Excerpt: ...levant to the analysis; how Plaintiff characterizes the incident in question and the statements Mr. Halpern makes are not offered for the truth but as background to the motion. Motion: The motion is granted to the extent that Mr. Justin Monical, as the person most knowledgeable, is ordered to comply with the deposition notice and make reasonable efforts, within the District, to obtain information related to the categories in the Deposition Notice...

Excerpt: ...nty; (3) replevin; (4) conversion; (5) declaratory relief; and (6) common count. Plaintiff alleges Defendant owes it $323,640 as the result of Defendant's default on a promissory note. Plaintiff further alleges it has the right to possession of collateral under the terms of the agreement. On August 16, 2019, Defendant filed his operative, amended verified answer. Now at issue is Plaintiff's motion for summary adjudication (MSA) of its own first, ...

Excerpt: ...te the action is initially set for trial, whichever is later, unless the court otherwise permits.” However, this motion could not have been brought earlier because the decision Defendants cite as barring the first three causes of action was only recently decided on April 7, 2022, three days after the initial trial date. Since Code of Civil Procedure section 438, subdivision (e) provides the court discretion to allow for a latefiled motion (impo...

Excerpt: ...oard Resolution No. 20.21.17, “Resolution to Release and Reassign Certificated Administrative Employees Pursuant to Education Code 44951” (Exh. F); 6. District Board Minutes for March 23, 2021 meeting (Exh. G); 7. District Board Resolution No. 20.21.19, “Resolution to Release and Reassign Certificated Administrative Employees Pursuant to Education Code 44951” (Exh. H); and 8. District Board Minutes for May 11, 2021 meeting (Exh. I). Stric...

Excerpt: ...l briefing be filed and served according to Code. No further briefing has been filed and the Court interprets this as each party's request that the Court now decide the motion based on the prior pleadings filed. Motion: The motion is granted. Whether a defendant is subject to personal jurisdiction in the forum state involves two separate factors. Namely, (1) the basis for jurisdiction or the existence of a constitutionally‐sufficient basis for ...

Excerpt: ... if so, on what grounds. Coordination requires a finding that the cases are complex. Some courts designate PAGA cases as complex and some do not. The latter choice, however, is based more on an administrative rule for judicial assignment to accommodate judicial case loads, as opposed to a case‐specific analysis of complexity. In any event, no authority is cited for the proposition that the designation on the civil cover sheet is controlling for...

Excerpt: ...h 486 [holding arbitration was proper for claims against both the manufacturer and retailer under an arbitration provision with language the same as the one currently at‐issue].) The agreement is not unconscionable. The Fourth District Court of Appeal has taken the position that “[t]o describe a contract as adhesive in character is not to indicate its legal effect.... [A] contract of adhesion is fully enforceable according to its terms [Citat...

Excerpt: ...d failures to act—the alleged failure to maintain the hotel, failure to inspect and keep the hotel free of bed bugs, and failure to warn Plaintiffs the room being rented to them was infested with bedbugs. To hold that these allegations support the intentional tort of battery would be to greatly expand battery to include most negligence claims, as virtually all negligence injuries involve some sort of harmful or offensive contact resulting from ...

Excerpt: ...endant did not challenge that. No new cause of action is asserted in the amended complaint. Rather, plaintiff seeks to add factual allegations to support the existing causes of action. Defendant does not explain how standing that is already pled is lost by the amendment. Under the false advertising and fraudulent prong of a UCL claim, the named plaintiff must show actual reliance on the false advertisement or misrepresentation. (In re Tobacco II ...

Excerpt: ...ast Community Clinic (filed Nov. 30, 2021) 2021 Cal. App. LEXIS 992 as legal authority, not as evidence. Judicial notice is unnecessary and improper. Judicial notice is denied. Ruling on Evidentiary Objections: Sustained. Defendants submitted a declaration of Michele Carroll, a Human Resources manager, who testifies to material facts based on her review of email archive records and Plaintiff's employment records. Those records, however, have not ...

Excerpt: ...eged Ochoa separately subjected Plaintiffs to harassment based on their sex or gender, Defendant did nothing in response to their complaints, which ultimately resulted in their constructive termination. (¶¶ 9‐11.) Plaintiffs filed their Complaint August 4, 2021, asserting causes of action for: (1) Harassment (Hostile Work Environment) in Violation of FEHA Based on Sex; (2) Discrimination Based on Sex in Violation of FEHA; (3) Retaliation in V...

