Excerpt: ...stice seem[] to require such action.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 886.) The proponent of the stay or protective order must establish good cause. (GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 754 [indicating “a presumption of good cause exists should be indulged only if circumstances warrant”].) The U.S. Supreme Court has also stated that the power to stay a proceeding is incidental to the power inhere...

Excerpt: ...'s counsel, David M. DeBerry, also declares the statute of limitations defense has also been the subject of written discovery propounded on Plaintiffs. (DeBerry Decl., ¶7.) DeBerry further declares at the demurrer hearing in early 2020, Great Dane requested a limited discovery stay to allow it to proceed with a summary judgment motion on the statute of limitations defense. (DeBerry Decl., ¶8.) Great Dane argues the omission of the statute of li...

Excerpt: ... at the time of the determination.' [Citation.]” (Bussard, supra, 164 Cal.App.4th at p. 864.) Liberality should be exercised in granting continuances when they are not prejudicial to the other parties. (Capital Nat. Bank of Sacramento, supra, 62 Cal.App.2d at p. 339.) Further, and as noted, in determining whether good cause exists to continue trial, “threats to procedural fairness” is a “touchstone for granting such a motion.” (Panoche,...

Excerpt: ...l analysis whether phasing or not phasing the trial would result in undue prejudice for one party or another. Finally, there is no reason to believe that an unphased trial will result in confusion for the jury. Appropriate jury instructions and a carefully worded special verdict can guide the jury appropriately. ...

Excerpt: ...Gonzalez. But if the judgment in Staublein is reversed, this case could then proceed, but only for the time‐period after the time‐period covered by Staublein. The most sensible approach is to stay this case in its entirety pending resolution of Staublein, as plaintiff offered before defendant filed the demurrer. The demurrers are therefore overruled. No answer is required at this time because the matter is stayed pending resolution of the Sta...

Excerpt: ...ess was. This issue was addressed at length in Lasalle v. Vogel (2019) 36 Cal.App.5th127 [4th Dist.] where a judgment was reversed based on a default where the only notice that default would be taken was sent by email and a letter demanding an answer be filed the following day, noting that Code of Civil Procedure section 583.130 requires cooperation between the parties in bringing the action to trial. [other citations omitted] ˋSo what we review...

Excerpt: ...he woman behind the hotel desk or the assistant manager. The moving party must satisfy his or her initial burden before the opposing party must controvert anything. (§ 437c, subd. (p)(1), (2).) Accordingly, a moving defendant who claims that the plaintiff cannot prove all the elements of his case must present evidence in support of this claim. The defendant cannot simply challenge the plaintiff to prove his case by opposition. (Aguilar, supra, 2...

Excerpt: ...r consideration of the motion. It would appear that the point of this was to demonstrate to the Court the extent of prior significant discovery (although not exclusively to the moving party.) Defendant Bridgestone Corporation's counsel is admonished to refrain from filing unnecessarily long exhibit packages. In the alternative, a chart would have sufficed ‐ it is unnecessary to fill the court's files in order to demonstrate this point. The Cour...

Excerpt: ...rded. The requested attorney fee and administrator fee are appropriate and reasonable and are approved. The incentive award, while at the high end of reasonable incentives, Page 3 of 3 is approved in light of the amount of the settlement and the fact that no class member has objected to it. There appears to be a discrepancy in the papers about the size of the class after opt outs—5,605 or 5,604. Counsel should clarify. Also, counsel should prov...

Excerpt: ... aggrieved employee may bring a civil action “within one year from the date of that notice.” (Gov. Code, § 12965, subd. (b).) Given the May 24, 2019 right‐to‐sue notice, Plaintiff ordinarily would have had to file his Motion by Tuesday, May 26, 2020, as the one‐year period expired on Sunday, May 24, and as May 25 was the Memorial Day holiday. (§§ 10, 12 12a, subd. (a), 12b.) However, as Plaintiff points out, on April 6, 2020, the Jud...

Excerpt: ...ed their employment before commencement of the PAGA period. Second, counsel should clarify whether members of the exempt subclass are also aggrieved employees. Counsel should inform the Court of the total number of aggrieved employees. Counsel should also exclude the $12,500 allocated for those aggrieved employees under PAGA from the calculations for distribution to the two subclasses. The gross settlement amount is $1,850,000, with $50,000 of th...

Excerpt: ...pers supporting a motion to compel an answer to a deposition question or to compel production of a document, electronically stored information, or tangible thing from a nonparty deponent must be personally served on the nonparty deponent.” On the other hand, when a subpoena is properly served upon an organization that is a California resident (such as leaving it with any officer, director, or custodian of records or with any agent or employee a...

