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: ...claration from the general counsel of National Concessions Group, Inc. averring to the fact that Open Vape is a trademark it licenses to third parties, not an independent corporate entity. It therefore argues that it cannot be found liable under Proposition 65. A motion for judgment "performs the same function as a general demurrer[] and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed...

Excerpt: ...gs at any time 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 Civ. Proc. § 576; see also Code of Civ. Proc. § 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 rig...

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...

Excerpt: ...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 1217, 1227.) For the Court ...

Excerpt: ...eeport Water Authority, the City of Sacramento, the City of Roseville, and the City of Rio Vista. Plaintiffs simultaneously move for summary judgment on many of the affirmative defenses jointly asserted by each of the Individual Defendants and Defendant Balfour Beatty Infrastructure, Inc. ("BBII"). These motions present many arguments and legal issues already discussed and resolved in the Court's Order of November 2, 2020, resolving an earlier se...

Excerpt: ...'s Order of November 2, 2020, which granted summary adjudication to Plaintiffs, reveals a new reason for intervention. As part of that Order, the Court construed California Code of Regulations, Title 8, Section 230.1, as it was in effect before 2009. The Court concluded, based on the plain language of that provision, that a public contractor could only take advantage of that section's safe-harbor provision if it requested sufficient apprentices i...

Excerpt: ...r waive their right to appear at the final approval hearing. The Court will not order that absent class members, most of whom may be unrepresented by counsel, waive their rights to appear by failing to properly file and serve a detailed written statement. The settlement agreement and proposed notice to class members should reflect that a failure to submit a written objection does not waive a class member's right to orally object at the final appr...

Excerpt: ...January 15, 2021 but has not answered the Complaint or otherwise appeared in this litigation. The Court will not approve a settlement when its personal jurisdiction over a settling defendant is not clearly established. Jurisdiction is fundamental to the Court's ability to make factual findings that a proposed class settlement is fair, reasonable, or adequate. The Court will therefore await Jointek's joinder to the case before making those finding...

Excerpt: ...ms will be dismissed without prejudice. The Court's task is to evaluate the proposed settlement under PAGA. PAGA actions are similar to qui tam proceedings in that plaintiffs seek civil penalties that would otherwise be recoverable by the LWDA. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382.) Plaintiff cannot bring "individual" claims under PAGA; they may only bring the action on behalf of themselves and all other agg...

Excerpt: ...ons are the basis for this action, in which Black seeks civil penalties on behalf of the State under the Labor Code Private Attorneys General Act of 2004 ("PAGA") (Lab. Code §§ 2698 et seq.). Plaintiff sought a preliminary injunction from this Court to enjoin the proceedings in arbitration. On July 7, 2020, before that motion came for hearing, Defendants voluntarily dismissed their arbitration demand without prejudice. After the dismissal, Blac...

Excerpt: ... should only recover its costs from Defendant pro rata according to its share of fault or its proportion of Plaintiffs' total recovery, the motion is also denied. Plaintiffs asserted and proved liability against defendants as joint and several tortfeasors and Plaintiffs' investigation of all potential sources of exposure was reasonably necessary to investigate and rebut Metalclad's defense of comparative fault. Plaintiffs' opposition to other par...

Excerpt: ...class certification. The Court denied class treatment because the Plaintiffs' motion argued that the Court should certify a class to litigate issues in support of a theory of liability that it had already held deficient on demurrer. The Court's order was without prejudice to a later motion "to certify issues that would support a finding of liability under the operative complaint." On November 13, 2020, Plaintiffs filed a notice of appeal seeking ...

Excerpt: ...ved by the violative employment policies. AHS argues, in demurrer, that Plaintiff may not recover civil penalties from it because, as a public agency, it is not a "person" subject to suit under PAGA. AHS also argues that it is subject to the underlying Labor Code provisions Plaintiff seeks to enforce for the second through eighth causes of action. Plaintiff opposes in part. In her opposition, Plaintiff stated that she "voluntarily dismisses witho...

Excerpt: ..., 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 defendant moves for summary judgmen...

Excerpt: ... contending in this action that increases in student enrollment-above the amount studied for environmental impacts in 2005 to support the adoption of UC's 2020 Long-Range Development Plan-are not a part of the project at issue in this action under the California Environmental Quality Act. This Court can allow amendments to the pleadings at any time during proceedings, including during trial, as long as the amendment is "in the furtherance of just...

