demanding his complete employee file ...

Excerpt: ...ve court days prior to the continued hearing date. Page 2 of 3 The Court has identified the following deficiencies in the motion: 1. Plaintiffs have failed to comply with Section H.1.b of the CMO, which requires counsel to set forth the attorney's estimate of the total amount of damages, monetary penalties or other relief that the class would be awarded if the action were successful at trial on all of its claims. 2. Plaintiffs have failed to comp...

Excerpt: ...that the recovery by the average Class Member is $511. (Supp. Solouki Decl., ¶ 17.) However, the calculation uses a Class Size of 148 instead of 135, which would result in an average recovery of $560.  CMO, § H(6) – The release to be given by Aggrieved Employees is inappropriate. (Settlement, ¶ 97.) While an Aggrieved Employee may be barred from asserting a PAGA cause of action based upon the alleged violations, an Aggrieved Employee who ...

Excerpt: ...e Hospital also requests judicial notice of the Statement of Facts Roster of Public Agencies Filings for the District and Articles of Incorporation for the Hospital. These documents may be judicially noticed pursuant to Evid. Code §452(c) because they are public records filed with the Secretary of State. (Cody F. v. Fattetti (2001) 92 Cal. App. 4th 1232, 1236, fn 2.) Finally, the Hospital requests judicial notice of the Audited Combined Financia...

Excerpt: ...19, does not address the concerns of the court which were identified in the minute order for the hearing on August 30, 2019. The court is inclined to grant the motion, but requires the following: 1. Section H.6.a of the CMO requires the release to be limited to “defendants named in the complaint, and their officers, directors, and managing agents.” The present release includes an entity (Amjee, Inc.) that was not named as a defendant. Plainti...

Excerpt: ...e plaintiff shall file a declaration authenticating a "redlined" version of any amended document, showing how the earlier version was modified. Page 2 of 5 Plaintiff shall correct the following: 1. The motion fails to comply with I.1.c of the CMO because the declarations of plaintiffs' attorneys fails to set forth the attorney's estimate of the total amount of damages, monetary penalties or other relief that the class could reasonably...

Excerpt: ... Esparza and that Zakaryan should not be followed because it has been taken up by the California Supreme Court. Further, under Mejia v. Merchants Building Maintenance, LLC (2019) 2019 Cal.App. LEXIS 743 the settlement distribution is improper. The court states: “[t]o the extent that the MBM defendants rely on the premise that ‘[t]he relief for unpaid wages under section 558 is payable 100% to the individual employee' for their contention that...

Excerpt: ...(F). The parties should strike/amend § VI(F).  CMO, § H(3)(d) – While counsel indicates that the flat fee to be charged by Simpluris is $7,500, the Settlement and Notice indicate that the fee will be $9,500. Potter, Decl., ¶¶ 55; Settlement, § IX(A)(1); Notice p. 4 (item 6). Further, while Bui indicates that, based upon estimated costs of $8,574, Simpluris has agreed to a flat fee of $7,500, the written estimate included with the Bui De...

Excerpt: ...s prior to the continued hearing date. Plaintiff shall obtain from defendant a supplemental declaration regarding the financial condition of defendant, with supporting documentation and additional detail, which demonstrates the necessity for a five‐year payment plan. The declarations of plaintiff's Page 2 of 3 counsel and the CEO of the defendant corporation are insufficient. In addition, plaintiff shall correct the following: 1. The declaratio...

Excerpt: ...to what other supervisors knew); Greg Ayon – 8, 18 and 21 (as to other employees); Vincent Ball – 1‐ 3, 6 and 17 (as to other employees); Micaiah Barber – 7, 16 and 19 (as 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 employe...

Excerpt: ...d, Plaintiff argues in its Supplemental Brief that it is the intent of the parties to release only the claims based upon the facts in the Complaint. Notwithstanding the parties' intent, the language is arguably much broader. If the following phrase is excised from the definition of Settled Claims (¶ 27), it would remedy the issue: “and were or could have been alleged as separate claims, causes of action, lawsuits, or other theories of relief.�...

