DEPARTMENT 207 LAW AND MOTION RULINGS

Case Number: 21STCV25331 Hearing Date: March 6, 2025 Dept: 207

TENTATIVE RULING

DEPARTMENT 207

HEARING DATE March 6, 2025

CASE NUMBER 21STCV25331

MOTION Motion to Vacate/Set Aside Order

MOVING PARTIES Cross-Defendants Adam Gruen and Amanda Gruen

OPPOSING PARTY Cross-Complainant Palisades Homeowners Association #3

BACKGROUND

This case arises from a dog bite that injured a minor.

The operative First Amended Complaint, filed by Plaintiffs Poppy Webster, on her own behalf and as guardian ad litem for her minor children Ludovica “Lulu” Pietroiacovo and Valentina Pietroiacovo, and Michael Pietroiacovo (“Plaintiffs”) against Defendants Adam Gruen and Amanda Gruen (the “Gruens”) and Palisades Homeowners Association #3 (“HOA”) alleges five causes of action for (1) strict liability; (2) negligence; (3) negligent infliction of emotional distress (bystander); (4) premises liability; and (5) public and private nuisance.

HOA filed a cross-complaint against the Gruens for (1) breach of contract; (2) express indemnification; (3) implied indemnity/equitable indemnification; (4) equitable contribution; (5) declaratory relief: duty to defend; and (6) declaratory relief: duty to indemnify.

On November 21, 2024, the Court granted HOA’s unopposed motion for summary adjudication on its cross-complaint that the Gruens owed a duty to indemnify and defend the HOA against Plaintiffs’ operative complaint.

The Gruens now move to set aside/vacate the Court’s November 21, 2024 order granting summary adjudication, pursuant to Code of Civil Procedure section 473, subdivision (b) on the grounds that Counsel’s failure to oppose the MSA was due to an inadvertent miscalendaring error.

The Gruens’ cross motion for summary adjudication on the HOA’s cross-complaint is currently scheduled for March 25, 2025.

The HOA opposes the motion and the Gruens reply.

ANALYSIS

I. DISCRETIONARY AND MANDATORY RELIEF

“Proceeding to judgment in the absence of a party is an extraordinary and disfavored practice in Anglo–American jurisprudence: The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963 [cleaned up].)

Code of Civil procedure section 473 “includes a discretionary provision, which applies permissively, and a mandatory provision, which applies as of right.” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 25 (hereafter Minick).) “Section 473 is a remedial statute to be “applied liberally” in favor of relief if the opposing party will not suffer prejudice. Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails.” (Minick, supra, 3 Cal.App.5th at p. 24 [cleaned up].)

The party or the legal representative must seek such relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“because more than six months had elapsed from the entry of default, and hence relief under section 473 was unavailable”]; People v. The North River Ins. Co. (2011) 200 Ca.App.4^th 712, 721 [motion for relief under section 473 must be brought “within a reasonable time, in no case exceeding six months”]). “The six-month limit is mandatory; a court has no authority to grant relief under section 473, subdivision (b), unless an application is made within the six-month period.” (Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 340, citations omitted.)

A. DISCRETIONARY RELIEF

Per Code of Civil Procedure section 473, subdivision (b), a court may “relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

B. MANDATORY RELIEF

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect .

(Code Civ. Proc., § 473, subd. (b).) “In considering whether the trial court properly denied relief under section 473(b), the first question is the sufficiency of defendants' showing of attorney fault, if believed, to trigger the mandatory relief provisions of that statute.” (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 896, disapproved on other grounds by Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830 (hereafter Standard).) “Under section 473(b), a party is entitled to relief from a default and resulting judgment whenever, on timely application for relief, his attorney ‘attest[s] to his or her mistake, inadvertence, surprise, or neglect’ in connection with the default or the judgment.” (Ibid.)

Here, the Gruens advance the attorney declaration of Ninos Saroukhanioff, which provides:

2. HOA filed their Motion for Summary Adjudication concerning “indemnity,” against GRUENS, on December 4, 2023. This motion was set for hearing on November 14, 2024, and continued to November 21, 2024. The Court granted HOA’s MSA because GRUENS did not file an opposition.

3. The GRUENS also filed their Motion for Summary Adjudication concerning “indemnity,” against HOA, on December 5, 2023. HOA could not get an early hearing date on the Court’s reservation system, therefore, this motion is currently set for hearing on March 14, 2025.

4. A third Motion for Summary Adjudication, which concerns “punitive damages,” was filed by HOA against the Plaintiffs, on December 20, 2023. Most notably, this motion is currently set for hearing on March 20, 2025.

5. Due to mistake and excusable neglect, I misunderstood that the HOA’s MSA set for November 21, 2024, was instead set for March 20, 2025, and vice versa. As a result, I mistakenly believed that their opposition was not due until 14 days before March 20, 2025.

6. HOA will not be prejudiced if the Court grants relief to the GRUENS because the trial is not set until May 19, 2025 (more than six months from today), and because HOA will, nevertheless, need to file an opposition, to GRUENS’ MSA anyway,

7. A true copy of the Court’s Order dated November 21, 2024, Granting HOA’s Motion for Summary Adjudication. (See Exhibit-A).

8. Plaintiffs will not be prejudiced because Plaintiffs have already settled their case with the GRUENS for $1.3 million.

9. The GRUENS request that their attorney's mistake should not be imputed to them.

(Saroukhanioff Decl. ¶¶ 2-9.)

Thus, the Gruens have advanced an attorney declaration demonstrating that the failure to oppose the motion for summary adjudication was due to counsel’s mistake, surprise, inadvertence, or excusable neglect. In particular, counsel inadvertently mixed up the three pending motions for summary adjudication and inadvertently calendared the hearing as being in March, as opposed to November.

The HOA opposes, arguing that an attorney’s failure to timely oppose a motion is not “excusable” neglect as a matter of law. In support, the HOA cites to Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682 (hereafter Garcia). In Garcia, the attorney timely opposed the motion for summary judgment, but after seeing the court’s tentative ruling, submitted a supplemental brief in opposition that raised a new argument. However, in the meantime, the Judge had signed the order granting summary judgment. (Id. at p. 679.) The appellate court held that the attorney’s failure to timely present an argument raising a triable issue of material fact was not “excusable” to warrant relief under section 473. (Id. at p. 682.)

In so holding, the Garcia court analyzed two other cases involving the application of Section 473. In Avila v. Chua (1997) 57 Cal.App.4th 860, the trial court held that counsel’s failure to oppose a motion for summary judgment due to a miscalendaring error was not “excusable” neglect warranting relief, but the appellate court reversed, analogizing the situation to a default and emphasizing the strong public policy of adjudicating disputes on the merits.

In Bernasconi Commercial Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, the party sought relief from mandatory dismissal under Code of Civil Procedure sections 583.210 and 583.250 for failure to serve the complaint within three years. The appellate court clarified that while Section 473 may be used to overturn dismissals entered pursuant to discretionary dismissal statutes “only if limited to those dismissals which are the procedural equivalent of defaults—i.e., those which occur because the plaintiff’s attorney ahs failed to oppose a dismissal motion” but not to effectively litigate an attorney’s malpractice in failing to raise certain arguments or to overturn dismissals entered pursuant to mandatory dismissal statutes, as that would “abrogate” the dismissal statutes “by implication.” (Id. at p. 1082.)

Here, this case is closest to Avila. Counsel’s failure to oppose the motion for summary adjudication at all is akin to a default, where the Gruens were deprived of any argument in opposition. As such, the Court finds the neglect was excusable and that it is appropriate to vacate the order granting summary adjudication and to re-set the hearing on the motion for March 25, 2025.

