Excerpt: ...ise to the cause of action. (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 108‐09; Integral Development Corp. v. Helmut Weissenbach (2002) 99 Cal.App.4th 576, 583‐84.) The plaintiff bears the initial burden of “demonstrating facts by a preponderance of the evidence justifying the exercise of jurisdiction in California.” (In re Automobile Antitrust Cases, supra, 135 Cal.App.4th at p. 110.) The necessary facts are by...

Excerpt: ...e, however, was the request for dismissal filed by Helaire on April 20, 2021, purporting to have the case dismissed as to her without prejudice. That request for dismissal, which the clerk acted on and entered the dismissal on the same date, does not comport with the orders made by the court on April 9, 2021. The transcript from that hearing (Exb. C to the request for judicial notice) demonstrates clearly and unambiguously, that the dismissal was...

Excerpt: ...were due, Akbar Razavi Sayed Razavi served verified supplemental responses to all the discovery responses. Therefore, the motions are moot except with respect to the issue of monetary sanctions. For purposes of evaluating the request for sanctions only, the following rulings are those that would have applied to the original responses had verified supplemental responses not been served. The court has not considered the supplemental responses. The ...

Excerpt: ...iced hearing.… ‘The hearing may be held either on the motion of the representative to certify the case as a class action; or, on motion by the party opposing the class to dismiss the class action allegations; or, by the court on its own motion....'”].) Thus it is entirely proper for a defendant to bring a motion to deny class certification. This motion, however, fails to demonstrate through admissible evidence why any necessary element for ...

Excerpt: ...the order, and the court respects counsel's right to disagree, nothing about the order needs clarification. It appears the moving parties do Page 2 of 2 not want the order clarified; they want it changed. The moving parties are asking the court to reconsider its prior ruling based on the arguments presented and to modify the ruling accordingly. This is a motion for reconsideration, notwithstanding the title. A motion for reconsideration must: (1)...

Excerpt: ...ing the content of a discovery request or the responses to such a request must be accompanied by a separate statement”, specifically including a motion “[f]or issue or evidentiary sanctions.” (Cal. Rules of Court, rule 3.1345(a)(7).) The court has Page 2 of 3 discretionary power to deny a discovery motion based on lack of a compliant separate statement. (Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.) Defendant does not note this defic...

Excerpt: ...hority for the stay of the PAGA claims pending arbitration of the related claims. When a trial court “has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before” the court, it “shall, upon motion of a party . . . stay the action of proceeding until an arbitration is had in accordance with the order to arbitrate . . . .” (§ 1281.4.) “It is irrelevant under the statute whether the movant...

Excerpt: ... agreement. [Citations.] Only in limited circumstances may an arbitration agreement be enforced by nonsignatories. One such circumstance is where a benefit is conferred on the nonsignatory as a result of the agreement, making the nonsignatory a third party beneficiary of the arbitration agreement. [Citation.] Another is when the equitable estoppel doctrine applies and a nonsignatory is allowed to enforce an arbitration clause because the claims a...

Excerpt: ...) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CIVDS2019176 RULING ON PETITION FOR WRIT OF MANDATE: GRANTED Date: July 12, 2021 Time: 1:30 p.m. Dept: S‐26 ‐ 1 ‐ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I Introduction Petitioner City of Hesperia (the “City”) seeks a writ of mandate to prevent Respondent Lake Arrowhead Community Services District (the “District”)1 from building a solar en...

Excerpt: ...violations. But in this case, there are no individual claims being asserted. Therefore, there is no reason to stay the PAGA case, which is prosecuted by the named representative, acting on behalf of the State. No individual claims for damages are at issue, only penalties under PAGA. Defendant's position that plaintiff must pursue Page 2 of 3 individual claims in arbitration before pursuing claims on behalf of the State, for the benefit of the Sta...

Excerpt: ...while the putative class in this case addresses only post‐shift security checks; 3. Tuliau, the first‐filed case, goes back farther in time than this case; and 4. Tuliau includes claims under PAGA, which this case does not. While Tuliau is broader, there are no claims asserted in this case that are not also covered by Tuliau. Plaintiff argues that abatement is improper because the two cases are not identical, insofar as Tuliau is broader. Thi...

Excerpt: ...ntially to his Parkinson's disease entitling him to a disability retirement under Government Code section 31720. Petitioner argues that SBCERA abused its discretion when it denied him a service‐connected disability retirement. He contends that the detailed medical report of Dr. Bijan Zardouz and Petitioner's testimony, along with that of his wife and other officers, constitute substantial evidence that his employment contributed substantially t...