Excerpt: ...ameters set forth in § E(5)(a) of the CMO, as set forth in the court's prior tentative decision.  CMO, § E(2) – While defense counsel indicates that he is unaware of any other class or representative action that asserts claims similar to those in the present case, he does not indicate that he made a reasonable inquiry of other members of his firm.  CMO, § E(5)(a) – the definition of Released Parties in the Settlement (and repeated in...

Excerpt: ...in the LWDA Notice and appears to bind all Aggrieved Employees rather than only Plaintiff and the State of California. The Release also attempts to apply a 1542 Waiver to all unnamed Aggrieved Employees and bar the Aggrieved Employees from suing the Released Parties. It is also not clear whether the enforcement provision applies to the Aggrieved Employees. The motion does not explain why the Aggrieved Employees will not be Page 2 of 2 prejudiced ...

Excerpt: ... named Defendant. Released Parties included GS Motorcars, Inc., Norman Automotive, Inc., Gosch Toyota, and Gosch Towing & Recovery, LLC, which are apparently sister corporations. (Gosch Decl, ¶4.) However, Defendant does not explain why releasing these additional parties is proper. Furthermore, because Parties is defined to include the Aggrieved Employees, the enforcement provision is overly broad as it would subject unnamed Aggrieved Employees ...

Excerpt: ...y, LLC v. Goldman (2011) 51 Cal.4th 811, 821. County has failed to meet its initial burden because it does not prove each element of its breach of contract claim. Although, evidence of a contract has been provided, the County does not address and provides no evidence that it performed its obligations under the Deferral Agreement, or were excused from performance. Further, while County cites to persuasive authority, it fails to set forth the amoun...

Excerpt: ...action in April through August 2014, culminating in a demotion from supervisor to staff psychiatrist. The first amended complaint alleged that as a result of the retaliation, plaintiff went on medical leave for elevated blood pressure due to workplace‐induced stress. Plaintiff also alleged that on October 25, 2015, he sought accommodation in order to return to work, but his request was rejected on October 27, 2015. Defendants argued in their de...

Excerpt: ...d discrimination and is therefore unable to establish a prima facie claim of discrimination.  Second COA (FEHA Harassment): The alleged incidents of harassment were not “sufficiently pervasive” to alter the conditions of Plaintiff's employment and create an abusive working environment.  Third COA (Failure to Prevent Discrimination/Harassment): There can be no failure to prevent discrimination or harassment if there are no successful dis...

Excerpt: ...nts are “true and correct to the best of [his] knowledge” does not comply with CCP § 2015.5. The document demands set forth in the Subpoena seek information concerning Kubski Group, LLC and do not implicate Schmaltz's personal privacy rights. Moreover, to the extent that the demands infringe upon Kubski's limited privacy rights, the discovery's relevance outweighs any limited right of privacy possessed by Kubski. Further, even assuming that ...

Excerpt: ...merely was not satisfied with the terms. (FAC ¶18‐19.) There is no material violation even if no contact was provided since he was provided with the offer. He alleges nothing more such as how there was a violation. Furthermore, Plaintiff has not alleged that foreclosure proceedings have occurred. At this point, there is nothing to enjoin. Plaintiff has not demonstrated he is entitled to the remedy since there is no foreclosure. 2nd Cause of Ac...

Excerpt: ...g the property “as is.” The settlement is for $20,000.00, which is between 20% to 25% of the total amount of damages claimed by Plaintiffs. Carranza contends that Settling Defendants were aware of an inspection report that Arthur had obtained regarding the property four years before it was sold to Plaintiffs, and failed to provide said report to Plaintiffs until after the home was purchased. However, Carranza has failed to cite to any authori...

