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: ... 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: ...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: ...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: ... 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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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...