TENTATIVE RULINGS

 

DEPT C-13

 

Judge John C. Gastelum

The court will hear oral argument on all matters at the time noticed for the hearing, unless the Court has stated that the matter is off calendar. If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first and then moving party is to telephone the clerk at (657)622-5213. If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Rulings are normally posted on the Internet by 4:30 p.m. on the day before the hearing.  Generally, motions will not be continued or taken off calendar after the tentative has been posted. The moving party shall give notice of the ruling.

 

Date: 1/20/15

 

 

STARTING AUGUST 25, 2014, ORANGE COUNTY SUPERIOR COURT WILL NOT SUPPLY COURT REPORTERS FOR LAW AND MOTION CALENDARS.  PLEASE SEE THE COURT’S PUBLIC WEBSITE FOR INSTRUCTIONS IF YOU WISH TO HAVE A COURT REPORTER.

 

 

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Case Name

Tentative

 

 

 

1

Andersen vs Paul Hastings

(1) Motion to Compel Arbitration (2) CMC

 

Tentative Ruling:  Motion to Compel Arbitration is GRANTED.  Plaintiff is ordered to arbitrate the instant claims against Defendant Paul Hastings, LLP.  Additionally, pursuant to Code of Civil Procedure section 1281.4 and 9 U.S.C. §3, the instant action is stayed, pending the completion of such arbitration.

 

Initially, it is undisputed  Plaintiff executed an Arbitration Agreement with Defendant, whereby she agreed to arbitrate “all claims or controversies, whether or not arising out of [Plaintiff’s] employment relationship…includ[ing]…tort claims [and] claims for discrimination…” (Exhibit “B” of Marine Declaration.)  Plaintiff does not dispute the authenticity of this document or her signature; rather, Plaintiff asserts the Arbitration Agreement is unenforceable due to unconscionability.  Plaintiff, however, has failed to demonstrate the same. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972; See also Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92.)

 

First, while there is no indication Plaintiff had the opportunity to negotiate any of the terms and, rather, Defendant concedes the Agreement was a condition of Plaintiff’s employment (see Motion: 2:5-12 and Exhibit “A” of Marine Declaration), “[t]he mandatory nature of an arbitration agreement does not, by itself, render the agreement unenforceable…” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84, fn. 4; See Also Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1122-1123.) Likewise, the failure to attach the “then-current employment arbitration rules/procedures” from JAMS or AAA, is insufficient to establish procedural unconscionability:

 

The circumstances of this action are analogous to Lane v. Francis Capital Management, LLC (2014) 224 Cal.App.4th 676: “[W]e conclude the failure to attach a copy of the AAA rules did not render the agreement procedurally unconscionable.  There could be no surprise, as the arbitration rules referenced in the agreement were easily accessible to the parties – the AAA rules are available on the Internet. [Citation omitted].  In addition, Lane – a formerly well-paid professional analyst – does not appear to lack the means or capacity to locate and retrieve a copy of the referenced rules….In the absence of oppression or surprise, we decline to find the failure to attach a copy of the AAA rules rendered the agreement procedurally unconscionable.” (Id. at 692.)   In this instance, similar to Lane, Plaintiff failed to demonstrate surprise, as to the nature of the rules, or an inability to locate and retrieve the same.

 

Based on all of the above, considering the adhesive nature of the agreement in conjunction with the failure to attach rules, at best, only an extremely low level of procedural unconscionability has been demonstrated.

 

Additionally, Plaintiff failed to demonstrate sufficient substantive unconscionability, to balance the low level of procedural unconscionability and justify denying enforcement.  “A provision is substantively unconscionable if it involves contract terms that are so one-sided as to ‘shock the conscience,' or that impose harsh or oppressive terms.” (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1573.)  “Substantive unconcionability may be shown if the disputed contract provision falls outside the nondrafting party’s reasonable expectations.” (Id.)  “Substantive unconscionability focuses on the one-sidedness or overly harsh effect of the contract term or clause.” (Samaniego v. Empire Today, LLC (2012) 205 Cal.App.4th 1138, 1147.)

Plaintiff asserts the Agreement provides Defendant with an unfair advantage as Defendant, as the non-initiating party may: (1) Select between AAA and JAMS; and (2) is provided an additional challenge to the list of arbitrators. (See Opposition: 9:9-19.)

 

Initially, as Defendant has agreed to waive its right to select between JAMS and AAA, this issue has been rendered MOOT. (See Motion: 14:13-15.)  Additionally, Plaintiff’s argument fails as there has been no demonstration that this selection provides a benefit to Defendant, “so one-sided as to shock the conscience.”  Plaintiff has not, for example, demonstrated significant differences in the procedures, which may provide advantages to Defendant.

 

Second, the Arbitration Agreement does not clearly provide an additional challenge to the non-initiating party, to the list of arbitrators. (See Page 3 of Exhibit “B” of Marine Dec.)  Rather, it merely provides that, where multiple agreeable Arbitrators are listed, the parties shall take turns striking Arbitrators, starting with the non-initiating party.  (Id.)   This process provides, merely, a means of whittling down a list of previously agreed upon arbitrators, so that one may be selected for Arbitration.   Additionally, under such a process, it is not clear the non-initiating party will ultimately select the Arbitrator:  Rather, the amount of mutually agreeable Arbitrators will affect this result.