Excerpt: ...ees or supervisors under Labor Code section 1102.5. Plaintiff's Eighth Cause of Action for Violation of Labor Code section 1102.5: Both sides provide persuasive arguments concerning legislative analysis concerning whether or not there is individual liability against employees or supervisors under Labor Code section 1102.5. Defendants concede that liability may lie against individual persons who retaliate on behalf of an employer—for example, at...

Excerpt: ...ployee “shall be compensated for rest and recovery periods and other nonproductive time separate from any piece‐rate compensation.” (Lab. Code, §226.2, subd. (a)(1); Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36, 52‐53.) Defendant Deckerargues that its compensation structure— providing that mileage‐based piece‐rate compensation includes all non‐driving, on‐duty time—is legally compliant. Decker employed Threadg...

Excerpt: ...amended complaint (FAC) alleges causes of action for (1) premises liability; (2) general negligence; and (3) negligence per se. Plaintiff alleges she was visiting a family member at the Del Mar apartments. While at the pool, she walked to the restroom and slipped on the wet and slippery concrete surface in the hallway between the restroom doors. Before falling, Plaintiff did not see or appreciate that the area was unusually slippery due to the im...

Excerpt: ...or Production of Documents (RFP). (Declaration of Thomas Dreblow, ¶ 4; Exhibit A to Dreblow Dec.) On October 4, 2021, Defendant served unverified responses that were also not code‐compliant. (Dreblow Dec., ¶ 5; Exhibit B to Dreblow Dec.) Defendant served its verifications October 26, 2021. (Dreblow Dec., ¶ 7; Exhibit D to Dreblow Dec.) On October 22, 2021, Plaintiffs sent their initial meet‐and‐confer letter, explaining why Defendant's r...

Excerpt: ..., or that Defendant intended Plaintiff to rely on the representations. Plaintiff argues the cause of action is well pled. A fraudulent concealment claim requires a plaintiff to plead the following: (a) defendant concealed or suppressed a material fact; (b) defendant was under a duty to disclose the fact to the plaintiff; (c) defendant intentionally concealed or suppressed the fact with the intent to defraud the plaintiff; (d) plaintiff was unawar...

Excerpt: ...s liability arising from an accident that occurred at 5775 Riverside Drive in Chino on January 7, 2019. The complaint alleges the accident was caused by “uneven concrete.” Defendant supervised, maintained, owned, and controlled the premises. (Complaint, ¶¶4, 8, 9.) On March 13, 2022, Defendant filed the instant motion for summary judgment on grounds the defect was both (1) trivial; and (2) open and obvious. Plaintiff opposes and Defendant r...

Excerpt: ...nduct against Borer and his wife, which includes defaming, threatening, and yelling at them. On April 28, 2022, the Court granted Borer's ex parte request for a temporary restraining order. Thereafter, Respondent Clarke moved ex parte to set on short notice a hearing on her Anti‐Slapp Motion. That ex parte was granted with the Anti‐Slapp Motion attached to the Ex Parte being deemed filed on May 20, 2022. Petitioner Borer opposes by way of see...

Excerpt: ... the settlement. Counsel should provide evidence that the LWDA has been notified of the pending PAGA settlement. (This can be deferred to final approval.) Counsel should also provide the estimated number of aggrieved employees and aggregate number of work‐weeks or pay periods in the PAGA period. Page 2 of 4 CVS260060222 15. Sampson v. GJ Gentry General CIVDS1926604 Motion to Compel Arbitration Tentative Ruling: Do arbitration agreements exist? ...

Excerpt: ...on whereas between Capre and Cohen, the acts alleged arise out of an employer/employee relationship. To support a fiduciary duty, Capre needs to plead facts in support of a confidential relationship with Cohen.  SUSTAINS Cohen's special demurrer to the Cross‐Complaint for uncertainty, with leave to amend, for Capre to correct the property address.  DENIES the motion to strike. Allegations directed to duties owed Zee and the property selle...

Excerpt: ... in November 2019 (the who, what, when, and how or where). Scott similarly represented via e‐mail just after the transaction was funded that she would reimburse defendants and defendants thereafter went forward with the rescission and incurred the unpaid fees and costs (again outlining the who, when, what, and how or where). These specific allegations, coupled with the elements of the claim as outlined in the pleading, are particularized and st...

Excerpt: ...Regular Meeting Agenda and attachments; (2) City of Adelanto November 9, 2016 City Council Amended Regular Meeting Agenda and Attachments; (3) City of Adelanto Ordinance No. 557; and (4) City of Adelanto Ordinance No. 558. (These document are attached to counsel's concurrently filed declaration.) The two ordinances are subject to judicial notice either Evidence Code section 452, subdivision (b), which authorizes judicial notice of legislative ena...

