DEPARTMENT C LAW AND MOTION RULINGS
Case Number: 21STCV29691 Hearing Date: March 7, 2025 Dept: C
Hernandez v. Simplified Labor Staffing Solutions, Inc.
(21STCV29691) This personal injury action was filed on August 11, 2021. Defendants
Damco Distribution Services Inc. and Maersk Warehousing & Distribution
Services U.S.A. LLC’s Motions for Summary Judgment are set for hearing on March
11 and 12, respectively. Oppositions and replies have been filed. Plaintiff
Eduardo Hernandez now moves for leave to file a sur-reply to support in support
of his oppositions to the Motions for Summary Judgment. Plaintiff argues that
Defendants raised new arguments in the reply briefs, and Plaintiff is entitled
to an opportunity to respond. In opposition, Defendants argue that Plaintiff has not
demonstrated he will suffer irreparable harm if he is not granted leave to file
the sur-reply. Defendants argue Plaintiff will have an opportunity to present
those arguments at the hearings, i.e., before the Court rules on the
Motions. Plaintiff’s Ex Parte Application for Leave to File a
Sur-Reply to Support his Opposition to Defendants Damco Distribution Services
Inc. and Maersk Warehousing & Distribution Services U.S.A. LLC’s Motions
for Summary Judgment is DENIED. The Court finds Plaintiff can raise his
arguments at the hearing. Exigency has not been established. Moving party to
give notice. Case Number: 23NWVC00731 Hearing Date: March 7, 2025 Dept: C
Serrano, et
al. v. General Motors LLC (23NWCV00731) This lemon law action was filed on March 10, 2023. Trial is
set for February 19, 2026. Counsel for Plaintiffs Alicia Rivas Serrano and
Efren Herrera Lopez, Knight Law Group, LLP, has filed a Motion to be Relieved
as Counsel, which is currently set for hearing on January 7, 2026. Counsel now
moves to advance the Motion’s hearing date to an earlier date. Counsel argues
Plaintiff will be irreparably harmed if the Motion is not advanced because
counsel cannot adequately represent Plaintiffs during the remainder of their
case. Counsel for Plaintiff’s Ex Parte Application for an Order
Advancing Plaintiffs’ Motion to be Relieved as Counsel is GRANTED. The hearing
on the Motion is ADVANCED to today’s date and CONTINUED to June 3, 2025 at
10:30a.m. in Department SE-C. The Court is unable to accommodate an earlier
date due to its congested calendar. Opposition and reply to be filed in
accordance with the new hearing date. Moving party to give notice. Case Number: 23NWVC00772 Hearing Date: March 7, 2025 Dept: C
Gutierrez v. The Cheesecake Factory Inc. (23NWCV00772) This premises liability action was filed on March 14, 2023.
Trial is set for August 8, 2025. Counsel for Plaintiff Eddie Gutierrez, Lilit
Elechyan, has filed a Motion to be Relieved as Counsel, which is currently set
for hearing on August 28, 2025. Counsel was notified on April 5, 2024 that Natanel
Safaradi, Esq. was requested by Plaintiff to substitute in as his counsel. Counsel
now moves ex parte to advance the hearing to be relieves as counsel to the date
of this ex parte application. Counsel for Plaintiff’s Ex Parte Application for an Order
Advancing Plaintiffs’ Motion to be Relieved as Counsel is GRANTED, in part. The
Court is unable to hear the Motion on today’s date. The hearing on the Motion
is ADVANCED to today’s date and CONTINUED to April 15, 2025 at 10:30a.m. in
Department SE-C. Opposition and reply to be filed in accordance with the new
hearing date. Moving party to give notice. |
DEPARTMENT C LAW AND MOTION RULINGS
Case Number: 22NWCV00183 Hearing Date: March 6, 2025 Dept: C
ESPINOSA v. FENIKS FUNDING INCORPORATED CASE NO.: 22NWCV00183 HEARING: 03/06/25 #2 I. Claudia C. Osuna, Esq. and Osuna & Dotson Law Firm’s unopposed motion to withdraw as counsel of record for Defendant RICARDO TALAMANTES is GRANTED. II. Claudia C. Osuna, Esq. and Osuna & Dotson Law Firm’s unopposed motion to withdraw as counsel of record for Defendant STEVE LOPEZ is GRANTED. III. Claudia C. Osuna, Esq. and Osuna & Dotson Law Firm’s unopposed motion to withdraw as counsel of record for Defendant FENIKS FUNDING, INC. is GRANTED. Moving Party to give notice. No Oppositions filed as of March 4, 2025. Due by February 21, 2025. (CCP §1005(b).) The Court finds that Counsel has met the procedural requirements, including proper notice to the client at the last known residence or business address of the client. C.R.C. 3.1362. Here, Counsel’s declarations indicate that there has been a breakdown of the attorney-client relationship. Where the issue (or conflict) is between the lawyer and client(s), without implicating other parties, the court can rely on counsel’s sworn declaration absent any reason to doubt the representations. There is an undisputed breakdown in attorney-client communications. It does not appear that Attorney Osuna’s continued representation would serve the interests of justice. The motions to withdraw are GRANTED. The Court notes that Defendant FENIKS FUNDING, INC. must be represented by counsel in all court proceedings. (See CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) Case Number: 22NWCV01608 Hearing Date: March 6, 2025 Dept: C
PEREZ v. COUNTRYWIDE MEDITERRANEAN APARTMENTS, LLC CASE NO.: 22NWCV01608 HEARING: 03/06/25 #3 I. Melissa Vargas Lopez and the Lombardo Law Firm’s unopposed motion to withdraw as counsel of record for Plaintiff MANUEL VILLANUEVA is GRANTED. II. Melissa Vargas Lopez and the Lombardo Law Firm’s unopposed motion to withdraw as counsel of record for Plaintiff RICHARD LUNA is GRANTED. III. Melissa Vargas Lopez and the Lombardo Law Firm’s unopposed motion to withdraw as counsel of record for Plaintiff LISA DUARTE is GRANTED. Moving Party to give notice. No Opposition(s) filed as of March 4, 2025. The Court finds that Counsel has met the procedural requirements, including proper notice to the clients at the last known residence or business address of the client. C.R.C. 3.1362. Here, Counsel’s declarations indicate that there has been a breakdown of the attorney-client relationship(s). Where the issue (or conflict) is between the lawyer and client(s), without implicating other parties, the court can rely on counsel’s sworn declaration absent any reason to doubt the representations. There is an undisputed breakdown in attorney-client communications. It does not appear that the Lombardo Law Firm’s continued representation would serve the interests of justice. The motion to withdraw is GRANTED. Case Number: 23NWCV00061 Hearing Date: March 6, 2025 Dept: C
AGUILAR v. INTERNATIONAL FORKLIFT COMPANY CASE NO.: 23NWCV00061 HEARING: 03/06/25 #4 Defendants’ INTERNATIONAL FORKLIFT COMPANY and BRIAN MATTHEW CHALLONER’s motion for terminating sanctions is CONTINUED to Thursday, May 1, 2025. Opposing Party to give notice. The Subject Motion was filed on June 10, 2024, and is scheduled for hearing on Thursday, March 6, 2025. Plaintiff’s untimely Opposition was filed without leave of Court on March 4, 2025. Per Code, the Opposition was due by no later than February 21, 2025. (CCP §1005(b).) In the Untimely Opposition, Plaintiff’s counsel declares under penalty of perjury that that the Motion should be denied because supplemental responses to the discovery at issue were served on April 24, 2024 and that terminating/monetary sanctions are unjustified. (Partiyeli Decl., ¶4.) Given the dispositive nature of this Motion and in the interests of justice, this matter is CONTINUED as indicated above. Defendants’ may file a Responsive Reply to the Untimely Opposition per Code in accordance with the new hearing date. Case Number: 23NWCV01467 Hearing Date: March 6, 2025 Dept: C
GONZALEZ v. AGUIRRE CASE
NO.: 23NWCV01467 HEARING:
03/06/25 #8
I.
Defendants/Cross-Complainants’
Unopposed Motion to Deem Matters Admitted Against Plaintiff JACQUELINE GONZALEZ
is GRANTED.
II.
Defendants/Cross-Complainants’
Unopposed Motion to Compel Non-Party Mitchell Ponce’s Compliance with
Deposition Subpoena is GRANTED. Moving
Party to give notice. No
Oppositions filed as of March 4, 2025. Due by February 21, 2025. (CCP
§1005(b).) Motion to
Deem Admitted The
unopposed Motion to Deem Matters Admitted as to Plaintiff JACQUELINE GONZALEZ
(“Plaintiff”) is GRANTED. “If
a party to whom requests for admission are directed fails to serve a timely
response, the following rules apply: (a) The party to whom the requests for
admission are directed waives any objection to the requests…. The Court, on
motion, may relieve that party from this waiver on its determination that both
of the following conditions are satisfied: (1) The party has subsequently
served a response that is in substantial compliance with Sections 2033.210,
2033.220, and 2033.230. (2) the party’s failure to serve a timely response was
the result of mistake, inadvertence, or excusable neglect…. (c) The court shall
make this order, unless it finds that the party to whom the requests for
admission have been directed has served, before the hearing on the motion, a
proposed response to the requests for admission that is in substantial
compliance with Section 2033.220. It is mandatory that the court impose a
monetary sanction under Chapter 7…on the party or attorney, or both, whose
failure to serve a timely response to requests for admission necessitated this
motion.” (CCP §2033.280.) Unverified
responses “are tantamount to no responses at all.” (Appleton v. Superior
Court (1988) 206 Cal.App.3d 632, 636.) No prior attempt to resolve the
matter informally is required. Here,
RFAs (set two) were propounded on or about March 20, 2024. Based
on evidence presented to the Court, Plaintiff has failed to serve any
responses. Therefore,
the unopposed Motion is GRANTED. Sanctions
are mandatory pursuant to the terms of CCP §2033.280(c). Reasonable
sanctions are GRANTED in the total amount of $450.00 Plaintiff JACQUELINE
GONZALEZ and her counsel of record are jointly and severally ORDERED to pay Moving
Party and their counsel of record sanctions in the total amount of $450.00,
payable within 30 days from the date of the Court’s issuance of this Order. This
date may be extended by agreement of the parties. Motion to
Compel Compliance with Deposition Subpoena Nonparty MITCHELL PONCE is ORDERED to comply with the Deposition Subpoena for Personal
Appearance originally served on June 14, 2024, and appear for a deposition on
mutually agreeable date and time, within 30 days from the date of the Court’s
issuance of this Order. The date may be extended by agreement of the parties. “If a subpoena requires the
attendance of a witness…, the court, upon motion reasonably made by any person
described in subdivision (b)…may make an order quashing the subpoena entirely,
modifying it, or directing compliance with it upon those terms or conditions as
the court shall declare, including protective orders.” (CCP §1987.1(a).)
“Disobedience to a subpoena, or a refusal to be sworn, or to answer as a
witness, or to subscribe an affidavit or deposition when required, may be
punished as a contempt by the court issuing the subpoena.” (CCP §1991.) This Motion is unopposed. The unopposed Motion is
GRANTED. Case Number: 23NWCV02826 Hearing Date: March 6, 2025 Dept: C
Amaryllis Partners, LLC v. Baker Coupling Company,
Inc. (23NWCV02826) This lease dispute cause of action was file on September 7,
2023. Trial is set for August 4, 2024. Defendant Falls Lake National Insurance
Company was named as a Defendant later in the litigation. Defendant’s Demurrer
is currently set to be heard on November 19, 2025. Defendant now moves ex parte
to advance its Demurrer to a date prior to the May 29, 2025 Mandatory
Settlement Conference. Defendant’s Ex Parte Application to Advance Hearing Date for
Demurrer is GRANTED. The Demurrer is ADVANCED to today’s date and CONTINUED to
May 20, 2025 at 10:30a.m. in Department SE-C. Opposition and reply to be filed
in accordance with the new hearing date. Moving party to give notice. Case Number: 24NWCP00241 Hearing Date: March 6, 2025 Dept: C
BILL ME LATER, INC. v. SABRAK INC. CASE NO.: 24NWCP00241 HEARING: 03/06/25 #9 Petitioner BILL ME LATER, INC.’s Unopposed Petition to Confirm
Arbitration Award is CONTINUED to
Thursday, May 8, 2025 at 9:30 a.m. in Dept.
SE-C. Opposition(s) and Reply to be filed and served per Code in accordance
with the new hearing date. Moving Party to give notice. No Opposition filed as of March 4, 2025. Due by February 21,
2025. (CCP §1005(b).) The unopposed Petition is CONTINUED as indicated above. The
Court’s docket does not reflect that Respondents have been served with notice
of this action. Case Number: 24NWCV00094 Hearing Date: March 6, 2025 Dept: C
B.A. v.
Billy Valdivia, et al. (24NWCV00084) This sexual assault action was filed on January 9, 2024.
Plaintiff B.A. requested entry of default of Defendant Billy Valdivia. The
request was based on service by publication. Request for Entry of Default against
Defendant was granted on November 22, 2024. Plaintiff thereafter hired a new
private investigator, who located Defendant at his current address. Plaintiff’s
process server served Defendant via substituted service at his residence on
February 9, 2025 and thereafter mailed the summons, complaint and a Statement
of Damages on February 10, 2025. (See Proof of Service 3/3/25.) Plaintiff now
requests the Court set aside the entry of default against Defendant. Plaintiff’s Ex Parte Request to Set Aside Entry of Default
Against Defendant Billy Valdivia is GRANTED. Moving party to give notice. Case Number: 24NWCV01382 Hearing Date: March 6, 2025 Dept: C
RAMIREZ v. CORONA CASE NO.: 24NWCV01382 HEARING: 03/06/25 #5 Plaintiffs CLARA RAMIREZ; YOSELINE BUSTOS; GIOVANNI BUSTOS; and LOURDES RAMIREZ’s Motion for Nunc Pro Tunc Order to Correct Filing Date is DENIED. Court Clerk to give notice. This action for motor vehicle negligence was filed by Plaintiffs Clara Ramirez; Yoseline Bustos; Giovanni Bustos; and Lourdes Ramires (collectively “Plaintiffs”) against Defendant Juan Corona and Does 1-25 on May 2, 2024. Plaintiffs are self-represented. Plaintiffs indicate that they made efforts to e-file their Complaint on April 25, 2024; April 26, 2024; April 29, 2024; May 2, 2024; and then again on May 2, 2024. Plaintiffs indicate that the Complaint was rejected each time due to various procedural deficiencies. Plaintiffs’ Complaint was not accepted and deemed filed until May 2, 2024 at 1:56 p.m. Plaintiffs now move for entry of a Nunc Pro Tunc Order changing the filing date of their Complaint from May 2, 2024 to April 25, 2024 in order to prevent their claims from being barred by the statute of limitations. The Motion is DENIED. Here, Plaintiffs do not argue that their Complaint was improperly rejected. Plaintiffs concede that there were multiple procedural issues that had to be remedied before the Complaint could be deemed filed. The Complaint was not actually filed until May 2, 2024. The Court can only make the record show that something was actually done at a previous time. This Court has no authority to grant Plaintiffs’ Motion “amending” the date of the filing of the Complaint from May 2, 2024 to April 25, 2024 in order to avoid the running of the statute of limitations. (See City of Los Angeles v. Sup. Ct. (1968) 264 Cal.App.2d 766, 769.) Case Number: 24NWCV01574 Hearing Date: March 6, 2025 Dept: C
JONES v. KAISER FOUNDATION HEALTH PLAN, INC. CASE NO.: 24NWCV01574 HEARING: 03/06/25
#6 Defendants KAISER FOUNDATION HOSPITALS; KAISER FOUNDATION HEALTH PLAN, INC.; and SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP’s Unopposed Motion to Compel Arbitration is GRANTED. The entire action is STAYED until conclusion of the arbitration. Moving Party to give notice. No Opposition filed as of March 3, 2025. Due by February 21, 2025. (CCP §1005(b).) This negligence action was filed by Plaintiff PENNY JONES (“Plaintiff”) against Defendants KAISER FOUNDATION HEALTH PLAN, INC.; KAISER FOUNDATION HOSPITALS; SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP; and DOES 1 through 50, inclusive on May 20, 2024. Plaintiff alleges the following relevant facts: “On or about May 19, 2023, Plaintiff was on the Premises for a doctor’s appointment. [¶] As Plaintiff was leaving the Premises after her doctor’s appointment, Plaintiff slipped and fell as she passed through the exit doors.” (Complaint ¶¶ 15-16.) Plaintiff’s Complaint asserts one sole cause of action for Negligence. Defendants KAISER FOUNDATION HOSPITALS; KAISER FOUNDATION HEALTH PLAN, INC.; and SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP (collectively “Kaiser Defendants”) move to compel arbitration pursuant to a written agreement to arbitrate between the parties. Kaiser Foundation Health Plan, Inc. (“Health Plan”) is a California non-profit public benefit corporation which operates a direct service plan providing medical and hospital services to its members. Kaiser Foundation Hospitals (“KFH”) is a California non-profit, public benefit corporation with which Health Plan contracts to provide hospital services to Health Plan members. KFH is a health care facility licensed pursuant to Chapter 2 of Division 2 of the Health and Safety Code. Health Plan agrees to defend and indemnify KFH against claims Health Plan members assert against KFH that arise out of services KFH provides to those members, in accordance with the terms of the contract between Health Plan and KFH. Southern California Permanente Medical Group (“SCPMG”) is a partnership with which Health Plan contracts to provide medical services to Health Plan members in Southern California. Health Plan agrees to defend and indemnity SCPMG against claims Health Plan members assert against SCPMG that arise out of services SCPMG provides to those members. Effective January 1, 20232 through December 1, 2023, Health Plan entered into a Group Agreement and Evidence of Coverage (“EOC”) with Owens-Illinois through which Health Plan offered to arrange certain hospital and medical services to eligible enrollees thereunder, including Plaintiff Penny Jones. Health Plan’s records reflect that Plaintiff Penny Jones enrolled as a Health Plan member under the Owen-Illinois Agreement/EOC effective January 1, 2013. Except for specifically enumerated exceptions, the court must order the petitioner and respondent to arbitrate a controversy if the court finds that a written agreement to arbitrate the controversy exists. (See CCP §1281.2.) “In California, [g]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate.” (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 420.) “A petition to compel arbitration or stay proceedings pursuant to CCP §§1281.1 and 1281.4 must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.” (C.R.C. Rule 3.1330.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination. (Engalia v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.) The Court finds that the Kaiser Defendants haves met the burden of proving the existence of a valid arbitration agreement between Plaintiff and the Kaiser Defendants. The Agreement/EOC states: “Any dispute shall be submitted to binding arbitration if all of the following requirements are met: [¶] The claim arises from or is related to an alleged violation of any duty incident to or arising out of or relating to this EOC or a Member Party’s relationship to Kaiser Foundation Health Plan, Inc…. including any claim for medical or hospital malpractice… for premises liability, or relating to the coverage for, or delivery of, services or items, irrespective of the legal theories upon which the claim is asserted. [¶] The claim is asserted by one or more Member Parties against one or more Kaiser Permanente Parties or by one or more Kaiser Permanente Parties against one or more Member Parties. [¶] Governing law does not prevent the use of binding arbitration to resolve the claim.” (Carson Decl., ¶2, Ex. A., pp. 76-77.) As of March 3, 2025, no Opposition has been filed. The Kaiser Defendants’ Reply Memorandum (Non-Opposition) ISO Petition to Compel Arbitration and Motion to Stay Action states: “Plaintiff has indicated through counsel that she does not oppose arbitration and does not intend to file opposition to the Petition.” (Reply 2:21-22.) The Court finds that a valid arbitration agreement exists, and absent any Opposition, the motion to compel arbitration is GRANTED. The entire action is STAYED until conclusion of the arbitration. Case Number: 24NWCV01971 Hearing Date: March 6, 2025 Dept: C
Banuelos v. Cal Hono Freight Forwarders, Inc.
(24NWCV01971) This negligence action was filed on June 26, 2024. A trial
date has not yet been set. Non-party Federal Insurance Company (FIC) is an
insurer for workers compensation. FIC has paid and continues to pay Plaintiff
Luis Banuelos compensation benefits, as he was employed by Twin Med, LLC, the
insured. FIC has filed a Motion for Leave to File a Complaint-in-Intervention,
which is currently set for hearing on December 11, 2025. FIC now moves ex parte
to advance the Motion’s hearing date to an earlier date, asserting it will be
irreparably harmed if it is unable to participate in the litigation sooner. Non-party Federal Insurance Company’s Ex Parte Application
to Advance the Date of Hearing for the Motion for Leave to Leave to File a
Complaint-in-Intervention is GRANTED. The Motion is ADVANCED to today’s date
and CONTINUED to June 10, 2025 at 10:30a.m. in Department SE-C. The Court is
unable to accommodate an earlier date due to the Court’s congested calendar. Opposition
and reply to be filed in accordance with the new hearing date. Moving party to
give notice. Case Number: 24NWCV02036 Hearing Date: March 6, 2025 Dept: C
WHITEIS v. REYES CASE NO.: 24NWCV02036 HEARING: 03/06/25 #10 Defendant LYFT, INC.’s Motion to Motion to
Compel Arbitration is GRANTED. The entire
action is STAYED until the
conclusion of arbitration. Moving Party to give notice. This motor vehicle negligence action was filed by Plaintiff RACHEL LYNN
WHITEIS (“Plaintiff”) against Defendants DAVID DANIEL REYES; LYFT, INC.;
RASIER, LLC; and DOES 1 through 20, inclusive on July 2, 2024. Plaintiff alleges as follows: “Each and all of the acts, events and
injuries alleged hereinafter, took place and were sustained on or about October
5, 2022 while Plaintiff was a passenger in the vehicle operated by Defendant
REYES while employed by Defendant LYFT, when suddenly and without warning,
Defendant REYES collided with the vehicle in front of him operated by Christina
Aguilera Saavedra….” (Complaint ¶10.) Plaintiff’s Complaint asserts one sole cause of action for Negligence. A Request for Dismissal without prejudice as to Defendant Rasier, LLC
was entered on August 23, 2024. Defendant Lyft, Inc. (“Lyft”) now moves to compel arbitration based on
arbitration agreement(s) contained in the terms and conditions of Plaintiff’s
Lyft account. In Opposition, Plaintiff argues that the Motion should be denied because
Lyft has not satisfied its burden of establishing the existence of a valid and
enforceable arbitration agreement. In addition, Plaintiff argues that the
Motion is deficient for a number of reasons, which include: (1) a lack of
mutual assent; (2) procedural and substantive unconscionability; (3)
independent negligence of Lyft goes outside the scope of the arbitration
agreement; (4) waiver of right to arbitration; (5) public policy considerations;
(6) overbroad scope of arbitration agreement; (7) indefinite duration of
arbitration agreement; (8) lack of mutuality; (9) impermissible time limits on
filing claims; and (10) the confidentiality provision unfairly restricts
Plaintiff form sharing case details. Waiver Plaintiff argues
that Lyft waived the right to arbitration by engaging in conduct inconsistent
with the right to arbitrate: “Lyft has actively participated in litigation for
months before seeking arbitration, including serving discovery requests and
engaging in case management proceedings.” (Opp. 5:14-15.) In Reply, Lyft
maintains that it never propounded any discovery upon any party, nor responded
to any discovery in this action, and that Lyft’s conduct has always been
consistent with its right to arbitrate. (See Reply 8:8-9.) In Quach v.
California Commerce Club, Inc. (2024) 16 Cal.5th 562 (Quach), the
California Supreme Court outlined the requirements for waiver under California
law: “To establish waiver under generally applicable contract law, the party
opposing enforcement of a contractual agreement must prove by clear and
convincing evidence that the waiving party knew of the contractual right and
intentionally relinquished or abandoned it. [Citations.] Under the clear and
convincing evidence standard, the proponent of a fact must show that it is
‘highly probable’ the fact is true. [Citation.] The waiving party’s knowledge
of the right may be ‘actual or constructive.’ [Citation.] Its intentional
relinquishment or abandonment of the right may be proved by evidence of words
expressing an intent to relinquish the right or of conduct that is so
inconsistent with the intent to enforce the contractual right as to lead a
reasonable factfinder to conclude that the party had abandoned it. [Citation.]
[¶] The waiver inquiry is exclusively focused on the waiving party’s words or
conduct; neither the effect of that conduct on the party seeking to avoid
enforcement of the contractual right nor that party’s subjective evaluation of
the waiving party’s intent is relevant.” (Quach at 584-585.) Waiver does not require “that the party
opposing enforcement of the contractual right demonstrate prejudice or
otherwise show harm resulting from the waiving party’s conduct.” (Id. at
585.) Based on the Court’s
file and the evidence presented to this Court, the procedural history of this
case appears to be as follows: ·
This
action was filed by Plaintiff on July 2, 2024; ·
Lyft
raised its right to arbitrate Plaintiff’s claims in the form of an affirmative
defense in its Answer filed on August 22, 2024; ·
On
August 22, 2024, Counsel for Lyft a meet-and-confer letter to Plaintiff’s
counsel outlining Lyft’s intent to move to compel arbitration (see Lyft’s Ex.
7.); ·
Lyft
filed this Subject Motion to Compel Arbitration on September 24, 2024; ·
Lyft
filed a Case Management Statement on December 19, 2024; ·
It is
unclear whether discovery has been exchanged between the parties, or propounded
by either party. The Court does not
find that Lyft acted in a manner inconsistent with their intent to arbitrate,
unreasonably delayed their demand to compel arbitration, or substantially invoked
the litigation machinery. The Motion to Compel Arbitration was filed less than
three months after the Complaint was filed. Lyft has continuously maintained (in documents filed
with the Court and/or served onto Plaintiff’s counsel) that they intended to
compel arbitration. The Existence of an Arbitration Agreement Except for specifically
enumerated exceptions, the court must order the petitioner and respondent to
arbitrate a controversy if the court finds that a written agreement to
arbitrate the controversy exists. (See CCP §1281.2.) “In California, [g]eneral
principles of contract law determine whether the parties have entered a binding
agreement to arbitrate.” (Craig v. Brown & Root, Inc. (2000) 84
Cal.App.4th 416, 420.) “A petition to compel arbitration or stay proceedings
pursuant to CCP §§1281.1 and 1281.4 must state, in addition to other required
allegations, the provisions of the written agreement and the paragraph that
provides for arbitration. The provisions must be stated verbatim or a copy must
be physically or electronically attached to the petition and incorporated by
reference.” (C.R.C. Rule 3.1330.) The petitioner bears the burden of proving the existence of a valid
arbitration agreement by the preponderance of the evidence, and a party
opposing the petition bears the burden of proving by a preponderance of the
evidence any fact necessary to its defense. In these summary proceedings, the
trial court sits as a trier of fact, weighing all the affidavits, declarations,
and other documentary evidence, as well as oral testimony received at the
court’s discretion, to reach a final determination. (Engalia v. Permanente
Medical Group, Inc. (1997) 15 Cal.4th 951.) Plaintiff created a Lyft account on or about September 19, 2019.