CONCLUSION

For the foregoing reasons, finding the Gruens’ failure to oppose the motion for summary adjudication to be the result of counsel’s inexcusable neglect, the Court grants the Gruens’ motion to set aside/vacate the Court’s November 21, 2024 order granting the HOA’s unopposed motion for summary adjudication. That order is hereby vacated and the Court re-sets the hearing on that motion to March 25, 2025 at 8:30 a.m. in Department 207.

Further, the Court acknowledges that effective January 1, 2025, any opposition to a motion for summary judgment/adjudication is due 20 days prior to the hearing, yet today’s hearing is only nineteen days prior to the rescheduled hearing.

Notwithstanding, the Court will consider the Opposition to motion for summary adjudication attached to the Gruens’ Reply in support of the instant motion (and served on the HOA) to be timely However, as a courtesy to the Court, in the interest of case file management, the Court orders the Gruens to file Opposition.

The HOA’s Reply, if any, shall be filed and served under Code of Civil Procedure section 437c, subdivision (b)(4) [11 calendar days before the March 25, 2025 hearing].)

All parties shall lodge courtesy copies of the moving, opposition and reply papers directly in Department 207 forthwith.

The Gruens shall provide notice of the Court’s orders and file the notice with a proof of service forthwith.

DATED: March 6, 2025 ___________________________

Michael E. Whitaker

Judge of the Superior Court

Case Number: 22SMCV01293 Hearing Date: March 6, 2025 Dept: 207

TENTATIVE ruling

DEPARTMENT	207
HEARING DATE	March 6, 2025
CASE NUMBER	22SMCV01293
MOTION	Motion to Tax Costs
MOVING PARTY	Plaintiffs Stefan Wrobel and Melissa Pena
OPPOSING PARTY	Defendant Ashley Wendell

MOTION

This case arises from a dispute concerning residential construction. Plaintiffs Stefan Wrobel (“Wrobel”) and Melissa Pena (“Pena”) (collectively, “Plaintiffs”) sued Defendants Hazel & Oak Construction, LLC (“H&O”); Stephen Robert Brown (“Brown”); and Ashley Wendell (“Wendell” or “Defendant”) (collectively, “Defendants”) stemming from two agreements between Plaintiffs and H&O for H&O to perform construction services on Plaintiffs’ two residential properties, located at 27 Buccaneer Street (“27 property”) and 29 Buccaneer Street (“29 property”), in Marina Del Rey, California. There is a separate agreement for each property.

The first amended complaint alleges seven causes of action: (1) breach of written contract; (2) statutory disgorgement (B&P code §7031); (3) fraud; (4) negligent misrepresentation; (5) negligence; (6) alter ego; and (7) constructive trust.

Although the contracts at issue are between Plaintiffs and H&O, signed by Brown on behalf of H&O, Plaintiffs sought to hold Wendell liable on a theory of alter ego liability. Plaintiffs also sought a constructive trust, alleging H&O transferred funds to Wendell that should rightfully have been transferred to Plaintiffs instead.

Plaintiffs voluntarily dismissed Wendell on December 20, 2024.

On January 3, 2025, Wendell filed a memorandum of costs. Plaintiffs move to tax some of the requested costs. Wendell opposes the motion and Plaintiffs reply.

ANALYSIS

Wendell’s memorandum seeks the following costs:

· Filing and motion fees $948.75

· Fees for electronic filing or service $145.23

· Other $3,655.74

The “Other” fees listed as follows:

· Cost for mediation $3,395

· Costs for courtesy copy deliveries via attorney service $196.45

· Costs for mandatory overnight deliveries re service of documents per CCP 1005 $64.29

Plaintiffs argue object to all the “Other” fees on the grounds that they are not recoverable.

Code of Civil Procedure section 1033.5 outlines the costs that are recoverable to a prevailing party. A prevailing party includes “a defendant in whose favor a dismissal is entered.” (Code Civ. Proc., § 1011, subd. (a)(4).)

With respect to the costs incurred delivering courtesy copies, these costs are neither expressly allowed, pursuant to Code of Civil Procedure section 1033.5, subdivision (a), nor expressly disallowed, pursuant to subdivision (b). Subdivision (c) provides that “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.”

This Court requires courtesy copies. As such, the Court exercises its discretion and awards these costs.

With respect to mandatory overnight deliveries for service of documents pursuant to Code of Civil Procedure section 1005, the Court finds that these are effectively fees to effectuate service of process, which are expressly allowable, pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(4). As such, the Court awards those costs.

Regarding Mediation, those costs are neither expressly allowed nor disallowed. While the Court encourages litigants to participate in alternative dispute resolution, including mediation, it does not view these costs as recoverable as a general rule, absent some special circumstance. Here, Wendell has presented no argument or evidence regarding any special circumstance. Further, Plaintiffs contend that the parties have already split the cost of mediation equally. (Tom Decl. ¶ 5.)

Conclusion

Therefore, Plaintiffs’ motion to tax costs is granted in part and denied in part. The Court taxes the requested $3,395 in mediation fees from Wendell’s Memorandum of Costs. Plaintiffs’ motion is otherwise denied.

Further, Plaintiffs shall lodge a proposed Order in conformity with the Court’s ruling on or before March 14, 2025. Further, Plaintiffs shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED: March 6, 2025 ___________________________

Michael E. Whitaker

Judge of the Superior Court

Case Number: 23SMCV00646 Hearing Date: March 6, 2025 Dept: 207

TENTATIVE RULING

DEPARTMENT	207
HEARING DATE	March 6, 2024
CASE NUMBER	23SMCV00646
MOTION	Motion for Summary Judgment
MOVING PARTIES	Defendants Essex Marina City Club, LP and Marina City Club Condominium Owners Association, Inc.
OPPOSING PARTY	Plaintiff Clint Jones

MOVING PAPERS:

Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
Separate Statement of Undisputed Material Facts
Request for Judicial Notice
Separately Bound Exhibits
Declaration of Jason A. Kirkpatrick
Declaration of Dawn Hickmon

OPPOSITION PAPERS:

Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
Separate Statement of Undisputed Material Facts and Disputed Facts in Opposition
Declaration of Chantelle Ameli, Esq.

REPLY PAPERS:

Reply in support of Motion for Summary Judgment
Objections to Evidence

MOTION

This case arises from allegations that Plaintiff was injured when his bicycle got caught on a black chain going across the driveway of Defendants’ premises.

On February 14, 2023, Plaintiff Clint Jones (“Plaintiff”) brought suit against Defendants Essex Marina Cita Club, LP and Marina City Club Condominium Owners Association, Inc. (“Defendants”) alleging one cause of action for premises liability.

Defendants now move for summary judgment. Plaintiff opposes the motion and Defendants reply.

REQUEST FOR JUDICIAL NOTICE

Defendants request judicial notice of the following fact:

1. That pursuant to LA County Code of Ordinances §19.12.1340 – “Bicycles and Motorcycles” it is unlawful to operate a bicycle on the sidewalk in Marina Del Ray.

Judicial notice may be taken of “official acts of the legislative […] department of […] any state of the United States” and of “facts and propositions that ate not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (Evid. Code § 452, subds. (c) & (h).)

Plaintiff does not oppose the request for judicial notice. As such, Defendants’ request is granted.

EVIDENTIARY OBJECTIONS

The Court rules as follows with respect to Defendants’ evidentiary objections:

1. Sustained

2. Sustained

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

DISCUSSION

“The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citation omitted.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [emphasis added].)