Excerpt: ...trike First Amended Cross‐Complaint is GRANTED. Although a court may take judicial notice of the existence of each document in a court file, it can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879.) Accordingly, the Court does not take judicial notice of facts asserted in these documents. The Requ...

Excerpt: ...rds him. (Cumming's Deposition, 34:9‐23.) He testifies that he believed the car did this because there was traffic on the eastbound side and the car was trying to get around said traffic. (Id. at 35:2‐9.) Cummings moved into the number 2 lane (from the number 1 lane), but the red car followed him. (Id. at 35:11‐24; 37:1‐25; 38:1‐8.) Cummings then moved back to the number 1 lane. However, he was again followed by the red vehicle. (Id. at...

Excerpt: ...copy of the email message attached to Plaintiff's RFP as Exhibit 2, Mario Burger sent the original email directly to Defendant, who, in turn, forwarded the email to his attorney. Second, the email was in fact produced after Plaintiff filed the present motion, despite Defendant's statement that he did not have possession or control of the email. Based upon those facts, it is clear that Defendant's response to the RFP was patently frivolous (as was...

Excerpt: ...iding need for the County to possess the property prior to the issuance of final judgment, and that County will suffer a substantial hardship if the application is denied or limited; and it has shown that the hardship County will suffer if possession is denied or limited outweighs any hardship on the Defendant that would be caused by the granting of the order of possession. Further, the costs of the property renovations and changes argued in the ...

Excerpt: ...tion 474. Under section 474, for statute of limitations purposes the claims against a defendant added as a Doe defendant relate back to the filing of the original complaint when the identity of the defendant is unknown. The relation‐back provision of section 474 has not been interpreted literally to only apply when the plaintiff is ignorant of the identity of the defendant. Courts have more broadly interpreted the “ignorance” requirement to...

Excerpt: ...Separate Statement only addresses (1) plaintiffs' first cause of action for breach of contract and the nature and amount of the damages suffered, and (2) the issue that defendant had a duty under the policy to pay the losses incurred by plaintiffs. Pursuant to CRC 3.1350, the Court deems those to be the only issues for adjudication. To the extent the motion seeks summary judgment, it is denied based on the procedural deficiency. As to the breach ...

Excerpt: ...ospitalized. (Compl. ¶33.) It then alleges that “[o]n behalf of decedent's estate, the administrator of her estate seeks all damages caused by defendant's negligence ….” (Compl. ¶34.) The Opposition asserts that Diana Garcia is the personal representative but her name is not alleged in the Complaint in this capacity. Nonetheless, the Complaint does allege that this cause of action is being brought by the administrator of the estate. A per...

Excerpt: .... The Title IX investigation had no practical effect until the Regents/UCR acted upon the recommendation in the Final Report. Petitioner's opportunity to challenge the investigation and alleged lack of due process was presented by PPSM‐70. Petitioner identifies no authority that would allow him to forgo exhausting his available administrative remedies and jump directly to a challenge of the underlying investigation. ...

Excerpt: ...ction. LOLZ Based upon the recorded documents and other documents of which the court may take judicial notice, the Trustee under the DOT is Zieve, Brodnax & Steele (“ZBS”) and not LOLZ. Moreover, ZBS has made an appearance in this action as the Trustee (and has filed a Declaration of Nonmonetary Status). Plaintiff does not address the issue in the opposition and appears to concede that LOLZ has been improperly named. Freedom Mortgage Because ...

Excerpt: ...th 462, 470.) The court declines to award a multiplier as requested by plaintiff, given the lack of complexity. The court does not rule on the issue of costs since there is presently pending a motion to strike/tax costs on calendar for hearing on September 6, 2018. ...

Excerpt: ...re OVERRULED; Objection 33 is SUSTAINED. The Motion to Strike the complaint under Code of Civil Procedure section 425.16 filed by defendant is DENIED. The court finds that defendant meets the first prong of the analysis under section 425.16(e)(3)(4) because the statements by defendant were in a public forum regarding a public issue. Plaintiff concedes that defendant meets the first prong of the analysis under section 425.16. Plaintiff meets its b...

