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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ... about the father and, apparently, made unwarranted calls to the police about the father. The daughter had been cutting herself, and attributed the behavior to an attempt to relieve the pressure she was receiving from her mother. The reason for the cutting may be that simple, or it may be far more complicated, involving complex and overlapping psychological and sociological factors. No medical or psychiatric evidence was presented concerning the ...

Excerpt: ...e fine would have on petitioners; (3) the fine constitutes cruel and unusual punishment; (4) the evidence is insufficient to support the fine; and (5) petitioners are not the owners of property. Petitioners fail to demonstrate each ground. Conduct of the Proceedings in English Petitioners cite to no statute, regulation, or case law imposing a requirement that administrative proceedings be conducted in Spanish nor that a certified translator must ...

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

Excerpt: ...ure to Provide Meal Breaks; 3. Failure to Provide Rest Breaks; 4. Failure to Reimburse Expenses; 5. Failure to Pay Final Wages; 6. Failure to Provide Accurate Itemized Wage Statements; and 7. Unfair and Unlawful Competition.1 Plaintiffs move for class certification on all class claims except the claim for Failure to Reimburse Expenses. Plaintiffs propose the following class: All current and former non‐exempt employees employed by Defendants H&I...

Excerpt: ...d Proposed Amended Complaint be deemed filed and served as of the date this motion is granted. Plaintiff properly discloses what the amendments are in the proposed Second Amended Complaint. (See Decl. Shan, Exhibit 1.) Plaintiff moves for leave to file a Second Amended Complaint to add Chevron U.S.A. Inc. dba Chevron Products Company as a defendant, as it has been uncovered through discovery that Chevron U.S.A. Inc. dba Chevron Products Company i...

Excerpt: ... recovery and the settlor's proportionate liability CareMore argues that the total recovery is limited by the MICRA limit of $250,000 against medical providers, and the amount of the confidential settlement is $165,000. (Confidential Decl. of Wendy Coulston at ¶¶5‐6.) The single cause of action against CareMore is for wrongful death by medical malpractice. The complaint alleges the medical malpractice defendants, including CareMore, negligent...

Excerpt: ...ggrieved employees.” 1 Defendant filed an Answer on January 23, 2020, and the parties proceeded with litigation. On October 14, 2022, following the decision by the United States Supreme Court in Viking River Cruises v. Moriana (2022) 59 Cal.4th 348, Defendant filed a motion to compel arbitration. In Viking River, the Court held that the Federal Arbitration Act, 9 U.S.C. 1 et seq. (“FAA”), preempts the California Supreme Court's decision in ...

Excerpt: ... filed a motion to compel arbitration. In Viking River, the Court held that the Federal Arbitration Act, 9 U.S.C. 1 et seq. (“FAA”), preempts the California Supreme Court's decision in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, which had precluded bifurcation of PAGA claims into individual and non‐ individual components. Now, under Viking River, if the parties have entered into an enforceable arbitration agreemen...

Excerpt: ...ment. But Defendant has failed to demonstrate that the purported English translation of the document, which would otherwise demonstrate an agreement to arbitrate, is an accurate translation of the Spanish language document. Therefore, no agreement to arbitrate has been shown to exist. As for unconscionability, assuming arguendo that the purported English translation is an accurate translation of the document plaintiff signed, plaintiff fails to d...

Excerpt: ... for Judicial Notice Included in Defendant's appendix of evidence is a request for judicial notice of three government claim forms submitted by Plaintiff to Defendant. (RJN Exs. A‐C.) Defendant's request is unopposed. Page | 2 Government claims are generally proper subjects of judicial notice. (See Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376 [“If a plaintiff alleges compliance with the claims presentation requirement, but the pub...

Excerpt: .... The rulings assume, to some extent, what evidence will be presented and that issues are germane, which may not turn out to be the case. The Court reserves the right to exclude any such evidence upon proper objection during the trial depending upon what occurs at trial. The denial or grant of these motions is without prejudice. I. PLAINTIFF'S MOTIONS IN LIMINE: Motion in Limine #1 – Exclude Evidence Regarding Alleged Absence of Prior Similar I...