Excerpt: ... to control the deposition proceedings or the information obtained thereby. (See Code Civ. Proc., § 2025.420.) The court is empowered to issue whatever order “justice requires” to protect a party or deponent against “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420, subd. (b).) Generally, this requires a showing that the burdens involved in the deposition proceeding clearly ...

Excerpt: ...). The Court may review binding arbitration awards in accordance with the statutory grounds for vacating or correcting. (Moshonov v. Walsh (2001) 22 Cal. 4th 771, 775.) However, a court may not vacate or correct an award because of the arbitrator's legal or factual error if such is within the scope of the controversy submitted to the arbitrator. Id. After an arbitrator has issued an award, the role of the trial court is limited to confirming, cor...

Excerpt: ...on be filed as coverage is in dispute. There is no danger of inconsistent adjudications because the issues involved in the two action do not overlap. Trial Setting Conference: The Trial Setting Conference is continued to July 12, 2021, at 9:00 a.m. in Department S29. Court Call appearance only. Unless waived by the parties, moving party is directed to give notice of ruling. ...

Excerpt: ...tion, meaning she has waived these issues1 . (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.) Next, and as to the first cause of action for breach of contract, “‘[a] written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. [Citation.] In order to plead a contract by its legal effec...

Excerpt: ...thout an allegation of tender, a complaint challenging a foreclosure does not state a cause of action. (Karlsen v. Gibralter Sav. & Loan Assn. (1974) 15 Cal.App.3d 112, 117.) “It has been held that, at least when seeking to set aside the foreclosure sale, the plaintiff must also show prejudice and a tender of the amount of the secured indebtedness, or an excuse of tender.” (Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 929.) Howe...

Excerpt: ...ehalf of the same group of aggrieved employees. Under the doctrine of exclusive concurrent jurisdiction, there need not be an absolute identify of parties, causes of action, or remedies. It need not be shown that judgment in one action would be res judicata in the other. Despite minor differences, the claims in these two cases are largely the same. The motion is therefore granted. This case is abated pending resolution of the Johnson case. ...

Excerpt: ...cessary because the majority of the communications between Ms. Brody and attorney Kevin Crockett were in writing, Ms. Brody is a witness to the purported settlement agreement. For this reason, Plaintiff is entitled to take her deposition. However, the Court agrees with Defendant that the scope of the deposition should be limited to Ms. Brody's communications (both written and oral) with attorney Kevin Crockett between May 5, 2020 and August 5, 20...

Excerpt: ...ts pursuant to Code of Civil Procedure § 1032 and attorneys' fees incurred prior to July 1, 2019 as allowed by California law and to be determined by the Court to be necessary and reasonable for the prosecution of this action. 7. It is expressly understood that only those attorneys' fees and costs incurred prior to July 1, 2019 are eligible to be awarded. There shall be no allowance for fees and costs incurred for the mediation or for submitting...

Excerpt: ...murrer to the Fifth Cause of Action is sustained, with leave to amend. All of the elements are not pled and a statutory basis for liability needs to be pled as well. 3. The demurrers to the Second and Sixth Causes of Action are overruled. As to the Second Cause of Action, the allegations are sufficient and as to the Sixth 2 Cause of Action, Defendants have failed to cite any legal authorities to support their demurrer.1 Defendant Bertrand Christo...

Excerpt: ...motion and still has not filed verified supplemental/further responses to Plaintiff's FRG#1. Defendant filed Oppositions on the grounds that on February 25, 2021, Defendant served its Further Responses to FRG#1. In her Reply, Plaintiff agrees that Defendant served its Further Responses to FRG#1, however, those responses were unverified and provided the same “n/a” responses although in same cases with an add clarify. Also in her Reply, Plainti...

Excerpt: ...rt takes the matter off calendar and the movant can refile when a code compliant meet and confer is accomplished. In doing the above, the Court suggests the parties discuss the following: As the loss of consortium is a common law cause of action, it cannot lie against CalTrans. In opposing, Plaintiff Guadalupe points to two cases. In Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1066, fn. 3, the Court of Appeal held in conjun...

Excerpt: ...re‐Angel on March 18, 2021. Therefore, despite overlap in the two cases, Filamore‐Angel is no longer “another action pending.” Nevertheless, claims asserted in the Allen matter may be barred under the doctrine of res judicata due to their resolution in the Filamore‐Angel matter. But that is not the ground on which defendant demurred. Even though the underlying issues may be the same—whether claims asserted in Allen extend farther back...

Excerpt: ...s treated as a admission that the motion is meritorious.) As a result, the parties failure to oppose the Demurrer is construed as an admission that there are no fact that could be alleged to cure the defects in the pleadings and that the Demurrer is meritorious. The Demurrer is sustained with 10 days leave to amend. The Motion to Strike is moot based upon the demurrer ruling. Date _ Judge ...

