Excerpt: ...g Defendants were personally served as Doe Defendants on October 16, 2022. (Exh. 1 to Skaf Decl.) The Demurrer would have been due 30 days thereafter, i.e., on November 15, 2022. (Code Civ. Proc., §430.30.) But Defendants obtained a 30‐day extension to file a response. (Campo Decl. at ¶¶4‐ 5, Exh. B.) That would extend the deadline to December 15, 2022. The Demurrer was filed the day before. And the fact Plaintiff misunderstood the 30‐da...

Excerpt: ... 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the...

Excerpt: ...ment Professionals, Landair Logistics, Inc., Covenant Transport, Inc., and Gustavo Bravo. Defendant Express moves to compel arbitration. Defendants Landair and Covenant join. Plaintiff Carrasco opposes. Defendant Express replies. DISCUSSIONS Statement of the Law Federal. The Federal Arbitration Act (“FAA”) [9 U.S.C. §1, et. seq.] authorizes enforcement of arbitration clauses unless grounds exist in law or equity for the revocation of any con...

Excerpt: ...gainst the plaintiff. (Code Civ. Proc., §§426.10, subd. (c), 426.30, subd. (a).) A related cause of action means a cause of action that “arises out of the same transaction, occurrence, or series of transactions or occurrence” as the complaint. (Code Civ. Proc., §426.10, subd. (c).) Furthermore, a cause of action arises out of the “same transaction or occurrence” if the factual or legal issues are logically related. (Currie Medical Spec...

Excerpt: ...llegedly required by statute and Caltrans' internal policies. Petitioner alleges that Caltrans purchased approximately five acres of land as part of an I‐210 freeway development project. Due to design changes for the freeway, the land remains unused and vacant. On April 1, 2017, Caltrans and Petitioner entered into a two‐year lease for Petitioner to use the land for Caltrans‐related work. Through later lease amendments, Petitioner continues...

Excerpt: ... Complaint, and First Amended Complaint. (See, Declaration of Torey Joseph Favarote (“Favarote Decl.”), ¶¶ 2‐8.) On July 7, 2022, Defendant filed this Motion to Set Aside Default. A motion to set aside a default may be brought pursuant to either Code of Civil Procedure section 473, subdivision (b), or section 473.5. A court has broad discretion to vacate a default or default judgment. This discretion, however, can only be exercised if the...

Excerpt: ... same arbitration agreement. Counsel, therefore, are directed to the court's tentative ruling in Martinez. In this case, however, plaintiffs argue that the agreement is unconscionable. Unconscionability is the absence of meaningful choice on the part of one of the parties together with contract terms, which are unreasonably favorable to the other party. (Allan v. Snow Summit (1996) 51 Cal.App.4th 1358, 1376.) Unconscionability has procedural and ...

Excerpt: ...e step process for determining whether an arbitration agreement exists: (1) the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy by either attaching a copy of the arbitration agreement with the opposing party's signature or by setting forth the terms of the agreement in the motion; (2) the opposing party bears the burden of producing evidence to challenge the authenticity of the a...

Excerpt: ...337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedi...

Excerpt: ...rt has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the expe...

Excerpt: ...w violations, deter future ones, and to maximize enforcement of state labor laws.” (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77.) The court must find that the plaintiff “has adequately represented the state's interests, and hence the public interest.” (Id. at p.89.) The LWDA must be notified of the settlement and be given an opportunity to object. The court may looks to parallel class action guidelines to determine what is “fai...

Excerpt: ... PAGA claims were not subject to arbitration under any circumstances. (See e.g. Iskanian v. CLS Transp. Los Angeles LLC (2014) 59 Cal.4th 348.) In Viking River, however, the Court held, contrary to Iskanian, that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “non‐individual” components. In the Viking River lexicon, an “individual” PAGA claim is one based on Lab...

Excerpt: ...nd reasonable.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 126; Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of the plaintiffs' case, the risk, the expense, complexity and likely duration of further litigatio...

Excerpt: ...or Court; and (4) the unpublished Court of Appeal Opinion in Rosenstiel v. Alpha Beta Gamma Trust. The Court GRANTS the unopposed requests. The Court also takes sua sponte notice that individual Plaintiff Eric Scott Rosensteil is named on the Judicial Council's Vexatious Litigant List. Thus, Mr. Rosensteil will be subject to a pre‐filing ORDER that prohibits him from filing any new litigation in pro per without first obtaining permission from t...

