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: ...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: ...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: ...��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: ...date Hearing Date: January 11, 2022 Page 4 of 105 CVS26011922 I Introduction Petitioners, Save Our Forest Association, Inc., the Sierra Club, and the San Bernardino Audubon Society, seek a writ of mandate ordering Respondents, the County of San Bernardino and the County Board of Supervisors, to rescind approval for Real Party in Interest, Church of the Woods, to build a church and related facilities in the San Bernardino Mountains. Petitioners br...

Excerpt: ...Code as required by PAGA. A copy of the notice is attached as exhibit 1. The 19 page notice is sufficiently detailed for pleading purposes. Plaintiff has standing to pursue claims under PAGA because she was allegedly worked at Kaiser and personally suffered one or more Labor Code violations. (See FAC ¶ 8, 28, 55.) 1 Defendant's request for judicial notice is granted. It does not affect the outcome of the motion. Page 3 of 3 CVS26011822 Identifia...

Excerpt: ...f he thinks it is not in the best interest of the class. These principles have not changed since the last hearing when the court denied intervention, and the court will not revisit the same points it made previously. Razo, however, does not rely exclusively on his previous grounds for intervention. He now argues that the proposed settlement is improper, based on Ferra v. Loews Hollywood Hotel, LLC (2021) 11 Cal.5th 858. 1 Ferra held that the term...

Excerpt: ...yment terminated before commencement of the PAGA period do not participate in the PAGA portion of a settlement. Class members who opt out of the class settlement still participate in a PAGA settlement if they worked during the PAGA period. The settlement agreement improperly identifies the PAGA aggrieved employees as the participating class members. (¶ 50.) Counsel should therefore provide estimates of the number of aggrieved employees and the t...

Excerpt: ...ia law to reimburse its current and former employees for their work‐related business cell phone expenses; failed to provide compliant rest periods; Page 3 of 4 CVS26122221 failed to provide compliant meal periods and/or pay missed rest and meal period premiums; failed to issue accurate/complete wage statements; failure to pay all wages due upon termination to . . . the aggrieved employees.” After the 65 day period required to exhaust administ...

Excerpt: ...e same thing. (Choi Declaration ¶ 5.) The Parks Declaration states later on, however, that actual costs incurred are $2,936.43. The declaration references Exhibit 3, but that seems to indicate $10,435.43 in costs. Counsel needs to clarify the amount of costs sought in the motion. If counsel seeks $3,500 in costs, the net settlement, after all deductions, is $8,166.67, not $9,166.67 as stated in the motion. The court assumes this difference is th...

Excerpt: ...il October 15, 2019, when her employment was terminated based on allegations she shoplifted a $2.99 protein bar from an ARCO AM/PM convenience store. (Pet. 1, 7.) Page 5 of 13 CVS26122021 After a three‐day administrative hearing, the hearing officer issued a written, advisory report stating the City failed to carry its burden of demonstrating good cause for Petitioner's termination and further stating Petitioner should be reinstated and made wh...

Excerpt: ...ium. Given the nature of the work in the hospital caring for patients, defendant had no means to know that a meal or rest break was missed or interrupted unless a premium was requested. Plaintiffs acknowledged that requesting a premium was the only way defendant would know that a premium was due. Plaintiffs made requests for premiums, and uncontradicted evidence showed that every time they requested payment of a premium, defendant paid them. Ther...

Excerpt: ...reduction is approximately $130. Counsel has not addressed why the class size estimate was so far off or how the reduction still results in a fair settlement. 2. The request for a 35% fee award is not supported, especially in light of the substantially smaller per class member share due to the unanticipated increase in the class size. If the court approves the settlement, the court will award a fee of one‐third of the gross, or $75,000.00. 3. T...

Excerpt: ...ng parties are the prevailing parties entitled to an award of fees. Absent such a contract, fees can only be awarded in connection with the defense of the claim for misappropriation of trade secrets. Trade Secrets: Under Civil Code section 3426.4, an award is available to a prevailing defendant if the claim was made in bad‐ faith. A lack of evidence to support the claim can satisfy the standard. The court granted the moving parties' motion for ...

Excerpt: ...ulate the amount each aggrieved employee would receive per pay‐period worked, a more accurate measure of fairness than the average receipt. Some employees may have worked only a few payperiods; others for the entire period. The proposed deductions are excessive. Usually, an attorney fee of one‐third of the gross is appropriate under the common fund doctrine, but under the circumstances of this case, where the resulting net is so small, this s...

