Excerpt: ...ll become clear, the Court will rule on the Motion to Strike first. PROCEDURAL HISTORY Plaintiff Terrance Marcel Jones's ("Plaintiff") original Complaint as filed on October 26, 2018 pleaded five causes of action: assault and battery, intentional infliction of emotional distress, negligence, premises liability, and negligent hiring and supervision. Only the fourth cause of action was pleaded against Defendants, and only in the sense that the four...

Excerpt: ... absent class members. The Court CONFIRMS its Order of December 18, 2018 certifying a class for settlement purposes. The Court APPROVES the Settlement Agreement. The Court has considered (1) the relative strength of Plaintiffs' case; (2) the high risk, expense, complexity, and likely duration of further litigation of this dispute; (3) the high risk of maintaining class status through trial; (4) the relatively generous amount offered in settlement...

Excerpt: ...ishes this case from Stull v. Sparrow (2001) 92 Cal.App.4th 860, 865-868. Defendant did not show that she had a "reasonable ground to believe that [she] would prevail on the matter" when she should have known that her defense theory against those elements was based upon a flawed expert opinion not admissible at trial. (Code Civ. Proc., § 2033.420(b)(3); see Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 637-638.) However, Plaintiff did not ...

Excerpt: ...acts sufficient to constitute a cause of action is SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Plaintiff must plead the first cause of action with more specificity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Plaintiff "must plead every fact which is essential to the cause of action under the statute." (Baskin v. Hughes Realty, Inc. (2018) 25 Cal.App.5th 184, 207.) Again, Plaintiff has not adequately all...

Excerpt: ...o constitute a cause of action are SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) As the federal district court previously recognized in deciding an earlier motion to dismiss in this action, a high workload in and of itself is not a viable theory of coercive deprivation of meal and rest breaks. (Morales v. Amazon.com, LLC (C.D. Cal., July 30, 2018, No. 2:17-CV-1981-ODW- JEM) 2018 WL 3636888, at *2.) And in California courts, statu...

Excerpt: ...rs when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) Although "there is a strong public policy favoring the settlement of litigation, this policy does not excuse a contractual clause that is otherwise illegal or unjust." (Timney v. Lin (2003) 106 Cal.App.4th 1121, 1127.) The Court must ensure the settlement is not "contrary to law or to public policy." (Consumer Adv...

Excerpt: ...ant final approval of the terms of the Settlement Agreement and the incentive awards, but requires further information before it can approve the attorney's fees requested. The Court has a "fiduciary responsibility as guardian[] of the rights of the absentee class members when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal.App.5th 635, 646.) The Court notes that Plaintiff's counsel seeks...

Excerpt: ...ction against defendants Cold Storage Manufacturing ("CSM") and Cold Storage Design & Build, Inc. ("CSDB") (collectively, "Defendants"). Plaintiff seek certification of a class defined as follows: "All nonexempt construction employees, including panel installers, refrigeration installers, electricians, plumbers, welders, and shop employees, excluding Crew Leaders, employed by Defendants at any time from July 8, 2011 to the present." GENERAL STAND...

Excerpt: ...o. RG17872872: Bay Valley Foods, LLC, CVS Pharmacy, Inc., and Costco Wholesale Corporation Case No. RG17881931: Kellogg USA, Inc., Kellogg Sales Company, and Safeway, Inc. Case No. RG17886808: Sunsweet Growers, Inc., and Safeway, Inc. Defendants seek to stay fact discovery by plaintiff Center for Environmental Health ("Plaintiff") in their respective actions until the Court enters liability-phase rulings in Case Nos. RG16838609, RG17851469, RG178...

Excerpt: ...d that Reeder is a party to an agreement with nonparty Reign Real Estate Services, Inc. ("RRES"). Cross-Defendants did not show that they are nonsignatories with standing to enforce RRES's arbitration agreement with Cross-Plaintiff. (Fuentes v. TMCSF, Inc. (2018) 26 Cal.App.5th 541, 547.) Cross-Defendants' Motion for Judgment on the Pleadings is GRANTED WITH LEAVE TO AMEND as to all causes of action. (Code Civ. Proc., § 438(c)(1)(B)(ii).) Cross-...

Excerpt: ...o. RG17872872: Bay Valley Foods, LLC, CVS Pharmacy, Inc., and Costco Wholesale Corporation Case No. RG17881931: Kellogg USA, Inc., Kellogg Sales Company, and Safeway, Inc. Case No. RG17886808: Sunsweet Growers, Inc., and Safeway, Inc. Defendants seek to stay fact discovery by plaintiff Center for Environmental Health ("Plaintiff") in their respective actions until the Court enters liability-phase rulings in Case Nos. RG16838609, RG17851469, RG178...

Excerpt: ...ssault, battery, intentional infliction of emotional distress, and negligence are all SUSTAINED WITHOUT LEAVE TO AMEND. (Code Civ. Proc. § 430.10(e).) Plaintiff's FAC seeks to hold Defendants liable for obtaining temporary restraining orders (TROs) against nonparty Julie Ann McCullough and Plaintiff. The gravamen of Plaintiff's FAC is that in the course of providing legal services, Defendants negligently failed to discover the true facts of Juli...

