LAW & MOTION CALENDAR

TENTATIVE RULINGS

 

September 24, 2021

 

9:00 a.m.

 

CX-104

                                                                                                                             

JUDGE WILLIAM D. CLASTER

 

Department CX104 Phone Number: (657) 622-5304

 

 

The Court will hear oral argument on all matters at the time noticed for the hearing.  If you would prefer to submit the matter on your papers without oral argument, please advise the clerk by calling (657) 622-5304. The Court will not entertain a request for continuance nor filing of further documents once the ruling has been posted.

 

APPEARANCES:  Unless otherwise ordered by the Court, all Unlimited and Complex proceedings will be conducted via telephonic appearance through Court Call with each party/attorney having the option to appear by Court Call video if the Court, in its discretion, permits a video appearance instead of an audio appearance.”  Based on Orange County Superior Court Third Amended Administrative Order No. 2020/06, paragraph 12(c), the Court requests that the parties appear by way of Court Call.     If a party is unable to appear by way of Court Call, please contact the Court Clerk.  Please see, Civil Limited Unlimited & Complex Appearance Process at:

 

·         Civil Covid-19;

 

·         Civil Limited, Unlimited and Complex (Updated June 11, 2020); and

 

·         Third Amended Administrative Order No. 20/06.

 

All appearances will be telephonic through CourtCall.  Contact CourtCall at 888-882-6878 or CourtCall.  Requests for fee waivers may be submitted to CivilSRL@occourts.org or the drop box outside the Central Justice Center courthouse

 

COURT REPORTERS:  Official court reporters (i.e. court reporters employed by the Court) are NOT provided for any matters in this department.  If a party desires a record of a law and motion proceeding, it will be the party’s responsibility to provide a court reporter.  Parties must comply with the Court’s policy on the use of privately retained court reporters which can be found at:

 

·         Civil Court Reporter Pooling; and

 

·         For additional information, please see the court’s website at  Court Reporter Interpreter Services for additional information regarding the availability of court reporters.

 

 

PUBLIC ACCESS:  The public may listen to remote court hearings at no cost by calling the public access number (657-231-1414) and entering the access code for this Department (12129801#) and PIN for this Department (12129801#).  The public will be able to listen, but not participate in the proceedings.  The public access number and the access code for a particular unlimited civil courtroom can be obtained at:

 

·         Civil Limited, Unlimited and Complex (Updated June 11, 2020)

 

 

#

CASE NAME

MATTER

1

JCCP 4881

 

Progistics Distribution Wage and Hour Cases

Motion for Final Approval

Plaintiffs’ motion for final approval of class action settlement is GRANTED.  The Court notes that although the January 12, 2021 minute order asked the administrator to provide the estimated individual settlement share for each named Plaintiff, the administrator’s declaration does not contain this information, nor does it contain the low individual settlement share.  Plaintiffs’ counsel are advised to ensure this information is provided in other settlements before this Court.

The Court approves the following distributions:

1.    Attorney’s fees in the amount of $851,693, or 33.3% of the GSA, to be distributed among counsel per the settlement agreement.  The Court finds this amount to be a reasonable in light of the quality of the result obtained, the work performed by class counsel, a review of the billing information provided, the estimated lodestar and, in particular, the length of time this case has been pending.  In approving these amounts and examining the billing records provided, the Court is not approving any particular hourly billing rates proposed by class counsel.

 

2.    Litigation costs in the following amounts, each representing the full amount sought:

 

a.    $34,409.52 to the Blumenthal firm.

b.    $3,192.07 to the Hardin firm.

c.    $7,031.08 to Lawyers for Justice.

d.    $2,342.98 to the Lavi firm. 

 

3.    Administration costs in the amount of $35,000, per the administrator’s declaration.

 

4.    Enhancements of $7,500 to Isaiah Bates and $5,000 each to the remaining nine named Plaintiffs.  In making these awards, the Court has considered only the factors set forth in Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251 and Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785.  

