Excerpt: ...third motion for preliminary approval of class action settlement. Here, plaintiffs submit a supplemental brief and their counsel's declaration in response to the court's ruling of November 18, 2019, denying their second motion without prejudice. 1. Enhancement Award to Class Representative The court has re-reviewed the May 23, 2019 declarations of representative plaintiffs and now agrees with plaintiffs as to the amount of hours the representativ...

Excerpt: ...for common counts is defective because plaintiff failed to allege whether the underlying contract is written, oral, or implied as required by Civil Procedure section 430.10(g). However, the essential elements of a common count are (1) statement of indebtedness in a certain sum; (2) consideration for the indebtedness; and (3) nonpayment. When these elements are plead in the complaint, the complaint cannot be challenged by general or special demurr...

Excerpt: ... Gregory, Donald D. Gregory, Paul C. Richter, III, and Clara O. Richter's (collectively defendants) property (0.45 acres) for a highway improvement project on State Route 137 at State Route 99 in the City of Tulare. The property is leased and improved with a single building that houses a warehouse and offices. In opposition, defendants assert the taking will create a hardship by potentially causing their lessee to terminate the lease as a result ...

Excerpt: ...dant Visalia Unified School District (VUSD). On demurrer, VUSD asserts plaintiff's FEHA claims are defective for failure to exhaust administrative remedies, failure to allege adequate adverse employment action, and failure to show harassment. A demurrer can only be used to challenge defects that appear on the face of the complaint or from matters properly judicially noticed. In Saxer v. Philip Morris, Inc. (1975) 54 Cal. App. 3d 7, 18, the court ...

Excerpt: ...ion for preliminary approval of class action settlement. Here, plaintiffs submit their counsel Edwin Aiwazian's declaration in response to the court's ruling of June 17, 2019, denying their first motion without prejudice. 1. Sufficiency of Amount of Settlement ($1,300,000.00) Plaintiffs have now provided estimates of the total value of each of their claims and submitted the damages models used for their causes of action. The damages models appear...

Excerpt: ...esponse to the motion has been filed. Defendant Kaweah Delta Health Care District's (Kaweah) request for judicial notice is granted. Plaintiff Alma Tapia's complaint for malpractice and wrongful death alleges Kaweah acted negligently by failing to properly diagnose plaintiff's daughter with medical conditions, including an embolism, that caused her death. On summary judgment and adjudication, Kaweah contends plaintiff's complaint is barred becaus...

Excerpt: ...)). It may be an abuse of discretion to grant relief under Code of Civil Procedure Section 473 where there is unexplained delay of over three months before moving for relief. Huh v. Wang (2008) 158 Cal.App.4th 1406, 1421 n.4. Here, default was entered in this case on December 5, 2018, and the present motion was not filed until September 17, 2019. The six month requirement was not met. As such, the motion is untimely. Additionally, on the merits, ...

Excerpt: ...ion Settlement; and (3) Setting Hearing for Final Approval without prejudice. 1. Sufficiency of Amount of Settlement ($300,000.00) Insufficient information has been submitted as to the basis for the court to make the merits evaluation required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 129. Plaintiff needs to provide specific factual information concerning the discussions between plaintiff and counsel, time records that w...

Excerpt: ...rchase of a new 2012 Dodge Ram vehicle in April 2013. On demurrer, defendant FCA US LLC (FCA) contends the second cause of action for breach of implied warranty is time-barred and the fourth cause of action for fraudulent inducement- concealment is precluded by the economic loss rule. The court agrees. As to breach of implied warranty, a claim accrues when the breach occurs regardless of a party's knowledge. (Com. Code § 2725(b).) The statute of...

Excerpt: ...e with reference to the public policies underlying PAGA. (O'Connor v. Uber Technols., Inc. (2016) 201 F.Supp.3d 1110, 1113.) Plaintiff claims the gross settlement amount of $270,000.00 is fair and reasonable for the 1,140 employees who worked during the PAGA period (June 18, 2017 to date of approval of settlement). But, there is no estimate of the total value of their asserted wage and hour claims and the basis for the estimate. Plaintiff needs t...

Excerpt: ...uest for judicial notice is granted. Plaintiffs Albert V. Tayo and Mavelin E. Tayo's (collectively plaintiffs) complaint for violations of the California Homeowners' Bill of Rights seeks to prevent Bank from pursuing non-judicial foreclosure of a lien against their property. Bank's motion for judgment on the pleadings asserts all of plaintiffs' claims fail as pled. As noted by Bank, a motion for judgment on the pleadings is properly granted if th...

Excerpt: ...the file indicates notice of the demurrer was adequate. No response to the demurrer has been filed. Defendant Nick Pritchett contends plaintiff Mane Arax's first amended complaint for fraud fails to state a cause of action because plaintiff failed to obtain an order permitting a cause of action for conspiracy against Pritchett as required by Civil Code section 1714.10. Here, the amended complaint alleges Pritchett and his and co-defendants, “jo...

Excerpt: ...ly, motion to strike contends plaintiff Roberto Tellez cannot recover premium pay pursuant to Labor Code section 226.7 as part of his cause of action under California's Unfair Competition Law (UCL). This case has been pending for over three years; the original complaint was filed in March 2016. The second amended complaint was filed more than a year ago and parties reached a stipulation on defendant's request to strike portions of the UCL cause o...