Excerpt: ...an filed a joint Opposition to the Demurrers and a joint Opposition to the Strike Motions. Defendants filed replies. Without any authorization or statutory authority, Plaintiffs filed a response to the replies which is inappropriate. The Court did not consider Plaintiffs' response to the replies. Having considered the parties' moving papers, the Court rules as follows: A. Defendant Kohler's Demurrer (1) SUSTAIN with 20‐days leave to amend Defen...

Excerpt: ...ident. With these limitations, the court grants the motion to compel regarding Special Interrogatory Nos. 10‐12, 13, 40‐41, and 44. The court overrules the objections and grants the motion to compel a further response to Special Interrogatory No. 14. The response that an interrogatory is not applicable is not a substantive response. Defendant shall provide further responses as set forth above within 10 days from the date of this order (May 23...

Excerpt: ...hat the allegations are ambiguous, uncertain and unintelligible pursuant to Code of Civil Procedure section 430.10, subdivision (f) is overruled, because based upon a review of Plaintiffs' First Amended Complaint (FAC), and taking the allegations of Plaintiffs' First Amended Complaint as a whole, Plaintiffs' FAC and specifically, Plaintiffs' Fifth, Sixth, Tenth, and Eleventh Causes of Action contained therein are not so vague or so ambiguous or u...

Excerpt: ...FAC) comprised of over 1121 paragraphs (not including the 186 paragraph Prayer of the FAC), seeks to hold Seller's Choice and Reyes, an escrow officer and escrow company, liable based upon a series of loan transactions. According to Plaintiffs' FAC, Plaintiffs entered into various loans with co‐defendant Kevin Zhang and/or his entities, and that Plaintiffs suffered damages because Plaintiffs did not receive the loan monies, and instead the loan...

Excerpt: ...hom remain only Skanska USA Civil West California District, Inc. and Skanska‐Rados. Through the operative fourth amended, Plaintiff alleges that she owns real property that Defendants improperly trespassed upon in completing the I‐215 widening project and in reconstructing of the 16th Street Bridge. Defendants' use of Plaintiff's property was unauthorized and by its encroachment Defendant removed a tree, stripped vegetation, placed an unstabl...

Excerpt: ...dmitted motion”].) Here, that is precisely what Inland has done. Plaintiff Virginia Carillo contends the responses are not substantially code‐compliant, in part because Inland denied 13 of the 22 requests, and it admitted six requests, yet it did so elaborating on its admission or denial. However, this is not required under section 2033.220, which allows a party to either admit or deny a request, and there is no requirement that Inland explai...

Excerpt: ...fficult to distinguish between what expert will testify as to what aspect of the vehicle. Thus, at the very least good cause had been shown for an order requiring GM to provide a bit more specificity as to the expert testimony. This would better flush out if there will be duplicative testimony and if some of the experts should be excluded all together. GM has since indicated it would limit its expert designation to one witness, Timothy Minich. Th...

Excerpt: ...not complied with the claims presentation requirement of the California Tort Claims Act, and has failed to allege circumstances excusing compliance. Government Code section 910 provides a notice must be sent to the public entity, identifying the claimant, the nature and circumstances of the event giving rise to the claim, the nature of the indebtedness, damage or loss being claimed, and the name or names of the public employees who caused the dam...

Excerpt: ...3) Plaintiffs Respondent: (1)‐(2) Plaintiffs (3) Defendants The People of the State of California, acting by and through the Department of Transportation Page | 2 I. MOTION FOR SANCTIONS a. Statement of Law – Motions for Sanctions Pursuant to Code of Civil Procedure sections 128.5 and 128.7 Code of Civil Procedure1 section 128.7 provides for the imposition of sanctions for filing “frivolous” pleadings. However, the awarded sanctions are n...

Excerpt: ... Set No. One 4. Your Care's Motion to Compel Lamar Berryman to respond to Request for Production of Documents, Set No. One 5. Westprime's Motion to Compel ESP Healthcare Group, LLC to Respond to Request for Production of Documents, Set No. One 2 6. Westprime's Motion to Compel Zitro Medical LLC to respond to Request for Production of Documents, Set No. One 7. Westprime's Motion to Compel Integrity Medical Solutions LLC to Respond to Request for P...

