Pleading Wizard



DATE: FEBRUARY 9, 2022 TIME: 1:30 P.M.

|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |19CV358675 |Hancock v. Resources Enterprise Services, LLC, et al. |Click on LINE 1 for Ruling |

|LINE 2 |19CV347412 |Xavier v. New Leaf Community Markets, Inc., et al. |Click on LINE 2 for Ruling |

| | |(Lead Case; Consolidated With 21CV390546) | |

|LINE 3 |20CV371309 |Meridian at Willow Glen Homeowners Association v. |Click on LINE 3 for Ruling |

| | |Taylor Morrison of California, LLC | |

|LINE 4 | | |Click on LINE 4 for Ruling |

|LINE 5 | | |Click on LINE 5 for Ruling |

|LINE 6 | | |Click on LINE 6 for Ruling |

|LINE 7 | | |Click on LINE 7 for Ruling |

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

|PAUL HANCOCK, as an individual and on behalf of all others similarly |Case No. 19CV358675 |

|situated, | |

| |TENTATIVE RULING RE: MOTION FOR CLASS CERTIFICATION |

|Plaintiff, | |

| | |

|vs. | |

| | |

|RESOURCES ENTERPRISE SERVICES, LLC, a Limited Liability Company, WORK | |

|MARKET, INC., a Corporation, and DOES 1 through 50, inclusive, | |

| | |

|Defendants. | |

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on February 9, 2022 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class and representative action arising out of various alleged wage and hour violations. According to the allegations of the operative First Amended Complaint (“FAC”), filed on July 1, 2020, plaintiff Paul Hancock (“Plaintiff”) began working for defendants Resources Enterprise Services, LLC and Work Market, Inc. (“Work Market”) (collectively, “Defendants”) in or about 2018. (FAC, ¶ 7.) Plaintiff alleges that Defendants are temporary services employers that contract with clients or customers to supply workers to perform services for the clients or customers. (Id. at ¶ 20.) Defendants allegedly misclassified Plaintiff as an independent contractor and uniformly administered a corporate policy that misclassified their employees as independent contractors. (Id. at ¶¶ 7 & 20.) Due to this misclassification, Plaintiff and the putative class members were not paid their proper minimum or overtime wages, not given proper meal and rest periods, and not provided accurate wage statements. (Id. at ¶ 20.)

Based on the foregoing allegations, the FAC sets forth the following causes of action: (1) Violation of Labor Code §§ 510, 1194, 1194.2, and 1197,1; (2) Violation of Labor Code §§ 1194, 1197, and 1197.1; (3) Violation of Labor Code §§ 226.7 and 512; (4) Violation of Labor Code § 226.7; (5) Violation of Labor Code § 226; (6) Violation of Labor Code §§ 221 and 224; (7) Violation of Labor Code § 2802; (8) Violation of Cal. Bus. & Prof. Code § 17200, et seq.; and (9) Violation of Labor Code § 2698, et seq.

Plaintiff now moves for class certification. Defendants oppose the motion.

II. LEGAL STANDARD

As explained by the California Supreme Court,

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 (Sav-On), internal quotation marks, ellipses, and citations omitted.)

California Code of Civil Procedure section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court … .” As interpreted by the California Supreme Court, section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On, supra, 34 Cal.4th at p. 326.)

//

//

The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class. (Sav-On, supra, 34 Cal.4th at p. 326.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435 (Linder).) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)

III. RECORD EVIDENCE

A. Request for Judicial Notice

In connection with their opposition, Defendants ask the court to take judicial notice of: (1) the Order and Judgment entered in the case of Paul Hancock v. Magnolia Hi-Fi, LLC, et al. (Santa Clara County Superior Court, Case No. 17CV315727) on October 29, 2019; (2) the Limited Liability Company Articles of Organization for Silicon Valley Technology Marketing, LLC (“SVTM”) filed with the California Secretary of State on September 9, 2002; (3) the Statement of Information for SVTM filed with the California Secretary of State on March 14, 2020; and (4) the Certificate of Formation of Resources Enterprise Services LLC filed with the Delaware Secretary of State on February 6, 2013. Defendants assert these items are proper subjects of judicial notice under Evidence Code sections 451, subdivision (a) and 452, subdivision (d).

The court declines to take judicial notice of the Order and Judgment, as it is not relevant to the disposition of the motion for class certification. (See Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307 [a precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the court], citing People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [the court may properly take judicial notice of court records if those records are deemed to be necessary and relevant to the disposition of the motion].)

The remaining items are not proper subjects of judicial notice under Evidence Code sections 451, subdivision (a) and 452, subdivision (d). First, Evidence Code section 451, subdivision (a) provides that judicial notice shall be taken of “the decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.” That provision does not allow the court to take judicial notice of documents prepared by private parties, merely on file with state agencies, like the remaining items. Second, Evidence Code section 452, subdivision (d) permits judicial notice of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” As the remaining items are not court records, they are not proper subjects of judicial notice under Evidence Code section 452, subdivision (d).[1]

Accordingly, Defendants’ request for judicial notice is DENIED.

B. Evidentiary Objections

In connection with their opposition, Defendants submit several objections to portions of Plaintiff’s declaration, Plaintiff’s deposition testimony, and the declaration of Plaintiff’s counsel, William L. Marder, which are offered in support of the motion for class certification. The objections are overruled.

