Excerpt: ... necessary and does not accept their assumption that F/ETCA would not have vigorously defended the Settlement Agreement and Protective Agreement. Even if a party meets the criteria for an award of attorney fees under CCP section 1021.5, the court may deny fees as against a litigant “who did nothing to adversely affect the public interest.” (Save Our Heritage Organisation v. City of San Diego (2017) 11 Cal.App.5th 154, 160‐161.) Even assumin...

Excerpt: ...based on plaintiff's failure to timely exhaust his administrative remedies is sustained. Plaintiff argues in his opposition that he is entitled to the application of either equitable tolling or equitable estoppel to extend the time for exhaustion of remedies, but there are no facts pled in the complaint to support those arguments. Plaintiff is granted 20 days' leave to amend. In addition, the demurrer to the first and fifth causes of action for f...

Excerpt: ...s purpose, because it ‘would impose a barrier on such actions that the state law enforcement agency does not fact when it litigates those cases itself.” (See also, Jordan v. NCI Group, Inc. (C.D. Cal., Mar. 22, 2017, No. EDCV161701JVSSPX) 2017 WL 1821122, at *3‐4.) [“[T]o hold a PAGA action cannot be maintained because individual assessments regarding whether a violation occurred would make the claim unmanageable at trial would obliterate...

Excerpt: ...make no mention of that. If parties intend to pursue release of FLSA claim, provide authority that the act of cashing a check is sufficient to conclude that the person opted in, particularly where there is no FLSA claim actually alleged. There is no definition of workweek or qualifying workweek. Does it include partial weeks? Counsel's declaration regarding the value of each claim if successful at trial and the reasonable likely recovery for each...

Excerpt: ...ering sending only a shortform notice to class members and requiring class members to obtain a long‐form notice from the administrator. If the Court is satisfied there is a reason for only sending a short‐form notice, that notice must clearly advise the class members of any dates by which they must act, such as filing an objection or seeking exclusion. The Court doesn't understand why notice to be sent to class members needs to be in English ...

Excerpt: ...nc. (2014) 231 Cal.App.4th 471, 505], the Individual Settlement in the present case is part and parcel to the settlement and abandonment of the PAGA cause of action. Under Lab. Code § 2699(l)(2), the court is required to review and approve any settlement of a PAGA claim. Because Plaintiffs took on a special responsibility by including a representative PAGA cause of action in their respective complaints, they owe a duty to other aggrieved employe...

Excerpt: ...f identifying class members. (Sotelo v. Medianews Group Inc. (2012) 207 Cal.App.4th 639, 648). To establish that a proposed class is ascertainable, the class definition must be precise, objective and presently ascertainable. (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 858). “Class certification is properly denied for lack of ascertainability when the proposed definition is overbroad and the plaintiff offers no ...

Excerpt: ...lement Agreement (“SA”), one settlement check is being provided to Plaintiff in the amount of $5,200, which represents “claimed penalties.” (Dec.Rose, Ex. “A”, SA, ¶2.(4).) Plaintiff Page 3 of 3 assessed Labor Code penalties other than PAGA at $0 [wage statement penalties; waiting time penalties], and Plaintiff's other claims seek premium pay, reimbursement, or restitution. So, what specific claims are being settled in the $5,200 che...

Excerpt: ...se (Judicial Council form CM‐200) ON 6/24/20, in violation of H.2 of the CMO. The Notice of Settlement of Entire Case is ordered stricken and the hearing on 4/15/21 vacated. 2. The declaration of Kevin Mahoney fails to comply with H.3a.iii.D of the CMO. 3. The declaration Kevin Mahoney fails to comply with H.3.iv of the CMO by providing an estimate of the high and low range of possible recoveries. 4. The declaration of Kevin Mahoney does not co...

Excerpt: ...he CMO. The court has considered and rejected defendant's request to expand the release to include parent companies and the officers and directors of those companies. Other than speculation that such companies and individuals may be exposed to liability, there is no citation to California authority, or a reference to a factual circumstance in this action, which would hold the parent companies, or its officers and directors, responsible for the La...

Excerpt: ...administrator regarding the administrator's experience; the fee, whether the fee is fixed, hourly, or fixed with a cap; and how the fee was calculated. Abigail Schwartz of Rust Consulting submits a declaration, who indicates that the cost is estimated at $8,743. She does not state whether the fee is fixed, hourly or fixed with a cap. It appears however, to be based on an hourly rate, but it is unclear. ¶H.3.e requires the release to be limited t...

Excerpt: ...s. (Code Civ. Proc., § 1010.6(a)(4).) The notice should have been served no later than 9/29/20, presuming the parties had a valid agreement to serve by email. (Ibid.) Also, the declaration of Christopher Olsen was rejected by the clerk on 10/1/20, and was not filed until 10/15/20. Further, the Proof of Service indicates there was a declaration of Fessenden served with the motion, but no such declaration was filed with the court. Regardless if de...

