Motion,Ex Parte: Everardo Rodriguez Corona-V-Skyline Construction Services, Inc. Print

S-CV-0052082 Beck, Misty et al vs. UCP of Sacramento and Northern Caliifornia No appearance required. CMC is continued to 10/28/24 at 3pm in Dept. 6.

Matter on the Discovery Calendar for Friday, Jul-26-2024, Line 7, PLAINTIFF JULIA MALDONADO'S MOTION TO COMPEL DEPOSITION OF EXPERT WITNESS. Continued to September 3, 2024 at 9:00 a.m. on the court's own motion. =(D302)

GERMAN VS LA FLOURE RIC2001841 MOTION FOR ATTORNEY'S FEES LLC Tentative Ruling: The Court grants Plaintiff’s motion for attorney fees in the amount of $161,230.00 with an additional $2,210 for paralegal Flores. The request for a multiplier is denied. Plaintiff is awarded her costs as stated in the Memorandum of Costs. Factual / Procedural Context The facts related to this matter are described above. However, briefly stated, by stipulation, a bench trial was conducted from 1/16/24 to 1/18/24. On 2/16/24, the Court issued a written Statement of Decision ruling in favor of Defendants on the FEHA Complaint, but in favor of Plaintiff on the wage and hour Complaint awarding her $11,594.80 in damages. *** Plaintiff, Claudia German, brings this motion for an award of attorneys’ fees ($235,187.50) plus a multiplier of 1.25 for a total of $293,984.38, and costs ($17,661.69.) (Cal. Rules of Court, Rule 3.1702; CCP § 1032, and Labor Code §§ 218.5, 226, and 1194.) Plaintiff asserts that counsel should be fully compensated for their work; that the lodestar amount is reasonable in hours spent and hourly rates; and a multiplier is necessary to achieve full compensation. Plaintiff argues that she is the prevailing party by having earned a monetary award on her wage and hour claims at trial, and pursuant to the Court’s 5/24/24 ruling on her motion to deem her the prevailing party; that the relevant Labor Code sections authorize an award of attorneys’ fees; and, that the size of the damages recovered does not dictate the attorneys’ fee award. Defendants oppose the motion arguing that Plaintiff’s limited recovery ($11,594.80) out of her claim for $200,000 in damages does not justify attorneys’ fees and costs of $311,646.07; that Defendants successfully defended 94% of the $200,000 claim; that Plaintiff is not the prevailing party and its motion for reconsideration should be granted; that contrary to Plaintiff’s claims, defense counsel acted properly at all times; and, that this case does not involve vindication of any important rights. The Reply asserts that the Opposition fails to cite to legal authority for their baseless position that Plaintiff’s counsel is not entitled to fees requested; that Defendants have not challenged Plaintiff’s counsel’s billing practices or hourly billing rates or any specific entries that should be reduced or stricken; that Plaintiff has already been determined to be the prevailing party; that Plaintiff has already limited her attorney’s fees and costs to only those related to the wage and hour claims portion of the action (not FEHA claims); and, that Defendants are not the “arbiters” of what are and are not important rights. Analysis The matter of reasonableness of a party’s attorney fees is within the sound discretion of the trial court. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) Fee motions should be based on detailed time records. (Crespin v. Shewry (2004) 125 Cal.App.4th 259, 271.) The records should detail crucial information as the types of issues involved, services performed, numbers of hours, billing rates, etc. (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559.) The court is then entitled to make its own evaluation of the reasonable worth of the work done in light of the nature of the case and the credibility of counsel’s declaration, unsubstantiated by time records and billing statements. (See Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587; see also Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1394.) In determining the reasonable amount of attorney fees, the court first determines a lodestar figure (time reasonably spent by each biller multiplied by an hourly rate that is reasonable for each biller). (Serrant v. Priest (1977) 20 Cal.3d 25, 48.) In exercising its discretion, the Court may consider all of the facts and the entire procedural history of the case in setting the amount of a reasonable attorney fee award. (Bernardi, supra, 167 Cal.App.4th 1379, 1394; see also PLCM Group, supra, 22 Cal.4th at 1096 (factors considered in determining