Excerpt: ...intly and severally liable for the plaintiff's injury.” Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1040 (emphasis in the original). Here, Twin Power is not alleged to be a joint tortfeasor in the underlying complaint. Indeed, the only claims alleged against Twin Power are the fifth cause of action for intentional interference with prospective economic advantage and the sixth cause of action for enf...

Excerpt: ... FACC fails to identify any basis for an award of attorney fees. See Kirby v. Immoos Fire Protection (2012) 53 Cal. 4th 1244, 1248 (in general, a prevailing party may recover attorney's fees only when a statute or contract provides for fee shifting). With respect to the motion to strike the punitive damages allegations and demand, the motion is moot in light of the ruling to sustain the demurrer to Twin Power's ninth cause of action for fraudulen...

Excerpt: ...istrict's funding. Further, because LAFCO and the District have divergent interests, LAFCO may not adequately represent the District's interests in the litigation. See County of Imperial v. Superior Court (2007) 152 Cal.App.4th 13, 37‐38 (common litigation objective is not enough to establish adequacy of representation where separate public entities may have divergent interests). Moreover, even if intervention were not mandatory, the District m...

Excerpt: ...ntrary to the specific allegations regarding Lowe in the complaint. The battery and false imprisonment that took place all allegedly occurred “while Lowe and ROES 1 through 5 left the team unsupervised, which was in contravention to their duties as they had direct control and supervision responsibilities on behalf of the DISTRICT.” (Complaint, ¶17.) Lowe did not directly take part in the wrongful conduct. As such, he cannot directly be held ...

Excerpt: ... of 3 elevator to get to the ground floor.” Plaintiff also asserts that the failure to warn that the ground floor was under construction, that there was no exist, and that a key card was required, created an unreasonable risk of pedestrian accidents and injuries. (PSS, UMF No. 32.) She asserts that these dangerous conditions contributed to/caused the subject incident. (PSS, UMF Nos. 33, 40.) Plaintiff asserts that under the circumstances, she a...

Excerpt: ...fy a good faith settlement. Furthermore, she does not provide a copy of the Mikhail settlement to confirm that Mikhail actually settled the claims as asserted against her. The stipulation between McShane, Mikhail and Plaintiff regarding the Mikhail's assumption of liability has no bearing on the Pharmacy Defendants' cross‐complaint as it is not binding as to them. ...

Excerpt: ...me, particularly where the receiver would be engaging in the same action – to evict the tenant. There is nothing for a receiver to do at this point. There is no reason to incur the significant expense of a receiver. ...

Excerpt: ...court earlier that a cross‐complaint had been filed. Hence, reconsideration is appropriate. However, upon reconsideration the Motion to Quash is GRANTED. When one weighs the privacy rights of the Tatums against James' need to conduct discovery into claims presented in a cross‐complaint that had been filed by his co‐defendant and that he does not have any interest in, the privacy rights of the Tatums prevail. Without being a party to the cro...

Excerpt: ... of 3 More importantly, the Motion was not supported by declaration containing the information required under Rule 3.1324(b). The Motion is supported by the Declaration of Jessica R. Underwood, who indicates that Plaintiff was deposed on March 16, 2018 and testified as to Hurtado's involvement with the vehicle. However, the declaration does not state that the information was discovered at the deposition or why leave to amend was not sought earlie...

Excerpt: ...s of its sixth cause of action are sufficient to support a defamation cause of action. See Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38‐39 (if the essential facts of some valid cause of action are alleged, the complaint is good against a general demurrer). With regard to the remaining causes of action, the allegations of the Complaint are sufficient for pleading purposes to support the causes of action as alleged agai...