Defendants also filed objections to the expert declarations Plaintiff submitted with his reply. The objections are overruled.

In connection with his reply, Plaintiff objects to the Order and Judgment entered in the case of Paul Hancock v. Magnolia Hi-Fi, LLC, et al. (Santa Clara County Superior Court, Case No. 17CV315727) on October 29, 2019, as irrelevant. The objection is sustained. Plaintiff also submits several objections to portions of the declaration of Stephan Newhouse, which is offered in support of Defendants’ opposition. The remaining objections are overruled.

//

//

IV. DISCUSSION

1. Ascertainable Class

“The trial court must determine whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means of identifying class members.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) “Class members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.” (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 932.)

Plaintiff seeks certification of the following class:

All individuals who received job assignments from Defendants and/or who were placed at client jobs through [Defendants] in California at any time from November 18, 2015 through the present (the “Class”).[2]

(Plaintiff’s Notice of Motion and Motion for Class Certification; and Memorandum of Points and Authorities in Support, p. 3:13-17.)

Plaintiff asserts that, in response to discovery, Defendants identified 8,583 individuals who accepted job assignments in California with third parties through Defendants’ services from November 18, 2015 through the present. (Declaration of Larry W. Lee in Support of Plaintiff’s Motion for Class Certification (“Lee Dec.”), ¶ 12, Ex. A, p. 4, & Ex. B, pp. 3-4.) Plaintiff also contends that Defendants maintain data as to all job assignments, including the dates and times of the assignments and how much the workers were paid. (Id. at ¶ 14 & Ex. C, pp. 98-99, 101-102, & 115-116.) Plaintiff concludes that the class can be ascertained from Defendants’ records and is sufficiently numerous.

In opposition, Defendants state that they do not dispute that “the 8,583 persons who registered as ‘users’ during the proposed class period can be identified through … company records.” (Defendants’ Memorandum of Points & Authorities in Opposition to Plaintiff’s Motion for Class Certification, p. 15.) Defendants assert that the class is not ascertainable because “[s]ome users register as individuals, while some, such as [Plaintiff], registered as both natural and corporate persons.” (Ibid.) Defendants contend that only natural persons can be considered employees and a business entity cannot legally be misclassified as an independent contractor under California law. Defendants conclude that the court should therefore exclude from the class any business entity who registered with Defendants’ web portal during the proposed class period.

Here, the proposed class definition uses objective criteria and class members can be determined from Defendants’ records. Furthermore, the proposed class has approximately 8,583 class members. The class is therefore both ascertainable and sufficiently numerous.

While Defendants may ultimately establish that users who registered as business entities are not employees and cannot legally be misclassified as independent contractors under California law, resulting in the exclusion of a portion of the class, that is a merits determination that can be made on a class-wide basis and has no impact on whether certification is appropriate. The question at this stage is whether class membership will be ascertainable. The evidence presented by Plaintiff answers that question in the affirmative.

2. Community of Interest

a. Predominant Questions of Law or Fact

Regarding the predominance of questions of law or fact:

The ultimate question in every case of this type is whether … the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1104-1105, quoting Collins v. Rocha (1972) 7 Cal.3d 232, 238.) The answer hinges on “whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.” (Sav-On, supra, 34 Cal.4th at p. 327.)

i. Misclassification

Plaintiff asserts that the common foundational legal question underlying Defendants’ liability for the wage and hour violations is whether the putative class members were independent contractors or employees under California law. Plaintiff states that the ABC test set forth in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) applies in this case and he intends to prove that Defendants cannot satisfy prongs A and B of the test. With respect to prong A, Plaintiff contends that whether putative class members were subject to Defendants’ control is subject to class-wide proof. Plaintiff states that Defendants imposed Terms of Use and Community Guidelines on all users that controlled putative class members and the manner in which they performed their assignments. (Lee Dec., Ex. C, pp. 29-30, 35-37, 86-93, 96-97, 117, & 119-121 & Exs. 3, 11, & 20.) With respect to prong B, Plaintiff contends that whether the putative class members performed work that is outside of Defendants’ usual course of business is subject to class-wide proof. Plaintiff states that Defendants are in the business of providing temporary labor/staffing to its clients, the putative class members are the actual labor/staff being provide, and Defendants make money from the work performed by putative class members by receiving either a percentage of every job paid by a client or a subscription fee paid by the client. (Lee Dec., Ex. C, pp. 26, 34-35, 68-69, & 71-72 & Exs. 2, 3, & 8.)

In opposition, with respect to prong A of the ABC test, Defendants assert that Plaintiff and putative class members are free from Defendants’ control and direction. Defendants state that they do not set the rates at which workers were compensated for assignments, they do not provide training, they do not set workers’ hours, and workers are free to work other jobs unconnected to Defendants. Defendants contend that their Terms of Use and Community Guidelines merely control users’ access to the web portal and encourage users to comply with applicable laws and regulations. Defendants also argue that they did not have a universal policy of classifying users as independent contractors because the classification of workers was left to the negotiation between each worker and the hiring client-vendor. With respect to prong B of the ABC test, Defendants contend that Plaintiff and putative class members worked outside of Defendants’ usual course of business because WorkMarket is a software company that merely created a web-portal to connect client-vendors and workers for job opportunities. Defendants point out that unlike Uber and Lyft, they do not limit the web portal to a specific industry. Defendants contend that their only employees are those individuals who maintain the website software. Defendants conclude that there is no employment relationship between them and the putative class as they are not the hiring entity. Lastly, Defendants argue that Plaintiff cannot establish prong C of the ABC test.