the reasonableness of a party’s attorney fees include the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given and the success or failure). The court does not need expert testimony to determine the reasonable amount of a fee award. (PLCM Group, supra, 22 Cal.4th at 1095.) A “reasonable” hourly rate is the prevailing rate charged by attorneys of similar skill and experience in the relevant community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Here, Jonathan P. LaCour of Employees First Labor Law, P.C., declares that he is the President and Managing Attorney of the law firm, which is dedicated to protecting the rights of employees in the workplace. (Dec.LaCour ¶¶ 1-2.) He was admitted to the State Bar of California in 2012 (12 years in practice), and his entire practice is dedicated to labor and employment disputes. (Id. ¶ 2.) He declares he was assisted in this case by Lisa Noveck, Esq., Jameson Evans, Esq., and Adrian Flores (paralegal). (Id. ¶ 3.) Mr. LaCour declares that he normally bills at $850 per hour but used a reduced rate of $700 per hour for this case. (Id. ¶ 17.) Ms. Noveck was admitted to the Bar in November of 2017 (6 ½ years in practice), normally bills at $725 per hour, but is requesting the reduced rate of $575 per hour. (Dec.Noveck ¶¶ 3, 10.) Mr. Evans was admitted to the Bar in November of 2021 (2 ½ years in practice), normally bills at $600 per hour, but requests the reduced rate of $450 per hour. (Dec.Evans ¶¶ 3, 9.) Adrian Flores declares he worked as a Litigation Support Member at the Knight Law Group and began working as a paralegal for this law firm in September of 2021, and requests an hourly rate of $250 per hour. (Dec.Flores ¶¶ 3, 6.) In addition, Plaintiff has offered additional declarations of experts who claim the hourly rates set forth above are reasonable within the legal community. David M. deRubertis of the deRubertis Law Firm, APC, declares he concentrates on handling and trying employment matters on behalf of employees in California. (Dec.deRubertis ¶ 3.) He has been in practice since November of 2000, had conducted 31 trials, and obtained multiple multi-million dollar verdicts. (Id. ¶¶ 6-7.) He is a recognized expert in employment law who knows Plaintiff’s attorneys and declares they have outstanding reputations as aggressive, yet ethical advocates. (Id. ¶¶ 13- 21.) He declares that most of his practice is contingency-based, but his current hourly rate is $1,300 per hour. (Id. ¶ 23.) He opines that the requested rates are “more than reasonable and more than in line with the prevailing market rates” and are even “a bit below prevailing market rates.” (Id. ¶ 24.) He provides examples of case in Los Angeles County where rates were awarded up to $1,350, and other firms charge rates above those requested by Plaintiff’s counsel here. (Id. ¶¶ 26-33.) Mr. deRubertis has also reviewed the National Law Journal Billing Survey for 2017, 2016, and 2014, which indicated hourly rates above what is being requested here. (Id. ¶¶ 34-36; see also Dec.LaCour ¶¶ 38-45.) Brian Brieter, Esq. declares he has been in practice since 1999, has tried more the 50 civil jury cases, and obtained multiple 7-figure results. (Dec.Brieter ¶¶ 3-6.) He opines that the rates being requested here are reasonable and similar or less than hourly rates in Los Angeles and Southern California. (Id. ¶¶ 7-10.) Jacob Nalbandyan of Levin & Nalbandyan, LLP submits a similar declaration. (Dec.Nalbandyan.) He has been in practice since 2010, and has been lead trial, arbitration, and appellate counsel in numerous cases. (Id. ¶¶ 2, 10.) He is familiar with Mr. LaCour and his reputation, and in his opinion $700 per hour is a reasonable rate for his services. (Id. ¶ 17.) None of these expert opinions are particularly helpful in this case tried in Riverside County nor are they persuasive. It should also be noted that with the exception of Mr. LaCour, all three attorneys and the paralegal are fairly new for the hourly rates they are requesting. While Plaintiff asserts these hourly rates are reasonable, the Court finds a reasonable rate as follows: Jonathan P. LaCour from $700 to $500; Lisa Noveck from $575 to $400; and Jameson Evans from $450 to $300. Mr. Flores’ rate is reduced from $250 to $100 for the same reason. (22.1 hours at $100 = $2,210.00.) However, with respect to the specific entries of time, notably Defendants failed to challenge the specific billing entries to set forth a basis to reduce the requested fees further. Nothing in Defendants’ opposition points to any entries that should be deducted or otherwise stricken. The Court will note that Defendants objected that Plaintiff was seeking fees for their FEHA claims, as opposed solely to her Wage and Hour Claims. However, as noted by Plaintiff, none of the requested entries were solely for FEHA claims. As such, the Court finds the number of hours requested reasonable. As to attorneys’ fees, Mr. LaCour claims 218.9 hours, which at $500 per hour is $109,450.00; Ms. Noveck claims 49.5 hours, which at $400 is $19,800; Mr. Evans claims 106.6, which at $300 is $31,980 for a total of $161,230.00. Multiplier Plaintiff’s experts also weigh in on what they consider to be the importance of a multiplier in a contingency employment case such as this. (Dec.Kramer ¶¶ 10-13; Dec.deRubertis ¶¶ 37- 42; Dec.Brieter ¶¶ 11-13.) The purpose of a fee enhancement is primarily to compensate the attorney for the prevailing party at a rate reflecting the risk of nonpayment in contingency cases as a class. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.) The adjustment to the lodestar figure constitutes earned compensation that is intended to approximate market-level compensation for services, which typically includes a premium for the risk of nonpayment or delay in payment of attorney’s fees. (Ibid.) However, given the applicable statutes authorizing attorneys’ fees, the risk of taking the case on contingency is somewhat reduced. While Plaintiff claims the case was complex, it did not have a level of difficulty that would require exceptional skill warranting an enhancement. Instead, it was a fairly run of the mill wage and hour case. As such, the Court exercises its discretion and declines to award an enhancement or positive multiplier to Plaintiff. Costs As to the costs, Mr. LaCour seeks $17,661.69. The largest items on the Memorandum of Costs (MOC) are deposition costs of $9,770.25 and “other” at $5,369.46. However, Plaintiff’s MOC remains unchallenged by a motion to tax/strike costs, and there was no opposition to their request for costs. Thus, the MOC is accepted as is, and Plaintiff is entitled to her claimed costs.

Matter on the Discovery Calendar for Monday, July 22, 2024, line 5, DEFENDANT DELTA DENTAL OF CALIFORNIA'S Motion To Compel Enforcement Of Records Subpoena And Request For Sanctions Against Plaintiff And Plaintiffs Counsel Pro Tem Judge David McDonald, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Motion granted. The Court notes that Plaintiff agreed to produce documents responsive to the subpoena, except for the emergency contact information. Defendants have a right to confirm that all documents have been produced by Kaiser. Plaintiff shall execute an authorization to Kaiser allowing production absent the emergency contact information. Sanctions of $950 imposed against Plaintiff. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to davididaho14@gmail.com with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. = (302/JPT)

MOTION TO STRIKE COMPLAINT ON COMPLAINT FOR OTHER NORENA RODRIGUEZ VS EMPLOYMENT (OVER $35,000) OF CVRI2401635 CRAFTSMAN LATH AND JHON ALEXANDER NORENA PLASTER, INC. RODRIGUEZ BY CRAFTSMAN LATH AND PLASTER, INC. Tentative Ruling: GRANT, with 30 days leave to amend. Defendant moves to strike portions of Plaintiff’s Complaint concerning allegations relating to, and prayer for, punitive damages. The Court grants the motion because the Complaint lacks the minimum level of facts required to meet the pleading requirements for punitive damages under Civil Code § 3294. While Plaintiff alleges that Defendant was “acting in a deliberate, cold, callous, cruel and intentional manner…”, these underlying allegations are bare legal conclusions without factual support. Plaintiff fails to allege the underlying facts constituting malice, oppression, or fraud. Plaintiff does not allege facts showing that Plaintiff has a legitimate disability, as defined by FEHA, nor does Plaintiff provide facts indicating he was entitled to an accommodation which was deliberately withheld. Finally, Plaintiff also fails to allege corporate employer liability; no ultimate facts are alleged in the Complaint as to any misconduct of a managing agent binding the corporate employer, or ratification of conduct of an employee that is outrageous in nature. The Complaint merely alleges, in conclusory fashion, that the alleged acts constituting malice, oppression, or fraud, were carried out by Defendant’s officers, directors, or managing agents.