Excerpt: ...337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedi...

Excerpt: ... same arbitration agreement. Counsel, therefore, are directed to the court's tentative ruling in Martinez. In this case, however, plaintiffs argue that the agreement is unconscionable. Unconscionability is the absence of meaningful choice on the part of one of the parties together with contract terms, which are unreasonably favorable to the other party. (Allan v. Snow Summit (1996) 51 Cal.App.4th 1358, 1376.) Unconscionability has procedural and ...

Excerpt: ... v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 126; Reed v. United Teachers Los Angeles 1 The unilateral insertion of new class representatives into the pleading caption sheet is improper without some sort of amendment. (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the s...

Excerpt: ...laintiff's medical condition has greatly evolved since the action was filed. Defendants appear to have initially read the case as much more limited in terms of damages than it is turning out to be. Plaintiff does not demonstrate any prejudice, other than further delay. On the other hand, the case is very old and it has been nearly six years since the case was filed. Plaintiff complains that Defendants have not acted diligently in the discovery pr...

Excerpt: ... PAGA claims were not subject to arbitration under any circumstances. (See e.g. Iskanian v. CLS Transp. Los Angeles LLC (2014) 59 Cal.4th 348.) In Viking River, however, the Court held, contrary to Iskanian, that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “non‐individual” components. In the Viking River lexicon, an “individual” PAGA claim is one based on Lab...

Excerpt: ...legedly required by statute and Caltrans' internal policies. Petitioner alleges that Caltrans purchased approximately five acres of land as part of an I‐210 freeway development project. Due to design changes for the freeway, the land remains unused and vacant. On April 1, 2017, Caltrans and Petitioner entered into a two‐year lease for Petitioner to use the land for Caltrans‐related work. Through later lease amendments, Petitioner continues ...

Excerpt: ...AGA claims were not subject to arbitration under any circumstances. (See e.g. Iskanian v. CLS Transp. Los Angeles LLC (2014) 59 Cal.4th 348.) In Viking River, however, the Court held, contrary to Iskanian, that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “non‐individual” components. In the Viking River lexicon, an “individual” PAGA claim is one based on Labor...

Excerpt: ...The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, t...

Excerpt: ... be a proper document that the Court can take judicial notice of. However, the same document is attached as an Exhibit to the Cross Complaint so it may still be properly considered. 3. The Court takes judicial notice of Exhibit J. Defendants, Cross‐Complainants' Request for Judicial Notice: 1. The Court takes judicial notice of the existence, filing and legal effect of Exhibits A through D and F but not of the truth of matters asserted in these...

Excerpt: ...rms” of the sales agreement Plaintiffs executed with Metro Nissan which contain the arbitration provision. (In re Henson (9th Cir. 2017) 869 F. 3d 1052, 1060 [“We expressly rejected Toyota's argument that the plaintiffs' claims were necessarily based on the Purchase Agreements merely because the lawsuit was predicated on the bare fact that a vehicle purchase occurred.”], citing Kramer v. Toyota Motor Corp. (9th Cir. 2013) 705 F.3d 1122, 112...

Excerpt: ...ing River, PAGA claims were not subject to arbitration under any circumstances. (See e.g. Iskanian v. CLS Transp. Los Angeles LLC (2014) 59 Cal.4th 348.) In Viking River, however, the Court held, contrary to Iskanian, that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “non‐individual” components. In the Viking River lexicon, an “individual” PAGA claim is one ba...

Excerpt: .... CIVSB2217699, she asserts the same claim, but for penalties under the Labor Code Private Attorney General Act of 2004, Labor Code section 2698 et seq. (PAGA), for the time period June 16, 2021, to the present. Defendant demurs to both complaints. Because the issues are the same in both cases, the parties stipulated for a single opposition, reply, and hearing. Labor Code section 226, subdivision (a), lists nine items an employer must include in ...

Excerpt: .... Motion: The motion is denied. Moving party has failed to demonstrate the existence of an arbitration agreement between Plaintiffs and Defendant. Preliminarily, the language of the arbitration provision plainly does not give Defendant the right to compel arbitration as a third‐party beneficiary or otherwise. Rather, the language refers to types of disputes between Plaintiff and the Dealership which may be arbitrated by Plaintiff or the Dealers...