Plaintiff alleges: “Plaintiff, who was a bicyclist on the sidewalk adjacent to the property, was forced to enter the driveway of the premises which belonged to the Defendants, and each of them, to avoid striking a group of pedestrians who suddenly crossed the sidewalk in front of him, when his bicycle got caught on the black chain going across the driveway causing him to fall from his bicycle and incur the severe injuries as hereinafter described.” (Complaint ¶ 11.)[1]

1. DEFENDANTS’ ARGUMENTS

Defendants argue that they owe no duty of care because (1) Plaintiff assumed the risk of riding his bicycle recreationally; and (2) the hazard was open and obvious.

a. Primary Assumption of the Risk

Defendants argue they did not owe Plaintiff a duty of care, because recreational bicycling is subject to the primary assumption of the risk doctrine (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211 (hereafter Moser).)

Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.

(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, citations omitted; see also Knight v. Jewett (1992) 3 Cal.4th 296, 315-316 [a defendant has “a duty to use due care not to increase the risks to a participant over and above those inherent in the” activity].)

[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.’ The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty ‘would work a basic alteration—or cause abandonment’ of the activity.

(Nalwa, supra, at p. 1156, citations omitted.) To summarize, “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk . . . bar[s] recovery because no duty of care is owed as to such risks.” (West v. Sundown Little League of Stockton (2002) 96 Cal.App.4th 351, 357, internal quotations & citations omitted.)

Implied assumption of the risk “is founded not on an express agreement but on the nature of the activity and the relationship of the parties to that activity.” (Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228.)

Further, there is no duty where “no relationship exists between the plaintiff and the defendant, and there is no policy reason for imposing a duty[.]” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 483 (hereafter Parsons).) In Parsons, the appellate court found no duty where a horseback rider was thrown from his horse after it “became frightened” by the sound of a nearby garbage truck.

Similarly, in Calhoon v. Lewis (2000) 81 Cal.App.4th 108, property owners owed no duty to a skateboarder who was injured while doing tricks in his friend’s driveway in the absence of any facts that they “held out their driveway as an appropriate place to skateboard or in any other way represented that the driveway was a safe place for skateboarding.” (Id. at p. 117.) The court reasoned that while it would be reasonable to require a skateboarding park owner to take reasonable steps to minimize the risk of skateboarding injuries, it is not reasonable to require the same steps of residential property owners. (Ibid.)

Similarly, in Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201, the court found no duty where a skateboarder was fatally injured when the wheels of his skateboard got stuck in a gap between a paved private road and the cement collar surrounding a manhole cover because there was no relationship between the road owners, water districts, and the skateboarder.

In support, Defendants have provided the following evidence:

· The incident occurred on Saturday, August 13, 2022 around 8 to 8:30 p.m. (UMF No. 8.)

· Plaintiff had ridden his bike along the beach and was returning home after sunset. (UMF No. 9.)

· Plaintiff was riding his bike for recreation. (UMF No. 10.)

· Plaintiff was not wearing a helmet at the time of the incident. (UMF No. 13.)

· Just before the accident occurred, Plaintiff was on the sidewalk and opposing traffic was coming toward him. (UMF No. 14.)

· Plaintiff had just brought his bike across the sidewalk, and as he was riding his bike at approximately 3 to 5 miles per hour, he “looked ahead and saw a family on the sidewalk” about 30 yards ahead of him and “noticed a driveway coming up” on his left. To avoid the family, he turned and rode his bike into the driveway. (UMF Nos. 15-16.)

With respect to the type of recreational bicycle riding covered by the primary assumption of the risk doctrine, Moser explains that while an organized 200-mile noncompetitive bicycle ride on public highways in which 600 bicycle riders participated constitutes a “sport” that carries the inherent risk that riders will collide, normal bicycle transportation “is not an activity covered by the assumption of the risk doctrine[.]” (Moser, supra, 105 Cal.App.4th at p. 1221, emphasis added.)

Here, Plaintiff’s testimony that he was riding home from the beach infers that at the time of the incident, Plaintiff was riding his bicycle as an ordinary means of transportation, not as a recreational sport as contemplated by Moser.

In reply, Defendants emphasize that Plaintiff admitted at his deposition that his ride was recreational. But whether the recreational bike ride constitutes a “sport” such that the doctrine of primary assumption of the risk applies, or ordinary transportation, such that it does not, is a legal question for the Court to determine, not a factual one that Plaintiff can concede at deposition.

As such, Defendants have not met their initial burdens of production and persuasion that they owed no duty of care to Plaintiff under the primary assumption of the risk doctrine.

b. Open and Obvious

A property owner “is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care.” (Blodgett v. B.H. Dyas Co. (1935) 4 Cal.2d 511, 512.) While a property owner owes a duty to warn about “latent or concealed perils” they are “not required to warn of obvious dangers” that “any invitee will perceive […] in the ordinary use of his senses.” (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.)

Defendants argue (1) Plaintiff was not an ordinary invitee because he was unlawfully riding his bicycle on the city sidewalk at the time of the incident; and (2) the chain was an open and obvious condition.

In support, in addition to the above evidence, Defendants have advanced the following evidence:

· It is unlawful to operate a bicycle on the sidewalk in Marina Del Rey. (UMF No. 23; RJN No. 1.)

· To prevent unauthorized vehicles from using and/or parking in Defendants’ driveway, a simple black chain link was installed at both entrances of the driveway. The chains have a lock so the chain can be removed to allow vehicles to enter and exit the driveway. (UMF No. 6.)

· Although the chain is black, the posts the chain attaches to are yellow and there is a red reflective pipe/cover which slides across the chain to warn of the presence of the chain. (UMF No. 7.)

· Plaintiff’s bicycle had a light on the handlebars facing forward, and a red light on the back seat post. (UMF No 12.)

· Defendants have not been made aware of anyone injuring themselves on a bicycle by hitting the chain prior to this incident. (UMF No. 29.)

Thus, Defendants have met their initial burdens of production and persuasion that the chain was an open and obvious condition that should have been visible to Plaintiff at the time of the incident.

2. PLAINTIFF’S ARGUMENTS

Plaintiff argues that (1) the motion is untimely because the hearing is scheduled only 18 days before trial; (2) Defendants owe a general duty of care to all persons who enter their property, which they breached by allowing a dangerous condition to exist.

a. Timeliness of Motion

A motion for summary judgment “shall be heard no later than 30 days before the date of trial, unless the court orders otherwise.” (Code Civ. Proc., § 437c, subd. (a)(3).) The Court has discretion whether to consider late-filed papers. (See Cal. Rules of Court, rule 3.1300(d).)

Here, although Defendants’ motion is untimely, the Court does not find Plaintiff has been prejudiced by the filing, as Plaintiff still had notice and an opportunity to respond, and because dispositive motions can narrow the scope of issues for trial, which promotes judicial economy, the Court exercises its discretion and considers the merits of the motion, notwithstanding that it has been heard close to trial.

b. Open and Obvious

Plaintiff argues that the dangerous condition on the property was hidden, and it was foreseeable that others would be injured by it. As for the distinction between a trespasser and an invitee,

The possessor's duty of ordinary care extends to invitees and trespassers alike, although the foreseeability of injury, and hence the degree of care required of a possessor, continues to be influenced by the likelihood that persons will be present on the property at a particular time and place, a likelihood normally considerably greater for invitees than for trespassers.

(Silva v. Union Pacific R.R. Co. (2000) 85 Cal.App.4th 1024, 1028.)