 

Please submit a revised proposed order that conforms to the foregoing for the Court’s signature. Pursuant to CCP § 384(b), Plaintiff shall submit to the Court a final report on or before May 13, 2022 setting forth the actual amounts paid to class members and other amounts disbursed pursuant to the settlement.  Upon receiving the report, the Court will determine whether further reports and/or a hearing will be necessary.

2

JCCP 5167

 

Ghost Gunner Firearms Cases

1.Defendant Juggernaut Tactical Inc.'s Application for Admission to Appear Pro Hac Vice of Howard B. Schilsky

2. Defendant Juggernaut Tactical, Inc.'s Application for Admission to Appear Pro Hac Vice of Christopher Renzulli

3. Status Conference

The unopposed applications of Christopher Renzulli and Howard B. Schilsky to appear pro hac vice on behalf of Defendant Juggernaut Tactical, Inc. are GRANTED.  The applications comply with California Rules of Court, rule 9.40.

In addition to the foregoing, on September 13, 2021, several defendants filed a petition to include O’Sullivan v. Ghost Gunner, Inc., Sacramento County SC No. 34-2021-00302934-CU-PO-GDS, as an add-on case in this JCCP.  The petitioning defendants request a hearing date and indicate that they expect the O’Sullivan plaintiffs and the plaintiffs here will oppose including O’Sullivan as an add-on case. The Court received the opposition of the Cardenas plaintiffs on September 22, 2021.  At the status conference the parties should be prepared to discuss a hearing date and briefing schedule.

***

***

 

4

21-01209725

 

Diaz vs. Tforce Final Mile, LLC

Plaintiff Gustavo Diaz's Motion for Approval of Representative Action Settlement

Plaintiff’s motion for approval of PAGA settlement is CONTINUED to November 5, 2021 at 9:00 a.m. in Department CX104 to permit the parties to respond to the following items of concern.   Any supplemental briefing shall be filed on or before October 27, 2021.  If a revised settlement agreement and/or proposed notice is submitted, a redline version showing all changes, deletions and additions must be submitted as well.  In addition, Plaintiff must provide proof of service of any revised settlement agreement and supplemental papers on the LWDA.

As to the Settlement:

1.            Plaintiff’s pre-filing letter to the LWDA is supposed to be an exhibit to the complaint, but it is not attached.  Please provide a copy.

 

2.            Are there any other matters, whether individual, class, or PAGA, pending or in the pre-filing LWDA stage, that would be affected by approval of this settlement?

 

3.            What is the relationship between the TForce parties and the aggrieved employees?  It appears the aggrieved employees all drove for either defendant BeavEx (which is a named defendant, but not a party to the settlement) or non-party JNJW Enterprises, and that the TForce parties “assumed” the contracts between the aggrieved employees and BeavEx or JNJW Enterprises.  Did the TForce parties purchase BeavEx and JNJW Enterprises?  Were they assigned the contracts between BeavEx/JNJW Enterprises and the drivers?  Etc.

 

4.            What is the basis for treating all the TForce parties as a single “defendants” entity for settlement purposes?  Were the aggrieved employees allegedly employed by all three TForce parties, or by one or two of them?

 

5.            Are there other TForce drivers who were similarly aggrieved, or is the alleged misclassification limited to former BeavEx and JNJW Enterprises drivers?

 

6.            There appear to be 45 employees and 1,620 pay periods at issue.  What are these figures based upon?

 

7.            Please provide a bid from the settlement administrator.

 

8.            Paragraph 40 of the settlement agreement provides (emphasis added): “To the extent that this Settlement or any of its attachments are interpreted to contain or constitute advice regarding any U.S. or Federal tax issue, such advice is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding penalties under the Internal Revenue Code.”  The Court will not approve a PAGA settlement that purports to bind or restrict non-parties (such as the aggrieved employees) except to the extent they are bound by operation of PAGA itself.