Excerpt: ...restraining order (TRO). On June 3, 2022, the Court granted, in part, Respondent's anti‐SLAPP motion. On June 7, 2022, the Court ordered the TRO dissolved. On July 14, 2022, Respondent filed a motion for attorney fees as prevailing party on his anti‐SLAPP motion. Petitioner did not file an opposition. On August 29, 2022, the Court denied the motion without prejudice, as the original motion failed to include a declaration from counsel establis...

Excerpt: ... claims were not subject to arbitration under any circumstances. (See e.g. Iskanian v. CLS Transp. Los Angeles LLC (2014) 59 Cal.4th 348.) In Viking River, however, the Court held, contrary to Iskanian, that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “non‐individual” components. In the Viking River lexicon, an “individual” PAGA claim is one based on Labor Co...

Excerpt: ...37.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedin...

Excerpt: .... The First Amended Complaint added Plaintiff Enrique Ramirez and a PAGA cause of action by him. Subsequently, both Naudin's (and his individual and class claims) and Ramirez's (and his PAGA) claims were dismissed. Plaintiff Trumbo continued to pursue her wage‐and‐hour individual and class causes of action until her motion for class certification was denied. After that, she dismissed her individual claims. On October 10, 2019, Plaintiff Rober...

Excerpt: ... 130050.) As a public utility commission, SBCTA is authorized to exercise the power of eminent domain. (Cal. Const., art. 1, §19, subds. (a), (e)(2); Pub. Util. Code, §§130220.5, 130809, subd. (b)(4).) A public entity may not commence an eminent domain proceeding until its governing body has adopted a resolution of necessity. (Code Civ. Proc., §1245.220.) The “Resolution of Necessity” must contain a general statement of the public use for...

Excerpt: ...fair business practices under B&P 17200. On September 8, 2022, Plaintiffs filed a First Amended Complaint (FAC) adding a Private Attorneys General Act (PAGA) claim for penalties. In essence, Plaintiffs allege that they were employed by Defendants as non‐exempt, hourly employees in their foodservice supply chain workforce and that Defendants failed to accurate calculate meal‐and‐rest period premium pay. There were various other related cases...

Excerpt: ... Causes of Action. 2. SUSTAIN without leave to amend Defendant District's Demurrer as to the Eighth Cause of Action. As to the Motion to Strike: 1. GRANT without prejudice Defendant District's contemporaneous Motion to Strike as to the prayer for treble damages but DENY the motion as to the prayer for attorneys' fees. Case Summary Plaintiff in this matter filed suit on July 11, 2022, alleging essentially sexual abuse of a minor by a middle school...

Excerpt: ...iff's original complaint asserted causes of action for: (1) Motor Vehicle Negligence/Negligence Per Se, and (2) Gross Negligence and Recklessness. Defendant demurred and moved to strike the punitive damages allegations. At the hearing on August 17, 2022, the court sustained the demurrer with 45 days' leave to amend and the motion to strike was deemed moot. The Register of Actions is not showing the first amended complaint (FAC) to have been filed...

Excerpt: ....App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage o...

Excerpt: ...upp. Rogina Decl. ¶6.) There is no dispute regarding whether the broad arbitration provision contained in the employment handbook, if enforceable, would cover Plaintiffs' wage and hour claims. It provides for mandatory arbitration of “any claim, complaint, or dispute that relates in any way to the Parties' employment relationship . . . .” (See Ex. C at § 10.1BC.) Defendant submitted receipt and acknowledgment forms indicating each Plaintiff...

Excerpt: ... 56 Cal.App.4th 819, 831 [trial court rulings have no precedential value].) As to Plaintiff's Objections to Defendant's Evidence1 Objection 1 – Plaintiff objects plainly to the entire declaration, claiming lack of foundation and personal knowledge, conclusory, and improper opinion and speculation. There are many portions of the declaration which are obviously not objectionable – like the declarant stating her name and position. OVERRULED. Obj...

Excerpt: ...n response, Justin objected on relevancy and privacy grounds. Lewis then attempted to meet and confer, but after no resolution was reached it filed the pending motion to compel a further response to ROGS No. 2.8. The motion is supported by a declaration from Matthew J. Marnell; the discovery and discovery responses; a separate statement; and the meet and confer correspondence. In opposing the motion, Justin concedes that he had a prior conviction...

Excerpt: ...at Cobian's mother and sister are only nominally referenced in the SAC; there is no indication that the contract was written and the breach occurred more than two years before suit was filed; the agreement violates the statute of frauds; and since no conversations between Garfias, Chavez, or Odaliz are alleged then there can be no fraud. The demurrer is supported by a declaration from attorney Gregory D. Angus. The demurrer is opposed by Garfias....