Here, Plaintiff presents evidence demonstrating sufficient commonality of interest under part A of the ABC test. The deposition testimony of Defendants’ person most knowledge and the Terms of Use establish that, during the entire class period, Defendants had a uniform policy of classifying workers as independent contractors. (Lee Dec., Ex. C, pp. 96-97 & Ex. 11, pp. WM 000043 [“if you accept an Assignment, you are performing that work as an independent contractor”] & WM 000055 [“The relationship between WorkMarket and the User is that of independent contractors.”].) As the focus of Plaintiff’s legal theory is not on the particular task performed by the worker, but the global nature of the relationship between the worker and Defendants, and whether Defendants or the worker had the right to control the work, the evidence likely to be relied upon by the parties will be largely uniform throughout the class. Thus, the theory of recovery advanced by Plaintiff with respect to prong A of the ABC test is amenable to class treatment. (See James v. Uber Techs. Inc. (N.D.Cal. 2021) 338 F.R.D. 123, 131-132 (James); see also Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1299-1300 (Jaimez) [uniform corporate practices applicable to workers are amenable to class treatment because the legal question is whether the policies affect the workers as a whole].)

Notably, Plaintiff is not required to prove that Defendants are hiring entities before the ABC test may be applied. (People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 287.) In any event, Defendants’ argument that they are not hiring entities presents a legal question common to all members of the putative class. (See James, supra, 338 F.R.D. at pp. 131-132 [“Uber’s argument that it is not a ‘hiring entity’ under Dynamex itself presents a legal question common to all members of the class.”].)

Defendants’ additional argument—that that their right to control and actual exercise of control over workers is not substantial enough to give rise to an employment relationship—goes to the merits of the case and is not properly considered at the class certification stage because the question of certification is essentially a procedural one that does not ask whether an action is legally or factually meritorious. (See Linder, supra, 23 Cal. 4th at pp. 439-440; see also Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1146-1147 (Bradley) [whether uniform policies created an employer-employee relationship, as opposed to an independent contractor relationship, was not before the court on a motion for class certification].)

Furthermore, because there is sufficient commonality of interest under part A of the ABC test to support class certification, the court need not address whether there is sufficient commonality of interest with respect to part B of the ABC test. (See Dynamex, supra, 4 Cal.5th at p. 966 [as each part of the ABC test may be independently determinative of the employee or independent contractor question, a sufficient commonality of interest under any part of the ABC test is sufficient, in and of itself, to support class certification].)

For the same reasons, Defendants’ argument that Plaintiff cannot establish prong C of the ABC test does not affect whether class certification is appropriate in this case. (See Dynamex, supra, 4 Cal.5th at p. 966.)

ii. Meal and Rest Period Claims

Plaintiff also asserts that there are common questions of law and fact as to whether Defendants’ failure to enact lawful meal and rest policies violates California law. Plaintiff states that Defendants admit that they did not provide meal or rest policies to putative class members during the class period, and therefore the lack of such policies is a matter of common proof. (Lee Dec., Ex. C, p. 122.)

In opposition, Defendants admit that they did not promulgate any policies regarding meal and rest breaks. Defendants assert that Plaintiff’s meal and rest period claims will depend on individualized proof because Defendants left the issue of meal and rest breaks to the discretion of workers and client-vendors.

Here, it is undisputed that Defendants did not have meal or rest break policies during the class period. Thus, Plaintiff’s theory of liability—that Defendants violated wage and hour requirements by failing to adopt meal and rest period policies—is susceptible to common proof. (See Johnson v. Serenity Transp., Inc. (N.D.Cal. Aug. 1, 2018, No. 15-cv-02004-JSC) 2018 U.S.Dist.LEXIS 129241, at *39-40 (Johnson) [class certification of meal and rest break claims was appropriate where the plaintiff presented evidence that the defendant did not have a policy requiring workers to take meal and rest breaks; “[the defendant] had an affirmative duty to authorize and provide rest and meal breaks and its concession that there was no policy is sufficient for class certification purposes”]; see also Bradley, supra, 211 Cal. App. 4th at p. 1149 [“[P]laintiffs’ legal challenge to these uniform practices involves common factual and legal issues that are amenable to class treatment. ‘An employer is required to authorize and permit the amount of [rest and meal] break time[s] called for under the wage order for its industry. If it does not ... it has violated the wage order and is liable.’ Claims alleging a ‘uniform policy consistently applied to a group of employees is in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class treatment.’ ”].) That some class members may have taken meal and rest breaks goes to damages and does not demonstrate that individual issues predominate. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021-1022 [as a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages].)

For these reasons, common questions predominate in Plaintiff’s meal and rest period claims.

iii. Minimum Wage and Overtime Claims

Plaintiff asserts that there are common questions of law and fact as to the minimum wage and overtime claims because workers were generally paid on a flat sum basis per assignment, such that they were not paid minimum wages for all hours worked.

