Excerpt: ...The petition alleges that DCSF is “acting in prejudice” against petitioner. She alleges that “Social worker Katherine Robinson made an abuse of discretion by wrongfully and incorrectly admitting false testimony …” These allegations are sufficient from a pleading standpoint. Whether the allegations are supported by the administrative record will be determined after a judicial review of that record applying the applicable standard of revi...

Excerpt: ... average receipt for class members (based on the numbers preliminarily provided in this motion) substantially—from $7,008.55 to $6,367.52, a difference of $641.03.1 With the limited information provided to the court, fairness of the settlement for the class is not demonstrated. The court requires additional information about the basis for the wrongful termination claim and why $25,000 is a reasonable settlement. Counsel 1 The motion erroneously...

Excerpt: ...ter plaintiff's employment with defendant terminated. Neither Kim nor Johnson, on which plaintiff rely, is relevant to the issue before the court—whether plaintiff timely exhausted administrative remedies with the LWDA on a claim for penalties based on meal period violations. Kim held that settlement of an individual claim does not remove standing as an “aggrieved employee” to sue under PAGA. (The plaintiff was still an aggrieved employee a...

Excerpt: ...Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 487, fn.8 [“Filing a document makes it a part of the permanent court file, whereas lodging a document makes it only temporarily a court record.”]; Beltone Electronics Corp. v. Superior Court (1978) 87 Cal.App.3d 452, 455 [Lodging documents is “the temporary deposit of the documents in conjunction with a motion to file, until the court determines them to be relevant. In the event ...

Excerpt: .... § 2032.320, subd. (a).) The notice of motion must state the time, place, identity and specialty of the examiner, and the manner, conditions, scope and nature of the examination. (Code Civ. Proc. § 2032.310, subd. (b).) Defendants' motion does not contain any Notice of Defense Medical Exam and there is no indication one has ever been served. The motion identifies the specialties of the examiners, but it does not state the time, place, or ident...

Excerpt: ...h Lindsey Defendants seek to enforce arbitration is not demonstrated. As for compelling arbitration of Richard and Dorothy Landsverks' claims, the 2012 Agreement is an agreement with “LFG Family Office Services” and the Lindsey Defendants do not provide any analysis or discussion of the basis under which they may compel arbitration under the 2012 Agreement. As for the 2018 Agreement between the Landsverks and Lindsey Financial, Inc., the othe...

Excerpt: ...imitations, and defendant obtained permission from the court to file its thirty page brief. (This court usually defers to requests by counsel concerning the length of briefs they consider to be necessary.) Nevertheless, the three briefs contain a remarkable 319 footnotes. Weil & Brown, Guide Civ. Pro. Before Trial (June 2021) Law and Motion, § 9:64.16‐17, advise lawyers: . . . don't try to evade the [] page limit by using lengthy, single‐ sp...

Excerpt: ...the United Page 2 of 2 CVS26041522 States Supreme Court in the Viking River Cruises case, which conceivably could reject the Iskanian rule in California that arbitration agreements and PAGA waivers are unenforceable in PAGA cases. Such a ruling could impact some or all of these coordinated proceedings. A decision by the Supreme Court is anticipated for late June or early July. As a practical matter, a motion to stay filed now is unlikely to be he...

Excerpt: ...ndant District served its responses and on February 11, 2021, it served a supplemental response to one of the at‐issue RFPs. (Halpern Decl. at ¶¶2‐3; Miller Decl. at ¶¶1‐2, Exh. B.) Plaintiff's Motion to Compel was filed on June 24, 2021. This discovery dispute was reviewed and considered by a discovery referee. On March 3, 2022, the Court granted Plaintiff Nicole's Motion for Reconsideration of the ruling by the Discovery Referee. A mo...

Excerpt: ...ce to Plaintiff of the continued date but there is no notice in the court's file. In considering the merits, the Court notes that the action was originally set for trial on May 25, 2021 for a trial date of February 7, 2022. This was well within the two year statute for discretionary dismissals. This trial was only continued, again on the Court's own motion as a result of COVID. Defendants filed their motion prior to the February trial date and th...

Excerpt: ... Code violations alleged, it appears likely that plaintiff does not intend to include these “high‐level” employees in the class. Nevertheless, class definitions are often adjusted during the litigation, even as late as class certification. While the class definition may be overbroad (if plaintiff is not suing on behalf of employees properly classified as exempt), the complaint still alleges facts sufficient to constitute causes of action fo...

Excerpt: ...onsider the Court's file without judicial notice. 1. Demurrer to Second Cause of Action for False or Fraudulent Registration: The demurrer is overruled. The new cause of action is not necessarily inconsistent with the Court's ruling on the prior demurrer. Rather than allege infringement of their own validly registered mark, Cross‐ Complainants now allege that Plaintiff and Cross Defendant committed fraud in the procurement of the federal and st...

