Excerpt: ...spute lies within the scope of the agreement to arbitrate. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960; see 9 U.S.C. § 4 ["If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof."].) If the party seeking arbitration makes a prima facie evidentiary showing of an agreement to arbitrate, "the trial court 'sits as a trier o...

Excerpt: ...rike certain allegations regarding prior proceedings against former parties to this lawsuit and allegations regarding the basis for venue in this county. Barker opposes both the demurrer and motion to strike. LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also ...

Excerpt: ...t of up to $16,666 (33%), costs of up to $3,000, a service award of $5,000 for the class representative, a net PAGA payment of $750, and settlement administration costs of up to $2,500. After these expenses of approximately $28,000, the class would get $22,000. The average payout per class members would be $850. The proposed class notice form and procedure are adequate. There were no objections and one opt out. The proposed class is appropriate f...

Excerpt: ...allowing amendments to pleadings after notice to adverse party].) This Court should be "liberal in allowing the amendment of pleadings at any stage of the proceedings where the amendment does not cause prejudice to the rights of other parties." (McGuan v. Endovascular Technologies, Inc. (2010) 182 Cal.App.4th 974, 987.) Leave to amend should be granted unless there is "unwarranted delay" in seeking amendment or "prejudice to the adverse party." (...

Excerpt: ... comply. While many services offered by Big O vary across franchises, the free inspection is invariable. On information and belief, each of the 22 points is likewise invariable across franchises." (par. 11.) On the other hand, the proposed complaint also alleges that "The multipoint inspection required by TBC can be more than 22 points." (par. 13.) A motion to reconsider a demurrer without leave to amend may be made if a proposed amended complain...

Excerpt: ...e during proceedings, including during trial, as long as the amendment is "in the furtherance of justice, and upon such terms as may be proper." (Code of Civil Procedure ["CCP"] § 576; see also CCP § 473(a)(1) [allowing amendments to pleadings after notice to adverse party].) This Court should be "liberal in allowing the amendment of pleadings at any stage of the proceedings where the amendment does not cause prejudice to the rights of other pa...

Excerpt: ...ode, §§ 2698 et seq.) Lainez opposes both the demurrer and the motion to strike. DEMURRER - LEGAL STANDARDS The standard for construing a complaint on demurrer is long-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpret...

Excerpt: ...("SAC") alleges wage and hour violations on behalf of herself and a parent class of "all individuals who are or were employed by Defendant as non-exempt employees in California during the Class Period" of February 5, 2017, to present, as well as a subclass of all non-exempt employees who were not subject to a collective bargaining agreement ("CBA") with Defendant during the Class Period ("Non-Union Subclass"). (SAC, ¶ 2-3.) The class action clai...

Excerpt: ...ther, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) Summary judgment is proper only when "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civil Procedure ["CCP"] § 437c(c).) When a defe...

Excerpt: ...ood faith has the effect of discharging the settling defendants' obligations to any remaining defendants in contribution or equitable indemnity. (See CCP § 877.6(a), (c).) The burden of proof lies with the party asserting that the settlement is not in good faith. (CCP § 877.6(d).) A settlement is in "good faith" if it is within the "reasonable range"-that is, "within the ballpark"-of the settling tortfeasor's share of liability for the plaintif...

Excerpt: ...emedies Act (CLRA) (Civ. Code, § 1750 et seq.). In particular, Plaintiff's Third Amended Complaint ("TAC") alleges that the label for Rite Aid's "Infants' Fever Reducer & Pain Reliever" ("Infants' Product") is designed to create a false impression that the higher-priced Infants' Product is specially formulated for infants and pharmacologically distinct from Rite Aid's "Children's Fever Reducer & Pain Reliever" ("Children's Product"), when in fac...

Excerpt: ...or Court Case No. RG17862495, by failing to install suitable seats at the front-end cash registers of its California stores. The FAC also alleges that Defendants' breaches of the Smiles agreement constitute subsequent violations of Wage Order 7-2001 § 14. Previously, Defendant filed a writ petition arguing that the Court abused its discretion by denying Defendant's peremptory challenge under Code of Civil Procedure section 170.6. Plaintiffs asse...

Excerpt: ...aw. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) For the Court t...

Excerpt: ...7c(a)(1).) "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages . ...

Excerpt: ...performed on Plaintiff's vehicle. Defendants earlier demurrer was granted with leave to amend. Plaintiff's Second Amended Complaint is challenged by both defendants again. First Amended Complaint The First Amended Complaint ("FAC") alleged the following facts: On August 23, 2018, Plaintiff took his vehicle to MEI's Big O Tires service station to "get a flat tire on his car fixed." (FAC ¶ 15.) Although Plaintiff never asked for or consented to an...

Excerpt: ...parties submitted a revised settlement agreement and class notice on April 14, 2021. The parties also filed a declaration regarding S&F's financial condition conditionally under seal and also now move to seal that record on grounds of financial privacy. CHANGES TO MOTION FOR PRELIMINARY APPROVAL The Court's concerns regarding participation by absent class members at the final approval hearing have been addressed by the notice and agreement's prov...

Excerpt: ... deadline is currently set for July 30, 2021. The trial is set to begin in January 2022. Plaintiff now moves for leave to file a Third Amended Complaint to add US eDirect, Inc. ("US eDirect") as a defendant. US eDirect was a subcontractor to Defendants as part of Defendants' larger contract with the California Department of Parks and Recreation ("DPR"). The principal role of US eDirect was to develop ReserveCalifornia.com and testing the website ...

Excerpt: ...dmitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The court notes that both sides cite federal pleadings cases. Such cases apply federal ...

Excerpt: ... clause is void and unenforceable. SICHI opposes. The motion is DENIED. LEGAL STANDARDS The purpose of summary adjudication procedures is to allow this Court to "cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 220, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 84...

Excerpt: ...gateway" questions: (1) whether the parties had agreed to arbitrate disputes, per the usual rules of contract law, and (2) whether the parties' current dispute lies within the scope of the agreement to arbitrate. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 960; see 9 U.S.C. § 4 ["If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the tri...

Excerpt: ...s or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th...

Excerpt: ...sumes that claims based on denial of meal and rest breaks, and perhaps for denial of overtime or off the clock compensation, and derivative wage statement claims are encompassed by the motion. As I explain below, however, there are sizeable gaps between these presumed claims and the evidentiary support for class certification. At best, plaintiff offers admissible evidence that he himself may have been subject to wage and hour violations, but fail...

Excerpt: ...n Co. filed motions to contest that determination. LEGAL STANDARDS Under Code of Civil Procedure section 877.6, a Court's finding that a settlement between a claimant and one or more joint tortfeasors or co-obligors was entered in good faith has the effect of discharging the settling defendants' obligations to any remaining defendants in contribution or equitable indemnity. (See Code Civ. Proc. § 877.6(a), (c).) The burden of proof lies with the...

Excerpt: ...-settled: "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) "Liberality in permitting amendment is the rule, i...

Excerpt: ... subject to Labor Code section 2783(d)(1), which applies the test enunciated in S.G. Borello & Sons (1989) 48 Cal.3d 341 for determining employee status. That section was part of an overhaul of wage and hour statutes following the Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 decision, which applied a less restrictive test to determining employee status. Section 2783 applies the less restrictive Dynamex test to many occupat...