(McCachern Decl., ¶12.) In order to crate the Lyft account, Plaintiff had to
accept terms and conditions stating that “ALL DISPUTES AND CLAIMS… SHALL BE
EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN [Plaintiff] AND
LYFT.” (Lyft’s Ex. 2.) On December 12, 2020, Lyft notified Plaintiff by email
of it’s updated Terms of Service, which included revisions to the dispute
resolution and arbitration agreement. The email stated, “Your continued
use of Lyft will confirm that you have reviewed and agreed to the updated Terms.”
(Lyft’s Ex. 3.) This action arises out of Plaintiff’s use of Lyft’s services.
Accordingly, the Court finds that Lyft has met its burden to establish the
existence of an agreement to arbitrate. Plaintiff fails to present any admissible evidence to show
that Plaintiff did not knowingly and voluntarily consent to arbitration. The
Court notes that no declarations are attached to or filed in conjunction with
Plaintiff’s Opposition. Unconscionability Plaintiff contends that the Arbitration Agreement is
unenforceable because it is unconscionable. The party seeking the defense of unconscionability bears the
burden of proof. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th
899, 911. “[T]he doctrine of unconscionability has both a procedural and
substantive element, the former focusing on oppression or surprise due to
unequal bargaining power, the latter on overly harsh or one-sided results.” (Id.
at 910.) “Oppression occurs where a contract involves lack of negotiation and
meaningful choice, and surprise occurs where the allegedly unconscionable
provision is hidden within a prolix printed form.” (Pinnacle Museum Tower
Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247.)
“The procedural element of an unconscionable contract generally takes the form
of a contract of adhesion, 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.” (Little v. Auto Stiegler, Inc.
(2003) 29 Cal.4th 1064, 1071.) “[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. [Citation]…. The
unconscionability doctrine ensures that contracts [ ] do not impose terms that
have been variously described as ‘overly harsh,’ [citation], ‘unduly
oppressive,’ [citation], ‘so one-sided as to shock the conscience,’ [citation]
or ‘unfairly one-sided.’ [citation]. All of these formulations point to the
central idea that unconscionability doctrine is [ ] concerned [ ] with terms
that are ‘unreasonably favorable to the more powerful party.’ (Sanchez, supra, 6 Cal.4th at 910-911.) If the
Court finds that an agreement to arbitrate or any clause of such an agreement
is unconscionable, the Court may refuse to enforce the contract, or it may
enforce the remainder of the contract without the unconscionable clause, or it
may so limit the application of any unconscionable clause as to avoid any
unconscionable result. (Cal. Civ. Code §1670.5(a).) Plaintiff argues that the Agreement is procedurally
unconscionable. Indeed, the Agreement appears to be a contract of adhesion in
that it is, on its face, an agreement presented on a “take-it-or-leave-it”
basis. However, no evidence is submitted to indicate that Plaintiff was
pressured, rushed, or denied the ability to reject the terms of the Agreement. The
procedural unconscionability due to the adhesive nature of the Agreement is
low. In addition, Plaintiff fails to make any showing that the
Agreement is substantively unconscionable. The terms of the Arbitration
Agreement appear on its face to be bilateral, reasonable, and not unfairly
favorable to either party. As a result, the Court finds that the Arbitration
Agreement lacks the “one-sidedness” necessary to be deemed substantively
unconscionable. (See e.g., Lhotka v. Geographic Expeditions, Inc. (2010)
181 Cal.App.4th 816, 825-826.) The Court does not find that the Agreement is so
one-sided as to shock the conscience or that it “unfairly limits discovery”. Defendant David Daniel Reyes In it’s Moving Papers, Lyft states: “To be clear, Lyft is not
requesting a stay of Plaintiff’s claims against Defendant Reyes.” (Memo.
24:24-25.) As of March 3, 2025, no Motion to Compel Arbitration has been
filed on behalf of Defendant David Daniel Reyes. Pursuant to CCP §1281.2(c) and (d): “[T]he court (1) may refuse to
enforce the arbitration agreement and may order intervention or joinder of all
parties in a single action or special proceeding; (2) may order intervention or
joinder as to all or only certain issues; (3) may order arbitration among
the parties who have agreed to arbitration and stay the pending court action or
special proceeding pending the outcome of the arbitration proceeding; or
(4) may stay arbitration pending the outcome of the court action or special
proceeding…” when “[a] party to the arbitration agreement is also a party to a
pending court action or special proceeding with a third party, arising out of
the same transaction or series of related transactions and there is a
possibility of conflicting rulings on a common issue of law or fact.” (emphasis
added.) Accordingly, the Motion is GRANTED as to Plaintiff RACHEL LYNN
WHITEIS and Defendant LYFT, INC. only. However, the entire case is STAYED until
conclusion of the arbitration. Case Number: 24NWCV02302 Hearing Date: March 6, 2025 Dept: C
BAPTISTE v. PREMIER VITALITY, LLC CASE NO.: 24NWCV02302 HEARING: 03/06/25
#7 Specially Appearing Defendant PREMIER VITALITY, LLC’s Motion
to Quash Service of Process is GRANTED.
The Action is DISMISSED without prejudice as to PREMIER VITALITY, LLC. Moving Party to give notice BACKGROUND This action for Violations of California Restrictions on
Unsolicited Commercial E-Mail in Violation of Bus. & Prof. Code §17529.5
was filed by Plaintiffs JEWEL BAPTISTE; BART CUTINO; KIM CUTINO; HENRY DE LA
PAZ; RAE RIVERA’ LOETTA SOUZA; STEVE SOUZA’ and LISA SWIFT (collectively
“Plaintiffs”) against Defendants PREMIER VITALITY, LLC and (“Premier”) DOES
1-100, inclusive on July 29, 2024. This action arises out of Plaintiffs’ alleged receipt of
unsolicited commercial spam emails beginning on or about July 2023. (Complaint
¶7.) Plaintiffs allege that Defendant Premier “is a limited liability company,
with its principal place of business at 1700 Meridian $312, Miami Beach,
Florida 33139.” (Complaint ¶67.) Plaintiffs further allege that “Defendant
transacts or has transacted business in California and throughout the United
States and has created an ongoing relationship in California related to the
distribution of spam emails.” (Complaint ¶74.) Plaintiffs’ Complaint asserts one sole cause of action for
Violation of Cal. Bus. & Prof. Code §17529.5, which relates to California’s
restriction on unsolicited commercial email advertisers. Specially Appearing Premier Vitality, LLC moves to quash
service of process and dismiss this action for lack of personal jurisdiction. Premier
argues that good cause exists to grant this Motion because Plaintiffs cannot
sustain their burden of establishing that Premier has sufficient minimum
contacts with the State of California necessary to support either general or
specific jurisdiction. Premier argues that it is a Florda company, is not at
home in California, and that any of its marketing affiliates who are “at home
in California” actions’ cannot be imputed to Premier. In Opposition, Plaintiffs argue that: Premier has not
established that it essentially “at home” in Florida; Premier has specific
jurisdiction over Premier; there is a valid basis to impute Premier’s marketing
affiliates’ contacts with California to Premier; and that the Court should
continue the hearing on this Motion to permit Plaintiffs’ the opportunity to
conduct jurisdictional discovery. PLAINTIFFS’ REQUEST FOR A CONTINUANCE In Opposition, Plaintiffs briefly argue that that
jurisdictional discovery is necessary to “gather evidence and information
necessary to establish jurisdiction over Premier.” (Opp. 10:27-28.) It is well established that “[a]
plaintiff is generally entitled to conduct discovery with regard to a jurisdictional
issue before a court rules on a motion to quash.” (Goehring
v. Superior Court (1998)
62 Cal. App. 4th 894, 910; see also Mihlon v. Superior Court (1985) 169 Cal.App.3d 703.) The granting of
the discovery request lies within the discretion of the trial court. (Goehring,
supra, 62 Cal. App. 4th at
910). Here,
although Plaintiffs request a continuance for the purpose of conducting
discovery on jurisdictional issues, Plaintiffs fail to identify any specific
area of inquiry they would pursue if allowed to conduct discovery. Neither Plaintiffs’
counsel’s Declaration in Opposition, nor Plaintiffs’ Opposition Memorandum
“articulate what specific facts they would seek to develop if granted a
continuance”. (Preciado v. Freightliner Custom Chassis Corporation
(2023) 87 Cal.App.5th 964, 973.) Moreover, Plaintiffs’ Opposition papers were
filed on February 21, 2025. Plaintiffs have had since the date the Motion was
filed on October 18, 2024 to propound discovery regarding the jurisdictional
issues, but have seemingly failed to do so. Plaintiffs’
request for a continuance is DENIED. Plaintiffs have not demonstrated “that
discovery is likely to lead to the production of evidence of facts establishing
jurisdiction.” (In re Automobile Antitrust Cases I & II (2005) 135
Cal.App.4th 100, 127.) DISCUSSION When a nonresident defendant challenges jurisdiction, the plaintiff
has the initial burden of establishing the fact of jurisdiction by a
preponderance of the evidence. (Kaiser v. Aetna v. I.C. Deal (1978) 86
Cal.App.3d 896, 903.) Once a plaintiff has met the burden of demonstrating
facts justifying the exercise of jurisdiction over a nonresident, the burden
shifts to the defendant to demonstrate that the exercise of jurisdiction would
be unreasonable. (Paneno v. Centres for Academic Programmes Abroad Ltd.
(2004) 118 Cal.App.4th 1447, 1454.) General
Jurisdiction The contacts identified by Plaintiff are insufficient to
establish that Premier is susceptible to general
jurisdiction in the State of California. “A nonresident defendant may be
subject to the general jurisdiction of the forum if his or her contacts in the
forum state are ‘substantial… continuous and systematic.’ [Citations.]” (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445.) The undisputed facts show that Premier is neither
incorporated in California, nor has its principal place of business in
California. As the Court in Daimler AG v. Bauman (2014) 571 U.S. 117,
127 made clear, general jurisdiction should only be asserted when the evidence
indicates that the company is “essentially at home” in the state. In Opposition, Plaintiffs submit screenshots of NeuroPure
Facebook account(s). (Cruz Decl., ¶¶3-4, Ex. 1-2.) The existence of the
NeuroPure Facebook accounts, which lists numerous locations across the United
States, including California does not establish that that Premier is “at home”
in California. However, “website printouts suggesting that some of [Premier’s]
products are sold… in California… do not establish that [Premier] is ‘at home’
in California. As the Supreme Court has made clear, general jurisdiction
requires more than a showing that ‘a corporation engages in a
substantial, continuous, and systematic course of business’ in a state.
[Citation.] Instead, the state must hold the particular position of being the
location where the corporation is ‘at home.’ [Citation.]” (Preciado v.
Freightliner Custom Chassis Corporation (2023) 87 Cal.App.5th 964, 977.) “A
corporation that operates in many places can scarcely be deemed at home in all
of them.” (Daimler AG v. Bauman (2014) 571 U.S. 117, 139-140, fn. 20.) Plaintiffs
have not met their burden to show that Premier is subject to general
jurisdiction in California. Specific
Jurisdiction “If the nonresident defendant does not have substantial and
systematic contacts in the forum sufficient to establish general jurisdiction,
[it] still may be subject to the specific jurisdiction of the forum, if the
defendant has purposefully availed himself or herself of the forum benefits
[citation], and the ‘controversy is related to or ‘arises out of’ a defendant’s
contacts with the forum.’ [Citations.]” (Vons Companies, Inc. v. Seabest
Foods, Inc. (1996) 14 Cal.4th 434, 446.)
“The test for whether a court may exercise ‘specific’ personal
jurisdiction requires that the nonresident purposefully directed his acts to
the forum state or otherwise purposefully established contacts with the forum
state, that the cause of action be related to or arise or result from the acts
or contacts in the forum, and that the exercise of personal jurisdiction by the
forum would be reasonable.” (Muckle
v. Sup. Ct. (2002) 102 Cal. App. 4th 218, 227-228.) The “purposeful availment requirement ensures that a
defendant will not be hailed into a jurisdiction solely as a result of
‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts [citations], or of the
unilateral activity of another party or a third person. [Citations.]” (Burger
King Corp. v. Rudzewicz (1985) 471 U.S. 462, 472-473.) In Support of the Opposition, Plaintiffs submit the
following evidence: ·
Premier conducts business trips to California,
which are publicized on social media. (Cruz. Decl., ¶3.) ·
Premier’s social media lists numerous locations
across the United States, which include several cities in California. (Cruz
Decl. ¶4.) ·
Premier operates at least two websites that were
accessible in California when Plaintiffs received the spam emails. (Goodman
Decl., ¶2.) ·
Premier has contracts with individuals who
reside in California to post favorable online reviews. (Cruz Decl., ¶4.) ·
Premier generates product sales through spam
emails sent to California residents that provide direct links to their online
purchase platforms. (Goodman Decl., Ex. 3.) ·
Premier causes spam emails to be sent to
California residents. (See Complaint, generally) ·
The company’s co-founder, Scott Goodman resides
in Barcelona, Span, which suggests that Premier’s operational reach extends
beyond Florida. (Cruz Decl., ¶6.) “For purposes of personal jurisdiction, the actions of an
agent are attributable to the principals. [Citation.] [However,] [t]o find an
agency relationship, the ‘parent company must have the right to substantially
control its subsidiary’s activities. [Citation.]” (Diaz v. One Technologies,
LLC (2023) WL6633842.) “[I]t is the defendant, not the plaintiff or third
parties, who must create contacts with the forum State.” (Walden v. Fiore
(2014) 571 U.S. 277, 291.) Plaintiffs’ claims do not arise out of or relate to
Premier’s operation of any websites. (See Schwarzenegger v. Fred Martin
Motor Co. (9th Cir. 2004) 247 F.3d 797, 802.) Even so, there is no evidence that Premier’s
web-presence or marketing affiliates’ emails targeted Californians any more
than residents of other states or countries. Moreover, is undisputed that Premier’s marketing affiliates
sent the unsolicited emails, and that Premier does not control or direct where
the emails are sent. (Goodman Decl., ¶¶8-17.)The Affiliate Marketing Agreement
does not indicate that Premier retains control over marketing, strategy, or
recipients.(Goodman Decl., ¶9, Ex. 2 and ¶16.) Plaintiffs
have not met their burden to show that Premier is subject to specific jurisdiction in California. The Motion is GRANTED. Premier’s Evidentiary Objections Nos. 1-7 are OVERRULED. Case Number: 24NWCV03161 Hearing Date: March 6, 2025 Dept: C
VERNOLA-SALAS v. URBAN
SOCCER 5 CENTER, LLC CASE
NO.: 24NWCV03161 HEARING: 03/06/25 #11
I.
Defendants’ Motion to Compel Further Responses to
Request for Production of Documents is CONTINUED to Thursday, March 20, 2025 at 9:30 a.m. in Dept. SE-C.
II.
Defendants’ Motion to Compel Further Responses to
Request for Admissions is CONTINUED to Thursday, March 20, 2025 at 9:30 a.m. in Dept. SE-C.
III.
Defendants’ Motion to Compel Further Responses to
Special Interrogatories is CONTINUED to Thursday, March 20, 2025 at 9:30 a.m. in Dept. SE-C. IV.
Defendants’ Motion to Compel Further Responses to Unlawful
Detainer Form Interrogatories is CONTINUED to Thursday, March 20, 2025 at 9:30 a.m. in Dept. SE-C. Moving party to give notice. This commercial
unlawful detainer action was filed on September 11, 2024. Trial is scheduled to
begin on March 28, 2025. At issue before the
Court at this time are four Motions to Compel Further Discovery Responses. Oppositions to each
Motion were due by no later than February 21, 2025. (CCP §1005(b).) Replies to
each Motion were due by no later than February 27, 2025. (Id.) Notwithstanding, the
Court’s docket reveals that untimely Oppositions were filed on February 27,
2025 and untimely Replies were filed on March 3, 2025. Moreover, a Notice of
Errata was filed by Defendant/Moving Party on February 28, 2025 submitting
entirely new Separate Statements in support of the Motion to Compel Further
Responses to Request for Production of Documents and the Motion to Compel
Further Responses to Special Interrogatories. The Court
is not persuaded that counsel have exhausted their meet and confer obligations
pursuant to the Code. Counsel are advised that their meet and confer efforts
should go beyond merely sending letters stating their respective positions.
(See Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1439.) “A
determination of whether an attempt at informal resolution is adequate…involves
the exercise of discretion. The level of effort at an informal resolution which
satisfies the ‘reasonable and good faith attempt’ standard depends upon the
circumstances. In a larger, more complex discovery request, a greater effort at
informal resolution may be warranted. In a simpler, or more narrowly focused
case, a more modest effort may suffice. The history of the litigation, the
nature of the interaction between counsel, the nature of the issues, the type
and scope of the discovery requested, the prospects for success and other
similar factors can be relevant. Judges have broad powers and responsibilities
to determine what measures and procedures are appropriate in varying
circumstances.” (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 431.) Counsel are
ORDERED to make further efforts to
resolve the issues presented. If, after exhausting those efforts, court
intervention is needed, counsel may appear and argue the merits on the
continued hearing date. If counsel are unable to informally resolve their
discovery disputes, then counsel are instructed to submit a JOINT STATEMENT
outlining the remaining disputed issues for which a ruling is required. The
joint statement must be FILED on or before Friday, March 14, 2025. Case Number: VC043885 Hearing Date: March 6, 2025 Dept: C
MARQUEZ v. MELNIK CASE NO.: VC043885 HEARING: 03/06/25 #1 Pursuant to Court Order dated January 4, 2010, the Marquez Special Needs Trust (“SNT”) was created and Petitioners MELISSA MARTINEZ and ANTHONY MICHAEL MARQUEZ, the parents of Beneficiary Anthony Cecil Marquez, were designated as Co-Trustees. The Beneficiary is now 19 years old, and Petitioners seek an Order to release all funds held in the blocked account in the name of the Marquez Special Needs Trust, which will then be deposited into an interest-bearing account selected by the Co-Trustees. Notice of Hearing of this First Verified Account Current, Report and Petition has been given as required by law. The First Verified Account Current and Report of Co-Trustees is approved, allowed, and settled as filed and supplemented. All of the funds held in the blocked account in the name of the Marquez Special Needs Trust, shall be released and deposited in an interest-bearing account to be selected by the Co-Trustees. Co-Trustees bond shall be increased in the amount of $91,636.62, for a total Trustee’s bond in the amount of $106,636.62. Petitioners are ORDERED to submit a Proposed Order within 5 days from the date of the Court’s issuance of this Order. |
DEPARTMENT C LAW AND MOTION RULINGS
Case Number: 20STCV49614 Hearing Date: March 13, 2025 Dept: C
FLORES v. GARCIA CASE NO.: 20STCV49614 HEARING: 03/13/25 #7 Defendant CHAN CHIROPRACTIC HEALTHCARE PLACE, INC.’s Motion
for Judgment on the Pleadings as to Plaintiff’s Complaint is DENIED. Defendant JOSHUA SAMANTA’s Joinder is GRANTED. The
Motion for Judgment on the Pleadings is also DENIED as to Defendant
SAMANTA. Opposing Party to give notice. Defendant’s Request for Judicial Notice is GRANTED as to the
existence of the documents, but not as to the hearsay statements contained
therein. (Cal. Ev. Code §452.) BACKGROUND This
action was filed by Plaintiff CATHY FLORES (“Plaintiff”) against Defendants
UPTOWN WELLNESS CENTER and OMAR GARCIA (“Garcia”) on December 29, 2020. Plaintiff
alleges that she “was touched and/or groped inappropriately while receiving a
massage at Uptown Wellness Center… on January 3, 2019.” (Complaint ¶4.) “On
January 3, 2019, PLAINTIFF arrived at the Whittier Uptown Wellness Center for a
massage and was greeted by Defendant GARCIA who took her to a massage room.
Shortly after Defendant GARCIA began massaging PLAINTIFF’s lower back area
Defendant GARCIA penetrated her vagina with his hand and PLAINTIFF immediately
froze in fear. Defendant GARCIA then whispered in PLAINTIFF’s ear, kissed her
buttocks, and left the massage room. (‘Subject Incident’).” (Complaint ¶5.) The
Complaint asserts the following causes of action: 1)
Negligence; and 2)
Negligent Infliction of Emotional Distress Defendant
Chan Chiropractic Healthcare Place, Inc. dba Uptown Wellness Center (“Moving
Defendant”) moves for judgment on the pleadings, arguing that Plaintiff’s
Complaint is time-barred under CCP §340.5. Defendant
JOSHUA SAMANTA (“Joining Defendant”) filed a Notice of Joinder on the Motion
for Judgment on the Pleadings. DISCUSSION
CCP §340.5 states: “In an action for injury or
death against a health care provider based upon such person’s alleged
professional negligence, the time for the commencement of action shall be three
years after the date of injury or one year after the plaintiff discovers, or
through the use of reasonable diligence should have discovered, the injury,
whichever occurs first…. [¶] For the purposes of this section: (1) ‘Health care
provider’ means any person licensed or certified pursuant to Division 2… of the
Business and Professions Code, or licensed pursuant to the Osteopathic
Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to
Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and
Safety Code; and any clinic, health dispensary, or health facility, licensed
pursuant to Division 2 (commencing with Section 1200) of the Health and Safety
Code. ‘Health care provider’ includes the legal representatives of a health
care provider. [¶] (2) ‘Professional negligence’ means a negligent act or
omission to act by a health care provider in the rendering of professional
services, which act or omission is the proximate cause of a personal injury or
wrongful death, provided that such services are within the scope of services
for which the provider is licensed and which are not within any restriction
imposed by the licensing agency or licensed hospital.” Moving Defendant argues that that it is a
chiropractic corporation certified by the California Board of Chiropractic
Examiners, and thus, is a health care provider under CCP §340.5. Joining
Defendant (Doe 1) similarly argues that this action is barred as to him
pursuant to CCP §340.5 because he is also a licensed chiropractor, and thus, a
health care provider. Based on judicially noticeable documents filed in
conjunction with the Subject Motion and Joinder to the Motion, Moving Defendant
and Joining Defendant are, indeed, healthcare providers. CCP §340.5(2) states that the CCP §340.5’s statute
of limitations applies to actions based upon a defendant’s professional
negligence: “Professional negligence means a negligent act or omission to act
by a health care provider in the rendering of professional services, which act
omission is the proximate cause of a personal injury or wrongful death, provided
that such services are within the scope of services for which the provider is
licensed.” (emphasis added.) (CCP §340.5(2).) Moreover, if a cause of action,
regardless of its label, arises out of a health care provider’s alleged
professional negligence, the CCP §340.5 statute of limitations applies. (Larson
v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 347.) Thus, the one-year statute of limitations of CCP
340.5 only applies if Plaintiff’s claims against the Moving and Joining
Defendants are based on professional negligence. The Court finds that Plaintiff’s factual
allegations sound in negligent hiring, retention, and supervision—not
professional negligence. (Complaint ¶¶16 and 28.) Such alleged conduct is not based on
professional negligence because it is not a “negligent act or omission to act
by a health care provider in the rendering of professional services.” The
hiring and supervision of employees does not constitute the rendition of
professional services. The Moving and Joining Defendants failure to supervise,
retain, or adequately train Garcia do not involve the rendering of professional
services. Accordingly, the Court does not find that the one-year limitation
provided by CCP §340.5 bars this entire action. The Motion is DENIED. Case Number: 22NWCV00668 Hearing Date: March 13, 2025 Dept: C
MEDLEY v. PACIFIC OFFICE
AUTOMATION, INC. CASE NO.: 22NWCV00668 HEARING: 03/13/25 #2 Plaintiff DANE MEDLEY’s Motion to Compel the
Second Session of the Deposition of Douglas Pitassi is GRANTED. This
wrongful termination action was filed by Plaintiff DANE MEDLEY (“Plaintiff”)
against Defendants PACIFIC OFFICE AUTOMATION, INC. (“POA”); ERIC PITASSI; and
JOHN/JANE DOES 1 through 100 on August 4, 2022. On
May 2, 2024, POA filed a Cross-Complaint. Plaintiff
now moves for leave to take the subsequent deposition of Non-Party Douglas
Pitassi. Plaintiff argues that the
second deposition of Douglas Pitassi is warranted because “new facts relevant
to the claims in this case that were unknown to Plaintiff and Plaintiff’s
counsel on January 4, 2024, when Douglas Pitassi was previously deposed, have
recently come to light, specifically the activities of Douglas Pitassi at POA
office, outside of the POA office, but during office hours, when he was POA’s
senior management official. These new facts as to Douglas Pitassi’s activities
occurred when he was CEO of POA and tasked with overseeing and managing all of
POA’s executive, senior managers, managers, supervisors, and others in
authority at POA during all relevant times of Plaintiff’s employment…. Those
facts… are compelling, relevant, and critical to Plaintiff’s claims….” (Notice
2:4-13.) In
Opposition, Defendants POA and Eric Pitassi argue that: “Plaintiff does not
have good cause to reopen nonparty Doug Pitassi’s deposition because Plaintiff
knew about allegations of misconduct about Doug Pitassi four months prior to
Doug Pitassi’s deposition held on January 4, 2022, and closed out Doug Pitassi’s
deposition without any inquiries about those allegations at all. Indeed, on
August 21, 2023, Plaintiff deposed Paul Butler… who testified he had read
allegations that Doug Pitassi had engaged in ‘inappropriate sexual behavior
with a former sales representative of [POA] and also of being a
‘pedophile.’….Plaintiff failed to ask any questions of Doug Pitassi at his
deposition regarding allegations of sexual misconduct, pedophilia, sexual
harassment or…any improper conduct by Doug Pitassi in the workplace.” (Opp.