Excerpt: ... overruled) or the motion to strike (which the court denied) was brought in bad faith or was frivolous, as defined in the statute (totally and completely without merit). 1 Defendants Harbor Development Disabilities Foundation, Inc. and Eastern Los Angles Regional Center for the Developmentally Disabled, Inc., filed notices of joinder in the demurrer filed by Inland Regional Center. Page 2 of 7 CVS26120821 2. Demurrer by Inland Regional Center The...

Excerpt: ...8, 11, 14, 20, 27, 28, 34, 35, 36, 391 , 40, 44, and 45. The objections are overruled. The responses, which were provided subject to the objections, are evasive. While every employee (over 4,600 in over 200 1 The separate statement misquotes Special Interrogatory 39. The interrogatory actually asked: “IDENTIFY all similarly situated employees who YOU content BSRO owes unpaid overtime.” Page 2 of 2 CVS26120721 business locations according to d...

Excerpt: ...dquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 251‐ 52.)1 In other words, generally, the court determines the enforceability of an arbitration agreement. (Ajamian v. CantrorCO2e, L.P. (2012) 203 Cal.App.4th 771, 781.) Under the California Arbitration Act (CAA), the same is also true, i.e., generally, the court determines whether an arbitration contract exists and is enforceable. (Chin v. Advanced Resh Concepts Franchise Corp. (20110 194 ...

Excerpt: ...e on appellate court's own motion].) 2. Judicial notice is taken of Exb. 4, the google maps printout. (See United States v. Perea‐ Rey (9th Cir. 2012) 680 F.3d 1179, 1182, fn. 1 [finding “Google map” to be a source “‘whose accuracy cannot reasonably be questioned'”]; Evid. Code, § 452, subds. (g), (h).) 3. Judicial notice is denied for Exb. 5‐7, printouts from the U.S. Post Office Website. (See Jolley v. Chase Home Finance, LLC (20...

Excerpt: ...g, not the contents of the declaration, which could be true or false. The act and date of filing is not demonstrated to be relevant. Procedural Objection Petitioner's argument that the demurrer is procedurally defective because the demurrers were not set forth in a separate document is without merit. The “Notice of Demurrer and Demurrer” clearly and unambiguously delineates the grounds for the demurrers. Third Cause of Action Petitioner alleg...

Excerpt: ...l date would not change the deadlines absent a stipulation of the parties. This deposition and motion would be untimely under these rules. Due to the pandemic, however, Code of Civil Procedure section 599, subdivision (a), was enacted, extending all deadlines for the same length of time as a trial continuance, although the court could rule otherwise. Douenga filed a Notice of Ruling on the ex parte application to continue the trial, indicating th...

Excerpt: ... The request for judicial notice is granted except as noted below: Exb. 3. The Filamore‐Angel original complaint. Relevance. Exb. 9, 12. The LWDA notices. Relevance, as explained below. (If they were relevant, judicial notice would be limited to the dates of filing and the statements made for notice purposes, but not for the truth of those statements.) 1 Page 5 of the complaint is missing, though defendants reference allegations regarding the t...

Excerpt: ... (1994) 29 Cal.App.4th 482, 488; Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1808 [offended party may move in the arbitration proceedings to terminate for failure to pursue arbitration claim with reasonable diligence]; Blake v. Ecker (2001) 93 Cal.App.4th 728, 737‐738 and fn. 8, overruled on a different ground in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 fn. 5 [“Defendants' only avenue for redress when plaintiff fa...

Excerpt: ... With a class size of 33, each class member would have received, on average, $6,451.91. With a class size of 57, the average receipt is reduced to $3,735.31, a 42.1% reduction. The court is concerned about the fairness of the settlement for the class in light of the substantially lower payments. On the other hand, no class member has opted out or objected. Counsel should be prepared to address the overall fairness of the settlement. Especially in...

Excerpt: ...‐558.1), or any provision regulating hours and days of work within any order of the Industrial Welfare Commission (IWC). Similarly, section 1197.1, subdivision (a), provides for a civil penalty against any Page 3 of 4 CVS26112221 employer or “other person acting either individually or as an officer, agent, or employee of another person,” who pays or causes to be paid less than the minimum wages. The California Supreme Court has held that se...