Excerpt: ...t sanctions should not be imposed under Code of Civil Procedure section 1218. (Notice of Motion, p. 3, lines 12‐12.) Code of Civil Procedure section 1209, subdivision (a)(5), provides that disobedience of any lawful judgment, order or process of the court “are contempts of the authority of the court.” (Code Civ. Proc., § 1209, subd. (a)(5); see also, Ketscher v. Superior Court (1970) 9 Cal.App.3d 601, 604.) An individual or entity can be i...

Excerpt: ...eges that when employees had accrued but unused vacation hours upon separation of employment, Defendant failed to pay for these earned wages at the “final rate” including applicable shift differentials as required by Labor Code section 227.3. (FAC, ¶¶3, 5, 6.) Defendant demurs, asserting that the action is preempted by the federal Labor Management Relations Act of 1947 (29 U.S.C. § 185(a), LMRA) because Plaintiff either claims rights under...

Excerpt: ...d on four safety violations. Petitioner appealed the citations to the Occupational Safety and Health Appeals Board (the “Board”). The appeal involved a four‐day evidentiary hearing conducted by an Administrative Law Judge (the “ALJ”). The ALJ issued a decision upholding two of the citations containing three of the violations, but vacated Citation 2, which involved a $15,300 penalty against Petitioner for violation of 8 Cal. Code Regs. s...

Excerpt: ...ts are sought in the amount of $17,901.15. Counsel, however, has failed to present an itemization of costs in a manner that the court can easily evaluate. Rather than summarizing the costs in a single location, the costs are documented in three separate places: the Karim Declaration ($2,304.44), the Westrick Declaration ($4,256.77), and the Crosner Declaration ($11,264.94). None of the costs were easy to Page 2 of 2 locate, because counsel submit...

Excerpt: ... the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee . . . to proceed with that arbitration as a result of the material breach. (b) If the drafting party material breaches the arbitration agreement and is in default under subdivision (a), ...

Excerpt: ...neral Act, Labor Code section 2698 et seq. (“PAGA”). Each cause of action in the class action complaint is expressly predicated on California law: 1. Failure to Pay All Wages Owed, including Minimum Wages (Labor Code §§ 1194, 1197, 1198) 2. Failure to Pay Overtime (Labor Code §§ 510, 1194) 3. Failure to Provide Lawful Meal Periods (Labor Code § 512) 4. Failure to Authorize and Permit Lawful Rest Periods (Labor Code § 226.7) 5. Failure t...

Excerpt: ...or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. Procedurally, a motion to amend a pleading must (1) include a copy of the proposed amended pleading, which must be serially numbered to differentiate it from previous p...

Excerpt: ...e is mandatory. c. The statute of limitations has expired. According to Talavera's notice to the LWDA, his last day of employment was March 15, 2019. He had one year to file a lawsuit. (Code Civ. Proc., § 340, subd. (a); Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 839.) Under normal circumstances, the limitations period would expire March 15, 2019. Two periods of tolling, however, extended the deadline. Apparently by agreement, the st...

Excerpt: ...ning property and business affairs of the judgment debtor.” (Lee v. Swansboro County Property Owners Assn. (2007) 151 Cal.App.4th 575, 581; Young v. Keele (1987) 188 Cal.App.3d 1090, 1093 [“[T]he examination is intended to be summary and factual according to the widest scope for inquiry concerning property and business affairs of the debtor; the object of the proceeding being to compel the judgment debtor to give information concerning his pr...

Excerpt: ...27, 2021. Based on the supplemental briefing, the motion is granted. The settlement is within the appropriate range considering the factors set forth in Tech‐Bilt, Inc. v. Woodward‐Clyde & Associates (1985) 38 Cal.3d 488, 499. The Settling Defendants' Financial Condition The settling defendants have made a prima facie showing of limited financial resources that can be directed to a settlement fund. Although a settling defendant's financial co...

Excerpt: ...fendants failed to pay minimum wages, overtime wages, and rest period wages, such that these wages were not paid twice monthly because they were not paid at all. Candy Shops, Inc. v. Superior Court (Silva) 210 Cal.App.4th 889, however, held that section 204 addresses only “how wages have been paid,” not “what wages are owed.” (Id. at pp. 904‐905.) Plaintiff argues that Candy Shops is inapplicable because it did not involve a claim for p...