5:2-12.) Defendants also argue that Plaintiff seeks to examine Doug Pitassi on
topics that go beyond the scope of the pleadings in this action, which contains
no allegations of wrongdoing against Doug Pitassi. Defendants maintain that the
topics of examination are not relevant or reasonably calculated to lead to the
discovery of admissible evidence. Under
CCP §2025.610 the Court can grant leave to allow a second deposition if there
is good cause. After the first deposition of Doug Pitassi, new information came
to light. In September, October, and November 2024; and January 2025—news
articles were published in The Oregonian containing information relevant to
this action that had not previously been disclosed to Plaintiff. The
Court finds that good cause has been shown. The Motion is GRANTED. Trial
is scheduled to begin on May 23, 2025. Nonparty
Doug Pitassi is ORDERED to appear
for a subsequent deposition. The parties shall meet and confer to determine the
date, time, and location of the deposition, which shall take place no later
than 15 days from the date of the Court’s issuance of this Order. The date
may be extended by agreement of the parties. Case Number: 22NWCV01237 Hearing Date: March 13, 2025 Dept: C
RAMIREZ v. FORD
MOTOR COMPANY CASE NO.: 22NWCV01237 HEARING: 03/13/25 #3 Plaintiff’s Motion for Attorney’s Fees is GRANTED in
the amount $21,449.00 plus costs in the amount
sought of $3,111.30. to be
paid by no later than 90 days from the date of the Court’s issuance of this
Order. This date may be extended by agreement of the parties. Moving Party to give
notice. BACKGROUND The relevant
procedural history of this case is as follows: This lemon law action was field
by Plaintiff MARIA RAMIREZ (“Plaintiff”) against Defendants CERRITOS FORD INC;
FORD MOTOR COMPANY (“Defendant” or “FMC”); and Does 1 through 10 on November 7,
2022. Approximately two rounds of
discovery were propounded, and the pleading was attacked two times via motion
for judgment on the pleadings and then demurrer. Plaintiff and FMC’s expert
were deposed. The parties mediated the case. A Settlement Offer for $71,000.00 was
sent on October 25, 2024. Plaintiff accepted the Offer on November 13, 2024. A
Notice of Settlement was FILED on October 2, 2024. Plaintiff now moves
for attorney’s fees and costs as the prevailing party under Cal. Civ. Code
§1794(d). DISCUSSION Cal. Civ. Code
§1794(d) states, “[i]f the buyer prevails in an action under [the Song Beverly
Act], the buyer shall be allowed by the court to recover as part of the
judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s
fees based on actual time expended, determined by the court to have been
reasonably incurred by the buyer in connection with the commencement and
prosecution of such action.” Here, it is
undisputed that Plaintiff is the prevailing party in this action, and is
entitled to reasonable attorney’s fees. The only issue pending before this
Court is the amount of the award. The matter of
reasonableness of a party’s attorney fees is within the sound discretion of the
trial court. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d
1051, 1062.) When
assessing the amount of any attorney’s fee award, courts typically determine
what is reasonable through the application of the “lodestar” method. Under the
lodestar method, a base amount is calculated from a compilation of (1)
time reasonably spent and (2) the reasonable hourly
compensation of each attorney. (Serrano v. Priest (“Serrano
III”) (1977) 20 Cal.3d 25, 48); (See also Meister v. Regents of
University of California (1998) 67 Cal.App.4th 437, 448-449 holding
that the lodestar method applies to statutory attorney fees award unless the
underlying statute provides for another method of calculation). Normally,
a “reasonable” hourly rate is the prevailing rate charged by attorneys of
similar skill and experience in the relevant community. (PLCM Group, Inc. v.
Drexler (2000) 22 Cal.4th 1084, 1095.) That amount may then be adjusted
through the consideration of various factors, including “(1) the novelty and
difficulty of the questions involved, (2) the skill displayed in presenting
them, (3) the extent to which the nature of the litigation precluded other
employment by the attorneys, and (4) the contingent nature of the fee award.” (Ketchum v. Moses (2001) 24 Cal.4th
1122, 1132.)
The Court is vested with discretion to determine which claimed hours were
reasonably spent, and what an attorney’s reasonable hourly rate is. (Dover
Mobile Estates v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d
1494, 1501); (See also Flannery v. California Highway Patrol (1987) 61
Cal.App.4th 629, 644.) [“We readily acknowledge the discretion of the trial
judge to determine the value of professional services rendered in his or her
court.”]. Plaintiff’s Motion seeks attorney’s
fees in the total amount of $44, 923.50 broken down as follows: $29,949.00 + $14,974.50
(lodestar multiplier) Plaintiff also seeks to recoup costs and expenses in the
total amount of $3,653.30. 14
separate attorneys from Plaintiff’s law firm worked on this matter. (See Kirnos
Decl. ¶¶27-41.) The Knight Law Group bills at hourly rates ranging from
$325-$600 an hour. A “reasonable” hourly rate is the prevailing
rate charged by attorneys of similar skill and experience in the relevant
community. (PLCM Group, Inc. v. Drexier (2000) 22 Cal.4th 1064, 1095.) The
Court finds that Plaintiff’s Counsel’s hourly rates are reasonable. Plaintiff has established an entitlement
to reasonable fees in the amount of $21,449.00 The
Court’s determination is undertaken in the exercise of its discretion to
determine whether or not rates or hours are reasonable. (Dover Mobile
Estates v. Fiber Form Products, Inc. (1990) 220 Cal.App.3d 1494, 1501.)
The Court reduces Plaintiff’s claimed
hours as follows: ·
A deduction of $14,974.50. The basis for the sought
multiplier is the results received, the contingency nature of this matter, and
the delay in the case. Although the matter was taken on a contingency basis,
this is a basic lemon-law case predicated by the Song-Beverly Act. Nothing has
been presented to indicate this case was novel, unique, or complex. Based on
the non-complexity of this case and the routine nature of lemon law litigation,
the Court does not find a multiplier reasonable or necessary. ·
$42.50 – 12/01/22, Review and Sign Notice of CMC. ·
$197.50 – 01/18/23, Finalize Plaintiff’s written
discovery responses for service. ·
$45.00- 03/10/23, Review and sign Case Management
Statement and Notice of Posting Jury Fees. ·
$90.00- 11/09/23, Draft results report re Demurrer.
·
$45.00 – 11/09/23, Review summary re results of
hearing on Defendant’s demurrer to complaint. ·
$440.00 – 11/19/24, Review Defendant’s ex parte
application and draft opposition. ·
$100.00 – 01/19/24, Meeting with staff to discuss
receipt of Defendant’s ex parte to dismiss case for failure to file amended
complaint/steps to take moving forward. ·
$50.00 – 01/22/24, Meeting with staff to discuss
status of deposition with Plaintiff. ·
$127.50 – 01/22/24, Prepare for ex parte to dismiss
entire action. ·
$297.50 – 01/22/24, Attend ex parte to dismiss
entire action. ·
$42.50 – 01/22/24, Draft/save results of ex parte
to dismiss entire action. ·
$85.00 – 01/23/24, Review summary re results of
hearing on Defendant’s ex parte application to dismiss entire action (second
hearing) ·
$382.50 – 01/24/24,
Attend hearing on ex parte to dismiss entire action (second hearing). ·
$50.00 – 02/05/24,
Meeting with staff to discuss Spanish translation needed at upcoming telephonic
deposition preparation with client. ·
$225.00 - 02/13/24, Draft notes from deposition of
plaintiff. ·
$50.00 – 02/29/24,
Meeting with staff to discuss upcoming telephonic preparation in advance of MSC ·
$127.50 – 03/04/24,
Preparation for hearing on osc as to status of SAC. ·
$50.00 – 03/05/24 –
Review summary re results of MSC. ·
$80.00 – 06/20/24,
Confer with KJ re OSC hearing ·
$100.00 – 06/20/24,
Meeting with staff to discuss receipt of Defendant’s non-opposition to demurrer
to Plaintiff’s complaint/steps to take moving forward. ·
$412.50 – 06/20/24,
Preparation for hearing on OSC on 06/21/24. ·
$262.50 – 06/21/24,
Preparation for hearing on OSC on 06/21/24. ·
$225.00 – 06/21/24,
Prep for and attend OSC for SAC and defendant’s Answer. ·
$80.00 – 06/25/24,
Review Court’s tentative ruling re demurrer. ·
$85.00 – 06/26/24,
Draf/save results of demurrer hearing. ·
$50.00 – 08/06/24,
Meeting to discuss hearing on Plaintiff’s MTC further discovery responses from
Defendant. ·
$50.00 – 09/30/24,
Meeting with staff to discuss hearing on Plaintiff’s MTC further discovery
responses from Defendant off calendar. ·
$50.00 – 11/04/24,
Meeting to discuss cancelling upcoming deposition of Plaintiff. ·
$50.00 – 11/05/24,
Meeting with staff, discuss rescheduling deposition of plaintiff. ·
$220.00 – 02/10/25 –
Review and audit time records. ·
$1,870.00 – 02/10/25
– Draft motion for attorney’s fees, costs, and expenses. ·
$550.00 – TBD,
Review and analyze Defendant’s Opposition to Motion for Attorney’s Fees, Costs
and Expenses (anticipated). ·
$1,650.00 – TBD,
Draft Reply to Opposition to Motion for Attorney’s Fees, Costs, and Expenses
(anticipated. ·
$275.00 – TBD,
Prepare for and appear at hearing on Motion for Attorney’s Fees, Costs and
Expenses (anticipated). ·
$42.50 – 12/1/22,
Review and sign Notice of CMC. COSTS As stated above, Plaintiff also seeks to
recoup costs in the amount of $3,653.30. “A
prevailing party who claims costs must serve and file the memorandum of costs
within 15 days after the date of service of the notice of entry of judgment or
dismissal by the clerk… or the date of service of written notice of entry of
judgment or dismissal, or within 180 days after entry of judgment, whichever is
first.” (CRC Rule 3.1700(a)(1).) “After the time has passed for a motion to
strike or tax costs or for determination of the motion, the clerk must
immediately enter the costs on the judgment.” (CRC Rule 3.1700(b)(4).) Plaintiff’s
Memorandum of Costs was filed on February 13, 2025. Although no Motion to
Tax/Strike Costs has been filed or scheduled, Defendant addresses Plaintiff’s
claimed costs in Opposition (which this Court can construe as a “Motion to
Strike Costs”). The Court awards reasonably incurred costs in the reduced
amount of $3,111.30. PLAINTIFF’S EVIDENTIARY OBJECTIONS Nos. 1-2. Sustained No 3. Overruled CONCLUSION Accordingly, the Court grants attorney
fees in the reduced, but reasonable, amount of $21,449.00, plus costs in the
amount sought of $3,111.30. Case Number: 23NWCV03289 Hearing Date: March 13, 2025 Dept: C
FLORES v. SAFECO
INSURANCE CASE
NO.: 23NWCV03289 HEARING: 03/13/25 #4 Plaintiffs TONIA and ALLEN FLORES’ Motion for
Evidentiary, Issue, and Monetary Sanctions is placed OFF-CALENDAR as MOOT. Moving party to give notice. A hearing on Plaintiff’s Motion to Deem Request for
Admissions Admitted was heard by Commissioner Paul Bruguera on February 5,
2025. At the February 5, 2025 hearing, Plaintiff did not appear. Counsel for
Defendant informed the Court that the matter had settled. Based on Counsel’s representations
to the Court, the Motion to Deem Request for Admissions Admitted was taken
off-calendar pursuant to the settlement. Based on
the apparent settlement of this action, Plaintiffs’ subject Motion for
Evidentiary, Issue, and Monetary Sanctions is placed OFF-CALENDAR as MOOT. As of March
7, 2025, no Notice of Settlement or Request for Dismissal has been filed. “If
an entire case is settled or otherwise disposed of, each plaintiff or other
party seeking affirmative relief must immediately file written notice of the
settlement or other disposition with the court and serve the notice on all
parties… involved in the case.” (CRC Rule 3.1385(a)(1).) “Except as provided in
(c) or (d), each plaintiff or other party seeking affirmative relief must serve
and file a request for dismissal of the entire case within 45 days after the
date of settlement of the case. If the plaintiff or other party required to
serve and file the request for dismissal does not do so, the court must dismiss
the entire case 45 days after it receives notice of settlement unless good
cause is shown why the case should not be dismissed.” (CRC Rule 3.1385(b).) Defendant
SAFECO INSURANCE is ORDERED to file a Notice of Settlement of this
Action within 10 days from the date of the Court’s issuance of this Order. “If a party
who has served and filed a notice of settlement under (a) determines that the
case cannot be dismissed within the prescribed 45 days, that party must serve
and file a notice and a supporting declaration advising the court of that
party’s inability to dismiss the case within the prescribed time, showing good
cause of for its inability to do so, and proposing an alternative date for
dismissal.” (CRC Rule 3.1385(e).) Case Number: 24NWCP00183 Hearing Date: March 13, 2025 Dept: C
AMICA MUTUAL INSURANCE
COMPANY v. RENALDI CASE
NO.: 24NWCP00183 HEARING:
03/13/25 #9 Petitioner
AMICA MUTUAL INSURANCE COMPANY’s Motion to Dismiss with Prejudice Respondent
RYAN RENALDI’s Underinsured Motorist Claim for Delay in Prosecution is DENIED.
Court
Clerk to give notice. No
Oppositions filed as of March 7, 2025. On
May 8, 2024, Petitioner AMICA MUTUAL INSURANCE COMPANY (“Petitioner”) filed a
Petition to Open a Superior Court File for the Purpose of Establishing Superior
Court Jurisdiction Over Uninsured Motorist Arbitration Matter. On
June 12, 2024, Petitioner filed the Subject Motion to Dismiss with Prejudice
Respondent RYAN RENALDI’s Underinsured Motorist Claim for Delay in Prosecution
(“Motion”), arguing that good cause exists to dismiss Respondents underinsured
motorist claim because Respondent has failed to bring his arbitration to
completion within 5 years of initiating proceedings. Petitioner indicates that
arbitration has been pending since 2017. Petitioner
now seeks an Order from this Court, to dismiss the underlying arbitration. Typically, when a court grants a petition to
arbitrate, it stays the underlying action, and “the action at law sits in the
twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over
matters submitted to arbitration. During that time, under its ‘vestigial’ jurisdiction, a court
may: appoint arbitrators if the method selected by the parties fails (§1281.6);
grant a provisional remedy ‘but only upon the ground that the award to which an
applicant may be entitled may be rendered ineffectual without provisional
relief (§1281.8, subd. (b)); and confirm, correct or vacate the arbitration
award. (§1285) Absent an agreement to withdraw the controversy from
arbitration, however, no other judicial act is authorized.” (Titan/Value
Equities Group, Inc. v. Sup. Ct. (1994) 29 Cal.App.4th 482, 487.) Here, there is no underlying action, and this
Court did not grant any petition to arbitrate ordering the parties to arbitrate
their dispute. Based on the evidence presented to this Court, the parties
stipulated to arbitrate the subject underinsured motorist dispute. It is
unclear what jurisdiction, if any, this Court has over a separate and ongoing
arbitration action. Even if this Court did “retain” vestigial jurisdiction over
the ongoing arbitration, this Court is not asked to do any of the three things
it is authorized to do while exercising its vestigial jurisdiction. The Court
lacks jurisdiction to grant the relief requested. Moving party is seemingly not
foreclosed from making this same motion before the arbitrator. The Motion is DENIED. Case Number: 24NWCPO0183 Hearing Date: March 13, 2025 Dept: C
AMICA MUTUAL INSURANCE
COMPANY v. RENALDI CASE
NO.: 24NWCP00183 HEARING:
03/13/25 #9 Petitioner
AMICA MUTUAL INSURANCE COMPANY’s Motion to Dismiss with Prejudice Respondent
RYAN RENALDI’s Underinsured Motorist Claim for Delay in Prosecution is DENIED.
Court
Clerk to give notice. No
Oppositions filed as of March 7, 2025. On
May 8, 2024, Petitioner AMICA MUTUAL INSURANCE COMPANY (“Petitioner”) filed a
Petition to Open a Superior Court File for the Purpose of Establishing Superior
Court Jurisdiction Over Uninsured Motorist Arbitration Matter. On
June 12, 2024, Petitioner filed the Subject Motion to Dismiss with Prejudice
Respondent RYAN RENALDI’s Underinsured Motorist Claim for Delay in Prosecution
(“Motion”), arguing that good cause exists to dismiss Respondents underinsured
motorist claim because Respondent has failed to bring his arbitration to
completion within 5 years of initiating proceedings. Petitioner indicates that
arbitration has been pending since 2017. Petitioner
now seeks an Order from this Court, to dismiss the underlying arbitration. Typically, when a court grants a petition to
arbitrate, it stays the underlying action, and “the action at law sits in the
twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over
matters submitted to arbitration. During that time, under its ‘vestigial’ jurisdiction, a court
may: appoint arbitrators if the method selected by the parties fails (§1281.6);
grant a provisional remedy ‘but only upon the ground that the award to which an
applicant may be entitled may be rendered ineffectual without provisional
relief (§1281.8, subd. (b)); and confirm, correct or vacate the arbitration
award. (§1285) Absent an agreement to withdraw the controversy from
arbitration, however, no other judicial act is authorized.” (Titan/Value
Equities Group, Inc. v. Sup. Ct. (1994) 29 Cal.App.4th 482, 487.) Here, there is no underlying action, and this
Court did not grant any petition to arbitrate ordering the parties to arbitrate
their dispute. Based on the evidence presented to this Court, the parties
stipulated to arbitrate the subject underinsured motorist dispute. It is
unclear what jurisdiction, if any, this Court has over a separate and ongoing
arbitration action. Even if this Court did “retain” vestigial jurisdiction over
the ongoing arbitration, this Court is not asked to do any of the three things
it is authorized to do while exercising its vestigial jurisdiction. The Court
lacks jurisdiction to grant the relief requested. Moving party is seemingly not
foreclosed from making this same motion before the arbitrator. The Motion is DENIED. Case Number: 24NWCV00212 Hearing Date: March 13, 2025 Dept: C
ARCHILA v. AMERICAN
HONDA MOTOR CO., INC. CASE
NO.: 24NWCV00212 HEARING: 03/13/25 #5
I.
Plaintiff’s Motion to Compel Further Responses to
Request for Production of Documents (set one) is CONTINUED to Thursday, May 8, 2025 at 9:30 a.m. in Dept. SE-C.
II.
Plaintiff’s Motion to Compel Deposition Attendance
of a Person Most Qualified and Custodian of Records is CONTINUED to Thursday, May
8, 2025 at 9:30 a.m. in Dept. SE-C. Moving party to give notice. This lemon law action
was filed on January 22, 2024. Trial is scheduled
for October 16, 2025. Based on the Court’s
docket, there is only one motion on calendar for March 13, 2025—Plaintiff’s
Motion to Compel Discovery (not “Further Discovery”). However, the papers filed
with this Court indicate that there should be two motions on calendar for March
13, 2025—neither of which is a Motion to Compel Discovery (not “Further
Discovery”). The Court acknowledges that Plaintiff filed two separate discovery
Motions, with two separate Reservation ID numbers: (1) Plaintiff’s Motion to
Compel Further Responses to Request for Production of Documents (set one)
(Reservation ID: 234442254598); and (2) Plaintiff’s Motion to Compel Deposition
Attendance of a Person Most Qualified and Custodian of Records (Reservation ID:
118629971061). Notwithstanding, only one motion is scheduled to be heard on
March 13, 2025. As of March 7, 2025,
Defendant has only filed an Opposition to Plaintiff’s Motion to Compel Further
Responses to Request for Production of Documents (set one). The Motion to Compel
Deposition Attendance of Defendant’s PMQ is unopposed as of March 7, 2025. In order to ensure
that the parties have proper notice of the motions to be heard, this hearing is
CONTINUED, and the following motions will be heard on the continued hearing
date indicated above: (1) Plaintiff’s Motion to Compel Further Responses to
Request for Production of Documents (set one); and (2) Plaintiff’s Motion to
Compel Deposition Attendance of Defendant’s PMQ. Further, Counsel are ORDERED
to make further efforts to resolve the issues presented. If, after exhausting
those efforts, court intervention is needed, counsel may appear and argue the
merits on the continued hearing date. If counsel are unable to informally
resolve their discovery disputes, then counsel are instructed to submit a JOINT
STATEMENT outlining the remaining disputed issues for which a ruling is
required. The joint statement must be FILED on or before Monday, April 28,
2025. In addition, Counsel are ORDERED to review the Case
Management Conference Order issued on January 6, 2024. The discovery issues
outlined in the Subject Motion may be moot. Case Number: 24NWCV00623 Hearing Date: March 13, 2025 Dept: C
VERDIA v. LEARA CASE NO.: 24NWCV00623 HEARING: 03/13/25 #10 Defendants NRK PROPERTY, LLC and ERNST & HASS MANAGEMENT
CO., INC.’s Demurrer to Plaintiff’s Complaint is OVERRULED. Opposing Party to give notice. This action was filed by Plaintiff ALVARO ORTIZ VERDIA
(“Plaintiff”) against Defendants DANIEL J. LEARA; NRK PROPERTY LLC; ERNST &
HAAS MANAGEMENT CO., INC.; and DOES 1 through 200, inclusive on February 28,
2024. Plaintiff alleges that Defendant Leara, while backing out of
a driveway in his truck, collided into Plaintiff and his electric scooter on
March 1, 2022. (Complaint ¶6.) The Complaint asserts the following causes of action: (1) Negligence;
(2) Premises
Liability Defendants NRK PROPERTY, LLC and ERNST & HASS MANAGEMENT
CO., INC. (collectively “Demurring Defendants”) generally demur to the second
cause of action. Second Cause of Action – Premises Liability The elements of a
cause of action for premises liability are the same as those for negligence;
duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC
(2014) 228 Cal.App.4th 664, 671.) To plead a claim for premises liability, a
plaintiff must allege: (1) defendant owned or controlled the subject property;
(2) defendant was negligent in the use or maintenance of the property; (3)
plaintiff was harmed; and (4) defendant’s negligence was a substantial factor
in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d
108.) A plaintiff must plead
that the defendant breached a duty of care owed to the plaintiff that
proximately caused injury and damages to establish a cause of action for
premises liability. “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.) Plaintiff alleges
that the “Premises… were owned, used, operated, controlled, administered,
inspected, monitored, overseen, possessed, constructed, designed, created,
improved, maintained, repaired, serviced, upkept, supervised, and/or managed by
[Demurring Defendants].” (Complaint ¶37.) “At and prior to the time Plaintiff
was injured, the Premises (including its surrounding walls, structures, common
areas and Driveway) posed a substantial risk of injury to adjoining sidewalk
users, such as the Plaintiff, because of the dangerous conditions of the
Premises and Driveway which included, but were not limited to, blind spots or
visual obstructions existing on the Premises and the Driveway that prevented
adjoining sidewalk users, such as Plaintiff, from adequately viewing motor
vehicles pulling out from the Driveway, and also prevented motorists exiting
the Driveway from adequately viewing approaching Sidewalk users, such as
Plaintiff.” (Complaint ¶38.) Plaintiff further alleges that the Demurring
Defendants had a duty to maintain the Premises, and that Defendants caused
Plaintiff’s harm. (Complaint ¶¶42-57). The Demurring
Defendants arguments in support of the Demurrer raise factual determinations
inappropriately decided at this stage in the litigation. Plaintiff’s
allegations, taken as true for purposes of ruling on a Demurrer, are
sufficient. The Demurrer is
OVERRULED. Request for
Judicial Notice Defendants’ Request for Judicial Notice is GRANTED as to the
location of the sidewalk, but not for the purpose of determining “that there
were no blind spots or obstructions to the Driveway at the time of the
incident.” (Dem. 9:4-5.) “We take judicial notice of a Google map and satellite
image as a ‘source[] whose accuracy cannot reasonably be questioned,’ at least
for the purpose for determining the general location….” (U.S. v. Perea-Rey
(9th Cir. 2012) 680 F.3d 1179, 1182, n. 1.) Judicial notice of the
existence/location of the sidewalk is not the same as determining
admissibility. There is no authentication that the RJN, Ex. 1 represents how
the subject sidewalk actually looked on March 1, 2022. Plaintiff’s Objection to Defendants’ Request for Judicial
Notice is OVERRULED. Case Number: 24NWCV02181 Hearing Date: March 13, 2025 Dept: C
SALGADO v. FCA US
LLC CASE NO.: 24NWCV02181 HEARING: 03/13/25 #12 Plaintiff RUDY SALGADO’s Motion to Compel Deposition
Attendance and Production of Documents by Defendant FCA US LLC’s Person Most
Qualified and Custodian of Records is GRANTED.
Moving Party to give notice. This lemon law action was filed by Plaintiff RUDY SALGADO
(“Plaintiff”) against Defendant FCA US LLC and DOES 1 through 10, inclusive on
July 17, 2024. Trial is scheduled for April 27, 2026. Plaintiff now moves to compel Defendant FCA US LLC
(“Defendant”) to produce its Person(s) Most Qualified and Custodian(s) of
Records to be deposed. Defendant’s Opposition was due by February 28, 2025, but was
untimely filed without leave of Court on March 6, 2025. (CCP §1005(b).) The
Untimely Opposition states: “Defense counsel admits that this matter has an
issue at inception that resulted in discovery responses not being served
timely, resulting in motions to compel (which responses were served immediately
after receipt of the motion. (Rafter Decl., ¶17) This present motion to compel
the deposition, as a result of the motions to compel discovery arriving at the
same time was not correctly calendared. [¶] Although Defendant had not
immediately offered alternative dates due to this mistake, Defendant has now
offered its next available deposition date for June 25, 2025. If this date is
not agreeable to Plaintiff, Defendant will make best efforts to provide the
next available amenable date.” (Opp. 3:26-4:5.) “FCA intends to produce a PMQ
in this matter on June 25, 2025, unless Plaintiff further objects to this
compliant date.” (Opp. 6:2-3.) Plaintiff’s Reply, if any, was due by March 6, 2025. (CCP
§1005(b).) As of March 7, 2025, no Reply has been filed. However, the Court
attributes the lack of Reply due to the untimeliness of Defendant’s Opposition.
“Pursuant to CCP §2025.450, if after service of a deposition
notice, a party to the action, without having served a valid objection, fails
to appear for examination, or proceed with it, or to produce for inspection any
document, the party giving notice may move for an order compelling the
deponent’s attendance and testimony, and the production for inspection of any
document. (CCP §2025.450(a).) The Notice of Deposition attached as Exhibit A to the
Declaration of Armando Lopez in Support of Plaintiff’s Motion seeks to compel
Defendant’s PMQ to testify on 26 Categories, and produce documents responsive
to 17 Requests for Production of Documents. As noted above, Defendant does not substantively oppose the
Motion. In fact, Defendant agrees to produce its PMQ on a mutually agreeable
date. The Motion is GRANTED.
Defendant is ORDERED to produce its PMQ to appear for a deposition by no
later than 30 calendar days from the date of the Court’s issuance of this
Order. Defendant is ORDERED Produce Records as noticed. This date may be
extended by agreement of the parties. Reasonable sanctions in the amount of $400.00 are GRANTED.
Defendant FCA US LLC and it’s counsel of record are ORDERED to pay Plaintiff
and his counsel of record sanctions in the amount of $400.00, within 90 days
from the date of the Court’s issuance of this Order. This date may be extended
by agreement of the parties. Case Number: 24NWCV03274 Hearing Date: March 13, 2025 Dept: C
JUMANI v. DOORDASH,
INC. CASE
NO.: 24NWCV03274 HEARING: 03/13/25 #6
I.
Defendant DOORDASH, INC.’s Demurrer to Plaintiff’s
Complaint is OVERRULED.
II.
Defendant DOORDASH, INC’s Motion to Strike Portions
of Plaintiff’s Complaint is GRANTED with 30 days leave to amend. Opposing
Party to give Notice. BACKGROUND
This
action was filed by Plaintiff ZAFARULLAH JUMANI (“Plaintiff”) against
Defendants DOORDASH, INC. (“Defendant”); DOE 1; and DOES 2 through 20,
inclusive on September 17, 2024. Plaintiff’s
Complaint alleges that “[t]his action arises out of a serious incident that
occurred on May 12, 2023… when Plaintiff… a diligent and law-abiding cashier at
7-Eleven store located at 12202 South Street, Artesia, California, suffered
significant injuries due to the conduct of a delivery driver employed by
Defendant DOORDASH, INC…. The driver, identified as DOE 1, engaged in conduct
that resulted in Plaintiff’s severe and physical emotional harm.” (Complaint
¶1.) Plaintiff alleges that “DOE 1 [] negligently entered a restricted area
behind the cashier’s counter, unlawfully seized delivery bags, and upon being
confronted by Plaintiff, forcefully pushed Plaintiff. As a direct result of DOE
1’s actions, Plaintiff fell, striking his head and back against a metal safe.