Excerpt: ...from the person operating the business. The business name is a fiction, and so too is any implication that the business is a legal entity separate from its owner.” (Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348.) On March 3, 2018, default was entered against Leabo. On March 26, 2018, Preuss answered. On March 17, 2022, Plaintiff filed an amendment to its complaint to correct the name of Leabo to “SC Medical Products, In...

Excerpt: ... On May 25, 2022, the Court granted, in part, Defendant's motion for judgment on the pleadings. The Court granted the motion as to Plaintiff's fifth through eighth causes of action but denied the motion to the extent it was brought on statute of limitations grounds, “without prejudice.” (Order, filed 5/26/22.) On September 6, 2022, notwithstanding the fact that no amended complaint has been filed, Defendant filed this second motion for judgme...

Excerpt: ...as‐Bailey (“Petitioner” or “Bailey”) on April 21, 2022. The petition sought an order to appoint a neutral arbitrator pursuant to Code Civ. Proc., §1281.6, paragraph 1, on the following grounds: 1. February 2, 2019, Petitioner sustained injuries to her neck and back when the vehicle she was driving was stuck from the driver side by a vehicle driven by Mr. Robert Puckett (“Mr. Puckett”); 2. Metlife, insurance for Mr. Puckett, tendere...

Excerpt: ...following time line:  August 2019: Plaintiff's termination of employment. (SAC, ¶10.)  July 1, 2020: Plaintiff's notice to LWDA of claims against EmployBridge. (Plaintiff's attorney James R. Hawkins 7/18/22 Decl., ¶ 3.)2  July 2, 2020: Plaintiff's class action complaint against EmployBridge.  October 1, 2020: Plaintiff's First Amended Complaint, adding PAGA.  October 30, 2020: Plaintiff sent HiRel copy of her amended notice to th...

Excerpt: ...ubalcaba are Overruled in their entirety; (3) Defendants' Sixteen Evidentiary Objections to Declaration of Francesca Sparks‐Copeland are Overruled in their entirety; Page | 2 (4) Defendants' 118 Evidentiary Objections to Declaration of Dr. Melda Gaskins are Overruled in their entirety; (5) Defendants' Ten Evidentiary Objections to Declaration of Taylor M. Prainito are Overruled in their entirety; (6) Defendants' Evidentiary Objections to Plaint...

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

Excerpt: ...tration Act, 9 U.S.C., section 1 et seq. The issue is whether the agreement falls within the scope of Viking River. 3 Viking River confirms the primary holding of Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, that “wholesale” waivers of the right to bring representative actions (which include PAGA actions) in court or in arbitration are unenforceable. This agreement provides contains such a “wholesale” waiver: To ...

Excerpt: ...tice, and [(2)] lack of prejudice, to the defendant, and [(3)] reasonable and good faith conduct on the part of the plaintiff.' (Addison, supra, 21 Cal.3d at p. 319.) These requirements are designed to ‘balanc[e] … the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the [operative] limitations statute.'” Saint Francis Memorial Hospital v. State Dept. ...

Excerpt: ...leadings, with the exception of the purported first amended complaint in this case (because it is not on file). “Trial courts generally have the inherent power to stay proceedings in the interests of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) “[S]taying an action is an act of discretion which "may not be arbitrary; it must be exercised in conformity with the spirit of t...

Excerpt: ...mary judgment. Jimenez v. Protective Life Ins. Co. (1992) 8 Cal.App.4th 528 “a trial court may overlook the failure of a notice of motion to state a ground for relief when the supporting materials discuss and support that ground for relief so that it is clear that relief is sought on that ground. In that situation, the trial court may treat the supporting papers as curing the defective notice. [Citations.]” Luri v. Greenwald (2003) 107 Cal.Ap...

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

Excerpt: ...Inc. (2021) 72 Cal.App.5th 56, 77.) The court must find that the plaintiff “has adequately represented the state's interests, and hence the public interest.” (Id. at p. 89.) The LWDA must have been notified of the settlement and given an opportunity to object. The Proposed Settlement The amount of the settlement ($100,000.00) for an estimated 65 aggrieved employees is appropriate given the strength of plaintiff's case and the risks of litigat...