Excerpt: ...h ‘costs' and ‘expenses.' Examining the language of the statute [citation], it is clear the Legislature intended the word ‘expenses' to cover items not included in the detailed statutory definition of ‘costs.'” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137.) Costs are recoverable Page | 2 by the plaintiff if they were “reasonably incurred by the buyer in connection with the commencement and prosecution” of the...

Excerpt: ...intiff claimed $536.80 for filing the complaint. Defendants seek to tax $101.80 from the complaint filing fee as in excess of the first paper filing fee of $435.00. Plaintiff concedes the filing fee is $435.00, but she is claiming $101.80 for messenger and copying fees for filing with the court. Messenger fees are Page | 2 not expressly authorized by statute, but may be allowed in the court's discretion. (Ladas v. California State Auto. Assn. (19...

Excerpt: ... Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 126; Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of the plaintiffs' case, the risk, the expense, complexity and likely duration of further litigation, the risk of maintaining class ...

Excerpt: ...resent labor law violations, deter future ones, and to maximize enforcement of state labor laws.” (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77.) The court must find that the plaintiff “has adequately represented the state's interests, and hence the public interest.” (Id. at p.89.) The LWDA must be notified of the settlement and be given an opportunity to object. The court may looks to parallel class action guidelines to determine...

Excerpt: ... (5) United Site Services, Inc. and Sanctions (continued from 11/09/ and 11/15/22) Tentative Ruling: The motions are granted in part and denied in part. Plaintiff's Evidentiary Objections: The objections are overruled. Like motions to strike at trial, evidentiary objections must be specific and particularized. It is not the Court's burden to guess which portions of the proffered evidence are subject to the objection; the burden is on the objectin...

Excerpt: ...ising to provide further responses to the interrogatories at issue and to also provide a substantive response to Plaintiff's extensive meet and confer efforts to narrow the disputes. According to the Declaration of Plaintiff's attorney, Melinda Jane Steuer, these promises were also made to the Court at the IDC. (Steuer Supp. Decl. [filed 12/23/22], ¶ 2.) Yet now, with a motion pending, Mr. Crosby filed a single‐page Page | 2 Opposition pointin...

Excerpt: ... Before Viking River, PAGA claims were not subject to arbitration under any circumstances. In Viking River, however, the Court held, contrary to Iskanian v. CLS Transp. Los Angeles LLC (2014) 59 Cal.4th 348, that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “non‐ individual” components. In the Viking River lexicon, an “individual” PAGA claim is one based on La...

Excerpt: ...012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and...

Excerpt: ...(2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed a...

Excerpt: ...ure to provide compliant wage statements; and 7) unfair business practices under B&P 17200. On October 25, 2022, Plaintiff filed a First Amended Complaint (FAC) adding a Private Attorneys General Act (PAGA) claim for penalties. In essence, Plaintiff alleges that she was employed by Defendant medical provider in San Bernardino County as an hourly, non‐exempt employee from October 2020 to approximately February 2021. She is joined by a class of 9...

Excerpt: ...ement is fair, adequate and reasonable.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 126; Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of ...

Excerpt: ...ond by one of the following: (1) an agreement to comply; (2) a representation of inability to comply; or (3) a legitimate objection to all or part of the demand. (Code Civ. Proc., § 2031.210, subd. (a).) A representation of a party's inability to comply must state: (1) that a diligent search and reasonable inquiry has been made in an effort to locate the item demanded; and (2) the reason the party is unable to comply: e.g., the document: never e...

Excerpt: ...ied as Assessor's Parcel Numbers 1049‐101‐40; 1049‐131‐02; and 1049‐131‐ 03]. The subject property is a part of the construction of the West Valley Connector Project (“Project”), a zero‐emission Bus Rapid Transit system project. Phase 1 of the Project is 19 miles long and will add 3.5 miles of center‐running, dedicated bus‐only lanes. Phase 1 of the Project will add 21 stations which will provide improved transit connection ...

Excerpt: ...laims were not subject to arbitration under any circumstances. In Viking River, however, the Court held, contrary to prior California precedent, 1 that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “nonindividual” components. In the Viking River lexicon, an “individual” PAGA claim is one based on Labor Code violations allegedly suffered by the named plaintiff, wh...