Excerpt: ... of public access. Due to the commercial interest, a substantial probability exists that the interest will prejudiced if the information is not sealed. However, the entirety of the documents do not need to be sealed. The parties have failed to file redacted documents as directed. Before granting the motion, the court needs to review the proposed redactions. 2. Motion to sequence discovery: Grant. Williams precludes requiring the representative pl...

Excerpt: ...The correct Arbitration Agreement (Exhibit C, rather than Exhibit B) only required employees to sign the agreement if they consented to arbitration. Therefore, defendant's evidence is sufficient to show, at least prima facie, that plaintiff signed. Significantly, plaintiff fails to submit a declaration denying that she signed; she only argues that defendant's showing is insufficient. She is mistaken. A document which has been destroyed or is othe...

Excerpt: ...meliness grounds. Plaintiff Martinez, however, has not responded to the motion. If Martinez objects to untimely service, the court will continue the hearing. If Martinez does not object, the hearing will proceed as scheduled. Defendant moves to stay the coordinated cases pending resolution of the Lopes case in Alameda County and the settlement in the Diaz case in Orange County. Defendants argue the claims are issue are largely subsumed by those t...

Excerpt: ... with merits discovery deferred to the second phase, after a ruling on class certification. Most of the discovery in the first phase will be directed to defendant's policies, procedures, and practices, which will encompass the extent of control defendant exercised over the putative class members, a primary issue for misclassification claims. The detailed discovery regarding damages, and the substantial expense involved in conducting that discover...

Excerpt: ...e or summary listing all the key information would be helpful, rather than requiring the court to ferret out the information. Nevertheless, the settlement appears to be fair and reasonable for the class, for the LWDA, and for the aggrieved employees. The amounts to be deducted from the gross settlement amount for attorney fees, administration costs, incentive fees, and employer‐side payroll taxes are all reasonable and appropriate. Counsel, how...

Excerpt: ...iance tiers, based on a ten‐year retrospective assessment of operations: Acceptable, Conditionally Acceptable, or Unacceptable. DTSC assigned Hazmat to the Unacceptable tier for 2019 and the Conditionally Acceptable for 2020. The assignments have consequences, although the parties disagree about the immediate consequences. According to Hazmat, the 2019 assignment requires DTSC to initiate permit denial, suspension, or revocation proceedings, an...

Excerpt: ...the accrual is on a regular basis so that an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12‐month period.” Subdivision (l) allows the employer to calculate paid sick leave for nonexempt employees in one of two different ways. Subdivision (l)(1) allows paid sick time to “be calculated in the same matter as the regular rate of pay for the w...

Excerpt: ...eeding, the District and CSEA failed to mutually agree on the selection of a hearing officer under the relevant provisions of Article 17 of the collective bargaining agreement, and that CSEA objected to the selection of H.O. Macklin. [Writ Page 2 of 13 Petition, ¶ 9.] As a result, when Williams was advised that the District had unilaterally selected H.O. Macklin, Williams objected to the selection and asked to participate in the selection of a n...

Excerpt: ...eeding, the District and CSEA failed to mutually agree on the selection of a hearing officer under the relevant provisions of Article 17 of the collective bargaining agreement, and that CSEA objected to the selection of H.O. Macklin. [Writ Page 2 of 13 Petition, ¶ 9.] As a result, when Williams was advised that the District had unilaterally selected H.O. Macklin, Williams objected to the selection and asked to participate in the selection of a n...

Excerpt: ...ations as alleged in paragraph 22 of the Complaint. (Hudson Decl. Exh. A.) Therefore, defendant argues that Plaintiff and her counsel lack a good faith basis to bring the Complaint. Plaintiff, however, submits her own declaration, stating that during her hiring process she was required to undergo a criminal background check as a condition of employment. She states that Patrick Warden of Defendant's Human Resources Department presented her with a ...

Excerpt: ...n. On 10/21/20, the court issued a ruling to deny certification based on the court's misunderstanding that plaintiff had failed to submit evidence of numerosity and a trial plan. On 11/2/20, plaintiff filed a motion for reconsideration. On 12/22/20, the court granted plaintiff's motion for reconsideration, based on plaintiff's uncontested submission that there were 344 putative class members and because the court had actually deferred the require...