Excerpt: ...th 56, 77.) The court must find that the plaintiff “has adequately represented the state's interests, and hence the public interest.” (Id. at p. 89.) The LWDA must have been notified of the settlement and given an opportunity to object. The Proposed Settlement The motion states that the net settlement (after the proposed deductions) is “no less than $72,400.00.” (Motion iii:6.) The arithmetic is wrong. The net (based on the proposed deduc...

Excerpt: ...o Espinosa and Celia Espinosa filed this lemon law action against Defendant American Honda Motor Co., Inc. Plaintiffs' complaint, which relates to their purchase of a new 2021 Honda Insight, includes three causes of action: (1) breach of express warranty; (2) breach of implied warranty; and (3) fraudulent inducement (concealment). Now at issue is Defendant's demurrer to Plaintiffs' third cause of action, and Defendant's motion to strike Plaintiff...

Excerpt: ...iff's individual PAGA claim, this court can simply stay the nonindividual PAGA claims pending a decision in Adolph. If the California Supreme Court agrees with the United States Supreme Court's decision in Viking River Cruises that, under California law, the non‐individual PAGA claims should be dismissed, this court can do so at that time. If the California Supreme Court disagrees with the United States Supreme Court, this court can make such f...

Excerpt: ...08 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the s...

Excerpt: ...ctions and organ failure (¶12). Mabudian treated his patients, including Cody, with Intravenous Immunoglobulin Therapy (“IVIg”), which is costly. Because it is costly, Beaver attempted to have Mabudian discontinue its use through various policies. When Mabudian refused to stop IVIg, he was terminated (¶¶17‐25, 27‐28). Defendants informed Mabudian's patients, including Cody, that Mabudian was no longer employed at Beaver. They then prec...

Excerpt: ...g. Plaintiff was hired by Staffmark and was assigned to work at Ceva Logistics. Plaintiff alleges that she and other workers were subjected to various Labor Code violations. She asserts class and PAGA claims against both defendants. Staffmark and Ceva separately move to compel arbitration. Plaintiff does not oppose arbitration of her individual claims (including her individual PAGA claim pursuant to Viking River Cruises). The arbitration agreemen...

Excerpt: ...ses the motion to compel arbitration for both the class action and the PAGA action. Application of the Federal Arbitration Act The outcome of the motion hinges in part on whether the Federal Arbitration Act (FAA) governs. As explained below, it does not because the “transportation worker” exemption applies. In support of their motions, Defendants filed the declaration of MHX LLC's vice president, Alex Nicholas, who declares MHX Holdings, LLC ...

Excerpt: ...bligations of an LLC, defendants completely ignore the alter ego allegations within the complaint. (Compl. at ¶ 7.) Page | 2 Under the alter ego doctrine “where a corporation is used by an individual or individuals, or by another corporation, to perpetrate fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, a court may disregard the corporate entity and treat the corporation's acts as if they were done by the...

Excerpt: ...ufactures, and sells medical insulin‐based devices and products. As part of its business, it has access to customers' confidential protected health information (“PHI”) and personal identifiable information (“PII”). In March 2020, Tandem announced that between January 17 and 20, 2020, the PHI and PII of 140,781 customers, comprising the putative class, were subject to a phishing attack (¶¶1‐3, 10‐ 14, 39‐40, 43‐49, 55‐56, 76)...

Excerpt: ...mpany (HUDSON) was the value of the subject vehicle, i.e., $5,999 [as agreed by the parties in the summary adjudication facts]. Hudson paid that amount and an additional dollar, thus, all relief afforded under Vehicle Code § 11711, subdivision (a), was afforded. While Plaintiffs assert, under DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1158 (“DeSaulles”), that they are the prevailing party as the dismissal c...

Excerpt: ...hould be remanded to the Contra Costa County Superior Court. I Application of the Federal Arbitration Act The parties appear to assume the Federal Arbitration Act (FAA) applies. Although no evidence is presented to demonstrate application of the FAA, plaintiffs do not dispute it, presumably due to the well‐known nature of Lowe's expansive business and retail operations which would necessarily involve interstate commerce. The court assumes the F...