Excerpt: ... Alegre (2009) 177 Cal.App.4th 1277, 1293‐1294; Leko v. Cornerstone Building Inspection Services (2001) 86 Cal.App.4th 1109, 1124 [“Implicit in the requirement that counsel contact the deponent to inquire about the nonappearance is a requirement that counsel listen to the reasons offered and make a good faith attempt to resolve the issue”].) In addition, Defendant's objections were justified, and Plaintiff's position regarding the scope of ...

Excerpt: ... separate statement. 2. The Court grants Defendant Hyundai's motion for summary judgment. Hyundai demonstrates Plaintiff is bound by the class action settlement under which she released her claims. Further, the first and second causes of action are time‐barred. (Evidentiary Basis: Defendant Hyundai's Undisputed Facts Nos. 2‐16, 21, 23; Settlement Agreement (Exh. B); District Court Order Granting Final Settlement Approval (Exh. C); Amended Sup...

Excerpt: ...Special Interrogatories (2) Motion to Deem Requests for Admissions Admitted (3) Motion to Compel Responses to Requests for Production (4) Motion to Compel Response to Form Interrogatories Movant: Plaintiffs Keri Bedol and David Lawrence Respondent: Montclair Royal Senior Living, Inc. The moving party has filed moving papers requesting a ruling from the Court re a Discovery issue. A Discovery Conference Order (herein after DCO) was given in this c...

Excerpt: ...n one year later. He filed suit on September 20, 2021. Defendant's position is straightforward: Notice to the LWDA must be filed within one year of termination, and plaintiff was four months late. Therefore, he failed to timely exhaust his administrative remedies. Plaintiff's position is more complicated. Fundamentally, the argument seems to be that PAGA does not directly impose a time limitation for submitting the notice. The only time limitatio...

Excerpt: ...g the motion in his Report Number 11. On March 4, 2022, Plaintiff filed a request for Oral Argument on this Motion before the Referee and on April 27, 2022, in Report #12, the Referee recommended that the Court deny the request. Plaintiff then directly requested that the Court consider oral argument on the Motion and the Court granted it. After considering the written papers filed in support and in opposition, the Court's tentative is to grant th...

Excerpt: ...G's initial deposition even without prior knowledge of the purported new evidence. Alternative causation is virtually a ubiquitous defense in personal injury cases. (See e.g. the District's answer to the complaint.) As a result, good cause has not been shown for a second deposition as to topics “a,” “b,” and “e.” The “additional information” topic is simply too broad and therefore good cause has not been shown for topic “h.” M...

Excerpt: ... Rehabilitation (“CDCR”) to vacate approval of a project where CDCR Page 3 of 16 CVS260050922 proposes to build a fifty‐bed “Mental Health Crisis Facility” at the Chino Institute for Men (“CIM”). The project is one of several mental health facilities CDCR plans to build in response to an order from the United States District Court for the Eastern District of California, which found that CDCR lacked sufficient beds to meet the needs ...

Excerpt: ...nswer as provided in Section 430.30, to the pleading on any one or more of the following grounds: … (e) The pleading does not state facts sufficient to constitute a cause of action. (f) The pleading is uncertain. As used in this subdivision, ‘uncertain' includes ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) & (f)1 ; see § 430.50, subd. (a) [demurrer may be taken to whole pleading or to any of the causes of action s...

Excerpt: ... Court (Ingrassia) (2003) 114 Cal.App.4th 475, 480‐81) the privacy right is personal to the individual and “does not survive but dies with the person.”1 (Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 821‐22, overruled by statute on other grounds per Timed Out, LLC v. Youabian, Inc. (2014) 229 Cal.App.4th 1001, 1008; Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 869‐70; Flynn v. Higham (1983) 149 C...

Excerpt: ...ral Motors, LLC to serve further responses to special interrogatories 5, 14, 23, 40, 42, 43, and 45. (3) GRANTS Plaintiff's motion to compel Defendant General Motors, LLC to serve further responses to RFPs 6, 54, and 63. (4) DENIES Plaintiff's motion as to RFPs 38‐41, 47‐50, 61, and 62. Analysis and Bases re Denial Plaintiff's motion appears problematic as it relates to RFPs 38‐41 and 47‐50. The moving party must establish “good cause�...

Excerpt: ...t while corporations are nominal defendants in shareholder derivative suits, they are actually plaintiffs. (Forrest, supra, 58 Cal.App.4th at p. 74; Blue Water, supra, 192 Cal.App.4th at p. 489 [explaining such corporate entities are “actually plaintiffs in the eyes of the law.”].) Defendants' opposition is premised almost entirely on Opinion 1999‐153 (attached to Exh. B to Sichi's declaration) and its interpretation of what is now rule 1.1...