Excerpt: ...nt practice association (“IPAs”) and medical groups are not intended to be in this lawsuit (“Excluded Claims”)[.] (June 1, 2020 Stipulated Order at p. 1:10‐ 12 [Blue Cross' RJN, Exh. A; Exh. D to Glarum Decl.; and Exh. E to Jazaeri Decl.].) A stipulation is binding between the parties thereto unless illegal or contrary to public policy. (Tanner v. Title Ins. & Trust. Co. (1942) 20 Cal.2d 814, 821; Hehr v. Swendseid (1966) 243 Cal.App. 1...

Excerpt: ... at least sixteen court days before the hearing). As for the claims of plaintiff Neri, the court imposed a deadline for defendant to file a responsive pleading of September 10. Plaintiff contends the motion to compel arbitration is untimely, because it was not filed by September 10. Plaintiff has confused the two deadlines. Defendant's responsive pleading to plaintiff Neri's claims was timely filed on September 10.1 The motion to compel arbitrati...

Excerpt: ...responsive statements. Defendant has failed to comply with its discovery obligations under the Code of Civil Procedure and this court's prior orders, by asserting frivolous objections, by providing responses that are ambiguous and not in compliance with the Code of Civil Procedure, by continuing to assert objections after the court overruled them, and by failing to timely produce all responsive documents in response to the court's orders. The ten...

Excerpt: ..., at least sixteen court days before the hearing). As to plaintiff Neri, the court ordered that a responsive pleading would be due no later than September 10, 2021. Defendants filed a demurrer and a motion to strike on September 14, 2021, four days after the deadline. Plaintiff, however, does not appear to object to the untimely filing of the demurrer and motion to strike and no prejudice is shown. The filings were compliant with the requirements...

Excerpt: ...d to propose a narrow sealing order. It may be that portions of Schedule A to Exhibit A and Exhibit C (e.g. dollar amounts) are appropriate to seal, with redacted versions filed publicly. Motion to Compel Arbitration of Individual Clams and Dismissal of Class Claims Plaintiff does not dispute that an arbitration agreement exists, nor does she contend that is substantively or procedurally unconscionable. Rather, she contends that the agreement is ...

Excerpt: ...s inappropriate, especially for a relatively small settlement such as this. Many courts do not award any “incentive” awards in “PAGA only” cases . This court views a maximum $5,000.00 award as appropriate. (Reducing the incentive award brings the penalty amount to $79,847.60.) 3. Counsel has provided only estimates for the number of aggrieved employees (109) and the total number of pay‐periods for all aggrieved employees collectively (1...

Excerpt: ...leads the following class: All current and former non‐exempt employees paid on a salaried basis and misclassified as “exempt” who worked for any of the Defendants within the State of California at any time during the period from March 13, 2015, to final judgment. Lollicup moves to deny class certification. Rules of Court, rule 3.767(a)(3), provides that in the conduct of a class action, the court may require the pleadings be amended to elim...

Excerpt: ...ois v. Goel (2005) 35 Cal.4th 1094, 1108: “We agree that it should not matter whether the ‘judge has an unprovoked flash of understanding in the middle of the night' [Citation] or acts in response to a party's Page 2 of 7 CVS26101921 suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.…” (See also In re Marriage of Herr (2009) 1...

Excerpt: ...ggs, and (5) Charles Hohman (collectively cross‐defendants). The City also asks the court to deem the action moot because cross‐defendants are no longer in possession of the property where an unlicensed marijuana dispensary was operating, and the nuisance has therefore been abated. After extensive litigation, the court issued a preliminary injunction to prevent the operation of a marijuana dispensary on the property, which the Court of Appeal...

Excerpt: ...nses to most of the RFPs, RFAs, and Form Interrogatories. (Exh. 11 to Cabada's Decl.) As supplemental responses were served, this motion is moot as to (a) RFPs #20‐21, 23, Page 2 of 4 CVS26101421 42, 45, 47, 51, 74, and 77, (b) RFA #19, and (c) Form Interrogatories #200.6, 201.1, 201.4, 201.5, 201.6, 207.1, 214.1, 215.1, 216.1, and 217.1.1 The only requests remaining at issue are RFP #5 and # 38, RFA # 17, and Form Interrogatory # 214.2. RFP # ...