 

9.            Please allow 180 days to cash individual checks rather than 120.

 

10.         The settlement agreement provides that uncashed checks will be redirected to the Controller’s “Unclaimed Wage Fund.”  The Court understands the Controller to operate an Unclaimed Property Fund, not an Unclaimed Wage Fund.  To ensure proper disposition of uncashed checks, please change the reference to “Unclaimed Property Fund.”

 

11.         The release is overbroad and confusing as drafted.  It purports to release three groups of claims: (1) the “Covered Claims” (which, as defined, are not limited to claims that were pled or could have been pled based on the facts alleged in the complaint); (2) all claims that were pled in the complaint or could have been pled based on the facts alleged therein (i.e., it covers substantive Labor Code claims, not just PAGA claims); and (3) all PAGA claims based on specified Labor Code sections (not limited to claims that were alleged or could have been alleged, and specifically noting Labor Code sections never mentioned in the complaint).  Please ensure the release is limited to PAGA claims based on Labor Code violations that were pled in the complaint or could have been pled based on the facts alleged therein.  The Court will not permit the release of substantive Labor Code claims in a PAGA-only settlement, nor will it permit the release of PAGA claims that could not have been pled based on the factual allegations of the complaint. 

 

12.         To the extent the parties wish to release PAGA claims based on specific Labor Code sections that were not mentioned in the complaint (e.g., the complaint doesn’t mention Labor Code § 2800, but the release does), they must inform the Court of the theory of liability and the evidence supporting each side’s case.

 

13.         BeavEx and JNJW Enterprises are mentioned by name in the release.  Do these entities have any exposure to liability, or are the TForce parties the only parties with exposure?

 

14.         Plaintiff provides no description of pre-settlement investigation.  Was any formal discovery taken in the prior action?  Were time and pay records exchanged prior to mediation?  Were relevant policies exchanged?  Did counsel interview any aggrieved employees?  Etc.

 

15.         In order to evaluate the fairness of the PAGA settlement, the Court must be informed of the value of Plaintiff’s individual settlement.

 

16.         The Court understands this case to turn entirely on whether the aggrieved employees were misclassified.  What evidence supported each side’s theory of the case? 

 

17.         Counsel states that the passage of Proposition 22 undercut Plaintiff’s position.  Why?  The PAGA period ended in January 2020, and Proposition 22 wasn’t passed until November 2020.  Does Plaintiff’s counsel take the position that Proposition 22 is retroactive?

 

18.         Please provide attorney billing records for lodestar cross-check purposes.

 

19.         Please provide supporting records for claimed litigation costs.

 

As to the Notice:

1.            The notice should state that Defendants will not retaliate against current employees who cash their checks.

 

2.            If BeavEx and JNJW Enterprises are covered by the release, the description of the release in the notice must mention them.

 

3.            In addition to listing the predicate Labor Code violations in the complaint, the notice should describe the general theory of the case (i.e., misclassification).

 

4.            Should notice be given in any languages other than English?

 

5.            If changes are made to the settlement agreement, please make corresponding changes to the notice.

 

6.            The font size in the actual notice may not be smaller than the font size in the proposed notice provided to the Court.

 

5

21-01202543

 

Calco vs. Ossur Americas, Inc.

1. Defendants Ossur Americas, Inc. and Ossur HF's Demurrer to Complaint


Demurrer is off calendar per 09/15/21 tel. request.

2.  Defendants Ossur Americas, Inc. and Ossur HF's Motion to Seal Confidential Exhibit to Request for Judicial Notice in Support of Demurrer

 

Defendants Ossur Americas, Inc. and Ossur hf’s (collectively, “Ossur”) motion to seal is GRANTED.  The Court is ordered to permanently seal the request for judicial notice filed at ROA 40.

This case concerns a services agreement between Plaintiff Wayne Calco and Ossur.  Ossur demurred to Calco’s original complaint.  In support of its demurrer, Ossur sought judicial notice of the services agreement, which it conditionally lodged under seal.  Rather than oppose the demurrer, Calco filed a first amended complaint.  Ossur’s demurrer therefore went off calendar.