Excerpt: ...l number of work‐weeks in the class period (though May 6, 2021). If this information is not presently available, it can be provided at the time of final approval. At final approval, costs must be specifically itemized. Counsel should be aware that the Court does not award costs for LEXIS or Westlaw research, which the Court considers to be an item of overhead. The Court also limits photocopying charges to $0.06 per page. While the attorney fee ...

Excerpt: ...s different from the class members and the PAGA period. The net class settlement is $156,616.12, which will be divided among the 168 class members based on the number of work‐weeks each worked. With 4,951.68 total work‐weeks, each class member will receive $31.02 per work‐week, with the average receipt of $914.38. The PAGA allocation is $10,000, with 75% ($7.500) paid to the LWDA and 25% ($2,500) paid to the aggrieved employees. Counsel sho...

Excerpt: ...ployees or how their shares will be calculated. But whatever the individual shares would be, the amount to be paid to the named representative—apparently $23,500.00—exceeds the entire amount designated as the PAGA component of the settlement by $20,536.66. Of the $30,000.00 gross settlement amount, the approximate distributions are as follows: 7.22%: Attorney fee 4.56%: “PAGA and administration” costs (unexplained what this means) 7.40%: ...

Excerpt: ...unsteady gait. Using the license plate number provided to him, Officer Stark traced Ortolani to her residence. After arriving at her residence, Officer Stark observed the vehicle described by the other parties to the collision and noted it was warm to the touch. He made contact with Ortolani where he noted she had bloodshot and watery eyes, an odor of alcohol, and slurred speech. Ortalani admitted driving and being involved in the accident. While...

Excerpt: ...o be futile. In moving to strike paragraph 32, pertaining to subsequent penalties, on the ground that there has been no determination of an initial violation, defendant relies on Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1209. In Amaral), the Court found, "Until the employer has been notified that it is violating a Labor Code provision (whether or not the commissioner or court chooses to impose penalties), the employer cannot be p...

Excerpt: ...matters: 1. The number of aggrieved employees. 2. The number of work‐weeks in the PAGA period. Although the motion seeks $25,000 as an estimate of costs, Ms. Carney's declaration documents only $18,433.09 in costs. Included in this amount are the following: 1. $4,309.92 for “Outside Contractor.” Counsel must explain this entry. 2. Counsel also seeks $734.81 for LexisNexis charges. The court considers LexisNexis to be an item of overhead, no...

Excerpt: ...ned before his death. She asserts that the tax basis for the property was established decades ago, either before her father's death or upon his death in 1997. Upon his death, however, the property was transferred not to petitioner alone, but to petitioner and her sisters. Apparently based on equitable concerns,2 the sisters eventually transferred their interests in the property to petitioner by grant deed, recorded in 2015. Based on that transfer...

Excerpt: ...he amount is reasonable. Counsel should confirm the exact amount of the administrator's fee 3. The requested attorney fee of 35% of the gross is excessive under the common fund doctrine and is unsupported by the lodestar analysis, which shows hourly rates substantially exceeding appropriate rates in the relevant community. The court will award 1/3 of the gross under the common fund doctrine, or $1,000,000.00. 4. The incentive fees of $15,000 each...

Excerpt: ...dismiss the individual claims with prejudice, and therefore seeks “reconsideration” of the minute order. While a mistake on the part of counsel would not constitute proper grounds for a motion for reconsideration, and a motion for reconsideration filed more than ten days later would be untimely, no motion was necessary, because the individual claims were never, in fact, dismissed with prejudice. The only papers filed with the court by the dea...

Excerpt: ...Ralph Diaz. On August 14, 2019, Petitioner, a correctional officer with the CDCR was served with a “notice of adverse action” accusing her of violating CDCR policies in connection with an attempted prison escape. Based on the policy violations, Petitioner's salary was reduced by 5% for ten pay periods. Page 3 of 12 Petitioner appealed the notice of adverse action and the appeal was heard by an SPB Administrative Law Judge (ALJ). The ALJ rende...

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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...” (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: ...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: ... 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. ...

Excerpt: ...mental inspection demands. They cite judicial decisions defining “good cause” in other discovery contexts. The cited decisions, however, did not address these particular Code sections and did not arise from cases designated and handled as complex litigation under California Rules of Court, rule 3.750 et seq. Good cause is a flexible concept that allows for considerable discretion by this Court. (Greyhound Corp. v. Superior Court (1961) 56 Cal...