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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 01/20/2018 at 8:10pm



The Tentative Rulings for Monday January 22, 2018 are:

Re:             Pena v. Keystone Freight Corp., et al.

Case No.:   VCU 269897

Date:          January 22, 2018

Time:          8:30 A.M. 

Dept.          1-The Honorable Melinda Reed

Motion:      Plaintiff Alex L. Pena’s Motion for (1) Preliminary Approval of Class Action Settlement; (2) Approval of Notice to Class Members and Related Materials; (3) Approval of Settlement Administrator and (4) Setting Hearing for Final Approval of Settlement

Tentative Ruling:  To deny Plaintiff Alex L. Pena’s Motion for (1) Preliminary Approval of Class Action Settlement; (2) Approval of Notice to Class Members and Related Materials; (3) Approval of Settlement Administrator and (4) Setting Hearing for Final Approval of Settlement, without prejudice.

1. Sufficiency of Amount of Settlement ($150,000)

Insufficient information has been submitted as to the basis of the settlement amount for the court to make the merits evaluation required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 129.

The discussions should show a detailed factual explanation of the information obtained and a damages model for each violation of the Labor Code asserted as to each class member or groupings of class members. The discussions should also show a description of all sums including penalties and interest plaintiff might obtain with an outright victory, and the fraction represented by the settlement.

As to the settlement value, plaintiff asserts total employee adjusted gross wages were paid in the amount of $4,000,000.00 and 3% of that amount is $120,000.00 which supports the settlement amount of $150,000.00.

But, no damage model and insufficient information has been submitted to show how plaintiff calculated the adjusted gross wages to be $4,000,000. 00 based upon the unadjusted gross wages of $5,464,613.47.

There is also insufficient information as to how and why plaintiff utilized the employer’s affirmative defense available under Labor Code section 226.2(b)(1)(B) in justifying the settlement amount.  The defense under section 226.2(b)(1)(B) is available if the employer using a piece-rate compensation system pays employees an additional amount equal to 4% of an employee’s gross earnings less 1% for amounts already paid for nonproductive time.

However, the defense is available only for wages paid prior to December 31, 2015.  In addition, the employer must have paid the additional amount to employees no later than December 15, 2016, to qualify for the defense.

Due to the prior class action settlement, plaintiff asserts only wages paid in 2016 and later are viable in this case. It would appear that the 4% cure defense under section 226.2 would not be applicable to any of plaintiff’s claims. As such, there is no rationale indicated for applying the cure defense in the first instance as a basis for determining the settlement value. Additionally, insufficient information has been submitted for further reducing the settlement amount by a 1% offset.

2. Enhancement Awards to Class Representative

Insufficient information has been provided for the enhanced award to plaintiff as the class representative. The court needs a non-hearsay declaration submitted by the plaintiff indicating the hours he spent on the case. Plaintiff needs to compare and justify the enhanced award with the average award to class members.

3. Attorneys’ Fees

The ultimate goal of the court is to award reasonable attorneys’ fees irrespective of the method of calculation. As such, the court needs to know the approximate lodestar supported by declarations for preliminary approval.

4. Claims Administrator

Insufficient information has been submitted as to the qualifications of the claims administrator and basis for the fee requested.

6. Proposed Order Granting Approval of Settlement and Setting a Settlement Fairness Hearing

The court is not inclined to allow for a settlement fairness hearing. Any issues regarding objections to the settlement and payment of fees and costs, including attorneys’ fees, can be heard on the hearing on the motion for final approval of the settlement.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:          Orosco, et al. v. McMillin Homes Construction, Inc., et al. 

Case No. VCU 251712  

Date:       January 22, 2018

Time:       8:30 A.M. 

Dept.       1-The Honorable Melinda Reed

Motion:   Financial Pacific Insurance Company’s Motion for Leave to Intervene on Behalf of Cross-Defendant Royce Nalls & Sons Masonry, Inc.

Tentative Ruling:  To grant Financial Pacific Insurance Company’s Motion for Leave to Intervene on Behalf of Cross-Defendant Royce Nalls & Sons Masonry, Inc.

Proof of service in the court’s file indicates notice of the motion to strike was adequate.  No response to the motion has been filed.

Here, Financial Pacific Insurance Company underwrote a commercial liability policy for cross-defendant Royce Nalls & Sons Masonry, Inc., a suspended California corporation that lacks the capacity to be represented in this action. 

Insurance Code section 11580 provides that a judgment creditor may proceed directly against any liability insurance that covers the defendant and obtain satisfaction of judgment to the extent of the insured’s policy limits.  Where an insured is barred from defending itself, an intervention is required to protect an insurer’s own interests as it may be obligated to pay any judgment obtained against its insured.  (Reliance Insurance Company v. Superior Court (Wells) (2000) 84 Cal.App.4th 383, 386-387.)