Excerpt: ...nia Insurance Company, and Applied Risk Services, Inc.'s Demurrer to Plaintiff's Amended Complaint. Plaintiff Picar Farm Labor, Inc.'s amended complaint alleges defendants Applied Underwriters, Inc., Applied Underwriters Captive Risk Assurance Company, Inc., California Insurance Company, and Applied Risk Services, Inc. (collectively defendants) fraudulently induced plaintiff to sign the parties' settlement agreement and included charges in defend...

Excerpt: ...pproval of Class Action Settlement, Conditional Certification of Settlement Class, Approval of Class Notice Package, Approval of Plaintiff's Payment, Appointment of Class Counsel and Settlement Administrator, and Setting of Final Approval Hearing. 1. Sufficiency of Amount of Settlement ($420,000) Insufficient information has been submitted as to the basis for the court to make the merits evaluation required by Kullar v. Foot Locker Retail, Inc. (...

Excerpt: ...d (2) to grant Defendants Chicago Title Company and Bertha Juarez's Motion to Strike Plaintiff's Complaint as to Punitive Damages Allegations with leave to amend. Proof of service in the file indicates notice of the demurrer and motion to strike was adequate. No opposition to the demurrer or motion to strike has been filed. Plaintiff Jonathan Ledesma's complaint against defendant escrow holder Chicago Title Company and defendant escrow agent Bert...

Excerpt: ...ns of the Third Amended Complaint (Erroneously Entitled “Second” Amended Complaint); (5) Defendant Jose Romo's Demurrer to the Revised Third Amended Complaint; and (6) Defendant Jose Romo's Motion to Strike Portions of the Revised Third Amended Complaint Tentative Rulings: (1) To sustain Defendants Allstate Insurance Company and Joe Mabee's Demurrer to Third Amended Complaint without leave to amend; (2) to grant Defendants Allstate Insurance ...

Excerpt: ...or Summary Adjudication, in part Defendants Domingo Sustaita, Villa Park Trucking, Inc., and Young's Commercial Transfer, Inc. (collectively defendants) seek summary judgment of decedent Bonifaco Magana's heirs' (collectively plaintiffs) complaint on grounds that Sustaita allegedly did not breach a duty of care to decedent or plaintiffs. Alternatively, defendants request summary adjudication of plaintiffs' claims for negligent entrustment, hiring...

Excerpt: ...surance Company, and Applied Risk Services, Inc.'s Demurrer to Plaintiff's Complaint with leave to amend as to the first cause of action for fraudulent inducement and without leave to amend as to the second cause of action for tortious breach of the implied covenant of good faith and fair dealing. Plaintiff Picar Farm Labor, Inc.'s complaint alleges defendants Applied Underwriters, Inc., Applied Underwriters Captive Risk Assurance Company, Inc., ...

Excerpt: ...ed. Defendants seek to amend their answer to add an affirmative defense of offset for amounts they claim are due and owing for legal services provided to plaintiffs Michael P. Owens and Melanie D. Owens (collectively plaintiffs.) Plaintiffs claim the amendment should be denied as untimely and prejudicial. Courts are bound to apply a policy of great liberality in permitting amendments to pleadings “at any time stage of the proceedings up to and ...

Excerpt: ... Civil Procedure section 1255.410, plaintiff has sufficiently shown it is entitled to take the subject property by eminent domain and has deposited the statutorily determined amount of compensation. Plaintiff has also shown an urgent need for the property within the meaning of section 1255.410(c) and that it is entitled to an order for possession based on lack of timely opposition to the motion under section 1255.410(d). Accordingly, for good cau...

Excerpt: ...rvenor Nolberto Apodaca brings this motion under Code of Civil Procedure section 387(d)(1)(A) and, alternatively under section 387(a) as an employee having the unconditional right to intervene in his employer's workers' compensation insurer's subrogation action under Labor Code section 3853. Apodaca has sufficiently shown he is entitled to intervene under the circumstances of this case and that his application is timely filed. Accordingly, the ap...

Excerpt: ... the motion has been filed with the court. Here, cross-defendant David E. Godfrey dba HCD Construction (HCD) seeks orders (1) determining the settlement it reached with defendant McMillin Homes Construction, Inc., et al. (McMillin) for payment of $3000.00 by HCD's insurance carriers to McMillin in exchange for dismissal of this case was entered into in good faith; and (2) prohibiting other joint tortfeasors from pursing any claim for indemnity ag...

Excerpt: ...clusive jurisdiction over this matter. Plaintiffs assert their claims for breach of express contract are not, as a matter of law, unfair labor practices under Government Code sections 3500 et seq. and subject to PERB jurisdiction. The court agrees. PERB has exclusive jurisdiction over disputes which “arguably” constitute unfair labor practice claims. (Personnel Com. V. Barstow Unified School Dist. (1996) 43 Cal.App.4th 871, 885-886.) However,...

Excerpt: ...iff Reyna Wilkinson's requests for judicial notice are granted. Plaintiff's first amended complaint for malpractice against her former lawyer and law firm alleges defendants improperly failed to file a lawsuit against Thomas C. Brodersen, the attorney for the personal representative of plaintiff's mother's estate; left her case in an “impaired condition” causing her to settle for an inadequate amount when represented by successor counsel; and...