DEPARTMENT C33 LAW AND MOTION
Judge James L. Crandall
These are the Court’s tentative rulings. They may become orders if the parties do not appear at the hearing. The Court also might make a different order at the hearing. (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 442, fn. 1.)
If counsel wish to submit on the tentative ruling, please call the Court Clerk (657-622-5233) to notify the Court that all parties are submitting on the tentative and no appearance will be necessary. The tentative will then become the final ruling. If no one appears at the hearing the tentative will be the final ruling. Either side may appear and argue the Court’s tentative ruling.
PREVAILING PARTY SHALL GIVE NOTICE OF THE FINAL RULING TO EACH PARTY and PREPARE AN ORDER/JUDGMENT FOR THE COURT’S SIGNATURE IF THE MOTION IS DISPOSITIVE OF A PARTY OR THE CASE.
All appearances are now through Zoom.
APPEARANCES: Department C33 is currently participating in the Online Check-in/Zoom Pilot Program pursuant to Administrative Order No. 21/07 for non-evidentiary hearings, including law and motion. All counsel and self-represented parties appearing for such hearings must check-in online through the Court's civil video appearance website at https://www.occourts.org/media-relations/civil.html prior to the commencement of their hearing. No in-person appearances will be permitted without a further order of the court upon a showing of good cause. Once the online check-in is completed, counsel and self-represented parties will be prompted to join the courtroom’s Zoom hearing session. Participants will initially be directed to a virtual waiting room while the clerk provides access to the video hearing. Check-in instructions and instructional video are available on the court’s website.
PUBLIC ACCESS: In those instances where proceedings will be conducted only by remote video and/or audio, access will be provided to interested parties by contacting the courtroom clerk, preferably 24 hours in advance. No filming, broadcasting, photography, or electronic recording is permitted of the video session pursuant to California Rules of Court, rule 1.150 and Orange County Superior Court rule 180.
You must provide your own remote court reporter (unless you have a fee waiver and request one in advance).
TENTATIVE RULINGS ON LAW & MOTION MATTERS
ZOOM APPEARANCES ONLY
Date: February 16, 2023 – 10:00 a.m.
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Case Name |
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1 |
Soto de Duarte vs. Heritage Inn 2 22-1254039 |
1. Motion to Set Aside/Vacate Default 2. Case Management Conference
CONTINUED TO February 23, 2023 at 10am
Future hearing dates No future hearing dates |
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3 |
Bella Terra Pharmacy vs. United Healthcare Services 21-1225197 |
Motion to be Relieved of Counsel of Record
OFF CALENDAR – DUPLICATE TO MOTION GRANTED 1/5/23
Future hearing dates 2/23/23 – Demurrer 5/12/23 – MSC 6/12/23 - JT
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4 |
Alcaraz vs. Hyundai Motor America 20-1174532 |
Demurrer to Amended Complaint Defendant Hyundai Motor America demurs to the fifth cause of action for breach of implied warranty alleged by Plaintiff Fernando Vazquez Alcaraz in his Fourth Amended Complaint (4AC). Defendant demurs to Plaintiffs’ fifth cause of action on the grounds that the claim is untimely because it was brought beyond the four-year statute of limitations set forth in Civil Code §1791.1, subdivision (c) and Commercial Code §2725. Civil Code section 1791.1, subdivision (c), provides, “The duration of the implied warranty of merchantability and where present the implied warranty of fitness shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer. Where no duration for an express warranty is stated with respect to consumer goods, or parts thereof, the duration of the implied warranty shall be the maximum period prescribed above.” Commercial Code section 2725 provides in pertinent part, “(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it. [¶] (2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. . . . [¶] (4) This section does not alter the law on tolling of the statute of limitations nor does it apply to causes of action which have accrued before this code becomes effective.” The four-year statute of limitations under California Uniform Commercial Code section 2725 applies to claims under the Song-Beverly Act, including the action for breach of warranty. (Kreiger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 213.) As to the future performance