Excerpt: ...he states the fee “will not exceed” the sum of $8,250.00, which implies that it could be less. Lawrence's attached breakdown of the costs (Exhibit B) also indicates the amount “will not exceed” the sum of $8,250.00, again implying the amount could go down. The various documents identifying the costs—the Notice in particular and the proposed Order—need to identify the fee as either “fixed” (as it appears to be) or that it will not ...

Excerpt: ...h any additional facts in the SAC to support his causes of action. In any event, regardless of whether there are material questions of fact regarding Bayview's alleged violations of Civ. Code §§ 2923.6 and 2923.7, Defendants fall within the safe harbor provision of Civ. Code § 2924.12(c), which provides, in relevant part, that “[a] mortgage servicer [or] mortgagee … shall not be liable for any violation that it has corrected and remedied p...

Excerpt: ...dicial notice of plaintiff's bankruptcy proceedings. While those records show that the trustee abandoned any interest in the real property that is the subject of this proceeding, the bankruptcy records do not show the trustee abandoned any cause of action that arose prior to the plaintiff's filing of bankruptcy. Causes of action are among the legal or equitable interests that are part of the bankruptcy estate. (Turner v. Cook (2004) 362 F.3d 1219...

Excerpt: ...ithholding any documents other than the incident report. As to the incident report, the court sustains defendant's attorney client privilege objection and orders that it is not required to produce said document. As to the specific requests, the Court rules as follows: Denied as to nos. 36, 40, and 41 as Plaintiff fails to demonstrate good cause. Denied as to no. 44 as it is overbroad. For all others, granted in part to require Defendant to provid...

Excerpt: ...rt and before two different judges. The parties need to obtain an order consolidating the two cases or, alternatively, an order allowing Mr. Greene to be added to this case and an order dismissing RIC 1703773. The second amended complaint in this matter discusses freight and prep fees. Mr. Greene's complaint generically discusses undisclosed fees charged. The proposed notice discusses improper freight, dealer preparation, manufacturers installed ...

Excerpt: ...of action. The undisputed facts show that plaintiff was compensated for all time worked while clocked in, which, when combined with the Hospital's relevant policies, gives rise to a presumption that he was compensated for all work. Plaintiff's evidence, although it shows that he worked off‐the‐clock and that defendant could have known that he did so, is insufficient to create a triable issue of fact that defendant actually knew or should have...

Excerpt: ...deficiencies. • CMO, ¶ H(3)(a)(4) –Although counsel indicates that the amount received by individual Class Members will vary, he does not provide an estimate of the range – the high and low – of possible recoveries, as required by this paragraph of the CMO. • CMO, ¶ H(3)(a)(5) – Counsel indicates that the parties engaged in informal discovery and that a Belaire notice was circulated to potential Class Members. This lacks sufficient ...

Excerpt: ...ill be allocated as between plaintiff and counsel), or why the PAGA penalties are being settled for $20,000. If plaintiff is intending to dismiss the class claims, court approval is required and plaintiff has not complied with CMO Section F. Additionally, while the CMO is geared predominantly towards class claims and contemplates a settlement of the class claims along with the PAGA claim rather than dismissal of the class claims, the Court notes ...

Excerpt: ...e police or causing the police to be called were false or reckless statements that did not accord with the facts. Mr. Rivera's credibility was put in issue on several accounts. However, the court finds that the future non‐economic damages award of $250,000 is wholly speculative and the result of passion. It lacks any degree of certainty because we are several years past the incident and Mr. Davis has regained his right to bear a gun and he migh...

Excerpt: ...ng the PAGA claims is also somewhat vague as counsel does not define the PAGA period or number of employees employed during the period. Although Class Counsel indicates that Defendants are unlikely to be able to pay a greater amount, he does not describe Defendants' financial condition. The extent of discovery is also not clear since Counsel does not indicate the size of the sample used to calculate the potential recovery. Amount of the GSA appea...

Excerpt: ... was a Patient Admitting Specialist from April 2018 to December 2018. (Compl. ¶8.) While the parties in both actions worked at the same facility, it is not clear that they had the same general job duties. While Lopez and Montano may potentially be members of the class alleged in Williams at some point, no class has been certified and there is no indication as to when any class may be certified. In fact, Williams was only filed approximately a mo...

Excerpt: ... not initially designated. (Id.) Plaintiff retained Christopher Spandau, P.E., G.E., the Director of HKA with over 40 years' experience in civil, environmental, geotechnical engineering and construction management issues. (Dec.Filicia ¶1.) Plaintiff asserts: Mr. Spandau has agreed to testify and is expected to testify at trial about his observations, field measurements, testing conducted at the Subject Property, and findings during multiple insp...

Excerpt: ...ement of which requires court approval.” As such, this motion appears to a motion for reconsideration or a renewal motion. C.C.P. § 1008(a) and (b). Both such motions require new or different facts, circumstances, or law to support their motion. Id. This requirement has not been met. Additionally, the timing requirement for a motion for reconsideration has not been met. Id. at 1008(a). Furthermore, even if the Court does not see this as a moti...