Excerpt: ...ness name for defendant. Plaintiff is mistaken. While the evidence is sparse, it is sufficient. Defendant's Human Resources (HR) manager, Esther Magallanes, submitted a declaration authenticating the arbitration agreement. (Magallanes declaration ¶ 14.)1 She declares that plaintiff “became employed by Office Star on December 9, 2016 to work as a Shipping Clerk for Office Star's Elm warehouse in Fontana.” Magallanes worked in the office that ...

Excerpt: ...'s Human Resources (HR) manager, Esther Magallanes, submitted a declaration authenticating the arbitration agreement. (Magallanes declaration ¶ 14.)3 She declares that plaintiff “became employed by Office Star on December 9, 2016 to work as a Shipping Clerk for Office Star's Elm warehouse in Fontana.” Magallanes worked in the office that day and was present during plaintiff's orientation. (Magallanes Decl. ¶¶ 7‐14.) Additionally, the pro...

Excerpt: ...rth; Amanda Hollingsworth; Brett Hollingsworth; HUC Corp.; Michael Robbins; Dieter & Irene Lange; Jacobs Landscape Services Inc. (JLC); Dale Jacobs; and Autumn Jacobs.1 Plaintiff asserts that several Defendants failed to respond to written discovery or served responses past the due date, and thereby waived objections. It argues that issues with discovery in which late responses or no responses were provided have no deadline to move to compel. As ...

Excerpt: ...er filed declaration, but includes two new declarations, a declaration of Kevin Mahoney and a Supplemental Declaration of Kevin Mahoney. The Supplemental Declaration addresses costs. It states that the costs “total seven thousand, one hundred eighty‐one dollars and seventy two dents ($2,440.21) [sic].” The verbal statement appears to be a typographical error; the figure as stated in Arabic numerals is correct. Nevertheless, the court will n...

Excerpt: ...ed by either a coordination motion judge or a coordination trial judge. If a stay has been imposed, this court cannot proceed further unless and until the stay is lifted. The motion for fees and costs. June 21, 2021, the court issued a written tentative ruling on plaintiff's motion for attorney fees and costs incurred in the arbitration proceeding that plaintiff alleges defendant abandoned. The court has not ruled on the motion, but continued the...

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. Page 6 of 9 (b) If the drafting party material breaches the arbitration agreement and is in default under subdi...

Excerpt: ...gn and return a copy of this letter to me soon as possible. Also attached is an employment agreement. Please sign and scan/e‐mail a copy to…” (Sporer Decl., Ex. 1, p. 2, underlining added.) Plaintiff signed the letter electronically below the statement: “I accept the position offered by the Andersen Logistics under the terms described in this letter.” Essentially, the parties' arguments boil down to the following. Defendant argues that ...

Excerpt: ...lt and time‐consuming for the court to analyze costs by failing to summarize the costs in a single location, but across four separate declarations. While lawyers from different law firms must individually document their costs, they should also be grouped together in a single location for the court's convenience. Page 3 of 4 CVS26073021 2. Confirmation that the administrator's fee is not to exceed $25,000.00. 3. Confirmation that employer‐side...

Excerpt: ... only that there 2,059 participating members, without separately listing the number of class members and the number of PAGA aggrieved employees. Class members whose employment terminated before commencement of the PAGA period do not participate in the PAGA settlement, and putative class members who opted out of the class settlement still participate in the PAGA settlement if their employment fell within that time period. The settlement administra...

Excerpt: ...s no jurisdiction to enforce any settlement among non‐parties. These entities, if they are included in the settlement, will need to be made parties and make general appearances (including payment of first appearance fees in the complex litigation department). The hearing can be continued to a later date to accomplish this. The motion is unclear as to the amount of fees and costs sought. Nevertheless, the settlement agreement clearly provides th...

Excerpt: ...efore unfairly prejudice the defendants with respect to the Page 2 of 2 CVS26073021 claims of other plaintiffs who do not claim corruption, although the City, as the moving party, is apparently unconcerned about that. Nevertheless, the differing motivations attributed to the City could be challenging for the trier of fact to parse. Some plaintiffs have demanded jury trials, while others have not. If the cases are tried together, with the jury sit...

Excerpt: ...igures may differ from the estimates if the court adjusts the amounts of other deductions from the gross settlement funds.) Counsel has provided an estimate for the Snow fund, although the figure seems too low. The court has not located estimates for the other two settlements. Page 2 of 2 CVS26073021 2. Counsel should provide the number of aggrieved employees for each settlement fund (insofar as the number differs from the number of class members...