Excerpt: ...Cruises case, anticipated for late June or July of this year. To seek such relief, defendant should have filed a motion to stay.1 Therefore, the motion is unopposed. Nevertheless, the motion appears to be untimely. Defendant served its discovery responses on December 15, 2021, by mail. (Zakay Decl., ¶ 15, Ex. N) Therefore, 1 Setting aside defendant's failure to bring a separate motion, the request for a stay is odd. This action is a putative cla...

Excerpt: ...s a mistake. The proposed class references “Defendant,” but there are two defendants— National Retail Transportation Inc. and Keystone Freight Corp. The class definition needs to be clarified. The motion states that the average receipt by class members (given the estimated deductions provided for preliminary approval) is $3,333.54. According to the court's calculations, the average is actually $3,804.35. The basis for the $3,333.54 figure i...

Excerpt: ...in other trial‐level courts because they are not evidence. They have no precedential value. Nevertheless, they may be cited as non‐ controlling authority, of possible value to this court for their persuasive (or non‐persuasive) reasoning. The court grants judicial notice of the materials on file with the United States Supreme Court in the Viking River Cruises case for the limited purpose of understanding the issues to be decided by the Cour...

Excerpt: ...000. Defendant experienced difficulties obtaining all the medical records. Defendant had most of them by April 2016, but was still waiting for the records from one of plaintiff's main treatment providers when plaintiff made a demand for payment of the policy limits of $50,000, minus the $15,000 payment by the underinsured motorist's carrier. Page 4 of 8 CVS26040822 On June 28, 2016, defendant had notified plaintiff's counsel it had all the record...

Excerpt: ...ant's motion was not served at least 21 days before it was filed. Furthermore, the motion concerns the failure to dismiss of the complaint after plaintiff's deposition or discovery responses. Defendant could have proceeded with a motion for sanctions at that time, but did not do so. Instead, it proceeded with a motion for suumary judgment. By the time defendant went forward with the motion for sanctions, the complaint had already been dismissed. ...

Excerpt: ...d for the JPA pursuant to Evidence Code section 452, subdivision (b), which authorizes judicial notice for legislative enactments of public entities. Judicial notice is also granted for the complaint in Plaintiff's individual action pursuant to Evidence Code section 452, subdivision (d), which authorizes judicial notice of court records, with the caveat that judicial notice is limited to the fact that the complaint was filed and the allegations t...

Excerpt: ...nt of the PAGA period (if any) do not participate in the PAGA period. (If any class members had opted out of the class settlement—none did—they would still participate in the PAGA settlement if they worked during that time period.) Counsel should provide the total number of work‐weeks for the class settlement and the total number of pay periods for the PAGA settlement. The estimates provided at preliminary approval are likely grossly inaccu...

Excerpt: ...ered into an agreement (the “Pay Plan”), which included— among other terms—a mutual agreement to arbitrate .…” (Italics added.) The referenced agreement provides: “Both Free Energy and Employee agree … [to Page 2 of 2 CVS26040122 arbitrate.]” (Rago Decl. Exb. B, Italics added.) If, however, defendant contends plaintiff was an independent contractor, rather than an employee, there appears to be no basis for defendant to move to c...

Excerpt: ...bjections filed March 23, 2022.) The referenced declarations are not in the court's file. The missing material may or may not affect the court's tentative thoughts about the case, which are listed below. If either counsel believes that the missing material may in any manner affect the court's tentative views, the court will allow counsel to submit the material and will continue the hearing to a later date. If both counsel, however, indicate that ...

Excerpt: ...e court will not award costs for electronic Legal Research, which the court views as an item of overhead that is not recoverable. The court will award costs for photocopying at $0.06 per page, rather than $0.15 per page, which is excessive. Therefore, the recoverable amount for photocopying is $90.78. The adjusted total is $20,303.06, which still exceeds the amount approved at preliminary approval. Therefore, the court will award the full $20,000...

Excerpt: ... to seize. The vehicle had been subject of a recall, but Defendants failed to advise Plaintiff of the same. Plaintiff confronted Defendants about the recall and was advised the vehicle was not eligible due to the mileage restriction. Defendant thereafter learned the mileage restriction had been extended, but Defendants did not disclose this to Plaintiff. (FAC, ¶¶37‐41.) During matching of the engine crankshaft and crankpins, metal shavings ma...

Excerpt: ...as to the proper distribution of settlement funds. The motion states that there are 701 class members, but the administrator's declaration states that there are 712 (¶ 13). Depending on which number is correct, the number of workweeks may also need to be adjusted appropriately. The request for a 35% attorney fee is unsupported. The court will award 33.33% under the common fund doctrine. The expenses are insufficiently described (or entirely unde...