In short, Financial Pacific Insurance Company has sufficiently shown an interest in this matter so as to allow its intervention under Code of Civil Procedure section 387(b). Financial Pacific Insurance Company shall file and serve its proposed complaint in intervention within 10 days’ notice of the court’s order.
 
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:            Vargo v. Pregis Innovative Packaging, LLC

Case No.:  VCU 270836

Date:         January 22, 2018

Time:         8:30 A.M. 

Dept.         1-The Honorable Melinda Reed

Motions: (1) Maynard A. Buck’s Verified Application for Admission to the Bar of this Court Pro Hac Vice; (2) Johanna F. Parker’s Verified Application for Admission of to the Bar of this Court Pro Hac Vice; and (3) Adam E. Primm’s Verified Application for Admission of to the Bar of this Court Pro Hac Vice

Tentative Rulings: To grant (1) Maynard A. Buck’s Verified Application for Admission to the Bar of this Court Pro Hac Vice; (2) Johanna F. Parker’s Verified Application for Admission of to the Bar of this Court Pro Hac Vice; and (3) Adam E. Primm’s Verified Application for Admission of to the Bar of this Court Pro Hac Vice.
 
Proof of service in the court’s file indicates notice of the applications is adequate. No response to the applications has been filed.

Here, the submitted applications and supporting memorandum of points and authorities show the statutory requirements under California Rule of Court, rule 9.40 have been satisfied. Accordingly, the applications are granted.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:             Trujillo v. Dark Horse Express, Inc., et al.

Case No.:   VCU 270208

Date:          January 22, 2018

Time:          8:30 A.M. 

Dept.           1-The Honorable Melinda Reed

Motion:       Defendant William Petty’s Motion for Relief from Default Judgment (sic)

Tentative Ruling: To grant Defendant William Petty’s Motion for Relief from Default Judgment (sic).

Here, plaintiff Alvaro Trujillo gave defendant William Petty an extension to answer plaintiff’s complaint on or before October 17, 2017, after Petty was served with the summons and complaint on September 1, 2017. Petty is an officer of defendant Dark Horse Express who retained an attorney in this matter.

At the case management conference hearing on November 1, 2017, counsel for Dark Horse Express stated he would not be representing Petty but believed Petty, who was not present, was seeking counsel and his intent was to respond to the complaint once counsel was retained. In response, the court told plaintiff’s counsel to “secure an appearance or entry of default” as to Petty.

The very next day, counsel for Petty, Joseph R. Beery, contacted plaintiff’s counsel and informed him of Petty’s intent to participate in the lawsuit. Although, default had not yet been entered, plaintiff’s counsel refused to agree to allow Petty to appear. Significantly, default was not entered against Petty until several days later on November 8, 2017, and again, after Petty’s counsel informed plaintiff of his intent to appear.

As such, based upon the parties’ relationship and under the circumstances of this case, Petty has sufficiently shown excusable neglect in not timely responding due to his reasonable reliance on a third party to defend. (Don v. Cruz (1982) 131 Cal.App.3d 695, 700.)

Accordingly, under Code of Civil Procedure section 473(b), the motion is granted. Petty is directed to file and serve his proposed answer within ten days’ notice of the court’s order.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:             Magana, et al. v. Sustaita, et al.

Case No.:   VCU 271415

Date:           January 22, 2018

Time:           8:30 A.M. 

Dept.           1-The Honorable Melinda Reed

Motion:       Defendants Domingo Sustaita, Villa Park Trucking, Inc. and Young’s Commercial Transfer, Inc.’s Motion to Strike Portions of Plaintiffs’ Complaint for Damages

Tentative Ruling:  To grant Defendants Domingo Sustaita, Villa Park Trucking, Inc. and Young’s Commercial Transfer, Inc.’s Motion to Strike Portions of Plaintiffs’ Complaint for Damages.

Proof of service in the court’s file indicates notice of the motion is adequate. No response to the motion has been filed.

Defendants Domingo Sustaita, Villa Park Trucking, Inc. and Young’s Commercial Transfer, Inc.’s  request for judicial notice is granted.

Plaintiffs Maria Guadalupe Magana and Javier Magana’s complaint for damages arising out of a fatal truck-on-bicycle accident includes requests for recovery of punitive damages, decedent’s pain and suffering, and funeral expenses.

As to punitive damages, the complaint does not allege any factual allegations to support a showing of malice, oppression, or fraud as required by Civil Code section 3294.  Moreover, under section 3294(b), there has been no showing defendant employers Villa Park Trucking, Inc. or Young’s Commercial Transfer, Inc. individually acted with malice or that their principals ratified the conduct of Sustaita.

As to damages for pain and suffering and funeral expenses on the survival cause of action, plaintiffs are barred from recovery under Code of Civil Procedure section 377.74 which prohibits damages incurred after death and damages for pain, suffering, or disfigurement.

Accordingly, the motion is granted under Code of Civil Procedure section 431.10. If no one requests oral argument, the court is prepared to sign the proposed order submitted.

 


This concludes the civil tentative rulings



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