In opposition, Defendants argue that whether class members were paid all wages earned or overtime cannot be determined without extensive individual inquiry into thousands of opportunities falling within the class period. Defendants state that resolution of the minimum wage and overtime claims would require an individual inquiry for each class member’s schedule for each job assignment. To support their argument, Defendants point to the fact that Plaintiff received a W-2 for one assignment and received overtime wages in connection with that job. (Defendants’ Compendium of Evidence in Support of Opposition to Plaintiff’s Motion for Class Certification (“Comp. Evid.”), Deposition Transcript Excerpts of Paul Hancock (“Hancock Depo.”), p. 81.) Defendants also contend that Plaintiff does not have an individual claim for unpaid wages because the unpaid invoices he identified were for allegedly unreimbursed expenses. (Id. at pp. 195-196.) Finally, Defendants state that Plaintiff has no evidence that other class members were not paid wages earned during the class period. Defendants point out that there is no evidence that all assignments were paid on a flat-fee basis, and workers could negotiate, and Plaintiffs did in fact negotiate, for an hourly rate. (Id. at pp. 78 & 81.)

Here, the evidence cited by Plaintiff does not support his contention that workers were generally paid on a flat sum basis per assignment. Plaintiff cites portions of his deposition testimony, but Plaintiff merely testifies that sometimes it took him more hours to complete a task than anticipated and he sometimes worked more than eight hours in a day due to travel time. (Lee Dec., Ex. D, pp. 151-153.) Plaintiff also cites deposition testimony from Defendants’ person most knowledge, but Defendants’ person most knowledgeable merely testified that he was not aware of any cases in which any workers were paid overtime during the class period. (Lee Dec., Ex. C, pp. 123-124.) This evidence does not demonstrate that workers were generally paid on a flat-fee basis or that there is a common question as to whether putative class members were paid minimum or overtime wages. Therefore, Plaintiff has not established that common questions predominate in his minimum wage and overtime claims.

iv. Reimbursement Claim

Plaintiff asserts there are common questions of law and fact as to whether Defendants’ failure to reimburse business expenses violates California law. Plaintiff states that Defendants’ undisputed policy during the class period was not to reimburse business expenses (e.g., drug tests and background checks) and, therefore, the policy is a matter of common proof. (Lee Dec., Ex. C, pp. 69, 72, 94-95, 106-107, & 121 & Ex. 11.)

In opposition, Defendants admit that they did not reimburse workers for necessary business expenses. Defendants assert that Plaintiff’s reimbursement claim will depend on individualized proof because Defendants left the issue of reimbursement to the discretion of workers and client-vendors.

Here, it is undisputed that Defendants had a policy during the class period of not reimbursing workers for business expenses. Whether this common policy violated California law is subject to common proof and will be decided primarily by the resolution of the misclassification issue, which is subject to class-wide proof. Furthermore, whether a particular expense was necessary or incurred by a particular class member is a question of damages and does not change the predominance analysis. (See Johnson, supra, 2018 U.S.Dist.LEXIS 129241, at *42-44.)

For these reasons, common questions predominate in Plaintiff’s reimbursement claim.

v. Wage Statement Claim

Plaintiff asserts that there are common questions of law and fact as to whether Defendants’ failure to provide wage statements violates California law. Plaintiff states that it is undisputed that Defendants did not provide wage statements to workers during the class period; rather, workers were simply paid either by withdrawing funds and/or through PayPal. (Lee Dec., Ex. C, pp. 77-78 & 106-107.)

In opposition, Defendants admit they did not issue itemized pay stubs for assignments. Defendants state that the wage statement claim depends upon the outcome of the misclassification issue. Defendants conclude there is no basis to certify the class as to the wage statement claim because Plaintiff cannot prove that he or the putative class members were misclassified.

Here, it is undisputed that Defendants did not issue wage statements during the class period. Moreover, this claim will be decided primarily by the resolution of the misclassification issue, which is subject to class-wide proof. Thus, Plaintiff’s theory of liability—that Defendants violated California law by failing to issue wage statements—is susceptible to common proof. (See Jaimez, supra, 181 Cal.App.4th at pp. 1299-1300 [the plaintiff submitted evidence of uniform corporate practices regarding the misclassification of putative class members and the claim for failure to provide compliant pay stubs was amenable to class treatment].)

For these reasons, common questions predominate in Plaintiff’s wage statement claim.

b. Typicality

The typicality requirement is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. It is only when a defense unique to the class representative will be a major focus of the litigation, or when the class representative’s interests are antagonistic to or in conflict with the objectives of those she purports to represent that denial of class certification is appropriate. But even then, the court should determine if it would be feasible to divide the class into subclasses to eliminate the conflict and allow the class action to be maintained.

(Medrazo v. Honda of North Hollywood (2008) 166 Cal. App. 4th 89, 99, internal citations, brackets, and quotation marks omitted.)

Defendants challenge typicality on the grounds that there are defenses unique to Plaintiff.

First, Defendants assert that Plaintiff lacks standing to prosecute the action on behalf of the class because he only accepted job assignments through Defendants via his limited liability corporation, SVTM. (Defendants’ Memorandum of Points & Authorities in Opposition to Plaintiff’s Motion for Class Certification (“Opposition”), p. 6:21-22.) However, the evidence cited by Defendants does not establish that Plaintiff only accepted job assignments through Defendants via SVTM. In fact, Defendants present evidence to the contrary: Plaintiff did, in fact, accept assignments as an individual rather than as SVTM. (Comp. Evid., Hancock Depo., p. 32: 12-15.) Therefore, Defendants’ standing argument is without merit.