Excerpt: ...ts, not 8. (Islas Declaration¶ 13.) Counsel must clarify the discrepancy. Counsel should also confirm whether the numbers provided for the number of work‐weeks in the class settlement and in the PAGA settlement (as stated in paragraph 13 of administrator's declaration) are correct in light of the discrepancy about the class size. The motion seeks $1,303.36 for costs. The cost summary, however, shows that $94.00 is for “office expense: coffee...

Excerpt: ... Proc., §1060.) Cross‐Complainant Wheeler's 7th cross‐claims seeks a declaration that Cross‐Defendant Copp owes it a duty to defend under its contractual agreement that contains an indemnity clause (¶¶44‐48). The law provides for specific rules on interpreting indemnity contracts unless a contract provides otherwise. If contractual indemnity exists, the indemnitee is entitled to recover his defense costs. (Civ. Code, §2778, subd. (3)....

Excerpt: ...al assistant for Department S‐26 at jmorales@sb‐court.org. All counsel must be cc'd on all email communications. It appears the PAGA employees are undefined. Counsel should confirm that the group consists of all current and former non‐exempt employees who worked for defendant at any time during the time‐period from 11/11/18 through 12/7/21, or provide a different description to the court. Counsel must identify the settlement administrator...

Excerpt: ...unsel must inform the court of the number of PAGA aggrieved employees and the total number of pay‐periods they worked during the PAGA period. Counsel must also confirm that the total number of pay‐periods (or workweeks) for the class period is 9,880, the number provided at preliminary approval. If this number is not accurate, counsel must provide the correct number. Most deductions from the gross settlement amount (and perhaps all) are reason...

Excerpt: ...equest is therefore $92,688.75 plus expenses of $6,298.99.1 In determining the reasonableness of the fees, the court applies the lodestar method, i.e., multiplying the number of hours reasonably worked by a reasonable hourly rate. (Flannery v. Prentice (2001) 26 Cal.4th 572, 584; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 817.) The Court can reduce hours that appear unreasonably inflated. (Chavez v. Cit...

Excerpt: ...riting.” (Code Civ. Proc., §§2030.300, subd. (c); 2031.310, subd. (c); 2033.290, subd. (c).) After a telephonic meet and confer it was agreed Defendant would have three weeks to respond to the meet and confer letter with a commensurate extension for Plaintiff to bring his motion to compel. This was confirmed via an email exchange on August 26, 2021. (Carter Decls., ¶5; Exh. D.) This would extend the deadline to Thursday, September 23, 2021. ...

Excerpt: ...��that plaintiff is not seeking any recovery for any individual claims. Second, although paragraph 33 in the prayer for relief in the second amended complaint indicates otherwise—that plaintiff is seeking “actual, consequential and incidental damages” notwithstanding the express contrary statement in paragraph 4— the request for dismissal of all class and individual claims was filed and approved after the filing of the second amended comp...

Excerpt: ...The Court reserves the right to exclude any such evidence upon proper objection or allow the evidence during the trial depending upon what occurs at trial. The denial or grant of these motions is without prejudice. As to any motion granted, the parties are ordered to refrain from conveying to the jury any of the evidence excluded without first obtaining permission of the Court outside the presence of the jury. Furthermore, it is the obligation of...

Excerpt: ... is to compel a trial Page | 2 on the merits than when the default judgment is allowed to stand. [Citation.] Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default. [Citation.] In the present case, [defendant] promptly moved to have the default judgment set aside once he learned of it. The trial court's order granting relief was within its sound d...

Excerpt: ...) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Page | 2 However, during the Governor's declared state of emergency related to the pandemic, Code of Civil Procedure section 599 provides that “[n]otwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial or arbitr...

Excerpt: ...ned Motion to Transfer: The motion is denied. Defendant failed to meet her burden of demonstrating no exception to the general venue rule applies, in particular Code of Civil Procedure section 395, subdivision (b).1 Subdivision (b) provides another “statutory exception to the general venue rule …” in cases involving certain consumer obligations. (Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836.) It is undisputed that the recovery...

Excerpt: ...ce of the demurrer. However, even if service was defective for some reason, “[i]t 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. [Citations.] Page | 2 This rule applies even when no notice was given at all.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Since Whisler substantively opposes ...

Excerpt: ...mit Defendants to only filing an Answer even though the proposed pleading was an Answer. Therefore this objection is overruled. First Cause of Action for Fraud: The demurrer is sustained, with thirty days leave to amend. The allegation that Defendants knew the promises were false when made is absent or what representations were made by whom and what authority either defendant had to speak on behalf of the entity. Second Cause of Action for Conver...

