Kalo, et al. v. 1-800-BATTERY, Inc., et al.

6

Plaintiff’s request for a $5,000 “incentive award for serving as PAGA representative” is denied. Plaintiff cites no legal authority authorizing an incentive award to a plaintiff following entry of judgment after trial in a PAGA case, and, in any event, the court does not find an incentive award reasonable under the circumstances of this case.

Plaintiff’s request for $5,000 in administration fees “for expenses in facilitating payment to the aggrieved employees and the LWDA” is denied. Plaintiff cites no legal authority holding that a court must appoint an administrator following entry of judgment after trial in a PAGA case and/or should order a defendant to pay the costs of such an administrator.

Clerk to give notice. 3 Kalo, et al. v. 1-800- BATTERY, Inc., et al.

2015-00811823 Defendant Richard Keller’s Motion for Summary Judgment or, in the alternative, Summary Adjudication

Defendant Richard Keller moves for summary judgment or, in the alternative, summary adjudication against plaintiffs Marc Youssef Lazo, Jacques Hattouni and H&L Holdings, LLC’s complaint filed May 23, 2018. For the following reasons, Keller’s motion is denied.

A defendant seeking summary judgment bears its burden of showing that a cause of action has no merit if the defendant shows that one or more elements of the cause of action cannot be established, or that the defendant has a complete defense to the cause of action. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51. If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal.4th at 850-51.

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends the cause of action has no merit, there is no affirmative defense to the cause of action, there is no merit to an affirmative defense as to any cause of action, there is no merit to a claim for damages, as specified in Civil Code section 3294, or that one or more defendants either owed or did not owe a duty to the plaintiff.

Civ. Proc. Code § 437c(f)(l). A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. Id. A motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 453.

“[I]t is well established that the operative pleading frames the issues for purposes of summary judgment . . . .” Restivo v. City of Petaluma (2025) 111 Cal.App.5th 267, 279. It is also “‘“well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.”’” State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130. “Thus, an amended complaint supersedes all prior complaints. [Citations.] The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment.” Id. at 1130-31. “[O]nce an amended complaint is filed, it is error to grant summary adjudication on a cause of action contained in a previous complaint.” Id. at 1131.

As stated above, Keller moves for summary judgment or, in the alternative, summary adjudication against plaintiffs’ complaint filed May 23, 2018. Brief (ROA 2971) at 1:24-28; Separate Statement (ROA 2960) at 3:2-5. That complaint contains 119 paragraphs, and alleges 13 causes of action, 10 of them against Keller. ROA 827, 1610. (For unknown reasons, Keller states in his motion that plaintiffs also allege the first cause of action (reformation of written contract) in the May 23, 2018 complaint against him. Brief (ROA 2971) at 1:28-2:1. Plaintiffs allege the first cause of action in the May 23, 2018 complaint against L’Oreal USA S/D, Inc., NYX Profession Makeup, K&N Engineering, Inc. and CustomFAB USA.)

Plaintiffs amended their complaint on February 7, 2019 (ROA 828, 1900), January 24, 2020 (ROA 870) and December 4, 2020 (ROA 2558). Plaintiffs’ operative complaint is the third amended complaint filed December 4, 2020. Plaintiffs’ third amended complaint contains 172 paragraphs, and alleges 18 causes of action, 15 of them against Keller. ROA 2558. Compared the May 23, 2018 complaint, the third amended complaint also contains several additional paragraphs of allegations of “background facts.” Id.

In short, Keller’s motion is not directed at plaintiffs’ operative pleading. The motion accordingly must be denied. In addition, despite seeking summary judgment, Keller does not address all of the causes of action alleged against him in the third amended complaint. Furthermore, in addition to several additional paragraphs of allegations of “background facts” in the third amended complaint—all of which plaintiffs incorporate into each cause of action—at least some of the causes of action in the third amended complaint that have the same title as causes of action in the May 23, 2018 complaint on which Keller seeks summary adjudication contain additional and/or different allegations than the versions of those causes of action alleged in the May 23, 2018 complaint.

Defendant’s Request for Judicial Notice (ROA 2966) is denied as the documents were not material to the disposition of the motion. Plaintiffs’ Request for Judicial Notice (ROA 2990) is denied as the documents were not material to the disposition of the motion. In addition, it is not necessary to seek judicial notice of documents in the court file for this case. Plaintiffs’ Evidentiary Objections (ROA 2994) were not material to the disposition of the motion. Plaintiffs Marc Youssef Lazo, Jacques Hattouni and H&L Holdings, LLC to give notice. 4 Goodman, et al. v. Optima Tax Relief LLC

2025-01503347 Defendant Optima Tax Relief LLC’s Demurrer to First Amended Complaint and Motion to Strike Portions of First Amended Complaint

Defendant Optima Tax Relief LLC demurs to the class action allegations in plaintiffs’ first amended complaint and moves to strike the same portions of the first amended complaint. Defendant argues the class definition in paragraph 88 of the first amended complaint defines an impermissible “fail-safe” class that is not ascertainable. In their opposition, plaintiffs seek leave to file a second amended complaint to revise the class definition in paragraph 88.

Plaintiffs’ request for leave to file a second amended complaint to revise the class definition in paragraph 88 is granted, defendant’s demurrer based on paragraph 88 is overruled as moot, and defendant’s motion to strike based on paragraph 88 is denied as moot. If defendant contends plaintiff’s revision of paragraph 88 is inadequate, case law states the “preferable practice” is to allow leave to amend and the parties then may test the legal sufficiency of the pleading through demurrer or other appropriate motion.

See Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 (“the better course of action would have been to allow Atkinson to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings”); Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (“the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings”).

Defendant’s other arguments in its demurrer—i.e., that plaintiffs cannot establish predominance of common questions and cannot establish typicality—are not suitable for resolution on demurrer here, as the court cannot conclude as a matter of law on this record that, assuming the truth of the factual allegations in the first amended complaint, there is no reasonable possibility that the requirements for class certification will be satisfied. Defendant’s demurrer based on predominance and typicality is overruled.

Defendant’s Reply Request for Judicial Notice (ROA 91) is denied as the documents are not material to the disposition of the motions. Plaintiffs are ordered to give notice and to file and serve by May 28, 2026 a second amended complaint consistent with this ruling.

Status Conference in Case No. 2025-01503347

The court has reviewed the parties’ joint status conference statement filed May 14, 2026 (ROA 85), and based thereon