Second, Defendants contend that Plaintiff qualifies for an exemption from the ABC test under Labor Code section 2777. Defendants state that Plaintiff qualifies for the subject exemption because, among other things, he was free from their control and direction in connection with the performance of work for the client, both as a matter of contract and in fact. (See Lab. Code, § 2777, subd. (a)(1) [to qualify for the exemption, the referral agency must establish that “the service provider is free from the control and direction of the referral agency in connection with the performance of the work for the client, both as a matter of contract and in fact”].) As Plaintiff persuasively argues, Defendants cannot meet the requirements of the statute because the evidence shows that Plaintiff was not free from Defendants’ control and direction in the connection with the performance of work for clients. Specifically, Defendants’ Community Guidelines prohibit workers from subcontracting assignments without the client’s consent, falsifying documents and/or deliverables, abandoning clients, no calls or no shows, cancelling assignments with less than 24 hours’ notice discussing or attempting to retrieve payment from an end user, failing to return equipment, and engaging in unprofessional conduct (such as profanity). (Lee Dec., Ex. C, pp. 119-121 & Ex. 20.) Thus, as a matter of contract, Plaintiff’s performance of work for clients was subject to some control and direction by Defendants.

Third, Defendants assert, in a conclusory manner, that Plaintiff also qualifies for the exemptions from the ABC test under Labor Code sections 2778 and 2779. (Opposition, p. 13.) However, Defendants do not present reasoned argument demonstrating that they can meet all of the factors set forth in Labor Code sections 2778 and 2779. For example, Defendants do not explain why the services provided by Plaintiff constitute “professional services” under Labor Code section 2778, subdivision (b)(2). (See Lab. Code, § 2778, subds. (a) [stating that the exemption applies to contracts for “professional services” when certain criteria are met] & (b)(2) [listing the type of work that qualifies as “professional services”].) Consequently, Defendants’ argument based on Labor Code sections 2778 and 2779 lacks merit. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

In light of the foregoing, the court finds that Plaintiff has met the typicality requirement.

c. Adequacy of Representation

“Adequacy of representation depends on whether the plaintiff’s attorney is qualified to conduct the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal. App. 3d 442, 450.) The fact that a class representative does not personally incur all of the damages suffered by each different class member does not necessarily preclude the representative from providing adequate representation to the class. (Wershba v. Apple Computer, Inc. (2001) 91 Cal. App. 4th 224, 238.)

Defendants do not dispute that Plaintiff’s counsel is qualified. Further, there is no indication that Plaintiff’s interests are antagonistic to the interests of the class. Thus, the court finds that Plaintiff has met the adequacy of representation requirement.

//

3. Substantial Benefits of Class Litigation

“[A] class action should not be certified unless substantial benefits accrue both to litigants and the courts … .” (Basurco v. 21st Century Insurance Co. (2003) 108 Cal.App.4th 110, 120, internal quotation marks omitted.) The question is whether a class action would be superior to individual lawsuits. (Ibid.) “Thus, even if questions of law or fact predominate, the lack of superiority provides an alternative ground to deny class certification.” (Ibid.) Generally, “a class action is proper where it provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action.” (Id. at pp. 120-121, internal quotation marks omitted.)

Here, many of the legal issues to be decided in this case are common throughout the class. It would be inefficient to hear and decide the same issues separately and repeatedly for each class member. As discussed above, however, Plaintiff has not demonstrated that common issues predominate with respect to the minimum wage and overtime claims. Consequently, the court finds that a class action would be superior in this case except as to Plaintiff’s minimum wage and overtime claims.

Defendant argues Plaintiff’s motion must fail because he was required to submit a trial plan under Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 (Duran) and he did not submit a trial plan explaining how he intends to address manageability issues raised by his claims.

As is relevant here, the court in Duran stated:

In the misclassification context, as in other types of cases, trial courts deciding whether to certify a class must consider not just whether common questions exist, but also whether it will be feasible to try the case as a class action. Depending on the nature of the claimed exemption and the facts of a particular case, a misclassification claim has the potential to raise numerous individual questions that may be difficult, or even impossible, to litigate on a classwide basis. Class certification is appropriate only if these individual questions can be managed with an appropriate trial plan.

(Duran, supra, 59 Cal.4th at p. 27.) The court opined that “[i]f statistical evidence will comprise part of the proof on class action claims, the court should consider at the certification stage whether a trial plan has been developed to address its use.” (Id. at p. 31.) In that case, the court determined that the defendant’s outside salesperson exemption defense involved individual issues that required development of a trial plan to manage those issues. (Id. at pp. 31-33.)

Defendants do not present any evidence or reasoned argument demonstrating that statistical evidence will comprise part of the proof on Plaintiff’s class action claims or their defenses. Furthermore, in response to Defendants’ concerns regarding the absence of a trial plan, Plaintiff presents expert declarations that explain how he will utilize Defendants’ records and historical data, and possibly representative evidence obtained from survey data or testimony from a random sampling of class members, to calculate class-wide damages and penalties. (Declaration of Brian Kriegler, Ph.D., ¶¶ 11-19; Declaration of Jeffrey S. Petersen, Ph.D., in Support of Plaintiff’s Motion for Class Certification, ¶¶ 2-7, 18-26, 28-29, & 32-78.)

Plaintiff’s plan is sufficient at this point in the case. If further discovery or other developments in the case show the case will be unmanageable, the issue can be raised again.