24CV070890: BARNES, AS AN AGGRIEVED EMPLOYEE vs BAY AREA COMMUNITY RESOURCES, INC., A CALIFORNIA NONPROFIT CORPORATION 07/23/2024 Hearing on Motion to Compel Arbitration filed by BAY AREA COMMUNITY RESOURCES, INC., a California Nonprofit corporation (Defendant) in Department 21 Tentative Ruling - 07/22/2024 Noël Wise The Hearing on Motion to Compel Arbitration filed by BAY AREA COMMUNITY RESOURCES, INC., a California Nonprofit corporation (Defendant) scheduled for 07/23/2024 is continued to 09/24/2024 at 01:30 PM in Department 21 at Rene C. Davidson Courthouse . The court needs additional time to review the papers. PLEASE NOTE: This tentative ruling will become the ruling of the court if uncontested by 04:00pm the day before your hearing. If you wish to contest the tentative ruling, then both notify opposing counsel directly and the court at the eCourt portal found on the court’s website: www.alameda.courts.ca.gov. If you have contested the tentative ruling or your tentative ruling reads, “parties to appear,” please use the following link to access your hearing at the appropriate date and time: https://alameda-courts-ca-gov.zoomgov.com/my/department21 . If no party has contested the tentative ruling, then no appearance is necessary.

Re: Jacob Salcido v. PB Loader Corporation/COMPLEX Superior Court Case No. 23CECG04509 Hearing Date: July 23, 2024 (Dept. 502) Motion: Defendant PB Loader Corporation’s Motion to Stay the Representative PAGA Action Tentative Ruling: To grant defendant PB Loader Corporation’s motion to stay the representative PAGA action pending arbitration of plaintiff Jacob Salcido’s individual PAGA claim. (Code Civ. Proc., § 1281.4.) Explanation: If a court of competent jurisdiction has ordered arbitration of an issue involved in a pending action, the court, upon motion of a party to the action, shall stay the action until an arbitration is had in accordance with the order to arbitrate. (Code Civ. Proc., § 1281.4.) Specifically, “the trial court may exercise its discretion to stay the non-individual [PAGA] claims pending the outcome of the arbitration [of a plaintiff’s individual PAGA claims] pursuant to section 1281.4 of the Code of Civil Procedure.” (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1123.) The opposing party would need to present a convincing argument as to why this would be an impractical manner of proceeding. (Id., at 1124.) The court has discretion to stay the action until after arbitration. As set forth in Adolph, the determination of whether the plaintiff is an aggrieved employee and the ensuing judgment on the issue is one that will affect the plaintiff’s standing to prosecute the non-individual PAGA claim. (Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th, 1124.) As the court has already ordered arbitration for what could be a dispositive issue, and there has been no clear showing of prejudice that will result from staying the action, the court is inclined to order a stay of the proceedings until after arbitration of plaintiff’s individual PAGA claim. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: KCK on 07/22/24 . (Judge’s initials) (Date)

24CV068271: TATUM vs EDGES ELECTRICAL GROUP, LLC 07/25/2024 Hearing on Motion to Compel Arbitration in Department 24 Tentative Ruling - 07/22/2024 Rebekah Evenson Defendant’s Motion to Compel Arbitration is GRANTED. Plaintiff does not dispute that he executed an undated “Voluntary Arbitration Agreement” (hereinafter “the Agreement”) with Defendant. The claims that Plaintiff asserts in this case fall within the scope of the Agreement. The Court observes that the parties’ evidence concerning the circumstances under which Plaintiff signed the Agreement is conflicting. Defendant’s former Accounting Assistant Joann Killingsworth submits a declaration that Plaintiff signed the Agreement as part of his new hire orientation on or about September 29, 2020. Plaintiff’s opposition brief (but not his declaration) states that he had already been working for Defendant since 2018, but he appears to agree that he signed the agreement in 2020 (or at least, he does not deny it.) Plaintiff’s declaration states that he was presented with the Agreement in connection with Defendant’s settlement of a pending class action, and that he was told he had to sign the Agreement to get the settlement check. However, Defendant presents evidence that contradicts Plaintiff’s recollection of events. The class action that Plaintiff references was not even filed until 2021, and Plaintiff was given the settlement check in 2023. (See the Declaration of Nancy Cooper filed with the reply papers.) Therefore, Defendant contends Plaintiff could not have