Excerpt: ... such as Mr. Hernandez. Defendant still seeks monetary sanctions, however, based on the time expended litigating the issue while Mr. Hernandez was still a named plaintiff. The motion, however, is untimely because the parties stipulated that section “2031.010 et seq. shall apply to the responses . . . for all intents and purposes.” As such, the deadline for filing a further response is based on the document production requests, which expired, ...

Excerpt: ...ction subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross‐complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross‐complaint, t...

Excerpt: ...may apply to these different work‐environments, but plaintiff is entitled to ascertain the underlying facts. Plaintiff's letter to the LWDA was not restricted to dry depot employees. Plaintiff sought temperature data going back ten years, while defendant proposed a cut‐off date of January 15, 2018. Plaintiff offered a compromise of five years. Five years is reasonable. Even though temperatures pre‐dating the PAGA period (one year before fil...

Excerpt: ...ntersection of Lone Pine Canyon Rd. Plaintiff Suzi was a passenger in Garrett's vehicle. Also driving eastbound on SR 138 was Gautier in a tractor‐trailer owned by CR England. Due to Gautier traveling at an unsafe speed and failing to yield to stop traffic, a collision occurred between him and the Plaintiffs, causing Plaintiffs to sustain injuries (¶¶9‐13). At issue is a motion to quash subpoenas for records regarding Plaintiffs' gun owners...

Excerpt: ...tion of records as requested. Defendants have made much of the fact that the decedent was only in Defendants' care for one week and imply that they could not be responsible for any harm the decedent 1Judge Frangie is absent from the Court on April 1, 2021. In the event that both parties do not submit on the Court's tentative, the hearing shall be trailed to April 5, 2021. Please contact Judicial Assistant Teri Handyside in the event either party ...

Excerpt: ...addressed in the motion for which Respondent also asserted objections Page 4 of 12 on grounds of the attorney‐client privilege and the attorney work‐product doctrine. Petitioner appears to concede this point. With respect to the remaining documents at issue, Respondent has failed to meet its burden regarding the privilege. Generally, deliberations of government officials are entitled to a limited amount of protection against public disclosure...

Excerpt: ... Order of Dismissal. The Court also requested briefing as to whether Education Code section 44009 renders the Order of Dismissal moot for purposes of this writ, and supplemental briefing on the application of the Morrison factors. Motion to Augment Code of Civil Procedure section 1094.5, subdivision (e), provides: Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or t...

Excerpt: ...lated protective order in this action.” (Motion 15:8‐10.) The Court requires the information to evaluate the fairness of the proposed settlement, even at the preliminary stage. At the least, counsel must lodge evidence of the defendant's financial condition with the Court, conditionally under seal, along with a motion to have the information filed under seal. Counsel should also be prepared to address whether the information should be filed n...

Excerpt: ...rer, all facts pleaded in the complaint are assumed to be true however improbable they may be. (Aubry v. Tri‐City Hosp. Dist. (1992) 2 Cal.4th 962, 966‐967.) However, the Court does 2 “not accept as true contentions, deductions, or conclusions of fact or law.” (In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1402, citing Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) B. Meet and Confer Requirement U...

Excerpt: ...t him or her through his or her mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., § 473, subd. (b).) 2 Under Section 473, subdivision (b), the motion must be made within a reasonable time, but in no case exceeding six months, and the proposed answer must be filed with such motion. The six‐month limit is jurisdictional in nature. (Maynard v. Brandon (2005) 36 Cal.4th 364, 372.) An application for relief under Section 473,...

Excerpt: ...For guidance for the parties, the Court is of the opinion that the requests may be overbroad in some respects and the moving party's failure to be specific in a showing a good cause as to why these particular documents should be produced in this action. 1 A motion to compel further responses and documents requires a showing of good cause. 1 To establish “good cause” to compel further responses, the burden is on the moving party to show both r...

Excerpt: ...artinez, however, has not shown that his interests, or those of the putative class members in the Martinez case, are not adequately represented in this case. As part of the “community of interest” requirement for class certification (and approval of the proposed settlement), plaintiffs in this case must show they adequately represent the class. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104.) A class representative, thr...

Excerpt: ...at may be inferred from those expressly pleaded, and of any material facts of which judicial notice has been requested and may be taken. (Crowley v. Katleman (1994) 8 Cal. 4th 666, 672.) The court gives the pleading a reasonable interpretation by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Calif. (1990) 51 Cal. 3d 120, 125.) Because the factual allegations are assumed to be true, the possibility that...

