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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ... 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...