exception, Cardinal Health 301, Inc. v. Tyco Electronics Corp. (Cardinal Health) (2008) 169 Cal.App.4th 116, 130, states, “The scope of the ‘future performance’ exception has been the subject of numerous, and sometimes conflicting, decisions throughout the country. [Citations.] But the majority view is that the exception must be narrowly construed, and that it applies only when the seller has expressly agreed to warrant its product for a specific and defined period of time. [Citations.]” (Italics in Cardinal Health.) “Cardinal alternatively contends the parties’ repair efforts tolled the statute of limitations. Although a defendant’s repair effort can toll the section 2725 limitations period (§ 2725, subd. (4)), here there were no facts showing T & B engaged in any repair efforts.” (Id., at p. 133.) “Cardinal’s implied warranty claim is also governed by section 2725, subdivision (2), and is barred for the same reason that the express warranty claim is barred. Because an implied warranty is one that arises by operation of law rather than by an express agreement of the parties, courts have consistently held it is not a warranty that ‘explicitly extends to future performance of the goods . . . . [Citations.]” (Id., at p. 134.) Here, the tender of delivery occurred on January 6, 2016. (4AC, ¶ 6) The statute of limitations lapsed four years later on January 6, 2020. Plaintiff filed the lawsuit on February 6, 2020, more than four years after the expiration of the statute of limitations. Since Plaintiff filed his Complaint more than four years after delivery, Commercial Code section 2725, subdivision (2), bars Plaintiff’s claim for Breach of the Implied Warranty of Merchantability. (Cardinal Health, 169 Cal.App.4th at pp. 134.) In his Opposition, Plaintiff argues that the breach of implied warranty claim is timely based on allegations in the 4AC as to the repair rule, class action tolling and equitable estoppel. Repair Rule: A & B Painting & Drywall, Inc. (1994) 25 Cal.app.4th 349, 345 (A & B), states, “Tolling during a period of repairs rests upon the same basis as does an estoppel to assert the statute of limitations, i.e., reliance by the plaintiff upon the words or actions of the defendant that repairs will be made. [Citation.]” (See also, Cardinal Health, supra, 169 Cal.App.4th at pp. 133-134.) “When a plaintiff relies on a theory of … equitable tolling, or estoppel to save a cause of action that otherwise appears on its face to be time-barred, he or she must specifically plead facts which, if proved, would support the theory.” (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641.) In his 4AC, Plaintiff alleges that on April 11, 2018, Plaintiff first presented the Subject Vehicle for customer concerns. (4AC ¶¶ 75, 83.) Thereafter, Plaintiff alleges that he presented the Subject vehicle for customer concerns on May 1, 2018, September 25, 2018, October 17, 2018, November 2, 2018, November 5, 2018, January 23, 2019, and February 3, 2020. (4AC ¶¶76-82.) Although the 4AC alleges that repair visits were made on eight separate occasions, the 4AC still fails to allege the length of these presentations, what repairs were made, to whom the Subject Vehicle was presented, who Plaintiff spoke with and what was said, and what symptoms the vehicle were displaying. Plaintiff also does not allege how he relied on Defendant’s words or actions or how he was damaged by any reliance. As such, Plaintiff have not sufficiently alleged that the repair doctrine tolled the statute of limitations. Class action tolling: Plaintiff also argue that the applicable statutes of limitations were tolled under the class action tolling rule articulated in American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538, 554 under which “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Plaintiff argues that the statute of limitations was tolled by the filing of the Flaherty et al. v. Hyundai Motor America et al. (C.D. Cal. No. 8:16-cv02223) (“Flaherty Case”) class action on December 14, 2018. (4AC, ¶ 31.) The 4AC alleges that the “Plaintiff was a member of the putative Flaherty Class, which included owners of 2011-2019 Hyundai Sonata; 2013-2019 Hyundai Santa Fe vehicles and Santa Fe Sport. equipped with a 2.0 or 2.4L GDI Engine.” (4AC, ¶ 32.) The Flaherty Case involves both HMA and Kia vehicles and none of the class representatives in the Flaherty Case owned or leased a 2016 Hyundai Sonata, similar to Plaintiff’s Subject Vehicle. (RJN, Ex. 1, ¶15-22.) Plaintiff relies on a footnote in the Flaherty Case’s Complaint which states, that “on information and