Plaintiff suffered significant injuries, including but not limited to disc
protrusions, head trauma, and ongoing emotional distress.” (Complaint ¶2.) Plaintiff’s
Complaint asserts the following causes of action: (1)
Negligence; (2)
Battery; (3)
Negligent Hiring, Retention, or Supervision; (4)
Negligent Infliction of Emotional Distress Defendant
generally demurs to Plaintiff’s first, second, third, and fourth causes of
action, and separately moves to strike Plaintiff’s claim for punitive damages. DEMURRER Defendant
demurs to each cause of action, arguing that, as pled, Doe 1’s intentional
misconduct goes beyond the scope of employment. Thus, Defendant maintains that
it cannot be held vicariously liable for the first through fourth causes of
action. As
a general rule, each person has a duty to use ordinary care and “is liable for
injuries caused by his failure to exercise reasonable care in the
circumstances….” (Rowland v. Christian (1968) 69 Cal.2d 108, 112.)
“Courts, however, have invoked the concept of duty to limit generally ‘the
otherwise potentially infinite liability which would follow from every
negligent act….’” (Billy v. Arthur Young & Co. (1992) 3 Cal.4th 370,
397.) Whether a legal care exists “is a question of law to be determined on a
case-by-case basis.” (Parsons v. Crown Disposal Co., (1997) 15 Cal. 4th
456, 472.) This determination calls for a balancing of the Rowland factors,
which include the “foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the moral blame
attached to the defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the community of
imposing a duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk involved.” (Ann
M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5.) In
determining whether a duty exists, the Court’s task “is not to decide whether a
particular plaintiff’s injury was reasonably foreseeable in light of a
particular defendant’s conduct, but rather to evaluate more generally whether
the category of negligent conduct at issue is sufficiently likely to result in
the kind of harm experienced that liability may appropriately be imposed on the
negligent party.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6,) First
and Third Causes of Action – Negligence and Negligent Hiring, Retention, or
Supervision “The
elements for a cause of action for negligence are duty, breach, causation, and
damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) “An
employer may be liable to a third person for the employer’s negligence in
hiring or retaining an employee who is incompetent or unfit, [Citation.]” (Roman
Catholic Bishop v. Sup. Ct. (1996) 42 Cal.App.4th 1556, 1564-1565.)
Liability for negligence will be imposed upon an employer if it “knew or should
have known that hiring the employee created a particular risk or hazard and
that particular harm materializes.” (Doe v. Capital Cities (1996) 50
Cal.App.4th 1038, 1054.) “Liability for negligent… retention of an employee is
one of direct liability for negligence, not vicarious liability. [Citation.]” (Delfino
v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) Plaintiff
alleges that “DoorDash knew or should have known that DOE 1 posed a particular risk to members of the
public, including Plaintiff, due to his unfitness, lack of training, or prior
conduct. Despite this knowledge, Defendant DoorDash negligently hired,
retained, and failed to supervise DOE 1….” (Complaint ¶12.) “DoorDash owed a
duty of care to Plaintiff and the general public to ensure that its delivery
drivers, including DOE 1, were properly vetted, trained, and supervised to
prevent foreseeable harm…. [¶] Defendant DoorDash breached this duty by
negligently hiring, retaining, and supervising DOE 1, who was unfit for his
role and whose conduct created a foreseeable risk of harm to others” (Complaint
¶¶13-14.) Plaintiff alleges that Defendant’s actions were a proximate cause of
Plaintiff’s injuries and damages. (Complaint ¶¶19-20; see also ¶¶27-30.) Plaintiff
has sufficiently pled facts to withstand demurrer. The demurrer to the first and
third causes of action is OVERRULED. Second
Cause of Action – Battery “The
essential elements of a cause of action for battery are: (1) defendant touched
plaintiff, or caused plaintiff to be touched, with the intent to harm or offend
plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was
harmed or offended by defendant’s conduct; and (4) a reasonable person in
plaintiff’s position would have been offended by the touching.” (So v. Shin
(2013) 212 Cal.App.4th 652, 669). “The
rule of respondeat superior is familiar and simply stated: an employer is
vicariously liable for the acts of its employees committed within the scope of
the employment. [Cite.] Equally well established…is the principle that an
employee’s willful, malicious and even criminal torts may fall within the scope
of his or her employment for purposes of respondeat superior even though the
employer has not authorized the employee to commit crimes or intentional torts.
[Citations.]” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12
Cal.4th 291, 296-297.) “Ordinarily, the determination whether an employee has
acted within the scope of employment presents a question of fact; it becomes a
question of law, however, when the facts are undisputed and no conflicting
inferences are possible.” (Id. at 299.) Indeed, respondeat superior
analysis is fact specific. (Farmers Ins. Group v. County of Santa Clara
(1995) 11 Cal.4th 992, 1019; Mary M. v. City of Los Angeles (1991) 54
Cal.3d 202, 213.) The jury is typically entrusted with the respondeat superior
analysis. (Mary M., 54 Cal.3d at 221.) Plaintiff
alleges “DOE 1, while acting within the course and scope of his employment with
Defendant DoorDash, intentionally made physical contact with Plaintiff by
pushing him on the chest.” (Complaint ¶22.) These
allegations are sufficient to withstand demurrer. The demurrer to the second
cause of action is OVERRULED. Fourth
Cause of Action – Negligent Infliction of Emotional Distress To
plead NIED, negligence must be established. There are two classifications for
NIED claims: (1) bystander; and (2) direct victim. (See Spates v. Dameron
Hospital Assn. (2003) 114 Cal.App.4th 208, 213.) Plaintiff
appears to be proceeding under the “direct victim” theory only. “Direct victim
cases are cases in which the plaintiff’s claim of emotional distress is not
based upon witnessing an injury to someone else, but rather is based upon the
violation of a duty owed directly to the plaintiff.” (Wooden v. Raveling
(1998) 61 Cal.App.4th 1035, 1038.) “[D]uty is found where the plaintiff is a
direct victim in that the emotional distress damages result from a duty owed
the plaintiff that is assumed by the defendant or imposed on the defendant as a
matter of law, or that arises out of a relationship between the two.” (McMahon
v. Craig (2009) 176 Cal.App.4th 222, 230.) Here,
Plaintiff sufficiently alleges that “Defendants… owed Plaintiff a duty of care
to avoid causing emotional distress through their negligent conduct. This duty
included taking reasonable steps to prevent foreseeable emotional distress
resulting from physical injury caused by their actions or the actions of those
under their control. [¶] Defendants… breached this duty by negligently allowing
DOE 1 to engage in conduct that caused Plaintiff to suffer severe physical and
emotional injuries, including head trauma, severe pain, and significant
emotional distress.” (Complaint ¶¶33-34.) Plaintiff’s
allegations, taken as true at this stage in the litigation, are sufficient to
withstand demurrer. The demurrer to the fourth cause of action is OVERRULED. MOTION
TO STRIKE Defendant
moves to strike Plaintiff’s allegations of punitive damages in the Complaint
directed against Defendant DoorDash, Inc. A
motion to strike lies either when (1) there is “irrelevant, false or improper
matter inserted in any pleading”; or (2) to strike any pleading or part thereof
“not drawn or filed in conformity with the laws of this state, a court rule or
order of court.” (CCP §436.) Punitive damages must be pled with
specificity. Plaintiff must allege specific facts showing that the defendant’s
conduct was oppressive, fraudulent, or malicious. (Smith v. Sup. Ct.
(1992) 10 Cal.App.4th 1033, 1041-42.) “In an action for the breach of an
obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages
for the sake of example and by way of punishing the defendant.” (Cal. Civ. Code
§3294(a).) “An employer shall not be liable for damages pursuant to subdivision
(a) based upon acts of an employee of the employer, unless the employer had
advance knowledge of the unfitness of the employee and employed him or her with
a conscious disregard of the rights or safety of others or authorized or
ratified the wrongful conduct for which the damages are awarded or was
personally guilty of oppression, fraud, or malice.” (Cal. Civ. Code §3294(b).)
“With respect to a corporate employer, the advance knowledge and conscious
disregard, authorization, ratification or act of oppression, fraud, or malice
must be on the part of an officer, director, or managing agent of the
corporation.” (Cal. Civ. Code §3294(b).) The Court’s review of the Complaint
did not identify any specific factual allegations that support an inference of
oppression, fraud, or malice; or conscious disregard, authorization, or
ratification on the part of the Demurring Defendant. The Motion to Strike punitive
damages is GRANTED with 30 days leave to amend. |
DEPARTMENT C LAW AND MOTION RULINGS
Case Number: 21STCV29691 Hearing Date: March 12, 2025 Dept: C
Defendant MAERSK Warehousing & Distribution Services U.S.A. LLC’s motion for summary judgment is DENIED. Moving party to give notice. Defendant MAERSK Warehousing & Distribution Services U.S.A. LLC moves for summary judgment against Plaintiff Eduardo Hernandez’s complaint. Background On August 11, 2021, Plaintiff Eduardo Hernandez (Plaintiff) filed this personal injury action against Simplified Labor Staffing Solutions, Inc. (Simplified), MAERSK, SG, MAERSK, Inc., MAERSK Line Limited, MAERSK Agency, Inc., and Does 1-100. Plaintiff alleges three causes of action: (1) negligence, (2) negligence per se, and (3) premises liability. This action arises out of injuries sustained in a warehouse located at 5039 Firestone Place, Southgate, CA (Subject Warehouse) while Plaintiff was employed by Simplified and contracted through his employer by MAERSK SG. (Complaint, ¶ 10.) Plaintiff alleges that he sustained injuries when a metal ramp guided by a home-made jerry-rigged device crashed on to a metal dock where Plaintiff stood. (Complaint, ¶¶ 11-13.) On October 12, 2023, Plaintiff amended the complaint to replace Doe 1 with Defendant Damco Distribution Services, Inc. (DDSI). On January 19, 2024, Plaintiff amended the complaint to replace Doe 4 with MAERSK Warehousing & Distribution Services, USA, LLC (MWDS). On February 5, 2024, Plaintiff dismissed Simplified without prejudice. On April 10, 2024, after receiving Defendant Damco Distribution Services, Inc.’s discovery responses, Plaintiff discovered Econo’s involvement. On August 22, 2024, Plaintiff amended the complaint to replace Doe 5 with Econo. Undisputed Material Facts Plaintiff was employed by Simplified between November 2018 to April 30, 2019. (UMF, ¶ 2.) In 2017, Simplified entered into a Temporary Service Agreement with DDSI to provide personnel to work at the Subject Warehouse. (UMF, ¶¶ 7-8.) Pursuant to the Temporary Service Agreement, Simplified provided workers’ compensation coverage which covered Plaintiff. (UMF, ¶ 9.) On April 30, 2019, Plaintiff sustained injuries at the Subject Warehouse which was operated by DDSI. (UMF, ¶¶ 3-4.) After being directed by a Simplified co-worker to raise a dock bridge plate, Plaintiff raised it, it got stuck, and it dropped hard enough to jolt him into the air. (UMF, ¶¶ 5-6.) Plaintiff asserted a claim and received benefits for workers’ compensation against Simplified. (UMF, ¶ 12.) At the time of the incident, MWDS did not own or control the warehouse and did not employ or control individuals working at the Warehouse. (UMF, ¶ 17.) MWDS owned or controlled the equipment involved in the incident. (UMF, ¶ 17.) As of January 1, 2023, DDSI merged into MWDS and out of existence. (UMF, ¶ 18.) Legal Standard The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c subd. (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) In moving for summary judgment, a defendant has the “burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc. § 437c subd. (p)(2).) Once a moving party has satisfied the initial burden of proof, the burden “shifts to the opposing party to show, by responsive separate statement and admissible evidence, that triable issues of fact exist.” (Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal.App.4th 1411, 1418, disapproved on other grounds by Black Sky Cap., LLC v. Cobb (2019) 7 Cal.5th 156, 165. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Summary judgment must be granted “if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) Discussion MWDS moves for summary judgement against Plaintiff’s complaint on the grounds that (1) MDWS did not owe a duty to Plaintiff and (2) to the extent Plaintiff’s claims are based on the fact that MWDS is DDSI’s successor-in-interest, no liability to Plaintiff exists in the first place. Negligence In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) MWDS argues that it did not owe Plaintiff a duty of care because it did not have any ties to the Subject Warehouse nor the individuals working there. It is undisputed that at the time of the incident, MWDS did not own or control the warehouse and did not employ or control individuals working at the Warehouse. (UMF, ¶ 17.) DDSI’s Immunity from Civil Liability MWDS further argues that Plaintiff cannot establish a claim against MWDS as successor in interest of DDSI because DDSI was immune from civil liability for Plaintiff damages. It is undisputed that as of January 1, 2023, DDSI merged into MWDS and ceased its existence. (UMF, ¶ 18.) “Upon merger…the separate existence of the disappearing corporations ceases and the surviving corporation shall succeed, without other transfer, to all the rights and property of each of the disappearing corporations and shall be subject to all the debts and liabilities of each in the same manner as if the surviving corporation had itself incurred them.” (Corp. Code § 1107 subd. (a).) Here, given that MWDS assumed DDSI’s liabilities, the Court will assess whether DDSI has immune from liability, thereby passing no civil liabilities to MWDS upon merger. Workers’ Compensation Act MWDS argues that Plaintiff’s exclusive remedy was under the Workers’ Compensation Act (WCA). MWDS thus argues that, under Labor Code Section 3602, subdivision (d)(2), neither Simplified nor DDSI may be held liable for Plaintiff’s work-related injuries because Plaintiff was a loaned employee covered by Simplified’s workers’ compensation benefits under the Temporary Services Agreement. Labor Code section 3600 subd. (a) provides that liability for workers’ compensation exists “in lieu of any other liability whatsoever to any person … without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment.” The right to recover based on the conditions of compensation in Section 3600 is “the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer. (Lab. Code § 3602 subd. (a).) Moreover, “an employer may secure the payment of compensation on employees provided to it by agreement by another employer by entering into a valid and enforceable agreement with that other employer under which the other employer agrees to obtain, and has, in fact, obtained workers' compensation coverage for those employees. In those cases, both employers shall be considered to have secured the payment of compensation.” (Lab. Code § 3602 subd. (d)(1).) “Employers who have complied with this subdivision shall not be subject to civil, criminal, or other penalties for failure to provide workers' compensation coverage or tort liability in the event of employee injury.” (Lab. Code § 3602 subd. (d)(2).) It is undisputed that DDSI and Simplified entered into the Temporary Service Agreement and that Plaintiff asserted a claim and received benefits for workers’ compensation against Simplified. (UMF, ¶¶ 9,12.) MWDS provides Plaintiff’s response to Form Interrogatories, set one, in which Plaintiff states he made a worker’s compensation claim against Simplified for the injuries arising out of the Subject Warehouse. (Stea Decl., Exh. B, FROG 11.1.) Therefore, MWDS establishes a complete defense to the causes of action pursuant to the WCA. Special Employment Doctrine MWDS next argues that DDSI was immune from civil liability under the Special Employment Doctrine. “When an employer lends an employee to another employer and relinquishes to the borrowing employer some right of control over the employee's activities, a ‘special employment relationship’ arises between the borrowing employer and the employee. ‘Once a special employment is identified, two consequences ensue: (1) the special employer's liability for workers' compensation coverage to the employee, and (2) the employer's [and its other employees'] immunity from a common law tort action, the latter consequence flowing from the exclusivity of the compensation remedy embodied in Labor Code section 3601.’” (Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 888, internal citations omitted.) The primary consideration in whether a special employment relationship exists is whether the special employer has “‘[t]he right to control and direct the activities of the alleged employee or the manner and method in which the worker is performed.’” (Id. at 888-89.) “The decision turns on ‘(1) whether the borrowing employer's control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employer's work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated [its] relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee and (9) whether the borrowing employer had the obligation to pay the employee.’” (Id. at 889.) Factors that negate the relationship include “situations in which ‘[t]he employee is (1) not paid by and cannot be discharged by the borrower, (2) a skilled worker with substantial control over operational details, (3) not engaged in the borrower's usual business, (4) employed for only a brief period of time, and (5) using tools and equipment furnished by the lending employer.’” (Ibid.) It is undisputed that Plaintiff was employed by Simplified and injured while working at the Subject Warehouse owned by DDSI. (UMF, ¶¶ 2, 4.) It is also undisputed that the Simplified provided DDSI with personnel to work at the Subject Warehouse pursuant to the Temporary Service Agreement. (UMF, ¶ 8.) MWDS provides the declaration of Jose Martinez, an Operations Manager of MWDS. Jose Martinez states that DDSI always had the right to direct the Simplified workers on how they should perform the work. (Stea Decl., ¶ 6; Exh. D, Martinez Decl. ¶ 3.) Martinez additionally stated that DDSI had the right to disallow a Simplified worker from returning to work for DDSI and DDSI provided the premises, tools, and equipment to the Simplified workers. (Stea Decl., ¶ 6; Exh. D, Martinez Decl. ¶¶ 3-4.) Accordingly, MWDS establishes a complete defense from civil liability based on the Special Employment Doctrine. The burden therefore shifts to Plaintiff to show that triable issues of material fact exist. In opposition, Plaintiff argues that a triable issue of material fact exists with respect to the merger between DDSI and MWDS. Plaintiff also argues that DDSI is not immune from civil liability and Plaintiff was not a Special Employee. Negligence Plaintiff argues that the terms of DDSI and MWDS’s merger make it clear that MWDS assumes DDSI’s liabilities. Plaintiff provides the Certificate of Merger between MWDS and DDSI and Agreement and Plan of Merger which states: At and after the Effective Date of the Merger…all debts, liabilities and duties of the respective Constituent Companies shall thenceforth attach to the Surviving Company and may be enforced against it to the same extent as if such debts, liabilities and duties had been incurred or contracted by it; (McElfish Decl., ¶ 14; Exh. L, Agreement subd. (b).) In reply, MWDS contends that this is undisputed and acknowledged in MWDS’s moving papers, but nonetheless, DDSI is not liable because DDSI is immune from civil liability. DDSI’s Civil Liability Plaintiff argues that DDSI was not immune from liability because Plaintiff was not a special employee. Plaintiff argues Simplified never relinquished supervision and control to DDSI such that DDSI was a “special employer.” Plaintiff maintains that Simplified is a temporary staffing firm which provides labor to businesses like DDSI, but Simplified exclusively retains control over the manner of work. Plaintiff offers the following evidence in support: - Pursuant to the terms of Temporary Service Agreement between Simplified and DDSI, DDSI did not have the right to, nor did they at any time, terminate Simplified workers, or control, supervise, or direct the work and activities of the Simplified workers—including Plaintiff. (McElfish Decl., ¶ 9, Exh. G, Sections 2.2, 2.4, 7.1; AMF Nos. 49-61, McElfish Decl., ¶ 7, Exh. E.) - CEO of Simplified Ash Wahi testified at his deposition on November 13, 2024 that the TSA was binding on DDSI on the date of the accident and that Plaintiff was only a Simplified employee and not a DDSI employee under any circumstances. (McElfish Decl., ¶ 7, Exh. E.) - Tools and equipment were supplied to Plaintiff and all Simplified workers, by their employer, Simplified, not DDSI. (McElfish Decl., ¶¶ 3-4, Exhs. A-B; McElfish Decl., ¶ 4, Exh. B.) - Plaintiff was not supervised or controlled by DDSI, as indicated by DDSI’s responses to Requests for Admissions and Special Interrogatories. (McElfish Decl. ¶¶ 5-6, 8, Exhs. C, D, F.)- Plaintiff’s testimony indicates he was supervised only by Simplified. (McElfish Decl., ¶ 4, Exh. B.) - Ash Wahi testified at his deposition on November 13, 2024 that Simplified had managers on site at the Subject Warehouses to manage and supervise Simplified employees. (Plaintiff’s Compendium, Exh. E.) Based on the foregoing, Plaintiff provides controverting evidence based on the factors enumerated in Caso v. Nimrod Productions, Inc. In reply, MWDS also points to the deposition of Ashish Wahi in which he states “[i]f there is an employee that is working at a Maersk facility and is not performing to the requirements of Maersk supervisors and managers, or are not following our guidelines, our agency managers, supervisors are responsible…” (McElfish Decl., ¶ 7, Exh. E.) This evidence is both in conflict and weighs toward both parties by presenting that both DDSI and Simplified held some control over the Simplified employees. The Court finds Plaintiff has provided sufficient evidence to raise a triable issue of material fact as to whether DDSI is a “special employer.” The Court finds a jury is better suited to weigh the factors in favor of and against finding whether DDSI exercised control over Plaintiff’s work, such that it was Plaintiff’s special employer. Workers Compensation Act Plaintiff argues that the WCA does not apply in this case and therefore cannot stand as a defense. In opposition, Plaintiff asserts that “Labor Code §3602(d), specifically discusses situations where two employers, through an agreement, agree they are both employers and that the worker’s compensation benefits would apply to them both, but that is not the case here.” (Opp., 11:2-5.) Plaintiff asserts that the evidence shows DDSI was never Plaintiff’s employer—it never possessed the right to control the work of Plaintiff or other Simplified employees. Labor Code section 3602, subd. (d) provides “that a special employer may enter into an agreement with a general employer under which the latter agrees to obtain, and in fact obtains, coverage for the special employees.” (Travelers Property Casualty Co. of America v. Workers’ Comp Appeals Bd. (2019) 40 Cal.App.5th 728, 732.) Here, while it is undisputed that Simplified provides workers compensation to Plaintiff as a Simplified employee, there is a triable fact as to whether there was a special employment relationship. In reply, MWDS argues that Labor Code section 3602 subd. (d) does not require any showing of control because it solely arises out of contract. (Reply, 3:22-27.) MWDS cites InfiNet Marketing Services, Inc. v. American Motorist Ins. Co. (2007) 150 Cal. App. 4th 168, 171 for this proposition. However, InfiNet is distinguishable as it concerns the rights of insurers as third-party beneficiaries in a declaratory relief action. (Id. at 180.) However, in Santa Cruz Poultry, the Court states the opposite. The Court in Santa Cruz Poultry found that given the trial court’s finding of supervision and control, a special relationship exists rendering a defendant immune to a negligence action. (Id. at 584.) The Court reasoned “whether there is control may indeed be a question of fact, but if it exists, then the special relationship normally follows as a matter of law.” (Id. at 579.) The Court therefore agrees with Plaintiff. MWDS assumes that DDSI was Plaintiff’s employer, which is an essential element for Labor Code section 3602, subd. (d). Yet as discussed under the previous section, the Court finds Plaintiff has offered ample evidence creating triable issue of fact as to whether DDSI was a “special employer.” MWDS thus cannot establish as a matter of law that DDSI was Plaintiff’s employer for purposes of Labor Code section 3602, subd. (d). The Court thus finds MWDS has failed to meet its burden as to asserting immunity through DDSI under the WCA. Accordingly, Defendant MAERSK Warehousing & Distribution Services U.S.A. LLC’s motion for summary judgment is DENIED. Case Number: 22NWCV00688 Hearing Date: March 12, 2025 Dept: C