Excerpt: ...scovery responses, Conston purportedly suffered a traumatic brain injury (TBI) with loss of consciousness; post‐concussion syndrome secondary to the TBI with memory loss, photophobia, and insomnia; multiple fractures to her face, nose, and jaw, which have necessitated extensive facial reconstructive surgery, bone grafting, and the need for her mouth to be wired shut; permanent blindness in her left eye, and loss of hearing in the left ear; and ...

Excerpt: .... Proc., § 472, subd. (a).) However, once an answer has been filed, the plaintiff must file a noticed motion for leave to amend in order to make substantive amendments. (See id., § 473, subd. (a)(1).) Here, Plaintiffs filed their FAC without first obtaining leave of court. Plaintiffs' FAC adds three causes of action and new theories of liability. Because Plaintiffs failed to follow the noticed motion procedure, their FAC was not filed in confor...

Excerpt: ...of action must fail because Perez was terminated due to a legitimate and non‐discriminatory purpose as QAI suffered a financial slow down towards the second half of 2019. QAI further argues Perez's 4th and 5th causes of action fail because the evidence shows, and Perez admits, he was provided accommodations. Last, QAI argues Perez's 8th, 9th, and 10th causes of action must fail as QAI did not need “good cause” to terminate Perez and QAI pai...

Excerpt: ...sessor's Parcel Numbers 1011‐141‐07]. As alleged, Defendants hold the following interests in the property at issue:  Grace Property Management, LLC (Fee Owner);  Del Monte Irrigation Company (Easement). The subject property is a part of the construction of the West Valley Connector Project (“Project”), a zero‐emission Bus Rapid Transit system project. Phase 1 of the Project is 19 miles long and will add 3.5 miles of center‐runni...

Excerpt: ...ourt has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the ex...

Excerpt: ... when the parties are numerous, and it is impracticable to bring them all before the court . . . .” [Citations omitted.] Drawing on the language of Code of Civil Procedure section 382 and federal precedent, we have articulated clear requirements for the certification of a class. The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well‐defined community of interest, and sub...

Excerpt: ...ntiff's ‘claim' for unjust enrichment as a claim for relief. See, e.g., Ghirardo v. Antonioli, 14 Cal.4th 39, 50 (1996) (recognizing that a plaintiff may advance a stand‐alone claim for unjust enrichment, particularly where he or she seeks restitution and other remedies are inadequate). These courts focus on whether the facts demonstrate a defendant's unjust receipt of some benefit. Other courts cast unjust enrichment as an effect: it is simp...

Excerpt: ... through their legally mandated breaks. (¶¶ 9‐11.) On or about March 18, 2020, Castellon was told he was the subject of a two‐week investigation, led by Fuentes, because Castellon had allegedly allowed his dockworkers to work through their lunch breaks. (¶ 12.) There is no allegation in the Complaint that, during this March 18, 2020 meeting, Castellon explained to Leal that he and his dockworkers were forced to work through their breaks by...

Excerpt: ...is a cause of action. A district court has succinctly summarized the conflict as follows: Some courts have read a plaintiff's ‘claim' for unjust enrichment as a claim for relief. See, e.g., Ghirardo v. Antonioli, 14 Cal.4th 39, 50 (1996) (recognizing that a plaintiff may advance a stand‐alone claim for unjust enrichment, particularly where he or she seeks restitution and other remedies are inadequate). These courts focus on whether the facts ...

Excerpt: ...p.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of t...

Excerpt: ...6. Before Viking River, PAGA claims were not subject to arbitration under any circumstances. In Viking River, however, the Court held, contrary to prior California precedent,5 that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “nonindividual” components. In the Viking River lexicon, an “individual” PAGA claim is one based on Labor Code violations allegedly suffer...

Excerpt: ....4th 116, 126; Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of the plaintiffs' case, the risk, the expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount...

Excerpt: ... to the Motion to Compel Arbitration 1. Prime Healthcare Anaheim, LLC's Motion to Compel Arbitration of Plaintiff's nonrepresentative PAGA claims is GRANTED 1 Counsel must provide a full lodestar analysis in the motion for final approval. 2 Costs must be documented. The court does not award costs for LEXIS or Westlaw usage (which are considered items of overhead), faxes (also overhead), or photocopying in excess of $0.06 per page. 2. Plaintiff's ...

Excerpt: ...4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the...