belief, the Class Vehicles include, but are not limited to: 2011-2019 Hyundai Sonata, …” (Id. at ¶ 2 fn. 1.) Besides this allegation, the Flaherty Case’s Complaint does not address 2016 Hyundai Sonatas which is the year, make, and model of the Subject Vehicle in this action. (RJN, Ex. 1.) Although the 4AC alleges that the Subject Vehicle was sold with a 2.0 or 2.4L GDI engine (4AC ¶ 14) and that the vehicles in the Flaherty Case have the same type of engine, Plaintiff has not alleged that the engine in the Subject Vehicle had the same alleged defects or was displaying any of the same symptoms as described in the Flaherty Case. Therefore, Plaintiff has not alleged how such claims put Defendant on notice of Plaintiff’s claims. Therefore, the 4AC does not sufficiently allege that the Flaherty Case tolls the statute of limitations. Equitable estoppel: “A defendant may be equitably estopped from asserting a statutory or contractual limitations period as a defense if the defendant’s act or omission caused the plaintiff to refrain from filing a timely suit and the plaintiff’s reliance on the defendant’s conduct was reasonable. [Citations.]” (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186.) The act or omission must constitute a misrepresentation or nondisclosure of a material fact, rather than law.” (Id.) “To create an equitable estoppel, ‘it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.’ ... ‘...Where the delay in commencing action is induced by the conduct of the defendant it cannot be availed of by him as a defense.’ ” (Vu v. Prudential Prop. & Cas. Ins. Co. (2001) 26 Cal. 4th 1142, 1152–53.) Plaintiff does not allege that he relied on any action or representation by Defendant in delaying filing the present lawsuit. Therefore, there are insufficient facts alleged to support equitable tolling or estoppel. Based on the foregoing, the demurrer to the 4AC is SUSTAINED with 20-days leave to amend. The Court notes that Plaintiff has already had four opportunities to amend the complaint and that the Court will not again grant leave to amend the fifth cause of action. Defendant is to give notice.
Future hearing dates 5/25/23 – (2) Motions to Compel 6/8/23 – (3) Motions to Compel 6/30/23 – MSC 7/31/23 - JT
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5 |
Images Luxury Nail Lounge vs. State of California 21-1198190 |
Demurrer to Amended Complaint Defendants’ demurrer is SUSTAINED without leave to amend as to the third and fourth causes of action and SUSTAINED as to the fifth and sixth causes of action without prejudice to Plaintiffs’ ability to file a properly noticed motion for leave to add the fifth and sixth causes of action. Defendants’ request for judicial notice of State proclamations, executive orders, public health guidance, and public health orders (Exhibits A-P) is granted under Evidence Code section 452(a)-(c). Defendants’ request for judicial notice of federal court records is granted under Evidence Code section 452(d). Third and Fourth Causes of Action The Court previously sustained Defendants’ demurrer to these causes of action on 8/18/22. Plaintiffs have not alleged new facts or cited new legal authority which would cause the Court to reconsider its prior ruling on these causes of action. Plaintiffs have not explained how these causes of action could be amended to state a viable claim under binding California law which has held nearly identical claims are not viable. (See In 640 Tenth, LP v. Newsom (2022) 78 Cal.App.5th 840.) Therefore, the Court sustains the demurrer to the third and fourth causes of action without leave to amend. Fifth and Sixth Causes of Action Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 (Harris), states: “Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, 57 Cal.Rptr. 227 [leave to amend complaint does not constitute leave to amend to add new defendant].) The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015, 84 Cal.Rptr.3d 642 [acknowledging rule but finding it inapplicable where new cause of action “directly responds” to trial court's reason for sustaining the demurrer].)” Here, the Court’s prior order dated 8/18/22 did not authorize Plaintiffs to add new causes of action for writ of mandate and negligence in the second amended complaint. Therefore, under Harris the Court sustains the demurrer to these new causes of action, without prejudice to Plaintiffs’ right to bring a noticed motion for leave to amend to add these causes of action. Future hearing dates 8/18/23 – MSC 9/18/23 – JT
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Kadziolka vs. Huntington Beach Police Department 22-1256994 |