TENTATIVE ORDER I. Plaintiffs Optima Energy, Inc. and Planet Optima, JV’s motion to compel further responses to requests for production, set one, is GRANTED against Defendant Foresee Consulting, LLC. II. Plaintiffs’ motion to compel further responses to requests for production, set one, is GRANTED against Defendant Hurk DNC, Inc. III. Plaintiffs’ motion to compel further responses to requests for production, set one, is GRANTED against Erik Youl Hur. IV. Plaintiffs’ request for monetary sanctions against Defendants Foresee Consulting, LLC, Hurk DNC, Inc., and Erik Youl Hur is GRANTED in the reduced amount of $3,358.80. Moving party to give notice. Plaintiffs Optima Energy, Inc. and Planet Optima, JV (collectively, Plaintiffs) move to compel (1) Defendant Foresee Consulting, LLC (Foresee) to produce further written responses to Plaintiffs’ Request for Production of Documents (RPDs), set one, nos. 4, 5; (2) Defendant Hurk DNC, Inc. (Hurk) to produce further written responses to Plaintiffs RPDs, set one, nos. 4, 5; and (3) Defendant Erik Youl Hur (Hur) to produce further written responses to RPDs, set one, nos. 10, 12. Background This is a fraud action. On August 8, 2022, Plaintiffs filed this action against Defendants Christopher Choi, Seong Hee Choi, Erik Youl Hur, Ryan Park, Foresee Consulting, LLC, and Hurk DNC. On February 21, 2023, Plaintiffs filed the First Amended Complaint (FAC). The FAC alleges that Defendants Christopher Choi, Seong Hee Choi, and Ryan Park were employed by Plaintiff Optima Energy, Inc. and engaged in a fraudulent scheme to enrich Hurk, owned by Hur, and Foresee, owned by Defendant Christopher Choi, among other competing companies. The FAC alleges the following causes of action: 1) Intentional Misrepresentation; 2) Negligent Misrepresentation; 3) Conversion; 4) Misappropriation; 5) Breach of Employment Contract; 6) Breach of Implied Covenant of Good Faith and Fair Dealing; 7) Fraudulent Concealment; 8) Negligence; 9) Violation of Business and Professions Code Section 17200, et seq.; 10) Intentional Interference of Prospective Economic Advantage; 11) Negligent Interference of Prospective Economic Advantage; 12) Violation Of California Uniform Trade Secrets Act; and 13) Promissory Fraud. Legal Standard Under Code of Civil Procedure section 2031.310 subd. (a), “[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand” if the demanding party finds: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. The motion “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc. § 2031.310 subd. (b).) Meet and Confer A motion compelling further response to a demand “shall be accompanied by a meet and confer declaration under Section 2016.04.” (Code Civ. Proc. § 2031.310 subd. (b)(2).) A meet and confer declaration “shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. § 2016.40.) Here, the parties have adequately met and conferred. (Kassabian Decl., ¶¶ 10-16.) Timeliness Notice of the motion to compel further must be provided within 45 days of service of the response or on or before any specific later date to which the parties have agreed. (Code Civ. Proc. § 2031.310 subd. (c).) This 45-day deadline runs from the date the verified response is served and is extended for service by mail in accordance with Code of Civil Procedure sections 1010.6, subd. (a)(4) and 1013 subd. (a). Failure to timely move to compel within the specified period constitutes a waiver of any right to compel a further response. (Code Civ. Proc. § 2031.310 subd. (c).) The 45-day rule to bring a motion to compel is mandatory and jurisdictional “in the sense that it renders court without authority to rule on motions to compel other than to deny them.” (Sexton v. Super. Ct. (1997) 58 Cal.App.4th 1403, 1410.) Plaintiffs’ motions are timely. On September 29, 2023, Plaintiffs served its RPDs on Hur. (Kassabian Decl., ¶ 3.) Plaintiffs served Hurk and Foresee October 12, 2023. (Kassabian Decl., ¶ 4.) Plaintiffs granted Hur an extension on the condition that Hur’s objections were waived. (Kassabian Decl., ¶ 6.) On November 5, 2023, defense counsel served all defendants’ responses. (Kassabian Decls., ¶ 7.) Three defendants made supplemental responses on April 14, 2024, and Foresee made supplemental responses up until May 6, 2024. (Kassabian Decl., ¶¶ 14, 16.) Plaintiffs filed the instant motions on June 11, 2024. Accordingly, these motions are timely. Discussion Plaintiffs move to compel (1) Foresee to produce further written responses to RPDs, set one, nos. 4, 5; (2) Hurk to produce further written responses to Plaintiffs’ RPDs, set one, nos. 4, 5; and (3) Hur to produce further written responses to RPDs, set one, nos. 10, 12. Plaintiffs argue good cause exists to compel further responses because responses are relevant to demonstrating whether all defendants were unjustly enriched at Plaintiffs’ expense. Further, responses would demonstrate whether Defendants’ affirmative defenses for Full Performance and Failure of Consideration have merit. RPDs, set one, nos. 4 and 5 Plaintiffs move to compel further responses by Foresee and Hurk to RPDs, set one, nos. 4 and 5. They are reproduced as follows: REQUEST FOR PRODUCTION No. 4 ALL DOCUMENTS RELATING TO bank accounts, credit lines, or financial instruments used by YOU, including the names of the financial institutions, account numbers, balances, and commissions associated with transactions from known parties. REQUEST FOR PRODUCTION No. 5 ALL DOCUMENTS RELATING TO all assets owned or controlled by YOU, including real estate, vehicles, inventory, intellectual property, or any other valuable possessions from January 1, 2020 to present. (Separate Statement, p. 4-5.) In their initial responses, Foresee and Hurk both stated “[a]fter a diligent search and reasonable inquiry, the responding party is unable to comply because the requested items never existed (CCP § 2031.230).” In their three subsequent supplemental responses, Foresee and Hurk stated “[p]lease see the attached Exhibit 1. However, since the discovery is on-going, the responding party reserves the right to amend this response.” Plaintiffs argue that Foresee and Hurk’s responses are inadequate, incomplete, and/or evasive. As to RPD, set one, no. 4, Plaintiffs argue that the responses are incomplete because Foresee and Hurk have provided bank statements between October of 2021 until March 2022. As to RPD, set one, no. 5, Plaintiffs argue the responses are incomplete. For example, Plaintiffs argue the bank statements reveal gas station purchases, however, the responses to RPD, set one, no. 5, do not indicate that Hurk or Foresee own or control any vehicles. In opposition, Foresee and Hurk argue that Plaintiffs have failed to meet and confer and are harassing defendants. However, Plaintiffs’ counsel’s declaration provides evidence of multiple meet and confer correspondence with defense counsel. (Kassabian Decl., ¶¶ 10-16.) Code of Civil Procedure section 2031.230 states the following: “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” The Court finds further responses are warranted where the supplemental responses provided partial responsive documents but also state that no responsive documents exist. The Court does not find Foresee and Hurk’s arguments persuasive that some bank statements for the period between October of 2021 until March 2022 exist, but other bank statements within the requested one year period do not exist because the defendants have not provided evidence. Further, the lack of responses to RPD, set one, no. 5 contradicts the portion of bank statements Hurk and Foresee produced in discovery. Moreover, Hurk and Foresee’s responses are not Code-compliant because they fail to provide a statement setting forth the name and addresses of persons or organizations known “to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.)Accordingly, Plaintiff’s motions to compel further responses to requests for production of documents from Hurk and Foresee is GRANTED. Defendants Foresee Consulting, LLC and Hurk DNC, Inc. are ORDERED to explain these discrepancies with such specificity required by Code of Civil Procedure section 2031.230 within 20 days of this Order. RPDs, set one, nos. 10 and 12 Plaintiffs move to compel further responses from Hur as to RFPs, set one, nos. 10 and 12. They are reproduced as follows: REQUEST FOR PRODUCTION No. 10 ALL DOCUMENTS RELATING TO bank accounts, credit lines, or financial instruments used by DEFENDANT, including the names of the financial institutions, account numbers, balances, and commissions associated with transactions from known parties. REQUEST FOR PRODUCTION No. 12 ALL DOCUMENTS RELATING TO all assets owned or controlled by DEFENDANT, including real estate, vehicles, inventory, intellectual property, or any other valuable possessions (Separate Statement, p. 4-5.) Here, Hur made nearly identical responses as Hurk and Foresee as assessed above. In opposition, Hur also argues that Plaintiffs failed to meet and confer and brought these motions to harass Hur. Plaintiffs argue Hur failed to provide complete bank statements because Hur provides some bank statements between the period of October of 2021 to March of 2022. Additionally, Plaintiffs argue Hur’s bank statements in response to RPF, set one, no. 10 refer to an Audi vehicle, however, Hur’s responses to RFP, set one, no. 12 do not provide the requested details on these assets. The Court therefore finds Hur’s responses to be both contradictory and incomplete. Additionally, Hur’s responses are not Code-compliant because the responses fail to provide a statement setting forth the name and addresses of persons or organizations known “to have possession, custody, or control of that item or category of item.” (Code Civ. Proc. § 2031.230.) Based on the foregoing, Plaintiffs’ motion to compel further responses to requests for production from Defendant Erik Youl Hur is GRANTED. Defendant Erik Youl Hur is ORDERED to explain these discrepancies with such specificity required by Code of Civil Procedure section 2031.230 within 20 days of this Order. Sanctions Plaintiffs’ counsel requests monetary sanctions against Hurk, Foresee, and Hur and/or their counsel of record pursuant to Code of Civil Procedure sections 2023.010, subd. (e) through (h) and 2023.030. (a). “Except as provided in subdivision (j), the court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2031.310 subd. (h).) Here, the Court finds sanctions warranted under Code of Civil Procedure section 2023.010 subd. (f) because Hurk, Foresee, and Hur made evasive responses to discovery and under Code of Civil Procedure section 2031.310 subd. (h). Plaintiffs request $6,717.60. This amount reflects Plaintiffs’ counsel’s firm’s $450 hourly rate for partners and $400 hourly rate for associates and the hours spent working on these three motions. (Kassabian Decl., ¶ 17.) Plaintiffs’ counsel, an associate, spent 5 hours drafting these motions and anticipates 4 hours of work to review oppositions and draft replies. (Kassabian Decl., ¶ 17.) Plaintiffs’ counsel, a partner, spent 1.5 hours reviewing these motions, anticipates 2 hours reviewing the reply, and anticipates 3 hours attending the hearing. (Kassabian Decl., ¶ 17.) Additionally, this amount includes the filing fees of $64.20 to file these motions. (Kassabian Decl., ¶ 17.) Here, given the similarities between the three motions and their replies, the Court reduces the amount of sanctions by half. Accordingly, Plaintiffs’ request for monetary sanctions against Defendants Foresee Consulting, LLC, Hurk DNC, Inc., and Erik Youl Hur is GRANTED in the reduced amount of $3,358.80. Defendants Foresee Consulting, LLC, Hurk DNC, Inc., and Erik Youl Hur are ORDERED to pay this amount within 30 days of this Order. Case Number: 22NWCV01650 Hearing Date: March 12, 2025 Dept: C
I. Plaintiff Natalie Ramos’s motion for a protective order excluding Defendant’s expert Michael Nicholas from attending the deposition of Plaintiff’s expert Jon D. Sand is GRANTED. II. Plaintiff’s request for monetary sanctions is DENIED. Moving party to give notice. Plaintiff Natalie Ramos (Plaintiff) moves for a protective order excluding Defendant Los Angeles Unified School District’s (Defendant) expert, Michael Nicholas (Nicholas), from the deposition of Plaintiff’s expert, Jon D. Sand (Sand). Background This is a premises liability action. On December 19, 2022, Plaintiff filed a complaint against Southeast Middle School and Los Angeles Unified School District. Plaintiff alleges that on February 10, 2022, at Southeast Middle School, Plaintiff slipped and fell on water that had gathered on the floor, resulting in injuries. The complaint alleges two causes of action: (1) premises liability and (2) general negligence. On December 14, 2023, Plaintiff requested dismissal as to Defendant Southeast Middle School. On February 5, 2025, the Court granted Plaintiff’s ex parte application to reopen expert discovery and specially set the instant hearing on Plaintiff’s motion for a protective order to today’s date. On the same day, the Court granted Defendant’s ex parte application to continue trial. Trial was continued to April 14, 2025. Legal Standard Under Code of Civil Procedure sections 2030.090, 2031.060, 2025.420, and 2033.080, “[w]hen [discovery requests] have been propounded, the responding party … may promptly move for a protective order.” (Code Civ. Proc. §§ 2030.090 subd. (a), 2031.060 subd. (a), 2025.420 subd. (a), 2033.080 subd. (a).) Upon the showing of “good cause” the Court may make “any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. §§ 2030.090 subd. (b), 2031.060 subd. (b), 2025.420 subd. (b), 2033.080 subd. (b).) “The concept of good cause calls for a factual exposition of a reasonable ground for the sought order.” (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.) Generally, “the burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255.) The court shall impose monetary sanctions against any party or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the party acted with substantial justification or that the imposition of sanctions would otherwise be unjust. (Code Civ. Proc. §§ 2030.090 subd. (h), 2031.060 subd. (h), 2025.420 subd. (h), 2033.080 subd. (d).) Meet and Confer “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2025.420 subd. (a).) Pursuant to Code of Civil Procedure section 2016.040, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Plaintiff provides a meet and confer declaration stating that the parties met and conferred during the January 30, 2025 deposition. (Rosal Decl., ¶ 9.) However, this does not constitute a good faith attempt at meeting and conferring. Given that the parties had opportunities to argue their positions at the deposition and subsequent ex parte hearing, the Court will proceed to rule on the merits and address this issue in connection with Plaintiff’s request for sanctions. Discussion Plaintiff moves for a protective order excluding Defendant’s expert, Nicholas, from the deposition of Plaintiff’s expert, Sand. Plaintiff argues good cause exists because Nicholas is neither a party in this action nor counsel, and his presence at the deposition may give Defendant an unfair tactical advantage. In opposition, Defendant argues that Plaintiff’s argument that Nicholas does not have a right to attend the deposition is without merit, Plaintiff does not provide good cause, and Plaintiff did not meet and confer. Here, on January 30, 2025, the deposition of Plaintiff’s expert, Sand, was scheduled to take place via Zoom. (Rosal Decl., ¶ 2.) In addition to defense counsel, Defendant’s expert, Nicholas, was also present on behalf of Defendant on the Zoom call. (Rosal Decl., ¶ 3.) Plaintiff’s counsel advised Defendant’s counsel that Nicholas was not permitted to attend and stated Plaintiff would move for a protective order if Nicholas was not removed from the proceeding. (Rosal Decl., ¶ 4.) Defense counsel refused, arguing the deposition was a public proceeding. (Rosal Decl., ¶ 5.) Plaintiff’s counsel then objected to the proceeding. (Rosal Decl., ¶ 6.) Here, Plaintiff argues good cause exists to exclude Nicholas from the deposition because Nicholas can provide defense counsel with real time information on what to ask Sand or pause and confer regarding other parts of Sand’s deposition. Plaintiff states Sand will not have the opportunity to provide clear, thorough, and uninterrupted opinions. (Rosal Decl., ¶ 9.) Plaintiff further argues Defendant will not be prejudiced because Nicholas can review the deposition transcript and confer with defense counsel afterwards, as is routine. (Rosal Decl., ¶ 10.) The Court finds Plaintiff has provided good cause to exclude Nicholas from the deposition of Sand in that it causes unwarranted annoyance and may provide Defendant an advantage. Code of Civil Procedure section 2025.420 subd. (b)(12) proscribes that the Court can make an order that “designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition.” Accordingly, Plaintiff’s motion for a protective order excluding Defendant’s expert from attending the deposition of Plaintiff’s expert is GRANTED. Defendant’s expert, Michael Nicholas is not permitted to attend the deposition of Plaintiff’s expert Jon D. Sand. Sanctions Plaintiff requests monetary sanctions against Defendant and its counsel of record pursuant to Code of Civil Procedure section 2025.420 subd. (h). However, the Court finds the imposition of sanctions unjust because Plaintiff failed to meet and confer with Defendant outside of the deposition. Accordingly, Plaintiff’s request for monetary sanctions is DENIED. Case Number: 23NWCV01259 Hearing Date: March 12, 2025 Dept: C
I. Defendant PIH Health Whittier’s demurrer is SUSTAINED with 30 days LEAVE TO AMEND. II. Defendant’s motion to strike is MOOT. Moving party to give notice. Defendant PIH Health Whittier demurs to the fifth cause of action in Plaintiff’s second amended complaint. Background This action arises from an alleged wrongful death. On April 25, 2023, Plaintiff Brian Phapornchai (Plaintiff), individually and in his capacity as successor in interest to Chuleeporn Phapornchai (Decedent) filed a complaint against Defendants Ensign Whittier West (Ensign) and PIH Health Whittier (PIH) alleging causes of action for: (1) Negligence; (2) Professional Negligence; (3) Elder Abuse; and (4) Wrongful Death. On November 28, 2023, after hearing oral argument, the Court sustained PIH’s demurrer as to the first cause of action in the complaint without leave to amend and the third cause of action with leave to amend. (11/28/23 Minute Order.) Also, the Court deemed PIH’s motion to strike moot given that the Court sustained the demurrer. (11/28/23 Minute Order.) On December 18, 2023, Plaintiff filed a first amended complaint (FAC) alleging causes of action for: (1) Ordinary Negligence; (2) Professional Negligence; (3) Elder Abuse; and (4) Wrongful Death. On May 15, 2024, the Court sustained PIH’s demurrer as to the third cause of action with leave to amend. (5/15/24 Minute Order). The Court found PIH’s motion to strike moot. (5/15/24 Minute Order). On June 18, 2024, Plaintiff filed the operative second amended complaint (SAC). The SAC alleges five causes of action: (1) Negligence, (2) Professional Negligence, (3) Elder Abuse against Ensign, (4) Wrongful Death, and (5) Elder Abuse against PIH. The SAC alleges that around October of 2021, Decedent, who suffered ambulatory issues and frequent falls, was enrolled at the Orchard Post Acute Care facility (OPAC) for skilled nursing care. (SAC ¶¶ 6-7.) The SAC alleges Decedent was left unattended which resulted in multiple falls and injuries, some falls requiring emergency medical care. (SAC ¶ 7.) PIH and Ensign operated the hospital. (SAC ¶ 7.) The SAC alleges PIH discharged Decedent despite objections by Decedent’s family and knowing that Decedent was left unattended at OPAC. (SAC ¶ 8.) On October 10, 2022, Decedent had another fall at OPAC and suffered injuries requiring a craniotomy. (SAC ¶ 9.) Following this procedure, Decedent passed away on November 6, 2022. (SAC ¶ 9.) Legal Standard Demurrer Standard A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In assessing a demurrer, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda, supra, at p. 747.) A complaint will be upheld against a demurrer if it pleads facts sufficient to place the defendant on notice of the issues sufficient to enable the defendant to prepare a defense. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-50.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) A “[p]laintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Ibid.) Motion to Strike Standard Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (Code Civ. Proc. §§ 435-437.) A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc. § 436.) The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice. (Code Civ. Proc. § 437.) Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294, subd. (a).) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(2).) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Civ. Code, § 3294, subd. (c)(2).) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.) Meet and Confer The parties have sufficiently met and conferred. (Normandie Decl., ¶¶ 6-7.) Additionally, Counsel for PIH filed a declaration stating the parties were unable to finish meeting and conferring and extended the deadline for PIH’s responsive pleading by 30 days. (Normandie Decl., ¶ 8.) Discussion PIH demurs to the SAC’s fifth cause of action for elder abuse against PIH on the grounds that it fails to plead facts sufficient to constitute a cause of action and is uncertain. The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) provides for steep penalties against those who abuse an elder or a dependent adult. Dependent adult abuse includes physical abuse, neglect, isolation, deprivation by a care custodian of necessary goods or services, and financial abuse. (Welf. & Inst. Code, § 15610.07, subd. (a).) “‘Abandonment’ means the desertion or willful forsaking of an elder or a dependent adult by anyone having care or custody of that person under circumstances in which a reasonable person would continue to provide care and custody.” (Welf. & Inst. Code, § 15610.05.) “Neglect” is defined as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, § 15610.57, subd. (a).) Neglect includes failure to assist in personal hygiene, failure to provide medical care for physical and mental health needs, and failure to protect from health and safety hazards. (Welf. & Inst. Code, § 15610.57, subd. (b).) [S]everal factors [] must be present for conduct to constitute neglect within the meaning of the Elder Abuse Act and thereby trigger the enhanced remedies available under the Act. The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult’s basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness). The plaintiff must also allege (and ultimately prove by clear and convincing evidence) that the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. Finally, the facts constituting the neglect and establishing the causal link between the neglect and the injury “must be pleaded with particularity,” in accordance with the pleading rules governing statutory claims. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406-407, citations omitted.) Acts which are prohibited under the Elder Abuse Act provisions of the Welfare and Institute Code “do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence.” (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 781 (Covenant Care).) To constitute abuse and neglect within the meaning of the Elder Abuse Act, thereby triggering the enhanced remedies available under the Act, a plaintiff “must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct,” with recklessness referring “to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur,’ and ‘[o]ppression, fraud and malice [involving] intentional or conscious wrongdoing of a despicable or injurious nature.’” (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88-89, quotation marks omitted.) PIH argues that the fifth cause of action is nearly identical to Plaintiff’s previous complaints and that the SAC includes false allegations. PIH therefore argues Plaintiff has not established a custodial relationship, Plaintiff has not stated with sufficient particularity any acts or omissions by PIH’s staff, and Plaintiff has failed to plead facts that constitute corporate ratification. In opposition, Plaintiff argues PIH is a care custodian, PIH deprived Decedents of goods and services necessary to avoid physical harm or mental suffering, PIH abandoned decedent, and Plaintiff adequately alleges a claim for enhanced remedies. In reply, PIH argues Decedent’s intermittent visits to PIH do not establish a caretaking or custodial relationship. Here, the SAC first alleges PIH had a care or custodian relationship with Decedent because Decedent was a patient at PIH for emergency care. (SAC ¶ 32.) The SAC also alleges this care or custodian relationship persisted after being discharged from PIH because PIH assumed control of Decedent’s discharge from PIH and decided which facility Decedent would be discharged to. (SAC ¶ 32.) A custodial or caretaking relationship is “a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of an elder's basic needs that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.” (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 158.) In Winn, the Supreme Court of California found that an allegation of substandard provision of medical care, on an outpatient basis, does not constitute neglect under the Elder Abuse Act, without more. (Id. at 165, (“a party with only circumscribed, intermittent, or episodic engagement” [is not] among those who “have ... care or custody” of someone who may be particularly vulnerable.”).) Like Winn, the SAC alleges Decedent intermittently went to PIH as a result of falls occurring at OPAC. However, the SAC does not provide facts as to when Decedent went to OPAC or how many times Decedent went to OPAC. Plaintiff does not allege facts that PIH assumed responsibility for Decedent’s basic needs. The SAC states PIH provided emergency medical care to Decedent. (SAC ¶ 7.) The SAC does not provide any more facts regarding the substance and nature of this relationship and therefore does not allege a care or custodial relationship beyond the provision of emergency medical services. Further, without presenting facts regarding the amount of times Decedent received emergency medical services at PIH or extent of the relationship, the Court is unable to determine the latter elements of Plaintiff’s elder abuse cause of action. The SAC alleges PIH committed neglect by failing to report OPAC for elder abuse and abandonment by discharging Decedent back to OPAC. (SAC ¶¶ 35, 37.) The SAC pleads conclusory allegations that PIH had knowledge that Decedent repeatedly fell at OPAC. However, there are no facts regarding PIH’s knowledge of Decedent’s inability to attend to her basic needs. The SAC does not plead facts sufficient to meet the first element of a “care or custodial relationship” nor facts sufficient to allege the knowledge element on the part of PIH. Accordingly, PIH’s demurrer to the fifth cause of action is SUSTAINED with 30 days LEAVE TO AMEND. Motion to Strike PIH moves to strike the following portions of the SAC: General Allegations, Page 3 through 4, ¶ 8, lines 22-28, 1-6; SAC, Fifth Cause of Action, Page 6, ¶ 30 through ¶42, in its entirety; SAC, Prayer, Page 10, No. 3: “Punitive damages;” SAC, Prayer, Page 10, No. 4: “Attorney’s fees.” As indicated above, the Court sustains the PIH’s demurrer to the third cause of action in the SAC with leave to amend. As such, the motion to strike is MOOT Case Number: 23NWCV01846 Hearing Date: March 12, 2025 Dept: C
Defendant Ford Motor Company’s motion to enter a protective order is GRANTED IN PART and DENIED IN PART. Moving party to give notice. Defendant Ford Motor Company (Defendant) moves to enter a Protective Order applicable to the production of material pursuant to Plaintiffs Michael Thalken and Brandi Thalken’s (collectively, Plaintiffs) Requests for Production of Documents. Background This lemon law action was filed on June 15, 2023. Plaintiffs filed this action against Ford Motor Company and Santa Margarita Ford Inc. due to alleged defects in Plaintiffs’ new 2020 Ford Expedition, VIN: 1FMJU1HT7LEA56274 (Subject Vehicle). The operative first amended complaint (FAC) alleges three causes of action: (1) violation of Song-Beverly Act – breach of express warranty, (2) fraudulent inducement-concealment, and (3) negligent repair. On January 17, 2024, Plaintiffs served their first set of written discovery requests on Defendant. (Amin Decl., ¶ 2.) Defendant responded to these requests and agreed to produce certain confidential, proprietary, or trade-secret information and materials pursuant to a protective order. (Amin Decl., ¶ 2.) Legal Standard Under Code of Civil Procedure sections 2030.090, 2031.060, 2025.420, and 2033.080, “[w]hen [discovery requests] have been propounded, the responding party … may promptly move for a protective order.” (Code Civ. Proc. §§ 2030.090 subd. (a), 2031.060 subd. (a), 2025.420 subd. (a), 2033.080 subd. (a).) Upon the showing of “good cause” the Court may make “any order that justice requires to protect any party or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. §§ 2030.090 subd. (b), 2031.060 subd. (b), 2025.420 subd. (b), 2033.080 subd. (b).) 2034.250, subd. (b).) This includes “[t]hat a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way. Code Civ. Proc. § 2031.060 subd. (b)(5).) “The concept of good cause calls for a factual exposition of a reasonable ground for the sought order.” (Goodman v. Citizens Life & Cas. Ins. Co. (1967) 253 Cal.App.2d 807, 819.) Meet and Confer “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2031.060 subd. (a).) Pursuant to Code of Civil Procedure section 2016.040, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” The parties have adequately met and conferred. (Amin Decl., ¶ 6.) Discussion Defendant seeks the entry of a Protective Order. Specifically, Defendant requests the following changes to the LASC Model Order: Paragraph 7: · Paragraph 7 to clarify in sub-section (b) that the term “affiliated attorneys” mean attorneys in the same firm and that Plaintiffs’ counsel’s office personnel who have access to Ford’s confidential documents must sign Exhibit A; · to include videographers and litigation support companies with court reporters in sub-section (d); · to preclude mock jurors from accessing Ford’s confidential documents because Ford has no ability to identify such persons or ensure (or confirm) their compliance, as set forth in sub-section (f)1; · to include non-attorneys along with experts in paragraph (g)2, and confirm that Ford’s confidential documents may not be shown to competitors of Ford. Paragraph 8: · Paragraph 8 to prohibit the receiving party from posting Ford’s confidential documents to any website or advertising Ford’s documents for sale. Paragraph 21: · to require Plaintiffs’ counsel to return all of Ford’s confidential documents at the conclusion of the case. (Mot., 4:16-26). Defendant argues that the modifications to the Protective Order are warranted because it governs the dissemination of Defendant’s proprietary, commercially-sensitive, and confidential business information. Defendant puts forth the declaration of Jacob Doss, a manager at Ford’s Customer Relationship Center. Defendant asserts, the production at issue reveal Defendant’s processes to resolve customer and product concerns, would benefit Defendant’s competitors, and contain proprietary information. (Doss Decl., ¶¶ 9, 11, 12.) As such, Defendant demonstrates that this production contains proprietary information and a protective order is warranted. In opposition, Plaintiffs argue they are not opposed to an entry of a Protective Order but are opposed to Defendant’s proposed modifications. Plaintiffs argue Defendant fails to state good cause for the proposed modifications. In reply, Defendant argues Plaintiffs have failed to show how Defendant’s proposed modifications are improper, inappropriate, or unnecessary. Paragraph 7 As to Defendant’s proposed modifications to Paragraph 7, Defendant has not demonstrated good cause as to modifications to sub-sections (b), clarifying the term “affiliated employees”; (d), including videographers and support companies; and (h), including non-attorneys with experts. Defendant argues that publication of the production at issue would undermine Defendant but does not explain why the LASC Model Order, as is, would undermine Defendant’s confidentiality interests. However, Defendant has provided good cause to protect its interests as to sub-section (g), namely, that Defendant has no ability to identify mock jurors and ensure their compliance. In opposition, Plaintiffs argue that modifications regarding mock jurors is unreasonable because the LASC Model Protective Order already requires mock jurors to sign the Protective Order. However, as argued by Defendant in reply, Defendant would be unable to confirm the accuracy of a mock jurors’ contact information. Accordingly, the Court declines to modify Paragraph 7, sub-sections (b), (d), and (f). The Court permits Defendant’s proposed modification to sub-section (g). Paragraph 8 Defendant proposes to modify Paragraph 8 to prohibit the receiving party from posting Ford’s confidential documents to any website or advertising Ford’s documents for sale. Here, while Defendant has established good cause to prevent the publication of its production, Defendant has not articulated how this proposed modification is different from the LASC Model Protective Order: 8. Confidential Materials shall be used by the persons receiving them only for the purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or defending the Proceeding, and not for any business or other purpose whatsoever. (LASC Model Protective Order). Given that Defendant’s proposed modification is already contemplated in the LASC Model Protective Order, the Court denies Defendant’s proposed modification to Paragraph 8. Paragraph 21 Defendant requests modification to Paragraph 21 to require Plaintiffs’ counsel to return all of Ford’s confidential documents at the conclusion of the case. Defendant does not demonstrate good cause for this modification compared to that of the LASC Model Protective Order. The LASC Model Protective Order requires that the parties either (a) promptly return all confidential materials, (2) agree to methods of destruction, or (3) file a motion seeking a Court order regarding preservation of the confidential materials. Moreover, a Stipulation and Protective Order is binding after the conclusion of the proceedings. Therefore, Defendant has not demonstrated good cause. The Court denies Defendant’s proposed modification to Paragraph 21. Conclusion Defendant Ford Motor Company’s motion to enter a protective order is GRANTED IN PART and DENIED IN PART. Defendant is ORDERED to prepare a new Protective Order with modifications to only Paragraph 7, sub-section (g) Case Number: 24NWCV00836 Hearing Date: March 12, 2025 Dept: C