Excerpt: ...re to reimburse; (7) failure to provide itemized wage statements; (8) failure to timely pay; and (9) civil penalties pursuant to the Private Attorneys General Act (PAGA). In essence, Plaintiff alleges that she was employed by Defendant as an hourly, non‐exempt employee from approximately 2002 to May of 2020. She is joined by a class of approximately 115 current and former hourly, non‐exempt workers who worked from January 22, 2017, through De...

Excerpt: ...37.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedin...

Excerpt: ...he operative first amended complaint (FAC) alleges causes of action for (1) racial discrimination in violation of the California Fair Employment and Housing Act (FEHA); (2) racial harassment resulting in hostile work environment in violation of FEHA; (3) failure to investigate and/or prevent discrimination, harassment, and retaliation in violation of FEHA; (4) intentional infliction of emotional distress (IIED); (5) violation of the Unfair Compet...

Excerpt: ... “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience...

Excerpt: ...tion is denied. Certification is not appropriate because (a) Plaintiffs fail to present any facts or evidence that Zhigang, Guduan, Haixia, Zhao, and Liu can be shown to have personally engaged in any of the alleged wage‐and‐ hour violations; (b) Plaintiffs fail to establish the proposed class suffered similar wage‐andhour violations, i.e., typicality2 is lacking; (c) Plaintiffs fail to establish that proving their wage‐and‐hour claims ...

Excerpt: ...the first cause of action for harassment under FEHA, with 15 days leave. a. There are no facts showing severe and pervasive conduct. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283‐ 284 [indicating that to be actionable the harassment must arise to that level].) (3) Overrule the demurrer to the second cause of action for retaliation. a. It is not dispositive that there was no harassment since the plaintiff need only r...

Excerpt: ...pose or address this issue in their opposition and the Court determines that the Order sustaining the demurrer for failure of the facts alleged is considered a judgment on the merits. (See Kanarek v. Bugliosi (1980) 108 Cal.App.3d 327, 333‐334. Furthermore, "the same facts are pleaded in the second action [citation], [and] …, the new complaint contains the same defects as the former." (Id at 334.) 2. Eighth Cause of Action for Wrongful Forecl...

Excerpt: ...e judicial notice of two published California appellate opinions. Because the opinions are authority, not evidence, judicial notice is unnecessary. Demurrer: The demurrer is sustained, without leave to amend. The action is barred by the statute of limitations. The general limitation period for an action against a notary in his official capacity is three years. If the action is based on notarial malfeasance, as is the case here, the action must be...

Excerpt: ...een corrected. Plaintiffs' allegations appear largely, if not entirely, identical to those previously pleaded in their First Amended Complaint (FAC). For the same reason they failed before, they still fail. Plaintiffs have not alleged facts to support a misrepresentation cause of action against Defendants. 2 Most of Plaintiffs' allegations involve suggestions of fraud, rather than factual allegations of fraud, against Defendants. For example, in ...

Excerpt: ...excuses further performance by the innocent party.” (De Burgh v. DeBurgh (1952) 39 Cal.2d 858, 863.) However, “[a] contract is totally breached and an anticipatory repudiation occurs when the promisor without justification and before he has committed a breach, makes a positive statement to the promisee indicating that he will not or cannot substantially perform his contractual duties.” (Gold Mining & Water Co. v. Swinerton (1943) 23 Cal.2d ...

Excerpt: ... Court to consolidate the UD action or stay enforcement of a judgment from another court that is on appeal. While technically, for purposes of consolidation, the other action still is pending (Code Civ. Proc., § 1049), what exactly the Court would be consolidating is unclear. Motion to Stay Unlawful Detainer Judgment: The motion is denied, without prejudice. Generally the UD judgment is binding upon this Court unless the judgment is properly ove...

Excerpt: ... pay minimum wages; (3) failure to pay overtime wages; (6) waiting time penalties; (7) failure to maintain adequate records; (8) failure to reimburse; (9) unlawful deductions; (10) failure to provide wage statements; (11) violation of the Unfair Competition Law (UCL); (13) intentional misclassification; and (14) penalties under the Private Attorney General Act (PAGA). Defendants answered. HDL (and RH by joinder) moved for summary adjudication of ...

Excerpt: ...vide a particular education service, contractual principles apply. (Id. at p. 826; Abuelhawa v. Santa Clara Univ. (N.D.Cal. 2021) 529 F.Supp.3d 1059, 1065.) General promises or expectations, however, are insufficient to support contractual obligations. (Kashmiri at p. 826; Abuelawa at p. 1065.) Not all statements in a school's publication will give rise to contractual obligations. (Kashmiri at p. 829.) The promises identified in this case relate ...