In support, Plaintiff has submitted the following evidence:

· The dangerous condition was a small black chain strewn across the black asphalt driveway, tied to two posts located in the landscaping next to each side of the driveway. The chain was inches from the ground. (UMF No. 33.)

· Even with a light on his bicycle, Plaintiff could not see the black chain in the dark. (UMF No. 30; Defendants’ Exhibit 6 [Plaintiff’s Depo] at pp. 23:19-21; 24:3-6.)

· Plaintiff could not see the yellow pole in the plants next to the driveway or the red plastic sleeve on the black chain which was pushed against the pole. (UMF No. 32.)

· LAFD water pipes further covered the visibility of the post on the left side. (UMF No. 34.)

Thus, Plaintiff has met his burden of production to create a triable issue of material fact as to whether the dangerous condition on the property was open and obvious. If it is not conspicuously visible, then it is reasonably foreseeable that it would be hazardous to anyone who attempts to enter Defendants’ driveway.

CONCLUSION AND ORDER

Therefore, finding Plaintiff has met its burden to create a triable issues of material fact as to whether the chain was conspicuous, and as such, whether it was foreseeable that it would be hazardous to anyone who attempts to enter Defendants’ driveway, the Court denies Defendants’ motion for summary judgment.

Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED: March 6, 2025 ___________________________

Michael E. Whitaker

Judge of the Superior Court

[1] “The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding. As our Supreme Court has explained it: The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment. Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [cleaned up]; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond”].)

Case Number: 23SMCV02791 Hearing Date: March 6, 2025 Dept: 207

TENTATIVE RULING

DEPARTMENT	207
HEARING DATE	March 6, 2025
CASE NUMBER	23SMCV02791
MOTION	Motion for Terminating or Evidentiary and Monetary Sanctions
MOVING PARTY	Defendant City National Bank, N.A.
OPPOSING PARTY	Plaintiff Kimberly Tucker

BACKGROUND

This case arises from allegations that Defendants City National Bank N.A. (“CNB”); Bob Martinez (“Martinez”) and Jennifer Rueda (“Rueda”) (together, “Defendants”) discriminated against Plaintiff Kimberly Tucker (“Plaintiff”) when Plaintiff attempted to open a bank account.

On December 18, 2024, the Court granted CNB’s motion to compel Plaintiff’s deposition and ordered Plaintiff to sit for deposition within 30 days of notice of the Court’s order, unless CNB stipulates otherwise. (Minute Order, Dec. 18, 2024.)

CNB now moves for terminating sanctions and monetary sanctions against both Plaintiff and her counsel, Girma H. Gebriel (“Gebriel”), in the amount of $18,072.50 to compensate CNB for costs incurred in connection with Plaintiff’s last minute failure to sit for her Court-ordered deposition on January 23, 2025. In the alternative, CNB seeks evidentiary and monetary sanctions.

Plaintiff opposes the motion and CNB replies.

LEGAL STANDARD

When a party misuses the discovery process by disobeying a court order to provide discovery, the court in its discretion may impose monetary sanctions to pay the reasonable expenses and attorneys’ fees incurred as a result of the conduct, issue sanctions by prohibiting a party from supporting or opposing designated claims or defenses, and/or terminating sanctions by striking a party’s pleading or dismissing the action of the party. (Code Civ. Proc., §§ 2023.010, subd. (g), 2023.030, subds. (d)(1) & (d)(3); 2025.450, subd. (h), 2030.290, subd. (c), 2031.300, subd. (c).)

California discovery law authorizes a range of penalties for a party's refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions. A court has broad discretion in selecting the appropriate penalty, . . . . Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party's fundamental right to a trial, thus implicating due process rights. The trial court should select a sanction that is tailored to the harm caused by the withheld discovery. Sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.

(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [cleaned up].)

When a party fails to respond to the opposing party's interrogatories, the court should begin by imposing monetary sanctions and ordering the party to respond. If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. In general, a court may not impose issue, evidence, or terminating sanctions unless a party disobeys a court order.

(Moofly Productions, LLC v. Favila (2020) 46 CalApp.5th 1, 11 [cleaned up] [citing Code Civ. Proc., § 2030.290, subd. (c)].) However, “a terminating sanction issued solely because of a failure to pay a monetary discovery sanction is never justified.” (Newland v. Superior Court (1995) 40 Cal.App.4th 608, 615.)

ANALYSIS

The background of CNB’s difficulties getting Plaintiff to sit for deposition was summarized in the Court’s December 18, 2024 Minute Order granting CNB’s motion to compel Plaintiff’s Deposition:

Here, on April 1, 2024, CNB noticed Plaintiff’s in-person deposition for June 4, 2024. (Jewett Decl. ¶ 4.) On April 15, Plaintiff’s counsel responded that he would not allow Plaintiff’s deposition to go forward on June 4 on the grounds that the depositions of CNB employee Chad Gordon (“Gordon”) and Defendant Rueda, which were previously noticed on February 14, 2024, must go forward first. (Jewett Decl. ¶ 5 and Ex. 2.)

CNB’s counsel made multiple attempts to reschedule Plaintiff’s in-person deposition to a mutually convenient date, but Plaintiff’s counsel refused to provide any available dates. (Jewett Decl. ¶ 6 and Ex. 3.)

CNB scheduled Rueda’s and Gordon’s depositions for August 27, 2024 and September 6, 2024, respectively. (Jewett Decl. ¶ 7.) On August 7, 2024, Plaintiff’s counsel offered to schedule Plaintiff for deposition on September 27. (Jewett Decl. ¶ 8.)

Due to technical issues logging onto the deposition platform, the Rueda deposition did not go forward as scheduled. (See Gebriel Decl.; Jewett Decl. ¶ 9.)

The Gordon deposition went forward as planned on September 6, 2024. (Jewett Decl. ¶ 11.)

On September 20, 2024, CNB requested confirmation that Plaintiff would appear at the September 27 deposition. (Jewett Decl. ¶ 12 and Ex. 6.) In response, Plaintiff’s counsel responded that it would only go forward if Rueda sat for deposition prior to September 27. (Ibid.)

The parties attended in Informal Discovery Conference (“IDC”) on September 24, 2024. The Court advised that there is no such thing as a right to priority with respect to the order in which depositions are taken.

On September 27, 2024, Plaintiff’s counsel objected to the taking of Plaintiff’s deposition in person, on the grounds that attending depositions in person is too strenuous on Plaintiff’s counsel’s heart, following three heart surgeries, and proposed taking the remote depositions of Rueda on the 23^rd or 28^th and then Plaintiff’s on the 28^th or 31^st. (Jewett Decl. ¶ 16 and Ex. 9.)

CNB responded that Plaintiff’s counsel was welcome to attend remotely, but CNB intended to take Plaintiff’s deposition in person. (Jewett Decl. ¶ 17 and Ex. 10.)

On October 7, 2024, Plaintiff’s counsel informed CNB’s counsel, “nothing short of a court order will prompt me to allow Plaintiff to be deposed prior to the termination of [Rueda’s] deposition” and “nothing short of a court order will cause me to agree to allow Plaintiff to be deposed in person rather than by Zoom.”

(Minute Order, Dec. 18, 2024.)

As such, on December 18, 2024, the Court granted CNB’s motion to compel Plaintiff’s deposition and ordered Plaintiff to sit for deposition within 30 days of notice of the Court’s order, unless CNB stipulates otherwise. (Minute Order, Dec. 18, 2024.)

