Excerpt: ...ld file a Second Amended Complaint but did not prior to the demurrer hearing. The Court granted additional time to do so and set timelines for filing and set a demurr er hearing date . On April 3, 2024, the Court expressed puzzlement that no opposition to the demurrer to the Second Amended Complaint was filed. Plaintiffs' counsel said she believed she could submit on her original opposition. Defense counsel and the Court thought the dire ctions w...

Excerpt: ...d facts asserting the following : Defendant was issued a credit card account. (UF 1, 3.) Defendant agreed to be bound by the terms and conditions set forth in the Cardmember Agreement. (UF 2.) Aft e r re ce iving the cre dit card, t he account was charge d for various goods, se rvice s, or cash adv ances. (UF 3.) Plaintiff complied with its obligations under the Agreement by paying vendors for all charges that were made on Defendant's account. ( ...

Excerpt: ...r o p e r . Th e c la s s is s u f f ic ie n t ly n u m e r o u s , c o n s is t in g o f o ve r 2 ,6 0 0 in d iv id u a ls , a n d it is a s c e r t a in a b le b y r e f e r e n c e t o Defendant's personnel and payroll records. Also, Plaintiffs are adequate class representativ es, as their claims do not conflict with and are not antagonistic to the claims of other class members. Plaintiffs' claims are also typical and arise from the same emplo...

Excerpt: ... s h o w in g t h a t a t r ia b le is s u e o f m a t e r ia l fact exists. [ Aguilar v. Atlantic Richfield Co. , supra , 25 Cal.4th at 850; see also La w Office s of Dixon R. Howe ll v. Va lle y (2005) 129 Cal.App.4th 1076, 1092. This case comes down to one simple question: Does Plaintiff have standing to bring this wrongful death claim and the associated negligence claim? In this case, Plaintiff and the decedent in a fatal vehicle collision in...

Excerpt: ...arious wage and hour claims, including meal and rest period violations, minimum and overtime wage violations, wage -statement violations, failure to timely pay wages during employment and at t e r m in a t io n , f a ilure to maintain accurate wage statements, failure to reimburse business expenses, failure to disclose material terms at the time of hire, a UCL claim and a claim for PAGA penalties. The subject class consists of current and forme r...

Excerpt: ...m . The original complaint contained allegations that there were written agreements via email. The new complaint describes the agreement as oral with supporting emails, which are not attached. Counsel is bound by the prior allegation that this is a w r it t e n a g r eement. ( Deveny v. Entropin, Inc . (2006) 139 Cal.App. 4 th 408.) Thus, the terms of the written agreement must be included in the complaint . There is no pleading of what the actua...

Excerpt: ...n d CO N TIN U ED in p a r t a s follows. a) P la in t if f 's m o t io n is GRANTED in part, DENIED in part and CONTINUED in part as follows. Th e Co u r t D EN IES Plaintiff's request for terminating sanctions at t h is t im e . However, the Court hereby O RD ERS Defendant to comply with its November 22, 2023, order compelling responses to the Plaintiff's Requests for Ad m is s io n o n o r b e f o r e Ap r il 1 6 , 2 0 2 4 , o r f a c e t e r ...

Excerpt: ...leged statutory and civil penalties concern various wage and hour claims, including meal and rest period violations, minimum and overtime wage violations, wage -statement violations, failure to timely pay wages during employment and at t e r m in a t io n , f a ilure to maintain accurate wage statements, failure to reimburse business expenses, failure to disclose material terms at the time of hire, a UCL claim and a claim for PAGA penalties. The ...

Excerpt: ...s t a g e , d is p o s it ive . P la in t if f 's complaint engages in what some courts call “shotgun pleading,” in which the specific actions of each defendant are poorly defined. Determining the potential lia b ilit y o f M EB Loan Trust VI and Specialized Loan Servicing requires some additional detail to assist the parties and the Court. The failure to outline which Defendants are liable under which theories is untenable . Whether lack of ...

Excerpt: ...a).) Therefore, Defendant is entitled to an order compelling Plaintiff to provide answers, without obj ection, to the subject discovery within 30 days. (Co d e Civ. Proc. § 2030.290(b). ) The Court further finds that Defendant is entitled to an award of monetary sanctions in connection with this motion. (Code Civ. Proc. § 2030.290(c), 2023.010(d), 2023.030(a); Cal. Rules of Ct., rule 3.1348(a).) Therefore, monetary sanctions in the amount o f $...

Excerpt: ...k that requires a contractor's license pursuant to Bu s . & P ro f. Co d e § 7 0 2 6 . Th e re fo re, Plaintiff, as an unlicensed contractor, is precluded from seeking recovery in law or equity for compensation under the alleged agreement. (Bus & Prof. Code § 7031(a).) Further, as it appears Plaintiff is unable to demonstrate the required licensure, the Court finds that leave to amend would be futile under the circumstances and is, therefore, d...

Excerpt: ...rgument that this Court is divested of jurisdiction for a contempt proceeding. Petitioner's citation to Albrecht v. Superior Court (1982) 132 Cal.App.3d 612 appears reasonable, and Defendant's citations do not appear to be directly on point. It does not appear to the Court that the rules of Code Civ. Proc. § 664.6 – which do require the Court to retain jurisdiction – apply in this matter. The Court notes that any express retention of jurisdi...