Excerpt: ...f of service of the motion on file. But ultimately Respondent waived the lack of service by filing a substantive opposition. Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 342‐43; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [“It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.”...

Excerpt: ... 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the pr...

Excerpt: ...to amend, as Plaintiff concedes in her Opposition that she is no longer pursuing these claims. 2. First (violation of Civ. Code, § 2923.5), Third (violation of Civ. Code, § 2924.9), Fifth (wrongful foreclosure), and Eighth (cancellation of written instruments) Causes of Action: The demurrers are sustained with leave to amend. From the allegations and exhibits attached to the Complaint, Plaintiff is not a borrower on the foreclosed loan. She has...

Excerpt: ...e court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the...

Excerpt: ...rt has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the expe...

Excerpt: ...ses, Inc. v. Moriana (2022) 142 S.Ct. 1906. Before Viking River, PAGA claims were not subject to arbitration under any circumstances. In Viking River, however, the Court held, contrary to prior California precedent, 1 that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “nonindividual” components. In the Viking River lexicon, an “individual” PAGA claim is one based...

Excerpt: ...cretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of...

Excerpt: ...ruled the demurrer for uncertainty and sustained the demurrer, without leave to amend, as to the First, Second, Third and Fourth Causes of Action. With respect to the Fifth Cause of Action for Trade Libel, the Court overruled the demurrer as to Defendant Tran and, as to Defendant Papadotos, sustained the demurrer, with thirty days leave to amend. The Court also ruled that to the extent the Sovereigns claimed that the pleading the Court treated as...

Excerpt: ...h 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the p...

Excerpt: ...ad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and vi...

Excerpt: ...s misconduct, and no facts constituting authorization or ratification have been alleged. Plaintiff opposes the motion, asserting the claim is well pled. Page | 2 Elder Abuse and Dependent Adult Civil Protection Act (“the Act”, Welf. & Inst. Code, § 15600, et. seq.). The elements required to establish a violation of Act are: 1. The defendant had a substantial caretaking or custodial relationship with the plaintiff, involving ongoing responsib...

Excerpt: ...on sites in California. Most of the raw materials used to manufacture the ready‐mix concrete came to the plant from California suppliers. Fly ash, however, was manufactured out of state and was used in the approximately 13% of ready‐mix concrete delivered by plaintiff. This tenuous connection” to interstate commerce is insufficient to transform plaintiff into a “transportation worker” who is exempt from the FAA. Plaintiff, an exclusivel...

Excerpt: ...River, PAGA claims were not subject to arbitration under any circumstances. In Viking River, however, the Court held, contrary to prior California precedent, 4 that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “nonindividual” components. In the Viking River lexicon, an “individual” PAGA claim is one based on Labor Code violations allegedly suffered by the named ...

Excerpt: ... v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 126; Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class ...

Excerpt: ...posing party's signature or by setting forth the terms of the agreement in the motion; (2) the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement, such as testifying under penalty of perjury that the party never saw or does not remember seeing the agreement; and (3) the moving party must then establish with admissible evidence that a valid arbitration agreement between the parties. (Id. at pp. 165...

Excerpt: ... ability to view documents containing information about plaintiffs which is protected under the CMIA. 2 Plaintiffs allege defendant failed to provide and maintain adequate safety measures to protect, secure, and safeguard the confidential information in violation of the CMIA. They seek compensatory damages, punitive damages, attorney fees, and costs. Defendant moves for summary adjudication of the first cause of action on the ground that the hack...

Excerpt: ...matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown.” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) This is a purely discretionary motion for the Court. (WEIL Page | 2 & BROWN, CALIFORNIA PRACTICE GUIDE: CIVIL PROCEDURE BEFORE TRIAL [The Rutter Group] ¶ 6:637.) Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 225 states in pertinent part: Having examined ...

Excerpt: ...pel arbitration pursuant to Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. Before Viking River, PAGA claims were not subject to arbitration under any circumstances. In Viking River, however, the Court held, contrary to prior California precedent, 3 that under the Federal Arbitration Act, 9 U.S.C., section 1 et seq. (FAA), a PAGA action is divisible into “individual” and “nonindividual” components. In the Viking River lexicon...

Excerpt: ... The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, ...