4. Conclusion

Accordingly, Plaintiff’s motion for class certification is DENIED IN PART and GRANTED IN PART. Plaintiff’s motion for class certification is DENIED as to the minimum wage and overtime claims. Plaintiff’s motion is GRANTED in all other respects.

As the parties have focused in their Joint Case Management Conference Statement on the issues surrounding this motion, the court finds that it would be more productive to conduct a Case Management Conference when the parties have met and conferred concerning this order. Accordingly, the Case Management Conference set for February 9, 2022, is continued to April 20, 2022.

The court will prepare the final order if this tentative ruling is not contested

NOTICE: The court has rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at .) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.

State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a telephonic hearing.

The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

|ROBERT XAVIER, individually, and on behalf of other members of the general|Lead Case No. 19CV347412 |

|public similarly situated, | |

| |TENTATIVE RULING RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS |

|Plaintiff, |ACTION AND PAGA SETTLEMENT |

| | |

|vs. | |

| | |

|NEW LEAF COMMUNITY MARKETS, INC., a California corporation; NEW SEASONS | |

|MARKET, LLC, an unknown business entity; and DOES 1 through 100, | |

|inclusive, | |

| | |

|Defendants. | |

|ELEANOR WEISS, as an aggrieved employee and Private Attorneys General, |Case No. 21CV390546 |

| | |

|Plaintiff, | |

| | |

|vs. | |

| | |

|NEW LEAF COMMUNITY MARKETS, INC., a California corporation; NEW SEASONS | |

|MARKET, LLC, an unknown business entity; and DOES 1 through 100, | |

|inclusive, | |

| | |

|Defendants. | |

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on February 9, 2022 at 9:00 a.m. in Department 3. The court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a consolidated action arising out of various alleged Labor Code violations. On May 13, 2019, plaintiff Robert Xavier (“Xavier”) filed a putative class action Complaint against defendants New Leaf Community Markets, Inc. and New Seasons Market, LLC (collectively, “Defendants”) alleging causes of action for: (1) Violation of California Labor Code §§ 510 and 1198; (2) Violation of California Labor Code §§ 226.7 and 512, subd. (a); (3) Violation of California Labor Code § 226.7; (4) Violation of California Labor Code §§ 1194, 1197, and 1197.1; (5) Violation of California Labor Code §§ 201 and 202; (6) Violation of California Labor Code § 204; (7) Violation of California Labor Code § 226, subd. (a); (8) Violation of California Labor Code § 1174, subd. (d); (9) Violation of California Labor Code §§ 2800 and 2802; (10) Violation of California Business & Professions Code § 17200, et seq.

On September 3, 2020, plaintiff Eleanor Weiss (“Weiss”) filed a Complaint against Defendants in San Mateo County Superior Court, alleging a single cause of action for civil penalties under the Private Attorneys Genera Act (“PAGA”) for failure to pay minimum and overtime wages, failure to provide meal periods and rest periods, failure to timely pay final wages, failure to provide accurate itemized wage statements, and failure to reimburse for business expenses.

Following mediation, Xavier, Weiss, and Defendants reached a global settlement of the actions.

On June 24, 2021, the San Mateo County Superior Court approved a Joint Stipulation and Order to Transfer Venue, transferring Weiss’s case to the Santa Clara County Superior Court.

On January 10, 2022, the court approved the parties’ Joint Stipulation to Consolidate Actions for Settlement Purposes and Order, which consolidated the two cases for purposes of settlement.

//

Xavier and Weiss (collectively, “Plaintiffs”) now move for preliminary approval of the settlement.

II. LEGAL STANDARD

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235 (Wershba), citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794 (Dunk).)

In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.”

(Wershba, supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624 (Officers).)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba, supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers, supra, 688 F.2d at p. 625, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba, supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

//

//

III. DISCUSSION

A. Provisions of the Settlement

The case has been settled on behalf of the following class:

[A]ll current and former hourly-paid, non-exempt employees who worked for Defendants within the State of California at any time during the Class Period.

(Declaration of Heather Davis in Support of Plaintiffs’ Motion for Preliminary Approval of Class Action and PAGA Settlement (“Davis Dec.”), Ex. 1 (“Settlement Agreement”), ¶ 6.) The Class Period is May 13, 2015 to May 16, 2021. (Id. at ¶ 7.) The class contains a subset of PAGA Members that are defined as all current and former hourly-paid, non-exempt employees who worked for Defendants in California at any time from June 29, 2019 to May 16, 2021. (Id. at ¶¶ 25-26.)

According to the terms of settlement, Defendants will pay a total non-reversionary amount of $3,100,000. (Settlement Agreement, ¶ 15.) The total settlement payment includes attorney fees of $1,085,000 (35 percent of the gross settlement amount), costs up to $75,000, an incentive award of $7,500 for each class representative, settlement administration costs up to $25,000, and a PAGA allocation of $300,000 (from which $225,000 will be paid to the LWDA and $75,000 will be paid to the aggrieved employees). (Id. at ¶¶ 4, 9, 24, 41, & 54.)

The net settlement amount of approximately $1,600,000 will be distributed to the class members on a pro rata basis based on the number of workweeks worked during the Class Period. (Settlement Agreement, ¶¶ 15 & 53-55.) Similarly, PAGA Members will receive a pro rata share of the 25 percent portion of the PAGA payment allocated to aggrieved employees based on the number of workweeks worked during the PAGA Period. (Ibid.)