Defendants KDW Washes, Inc. and Omar Mesa’s demurrer is SUSTAINED without leave to amend. Moving party to give notice. Defendants KDW Washes, Inc. and Omar Mesa (Defendants) demur to Plaintiff Brenda Yanez’s (Plaintiff) complaint on the grounds that it is barred by the statute of limitations. Background Plaintiff filed this premises liability action on March 20, 2024. Plaintiff alleges that on March 16, 2022, while washing her vehicle at Defendants’ business known as Jackson Street Carwash, located at 9330 Jackson Street, Pico Rivera, California 90660 (Subject Premises), she slipped and fell over a broken/misplaced drainage gate. The complaint asserts two causes of action: (1) general negligence and (2) premises liability. Legal Standard A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In assessing a demurrer, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda, supra, at p. 747.) A complaint will be upheld against a demurrer if it pleads facts sufficient to place the defendant on notice of the issues sufficient to enable the defendant to prepare a defense. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-50.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) A “[p]laintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Ibid.) Meet and Confer Defendants have complied with the meet and confer requirements pursuant to Code of Civil Procedure section 430.31. Counsel for Defendants called Plaintiff’s counsel, left a message, and sent an email. (Porter Decl., ¶¶ 3-4.) Counsel for Defendants did not receive any responses. (Porter Decl., ¶ 5.) Discussion Defendants demur to the first cause of action for general negligence and second cause of action for premises liability on the grounds that they fail to state facts sufficient to state a cause of action. Defendants argue both causes of action are barred by the applicable statute of limitations. This motion is unopposed. Pursuant to Code of Civil Procedure section 335.1, the statute of limitations for “an action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another” is two years. Here, Plaintiff’s complaint alleges Plaintiff slipped and fell at the Subject Premises on March 16, 2022. Therefore, the last date for Plaintiff to file a timely complaint arising out Defendants’ alleged negligence was March 18, 2024. Here, Plaintiff filed this action on March 20, 2024. Accordingly, Defendants’ demurrer to Plaintiffs’ complaint is SUSTAINED without leave to amend. Case Number: 24NWCV01091 Hearing Date: March 12, 2025 Dept: C
I. Defendants Martin Cueva and Lupat Corporation’s demurrer as to the first cause of action is OVERRULED. II. Defendants’ demurrer as to the second cause of action is SUSTAINED with 30 days LEAVE TO AMEND. Moving party to give notice. Defendants Martin Cueva and Lupat Corporation dba Advance Realty (collectively, Defendants) demur to the first and third causes of action in Plaintiff Reachel Benitez’s (Plaintiff) complaint. Background Plaintiff filed this breach of contract action against Salvador Ortega Madrigal (Salvador), Martha Elena Madrigal (Martha), Martin Cueva (Cueva), and Lupat Corporatation dba Advance Realty (Advance Realty) on April 8, 2024. The complaint alleges Defendants Salvador and Martha offered to sell Plaintiff the business known as Espinoza Produce. (Complaint, ¶ 2.) Cueva represented Plaintiff as a real estate agent in this transaction. (Complaint, ¶ 3.) The complaint alleges Cueva conspired with Salvador and Marta to convert Plaintiff’s funds by filling out the Business Purchase Agreement and Joint Escrow Instruction in a way that makes it difficult for Plaintiff to enforce. (Complaint, ¶ 3.) The complaint asserts three causes of action: (1) conversion, (2) breach of contract, and (3) negligence. Legal Standard A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) In assessing a demurrer, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda, supra, at p. 747.) A complaint will be upheld against a demurrer if it pleads facts sufficient to place the defendant on notice of the issues sufficient to enable the defendant to prepare a defense. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-50.) Code of Civil Procedure section 430.10(f) provides for a demurrer where a pleading is uncertain. Demurrers for uncertainty are disfavored and are only sustained where a pleading is so incomprehensible a defendant cannot reasonably respond. (A.J. Fistes v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695; Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) A “[p]laintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Ibid.) Meet and Confer Defendants comply with the meet and confer obligations under Code of Civil Procedure section 430.41 subd. (a)(3)(B). (Shafizadeh Decl., ¶¶ 4, 6.) Additionally, Defendants’ counsel filed a Declaration of Demurring Party in Support of Automatic Extension. (Shafizadeh Decl., ¶ 5.) Discussion Defendants demur to the first cause of action for conversion and third cause of action for negligence on the grounds that the complaint fails to state facts sufficient to constitute a cause of action and is uncertain. First Cause of Action – Conversion Defendants argue Plaintiff fails to state a cause of action against Defendants because Defendants never received any money from Plaintiff. In opposition, Plaintiff argues the complaint states facts sufficient to constitute a cause of action for conversion. In reply, Defendant argues Plaintiff improperly asserts facts in the opposition to support the complaint. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Here, the Court notes Defendant’s argument and will only assess Plaintiff’s complaint, not extraneous information presented in Plaintiff’s opposition. “Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) “Money can be the subject of an action for conversion if a specific sum capable of identification is involved.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 453.) “Neither legal title nor absolute ownership of the property is necessary. A party need only allege it is ‘entitled to immediate possession at the time of conversion. [Citations.]’” (Ibid., citations omitted.) The complaint states facts sufficient to state a cause of action for conversion. Here, the complaint alleges that on October 27, 2022, Plaintiff accepted an offer by Salvador and Martha to purchase Espinoza Produce for $70,000 and deposited $30,000 in escrow. (Complaint, ¶ 8.) Escrow was to close after 60 days. (Complaint, ¶ 8.) Cueva, working for Advance Realty, filled out the Business Purchase Agreement and Joint Escrow Instructions. (Complaint, ¶ 8.) The complaint alleges Defendants never intended to complete the sale, which is exhibited by Cueva and Advance Realty failing to take steps to ensure timely performance by the sellers, including refusing to prepare tax returns. (Complaint, ¶ 9.) Additionally, Defendants failed to advise Plaintiff not to pay the “outlandishly large deposit” because they intended to refuse to proceed with the sale and keep the deposit. (Complaint, ¶ 7.) The complaint alleges Salvador and Martha refused to proceed with the sale which should have closed on January 2, 2023, and Plaintiff cancelled escrow on July 10, 2023. (Complaint, ¶ 11.) However, Defendants have continued to cause the amount to be withheld from Plaintiff. (Complaint, ¶ 13.) Therefore, Plaintiff provides facts alleging her ownership or right to the $30,000 in escrow and Defendants’ wrongful acts preventing Plaintiff from accessing the deposit. Plaintiff lastly alleges she has $30,000 in special damages. (Complaint, ¶ 16.) Moreover, the Court does not find that the complaint is uncertain. Accordingly, Defendant’s demurrer to the first cause of action for conversion is OVERRULED. Third Cause of Action – Negligence Defendants argue Plaintiff fails to state a cause of action for negligence against Defendants because Plaintiff fails to allege a duty of care. The elements for a cause of action for negligence are “(1) a legal duty to use due care; (2) a breach of that duty; (3) a reasonably close causal connection between that breach and the resulting injury; and (4) actual loss or damage.” (Ahern v. Dillenback (1991) 1 Cal.App.4th 36, 42.) “Whether a legal duty of care exists in a given factual situation is a question of law to be determined by the court, not the jury.” (Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 754.) Real estate brokers are subject to two sets of duties: regulatory duties or duties arising from the law of agency. (Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 755.) To derive a duty from the law of agency, Plaintiff must allege an agreement between the principal and the agent. (Ibid.) “The existence and extent of the duties of the agent to the principal are determined by the terms of the agreement between the parties, interpreted in light of the circumstances under which it is made, except to the extent that fraud, duress, illegality, or the incapacity of one or both of the parties to the agreement modifies it or deprives it of legal effect.” (Ibid., citations omitted). Here, Plaintiff alleges that the conduct of Cueva and Advance Realty fell below the standard of care of a real estate agent and broker representing a buyer of a business. (Complaint, ¶ 25.) However, as Defendant argues, there are no facts alleging that Cueva and Advance Realty served as the real estate agents for Plaintiff. Plaintiff attaches the Business Purchase Agreement which states that Plaintiff did not utilize the services of a licensed real estate broker. (Complaint, Exh. A, ¶ 26c.) In opposition, Plaintiff argues that an agency relationship can be implied by the conduct of the parties. However, apart from conclusory allegations that Cueva and Advance Realty represented Plaintiff as their real estate agent, there are not enough facts to allege an agency relationship. The complaint states Cueva filled out the Business Purchase Agreement and Joint Escrow Instructions, however, there are no facts alleging that Cueva filled out the agreement as part of its representation of Plaintiff. (Complaint, ¶ 25.) The Court cannot consider additional allegations raised for the first time in Plaintiff’s opposition. Accordingly, Defendant’s demurrer to the first cause of action for negligence is SUSTAINED with 30 days LEAVE TO AMEND. Case Number: 24NWCV02095 Hearing Date: March 12, 2025 Dept: C
I. Plaintiff Jose Estrada Ramirez’s demurrer to the first, sixth, seventh, and eighth affirmative defenses is SUSTAINED with 30 days LEAVE TO AMEND. II. Plaintiff’s demurrer to the second, third, fifth, and ninth affirmative defenses is OVERRULED. Moving party to give notice. Plaintiff Jose Estrada Ramirez (Plaintiff) demurs to each affirmative defense in Defendant Golden Flower, Inc.’s answer. Background Plaintiff filed this action for damages and injunctive relief against Defendant on July 9, 2024 for violations under the Americans with Disabilities Act and Unruh Civil Rights Act. The complaint alleges that on June 2, 2024, Plaintiff visited the Golden Corral restaurant located at 17308 Bellflower Blvd., Bellflower, California, 90706 in June 2024. (Complaint, ¶¶ 5, 21.) Plaintiff, who uses a wheelchair, was unable to independently reach the items in the self-serve sundae/ice cream area due to the height of the buffet station and Plexiglass sneezeguard. (Complaint, ¶¶ 26-31.) The complaint asserts two causes of action: (1) violation of the Americans with Disabilities Act (ADA) and (2) violation of the Unruh Civil Rights Act. On October 21, 2024, Defendant filed its answer to Plaintiff’s verified complaint. Defendant asserts the following affirmative defenses: (1) failure to state a cause of action, (2) waiver, (3) equivalent facilitation, (4) unclean hands, (5) no standing, (6) compliant with the ADA, (7) mootness, (8) de minimus violations, (9) right to add additional affirmative defenses. Legal Standard “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: (a) The answer does not state facts sufficient to constitute a defense. (b) The answer is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. (c) Where the answer pleads a contract, it cannot be ascertained from the answer whether the contract is written or oral.” (Code Civ. Proc. § 430.20.) Every affirmative defense “shall be separately stated, and the several defenses shall refer to the causes of action which they are intended to answer, in a manner by which they may be intelligibly distinguished.” (Code Civ. Proc. § 431.30, subd. (g).) “If the complaint is verified…the denial of the allegations shall be made positively or according to the information and belief of the defendant.” (Code Civ. Proc. § 431.30, subd. (d).) “Demurring to an answer is a commonly recognized practice. Unlike the usual general demurrer to a complaint the inquiry is not into the statement of a cause of action. Instead it is whether the answer raises a defense to the plaintiff’s stated cause of action. A general demurrer raises the objection that the answer does not state facts sufficient to constitute a defense . . . .” (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879-880 [internal citations and quotations omitted].) As a general rule, defendants must allege facts in support of affirmative defenses. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384 [affirmative defenses “proffered in the form of terse legal conclusions, rather than as facts ‘averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint’” are not well pled and cannot survive a demurrer].) For an affirmative defense to survive a demurrer, it must only plead the ultimate fact and give notice to the opposing party of a potentially meritorious defense. (See, Welch v. Derian (1964) 224 Cal.App.2d 750, 754.) Meet and Confer The parties have adequately met and conferred. (Johnson Decl., ¶¶ 2, 6.) Discussion Plaintiff demurs to the first, second, third, fourth, fifth, sixth, seventh, eighth, and ninth affirmative defenses in Defendant’s answer. Waiver and Unclean Hands Plaintiff demurs to the second cause of action for waiver and the fourth cause of action for unclean hands for failure to state a defense. Plaintiff argues these defenses lack factual support and are improper defenses to Plaintiff’s statutory allegations. In opposition, Defendant argues that equitable defenses are not categorically prohibited from statutory causes of action and are appropriate, here, where Plaintiff seeks equitable relief. In reply, Plaintiff argues that equitable defenses cannot be used against public policy. “Equitable defenses such as unclean hands may not…be used to wholly defeat a claim based on a public policy expressed by the Legislature in a statute.” (Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 432.) “Although equitable principles may not be applied in opposition to statutory enactments or to defeat public policy established by the Legislature [citations], such principles have been applied to reduce ordinary tort damages imposed for violation of antidiscrimination laws.” (Ibid.) Here, given that equitable defenses have been applied to reduce ordinary tort damages for violations of antidiscrimination laws, the Court does not find that it must be categorically prohibited here as an affirmative defense. Defendant provides ultimate facts in support of these defenses. The answer alleges Plaintiff’s impliedly waived all claims arises from the complaint’s allegations. (Answer, ¶ 2.) The answer also alleges that Plaintiff is barred from asserting the cause of actions by reason of action, omissions, representations, and conduct. (Answer, ¶ 4.) Therefore, the answer pleads ultimate facts in support of these defenses. The Court finds Plaintiff’s demurrer to the second and fourth affirmative defenses OVERRULED. Compliance with the ADA, Mootness, and De Minimus violations Plaintiff demurs to the sixth affirmative defense, compliance with the ADA; seventh affirmative defense, mootness; and eighth affirmative defense, de minimus violations. Plaintiff argues these affirmative defenses fail because they plead inconsistent verified facts. In opposition, Defendant argues that defendants are permitted to plead alternative or inconsistent defenses, and these defenses address different sets of facts. In reply, Plaintiff argues that inconsistent facts are not permitted in verified pleadings. “To verify inconsistent facts alleged in a complaint indicates perjury in the matter.” (Manti v. Gunari (1970) 5 Cal.App.3d 442, 449.) The bar on inconsistent fact pleading applies when the facts are “antagonistic.” (Steiner v. Rowley (1950) 35 Cal.2d 713, 719.) Here, the Court finds that Defendant’s answer produces inconsistent ultimate facts. As part of its sixth affirmative defense, Defendant states that it has complied with all applicable provisions of the ADA, and as part of its seventh and eighth affirmative defenses, Defendant states it has remediated any non-compliance, and that the non-compliance did not materially affect accessibility. (Answer, ¶¶ 6-8.) While in opposition, Defendant argues these affirmative defenses reference different facts, there are no specific facts referenced in the answer. The Court is unable to determine whether these affirmative defenses are consistent or antagonistic on the fact of the pleading. Therefore, Plaintiff’s demurrer to the sixth, seventh, and eighth affirmative defenses is SUSTAINED with 30 days LEAVE TO AMEND. Right to Add Affirmative Defenses Plaintiff demurs to the ninth affirmative defense, the right to add affirmative defenses. Plaintiff argues that this defense means that Defendant’s answer is not based on proper investigation and that amendment may only be done by motion. In opposition, Defendant argues that this defense does not subvert the Code of Civil Procedure and is not intended to automatically guarantee a future amendment. Here, the Court finds this affirmative defense is supported by information and belief. Moreover, the Court does not agree with Plaintiff that this affirmative defense contravenes the Code of Civil Procedure. Plaintiff’s demurrer to the ninth affirmative defense is OVERRULED. Failure to State a Cause of Action, Equivalent Facilitation, and No Standing Plaintiff demurs to the first cause of action for failure to state a cause of action, the third cause of action for equivalent facilitation, and fifth cause of action for no standing. Plaintiff argues that all the affirmative defenses fail to state defense but does not make any specific arguments as to these affirmative defenses. Defendant also does not make any specific arguments about these causes of action. Here, all three defenses give notice to Plaintiff of a potentially meritorious defense. Defendant’s first affirmative defense does not provide any ultimate fact. Defendant’s third affirmative defense alleges that the availability of numerous employees ready to assist customers, and therefore alleges an ultimate fact. (Answer, ¶ 3.) Defendant’s fifth affirmative defense alleges that based on information and belief, Plaintiff did not suffer any harm and therefore alleges an ultimate fact. (Answer, ¶ 5.) |
DEPARTMENT C LAW AND MOTION RULINGS
Case Number: 21STCV29691 Hearing Date: March 11, 2025 Dept: C
HERNANDEZ v. SIMPLIFIED LABOR STAFFING SOLUTIONS,
INC., ET AL. CASE NO.: 21STCV29691 HEARING: March 11, 2025 @ 10:30 AM #8 TENTATIVE ORDER Defendant Damco
Distribution Services, Inc. n/k/a MAERSK Warehousing & Distribution
Services, USA, LLC ‘s Motion for Summary Judgment is DENIED. Defendant to give
notice. Background On
August 11, 2021, Plaintiff Eduardo Hernandez (Plaintiff) filed this personal
injury action against Defendants Simplified Labor Staffing Solutions, Inc.,
MAERSK, SG, MAERSK, Inc., MAERSK Line Limited, MAERSK Agency, Inc., and Does 1
to 100. This action arises out of injuries sustained in a warehouse located at
5039 Firestone Place, Southgate, CA (Subject Warehouse) while Plaintiff was
employed by Simplified and contracted through his employer by MAERSK SG.
(Complaint, ¶ 10.) Plaintiff alleges that he sustained injuries when a metal
ramp guided by a home-made jerry-rigged device crashed on to a metal dock where
Plaintiff stood. (Complaint, ¶¶ 11-13.) The Complaint alleges three causes of
action: (1) Negligence, (2) Negligence Per Se, and (3) Premises liability. On
October 12, 2023, Plaintiff amended the complaint, naming Defendant Damco
Distribution Services, Inc. as Doe 1. On January 19, 2024, Plaintiff amended
the complaint, naming MAERSK Warehousing & Distribution Services, USA, LLC
as Doe 4. On February 5, 2024, Plaintiff dismissed Simplified Labor Staffing
Solutions, Inc. without prejudice. On
August 22, 2024, Plaintiff amended the complaint, naming Econo Door Repair
Services as Doe 5. On March 5, 2025, all causes of action against Defendant
Ecno Door Repair Services were dismissed for lack of prosecution. Defendant
Damco Distribution Services, Inc. n/k/a MAERSK Warehousing & Distribution
Services, USA, LLC (“DDSI”) now moves for summary judgment. Undisputed Material Facts Plaintiff was employed by Simplified Labor Staffing
Solutions, Inc. (“Simplified”) between November 2018 to April 30, 2019. (UMF
No. 2.) In 2017, Simplified entered into a Temporary Service Agreement with
DDSI to provide personnel to work at the Subject Warehouse. (UMF Nos. 7-8.)
Pursuant to the Temporary Service Agreement, Simplified provided workers’
compensation coverage which covered Plaintiff. (UMF No. 9.) On April 30, 2019, Plaintiff
sustained injuries at the Subject Warehouse, which was operated by DDSI. (UMF
Nos. 3-4.) After being directed by a Simplified co-worker to raise a dock
bridge plate, Plaintiff raised it, it got stuck, and it dropped hard enough to
jolt him into the air. (UMF Nos. 5-6.) Plaintiff asserted a claim and received
benefits for workers’ compensation against Simplified. (UMF No.12.) Legal Standard The function of a motion for summary judgment or
adjudication is to allow a determination as to whether an opposing party cannot
show evidentiary support for a pleading or claim and to enable an order of
summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c subd.
(c) “requires the trial judge to grant summary judgment if all the evidence
submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted
by other inferences or evidence, show that there is no triable issue as to any
material fact and that the moving party is entitled to judgment as a matter of
law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“The function of the pleadings in a motion for summary judgment is to delimit
the scope of the issues; the function of the affidavits or declarations is to
disclose whether there is any triable issue of fact within the issues delimited
by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th
59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d
367, 381-382.) In moving for summary judgment, a defendant has the “burden
of showing that a cause of action has no merit if the party has shown that one
or more elements of the cause of action, even if not separately pleaded, cannot
be established, or that there is a complete defense to the cause of action.”
(Code Civ. Proc. § 437c subd. (p)(2).) Once a moving party has satisfied the initial burden of
proof, the burden “shifts to the opposing party to show, by responsive separate
statement and admissible evidence, that triable issues of fact exist.” (Ostayan
v. Serrano Reconveyance Co. (2000) 77 Cal.App.4th 1411, 1418, disapproved
on other grounds by Black Sky Cap., LLC v. Cobb (2019) 7 Cal.5th 156,
165. To establish a triable issue of material fact, the party opposing the
motion must produce substantial responsive evidence. (Sangster v. Paetkau
(1998) 68 Cal.App.4th 151, 166.) Summary judgment must be granted “if all the evidence
submitted, and ‘all inferences reasonably deducible from the evidence’ and
uncontradicted by other inferences or evidence, show that there is no triable
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) Discussion DDSI moves for summary judgment on the following grounds:1)
DDSI was Plaintiff’s statutory employer at the time of the accident and is
therefore immune from civil liability for personal injury damages under the
Workers Compensation Act, 2) DDSI was Plaintiff’s “special employer” at the
time of the accident and is therefore immune from civil liability for personal
injury damages under the “special employer” common law doctrine. Special Employment Doctrine The Court will first address whether the special employment
doctrine applies, such that DDSI is immune from Plaintiff’s personal injury
suit. “When an employer lends an employee to another employer and
relinquishes to the borrowing employer some right of control over the
employee's activities, a ‘special employment relationship’ arises between the
borrowing employer and the employee. ‘Once a special employment is identified,
two consequences ensue: (1) the special employer's liability for workers'
compensation coverage to the employee, and (2) the employer's [and its other
employees'] immunity from a common law tort action, the latter consequence
flowing from the exclusivity of the compensation remedy embodied in Labor Code
section 3601.’” (Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th
881, 888, internal citations omitted.) The primary consideration in whether a special employment
relationship exists is whether the special employer has “‘[t]he right to
control and direct the activities of the alleged employee or the manner and
method in which the worker is performed.’” (Id. at pp. 888-89.) “The
decision turns on ‘(1) whether the borrowing employer's control over the
employee and the work he is performing extends beyond mere suggestion of
details or cooperation; (2) whether the employee is performing the special
employer's work; (3) whether there was an agreement, understanding, or meeting
of the minds between the original and special employer; (4) whether the
employee acquiesced in the new work situation; (5) whether the original
employer terminated [its] relationship with the employee; (6) whether the
special employer furnished the tools and place for performance; (7) whether the
new employment was over a considerable length of time; (8) whether the
borrowing employer had the right to fire the employee and (9) whether the
borrowing employer had the obligation to pay the employee.’” (Id. at
889.) Factors that negate the relationship include “situations in which ‘[t]he
employee is (1) not paid by and cannot be discharged by the borrower, (2) a
skilled worker with substantial control over operational details, (3) not
engaged in the borrower's usual business, (4) employed for only a brief period
of time, and (5) using tools and equipment furnished by the lending employer.’”
(Ibid.) It is undisputed that Plaintiff was employed by Simplified
and injured while working at the Subject Warehouse owned by DDSI. (UMF Nos. 2,
4.) It is also undisputed the Simplified provided DDSI with personnel to work
at the Subject Warehouse pursuant to the Temporary Service Agreement. (UMF Nos.
7-8.) DDSI provides the declaration of Jose Martinez, an Operations Manager of
MWDS. Jose Martinez states that DDSI always had the right to direct the
Simplified workers on how they should perform the work. (Stea Decl., ¶ 6, Exh.
D; Martinez Decl. ¶ 3.) Martinez additionally stated that DDSI had the right to
disallow a Simplified worker from returning to work for DDSI and DDSI provided
the premises, tools, and equipment to the Simplified workers. (Stea Decl., ¶ 6;
Exh. D, Martinez Decl. ¶¶ 3-4.) Accordingly, MWDS establishes a complete
defense from civil liability based on the Special Employment Doctrine. The burden therefore shifts to Plaintiff to show that
triable issues of material fact exist. In opposition, Plaintiff argues a triable issue of material
fact exists as to whether DDSI was Plaintiff’s “special employer.” Plaintiff
argues Simplified never relinquished supervision and control to DDSI such that
DDSI was a “special employer.” Plaintiff maintains that Simplified is a
temporary staffing firm provides labor to businesses like DDSI, but Simplified
exclusively retains control over the manner of work. Plaintiff offers the
following evidence in support: -
Pursuant to the terms of the contract between
Simplified and DDSI, the Temporary Service Agreement, DDSI did not have the
right to, nor did they at any time, terminate Simplified workers, or control, supervise,
or direct the work and activities of the Simplified workers—including
Plaintiff. (DMF Nos. 15-16, McElfish Decl., ¶ 9, Exh G, Sections 2.2, 2.4, 7.1;
AMF Nos. 49-61, McElfish Decl., ¶ 7, Exh E.) -
CEO of Simplified Ash Wahi testified at his
deposition on November 13, 2024 that the TSA was binding on DDSI on the date of
the accident and that Plaintiff was only a Simplified employee and not a DDSI
employee under any circumstances. (AMF Nos. 62-65, 69-77, 101, McElfish Decl.,
¶ 7, Exh E.) -
Tools and equipment were supplied to Plaintiff
Hernandez, and all Simplified workers, by their employer, Simplified, not DDSI.
(DMF No. 14, McElfish Decl., ¶¶ 3-4, Exhs. A-B; AMF No. 39, McElfish Decl., ¶
4, Exh. B.) -
Plaintiff was not supervised or controlled by
DDSI, as indicated by DDSI’s responses to Requests for Admissions and Special
Interrogatories. (AMF Nos. 40-47, McElfish Decl. ¶¶ 5-6, 8, Exhs. C, D, F.) -
Plaintiff’s testimony indicates he was
supervised only by Simplified. (AMF Nos. 25, 28, 17, 31-38, McElfish Decl., ¶ 4,
Exh. B.) In reply, Defendant reiterates that the circumstances of
Plaintiff’s employment demonstrate a special employer relationship. The Court finds Plaintiff has provided sufficient evidence
to raise a triable issue of material fact as to whether DDSI is a “special
employer.” “Whether a special employment relationship exists generally is a
question of fact.” (Caso, supra 163 Cal.App.4th at p. 889.) Plaintiff
provides controverting evidence based on the factors enumerated in Caso v.