Demurrer to Amended Complaint Defendant, Huntington Beach Police Department’s (Defendant) unopposed Demurrer to the First Amended Complaint is SUSTAINED. A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint. [Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]” Defendant demurs to the First Amended Complaint, filed 9-27-22 under ROA No. 15 on the following grounds: (1) the FAC is uncertain, ambiguous and unintelligible, (2) the FAC does not demonstrate Plaintiff’s compliance with the Government Tort Claims Act. Demurrer for uncertainty The FAC states as follows in the case caption: “Assaulted by police officers twice (two times), stolen my animal, beaten and given to me pain by police officers, putting to the Hoag Hospital in Newport Beach.” The remainder of the FAC appears to be a list of Plaintiff’s grievances relating to his truck, his hamster, and his own need for medical assistance. “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) Based on the foregoing and the court’s review of the FAC, the court finds that the FAC is so incomprehensible that Defendant cannot reasonably respond. It is entirely uncertain what claims Plaintiff is alleging against Defendant. Therefore, the Demurrer is SUSTAINED on this basis. Compliance with Government Tort Claims Act Government Code section 945.4 provides: “Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board, in accordance with Chapters 1 and 2 of Part 3 of this division. (Gov. Code, § 945.4.) The claim presentation requirement is “is not merely procedural, but is a condition precedent to maintaining a cause of action and, thus, is an element of the plaintiff's cause of action.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236.) A party suing a public entity must allege compliance with this requirement, or that a recognized exception exists. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374. A party may allege compliance with this requirement by including a general allegation that “he or she timely complied.” (Id.) “If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer.” (Id.) Here, Plaintiff’s FAC does not allege that Plaintiff complied with the Government Tort Claims Act against Defendant, a public entity. Therefore, this constitutes an additional basis to sustain Defendant’s demurrer. Accordingly, Defendant’s demurrer to the First Amended Complaint is SUSTAINED with 20 days leave to amend. Defendant is to give notice. Future hearing dates 5/12/23 – MSC 6/12/23 – JT
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Coulibaly vs. Cosmetic Made in USA/Donna Bella Cosmetic 22-1292173 |
Motion to Quash Service of Summons Defendant TNT Global Investment Corp. dba Cosmetics Made In The USA and Donna Bella Cosmetics’ motion to Quash Service of Summons and Complaint is GRANTED The Request for Judicial Notice of Exhibits B and C is GRANTED. Timeliness: Code of Civil Procedure section 418.10, subdivision (a) provides that “[a] defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion . . . [t]o quash service of summons on the ground of lack of jurisdiction of the court over him or her.” Section 418, subdivision (b) provides in pertinent part: “The notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice. The Summons was served by personal service on 11/29/22 and the Motion was filed on 12/29/22, exactly 30 days later. Accordingly, the motion is timely. Merits: Improper or invalid service is properly challenged by a motion to quash. (Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 855, fn. 4; Code Civ. Proc., § 418.10(a)(1).) “When a defendant challenges the court’s personal jurisdiction on the ground of improper service of process ‘the burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the facts requisite to an effective service.’ ” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Defendant argues that the Court has no jurisdiction over the named defendant because the Summons and Complaint are directed at fictitious business names, which are non-entities incapable of being served. “Use of a fictitious business name does not create a separate legal entity. As the First District Court of Appeal recently noted, [t]he designation [DBA] means ‘doing business as’ but is merely descriptive of the person or corporation who does business under some other name. Doing business under another name does not create an entity distinct from the person operating the business. The business name is a fiction, and so too is any implication that the business is a legal entity separate from its owner.” (Pinkerton's, Inc. v. Superior Ct. (1996) 49 Cal.App.4th 1342, 1348, internal citations omitted, emphasis in original) Here, the Summons and Complaint are directed to “Cosmetic Made in USA/Donna Bella Cosmetics” which Defendant has shown are fictitious business names for TNT Global Investment Corp. (RJN, Ex. B, C.) Since a fictitious business name does not create a separate legal entity, service on Defendant was ineffective. Plaintiff has not opposed the motion and therefore not met the burden to prove the existence of jurisdiction. Accordingly, the Motion to Quash Service of Summons and Complaint is GRANTED. Moving party to give notice. Future hearing dates 4/26/23 - CMC