Checks remaining uncashed more than 180 days after mailing will be void and the funds from those checks will be distributed to the Controller of the State of California to be held pursuant to the Unclaimed Property Law for the benefit of the class members who did not cash their checks. (Settlement Agreement, ¶ 71.) The parties’ proposal to send funds from uncashed checks to the Unclaimed Property Fund does not comply with Code of Civil Procedure section 384, which mandates that unclaimed or abandoned class member funds be given to “nonprofit organizations or foundations to support projects that will benefit the class or similarly situated persons, or that promote the law consistent with the objectives and purposes of the underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil legal services to the indigent.” Plaintiffs are directed to identify a cy pres in compliance with Code of Civil Procedure section 384 at least ten days prior to the final approval hearing.

B. Fairness of the Settlement

Plaintiffs assert that the settlement is fair, reasonable, and adequate, given the strength of their claims, the inherent risks of litigation, including substantial risks relative to class certification and the merits of the claims, and the costs of pursuing litigation. Plaintiffs state that after conducting substantial informal discovery, the parties attended a full day mediation with the Honorable Raul A. Ramirez. Following the failed mediation, the parties engaged in additional discovery efforts and attended an Informal Discovery Conference with the court. The parties then attended mediation with Lynn Frank, Esq., and were eventually able to resolve the dispute. Plaintiffs estimate that Defendants faced a maximum potential liability of $21,347,218.33 for all claims. (Davis Dec., ¶ 55.) Plaintiffs provide a detailed breakdown of this amount by claim. (Ibid.) Plaintiffs also estimate PAGA penalties of approximately $6,081,500. (Ibid.) Plaintiffs assert that for the approximately 2,493 class members, the average net recovery is $671.88 per class member. (Id. at ¶¶ 35-36 & 41.)

Overall, the court finds the settlement is fair. The settlement provides for some recovery for each class member and eliminates the risk and expense of further litigation.

C. Incentive Award, Fees, and Costs

Plaintiffs request an incentive award of $7,500 for each class representative.

The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit.

(Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.)

The class representatives have submitted declarations detailing their participation in the cases. Xavier states that he spent an unspecified number of hours communicating with class counsel, discussing Defendants’ practices and policies, searching for and producing documents, reviewing and responding to discovery, and reviewing the settlement. (Declaration of Robert Xavier in Support of Plaintiffs’ Motion for Preliminary Approval, ¶¶ 5-10.) Weiss states that she spent an unspecified number of hours communicating with class counsel, discussing Defendants’ practices and policies, searching for and producing documents, and reviewing the settlement. (Declaration of Eleanor Weiss in Support of Plaintiffs’ Motion for Preliminary Approval, ¶¶ 5-10.) Based on Plaintiffs’ efforts, as well as the potential impact on their future employment due to their participation, the court finds the incentive awards are warranted and they are approved.

The court also has an independent right and responsibility to review the requested attorney fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel state that they will seek attorney fees of $1,085,000 (35 percent of the total settlement fund). The court notes that the percentage of the total settlement is higher than is normally awarded, and the amount of costs is also high. Plaintiffs’ counsel shall submit lodestar information (including hourly rates and hours worked) prior to the final approval hearing in this matter so the court can compare the lodestar information with the requested fees. Plaintiffs’ counsel shall also submit evidence of actual costs incurred.

D. Conditional Certification of Class

Plaintiffs request that the putative class be conditionally certified for purposes of the settlement. Rule 3.769(d) of the California Rules of Court states that “[t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing.” California Code of Civil Procedure Section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .” As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)

The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and, (3) class representatives who can adequately represent the class. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)

As explained by the California Supreme Court,

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, internal quotation marks, ellipses, and citations omitted.)

Plaintiffs state that there are approximately 2,493 class members. Class members can be ascertained from Defendants’ records. There are common issues regarding whether Defendants violated wage and hour laws regarding payment of wages, the provision of meal and rest breaks, the issuance of wage statements, and reimbursement of business expenses. No issue has been raised regarding the typicality or adequacy of Plaintiffs as class representatives. In sum, the court finds that the proposed class should be conditionally certified.

E. Class Notice

The content of a class notice is subject to court approval. “If the court has certified the action as a class action, notice of the final approval hearing must be given to the class members in the manner specified by the court.” (Cal. Rules of Court, rule 3.769(f).)

The notice complies with the requirements for class notice. (See Settlement Agreement, Ex. A.) It provides basic information about the settlement, including the settlement terms, and procedures to object or request exclusion. The notice also includes clear and accurate information regarding appearances at the final approval hearing. Therefore, the class notice is approved.

IV. CONCLUSION

The motion for preliminary approval of the class action settlement is GRANTED. The final approval hearing is set for October 5, 2022, at 1:30 p.m.

The Case Management Conference set for February 9, 2022 is vacated.

The court will prepare the final order if this tentative ruling is not contested.

NOTICE: The court has rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at .) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.

State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a telephonic hearing.