Ossur’s motion to seal remains on calendar.  Ossur contends the services agreement is a trade secret that contains proprietary information about its product development processes and how it structures compensation for its contractors, and on that basis, it asks that the services agreement be sealed.  Calco opposes sealing.

Motions to seal are governed by CRC 2.550 and 2.551, which “recognize the First Amendment right of access to documents used at trial or as a basis of adjudication.”  (Advisory Com. com. to rule 2.550; see also Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 100-101 [courts should rely on Advisory Committee comments to interpret sealed records rules].)  Here, Ossur’s demurrer went off calendar when Calco filed his FAC.  The services agreement therefore was not “used . . . as a basis of adjudication.”  Following the Advisory Committee’s comment, the Court concludes that, at present, there is no public right of access that applies to the services agreement.  On this basis, the motion to seal is granted. 

The Court cautions that its ruling is based on the current procedural posture of the case.  From the parties’ joint case management statement, the Court understands that Ossur intends to demur to the FAC, and that it will likely seek notice of the services agreement once again.  The Court also expects Ossur would once again ask that the services agreement be sealed.  If the Court considers the services agreement in connection with the expected demurrer, then there would be a public right of access to the services agreement, which would alter the sealing analysis.

 

6

19-01054332

 

Vasquez vs. Residence Mutual Insurance Company

1. Defendants Residence Mutual Insurance Company and Western Mutual Insurance Company's Motion for Summary Judgment and/or Summary Adjudication

2. Status Conference

At the last hearing on Defendants Residence Mutual Insurance Company and Western Mutual Insurance Company’s motion for summary judgment or adjudication, the Court gave Plaintiff the opportunity to take additional discovery, and also allowed the parties to file supplemental briefing on whether Defendants had been so prejudiced by Plaintiff David Vasquez’s delay in filing a claim that the Court should enter summary judgment in Defendants’ favor.  (See ROA 201, at Ruling p. 16.)  The Court ordered this briefing because Defendants first raised the delay/prejudice issue in their reply, and due process required that Plaintiffs be permitted a chance to respond.  No supplemental briefing was filed.

For the reasons set forth below, and for the reasons set forth in the Court’s original post-hearing order (ROA 201), the Court orders as follows:

  1. The motion for summary judgment is DENIED as to Plaintiff and the certified Claimant Subclass.  However, the parties are advised that the only viable basis for the UCL claim going forward will be illegality of the Wildfire Sublimit.  Defendants’ insureds were given adequate notice of the Wildfire Sublimit.

 

  1. The alternative request for summary adjudication of Plaintiff’s individual bad faith claim is GRANTED.

 

GROUNDS FOR RULING

I.            Introduction

As discussed in the prior order, summary judgment is improper for the Claimant Subclass, which was only certified for purposes of injunctive relief.  Plaintiff, however, has individual claims for damages.  The Court granted summary adjudication of the bad faith claim, but the claims for breach of contract and UCL violations (insofar as they are derivative of the contract claim) remain to be decided.

In their prior reply briefing, Defendants argued that if the Wildfire Sublimit is illegal, the remedy is to apply the statutory default of Ins. Code § 2071.  The Court agreed with this argument.  Defendants further argued that (1) § 2071 requires sworn proof of loss to be submitted within 60 days of containment; (2) Plaintiff never submitted sworn proof of loss at all, only a claim more than 60 days after containment; and therefore (3) Plaintiff would not be entitled to any recovery if § 2071 were applied, in contrast to the $2,500 he was paid under the Wildfire Sublimit.

At the hearing, Plaintiff raised two points.  First, he argued that because Defendants raised this issue in reply, it wasn’t a proper basis for summary judgment.  Second, he argued that even if it were proper, the insurer must prove prejudice in order to deny coverage on grounds of delay, and there was no proof of actual and substantial prejudice here.