Excerpt: ...vides no basis for application of Gov. C. §815.6. Moreover, as discussed in Hoff vs. Vacaville Unified School District (1998) 19 Cal. 4th 925, 939, Ed. C. §44807 requires teachers to hold pupils to a strict account for their conduct, and does not purport to impose a mandatory duty more broadly on any public entity. Ed. C. §44807 merely imposes a discretionary duty to supervise the conduct of pupils. Nothing in Ed. C. §44807 requires that any ...

Excerpt: ...t belong to them, fraudulently sold it and retained the profits. As stated by the U.S. Supreme Court: Page 2 of 2 [W]hen claims to the property itself are the source of the underlying controversy between the plaintiff and the defendant, it would be unusual for the State where the property is located not to have jurisdiction. In such cases, the defendant's claim to property located in the State would normally indicate that he expected to benef...

Excerpt: ... E.1.b to provide an attorney's estimate of the amount the class “could reasonably be expected to be awarded at trial, taking into account the likelihood of prevailing and other attendant risks.” There is also no estimate of the “recovery by the average class member” if the settlement is approved, as required by Section E.1.c, or the estimated high and low range, in the event that recovery varies. There is also no statement in compliance ...

Excerpt: ...ants Michael Labita and Kent Plank were aware of such practices and either approved, condoned, or ratified such conduct by failing to correct the practices after notification in 2011. There is also a triable issue of material fact as to whether sales distributors are independent contractors or employees. (See Undisputed Material Facts Nos. 5, 10, 12, 20, 20, 28, 24, 73, 75, 80, 90, and plaintiff's Additional Undisputed Material Facts Nos. 141‐1...

Excerpt: ...h PPSM‐70. Petitioner's argument that he is not challenging the termination of his employment but is only challenging the Title IX investigation is unavailing. The Title IX investigation and Final Report do not constitute a final administrative decision upon which a writ of administrative mandate may be issued. See CCP § 1094.5(a); Security Nat. Guar., Inc. v. California Coastal Com'n (2008) 159 Cal.App.4th 402, 415 (CCP § 1094.5 “permits c...

Excerpt: ... and Darryl Clare. Defendants failed to show that the filing of the cross‐complaint against such parties would be in the interest of justice. (CCP § 428.50(c).) ...

Excerpt: ...rty to the first cause of action for cancellation of instruments. BANA has never had an interest in the Note and DOT and is not a successor to any instrument that Plaintiff seeks to cancel. See Miller & Starr, Cal. Real Estate (4th Ed. 2016), § 40:113; Lord v. Luse (1931) 214 Cal. 10, 11; Consolidated Concessions Co. v. McConnell (1919) 40 Cal.App. 443, 444‐45. Moreover, the entire basis for Plaintiff's cancellation claim – that Plaintiff's ...

Excerpt: ... Impac Funding's evidentiary objections are OVERRULED as immaterial. The Motion for Summary Judgment is GRANTED. Impac Funding meets its initial burden to demonstrate that Plaintiff's Loan was not table funded, and Plaintiff fails to raise a triable issue of fact as to whether the sale of his Loan was anything but a bona fide transaction. More importantly, even assuming that the Loan was part of a table‐funded transaction, there is no authority...

Excerpt: ...r § 2923.5(e)(1), but also that Plaintiff responded to Lewis's correspondence. Further, the factual basis for Plaintiff's contract‐based claims (second and third causes of action) is entirely inaccurate and ignores the salient provisions of the Note. Contrary to Plaintiff's argument, Lewis did not accelerate Plaintiff's loan; rather, as evidenced by the Notice, the loan fully matured and the final balloon payment had come due. Plaintiff's four...

Excerpt: ... was corrected and clarified. (Dec.Dossey, ¶21, Exs. Page 3 of 3 “12”, “13”.) The parties have engaged in extensive meet and confer efforts, which led to Plaintiff correcting its responses. No discovery abuse has been established. As to the sanctions for Plaintiff's erroneous responses to RFAs. The statute contemplates having to prove the truth at trial, or in a dispositive motion for summary judgment. Neither situation has occurred here...