The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

|MERIDIAN AT WILLOW GLEN HOMEOWNERS ASSOCIATION, a California nonprofit |Case No. 20CV371309 |

|mutual benefit corporation, on behalf of its homeowner members, | |

| |TENTATIVE RULING RE: MOTION TO STRIKE |

|Plaintiff, | |

| | |

|vs. | |

| | |

|TAYLOR MORRISON OF CALIFORNIA, LLC, a California limited liability | |

|company; and DOES 1 through 50, | |

| | |

|Defendants. | |

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on February 9, 2022 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as follows:

I. INTRODUCTION

Plaintiff Meridian at Willow Glen Homeowners Association (“Plaintiff” or the “Association”) brings this construction defect action against defendant Taylor Morrison of California, LLC (“Defendant”). Plaintiff alleges that, as a result of actions and omissions of Defendant, certain components of a common-interest development consisting of 51 residences and common areas in San Jose, CA (the “Project”) were improperly designed and constructed such that there has been significant property damage. (Third Amended Complaint (“TAC”), ¶¶ 2 and 16.) Additionally, prior to the sale of the residences, Defendant, in its capacity as the Association’s initial board of directors, represented to the Association and its members that an adequate budget and monetary reserves had been established for the Project that would permit Plaintiff to sufficiently discharge its obligations to maintain, repair, and replace the property. (Id. at ¶ 18.) This representation was false and the budget and monetary reserves were and are severely inadequate. (Ibid.)

The TAC, filed on January 27, 2022, sets forth the following counts: (1) Violations of Right to Repair Law; (2) Breach of Fiduciary Duty; and (3) Breach/Enforcement of CC&Rs.

Now before the court is a motion to strike directed at the TAC.

II. LEGAL STANDARD

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

III. DISCUSSION

Defendant moves to strike portions of the TAC that allege a right to attorney fees. “Unless authorized by either statute or agreement, attorney’s fees ordinarily are not recoverable as costs.” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 127.)

Plaintiff seeks to recover attorney fees pursuant to Civil Code section 5975, subdivision (c). This section states that “[i]n an action to enforce the governing documents, the prevailing party shall be awarded reasonable attorney’s fees and costs.” Section 5975 is intended to apply to the enforcement of CC&R’s and other governing documents against owners of interests in a development. (See Civ. Code, § 5975, subds. (a) and (b).)

However, Plaintiff does not seek to “enforce” any requirement of the CC&R’s against a current owner. While the CC&R’s initially defined “owner” as Defendant, the CC&R’s state that “[i]f a Lot is sold under a recorded contract of sale (or a recorded memorandum of such contract), the purchaser, rather than the fee Owner, shall be considered the “Owner.” (CC&R’s, § 2.38.) Plaintiff alleges in the TAC that Defendant “marketed and sold the residences to members of the general public.” (TAC, ¶ 5.) Having sold the residences, Defendant is no longer an “owner” and it is not apparent how the CC&R’s could be enforced against it. Rather, Plaintiff alleges a past breach of contract by Defendant. Furthermore, with regard to the breach of fiduciary duty cause of action, that claim is based on a fiduciary relationship and does not arise out of a specific provision of the CC&R’s. Therefore, Civil Code section 5975 does not apply to provide for recovery of attorney fees.

Plaintiff also seeks attorney fees under sections 10.2 and 10.2.1 of the CC&R’s, which permit the recovery of fees in connection with an action to enforce compliance with the Project Documents. (TAC, ¶¶ 35-37 & 50-51.) But the relevant attorney fee language only applies with respect to enforcement of the Project Documents against a current Owner of a lot in the Project. (See ibid.) As explained above, Defendant is no longer an “owner” and, therefore, attorney fees are not recoverable under sections 10.2 and 10.2.1 of the CC&R’s.

Finally, Plaintiff seeks fees pursuant to section 9.1.1 of the CC&R’s, which provides, in relevant part, that “[a]ll Assessments and Additional Charges, together with any late charges, interest, collection costs and reasonable attorney’s fees incurred in collecting delinquent Assessments and Additional Charges … shall be the obligation of the Owner of such Lot at the time when the Assessments or Additional Charges fell due.” (TAC, ¶¶ 34, 37, 49, & 51-52.)

Plaintiff now alleges that Defendant agreed, and thereafter failed, to collect or pay assessments. (TAC, ¶¶ 32, 37, 45, 47, & 51-52.) Plaintiff further alleges that the assessments fell due and were owed by Defendant at the time the Association was formed. (Id. at ¶ 37.) Therefore, section 9.1.1 of the CC&R’s can be relied on as a basis for attorney fees.

Accordingly, Defendant’s motion to strike is DENIED.

The court will prepare the final order if this tentative ruling is not contested.

NOTICE: The court has rescinded, effective June 21, 2021, all prior general orders restricting courthouse access. Remote appearances for complex civil matters are still permitted, but are no longer mandatory. (See General Order Rescinding Portion of May 6, 2020 General Order Concerning Complex Civil Actions, available at .) If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing remotely should contact CourtCall.

State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a telephonic hearing.

The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter may participate remotely and need not be present in the courtroom.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

| |Case No. |

| | |

The Court will prepare the order.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

| |Case No. |

| | |

The Court will prepare the order.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

| |Case No. |

| | |

The Court will prepare the order.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

| |Case No. |

| | |

The Court will prepare the order.

-----------------------

[1] Defendants do not rely on the Request for Judicial Notice to prove that Plaintiff founded SVTM and used his corporate entity to register with Defendants and accept assignments. (Defendants’ Memorandum of Points & Authorities in Opposition to Plaintiff’s Motion for Class Certification, p. 4:14-19.)

[2] The same class definition is proposed in the FAC. (FAC, ¶ 16.)

-----------------------

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download