On December 30, 2024, Plaintiff’s counsel confirmed Plaintiff’s availability for an in-person deposition on January 23, 2025. (Jewett Decl. ¶ 8 and Ex. 3.)

On January 3, 2025, CNB noticed Plaintiff’s in-person deposition for January 23, 2025, as agreed. (Jewett Decl. ¶ 9.) Plaintiff did not timely object to the Notice. (Ibid.)

CNB’s counsel committed to the payment of $1,577.50 in non-refundable fees for a court reporter and videographer to attend the deposition. (Jewett Decl. p 10 and Ex. 4.)

On January 20, 2025, Plaintiff’s counsel requested arrangements to attend the deposition remotely. (Jewett Decl. ¶ 11 and Ex. 5.) On January 21, 2025, Plaintiff’s counsel informed CNB’s counsel that Plaintiff would be represented by Learned Espinosa at the deposition. (Jewett Decl. ¶ 12 and Ex. 6.)

Fifty-three minutes prior to the scheduled deposition on January 23, 2025, Plaintiff’s counsel served untimely objections. (Jewett Decl. ¶ 13.) Forty-five minutes prior to the deposition, Plaintiff herself called CNB’s counsel to inform them she had been sick for weeks, which her counsel, Gebriel, was aware of, and she would not be attending the deposition. (Jewett Decl. ¶ 14.) At no point did Gebriel inform CNB’s counsel that Plaintiff was ill and was unable to attend the deposition. (Ibid.)

Plaintiff did not appear at the deposition. (Jewett Decl. ¶ 15 and Ex. 7.) Plaintiff’s nonappearance cost CNB’s counsel $9,827.50 in fees and expenses. (Jewett Decl. ¶ 16.) Specifically, CNB’s counsel spent 12 hours preparing for the deposition at the hourly rate of $550, costing $6,600. (Jewett Decl. ¶ 12.) CNB’s in-house counsel spent three hours preparing for and attending the deposition. (Jewett Decl. ¶ 26.) Although CNB’s in-house counsel does not bill on an hourly basis, the cost of this preparation is estimated at $1,650. (Ibid.)

In addition, CNB’s counsel seeks fees incurred in drafting the instant motion, at an hourly rate of $465, and time to appear for and attend the hearing, at the hourly rate of $550. (Jewett Decl. ¶¶ 28-30.)

Plaintiff opposes the motion on the grounds that it was unforeseen that Plaintiff’s illness would worsen the morning of January 23 to the point that Plaintiff could not attend the deposition. After the reply was filed, Plaintiff’s counsel filed a “Supplemental, More Complete Record of Plaintiff’s Emergency Hospital Visit on January 23, 2025” attached to which is an urgent care clinical summary showing diagnoses for (1) acute sinusitis, unspecified; (2) acute cough; (3) essential (primary) hypertension; and (4) hyperlipidemia, unspecified for which Plaintiff was prescribed a cough medication and an antibiotic and given general recommendations to avoid foods with high salt content and exercise for 30 minutes per day.

In other words, Plaintiff cancelled her deposition at the last minute over an apparent ongoing cough and sinus infection. The record does not reflect that this was an emergency warranting a last minute cancellation of the deposition, in violation of the Court’s order. Moreover, this conduct follows on the heels of a long and varied history of Plaintiff’s and counsel’s game playing and refusal to cooperate with their discovery obligations for nearly a year.

As such, the Court finds monetary sanctions warranted. CNB’s counsel has substantiated the $1,577.50 in costs incurred in connection with the January 23, 2025 deposition that did not go forward. Further, the Court awards CNB’s counsel $2,030 in connection with bringing the instant motion, representing 4 hours of attorney time to prepare the motion and attend the hearing at a blended hourly rate of $507.50.[1]

With respect to evidentiary and/or terminating sanctions, the Court finds these sanctions premature. But Plaintiff’s continued failure to comply with the Court’s December 18 discovery order may warrant additional sanctions in the future.

The Court similarly finds the fees CNB’s counsel incurred preparing for the deposition are also premature, as that preparation will not have been futile, should Plaintiff’s deposition go forward.

CONCLUSION AND ORDER

Having found that Plaintiff failed to comply with the Court’s December 18, 2024 Order to sit for deposition without substantial justification, the Court grants in part CNB’s motion for monetary sanctions and orders Plaintiff and Plaintiff’s counsel, Grima H. Gebriel, jointly and severally, to pay monetary sanctions in the amount of $3,607.50 to CNB, by and through counsel for CNB, within 30 days of notice of this Order.

CNB shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED: March 6, 2025 ________________________________

Michael E. Whitaker

Judge of the Superior Court

[1] Attorney Ovsepian’s hourly rate is $465 and Attorney Jewett’s hourly rate is $550. (Jewett Decl. ¶¶ 24, 28.)

Case Number: 23SMCV04211 Hearing Date: March 6, 2025 Dept: 207

TENTATIVE RULING

DEPARTMENT	207
HEARING DATE	March 6, 2025
CASE NUMBER	24SMCV04211
MOTION	Motion to Compel Arbitration
MOVING PARTIES	Defendants Equinox Holdings, Inc.; Equinox Fitness Beverly Hills, Inc.; Equinox Fitness Santa Monica, Inc.
OPPOSING PARTIES	Plaintiffs Francesca Borchardt; Gabriela Borchardt; and Veronica Borchardt

MOTION

This case arises from allegations that Defendants Equinox Holdings, Inc.; Equinox Fitness Beverly Hills, Inc.; and Equinox Fitness Santa Monica, Inc. (“Defendants”) discriminated against Plaintiffs Francesca Borchardt (“Francesca”); Gabriela Borchardt (“Gabriela”); and Veronica Borchardt (“Veronica”) (together, “Plaintiffs”) because of their disabilities.

On August 30, 2024, Plaintiffs originally filed suit. On October 9, 2024, Plaintiffs filed a First Amended Complaint (“FAC”). The operative FAC alleges six causes of action for (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) violation of the Unruh Civil Rights Act; (4) violation of Cal. Civ. Code, § 51.5; (5) violation of the California Disabled Persons Act; and (6) violation of the Tom Bane Civil Rights Act.

Default was entered against Defendants on November 18, 2024, but the Court set aside the defaults on January 13, 2025.

Defendants now move to compel Plaintiffs to arbitration. Plaintiffs oppose the motion and Defendants reply.

ANALYSIS

1. MOTION TO COMPEL ARBITRATION – LEGAL STANDARDS

“[T]he advantages of arbitration include a presumptively less costly, more expeditious manner of resolving disputes. It follows a party to a valid arbitration agreement has a contractual right to have its dispute with another party to the contract resolved quickly and inexpensively.” (Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d 94, 99–100 [cleaned up].) Thus, “on petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists.” (Code Civ. Proc., § 1281.2; see also

EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1320 [the language in section 1281.2 compelling arbitration is mandatory].) The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2, subds. (a)-(c).)

“On a petition to compel arbitration, the trial court must first determine whether an agreement to arbitrate the controversy exists. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the respondent's signature.” (Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 543-544 [cleaned up].) The party seeking to compel arbitration must also “plead and prove a prior demand for arbitration and a refusal to arbitrate under the agreement.” (Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 640-641.)

And while the moving party on a motion to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, [a] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842 [cleaned up]; see also Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [“The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability”].)