Excerpt: ...taffing resumes. Substitution of attorney forms are not one of the exceptions. Therefore, at the OSC on December 10, 2020, the substitution of attorney form filed on October 9, 2020, was not present in the physical file. The court consulted the register of actions, however, which indicated that a substitution had been filed on behalf of plaintiff Bubba Likes Tortillas LLC, but erroneously omitted mention of plaintiffs Washington LLC and MTV Holdi...

Excerpt: ...,555.50 before or at the hearing. Absent substantiation, the cost award will be limited to $7,491.94. Administrator Fee: The motion states that administrator's fee is “estimated” to be $6,250.00. The Court preliminarily approved a maximum fee of $6,000.00. The Court cannot award more than $6,000.00, yet the actual fee may exceed that amount. The Court suggests that the additional $250.00 (or other amount charged by the administrator in excess...

Excerpt: ...oners, who were African American shoppers, claimed they had been beaten by a shopping center's security guards. (Fuller, supra, 87 Cal.App.4th at pp. 302‐303.) The petitioners sued, among others, the individual guards, and the petitioners noticed the guards' depositions. (Id. at p. 303.) The guards moved for a protective order to prevent the depositions from going forward, as the United States Attorney's Office and the FBI were investigating th...

Excerpt: ...” (Cholakian & Associates v. Superior Court (McDonold) (2015) 236 Cal.App.4th 361, 368.) The opinion cited by plaintiff, Howell v. Stetefeldt (1886) 69 Cal.153, appears to be premised on an obsolete version of the statute. 3. Merits: Crestwood Behavioral Health, Inc. v. Superior Court (Fragoza) (2021) 60 Cal.App.5th 1069, was published two days after this motion was filed. Crestwood holds that in a PAGA action, “venue is proper in any county ...

Excerpt: ...g of 18 U.S.C. § 1030. The Complaint alleges that Defendant intentionally and without authorization accessed such protected computer and, by destroying the contact information, caused damage and loss through such access. The Complaint also alleges that the loss by such unauthorized access meets or exceeds $5,000 in value. (Complaint, ¶¶ 70‐72.) It is further alleged that “In performing the unauthorized access, Defendants acted with malice,...

Excerpt: ...yet, however, Chavez does not appear to have agreed, at least not formally. Therefore, the motion to stay this case is granted, with the proviso that if Chavez does agree to plaintiff's proposal, that may provide a basis to lift the stay. Counsel can do so by stipulation or, in the absence of a stipulation, plaintiff can file a motion to lift the stay. ...

Excerpt: ...) 60 Cal.App.4th 171, 178 fn.4.) II. Plaintiff's Evidentiary Objection: Sustain Plaintiff's Objection to Supplemental Declaration of Jesus Navarrete, filed March 12, 2021. There is no basis to consider this late filing containing new evidence. III. Request for Judicial Notice: The request is denied. While the Secretary of State's official website may provide some modicum of reliability, there is no basis on which to grant judicial notice. Exhibit...

Excerpt: ... period is extended by five court days. (Code Civ. Proc., § 437c, subd. (a)(2).) Costco filed its MSJ on February 11, 2021. The proof service attached to the MSJ indicates Costco served its MSJ by mail on February 10th. Seventy‐five days beyond that date is Monday, April 26th. Adding the five court days for mail service results in a date of Saturday, May 1st. The hearing should have thus been noticed on or after Monday, May 3rd. Instead, it wa...

Excerpt: ... 411.2 which requires that the motion be filed and served at least 8 days before the TRC. 2. It is defective as not in compliance with Local Rule 415(a)(2) which provides, “(a) (2) A representation to the court that the subject of the motion has been discussed with opposing counsel, and that opposing counsel has either indicated that such matter will be mentioned or displayed in the presence of the jury before it is admitted in evidence or that...

Excerpt: ...ct, where it is proven that the defendant is guilty of oppression, fraud, or malice, the plaintiff may recover punitive damages. It does not, however, automatically follow that because a plaintiff is entitled to compensatory damages he is also entitled to exemplary damages. (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 461.) To establish a conscious disregard for the safety of others as a predicate for punitive damages, a plaintiff m...

Excerpt: ...Analysis Motion to Set Aside The Proof of Service of Summons pertaining to Keller Williams Big Bear indicates that service was made on “Michael Shawn Hoffman, Authorized to Accept Service.” Service was purportedly made on October 30, 2020, at 11:21 a.m. at 39374 Lodge Road, Fawnskin, CA 92333. However, Michael Hoffman was not the agent for service of process and, therefore, service was ineffective. With respect to Michael Shawn Hoffman, Teres...

Excerpt: ... is approved. The amount sought for incentive fees is high, but there were no objections raised by the any of the 555 class members and aggrieved employees. Furthermore, reducing the incentive awards would result in relatively small increases in the individual payments. The Court will schedule a hearing to confirm final distribution of funds approximately one year out. ...