Nimrod Productions, Inc. The Court finds a jury is better suited to weigh
the factors in favor of and against finding whether DDSI exercised control over
Plaintiff’s work, such that it was Plaintiff’s special employer. Workers Compensation Act The Court will next discuss whether the Workers Compensation
Act applies. Labor Code section 3600 subdivision (a) provides that
liability for workers’ compensation exists “in lieu of any other liability
whatsoever to any person. . .without regard to negligence, exist against an
employer for any injury sustained by his or her employees arising out of and in
the course of the employment.” (Lab. Code, § 3600, subd. (a).) The right to
recover based on the conditions of compensation in Section 3600 is “the sole
and exclusive remedy of the employee or his or her dependents against the employer.
The fact that either the employee or the employer also occupied another or dual
capacity prior to, or at the time of, the employee's industrial injury shall
not permit the employee or his or her dependents to bring an action at law for
damages against the employer. (Lab. Code, § 3602, subd. (a).) Moreover, “an employer may secure the payment of
compensation on employees provided to it by agreement by another employer
by entering into a valid and enforceable agreement with that other employer
under which the other employer agrees to obtain, and has, in fact, obtained
workers' compensation coverage for those employees. In those cases, both
employers shall be considered to have secured the payment of compensation.”
(Lab. Code, § 3602, subd. (d)(1).) “Employers who have complied with this
subdivision shall not be subject to civil, criminal, or other penalties for
failure to provide workers' compensation coverage or tort liability in the
event of employee injury.” (Lab. Code, § 3602, subd. (d)(2).) It is undisputed that DDSI and Simplified entered into the
Temporary Service Agreement and that Simplified provided workers compensation
benefits for Plaintiff’s injury. (UMF Nos. 9,12.) DDSI provides evidence that
Plaintiff made a worker’s compensation claim against Simplified for his
injuries at the Subject Warehouse and received those benefits. (Stea Decl., ¶
4, Exh. B, FROG 11.1-11.2.) DDSI thus argues that, under Labor Code Section
3602, subdivision (d)(2), neither Simplified nor DDSI may be held liable for
Plaintiff Hernandez’s work-related injuries because Plaintiff was a loaned
employee covered by Simplifier’s workers’ compensation benefits under the
Temporary Services Agreement. In opposition, Plaintiff asserts that “Labor Code §3602(d),
specifically discusses situations where two employers, through an agreement,
agree they are both employers and that the worker’s compensation benefits would
apply to them both, but that is not the case here.” (Opp., 11:2-5.) Plaintiff
asserts that the evidence shows DDSI was never Plaintiff’s employer—it never
possessed the right to control the work of Plaintiff or other Simplified
employees. In reply, Defendant asserts that “[t]he special employment
defense arises when the special employer acquires the right to control the
details of the provided employee’s work,” whereas “[t]he Labor Code §3602
statutory employment defense requires no such showing of control.” (Reply,
3:7-9.) Defendant argues that, for Labor Code section 3602, subdivision (d) to
apply, Defendant need only show Simplified loaned employees to Defendant, and
that they had an agreement by which Simplified would provide worker’s compensation.
The Court agrees with Plaintiff that DDSI has not
established it was Plaintiff’s employer for purposes of Labor Code section
3602, subdivision (d). “Labor Code section 3602, subdivision (d) [provides
that] a special employer may enter into an agreement with a general employer
under which the latter agrees to obtain, and in fact obtains, coverage for the
special employees.” (Property Casualty Co. of America v. Workers' Comp.
Appeals Bd. (2019) 40 Cal.App.5th 728, 732.) Here, DDSI simply assumes that
it was Plaintiff’s employer. Yet as discussed under the previous section, the
Court finds Plaintiff has offered ample evidence creating triable issue of fact
as to whether DDSI was a “special employer.” Defendant cites no authority
supporting its contention that DDSI thus cannot establish as a matter of law
that it was Plaintiff’s employer for purposes of Labor Code section 3602,
subdivision (d). The Court thus finds DDSI has failed to meet its burden as to
asserting immunity under the Workers Compensation Act. Accordingly, DDSI’s Motion for Summary Judgment is denied. Case Number: 22NWCV00668 Hearing Date: March 11, 2025 Dept: C Ex Parte App - A tentative ruling is pending. Case Number: 22NWCV01625 Hearing Date: March 11, 2025 Dept: C
LAROSE v. BURRELL CASE NO.: 22NWCV01625 HEARING: March 11, 2025 @ 9:30 a.m. #2 TENTATIVE ORDER I.
Defendant
Teresa Monique Burrell’s Motion to Compel Responses to Specially Prepared
Interrogatories (Set Two) is GRANTED. II.
Defendant
Teresa Monique Burrell’s Motion to Compel Responses to Specially Prepared
Interrogatories (Set Three) is GRANTED. III.
Sanctions
are awarded to Defendant in the amount of $665.00 for both Motions. Defendant to give
notice. Background This is a motor vehicle negligence action. On December 12,
2022, Plaintiff Daniel Mark LaRose (“Plaintiff”) filed this action against
Defendant Teresa Monique Burrell (“Defendant”) and Does 1 to 20. The Complaint
alleges an accident occurred on June 1, 2022, in which Defendant negligently
operated a vehicle, injuring Plaintiff. The Complaint alleges one cause of
action for motor vehicle negligence. On July 31, 2024, Defendant served Specially Prepared
Interrogatories (Set Two) on Plaintiff. (Hurley Decl., ¶ 2, Exh. A.) On August
29, 2024, Defendant served Specially Prepared Interrogatories (Set Three) on
Plaintiff. (Hurley Decl., ¶ 2, Exh. A.) Plaintiff failed to respond to
Defendant’s discovery requests. (Hurley Decls., ¶¶ 5-6.) Defendant now moves to compel Plaintiff’s responses to
Specially Prepared Interrogatories (Set Two) and Specially Prepared
Interrogatories (Set Three). Defendant also requests sanctions for each Motion. No opposition has been filed as of March 7, 2025. Legal Standard If a party fails to timely respond to interrogatories, the
party to whom the request is directed waives any right to exercise the option
to produce writings under Code Civ. Proc., § 2030.230, and waives any
objection, including one based on privilege or on the protection for work
product. (Code Civ. Proc., § 2030.290, subd. (a).)The party who propounded
the discovery request may bring a motion to compel responses to the
interrogatories. (Code Civ. Proc., § 2030.290, subd. (b).) Discussion Defendant asserts that Plaintiff has failed to provide
responses to Specially Prepared Interrogatories (Set Two) and Specially
Prepared Interrogatories (Set Three) as of date. Defendant argues such failure
is preventing Defendant from preparing her case. While no meet and confer is
required before filing a motion to compel, Defendant has sent meet and confer
letters regarding the outstanding discovery requests. (Hurley Decls., ¶ 3, Exh.
B.) Defendant requests the Court to order that responses be provided by
Plaintiff within 20 days from the date of this hearing. No opposition has been filed. The Court finds Plaintiff has failed to provide timely
responses to Specially Prepared Interrogatories (Set Two) and Specially
Prepared Interrogatories (Set Three). Accordingly, Defendant’s Motions to
Compel Reponses are granted. Plaintiff is ordered to respond within 20 days
from the date of this hearing. Sanctions Courts shall impose a monetary sanction against any party
who unsuccessfully makes or opposes a motion to compel a response to
interrogatories unless it finds the party “acted with substantial justification
or other circumstances make the imposition of the sanction unjust.” (Code Civ.
Proc., § 2030.290, subd. (c).) Defendant seeks sanctions in the total amount of $572.00 for
each motion, for 2 hours to prepare each Motion and 2 hours the hearing, at an
hourly rate of $133.00. The Court reduces the sanctions amount as follows: 2 hours
to prepare each motion and 1 hour to attend the hearing for both Notions.
Accordingly, the Court awards sanctions in the total reduced amount of $665.00
for both Motions against Plaintiff and Plaintiff’s counsel. Case Number: 23NWCV00276 Hearing Date: March 11, 2025 Dept: C Ex Parte App - A tentative ruling is pending. Case Number: 23NWCV00582 Hearing Date: March 11, 2025 Dept: C
ADHARA WALL v. WHITTIER POLICE DEPARTMENT, ET AL. CASE NO.: 23NWCV00582 HEARING: March 11,
2025 @ 9:30 a.m. #9 REVISED TENTATIVE ORDER Plaintiff Victoria
Adhara Wall’s Motion to Compel Further Responses to Request for Admissions, Set
No. 1 is GRANTED, in part. Sanctions are not
awarded at this time. Plaintiff to give
notice. Background This is a conversion action. On February 23, 2023, Plaintiff
Victoria Adhara Wall (“Plaintiff”) filed this action against Defendants City of
Whittier, Whittier Police Department, Detective Chad Hoeppner, and Does 1 to
20. The Complaint alleges that Defendants Detective Chad Hoeppner and Whittier
Police Department obtained numerous search warrants based on false allegations,
and thereafter seized Plaintiff’s property. The search warrants were obtained
in relation to a criminal investigation of murders, in which Plaintiff’s
husband is a suspect. The Complaint alleges that the property has no
evidentiary value, and Defendant have refused to return Plaintiff’s property
despite Plaintiff’s requests. The Complaint alleges one cause of action for
conversion. On February 16, 2024, Plaintiff served Defendant Whittier
Police Department (“Defendant”) with Requests for Admissions, Set No. 1. (C 3,
Exh. 1.) At the requests of Defense counsel, Plaintiff’s counsel extended the
deadline to provide responses to April 2, 2024, and then to April 9, 2024. (C
4-5.) On April 9, 2024, Defendant served its responses to the Requests for
Admission. (Chilakos Decl., ¶ 6, Exh. 2.) Plaintiff now moves to compel Defendant’s further responses
to Requests for Admissions, Set No. 1 (“RFA”). Legal Standard Meet and Confer A motion to compel further responses to requests for
admissions must be accompanied by a meet and confer declaration. (Code Civ.
Proc. § 2033.230, subd. (b)(1).) The declaration must state facts showing a
reasonable and good faith attempt at an informal resolution of each issue
presented in the motion. (Code Civ. Proc. § 2016.040.) Counsel for both parties exchanged meet and confer letters
regrading the deficiencies in Defendant’s responses. (Chilakos Decl., ¶¶ 7,12.)
The parties further met and conferred via telephone on July 24, 2024 and
September 3, 2024. (Chilakos Decl., ¶ 13.) Plaintiff’s counsel filed this
Motion after not receiving supplemental responses from Defendant as promised during
their July 24, 2024 telephone call. (Chilakos Decl., ¶ 16.) The Court finds the
meet and confer requirement has been met. Discussion Plaintiff seeks to compel further responses to RFA Nos. 10,
11, 12, 16, 20, 22, 24 and 29. In the opposition, Defendant indicates it has
provided supplemental responses to RFA Nos. 10, 11, 12, 16 and 22, leaving RFA
Nos. 20, 24 and 29 at issue. (Kranker Decl., ¶ 9.) RFA Nos. 20, 24 and 29 are provided as follows: ·
REQUEST FOR ADMISSION NO. 20: ADMIT THAT there
are no lawful or investigative purposes for the continued retention of the
items seized by Defendant WPD pursuant to the searches of Summit Drive, Byron
Road and Airplane Hanger. ·
REQUEST FOR ADMISSION NO. 24: ADMIT THAT WPD
never returned to Plaintiff VICTORIA ADHARA WALL any of the personal property
seized pursuant to its searches of the Summit Drive, Byron Road and Airplane
Hanger locations. ·
REQUEST FOR ADMISSION NO. 29: ADMIT THAT
Plaintiff VICTORIA ADHARA WALL did not consent to Defendant WPD’s seizures of
personal property pursuant to the execution of search warrants for the Summit
Drive, Byron Road and Airplane Hanger locations. Defendant objects to the RFAs on the following grounds: 1)
the RFA seek an admission regarding 4 separate locations and thus, are
improperly compound, 2) Plaintiff’s possessory interest in the property is
irrelevant in light of Plaintiff’s husband’s interest in the property, as it is
community property, 3) the RFAs are vague, ambiguous, and overly broad, 4) the
RFAs seek confidential information related to an ongoing criminal
investigation, 5) with regard to RFA No. 20, the request seeks information
contained in a warrant which was ordered sealed by a judge, and 6) the
necessity of confidence outweighs the need for disclosure. Plaintiff asserts 1) the RFAs are not compound—the requests
seek a response as to the locations collectively and Defendant is required to
respond as completely as possible, 2) Defendant’s community property argument
is an invalid and vague objection, 3) Defendant objection that the RFAs are
vague does not relieve it of providing a substantive response, 4) Defendant has
provided no evidence other than a declaration from its counsel that the search
warrants were ordered sealed (Kranker Decl., ¶ 3) and has not otherwise
explained how the warrants contain such requested information, and 5) the
opposition contains no facts to support its contention that necessity of
confidence outweighs the need for disclosure. The Court finds the RFAs are compound and sustains that
objection. The Court nevertheless finds Defendant should respond to RFAs No. 24
and 29, regarding each property specifically, not collectively. As to RFA No. 20, the Court finds such request improperly requests
a legal conclusion. The request seeks information—i.e., information
Defendant’s officers relied upon when seizing the property—which is contained
in a sealed search warrant. The Court thus sustains Defendant’s objection to
RFA No. 20. Accordingly, the Court grants the Motion as to RFA Nos. 24
and 29 and denies the Motion as to RFA No. 20. Sanctions The court shall impose a monetary sanction against any
party, person, or attorney who unsuccessfully makes or opposes a motion to
compel further response, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances make the
imposition of the sanction unjust. (Code Civ. Proc., § 2033.290, subd. (d).)California Rules of Court, Rule 3.1348 states that a
“court may award sanctions under the Discovery Act in favor of a party who
files a motion to compel discovery, even if requested discovery was
provided to the moving party after the motion was filed. Plaintiff seeks monetary sanctions in the amount of $7,408.65
for preparing and filing this Motion, plus $1,860.00 for preparing the reply
and attending the hearing, for a total of $ 9,268.565. In opposition, Defendant
argues that sanctions are unwarranted were Defendant refused to provide
responses in good faith, pursuant to its objections. Further, Defendant asserts
it provided supplemental responses as to most of the RFAs. Defendant asserts
that if sanctions are warranted, the amount should be no more than $1,000.00.
In reply, Plaintiff reiterates the full amount of sanctions are warranted. The Court finds sanctions are unwarranted given the mixed
ruling. Thus, the Court declines to award sanctions at this time. Case Number: 23NWCV00752 Hearing Date: March 11, 2025 Dept: C Ex Parte App - A tentative ruling is pending. Case Number: 23NWCV01015 Hearing Date: March 11, 2025 Dept: C Ex Parte App - A tentative ruling is pending. Case Number: 23NWCV01923 Hearing Date: March 11, 2025 Dept: C Ex Parte App - A tentative ruling is pending. Case Number: 23NWCV02529 Hearing Date: March 11, 2025 Dept: C Ex Parte App - A tentative ruling is pending. Case Number: 23NWCV02902 Hearing Date: March 11, 2025 Dept: C
SANCHEZ v. FORD MOTOR COMPANY CASE NO.: 23NWCV02902 HEARING: March 11, 2025 @ 9:30 a.m. #3 TENTATIVE ORDER Defendant Ford Motor Company’s Motion for Entry of
Protective Order to Govern Production of Confidential Materials is GRANTED, in
part. Defendant to give
notice. Background This is a lemon law action. On September 13, 2023, Plaintiff
Steven Sanchez (“Plaintiff”) filed this action against Ford Motor Company, Ted
Jones Ford, Inc. dba Ken Grody Ford Buena Park, and Does 1 to 10. On August 5,
2024, Plaintiff filed the First Amended Complaint (FAC). The FAC alleges
Plaintiff purchased a 2019 Ford F-150 (“Subject Vehicle”), whereby Ford Motor
Company, the manufacturer of the Vehicle, issued a written warranty. The
Subject Vehicle allegedly manifested defects within the warranty period. The
Complaint asserts the following causes of action: (1) Violation of Song-Beverly
Act (Breach of Express Warranty), (2) Violation of Song-Beverly Act (Breach of
Implied Warranty), 3) Violation of Song-Beverly Act Section 1793.2, and 4)
Negligent Repair. Defendant Ford Motor Company (“Defendant”) now moves for
entry of protective order. Legal Standard Code of Civil Procedure section 2031.060 states the
following: “(a) When an
inspection, copying, testing, or sampling of documents, tangible things,
places, or electronically stored information has been demanded, the party to
whom the demand has been directed, and any other party or affected person, may
promptly move for a protective order. This motion shall be accompanied by a
meet and confer declaration under Section 2016.040. (b) The court, for
good cause shown, may make any order that justice requires to protect any party
or other person from unwarranted annoyance, embarrassment, or oppression, or
undue burden and expense. […]” (Code Civ. Proc., § 2031.060, subds. (a), (b).) The decision upon whether to enter a protective order lies
within the sound discretion of the court. (Raymond HandlingConcepts
Corp. v. Superior Court(1995) 39 Cal.App.4th 584, 588, 591;MeritplanInsurance
Co. v. Superior Court(1981) 124 Cal.App.3d 237, 242.) Moving parties have
the burden to show good cause for protective order. (Emerson Electric Co.
v. Superior Court(1997) 16 Cal.4th 1101, 1110.) Meet and Confer A motion for protective order must include a meet and confer
declaration under Section 2016.040. (Code Civ. Proc., § 2031.060, subd. (a).)
Counsel for both parties exchanged meet and confer letters regarding the
proposed protective order, but they were unable to come to a resolution. (Amin
Decl., ¶ 6, Exhs. C-D.) The Court finds the meet and confer requirement has
been met. Discussion Defendant explains that the parties do not dispute the need
for protective order, but rather cannot agree on its form. Defendant asserts
that its responses to Plaintiff’s Requests for Production of Documents contain confidential,
proprietary, or trade-secret information and materials (See Amin Decl., ¶ 2;
Doss Decl., ¶¶ 5-8.) Defendant seeks to modify the LASC Model Protective Order
to facilitate the exchange of Ford’s confidential and proprietary information
and documents in this case. (Mot., 6:22-24.) The Court will discuss each proposed modification in turn. Paragraph 7 Defendant’s revisions to paragraph 7 clarify sub-section
(b), confirming that the term “affiliated attorneys” mean attorneys in the same
firm. Defendant’s revision also provides that Plaintiff’s counsel’s office
personnel who have access to Defendant’s confidential documents must sign
Exhibit A. Defendant proposes a revision to sub-section (d) to include
videographers and litigation support companies (along with court reporters),
who may have access to Defendant’s confidential documents by virtue of their retention
in a case. Defendant removed sub-section (f), which permitted mock jurors to
access Defendant’s confidential documents because Defendant has no ability to
identify such persons or ensure (or confirm) their compliance. Defendant also
revised sub-section (g) to include non-attorneys with experts, and to provide
that Defendant’s confidential documents may not be shown to competitors of Defendant.
In opposition, Plaintiff argues that the modifications are
unwarranted and burdensome. Specifically, restricting access to confidential
documents to attorneys within the same firm is unnecessary, as are disclosure
limitations to mock juries. Plaintiff
asserts mock juries under the LASC Model Protective Order already must sign a
certification, thereby ensuring their accountability. Further, requiring all of
Plaintiff’s office personnel who have access to Defendant’s confidential
documents to sign Exhibit A is practically infeasible. Essentially, Plaintiff
asserts the LASC Model Protective order adequately protects Defendant’s
interests in safeguarding confidential information. In reply, Defendant asserts that modifications are
necessary. Plaintiff has proved no undue burden on Plaintiff’s counsel’s
ability to prepare for trial with the modifications. The modifications will
allow Defendant to adequately keep track of who is bound to the protective
order in case issues arise. The Court finds that clarification of the term “affiliated
attorneys” (modification of subsection (b)) and exclusion of mock jurors from
accessing confidential documents (deletion of subsection (f)) do not, on their
face, impose an undue burden on Plaintiff. Defendant has demonstrated the
appropriateness of such measures to protect its confidential and proprietary
information. The Court further finds the modifications to sub-sections (d)
and (g) are reasonable. However, the Court agrees with Plaintiff’s argument that a
requirement that all employees in Plaintiff’s counsel’s office must sign
Exhibit A is unnecessary and unduly burdensome. Under the Model Order, the
signature of Plaintiff’s counsel binds counsel, the firm, and its employees. Requiring
additional signatures of other employees merely imposes a heavier
administrative burden with no justified benefit. Paragraph
8 Defendant’s revisions to paragraph 8 provide that the
receiving party may not post Defendant’s confidential documents to any website
or advertise Defendant’s documents for sale. Defendant asserts these provisions
are reasonable and necessary to protect Defendant’s documents from improper
dissemination. (Doss
Decl., ¶¶ 9-12.) In opposition, Plaintiff argues that these revisions are
unnecessary, as the Model Protective Order strictly limits the use of these
materials to the litigation process and not for any business or other purpose.
In reply, Defendant asserts that the LASC Model Order does not specifically
address the posting of or sale of Defendant confidential documents, and thus,
such modification is necessary. The Court finds the modification to paragraph 8 is
reasonable. An express prohibition against the posting or sale of Moving
Defendant’s confidential documents on a website or internet-accessible
repository will prevent improper dissemination. Further, such modification imposes
no burden on Plaintiff’s use of these materials in furtherance of this action. Paragraph 21 Defendant’s revisions to paragraph 21 clarify the process
for Plaintiff’s counsel to return or destroy Defendant’s confidential documents
at the conclusion of the case. Defendant’s revisions state that, 30 days after
the resolution of the case, the parties shall (a) promptly return all
Confidential Materials to counsel or (b) securely destroy the Protected
Documents. Defendant asserts that the modification provides a process for the
return of Defendant’s confidential documents at the conclusion of the case. In opposition, Plaintiff argues that the modification will
not allow counsel to maintain a complete copy of the case file, subject to the
protective order, as the LASC Model Protective Order currently allows. In
reply, Defendant asserts that, without the modification, “Plaintiff’s counsel
can keep Ford’s confidential documents in perpetuity, which affords Ford no
ability to track their location and use over time.” (Reply, 4:14-15.) The Court finds the modification to paragraph 21 is
reasonable. The modification provides a clear and enforceable timeline for
protection of Moving Defendant’s confidential information at the conclusion of
the case. Conclusion The Court therefore finds good cause for the issuance of a
protective order as proposed by Defendant, with the exception of the
requirement that Plaintiff’s counsel’s office personnel sign the certification
attached as Exhibit A to the proposed order. Accordingly, Defendant’s motion for protective order is
granted, in part, as specifically stated in the Court’s written order. The
parties are ordered to cooperate in drafting the finalized version of the
protective order, sign the document, and provide a copy for the Court’s
signing. Case Number: 23NWCV02996 Hearing Date: March 11, 2025 Dept: C
HERRERA v.
AMERICAN HONDA MOTOR CO., INC. CASE NO.: 23NWCV02996 HEARING: March 11,
2025 @ 10:30 a.m. #10 REVISED TENTATIVE ORDER Plaintiff Rogelio
Herrera’s Motion to Compel Defendant American Honda Motor Co., Inc.’s
Compliance with Defendant’s Response to Request for Production of Documents,
Set One, is GRANTED, in part. Plaintiff’s request
for sanctions is GRANTED. Sanctions are awarded in the amount of $1,975.00. Plaintiff to give notice.
Background This is a lemon law action. On September 21, 2023, Plaintiff
Rogelio Herrera (“Plaintiff”) filed this action against Defendant American Honda
Motor Co., Inc. (“Defendant”). The Complaint that Plaintiff entered into a
warranty contract regarding a 2020 Honda CR-V (“Subject Vehicle”) with
Defendant, the manufacturer of the vehicle. The FAC alleges the Subject Vehicle
presented defects, including but not limited to, sensing defects, steering
defects, and electrical defects during the warranty period. The FAC alleges the
following causes of action: 1) Violation of Subdivision (D) of Civil Code
Section 1793, 2) Violation of Subdivision (B) of Civil Code Section 1793.2, 3)
Violation of Subdivision (A)(3) of Civil Code Section 1793.2, 4) Breach of the
Implied Warranty of Merchantability, and 5) Fraudulent Inducement – Concealment. On December 11, 2023, Plaintiff served the Request for
Production of Documents (Set One) (“RPD”) on Defendant. (Theophil Decl., ¶ 4,
Exh. 1; Adjei Decl., ¶ 2, Exh. A.) On February 21, 2024, Defendant served
verified responses to Plaintiff’s Request for Production. (Theophil Decl., ¶ 5,
Exh. 2; Adjei Decl., ¶ 3, Exh. B.) Defendant’s responses as to RPD Nos. 1, 2,
4, 5, 8, 10, 13, 14, 54, 57, 58, 63, 65, 67, 76, and 77 stated that Defendant
would provide responsive documents to those requests. (Ibid.) On April 8, 2024, the parties signed and filed a Joint
Stipulation and Proposed Protective Order. (Theophil Decl., ¶ 6, Exh. 3; Adjei
Decl., ¶ 4, Exh. C.) As of the date of filing this Motion, June 10, 2024,
Defendant had not provided the responsive documents. (Theophil Decl., ¶¶ 7-8.) Plaintiff now moves to compel Defendant’s compliance with
its statement of intent to provide responsive documents to RPD Nos. 1, 2, 4, 5,
8, 10, 13, 14, 54, 57, 58, 63, 65, 67, 76, and 77. Legal Standard “If a party filing a response to a demand for inspection,
copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230,
2031.240, and 2031.280 thereafter fails to permit the inspection, copying,
testing, or sampling in accordance with that party’s statement of compliance,
the demanding party may move for an order compelling compliance.” (Code
of Civ. Proc., §2031.320, subd. (a).) Discussion Plaintiff argues that Defendant failed to produce documents
in compliance with its responses to RPD Nos. 1, 2, 4, 5, 8, 10, 13, 14, 54, 57,
58, 63, 65, 67, 76, and 77. Plaintiff sent two meet and confer letters, and
Defendant failed to respond. (Theophil Decl., ¶¶ 9-11, Exhs. 4-6.) In opposition, Defendant states that, on January 23, 2025,
Defendant produced its responsive document production, consisting of 1,235
pages. (Adjei Decl., ¶ 5.) Defendant has attached the Proof of Service of
Defendant’s Production of Documents as Exhibit D. Defendant asserts the Motion
is thus moot. In reply, Plaintiff acknowledges that, on January 23, 2025,
Defendant produced documents in compliance with its responses. Yet Plaintiff
asserts that Defendant has still failed to produce the following documents
relating to the Subject Vehicle’s history, which are responsive to RDP No. 1:
1) eVRM documents (these documents would contain critical battery test info not
found in any other document), 2) Interactive Network (“iN”) documents, which
include warranty claim submissions via the iN system; and 2) Recalls, Technical
Service Bulletins, Campaigns, etc., applicable to the Subject Vehicle.