2. ENFORCEABLE ARBITRATION AGREEMENTS

Defendants advance the Declaration of Lawrence Rosen, Chief Legal Officer of Equinox Holdings, Inc., attached to which are copies of Membership Agreements Plaintiffs signed when signing up for gym memberships. (Rosen Decl. ¶¶ 1, 4.) Specifically, Francesca and Gabriela signed membership agreements in 2019, Veronica signed a membership agreement in 2021, and Francesca signed another membership agreement in 2023. (Rosen Decl. ¶ 4; Exs. A, B, C, & D.)

The following language is at the very beginning of each Membership Agreement:

IMPORTANT TERMS

· Please read this Agreement carefully, as it contains important information regarding your legal rights, including without limitation your RELEASE OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY (as detailed in Section 4 of this Agreement) and your agreement to MANDATORY ARBITRATION AND WAIVER OF CLASS RELIEF (as detailed in Section 7 of this Agreement).

Each Membership Agreement also contains the following arbitration provision:

7.2 Arbitration: You agree to submit any and all Disputes (as defined in Section 7.4) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which will govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”). Arbitration will be before either (1) JAMS (formerly known as Judicial Arbitration and Mediation Services), http://www.jamsadr.com, or (2) the American Arbitration Association (“AAA”), http://www.adr.org. If you initiate arbitration, you may choose between these two arbitration forums; if Equinox initiates arbitration, it will have the choice as between these two arbitration forums.

YOU AND EQUINOX AGREE THAT, EXCEPT AS PROVIDED IN SECTION 7.4, ANY AND ALL DISPUTES WHICH ARISE AFTER YOU ENTER INTO THIS AGREEMENT WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.

[…]

7.4 Definition of “Dispute”: Subject to the following exclusions, “Dispute” means any dispute, claim, or controversy between you and Equinox regarding any aspect of your relationship with Equinox, whether based in contract, statute, regulation, ordinance, tort (including without limitation fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, and includes without limitation the validity, enforceability or scope of the Agreement (except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver). However, “Dispute” will not include (1) personal injury claims for lost, stolen, or damaged property; (2) claims that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable; and (3) any claim for public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting alleged unlawful acts that threaten future injury to the general public. Such claims may be determined only by a court of competent jurisdiction and not by an arbitrator.

(Ibid.) Thus, Defendants have demonstrated that signed arbitration agreements exist for all three Plaintiffs that cover the instant dispute.

In opposition, Plaintiffs argue there was no mutual assent to arbitrate. In support, they have produced the Declarations of Gabriela and Francesca, which each indicate as follows:

4. The representative specified that such Membership Agreements would commit us to monthly membership payments for the initial period of 12 months, in exchange for Equinox providing them services and unlimited access to their facilities. Additionally, the representative stated that the Membership Agreements contained specific details about what Defendants agreed to provide Plaintiffs, and it also incorporated Equinox policies. The topic of arbitration was never discussed.

5. Defendants then showed us their computer screen and quickly scrolled through the Membership Agreements, and then told us to provide our signatures on an electric signature pad in agreement. We had no opportunity to read, discuss, negotiate, or modify the contract terms.

6. After we signed, the representative stated that they would email us signed copies of our Membership Agreements, however, they never did. I was never provided with a copy of my signed Membership Agreement and its contractual terms.

(Gabriela Decl. ¶¶ 4-6; Francesca Decl. ¶¶ 4-6.) Further, Plaintiffs contend the arbitration agreements Defendants have attached to the Motion to Compel Arbitration are forgeries:

8. First and foremost, I am certain that I did not sign the Exhibit A agreement or the Exhibit D agreement. My true personal signature is drastically different then the signatures on the agreements. Defendants and their counsel are perjuring themselves when they assert otherwise; they have absolutely no evidence to support their claims.

[…]

12. Another fact that proves the forgery and fabrication, is that I never signed anything pertaining to Defendants in 2023. In 2023, the events alleged in the complaint had already taken place. Considering the nature of the allegations, the last thing I would have done was willingly enter into another contract with Defendants.

(Francesca Decl. ¶¶ 8, 12.) Plaintiffs point out that the following inconsistencies:

· The effective date listed on Exhibit A is 05/30/2019, whereas the effective date listed on Exhibit D is 05/31/2019.

· Exhibit A lists the monthly dues as $300, whereas Exhibit D lists the monthly membership dues as $330.

· The “Initial Period End Date” listed on Exhibit D is 05/31/2020—3 years before the date it was purportedly signed.

· The MasterCard number is the same on both Exhibit A and B, but the Name on Account is “Francesca Borchardt” for Exhibit A and “Gabriela Borchardt” for Exhibit B.

In reply, Defendants reiterate that Exhibits A, B, C, and D are true and correct copies of Membership Agreements obtained from Defendants’ corporate record, and advance the Declaration of Mike Vilanova (“Vilanova”). Vilanova explains the purported inconsistencies as follows:

a. Exhibit A contains an "effective date" of May 30, 2019 because that is the date she initially signed up as a member. The "start date" in Exhibit A was May 31, 2019 because Francesca began to use her membership the following day after she signed up. Equinox required Francesca to sign a subsequent Membership Agreement (Exhibit D) on November 5, 2023 because she changed her payment method to a different credit card. By that time, Francesca had already completed her initial twelve-month membership obligation ("Initial Period End Date: 05/31/2020"). Therefore, to avoid imposing a further "twelve (12) month obligation period" upon Francesca for only changing her payment method, Equinox manually entered the "effective" and "start" dates of her 2019 enrollment. In other words, the dates were kept the same between the 2019 (Exhibit A) and the 2023 (Exhibit D) Membership Agreements, so Francesca's 12-month obligation would not reset and require her to maintain her membership until November 5, 2024. I believe the difference between the effective dates of 05/30/2019 (Exhibit A) and 05/31/2019 (Exhibit D), which Francesca highlights, is just a scrivener's error.

b. The $300 membership due in Exhibit A was the monthly rate at the time Francesca initially signed up, on May 30, 2019. Membership dues are gradually increased over time. Exhibit B reflects a $330 membership due because that was the then-current monthly rate for Francesca's account, after the increases during her preceding four and a half years of membership.

(Vilanova Decl. ¶ 6.)

Taken together, the Court finds Defendants’ explanations as to Plaintiffs’ purported inconsistencies to be credible. As such, based on the evidence presented, the Court finds that Plaintiffs signed the agreements with the arbitration provisions as attached as Exhibits A, B, C, and D.

Moreover, Plaintiffs knew that by signing the electronic pad, they were agreeing to the terms of an agreement with Defendants, and those agreements contained bold, underlined, capitalized language at the very beginning indicating that Plaintiffs are agreeing to binding arbitration in section 7. As such, the evidence demonstrates that Plaintiffs were adequately on notice of the arbitration provisions to which they agreed.

Plaintiffs also argue that Defendants failed to plead and prove a prior demand for arbitration and a refusal to arbitrate under the agreements. (Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 641-642.)

In Reply, Defendants have provided the Declaration of Lee A. Sherman, which provides as follows:

3. On September 13, 2024, I had multiple email exchanges with Plaintiffs to coordinate a telephone call to discuss the case. We agreed to speak at 4:00 p.m. Consequently, on September 13, 2024 at about 4:00 p.m., I called Plaintiffs at the telephone number they provided ((310) 729- 6997) and spoke with them about their lawsuit. During that call, I specifically requested Plaintiffs stipulate to submit their claims to binding arbitration in accordance with the binding arbitration agreements within their Equinox Membership Agreements. Francesca indicated that Plaintiffs had read the arbitration provisions and opined that "They only pertain to contract claims." I then informed Plaintiffs that the arbitration agreement did apply to their claims, which included contract claims. Plaintiffs then proceeded to shout at me, stating that they "refused" to stipulate to arbitration.