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Richardson vs. Bennett 20-1157590 |
Motion for Leave to Amend
OFF CALENDAR - SETTLED
Future hearing dates 3/3/23 – MSC 4/3/23 – JT
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9 |
Anderson vs. Bazoft Automotive LLC 22-1267200 |
Motion to Compel Arbitration Defendant, Bazoft Automotive LLC dba South Coast Mitsubishi’s (Defendant) Motion to Compel Arbitration (Motion) is CONTINUED to March 9, 2023 at 10:00 AM to allow the parties to meet and confer regarding arbitration service providers other than AAA and JAMS. “California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, Code of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Code of Civ. Proc., § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Similarly, public policy under federal law favors arbitration and the fundamental principle that arbitration is a matter of contract and that courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) In deciding a motion or petition to compel arbitration, trial courts must first decide whether an enforceable arbitration agreement exists between the parties and then determine whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The opposing party has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 [“The petitioner ... bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”].) A party may demonstrate express acceptance of the arbitration agreement in order to be bound. (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal. App. 4th 1105.) Defendant contends that Plaintiffs must be ordered to arbitrate their claims because Plaintiffs purchased the vehicle at issue in this action (Vehicle) pursuant to a Retail Installment Sales Contract (RISC) which contains an arbitration clause. The arbitration clause in the RISC states: “ARBITRATION PROVISION PLEASE REVIEW -IMPORTANT -AFFECTS YOUR LEGAL RIGHTS 1. EITHER YOU, OR WE MAY CHOOSE TO HAVE ANY DISPUT'E BETWEEN US DECIDED BY ARBITRATION AND NOT .IN COURT OR BY JURY TRIAL 2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE' UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY ,.CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION Of, INDIVIDUAL ARBITRATIONS. 3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. If federal law provides that a claim or dispute ls not subject to binding arbitration, this Arbitration Provision shall not apply to such claim or dispute. Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a class action. You may choose the American Arbitration Association, 1633 Broadway, 10th Floor, New York, New York 10019 (www:adr.org}, or any other organization to conduct the arbitration subject to our approval. You may get a copy of the rules of an arbitration organization by contacting the organization or visiting its website. Arbitrators shall be at attorneys or retired judges and shall be selected pursuant to the applicable rules. The arbitrator shall apply governing substantive law and the applicable statute of limitations. The arbitration hearing shall be conducted in the federal district in which you reside unless the Seller-creditor is a party to the claim or dispute, in which case the-hearing will be held in the federal district where this contract was executed. We will pay your filing, administration, service or case management fee and your arbitrator or hearing fee all up to a maximum , of $5000, unless the law or the rules of the chosen arbitration organization require us to pay more, The amount we pay may be reimbursed in whole or in part by decision of the arbitrator if the arbitrator finds that any of your claims is frivolous under applicable law. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. If the chosen arbitration organization's rules conflict with this Arbitration Provision, then the provisions of this Arbitration Provision shall control. Any arbitration under this Arbitration Provision shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.)