been told in 2020 that the Agreement had anything to do with the settlement of the class action. Given the vagueness of Plaintiff’s declaration and the documentary evidence submitted by Defendant about the class action to which Plaintiff refers, the Court finds Defendant’s evidence more credible on this issue. The Court rejects Plaintiff’s argument that the Agreement is void based on the doctrine of “fraud in the inception”. As indicated above, given the timing of when Plaintiff appears to concede he signed the Agreement and when the class action case was filed and settled, Plaintiff’s explanation that he understood the Agreement was related to the class action and that he was told he had to sign the Agreement to receive the class action settlement check is not credible. But even if the Court were to credit Plaintiff’s declaration, he does not state that any employee or agent of Defendant told him the Agreement was not an arbitration agreement; he merely assumed the Agreement was related to the class action settlement (which Plaintiff was not paid until three years later) because he was told he had to sign the Agreement to receive the settlement check. In addition, the five page agreement is titled “VOLUNTARY ARBITRATION AGREEMENT”; contrary to Plaintiff’s assertion, the word “Accounting” does not appear anywhere in or near the title of the Agreement. No one reading the Agreement could fail to understand that it was an arbitration agreement, and not a document relating to the settlement of a class action. The Court also rejects Plaintiff’s argument that the arbitration agreement is unenforceable on the SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV068271: TATUM vs EDGES ELECTRICAL GROUP, LLC 07/25/2024 Hearing on Motion to Compel Arbitration in Department 24 grounds of unconscionability. In order for a party to oppose enforcement of an arbitration agreement on the grounds of unconscionability, that party must show that the agreement was both procedurally and substantively unconscionable. (See, e.g., Oto LLC v. Kho (2019) 8 Cal.5th 111, 125.) For the reasons stated above, the Court does not find credible Plaintiff’s argument that the Agreement was procedurally unconscionable (i.e., that he felt pressure to sign the Agreement in 2020 in order to receive a class action settlement check for a case that was not filed until 2021 and a check that was not issued until 2023.) But even if the Court were to find some level of procedural unconscionability in Plaintiff’s execution of the Agreement, Plaintiff does not demonstrate any substantive unconscionability in the Agreement. The Agreement complies with the requirements for agreements to arbitrate employment disputes set forth in Armendariz v. Foundation Health Psychare Services Inc. (2020) 24 Cal.4th 83, 102. Plaintiff contends the provision of the Agreement that “each party shall bear their own standard litigation type costs, such as deposition fees, transcript fees, and witness fees” conflicts with Code of Civil Procedure § 1282.5(b). The Court disagrees. Code of Civil Procedure § 1282.5(b) provides that in a consumer arbitration, a certified shorthand reporter shall be provided upon request of an indigent consumer, at the expense of the nonconsumer party. No provision of the Agreement negates the application of § 1282.5(b) or requires Plaintiff to pay for the cost of retaining a certified shorthand reporter. But even assuming the Agreement could be construed as negating the application of § 1282.5(b), that is the only (purportedly) unconscionable provision of the Agreement identified by Plaintiff. Therefore, assuming the provision in the Agreement that each party shall bear its own “transcript fees” is substantively unconscionable because it (impliedly) conflicts with § 1282.5(b), the Court would exercise its discretion to sever that provision and enforce the remainder of the agreement. (Civil Code § 1670.5 and Armendariz, supra, 24 Cal.4th at 121-122.) Plaintiff is ordered to arbitrate the claims he asserts in this case, pursuant to the terms of the “Voluntary Arbitration Agreement”. This case is STAYED pending completion of the parties’ arbitration, pursuant to Code of Civil Procedure § 1281.4. The Case Management Conference currently scheduled for August 6, 2024 is CONTINUED to August 5, 2025 at 9:00 a.m. in Department 24. By no later than July 22, 2025, the parties shall file a joint status report indicating whether the arbitration has been completed, or if not, when it is expected to be completed. The Initial Case Management Conference scheduled for 08/06/2024 is continued to 08/05/2025 at 09:00 AM in Department 24 at Rene C. Davidson Courthouse .