4. Attached hereto as Exhibit E is a true and correct copy of an email chain between me and Plaintiffs on October 7, 2024. Notably, Francesca's email confirms that our telephone conversation took place on September 13, 2024. I indicated that “…our motion to compel binding arbitration will be timely filed” because I had previously requested arbitration during our earlier telephone conversation and Plaintiffs had refused.”

(Sherman Decl. ¶¶ 3-4.) Therefore, based on the evidence presented, the Court finds Plaintiffs’ contention to be unfounded.

However, the Court does not generally consider evidence submitted in connection with a reply, as it deprives the other party of a fair opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

Notwithstanding, it is not an abuse of discretion to consider evidence offered on reply so long as the opposing party has notice and an opportunity to respond to the new material. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) As such, the Court continues the hearing to permit Plaintiffs to file a Sur-Reply, responding to the evidence offered in connection with the Reply.

a. UNCONSCIONABILITY

“Unconscionability is ultimately a question of law for the court.” (Flores v. Transamerica Homefirst, Inc. (2001) 93 Cal.App.4th 846, 851.) “However, numerous factual issues may bear on that question.” (Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 89.) As such, Respondent must show two elements to establish the unconscionability defense: (1) procedural unconscionability, which focuses on the manner in which the contract was negotiated, and (2) substantive unconscionability, which concerns whether the contract’s terms are unreasonably one-sided. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113-115 (hereafter, Armendariz).)

“The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz, supra, 24 Cal.4th at p. 114 [cleaned up].)

i. PROCEDURAL UNCONSCIONABILITY

Procedural unconscionability examines the “oppression that arises from unequal bargaining power and the surprise to the weaker party that results from hidden terms or the lack of informed choice.” (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Preprinted forms buried within a volume of documents offered on a “take or leave it basis” evidence a high degree of procedural unconscionability. (See Dougherty v. Roseville Heritage Partners (2020) 47 Cal.App.5th 93, 102-104 (hereafter, Dougherty).) Most consumer contracts are adhesive and therefore present some procedural unconscionability. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915, (hereafter, Sanchez).) “[A] finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided.” (Ibid.)

Plaintiffs argue the agreements were presented to them on a “take-it-or-leave-it” basis. “The term [contract of adhesion] signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 243.) “[U]nconscionability has both a ‘procedural’ and a ‘substantive’ element, the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.” (Ibid.)

“The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (Tiri v. Lucky Chances, Inc., supra, 226 Cal.App.4th. at pp. 243-244.)

Here, the agreements were presented to Plaintiffs on a take-it-or-leave-it basis, and thus, the agreements constitute contracts of adhesion. However, the level of oppression in a contract for a gym membership is not as great as an employment contract, for example. (Tiri v. Lucky Chances, Inc., supra, 226 Cal.App.4th. at p. 245.)

Thus, although the agreement is adhesive, Plaintiff has only established a minimal degree of procedural unconscionability. (See Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, 37–38.)

ii. SUBSTANTIVE UNCONSCIONABILITY

Substantive unconscionability refers to agreement terms which are overly harsh, unduly oppressive, unreasonably unfavorable, or so one-sided as to shock the conscience – which, for practical purposes, all mean the same thing. (Sanchez, supra, 61 Cal.4th at p. 915.) With regard to demonstrating substantive unconscionability, an “old-fashioned bad bargain” or a contract term which “merely gives one side a greater benefit” is insufficient. (Id. at pp. 911-912.) The test for substantive unconscionability is whether the terms impair the integrity of the bargaining process or otherwise contravene public policy, or the terms “attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law” or “negate the reasonable expectations of the nondrafting party.” (Sonic-Calabassas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145; see also Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 247 [“outside the reasonable expectation of the nondrafting party or is unduly oppressive”]; Dougherty, supra, 47 Cal.App.5th at pp. 104-107 [arbitration agreement that curtailed plaintiffs’ ability to recover statutory remedies, such as punitive damages and attorney fees, and contained limitations on discovery that risked frustrating plaintiffs’ statutory elder abuse claims was substantively unconscionable].)

Here, although Plaintiffs argue generally that the arbitration agreements are unconscionable, they do not present any argument as to substantive unconscionability, instead indicating, “Plaintiffs are not going to expand further on this argument[.]”

As such, Plaintiffs have not provided the Court with any evidence or argument that the agreements are substantively unconscionable. Without establishing substantive unconscionability, Plaintiffs’ unconscionability argument fails.

CONCLUSION

Therefore, the Court finds no substantive unconscionability.

Regarding whether an agreement to arbitrate exists, based on the evidence offered in connection with the Reply, the Court is inclined to find Plaintiffs entered binding, enforceable agreements to arbitrate that cover the present disputes.

However, in the interest of protecting Plaintiffs’ due process rights, the Court continues the hearing to May 5, 2025 at 8:30 a.m. in Department 207 to give Plaintiffs an opportunity to submit an optional sur-reply, not exceeding five (5) pages, on or before April 21, 2025, responding to the new evidence Defendants submitted in connection with the Reply brief only. The Court will not consider any additional arguments regarding unconscionability or any other issues beyond addressing the additional evidence Defendants submitted with the Reply.

Further, on the Court’s own motion, the Court will continue the Case Management Conference from March 6, 2025 to May 5, 2025 at 8:30 A.M. in Department 207.

Defendant shall provide notice of the Court’s orders and file the notice with a proof of service forthwith.

DATED: March 6, 2024 ___________________________

Michael E. Whitaker

Judge of the Superior Court

Case Number: 24SMCV00044 Hearing Date: March 6, 2025 Dept: 207

TENTATIVE RULING

DEPARTMENT	207
HEARING DATE	March 6, 2025
CASE NUMBER	24SMCV00044
MOTIONS	1. Motions to Compel Responses to Form Interrogatories and Requests for Production 2. Motion to Deem Admitted Requests for Admission
MOVING PARTIES	Plaintiffs Andrew Witt and Greta Witt
OPPOSING PARTY	Defendant Sunshine Realty Group, Inc.

MOTIONS

Plaintiffs Andrew Witt and Greta Witt (“Plaintiffs”) move to compel responses from Defendant Sunshine Realty Group, Inc. (“Defendant”) to Form Interrogatories, set one (“FROG”) and Request for Production, set one (“RPD”). Plaintiffs also move for an order deeming admitted the matters in the Requests for Admission, set one (“RFA”).

Defendant also seeks monetary sanctions in connection with the motions. Defendant opposes the motions and Plaintiffs reply.

LEGAL STANDARDS

1. Interrogatories

Pursuant to Code of Civil Procedure section 2030.290, “[i]f a party to whom interrogatories are directed fails to serve a timely response . . . [t]he party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or the protection for work product under Chapter 4 (commencing with Section 2018.010. . . . [and] The party propounding the interrogatories may move for an order compelling response to the interrogatories.” (Code Civ. Proc., § 2030.290, subds. (a)-(b).)

2. Requests for Admission

Pursuant to Code of Civil Procedure section 2033.280, subdivision (a), “[i]f a party to whom requests or admission are directed fails to serve a timely response . . . [t]he party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product[.]” (Code Civ. Proc., § 2033.280, subd. (a).) Where a party fails to respond to requests for admissions, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction. (Code Civ. Proc., § 2033.280, subd. (b).)