Plaintiff asserts Defendant “should be ordered to perform a good faith search
of its databases in this case as it has in other Song-Beverly Consumer Warranty
Act (“SBA”) cases and produce these essential documents.” (Reply, 3:1-3.) Given that Defendant has provided some of the responsive
documents at issue, the Court finds Plaintiff’s Motion is moot as to those
documents. As per Plaintiff’s reply, the Court finds certain documents
responsive to RDP No. 1 have not yet been produced. Thus, the Court grants the
Motion as to the documents Defendant has not yet produced. Sanctions Code of Civil Procedure section 2031.320, subdivision (b)
provides the following: “Except as provided in subdivision (d), the court shall
impose a monetary sanction under Chapter 7 (commencing with Section 2023.010)
against any party, person, or attorney who unsuccessfully makes or opposes a
motion to compel compliance with a demand, unless it finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.” (Code of Civ. Proc.,
2031.320, subd. (b).) Sanctions may be
awarded even where the responding party has produced documents after the motion
to compel was filed. (Cal. Rules of Court, rule 3.1348.) Plaintiff requests sanctions in the amount of $1,975.00 for
five hours spent preparing this Motion at an hourly rate of $375.00.
Plaintiff’s counsel asserts sanctions are warranted where Plaintiff diligently
attempted to meet and confer with Defendant, and Defendant failed to respond to
such attempts. (Theophil Decl., ¶¶ 9-11, Exhs. 4-6.) Plaintiff asserts
Defendant was not substantially justified in failing to comply with its promise
to provide the responsive documents. Defendant argues sanctions are not warranted where Defendant
provided the documents at issue as soon as they were available. Defendant has “never
refused to provide further responses and proceeded in good faith to serve its
document production.” (Opp., 3:25-26.) The Court finds sanctions are warranted here. Defendant has
not provided substantial justification for why it failed to timely produce
documents in compliance with its responses. Accordingly, sanctions are awarded
in the amount of $1,975.00. Case Number: 23NWCV03339 Hearing Date: March 11, 2025 Dept: C
RUBIO v. PESCINA CASE NO.: 23NWCV03339 HEARING: March 11, 2025 @ 9:30 a.m. #4 TENTATIVE ORDER Defendant Arcelia Pescina’s Motion to Set Aside Entry of Default is DENIED without prejudice. Clerk to give notice. Background This is a premises liability action. On October 17, 2023, Plaintiff Christina Rubio (“Plaintiff”) filed this action against Defendant Arcelia Pescina (“Defendant”). The Complaint alleges that Defendant’s dog bit Plaintiff at premises located at 9200 Downey Ave., Downey, CA 90240 on January 1, 2022, causing Plaintiff injuries. On February 8, 2024, Plaintiff filed a Proof of Personal Service on Defendant at 9200 Downey Ave., Downey, CA 90240. On May 10, 2024, Plaintiff filed a Request for Entry of Default against Defendant. On June 4, 2024, the Request for Entry of Default was granted. Defendant, in pro per, now moves to set aside the entry of default against her pursuant to No opposition has been filed as of March 7, 2025. Legal Standard Code of Civil Procedure section 473, subdivision (b) states the following: “(b) The court may, upon any terms as may be just, 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.” Code of Civil Procedure section 473.5 states the following: “(a) When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. . . (c) Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action.” A motion to vacate a default and set aside a judgment is within the discretion of the trial court. (Strathvale Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249.) “Lack of personal jurisdiction renders a judgment (or default) void, and the default may be directly challenged at any time.” (Id. at p. 1250.) “When a defendant challenges the court’s personal jurisdiction, the plaintiff has the initial burden of demonstrating facts justifying the exercise of jurisdiction.” (Ibid.) “‘A summons is the process by which a court acquires personal jurisdiction over a defendant in a civil action’ [citation], and a defendant has an absolute right to demand that process be issued against him in a manner prescribed by law.” (Mannesmann DeMag, Ltd. v. Superior Court(1985) 172 Cal.App.3d 1118, 1122.)“As a general rule, however, the provisions of the rules governing service of process are to be liberally construed.” (Ibid.) Discussion Defendant argues the entry of default should be set aside because Defendant was not served properly and did not have notice of this action. Defendant argues that she did not respond to the Complaint because of improper service, which constitutes excusable negligent under Code of Civil Procedure section 473, subdivision (b). No opposition was filed. The Court initially notes that Plaintiff has filed a Proof of Personal Service indicating that Defendant was served on February 7, 2024 at 9:31 a.m. at 9200 Downey Ave Downey, CA 90240-2802. (See 2/7/24 POS.) The Court finds that Defendant has not demonstrated excusable neglect under Code of Civil Procedure section 473, subdivision (b). The Court finds it more appropriate to analyze Defendant’s potential relief under Code of Civil Procedure section 473.5, which applies where a service of summons has not resulted in actual notice to a party in time to defend the action. The Court finds Defendant has not provided proof that service was improperly effectuated. Plaintiff filed a Proof of Personal Service indicating Defendant was served on February 7, 2024. “[T]he filing of a proof of service creates a rebuttable presumption that . . . service was proper.” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) “[A] registered process server’s declaration establishes a presumption affecting the burden of producing evidence of the facts stated in the declaration.” (American Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 390 (finding, where a proof of service is filed, defendant is required to produce evidence he was not served—defendant’s declaration that he was not served was found to be insufficient.) In support of the Motion, Defendant merely states that she had never been served with the Summons and Complaint and that she first became aware of the lawsuit when she received notice of default judgment. (Pescina Decl., ¶¶ 2-3.) Defendant’s declaration does not provide evidence that service was insufficient. The Court is not persuaded that Defendant’s statements in the declaration alone can overcome the presumption that service was proper. (Zara, supra 199 Cal.App.4th 383, 390 (“Defendant declared that he was not served. [T]he trial court was not required to accept this self-serving evidence contradicting the process server's declaration.”) Further, there is no indication on the face of the proof of service that service was otherwise improper. Accordingly, Defendant’s Motion to Set Aside Default is denied. Case Number: 23NWCV04206 Hearing Date: March 11, 2025 Dept: C
BAEK v. TISHBI, ET AL. CASE NO.: 23NWCV04206 HEARING: March 11, 2025 @ 9:30 a.m. #5 TENTATIVE ORDER Defendant Northfield Insurance Company’s Demurrer is SUSTAINED without leave to amend. Defendant to give notice. Background This is a fraud action. On December 29, 2023, Plaintiff Seung Jae Baek, in pro per, (“Plaintiff”) filed this action against Defendants Elliot Tishbi, Jefferson Esquerra, Stephen J. Jung, Dietz International Public Adjusters of California, (“Dietz”) Northfield Insurance Company, (“Northfield”) and Does 1 to 20. On July 23, 2024, Plaintiff filed the First Amended Complaint (FAC). The FAC alleges that Plaintiff is the sole owner and shareholder of Day Trippin, a California Corporation. The gravamen of the FAC is that, in Defendant Dietz’s instruction, Defendant Tishbi, Defendant Esquerra, and Defendant Steven falsified Day Trippin’s invoices so that they could maximize their fire insurance claim with Northfield Insurance Company. (FAC, ¶ 32.) The FAC alleges the following causes of action: 1) Fraudulent Misrepresentation, 2) Falsification of Documents, and 3) Negligence. The third cause of action for negligence the only cause of action alleged against Defendant Northfield Insurance Company. Defendant Northfield Insurance Company (“Defendant”) now demurs to the third cause of action for failure to state a claim. An untimely opposition was filed on March 3, 2025. No reply has been filed as of March 6, 2025. Legal Standard As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) Meet and Confer Code of Civil Procedure section 430.41, subdivision (a) requires meeting and conferring “in person or by telephone.” On May 24, 2024, Defense counsel attempted to meet and confer with Plaintiff regarding the proposed Demurrer via email. (DeLaney Decl., ¶ 2, Exh. A.) The parties could not come to an agreement. (Ibid.) The Court finds the meet and confer requirement has not been met where the parties did not meet in person or by telephone. Nevertheless, the Court addresses the merits of the Demurrer in the interests of judicial efficiency. Discussion Defendant demurs to the third cause of action for negligence based on failure to state a claim. Specifically, Defendant argues that Plaintiff failed to allege a duty owed to Plaintiff that would require it to provide claim file documents. Defendant had no relationship to Plaintiff. Further, Defendant was prohibited from disclosing insurance claim documents pursuant to Information and Privacy Protection Act (Ins. Code § 791.01 et seq.) and 15 U.S.C. § 6801(a), which requires a financial institution “to protect the security and confidentiality of [its] customers’ nonpublic personal information.” Further, Plaintiff has not pleaded that he suffered any damages as a result of Defendant’s refusal to produce the claim documents. In opposition, Plaintiff argues that Defendant owed a legal duty to him, as third-party injured by an insured’s criminal conduct. Plaintiff does not dispute that no contractual relationship exists between him and Defendant. No reply has been filed. In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) The Court finds Plaintiff failed to allege a legal duty owed to him by Defendant to provide the insurance documents. Plaintiff provides no legal authority in opposition to support the contention that insurance companies owe a duty to a third-party injured by an insured’s criminal conduct. The Court agrees with Defendant that Plaintiff’s requested documents are required to be protected under the Insurance Information and Privacy Protection Act (Act) (Ins. Code § 791.01 et seq.).) “Recognizing the information so compiled would be considered private by an insured or perhaps legally privileged as work product, the authors of the Act strictly limited the dissemination of information contained in insurance files. Specifically, unless otherwise provided, carriers may not disclose “personal” or “privileged” information.” (Griffith v. State Farm Mut. Auto. Ins. Co. (1991) 230 Cal.App.3d 59, 66; see also Ins. Code, § 791.13.) “‘Privileged information’ means any individually identifiable information that both: (1) Relates to a claim for insurance benefits. . .(2) Is collected in connection with or in reasonable anticipation of a claim for insurance benefits. . .” (Ins. Code, § 791.02, subd. (v)(1)-(2).) Here, Plaintiff seeks invoices provided to Defendant that were provided in support of an insurance claim. Defendant was legally required to protect the privacy of these claim file documents under the Act. The Court thus finds Defendant owed no duty to Plaintiff to provide such documents. Further, the Court agrees that the Complaint does not plead Plaintiff suffered damages as a result of Defendant’s refusal to provide the claim documents. Accordingly, Defendant’s Demurrer to the third cause of action for negligence is sustained without leave to amend. Case Number: 24NWCV00886 Hearing Date: March 11, 2025 Dept: C
MILES v. HYUNDAI CASE NO.: 24NWCV00886 HEARING: March 11, 2025 @ 9:30 a.m. #6 TENTATIVE ORDER Defendant Hyundai Motor America’s Motion to Compel Arbitration is GRANTED. The action is stayed pending arbitration. Defendant to give notice. Background This is a lemon law action. On March 25, 2024, Plaintiff Kevinisha Miles (“Plaintiff”) filed this action against Defendant Hyundai Motor America (“Defendant”) and Does 1 to 10. The Complaint alleges Plaintiff entered into a warranty contract regarding a 2023 Hyundai Kona (“Subject Vehicle”), with Defendant, the manufacturer of the Vehicle. (Compl., ¶ 27.) The Subject Vehicle allegedly presented defects, including but not limited to engine problems, during the warranty period. The Complaint alleges the following causes of action: 1) Violation of Song-Beverly Act-Breach of Express Warranty and 2) Violation of Song-Beverly Act-Breach of Implied Warranty. These causes of action arise out of “the warranty obligations of [Defendant] in connection with a motor vehicle for which HMA issued a written warranty.” (Compl., ¶ 4.) Defendant Hyundai Motor America now moves to compel arbitration under the Warranty and Bluelink Connected Services Agreement, and requests to stay the action. Evidentiary Objections The Court overrules Plaintiff’s evidentiary objection to the entirety of Vijay Rao’s Declaration in support of the Motion. Legal Standard “If a court of competent jurisdiction. . .has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc., § 1281.4.) Discussion Arbitration Under Hyundai’s Bluelink Service Agreement Defendant argues that arbitration may also be enforced under the Bluelink Connected Services Agreement. Defendant contends that on or about August 3, 2023, Plaintiff enrolled the vehicle in the Hyundai’s Bluelink Service through the Dealer-Assisted Enrollment process. (Rao Decl., ¶ 5.) Hyundai’s Bluelink Service refers to a connected car system that includes various functions and features. (Rao Decl., ¶ 3.) In order to enroll in Hyundai’s Bluelink services, customers must agree to the then-effective Connected Services Agreement (“CSA”). (Rao Decl., ¶ 4.) In order to enroll in Hyundai’s Bluelink services, a person would have had to click a box to acknowledge that they “read and agree[d] to the Blue Link Terms & Conditions” and then click the “Complete” button. (Rao Decl., ¶ 6.) The phrase “Terms & Conditions” included a hyperlink to the CSA. (Ibid.) As presented to Plaintiff, the box acknowledging the Terms & Conditions would not have been “prepopulated” with a check mark. (Ibid.) Plaintiff would have had to click that box to acknowledge assent to the CSA, due to a customer not being able to successfully activate Bluelink services through the Dealer-Assisted Enrollment process unless they complete the step requiring them to click the box acknowledging they agree to the Bluelink Terms and Conditions. (Ibid.) The arbitration provision in the CSA provides the following: (a) Hyundai and you agree to arbitrate any and all disputes and claims between us arising out of or relating to this Agreement, Connected Services, Connected Services Systems, Service Plans, your Vehicle, use of the sites, or products, services, or programs you purchase, enroll in or seek product/service support for, whether you are a Visitor or Customer, via the sites or through mobile application, except any disputes or claims which under governing law are not subject to arbitration, to the maximum extent permitted by applicable law. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us subject to arbitration to the fullest extent permitted by law. […] The agreement to arbitrate otherwise includes, but is not limited to: claims based in contract, tort, warranty, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising) […] (Rao Decl., ¶ 6, Exh. 2, p. 17.) The Court finds Defendant has not met its burden of proving that Plaintiff’s claims are covered under the Bluelink Connected Services Agreement. According to Defendant, the Bluelink system refers to a “connected car system that includes various functions and features.” (Rao Decl., ¶ 3.) It is unclear whether any of Plaintiff’s claims involve the Bluelink system. The Complaint does not mention the Bluelink system. Accordingly, arbitration is not compelled under the Bluelink Connected Services Agreement. Arbitration under the Owner’s Handbook and Warranty Information The 2023 Owner’s Handbook & Warranty Information (“Warranty Agreement”) provides the following: “BINDING ARBITRATION FOR CALIFORNIA VEHICLES ONLY BINDING ARBITRATION FOR CALIFORNIA VEHICLES ONLY PLEASE READ THIS SECTION IN ITS ENTIRETY AS IT AFFECTS YOUR RIGHTS THIS SECTION DOES NOT PRECLUDE YOU FROM FIRST PURSUING ALTERNATIVE DISPUTE RESOLUTION THROUGH BBB AUTO LINE AS DESCRIBED IN THE “ALTERNATIVE DISPUTE RESOLUTION” PROVISION IN SECTION 3 OF THIS HANDBOOK. If you purchased or leased your Hyundai vehicle in the State of California, you and we, Hyundai Motor America, each agree that any claim or disputes between us (including between you and any of our affiliated companies) related to or arising out of your vehicle purchase, advertising for the vehicle, use of your vehicle, the performance of the vehicle, any service relating to the vehicle, the vehicle warranty, representations in the warranty, or the duties contemplated under the warranty, including without limitation claims related to false or misleading advertising, unfair competition, breach of contract or warranty, the failure to conform a vehicle to warranty, failure to repurchase or replace your vehicle, or claims for a refund or partial refund of your vehicle's purchase price (excluding personal injury claims), but excluding claims brought under the Magnuson-Moss Warranty Act, shall be resolved by binding arbitration at either your or our election, even if the claim is initially filed in a court of law. If either you or we elect to resolve our dispute via arbitration (as opposed to in a court of law), such binding arbitration shall be administered by and through the American Arbitration Association (AAA) under its Consumer Arbitration Rules. We will pay all fees for any arbitration except for the initial filing fee of $200. The arbitration will be held in the city or county of your residence. To learn more about arbitration, including the applicable rules and how to commence arbitration, please contact: AAA at www.adr.org; 800-778-7879. This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us (including our affiliated companies) relating to or arising out of your vehicle purchase, use or performance of your vehicle, or the vehicle warranty subject to arbitration to the maximum extent permitted by law. The arbitrator (and not a court) shall decide all issues of interpretation, scope, and application of this agreement. […] Notwithstanding the above, either you or we may file a lawsuit in small claims court for any claims that otherwise require binding arbitration, if the small claims court has jurisdiction. In addition, either you or we may invoke any AAA Consumer Arbitration Rules that allow you or we to have a small claims court decide any claims that otherwise require binding arbitration. This agreement evidences a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Judgment upon any award in arbitration may be entered in any court having jurisdiction. IF YOU PURCHASED OR LEASED YOUR VEHICLE IN CALIFORNIA, YOUR WARRANTY IS MADE SUBJECT TO THE TERMS OF THIS BINDING ARBITRATION PROVISION. BY USING THE VEHICLE, OR REQUESTING OR ACCEPTING BENEFITS UNDER THIS WARRANTY, INCLUDING HAVING ANY REPAIRS PERFORMED UNDER WARRANTY, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE CONTACT US AT OPT-OUT@HMAUSA.COM WITHIN THIRTY (30) DAYS OF YOUR PURCHASE OR LEASE TO OPT-OUT OF THIS ARBITRATION PROVISION. (Ameripour Decl., Exh. 3, pp. 12-14.) Defendant argues Plaintiff agreed to be bound when Plaintiff purchased the vehicle and subsequently presented the vehicle for repair under the Warranty Agreement. Defendant further argues that Plaintiff filed this claim based on the existence of this Warranty. Thus, the arbitration agreement applies to Plaintiff’s claims. Further, it is irrelevant that plaintiff did not sign the agreement. Defendant argues that the doctrine of equitable estoppel applies where Plaintiff took advantage of the benefits in the agreement but attempts to avoid the arbitration clause due to lack of signature. In opposition, Plaintiff argues that 1) Defendant has failed to establish the existence of a contract with a valid arbitration clause because Plaintiff did not sign the Warranty Manual, and 2) Defendant did not comply with the Rees-Levering Act’s single document rule. In reply, Defendant reiterates that Plaintiff, by alleging the existence of the Warranty Agreement between the parties in the Complaint, concedes there was mutual assent. Further, Defendant asserts the Rees-Levering Act does not apply, as it only applies to conditional sale contracts between consumers and the selling dealership. Initially, the Court agrees with Defendant that the Rees-Levering Act only applies to motor vehicle conditional sale contracts, which are defined in Civil Code section 2981. The sale contract associated with the Subject Vehicle is not at issue here—rather, the Warranty Agreement at issue is a contract between the consumer and the manufacturer of the Subject Vehicle. Thus, the Rees-Levering Act is inapplicable. The Court agrees with Defendant that the Warranty Agreement and arbitration provision are valid under the doctrine of equitable estoppel. Plaintiffs do not address equitable estoppel in the opposition. Under equitable estoppel, “a party is not entitled to make use of [a contract containing an arbitration clause] as long as it worked to [his or] her advantage, then attempt to avoid its application in defining the forum in which [his or] her dispute. . .should be resolved.” (Felisilda v. FCA US LLC (2020) 53 Cal.App.5th 486, 496.) The doctrine of equitable estoppel is meant to “prevent a party from playing fast and loose with its commitment to arbitrate, honoring it when advantageous and circumventing it to gain undue advantage.” (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1714.) The Court finds it is immaterial whether Plaintiff was a signatory to the arbitration agreement. “A nonsignatory is estopped from refusing to comply with an arbitration clause when it receives a direct benefit from a contract containing an arbitration clause.” (Boucher v. Alliance Title Co., Inc. (2005) 127 Cal.App.4th 262, 269.) Here, Plaintiff relies on the existence of the warranty in order to maintain the causes of action alleged under the Song-Beverly Warranty Act. (See Compl., ¶ 4.) The Court finds mutual assent was established by Plaintiff’s reliance on the Warranty Agreement’s existence. Plaintiff is thus estopped from avoiding the Warranty Manual’s arbitration agreement. Accordingly, Defendant’s Motion to Compel Arbitration and Request to Stay are granted. Unconscionability The parties do not dispute the unconscionability of the arbitration agreement. Further, where arbitration agreement states the Federal Arbitration Act (FAA) applies, a court’s inquiry is limited to a determination of (1) whether a valid arbitration agreement exists and (2) whether the arbitration agreement covers the dispute. (9 U.S.C., § 4;Chiron Corp. v. Ortho Diagnostics Systems, Inc.(9th Cir. 2000) 207 F.3d 1126, 1130;seealso Simula, Inc. v. Autoliv, Inc.(9th Cir. 1999) 175 F.3d 716 (if the finding is affirmative on both counts, the FAA requires the Court to enforce the arbitration agreement in accordance with its terms).) Here, where the FAA applies, the Court need not address issues of unconscionability. Case Number: 24NWCV04321 Hearing Date: March 11, 2025 Dept: C
OCEAN MANAGEMENT LLC v. HERNANDEZ CASE NO.: 24NWCV04321 HEARING: March 11, 2025 @ 10:30 a.m. #11 TENTATIVE ORDER Defendant Alexandria
Hernandez’s Demurrer is OVERRULED. Clerk to give notice.
Background This is an unlawful detainer action. On November 12, 2024,
Plaintiff Ocean Management LLC (“Plaintiff”) filed this action against Defendant
Alexandria Hernandez dba SJT Electronics (“Defendant”) and Does 1 to 10. The
Complaint alleges Plaintiff leased real property located at 6347 Pacific Blvd,
2nd Floor, Huntington Park, CA 90255 (“Premises”), a commercial rental unit, to
Defendant. The Complaint alleges Defendant failed to pay rent in violation of
the lease, and a delinquency of $23,260.00 became due and payable for the
period through October 31, 2024. On October 24, 2024, Plaintiff served a
written three-day notice demanding the outstanding rent to be paid. Defendant
has allegedly failed to pay rent due and remains in possession of the Premises.
Defendant, in pro per, now demurs to the Complaint with
motion to strike. No opposition has been filed as of March 7, 2025. Legal Standard As a general matter, in a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice.(Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)“A demurrer
tests the pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153
Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the
complaint’s properly pleaded or implied factual allegations. (Ibid.) The
only issue a demurrer is concerned with is whether the complaint, as it stands,
states a cause of action. (Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman
v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff
to show the court that a pleading can be amended successfully. (Id.; Lewis
v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there
is any reasonable possibility that the plaintiff can state a good cause of
action, it is error to sustain a demurrer without leave to amend.” (Youngman
v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.) Meet and Confer Code of Civil Procedure section 430.41, subdivision (a), and
section 435.5, subdivision (a), require meeting and conferring “in person or by
telephone.” The Demurrer and Motion to Strike contains no indication Defendant
met and conferred with Plaintiff. The Court finds the meet and confer
requirement has not been met. Discussion Defendant demurs on the grounds that 1) Plaintiff does not
have capacity to sue, 2) the Complaint fails to state facts sufficient to state
a cause of action, and 3) the Complaint is vague, uncertain, ambiguous, and
intelligible. Uncertainty “A demurrer for uncertainty is strictly construed, even
where a complaint is in some respects uncertain, because ambiguities can be
clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for
uncertainty should be overruled when the facts as to which the complaint is
uncertain are presumptively within the defendant's knowledge. (Chen v.
Berenjian (2019) 33 Cal.App.5th 811, 822.) The Court finds the Complaint is not so uncertain that
Defendant is not on notice of what is being alleged. The Court finds the
demurrer may not be sustained on uncertainty grounds. Plaintiff’s
Capacity Defendant’s declaration states that “Plaintiff does not have
the legal capacity and or standing to sue.” Yet the Court may only look to the
face of the Complaint in ruling on a Demurrer. The Court finds Plaintiff
alleges it is Defendant’s landlord. (Compl., ¶ 1.) Accordingly, on the face of
the Complaint, it has capacity and standing to sue. Failure to State a Cause of
Action Under Code of Civil Procedure section 1161, subdivision (2),
a tenant is guilty of unlawful detainer under the following circumstances: “When the tenant
continues in possession, in person or by subtenant, without the permission of
the landlord, or the successor in estate of the landlord, if applicable, after default
in the payment of rent, pursuant to the lease or agreement under which the
property is held, and three days’ notice, excluding Saturdays and Sundays and
other judicial holidays, in writing, requiring its payment, stating the amount
that is due, the name, telephone number, and address of the person to whom the
rent payment shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment. . .” (Code Civ. Proc., § 1161, subd. (2).) Accordingly, the basic elements of unlawful detainer for
nonpayment of rent are the following: 1) the tenant is in possession of the
premises, 2) that possession is without permission, 3) the tenant is in default
for nonpayment of rent, 4) the tenant has been properly served with a written
three-day notice, and (5) the default continues after the three-day notice
period has elapsed. (KB Salt Lake III, LLC v. Fitness Internat., LLC
(2023) 95 Cal.App.5th 1032, 1045.) Here, the Complaint alleges Defendant is in possession of
the premises without permission. (Compl., ¶¶ 6, 8.) The Complaint further
alleges Defendant is in default for nonpayment of rent. (Compl., ¶ 4.) Lastly,
the Complaint alleges Plaintiff served a three-day notice on Defendant, and
Defendant’s default continued after the three-day notice period elapsed. (Compl.,
¶¶ 5-6.) Thus, the Complaint sufficiently states a cause of action for unlawful
detainer. Accordingly, Defendant’s Demurrer is overruled. Motion to Strike The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).)
The court may also strike all or any 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.
(Id., § 436, subd. (b).) The grounds for moving to strike must appear on the
face of the pleading or by way of judicial notice. (Id. § 437.) The Court finds Defendant has not demonstrated any portion
of the Complaint is irrelevant, false, or improper, or not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court. Accordingly, the Motion to Strike is denied. |
DEPARTMENT C LAW AND MOTION RULINGS
Case Number: 23NWCV01015 Hearing Date: March 10, 2025 Dept: C
Christina Marie Becerril et al. v. County of Los
Angeles, et al. 23NWCV01015 This wrongful death action was filed on April 3, 2023. Trial
is currently scheduled to begin on June 27, 2025. Defendants’ Motion for
Summary Judgment (MSJ) is currently scheduled to be heard after trial, on
September 4, 2025. Defendants now apply ex parte to Advance the Hearing on the
MSJ, or in the alternative, Continue Trial and Related Dates. Defendants argue good cause exists to advance the hearing
because the Court’s reservation system could only accommodate a hearing date
after the trial date. In opposition, Plaintiffs argue that Defendants have not
established good cause because Defendants could have filed their MSJ months
earlier and have still not filed and served their moving papers. Defendants’ ex parte application to Advance the Hearing on
their Motion for Summary Judgment, or in the alternative, to Continue Trial and
Related Dates is DENIED. The Court is unable to grant relief when
Defendants have not filed or served any moving papers for their MSJ.
Additionally, the Court notes that effective on January 1, 2025, notice of the
motion and moving papers “shall be served on all other parties to the action at
least 81 days before the time appointed for hearing.” (Code Civ. Proc. § 437c subd.
(a)(2).) Moving party to give notice. |