Excerpt: ... from sharing them with anyone except the recipient parties' counsel, their retained or consulting experts, persons who created or authored the materials, the Court, Court staff, and court reporters. Although the Defendants' proposed order includes "the parties in this Action" as a class of persons who would be permitted to review Highly Confidential materials. (See Defs.' Proposed Order Ex. 1 at p.11, ¶ 8.e.) The Court understands this to be a ...

Excerpt: ...roduction and Interrogatories. While defense counsel claims he never received these requests, plaintiff's proposed Case Management Statement, emailed to defendant on February 9, 2020, noted the requests and defendant's failure to respond. Ex. 2 to Burton decs. This Statement was filed by plaintiff on February 11, 2020. Plaintiff followed up on this with a meet and confer letter regarding the discovery on February 24, 2020 (Ex.3 to Burton decs.), ...

Excerpt: ...roduction and Interrogatories. While defense counsel claims he never received these requests, plaintiff's proposed Case Management Statement, emailed to defendant on February 9, 2020, noted the requests and defendant's failure to respond. Ex. 2 to Burton decs. This Statement was filed by plaintiff on February 11, 2020. Plaintiff followed up on this with a meet and confer letter regarding the discovery on February 24, 2020 (Ex.3 to Burton decs.), ...

Excerpt: ...acinone, like many other pesticides, may cause toxic effects on non-target species, including in target species' natural predators. RATS argues that DPR violated the California Environmental Quality Act ("CEQA") by appropriately studying the environmental effects of its decision. DPR opposes. Registrant Interest Scimetrics Ltd. Corp., Wilco Distributors, Inc., and Ensystex II, Inc. also oppose as real parties in interest. Intervenors Croplife Ame...

Excerpt: ...demurrer is OVERRULED. The motion to strike is GRANTED WITH LEAVE TO AMEND. 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 interpretation, reading it ...

Excerpt: ... class action and PAGA case was initially filed on November 29, 2018, asserting claims that are alleged to reach back to November 2014 under an applicable statute of limitations. The original plaintiff apparently lost interest in the case, so a Second Amended Complaint (SAC) was filed adding a new plaintiff (Gilmore), who, while asserting the same claims, ceased employment with defendant in 2016. (SAC paragraph 41). The original plaintiff filed a...

Excerpt: ...ttached as Exhibit A to the Declaration of Tijana M. Brien filed August 25, 2020 and also attached as Exhibit U to the Declaration of Tijana M. Brien filed July 22, 2020 (hereafter "Exhibit A/U"). The Court finds that Exhibit M contains a list of investors in Adamas, which constitutes confidential financial information protected by both Adamas' and the investors' rights of privacy, which are overriding interests that support restricting public ac...

Excerpt: ...s recorded. (CCP § 405.30.) The Court must order a lis pendens expunged if it finds either (1) that the claimant does not have a real property claim (CCP §§ 405.4, 405.31) or (2) that the claimant has not "established by a preponderance of the evidence the probable validity of the real property claim." (CCP § 405.32.) A real property claim is any cause of action that, if meritorious, would "affect (a) title to, or the right to possession of, ...

Excerpt: ...ns, at any time during proceedings, including during trial, as long as the amendment is "in the furtherance of justice." (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 parties." (McGuan v. Endov...

Excerpt: ...rd King, and Mardi C. Dier) filed papers in opposition, which the three Underwriter Defendants (Merrill Lynch,Pierce, Fenner & Smith Inc., Leerink Partners LLC, and Evercore Group L.L.C.) request to join. The request for joinder is GRANTED as unopposed, and for reasons discussed further below, the motion is GRANTED. LEGAL STANDARDS Class certification in California state courts is governed by Code of Civil Procedure ("CCP") Section 382. A Court h...

Excerpt: ...Complaints on identical grounds. It argues that both Plaintiffs lack standing, either personal or associational, to assert claims under the Unfair Competition Law ("UCL") (Bus. & Prof. Code §§ 17200, et seq.). It argues that the Court should abstain from adjudicating this case under the doctrine of primary jurisdiction. It also argues that the relief requested by Plaintiffs is improper under the UCL. For the reasons discussed below, the demurre...