3. Requests for Production

Pursuant to Code of Civil Procedure, section 2031.300, subd. (a), “[i]f a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply: (a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010).” (Code Civ. Proc., § 2031.300, subd. (a).) Where a party fails to respond to demands for production, the propounding party may move for an order compelling response to the demand. (Code Civ. Proc., § 2031.300, subd. (b).) “Within 30 days after service of a demand for inspection, copying, testing, or sampling, the party to whom the demand is directed shall serve the original response to it on the party making the demand . . . .” (Code Civ. Proc., § 2031.260, subd. (a).)

ANALYSIS

1. Discovery Requests

Plaintiff electronically served Defendant with the RFP, FROG and RFA on March 28, 2024, making the responses due May 1, 2024. (Westlund Decl. ¶ 3 and Ex. 1.) No objections were made or extensions requested prior to that deadline. (Westlund Decl. ¶ 4.) As of the filing of the motions, Plaintiffs had not received responses from Defendant. (Ibid.)

Defendant opposes, explaining there was some confusion or miscommunication in the course of transferring the matter from the original handling attorney to current attorney, but that Defendant agrees to provide discovery responses.

Accordingly, the Court finds that Defendant has failed to timely serve responses to FROG, RPD, and RFA, and grants Plaintiff’s motions to compel FROG and RPD, and deems admitted the RFA.

2. Monetary Sanctions

Plaintiff also seeks monetary sanctions for each of the three motions (FROG, RPD, and RFA) for attorney time spent at the discounted hourly rate of $675. (Westlund Decl. ¶ 6.)

Defendant opposes the request for monetary sanctions, on the grounds that the failure to respond to discovery was not willful, but inadvertent.

Notwithstanding, the Court finds Defendant’s failure to timely respond to the discovery requests to constitute misuses of the discovery process, warranting monetary sanctions. (See Code Civ. Proc., §§ 2023.010, subd. (d); 2030.290, subd. (c); 2031.300, subd. (c); 2033.280, subd. (c).)

Accordingly, the Court will impose monetary sanctions against Defendant in the amount of $4050, which represents 6 hours of attorney time to prepare the moving and reply papers and attend the hearing, at $675 per hour.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motions to compel responses to the FROG and RPD per Code of Civil Procedure sections 2030.290 and 2031.300. As such, the Court orders Defendant to serve verified code-compliant responses to the FROG and RPD, without objections, within 30 days of notice of the Court’s orders.

Further, the Court grants Plaintiff’s motion to deem admitted matters specified in the RFA per Code of Civil Procedure section 2033.280, and deems admitted the matters specified in the RFA propounded to Plaintiff.

Further, the Court orders Defendant to pay monetary sanctions in the amount of $4050, to Plaintiff, by and through counsel for Plaintiff, within 30 days of notice of the Court’s orders.

Plaintiff shall provide notice of the Court’s order and file the notice with a proof of service forthwith.

DATED: March 6, 2025 ___________________________

Michael E. Whitaker

Judge of the Superior Court

Case Number: 24SMCV01965 Hearing Date: March 6, 2025 Dept: 207

TENTATIVE RULING

DEPARTMENT	207
HEARING DATE	March 6, 2025
CASE NUMBER	24SMCV01965
MOTION	Motion to be Relieved as Counsel
MOVING PARTY	Farshad “Fred” Ghodoosi of L&F Brown, P.C.
OPPOSING PARTY	(none)

MOTION

Farshad “Fred” Ghodoosi, of L&F Brown, P.C., counsel for Defendant Robert Maxwell (“Counsel”) moves to be relieved as counsel, citing a breakdown of the attorney-client relationship. The motion is unopposed.

LEGAL STANDARD

Code of Civil Procedure section 284 provides “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment or final determination as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered in the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

Procedural Requirements

California Rules of Court, rule 3.1362, requires:

(1) the motion must be made on form MC-051; (subd. (a));

(2) it must be accompanied by a declaration on form MC-052 stating why the motion is brought under Code of Civil Procedure section 284(2) instead of a consent brought under section 284(1); (subd. (c));

(3) a proposed order on form MC-053 must be lodged with the court, specifying all hearing dates scheduled in the action or proceeding, including the date of trial, if known; (subd. (e)); and

(4) The documents must be served on the client and on all parties that have appeared in the case. (subd. (d).)

If the notice is served by mail or electronic service, it must be accompanied by a declaration indicating that the address served is the current address, or in the case of service by mail, that it was served on the last known address and a more current address could not be located after reasonable efforts within 30 days before filing the motion. (Ibid.) The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court.” (Ibid.)

Substantive Requirements

Rules of Professional Conduct, rule 1.16(a) outlines the reasons a lawyer must withdraw from representation of a client:

(1) the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person;

(2) the representation will result in violation of the Rules of Professional Conduct or the State Bar Act;

(3) the lawyer’s mental or physical condition renders it unreasonably difficult to carry out the representation effectively; or

(4) the client discharges the lawyer.

Rules of Professional Conduct, rule 1.16(b) outlines the reasons a lawyer may withdraw from representation of a client:

(1) the client insists upon presenting a claim or defense in litigation, or asserting a position or making a demand in a non-litigation matter, that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(2) the client either seeks to pursue a criminal or fraudulent course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud;

(3) the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent;

(4) the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;

(5) the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;

(6) the client knowingly and freely assents to termination of the representation;

(7) the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;

(8) the lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;

(9) a continuation of the representation is likely to result in a violation of these rules or the State Bar Act; or

(10) the lawyer believes in good faith in a proceeding pending before a tribunal that the tribunal will find the existence of other good cause for withdrawal.

DISCUSSION

Counsel has filed forms MC-051, MC-052, and MC-053. The attorney declaration (MC-052) indicates that the motion was filed instead of filing a consent because, “There has been a breakdown of the working relationship between counsel and client.” (MC-052 at ¶ 2.) As such, the Court finds that the motion complies with the Rules of Professional Conduct, rule 1.16(b)(4).)

The proofs of service indicate each of the required forms were served electronically and by overnight mail on the client and on counsel for Plaintiff. The attorney declaration further indicates the client’s address has been confirmed current within the past 30 days by email with the client. (MC-052, ¶ 3.) Therefore, the motion is also procedurally proper.

CONCLUSION AND ORDER

Therefore, having found the Motion both procedurally and substantively proper, the Court Grants Counsel’s Motion to be Relieved as Counsel.

Counsel must serve the signed order (form MC-053), which shall include information about all future hearings and proceedings noticed by any party, or ordered by the Court, on the client and all other parties who have appeared in the action, within 10 days of the date of this Order, and file a proof of service of such. Counsel will remain the attorney of record for Defendant Robert Maxwell until Counsel files the requisite proof of service. (See Cal. Rules of Court, rule 3.1362(e).)

Further, to ensure that the Court’s records are updated following the filing of the proof of service, Counsel shall contact the Court to advise that the proof of service has been filed.

DATED: March 6, 2025 ___________________________

Michael E. Whitaker

Judge of the Superior Court

Case Number: 24SMCV05094 Hearing Date: March 6, 2025 Dept: 207

TENTATIVE RULING - NO. 1

DEPARTMENT	207
HEARING DATE	March 6, 2025
CASE NUMBER	24SMCV05094
MOTIONS	Motions to be Relieved as Counsel
MOVING PARTY	Daniel L. Krishel
OPPOSING PARTY	(none)

MOTION

Daniel L. Krishel (“Counsel”), counsel for Defendants Henry Levy aka Henri Levy and Joseph Levy (collectively, “Defendants”), moves to be relieved as counsel for Defendants, citing a breakdown of the attorney-client relationship. The motions are unopposed.