Excerpt: ..., even assuming that Autry could revoke or be entitled to a refund of her charitable donation (i.e., the $5,000), Plaintiffs offer no explanation as to how the banking records would demonstrate that her particular donation was misdirected or why Plaintiffs should be entitled to discover the personal banking information for Louise and Gentile. Lastly, Plaintiffs offer no explanation as to how the banking records will demonstrate the extent of dama...

Excerpt: ...nt's position that Mr. Garcia's deposition should not go forward until he is properly served with an appropriate subpoena is reasonable. In the absence of a subpoena, Mr. Garcia has no obligation to respond to Defendant's document demands, and in the absence of a voluntary production, Defendant would be forced to serve a subpoena and potentially move to compel a response to its demands (and possibly a further deposition). Moreover, the proposed d...

Excerpt: ...able claim to ownership of stock in the corporation. She provides no corporate governing documents, no stock certificates, no corporate minutes. As defendant notes, the plaintiff in a shareholder derivative action must own stock throughout all relevant time periods. Corp. Code §800(b); Grosset v. Wenaas (2008) 42 Cal.4th 1100, 1119. Furthermore it is unclear that this is appropriately brought as a shareholder derivative action. To the extent tha...

Excerpt: ...alleged personal loans were part of the prior litigation and regardless of whether some portion of Vega's claims may be barred, a general demurrer does not lie to only a part of a cause of action. See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167. Further, the doctrine of judicial estoppel is inapplicable, as Vega was not successful in asserting his allegedly inconsistent position in the prior action. See Aguilar v...

Excerpt: ...ight of the significant number of administrative claims pending, the notice should expressly advise/warn those with administrative claims pending that if they wish to continue their administrative claim, they must exclude themselves from this class action and/or that if they do not exclude themselves they will lose the right to pursue their administrative claim. Plaintiffs shall submit a new proposed order with the revised forms attached and with...

Excerpt: ...issues in the case. Further, Plaintiff has asserted a basis for deposing the MERS PMK. Plaintiff alleges the loan resulted from an illegal transaction in which Sea Breeze misrepresented it was the lender when the actual lender was the unlicensed Impac. Plaintiff asserts that this allegation leads to two issues: (1) that MERS was not identified as a beneficiary in violation of California law (10 CCR §1406(b)); and (2) who owns the loan and contra...

Excerpt: ...lass of persons is made up by all licensed EMTs in the state. It potentially could be even a larger class of persons including all professionally licensed employees. While only a small number of EMTs are disciplined through the administrative hearing process each year, the benefit is available to all licensed EMTs. Cullen incurred significant attorneys' fees in vindicating this important right, and he had no financial gain in pursuing writ relief...

Excerpt: ...il 24, 2018 at 8:30am in Department 6. The defendants who filed the demurrer and motion to strike are ordered to meet and confer with the plaintiffs who filed the complaint for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the demurrer and motion to strike. As part of the meet and confer process, the defendants shall identify all of the specific causes of action that they believe are su...

Excerpt: ...ect to a criminal proceeding; the privilege against self‐incrimination is personal to an individual criminal defendant and does not apply to co‐defendants in a civil action. See Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886‐87. Further, an evaluation of the factors set forth in Avant! Corp. does not favor a stay: (1) Plaintiffs have a strong interest in proceeding expeditiously; (2) any threatened infringement on the privile...

Excerpt: ...demarks on the part of defendant John Suhr. As to the 2nd and 3rd causes of action, the court rejects the argument that abuse of control and corporate waste cannot be asserted as separate breaches of fiduciary duty. As to the 5th cause of action, the FAC adequately states the basis for irreparable harm to support an injunction claim. Plaintiff alleges that defendant John Suhr has claimed ownership of the trademarks, has sought to license the trad...