-and not by any state law concerning arbitration. Any award by the arbitrator shall be in writing and will be final and binding on all parties, subject to any limited right to appeal under the Federal Arbitration Act. You and we retain the right to seek remedies in small claims court for disputes or claims within that court's jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither you nor we waive the right to arbitrate by using self-help remedies, such as repossession, or by filing an action to recover the vehicle, to' recover a deficiency balance', or for individual injunctive relief. Any court having jurisdiction may enter judgment on the arbitrator's award. This Arbitration Provision shall survive any termination, payoff or transfer of this contract. If any part of this Arbitration Provision, other than waivers of class action rights, is deemed or found to be unenforceable for any reason the remainder shall remain enforceable. If a waiver of class action rights is deemed or found to be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this Arbitration Provision shall be unenforceable.” The court notes that Plaintiffs’ Opposition to Motion was filed on 2-7-23, 4 days past Plaintiffs’ statutory deadline under Code of Civil Procedure section 1005. While Defendants argue in their Reply that the late-filed Opposition should not be considered, Defendants also respond to the merits of the Opposition. Therefore, the court exercises its discretion and considers Plaintiffs’ late filed Opposition. Plaintiffs’ Opposition does not appear to dispute that the RISC’s arbitration clause constitutes a valid agreement to arbitrate. (see Opposition, p.2 [“Plaintiffs agreed to stipulate to arbitration with JAMS.”] The parties’ dispute appears to be whether the parties should be required to arbitrate before AAA or JAMS. Specifically, the Opposition argues that Plaintiffs should not be compelled to arbitrate before AAA because AAA is unfair to Plaintiffs in the following manner: · AAA does not guarantee discovery · AAA does not guarantee sworn testimony from witnesses · Plaintiffs cannot participate in selecting arbitrators without approval from Defendant, the business · AAA does not comply with disclosure requirements under the California Arbitration Act Therefore, the court intends to grant the Motion to the extent it seeks to compel arbitration. However, the court is unable to finalize its ruling due the parties disagreement regarding the arbitration service to be used and the RISC’s arbitrability provision. Specifically, the RISC provides in pertinent part: “Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns… shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.” Based on this provision, the Court declines to make any finding regarding the validity of the Contract or any clause of the Contract. (Dream Theater, Inc. v. Dream Theater (2004) 124 Cal.App.4th 547, 551.) This arbitrability provision prevents the court from compelling the parties to use a specific arbitration organization. Therefore, Defendant, Bazoft Automotive LLC dba South Coast Mitsubishi’s (Defendant) Motion to Compel Arbitration (Motion) is CONTINUED to March 9, 2023 at 10:00 AM in order to allow the parties to meet and confer regarding arbitration service providers other than AAA and JAMS. The parties are to meet and confer and submit a joint statement to the court no later than 3 court days before the date of the continued hearing regarding the arbitration service or arbitrator they have agree upon. Defendants are to give notice. Future hearing dates 1/16/24 – JT
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Abaunza vs. OHL USA 21-1226483 |
Motion for Bifurcation OFF-CALENDAR
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Davis vs. John’s Incredible Pizza 21-1192803 |
Motion for Summary Judgment and/or Adjudication
CONT. TO 3/9/23
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Davidson vs. The Boeing Company 21-1194029 |