Excerpt: ... the parties on notice that should this occur again, the Court will continue the hearing and consider the issuance of sanctions against the non‐ complying party. First Cause of Action for Negligent Infliction of Emotional Distress (NIED): The demurrer is overruled. Plaintiff concedes that this cause of action is based only on direct liability for negligent infliction of emotional distress as opposed to a claim based upon bystander liability. In...

Excerpt: ...in Avant! and others, as cited by each side, a stay will cause a delay but less so than if Defendant were merely the subject of an investigation. There is a Page | 2 risk of prejudice to Plaintiff with respect to third party testimony, as memories may fade and evidence may otherwise become stale. Defendant will be prejudiced if a stay is not granted because he will be forced to choose between giving up his Fifth Amendment right to remain silent o...

Excerpt: ...the above section requires it to be filed. This must be addressed first. 1. 1 st & 3rd causes of action: Breach of Contract and Implied Covenant Defendant Hall challenges the contract‐based causes of action on the ground he is not a party to the purported contract. For pleading a breach of contract and implied covenant causes of action, a contract must exist. (Wall Street Network Ltd. v. N.Y. Times Co. (2008) 164 Cal.App.4th 1171, 1176; Smith v...

Excerpt: ...does not alter this limitations period. The Mexia Court only found that the latent defect did not have to be discovered within one year of the purchase to be actionable but did not hold that the implied warranty period could be extended indefinitely past the four‐year limitations period which begins at the time of sale. Further, because an implied warranty is one that arises by operation of law rather than by an express agreement of the parties...

Excerpt: ...e information is relevant for discovery purposes on the causes of action for Disparate Treatment and Retaliation. The information on hours and days worked by employees appears to the Court to be also an employer record and to this extent is not protected by an individual's privacy interests. Even if it is, this is a minimal intrusion as other employees observe when other employees are present at work and when they are not. The fact that an indivi...

Excerpt: ...important ways. The answer “I do not recall” does not definitively answer the question about whether or not any such conversations were actually had but he does not recall the substance. I do not recall may also mean – I do not recall if we ever HAD any discussions or it may mean yes we had conversations but I do not recall the content. Furthermore, a responding party's obligation when answering propounded interrogatories is to answer the i...

Excerpt: ...ugh it is of concern to the Court that Defendant cites many cases not originally cited in its moving papers, denying Plaintiff the opportunity to meaningfully respond. These cases should have been cited in its original moving papers. The motion is denied. Defendant Segway, Inc. has failed in its burden to establish that there was ever an agreement between Plaintiff and Defendant to arbitrate; or that Plaintiff ever received the alleged agreement ...

Excerpt: ...d within 30 days of service of the complaint is permissive and not mandatory. In addition, it is in the court's discretion to consider the filing so long as the court's action does “‘not affect the substantial rights of the parties.'” Moreover, as the court concluded in Clark v. Stabond Corp. (1987) 197 Cal.App.3d 50, 58‐59, “lack of timely service is waived when the party discusses merits despite its objection”, which Plaintiff has d...

Excerpt: ...(Mot. 6:1‐4.) In opposition, the City argues bifurcation would be improper because Plaintiff's claims of dangerous condition of public property against the two defendants are inextricably intertwined. The City also correctly points out that the issue of ownership and control is not as clear‐cut as argued by Caltrans. In response to a request for admission (RFA) asking Caltrans to admit it “controls” the accident location, Caltrans respond...

Excerpt: ...erence that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference. (§ 36, subd. (e).) This decision “rests at all times in the sound discretion of the trial court in light of the totality of the circumstances.” (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 344.) Factors to be considered include the condition of the court's calendar, dilatory conduct by the plaintiff...

Excerpt: ... issue, this case was transferred to Department S24. (See Minutes 3/30/21.) On November 24, 2021, Plaintiff filed this motion for summary judgment of its complaint. On December 14, 2021, while its MSJ was pending, Plaintiff file a motion for leave to file an amended complaint, which the Court granted on January 19, 2022. Now at issue is Plaintiff's MSJ. Defendant filed a timely opposition. Plaintiff filed a timely reply. Defendant's Request for C...

Excerpt: ...ute as to the latter but Plaintiff has met his burden as to the former. Defendant concedes that certain amounts are owed but that the amount of the lien is incorrect. Furthermore, “ * * * a lien claimant may include in the mechanics' lien an amount for the reasonable value of the labor, services, equipment, or materials furnished based on the owner's breach of contract, even if based on oral modifications to the contract.” (44 Ca Jur Mechanic...

Excerpt: ... a stipulated Protective Order which the parties have entered into and claim to have been filed with the Court on October 20, 2021. The Court record does not show such a protective order was ever filed by the parties or signed by the Court. TRULINE moves for (1) an order compelling Plaintiff Excel Packaging System, Inc. (EXCEL) to serve further responses to all 38 of the RFPs propounded by TRULINE on it and (2) an order compelling Cross‐Defenda...