Excerpt: ... through illusory modification proposals in order to charge exorbitant processing and late fees. (FAC, ¶73.) This allegation arguably constitutes an unfair business practice. Although many of the other allegations are unclear or improper, Plaintiff has stated a cause of action based on this allegation. Although, Nationstar argues that Plaintiff does not have standing to bring a UCL cause of action because he was granted a loan modification and n...

Excerpt: ... leave to amend. Plaintiffs plead ultimate facts to support their fourth and fifth cause of action for negligence and products liability. See CCP § 425.10; Doe v. City of Los Angeles (2007) 42 Cal.4th 53, 550; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. However, the sixth cause of action for breach of warranties fails because there is no allegation that Corona sold the allegedly defective Tire to Decedent or Plain...

Excerpt: ...s GRANTED. Defendant has established that the acts that form the basis of Plaintiff's complaint were taken in furtherance of Conkwright's right to petition. Therefore, the burden shifts to Plaintiff to establish a probability of prevailing on the merits. Malicious Prosecution: First, Bosco appears to argue that the malicious prosecution applies to Conkwright's claims against Camarena by arguing that Conkwright shot at Camarena knowing that he was...

Excerpt: ...the new client. California Rules of Professional Conduct, rule 3‐310(E). Plaintiff fails to indicate what this prior lawsuit was about and does not provide evidence that Mr. Larkin obtained any confidential information. Since there is no evidence to support a showing of conflict, this argument is not persuasive. Further, Plaintiff has failed to provide evidence that Mr. Larkin has intimidated or harassed witnesses. His declaration contains conc...

Excerpt: ...ting sanctions nor issue/evidentiary sanctions under CCP § 2023.030(b)‐(c) are warranted. While there is no question that Defendants have been remiss in timely complying with the court's discovery orders, Defendants have taken steps toward full compliance by agreeing to a third‐ party vendor to extract the ESI, although the actual data extraction must still take place. Moreover, while Plaintiff may have been inconvenienced by Defendants' tar...

Excerpt: ...lead a viable theory as to why the sale is void. As such, Plaintiffs have not alleged any facts to get around the presumption of Civil Code §2924(c) ...

Excerpt: ... to the FDCPA is when a person collects a debt due to another if the debt was not in default when it was obtained. (15 USC §1692a(6)(F)(iii).) Plaintiffs do not plead when they were in default. According to the recorded documents, Defendant obtained the assignment on 3/29/16. Thus, there Page 3 of 3 are no allegations that Plaintiffs were in default at the time Defendant obtained the interest (assuming it was transferred to another). 2 nd Cause ...

Excerpt: ... leave to amend. Plaintiffs plead ultimate facts to support their fourth and fifth cause of action for negligence and products liability. See CCP § 425.10; Doe v. City of Los Angeles (2007) 42 Cal.4th 53, 550; C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872. However, the sixth cause of action for breach of warranties fails because there is no allegation that Corona sold the allegedly defective Tire to Decedent or Plain...

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Excerpt: ... to eject Plaintiff from the property without first resolving whether Plaintiff is entitled to specific performance of the agreement between the parties, which would moot the unlawful detainer issues. Defendant contends that Plaintiff cannot prevail as her case is barred by the statute of limitations. However, Plaintiff has presented evidence that she continues to pay Defendant $780 a month. Further, Defendant admits there is no time for performa...

Excerpt: ...endants. While NJP performed services for the benefit of defendant James Bradley, its written contract was with Kenner & Greenfield. To the extent that Bradley agreed to pay the costs of NJP's services, his agreement was with Kenner & Greenfield. With respect to PPI, it cannot be determined from the allegations of the FAC whether the alleged contract was oral or in writing, nor can it be determined whether the alleged contract was between PPI and...

Excerpt: ...d.” Penal Code § 11165.12(b). Child abuse and neglect is defined to include “physical injury or death inflicted by other than accidental means upon a child by another person,” which includes “the willful harming or injuring of a child or the endangering of the person or health of a child.” Penal Code § 11165.6. The willful harming of a child “means a situation in which any person willfully causes or permits any child to suffer, or i...