Excerpt: ...o based snack foods" without a clear and reasonable warning as required by Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986. (Compl. ¶ 1 at 1.) Plaintiff now seeks judicial approval of a proposed settlement and consent judgment with Defendant. The Court has a duty in reviewing "Proposition 65 settlement[s] brought by a private plaintiff . . . to safeguard the rights of the public." (Consumer Advocacy Group, Inc. v. Kinte...

Excerpt: ...tcome in Ellison. ELLISON V. AUTOZONE, INC. Defendant has not established that the rule of comity should be applied to stay this action pending the outcome of Ellison. The rule of comity "is merely discretionary when applied to a potential conflict between state and federal courts." (Sumitomo Bank v. Davis (1992) 4 Cal.App.4th 1306, 1312.) Federal courts "do not apply their comity rule of priority to proceedings in personam." (Gregg v. Superior C...

Excerpt: ...rance of the evidence that plaintiff Dolly Rizvi ("Plaintiff") is a party to a valid, enforceable, and irrevocable agreement to arbitrate the claims at issue in this action under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (Rosenthal, 14 Cal.4th at 413.) Although MMV's managing member has candidly confessed that he cannot find a copy of the Employee Understanding Disclosure signed by Plaintiff, the facts described are sufficient to establi...

Excerpt: ..."), alleges that he was injured by an autistic client on November 14, 2016 in Room 33 at Skyline Senior High School ("Skyline"). Defendants allegedly failed to provide additional staff to protect other special education students present in Room 33 while he was working one-to-one with his assigned client. When the client became emotionally agitated, Plaintiff was allegedly forced to divide his attention between protecting other students and de-esc...

Excerpt: ...t. Plaintiff prevailed by obtaining a default judgment together with an award of attorney's fees. Plaintiff's further request for fees were incurred in protecting and enforcing the judgment. (See Code Civ. Proc. § 685.040; see also Jaffe v. Pacelli (2008) 165 Cal.App.4th 927, 938.) The Court will, however, reduce the fee award. First, the 28 hours of claimed time is unreasonably high in light of the actual complexity of the issues that were tend...

Excerpt: ... Plaintiff filed its operative form Complaint on July 31, 2018, in which it pleaded common counts for open book account and account stated against defendant Kathy Zitani ("Defendant"), and prayed for damages in the amount of $7,458.38. Plaintiff made a prima facie showing that on some unspecified prior date, Defendant applied for and obtained a credit card account with Plaintiff ending in account number 6927 ("the Account"). (Stmt. of Undis. Mtr....

Excerpt: ..."Defendant"). At this time, the Court is generally prepared to grant final approval of the terms of the Settlement Agreement and the incentive awards, but requires further information before it can approve the attorney's fees requested. The Court has a "fiduciary responsibility as guardian[] of the rights of the absentee class members when deciding whether to approve a settlement agreement." (Duran v. Obesity Research Institute, LLC (2016) 1 Cal....

Excerpt: ...e to the Labor and Workforce Development Agency ("LWDA") of the "facts and theories" supporting their allegations of Defendants' alleged Labor Code violations. (Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 835-838 [citing Lab. Code § 2699.3(a)(1)(A)].) Adequate notice to LWDA is a mandatory prerequisite to a Private Attorneys General Act of 2004 ("PAGA") action. (Id.) Plaintiffs' claims are all distinguishable from the sole conclusory ...

Excerpt: ...ght an ex parte application to shorten time. It is a violation of due process to grant a motion against a party who did not receive timely and adequate notice in the manner prescribed by law. (See Jones v. Otero (1984) 156 Cal.App.3d 754, 757.) Defendant and Cross-Complainant Tamara Taylor Reeder correctly objected to Eichman's error on May 13, 2019. Eichman's May 16, 2019 amended notice did not sufficiently cure the error because it was served a...

Excerpt: ...n limine ruling deprived her of a potential comparative fault defense. At trial, the jury found that Plaintiff proved Defendant was negligent in an accident with Plaintiff on the afternoon of June 10, 2016, and that her negligence was a substantial factor in causing injuries to Plaintiff. At the time of the accident, Plaintiff was riding a bicycle eastbound on Gilman Street in Berkeley, California. He was not wearing a bicycle helmet. Defendant w...

Excerpt: ...y deponents (the "third parties" or "deponents") on or around March 22, 2019, as follows: 1. Everbank.com c/o Everbank Wealth Management for records of Ariel Feingold 2. Fremont Bank for records of Vivian Meade 3. Homestreet Bank for records of Alison Roberts 4. Homestreet Bank for records of Corynne Condon 5. Old Republic Title Company for records of Corynne Condon 6. Old Republic Title Company for records of Ariel Feingold 7. Old Republic Title...

Excerpt: ...s v. Marin (2000) 80 Cal.App.4th 380, 386-387.) "The purpose of section 474 is to enable a plaintiff to avoid the bar of the statute of limitations when he [or she] is ignorant of the identity of the defendant." (Id.) Section 474 allows a plaintiff to file a Doe amendment that relates back to the timely filing of the operative complaint. (Id.) If the statute of limitations had not already run as of the date the Doe amendment was filed, then secti...

Excerpt: ...y, "Defendants") request for reimbursement of reasonable out-of-pocket travel expenses associated with Plaintiffs' cancellation of the April 25, 2019 mediation is GRANTED. For the purpose of determining the exact amount of such reimbursement, the hearing on this Motion is CONTINUED to 9:00 a.m. on June 18, 2019 in Department 16, as further explained below. Since the parties and attorneys in this action are so widely dispersed geographically and i...