Excerpt: ...dice the other aggrieved employees. The court requires an analysis of the individual claims. 4. The incentive fee ($5,000) may be unnecessary in light of the individual settlement. Counsel should address why both payments (individual settlement and incentive award) are appropriate. The court also needs a declaration from the representative explaining what she has done to warrant the incentive award. Page 2 of 3 CVS260050622 5. The settlement admi...

Excerpt: ...s argument ignores Code of Civil Procedure section 599, which provides that notwithstanding any other law, a trial continuance extends any deadlines that had not already passed as of March 19, 2020, unless the court expressly orders otherwise. That means, each trial continuance automatically continued the discovery cutoff dates to be governed by the new trial in that the Court here has not expressly ordered otherwise. Thus, the motions were timel...

Excerpt: ...) (2012) 53 Cal.4th 1004, 2023.) With one possible exception, plaintiff has presented substantial evidence showing that each procedural requirement for class certification is present, which defendant fails to contest with contrary substantial evidence. The class is shown to be ascertainable, plaintiff's claims are shown to be typical of class claims, common questions of law and fact are shown to predominate over individual issues, the representat...

Excerpt: ...ities are not actionable. This argument does not support the demurrer. Exhaustion of Administrative Remedies – A demurrer is properly sustained based on failure to plead exhaustion of administrative remedies. (Tejon Real Estate, LLC v. City of Los Angeles (2014) 223 Cal.App.4th 149, 156.) Grand Terrace Municipal Code section 5.04.250 requires an administrative appeal to the city council of any decision of the collector made under Municipal Code...

Excerpt: ...malice under Section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 892.) The court in Taylor directed the trial court to reinstate the punitive damage allegations in plaintiff's complaint because there were allegations of defendant's history of alcoholism, his prior arrest and convictions for drunk driving, his prior accident at...

Excerpt: ... utilized to attack a response containing objections, an agreement to comply that is incomplete, or a statement of inability to comply that is incomplete or evasive. (Code Civ. Proc., § 2031.310, subd. (a).) A motion for an order compelling further responses “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) ...

Excerpt: ...finition of "professional negligence" in Code Civ. Proc., § 340.5, has four elements: (1) a negligent act or omission to act by a health care provider in the rendering of professional services; (2) which act or omission is the proximate cause of injury or wrongful death; (3) provided that such services are within the scope of services for which the provider is licensed; and (4) which are not within any restriction imposed by the licensing agency...

Excerpt: ...porting Policy, exhibit 7 to Green's Deposition [Exh. D], (4) a handwritten note, exhibit 7 to Green's Deposition [Exh. D], (5) the October 5, 2017, email, exhibit 10 to Green's Deposition [Exh. D], (6) table with notes, exhibit 9 to Green's Deposition [Exh. E], and (7) table with notes, exhibit 14 to Spina's Deposition [Exh. G] on the grounds of lacks foundation, irrelevant, hearsay, and/or improper opinion: The Court sustains (irrelevant). Anal...

Excerpt: ...ing on the issue whether the class claims should be dismissed. Defendant has since acknowledged that arbitration of the individual claim is improper given the nature of the claim. The purported class action waiver is found within the “Employee Agreement to Arbitrate Disputes.” It provides: Except as otherwise required under applicable law, Employee and Employer expressly agree that: (1) class and collective action procedures are waived, and s...

Excerpt: ...nety days expired July 15, 2020. Petitioner did not file his petition in court until January 4, 2021. On September 4, 2020, however, Petitioner requested a second appeal. But under Ordinance 46, section 1‐1.105, subsection (c), the April 16, 2020, decision was “final.” There is no provision in the Ordinance for a second appeal whether before or after the ninety day statute of limitations for judicial review has expired. Therefore, the proce...

Excerpt: ...tay proceedings pending Viking River Cruises decision may be cited for persuasive value, if any, but since they are not controlling and are not evidence, judicial notice of them is denied. Similarly, papers filed in the Viking River Cruises case are irrelevant. The only fact that is relevant is that the United States Supreme Court has taken up the issue and will decide it shortly. Judicial notice of that fact is taken. A decision should be issued...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...ce of the demurrer. However, even if service was defective for some reason, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.] Page | 2 This rule applies even when no notice was given at all.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Since Whisler substantively opposes ...

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

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

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

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

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

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

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

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

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

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