Excerpt: ... The Court understands the circumstances surrounding the filings, but cannot view the failure to timely file the separate statement as the sort of error the Court has the jurisdiction to overlook, as Plaintiff suggests. The separate statement is a necessary part of the motion (Rule of Court 3.1345. ) P la in t if f c it e s Mills v. U.S. Ba n k (2008) 166 Cal.App. 4 th 871, 893 for the proposition that a separate statement does not require that t...

Excerpt: ...claration: 9. SUSTAINED as to relevance. Objections to Klapper declaration: 10. SU STAIN ED . 11. O VERRU LED . Defendant's motion fails due to an insufficient separate statement. A moving party on summary judgment bears the initial burden of product ion to make a p r im a fa c ie showing that there are no triable issues of material fact. [Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826]. If the moving party carries this burden, it causes...

Excerpt: ...d as required by the Court's order granting preliminary approv a l. Having considered the unopposed motions herein and the supporting declarations and evidence, the Court finds that the settlement was entered into good faith, is fair, reasonable and adequate, and satisfies the standards for final approval under Califo r n ia la w . (Civ il Co d e §1 7 8 1 ; Co d e Civ . Proc. §382; Cal. Rules of Ct., rule 3.769.) The motion indicates that the n...

Excerpt: ...pute in this case is whether an offset is warranted. The fees listed appear to be due to the City of Patterson under the terms of the agreement. The City is acting as a pass-through for the funds, but appears to exercise control over tho se funds and thus the parties are not the same despite the pass-through arrangement . The Court is also unconvinced that the current amount allegedly owed by Plaintiff is probably valid. Defendant refers to porti...

Excerpt: ...interim. Plaintiff's actions delayed this case without good cause to do so, and counsel is cautioned that the Court has an affirmative obligation to ensure cases are completed timely and to prevent recurrences in the future. This paragraph is designed to achieve that objective . The Court tends to agree with Plaintiff that the phraseology in the Notice of Motion is not ideal, but it does make clear that there is a challenge to the dangerous condi...

Excerpt: ...r im a r y is s u e s r a is e d in t h e first de murre r . First Cause of Act ion: Bre ach of Cont ract . At the pleading stage, the Court d e c lin e s t o f in d t h a t in t e g r a t io n o f t h e t e r m s in t h e e m a ils is n e c e s s a r ily v o id . Whether a collateral agreement is intended to be a part of the bargain is based on the totality of t he circumstance s. ( Ma st erson v. Sine (1968) 68 Cal.2d 222). Defendant argues tha...

Excerpt: ...Construction LLC dba Solgen Electric. She discussed this with them in November, 2022. She received a loan from WebBank, obtained via an electronic lending platform operated by Solar Mosaic LLC to pay for the solar roofing, on recommendation of Solgen. Plaintiff alleges she signed a contract on December 2, 2022, the same day she was provided the contract, in her First Amended Complaint. In her declaration opposing this motion, she says she was ask...

Excerpt: ... separate statements, and the contnuance is intended to allow Defendant to submit a supplemental opposition responding to the same by the opposition deadline as calculated from the continued hearing date. The Court does not view the failure to timely submit a separate statement as merely procedural; separate statements give the Court and the other party necessary information. The Court anticipates the issues will be narrowed prior to the hearing ...

Excerpt: ...e to the First Amended Complaint as a whole. Most of these arguments have either been made, or were available to be made against the initial complaint. The appearance of an amended complaint does not resuscitate rights to a demurrer which have been otherwise forfeited. Uncertainty A demurrer for uncertainty should be sustained only where the pleading is so unintelligible that the defendant cannot reasonably respond. (See Khoury v. Maly's of Calif...

Excerpt: ...quests. Counsel is cautioned that such combined motions are disfawred and will be rejected when submitted for filing in the future. At the hearing on this matter, the Court is inclined to continue all of the discovery motons set through the end of this month and in February to February 29, 2024 at 9:30 a.m. and may require personal appearances by counsel. At that hearing, the Court might appoint a discovery referee. The Court is dissatisfied with...

Excerpt: ...nder in Defendants Jacob Zensen/Sweep-Rite INC.'S Motion for Protective Order, and Defendant Issac Villareal JR.'S Joinder in Motion for Sanctions and Appointment of Discovery Referee - HEARING REQUIRED. a-c) HEARING REQUIRED. The Court intends to designate this as a complex case. At the hearing on this matter, the Court is inclined to continue all of the motions set throughout February to Wednesday February 21, 2024 at 1:30 p.m. and require pers...

Excerpt: ...Petitioner personally asserts that "l also believe that the ALJ was biased against me because she did not consider any of my evidence, but just accepted everything the accusers said." PROCEDURAL SUMMARY Petitioner operates a day care with one regular long-term employee, Kelly Buttram. Respondent intended to revoke her day care license, and a hearing was held in front of Administrative Law Judge Karen Reichmann on June 21 and June 22 of 2023. Judg...

Excerpt: ...nes and limitations should be placed? The Court will not continue this case again. Plaintiff gives a more substantially complete recitation of the procedural history. Defense expert Dr. Pereira examined Plaintiff on January 14, 2022 and issued a report on January 26, 2022, asserting expertise on Chronic Regional Pain Syndrome (CRPS) and asserting that Plaintiff likely did not suffer this condition. Plaintiff's expert, Dr. Ol_aughlin, examined Pla...