Excerpt: ...s. Exchange (1991) 231 Cal.App.3d 481, 487.) Despite initial noncompliance with the court order, Plaintiff has since produced verified responses and paid monetary sanctions. ...

Excerpt: ...ake judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgment. (Ramsden v. Western Union (1977) 71 Cal. App. 3d 873, 879). Defendants request for judicial notice of the DOT, Substitution of Trustee, Notice of Default and Notice of Trustee's Sale is GRANTED. The Demurrer is SUSTAINED with 20 days leave to amend. 1 st Cause of Action: Although Plaintiff alleges violations of HB...

Excerpt: ...dants concede the items listed on Exhibit C were “personal items left behind in the warehouse” that did not belong to Hageman, they never admitted that all of the items listed on Exhibit C belong to Plaintiff. In fact, Plaintiff concedes in the Complaint that her parents also stored personal items at the warehouse for which they sued the Koll Company. (Complaint, ¶¶ 13, 18.) Plaintiff failed to establish ownership or right to possession of ...

Excerpt: ...305, where the Court denied a C.C.P. §664.6 motion because the statutory prerequisites were not met since all parties on both sides of the agreement had not personally signed it. In Harris, the Court noted that C.C.P. §664.6 did not contemplate enforcement against the “party to be charged” – here Ramos ‐ as Plaintiff suggests in the motion. In addition, according to the language of the statute, any written settlement agreement outside o...

Excerpt: ...NED with 20 days leave to amend as to District as to the 1st, 2nd, 4th, 5th and 6th causes of action as Plaintiffs fail to state the statutory basis of liability. The general demurrer is SUSTAINED with 20 days leave to amend as to Merlo and Nunez as there are no factual allegations as to them other than their positions and that they were on notice of Plaintiff Azucena's medical history. The general demurrer is OVERRULED as to Phillips. The “dem...

Excerpt: ...ndant Chandi and Defendant Limonite, Plaintiff installed” the equipment and provided employee training. (Compl. ¶10.) On its face, the Complaint clearly alleges that Plaintiff was dealing directly with Limonite, the property owner. Further, the Complaint alleges that it is a limited liability company. (Compl. ¶1.) Plaintiff alleges it “specializes in servicing and installing commercial car wash equipment, chemicals and related accessories f...

Excerpt: ...wer, cannot exceed that demanded in the complaint, in the statement required by Section 425.11, or in the statement provided for by Section 425.115; but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles.” Ba...

Excerpt: ...uous acts. The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court's power to punish.” In re Gould (1961) 195 Cal.App.2d 172, 175. An order to show cause is issued by the court, after the initiating of an affidavit stating the facts constituting the contempt is presented to the court and then a hearing must be held. Arthur v. Superior Court (1965) 62 Cal.2d 404, 407‐408. The...

Excerpt: ...on because Plaintiff fails to plead an actual, present controversy. ...

Excerpt: ... court order was willful. However, the request for monetary sanctions is GRANTED in the amount of $150.00. The objections to Mr. Torres' declaration as to paragraphs 4, 5, 6, 7 and 12‐18 are OVERRULED. The objections are SUSTAINED as to the exhibits referenced in Page 2 of 4 paragraphs 9 and 10, but not to the actual testimony portions of these paragraphs. The objection is SUSTAINED as to paragraph 11. All objections to Carol C. Ignacio's decla...

Excerpt: ...unconscionability. Sanchez v. Valencia Holding Co, LLC (2015) 61 Cal.4th 899, 915. Further, the DRA's unilateral requirement that Plaintiff first submit her disputes to DMSI's internal grievance procedures and that any written demand for arbitration first be sent to DMSI's Human Resources Vice President render the DRA substantively unconscionable. See Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1282‐83. See also Pokorny v. Qu...