Motion for Summary Judgment and/or Adjudication Defendants’ (The Boeing Company, Inc., Thai Nguyen, and David Busby) Motion for Summary Judgment or Alternatively Adjudication is CONTINUED to 4/20/23 at 10:00 a.m. in Department C33. Code Civ. Proc. § 437c(h) states: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” Here, Defendants provided the following “Material Undisputed Facts” in support of its Motion for Summary Judgement/Adjudication: From May 1, 2017 to May 2, 2022, Boeing terminated 143 employees for “4D - time recording/labor recording compliance,” the same reason for which Plaintiff was terminated. UF 60. Of these 143 employees, 85 were under the age of 40 while 58 were over the age of 40. UF 61. Defendant found the foregoing facts important enough to repeat in its Memorandum of Points and Authorities in support of its claim that it had a “a legitimate, nondiscriminatory reason for Plaintiff’s termination”: “From May 1, 2017 to May 2, 2022, Boeing terminated 143 employees for “4D - time recording/labor recording compliance,” the same reason for which Plaintiff was terminated. UF 60. Of these 143 employees, 85 were under the age of 40 while 58 were over the age of 40. UF 61.” (Motion, 16:13-15.) In Opposition, the Declaration of Ryann E. Hall states: “On January 30, 2023, Defendant served responses to Plaintiff’s Special Interrogatories Set 3, attached hereto as Exhibit W. The special interrogatories were served to obtain follow up information after receiving the Declaration of Steven Miller, filed in support of Defendant’s Motion for Summary Judgment. Specifically, paragraph 8 which provides: ‘In fact, from May 1, 2017 to May 2, 2022, Boeing terminated 143 employees for “4D - time recording/labor recording compliance,” the same reason for which Mr. Davidson was terminated. Of these 143 employees, 85 were under the age of 40 while 58 were over the age of 40.’” (¶ 22.) “Plaintiff specifically asked for information that would assist in ascertaining whether the numbers provided in Miller’s declaration tended to show whether, based on the total number of Boeing employees and the total number of investigations, older employees were disproportionately subjected to termination for “4D-time recording/ labor compliance”: SPECIAL INTERROGATORY NO. 19: Please provide the total number of Boeing employees from May 1, 2017 to May 2, 2022. SPECIAL INTERROGATORY NO. 20: Please provide the total number of Boeing employees under the age of 40 from May 1, 2017 to May 2, 2022. SPECIAL INTERROGATORY NO. 21: Please provide the total number of Boeing employees over the age of 40 from May 1, 2017 to May 2, 2022. SPECIAL INTERROGATORY NO. 22: Please provide the total number of allegations regarding 4D-time recording/labor recording compliance Boeing investigated from May 1, 2017 to May 2, 2022. SPECIAL INTERROGATORY NO. 23: Please provide the total number of allegations for 4D-time recording/labor recording compliance Boeing investigated from May 1, 2017 to May 2, 2022 pertaining to employees under 40. SPECIAL INTERROGATORY NO. 24: Please provide the total number of allegations for 4D-time recording/labor recording compliance Boeing investigated from May 1, 2017 to May 2, 2022 pertaining to employees over 40.” (¶ 23.) “Plaintiff further requested the same information for a narrower timeframe, in which Davidson was terminated, from May 1, 2019 to May 2, 2020.” (¶ 24.) “Accordingly, facts essential to the opposition may exist but cannot be presented. The discovery could evidence that Boeing disproportionally decided to investigate and terminate older employees for the time violation. However, Defendant has not provided the information. Plaintiff should be provided the opportunity to confer with Defendant and obtain the necessary information.” (¶ 25.) In response to the request for continuance, Defendant makes the following argument: “In his Opposition, Plaintiff claims that the Court should continue the hearing on the Motion to allow Plaintiff time to obtain relevant discovery which would likely prove that Plaintiff’s termination was part of a pattern and practice of discrimination against older workers. However, Plaintiff fails to advise the Court that he has had Defendants’ Motion, in addition to all supporting evidence, since September 16, 2022. Despite that Plaintiff did not propound additional discovery to Defendants until December 27, 2022, over three months later. As such, but for Plaintiff’s own dilatory efforts in obtaining whatever discovery he deemed necessary he would not be requesting a continuance. In any event, Plaintiff has taken five depositions and is in possession of the 900+ pages of documents that have been produced in this litigation. The “additional” discovery Plaintiff seeks is not relevant, overbroad as to time, and violates the privacy rights of Defendants and third party non-litigants. As such, Defendants respectfully request that this Court not continue the hearing on their Motion, especially in light of the fact that the MSC and trial dates are imminent.” (Reply, 12: 12-23.) Defendant’s response is not a valid reason for not providing the information requested in the Special Interrogatories