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

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

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

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

Excerpt: ...t evidence appears to show.” Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115. The Court cannot decide this issue by demurrer. Moreover, the document is not properly authenticated. Defendant's Evidentiary Objection: 1. overruled. 2. sustained 3. sustained 2 Demurrer: Preliminarily, the Court does not consider Plaintiffs' First Amended Complaint (FAC) to be a “sham pleading.” Plaintiffs assert that the vehicle co...

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

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

Excerpt: ...res are by plaintiff and an “Authorized Company Representative” for Knolls West Post Acute. The problem is that Knolls West Post Acute is not mentioned anywhere in the body of the agreement, and the primary contracting party, Spring Valley Post Acute, did not sign it. The purported agreement also appears to be cobbled together, perhaps for purposes of this motion. As presented, it is five pages longs. The first, third, and fifth pages do not ...

Excerpt: ... PAGA claims should be dismissed or stayed pending completion of the arbitration. Defendant asserts that it did not waive the right to compel arbitration because a motion to compel arbitration would have been futile under Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, which was controlling law until the United States Supreme Court's recent decision in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906. Therefore, i...

Excerpt: ...Arbitration Act. (Gillespie Decl. Exhs. D & H – Arbitration Agreements ¶ 3.) The only issue before the court is the application of Viking Rivers Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, to the arbitration agreements and whether it supports the relief requested. The relevant portions of the Arbitration Agreements provide: 12. Representative Action Waiver. Employee further agrees that Employee is waiving the right to bring, or to particip...

Excerpt: ...d National Union's Complaint Plaintiff National Union Fire Insurance Company of Pittsburgh, PA (National Union)1 filed this action against Defendants Prime Healthcare Services, Inc. (PHS); Prime Healthcare Foundation, Inc. (PHF); Prime Healthcare Management, Inc. (PHM); Desert Valley Hospital, Inc. (Desert Valley); High Desert Heart Vascular Institute (High Desert); and Dr. Prem Reddy, M.D., FACC (Reddy).2 The first amended complaint (FAC) allege...

Excerpt: ...ny other applicable [but unspecified] privilege. Many of these objections (e.g., vague and ambiguous) go to the form of the request and, as such, are improper because they are designed to protect a witness during oral examination, not when “the answer is to be made in writing, after due time for deliberation and consultation with counsel” since any such “answer may be framed [to] avoid the pitfalls, if any, inherent in the form of the quest...

Excerpt: ...tment, Department S‐26. On June 17, 2022, the court denied defendants' motion to compel arbitration. The court ordered defendants to file a responsive pleading and lifted the stay on discovery. Defendants, however, appealed the denial of the motion to compel arbitration. It would appear that discovery was stayed pending the appeal, but the Court of Appeal issued a Notice of Default on Appeal on September 22, 2022, indicating that the appeal wou...

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

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

Excerpt: ... or future, we will use binding arbitration as the exclusive forum for the resolution of such disputes and I join with the Employer in agreeing that federal law will control. I further agree that Employer and I hereby join in waiving both (i) any and all right to initiate or participate in any form of class action or other collective or representative proceeding (“Class Action Waiver”) for the resolution of any Employment‐related Dispute, a...

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

Excerpt: ...s the following analysis and ruling on the merits. As a preliminary matter, Petitioner is correct that Code of Civil Procedure section 35 may apply to this litigation. The statute provides: “Proceedings in cases involving … the certification or denial of certification of ballot measures, election contests, and actions under Section 20010 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be gi...

Excerpt: ...equate representation for the class; and that common questions of law or fact predominate over individual issues. (Brinker Restaurant Corp. v. Superior Court (Hohnbaum) (2012) 53 Cal.4th 1004, 1021‐1022.) Both counsel have addressed these issues in detail. But counsel have failed to address whether the case, if certified, is manageable. In Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 28, 29, the 3 Although the fee is 35% of the gross ...