The Court concluded that due process required Plaintiff be given a chance to address the delay/prejudice argument, and that Defendants be given a chance to further reply.  Neither Plaintiff nor Defendants filed supplemental papers.  Therefore, based upon the prior briefing, the prior hearing, and the Court’s own research, the Court rules as follows.

II.          Discussion

Initially, the Court finds that because both parties were given the opportunity to submit supplemental briefs but failed to do so, they have waived any due process objections regarding the delay/prejudice issue.

A leading California insurance treatise states the following rule: “In both first and third party cases, in the absence of prejudice from the delay, an insurer generally may not refuse a claim solely because of delayed notice from the insured: ‘Under the notice prejudice rule, an insurance company may not deny an insured’s claim under an occurrence policy based on lack of timely notice or proof of claim unless it can show actual prejudice from the delay.’ (Citation.)”  (Croskey, et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2021) ¶ 6:32.)  The treatise continues: “The burden is on the insurer to prove actual and substantial prejudice: ‘The burden of establishing prejudice is on the insurance company . . . and prejudice is not presumed by delay alone. . . . To establish prejudice, the insurer must show it lost something that would have changed the handling of the underlying claim.’  (Citation.)”  (Id., ¶ 6:33 [emphasis original].)

The treatise further explains that this rule is rarely invoked in first party cases because “the insurer would presumably have to show that the delayed notice and proof of loss impaired its ability to investigate and settle the claim.”  (Id., ¶ 6:37 [emphasis original].)  The treatise identifies only one case applying this rule in the first party context: 1231 Euclid Homeowners Ass’n v. State Farm Fire & Cas. Co. (2006) 135 Cal.App.4th 1008.

1231 Euclid involved the one-time limitations revivor applicable to Northridge earthquake-related insurance claims.  (See CCP § 340.9.)  There, a condominium building was damaged in the earthquake.  The HOA timely submitted a claim to the insurer.  Representatives of both the HOA and the insurer inspected the property.  They concluded the damage was cosmetic and would cost less to repair than the HOA’s deductible.  The HOA withdrew its claim and had the damage repaired at its own expense.  (Id., at pp. 1011-1014.)  Eight years later—after the passage of the revivor—the HOA filed suit, arguing the insurer had breached the policy by failing adequately to investigate its claim.

The Court of Appeal affirmed summary judgment for the insurer.  It first noted that the HOA had voluntarily withdrawn its claim, so there was no claim for the insurer to investigate in the first place.  But assuming the revivor somehow resurrected the claim eight years later, the insurer had been substantially prejudiced by the delay.  Even if the initial investigation was inadequate, the eight-year delay still left the insurer unable to inspect the state of the building immediately after the earthquake (and, in any event, the damage had been repaired).  Furthermore, many of the unit owners who lived in the building at the time of the earthquake had moved away, leaving few residents with firsthand knowledge of the damage.  Even the HOA’s PMK deponent had moved in after the earthquake.  In these circumstances, assuming the revivor statute resurrected a withdrawn eight-year-old claim, summary judgment for the insurer was proper.  (Id., at pp. 1020-21.)

Defendants have identified one fact in the record that goes to prejudice.  Because Plaintiff delayed in submitting his claim, they were required to retain a specialized smoke damage contractor to inspect his home.  This contractor tested several areas of the home, and based on the test results, Defendants estimated it would cost roughly $5,800 to remediate the damage.  (Spagon Decl. (ROA 170), ¶¶ 4-5.)

This isn’t the sort of prejudice found in 1231 Euclid.  There, an adequate inspection was impossible after eight years of delay.  Here, several months of delay required Defendants to retain a specialized contractor, but no one appears to dispute that the investigation was adequate.  Indeed, the post-inspection estimate is the basis of Plaintiff’s damages calculation.  Nothing in the record suggests the estimate would have been smaller had Plaintiff given timely notice that allowed for a quick inspection. Simply stated, there is no evidence of actual and substantial prejudice to the insurer by the delay here. 