propounded by Plaintiff. Defendant set the timeframe in its Material Undisputed Facts so it is unclear how the interrogatories are overbroad as to time. Also, it is unclear how providing a number in response to interrogatories would violate privacy. Based on the foregoing, the Court CONTINUES the Motion based on Code Civ. Proc. § 437c(h). The parties are to meet and confer regarding providing Plaintiff discoverable information. Defendants should be mindful of Code Civ. Proc. § 437c(i), which states: “If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. This section does not affect or limit the ability of a party to compel discovery under the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4).” Plaintiff is permitted to file a response to Defendants’ Separate Statement, limited to the scope of discovery related to the foregoing Material Undisputed Facts. Plaintiff is also permitted to file Supplemental Opposition not to exceed 3 pages. Plaintiff must file these supplemental filings 9 court days before the hearing. In response, Defendants are permitted to file a Reply not to exceed 3 pages. Defendants must file this supplemental filing 5 court days before the hearing. Plaintiff also failed to comply with California Rules of Court, rule 3.1110(f)(4), which provides: “Electronic exhibits must meet the requirements in rule 2.256(b). Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” Plaintiff is ordered to file a properly bookmarked Compendium of Evidence with his supplemental filings. Lastly, the MSC and trial are continued to the dates listed below. Defendants to give notice. Future hearing dates 4/28/23 – MSC 5/30/23 – JT
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Egumball, Inc. vs. Merrick Bank Corporation 21-1216871 |
1. Motion to Seal 2. Motion to Seal 3. Motion to Seal 4. Motion to Seal The motions to seal filed by Defendant Merrick Bank Corporation on 10/24/22 under ROA 518 and on 11/14/22 under ROA 614, as well as the motions to seal filed by Defendant Visa Inc. on 11/21/22 under ROR 656 and on 11/28/22 under ROA 668 are DENIED without prejudice. Based on the Court’s review of the electronic filing system, Defendants have filed at least fifteen motions to seal between 9/22/22 and 2/8/23. The Court has reviewed the motions and is unable to readily determine which documents Defendants seek to seal in the various motions. For example, the motion to seal filed under ROA 688 refers to several documents (Exhibits B and H to the Samini declaration) which apparently were never lodged or filed either under seal or otherwise through the Court’s electronic filing system. The motions refer to documents by date but not by the Register of Action (ROA) number assigned by the electronic filing system, making it unclear which of the numerous documents filed on that date Defendant seeks to seal. The Court orders all pending motions to seal filed in this matter taken off calendar. Each Defendant may file a single consolidated motion to seal with a supporting declaration attached. The consolidated motions shall include a table listing each document electronically filed in the case to date that the movant seeks to seal, including the date of filing, ROA number, and page/line number of the document. Defendants’ consolidated motions shall also discuss whether the Court should appoint a referee under Rule 2.550(e)(2), which states, “Consistent with Code of Civil Procedure sections 639 and 645.1, if the records that a party is requesting be placed under seal are voluminous, the court may appoint a referee and fix and allocate the referee's fees among the parties.” McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 31 (cleaned up) holds, “The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication. Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are presumptively open.” This Court does not grant motions to seal as a matter of course and will only grant such motions if there is a strong evidentiary basis for the express factual findings required under California Rules of Court, Rule 2.550(d): “(1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” Here, it appears many of Defendants’ requests to seal records do not meet this standard. The fact that evidence describes Defendants’ business operations is not alone sufficient to seal court records. Defendants shall consider narrowing or withdrawing their requests to seal documents in light of the standard set out above.
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Munushian vs. Director of Department of Motor Vehicles 22-1282821 |
Petition for Writ |