Excerpt: ... of aggrieved employees or the aggregate number of pay‐periods during the PAGA period. 2 Subject to possible adjustment of costs. See fn. 4 infra. Page 5 of 8 CVS26100422 v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plaintiffs' cas...

Excerpt: ... (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of Page 2 of 8 CVS26100422 plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent...

Excerpt: ...f action (for declaratory and injunctive relief) is barred by the four year statute of limitations. (Code Civ. Proc., § 337(1).) Defendant argues that the cause of action accrued when plaintiff made the last payment, on October 6, 2016, but the lawsuit was not filed until December 14, 2021, more than four years later. If this were a debt collection action filed by defendant, the action would likely be barred under Code of Civil Procedure section...

Excerpt: ... statement of the court's tentative ruling. The court may adopt, modify or reject the tentative rulingafter considering the parties' oral arguments. The tentative ruling will have no legal effect unless adopted by the court. No notice of intent to appear is required. If you wish to submit on the tentative decision, you may send a telefaxtoJudge Borrell's secretary, Tammy Brantner, at 805‐477‐5894, stating that you submit on the tentative. A c...

Excerpt: ...d Sur‐Reply to Defendants' Motion to Compel Payment of Rent. The Court also received an Objections of Defendant Cynthia Inez Lopez to Galgano's Notice of Joinder and Sur‐Reply. The Court sustains Ms. Lopez' objections and declines to consider the Sur‐Reply and Joinder as being untimely. II. DISCUSSION Defendant Cynthia Ines Lopez seeks an order requiring payment of rent. Plaintiffs oppose the motion, asserting it is an attempt to seek a man...

Excerpt: ...t, rule 3.769.) The moving party must demonstrate that “the settlement is fair, adequate and reasonable.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 126; Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I‐V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court may consider include “the strength of plai...

Excerpt: ...October 14, 2022. The current responses potentially leave open the possibility that some documents, beyond the privileged documents, were withheld pursuant to the privilege or some other objection since only a list of what items Defendant Ozuna was willing to produce was provided and production was made without waiving the objections. (See Code Civ. Proc., § 2031.220 [outlining the requirements of a document demand response].) 2. The witness sta...

Excerpt: ...t any fellow employee responsible for injuries “arising out of and in the course of employment.” (See Labor Code, §§ 3600‐3602, 5300.) Workers' compensation is generally the exclusive remedy for disabling injuries, whether physical or mental, arising from employment (or termination of employment), unless: (1) the injury results from employer conduct that falls “outside the normal course of employment”; or (2) the employer's conduct fa...

Excerpt: ...ies. This argument has no merits. To prevail in a negligence action, a plaintiff must show the defendant owed a legal duty to her, the defendant breached that duty, and the breach proximately caused injury to the plaintiff. [Citation.] A defendant does not owe a legal duty to protect against third party conduct, unless there exists a special relationship between the defendant and the plaintiff. [Citation.] In that circumstance, “[i]n addition t...

Excerpt: ...ther Ford nor Ken Grody are signatories to the RISC. The RISC includes a section entitled Arbitration Provision which states, in relevant part, Any claim or dispute, whether in contract, tort, statute or otherwise … between you and us or our employees, agents, successors or assigns, which arises out of or relates to your … purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such rel...

Excerpt: ...On December 11, 2020, Defendant answered. Now at issue is Defendant's motion for summary judgment (MSJ) of Plaintiff's complaint. Plaintiff filed a timely opposition. Defendant filed a timely reply. II. DISCUSSION A. Summary Judgment – Statement of Law Summary judgment motions enable a court to determine the opposing party's pleadings lack evidentiary support and to limit or terminate the action accordingly: “The purpose of the law of summary...

Excerpt: ...ach of express warranty; (2) breach of implied warranty; and (3) fraudulent inducement (concealment). Now at issue is Defendant's demurrer to Plaintiffs' third cause of action, and Defendant's motion to strike Plaintiffs' punitive damages claims. Plaintiffs filed an opposition to each motion. Defendant filed a reply to each opposition. II. DISCUSSION A. Demurrer 1. Statement of the Law – Demurrer A demurrer is a pleading used to test the legal ...