For these reasons, there is a triable issue of material fact as to whether Plaintiff would be entitled to recovery if the Court applied § 2071 instead of the Wildfire Sublimit.  Accordingly, Plaintiff’s contract claim and derivative UCL claim survive, and summary judgment is denied.

7

20-01172419

 

Orange County Water Disrict vs 3M Company

Defendant 3M Company's Motion for Stay of Proceedings

Defendant 3M Company’s motion for a stay pending its Ninth Circuit appeal of the order remanding this case from the Central District of California to this Court is DENIED.

Before turning to the grounds for the Court’s ruling, the Court notes that Plaintiffs and 3M both cite written rulings of California superior courts in support of their decisions.  3M even argues that Plaintiffs “disregard California precedent” (i.e., a ruling from the Alameda County Superior Court) granting a stay pending an appeal of a remand order.  (Reply at p. 4.)  The Court has neither read nor considered the superior court rulings cited by the parties.  “Even assuming for the sake of argument that [these cases] involve[] the same issue as the case before [the Court] . . . a written trial court ruling has no precedential value.”  (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.)

After the Court largely overruled 3M’s demurrer to the first amended complaint, Plaintiffs filed a second amended complaint.  Shortly thereafter, 3M removed the case to the Central District of California under the federal officer removal statute, 28 U.S.C. § 1442.  Briefly stated, 3M contends that Plaintiffs’ allegations regarding 3M’s PFAS sales include sales to the federal government for use at military bases in Orange County.  3M argues that as a military contractor, it is entitled to have the case heard in federal court.

The district court granted Plaintiffs’ motion to remand.  Without reaching the merits of federal officer removal itself, the court found 3M’s removal was untimely.  (ROA 247.)  3M appealed the remand order to the Ninth Circuit.  It asked the district court for a stay pending appeal, which the district court denied.  (Robinson Decl., Ex. 4.)  It then asked the Ninth Circuit for a stay pending appeal, which the Ninth Circuit denied (though it expedited the appeal).  (ROA 294, Ex. 1.)

3M now asks this Court to stay proceedings pending the outcome of the appeal in the Ninth Circuit.  The Court recognizes that the standards governing a stay pending appeal in federal court are different from the standards governing this Court’s inherent power to control proceedings.  But the bottom line is the same: 3M asks this Court to grant a stay the federal courts have twice denied. 

3M does not provide a compelling reason why this Court should reach a different conclusion from the federal courts.  It complains of potentially duplicative discovery, but as Plaintiffs point out, any discovery taken while the case is pending in this Court could be used in federal court if the case is returned there. Of course, the Court expects that the parties will avoid repeating available discovery already conducted in other pending cases (i.e., the federal MDL proceeding).

3M also complains of potentially conflicting rulings between this case and Aqueous Film-Forming Foams Products Liability Litigation (In re AFFF), the MDL pending in the District of South Carolina.  Specifically, 3M worries that the In re AFFF court and this Court could reach different outcomes on 3M’s planned federal contractor defense.  But briefing on the federal contractor defense in In re AFFF will be complete by January 2022.  (Robinson Decl., Ex. 6.)  All indications are that the In re AFFF court will decide the federal contractor issue long before this Court has to decide a summary judgment or adjudication motion.

Finally, while 3M and Plaintiffs both discuss the potential effect of a stay on themselves, it appears to the Court that no one seriously considers the effect of a stay on the DuPont parties or Decra, all of whom have dispositive motions on file.  Assume these motions should be granted.  Why should these defendants have to wait until after 3M’s appeal to get out of the case?  Or assume these motions should be denied.  Why should Plaintiffs and these defendants have to wait until after 3M’s appeal to move on with discovery and litigating the merits?  As regards these defendants, who have nothing to do with 3M’s appeal, a stay would interfere with the orderly administration of justice.