 

Further, Plaintiff asserts the exclusion of claims for injunctive relief renders the Agreement one-sided; however, this position also fails:  As argued by Defendant, this language mirrors Code of Civil Procedure section 1281.8. Moreover, the provision is bilateral, as it excludes such claims, brought by either party.  Plaintiff has failed to demonstrate that such claims are typically pursued by employers.

 

Next, and most importantly, Plaintiff has failed to demonstrate an unconscionable limitation on discovery. 

The Agreement allows for additional discovery, where “require[d] to adequately arbitrate a claim.” (Exhibit “B” of Marine Declaration.)  While Plaintiff asserts the reference to a “fast, cost-effective dispute resolution mechanism,” renders this provision ambiguous, there is nothing within this language which suggests that cost-saving measures will take precedence over necessary discovery.  Additionally, there is nothing to indicate that the Arbitrator, contrary to this language, will deny Plaintiff discovery shown to be necessary.

 

Significantly, “the party resisting arbitration on the ground that the terms of an arbitration agreement interfere with the effective vindication of statutory rights bears the burden of showing the likelihood of such interference, and second,…this burden cannot be carried by “mere speculation” about how an arbitrator “might” interpret or apply the agreement.” (Booker v. Robert Half Intern., Inc. (D.C. Cir. 2005) 413 F.3d 77, 81).

 

Additionally, significantly, similar provisions have been upheld by California Courts.  In Roman v. Superior Court (2009) 172 Cal.App.4th 1462, the Court upheld a provision allowing the Arbitrator to order “such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.” (Id. at 1476.)  Similarly, the Court in Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, in addressing the same issue, found: “Although the Amgen agreement purports to limit discovery to one deposition of a natural person, the agreement gives the arbitrator the broad discretion contemplated by the AAA rules to order the discovery needed to sufficiently litigate the parties' claims.” (Id. at 984.)

 

Further, as Dotson explained: “In addition, the trial court assumed that the arbitrator would not be fair in determining whether additional depositions were needed. This assumption is not a consideration when determining the validity of a discovery provision. Indeed, it is quite the opposite. We assume that the arbitrator will operate in a reasonable manner in conformity with the law.” (Id.)

 

Based on all of the above, the Agreement provides sufficient discretion to the Arbitrator to order further discovery, and the Court must assume the Arbitrator will proceed in a reasonable manner.   Thus, the Agreement is not substantively unconscionable.

 

2

Atwi vs Wells Fargo

Motion for Summary Judgment and/or SAI

 

Ruling:  Off Calendar – no hearing will be held. Notice of Settlement filed.

 

3

Brugman vs Fountain Care Center

(1) Motion to Quash Subpoena (2) CMC 

 

Ruling:  (1-2) Off Calendar – no hearing will be held. Notice of Settlement filed.

 

4

Cleary vs Cox Communications

Motion for Sanctions

 

Tentative Ruling:  The unopposed Motion by Cox Communications California, LLC, for an Order for Contempt against PB Plumbing, Inc., and its managing agent, Phillip Bollman, is granted.  Cox’s motion for monetary sanctions is granted as to PB Plumbing, Inc., only. 

 

PB Plumbing, Inc., and Phillip Bollman, are hereby ordered to appear in person on 2-23-15, at 10 am in Dept. C13, and show cause why they should not be held in contempt for PB Plumbing, Inc.’s willful refusal to comply with this Court’s Order, issued June 3, 2014, requiring the production of business records responsive to the 12-12-13 Deposition Subpoena.  

 

PB Plumbing, Inc., is further ordered to pay monetary sanctions in the amount of $1,651.00, to Cox Communications on or before February 17, 2015, representing the reasonable amount of attorney fees and costs incurred by Cox in having to bring this Motion.

 

The Motion was timely and properly served personally on the third parties.  Cox has established in a declaration under penalty of perjury that third party PB Plumbing, Inc., and its managing agent, Phillip Bollman, have willfully failed to comply with the Court’s 6-3-14 Order, and Cox has undertaken diligent efforts to obtain PB Plumbing’s compliance with the Order. 

 

The Court can treat as a contempt of court a non-party’s disobeyance of a Court Order.  (Code Civ. Proc., § 2023.010(g); 2023.030(e).)  The Court can also award monetary sanctions.  (Code Civ. Proc., § 2023.030(a).)

 

A person found guilty of contempt is subject to fine (up to $1,000) payable to the Court, or imprisonment (up to 5 days), or both. (Code Civ. Proc., § 1218.)

 

Counsel for the Moving Party is to personally serve the Order to Show Cause Re Contempt on PB Plumbing, Inc., and Phillip Bollman, no later than 16 court days prior to the hearing, and give notice to all parties of this Order.

 

5

Cote vs Genesis Acquisitions

(1) Demurrer to Complaint (2) CMC 

 

Ruling:  (1-2) Off Calendar – no hearing will be held.  (1) Demurrer is MOOT, given filing of First Amended Complaint.  (2) CMC rescheduled to 6-2-15, Dept., C13, at 8:45 am.

 

6

J.W. vs Eaves

(1) Motion to Compel Further Answers to Form Irogs (2) Motion to Compel Production (3) Motion to Deem Facts Admitted (4) Order to Show Cause (5) CMC

 

Tentative Ruling:  (1) Plaintiff’s unopposed Motion to Compel Defendants to respond to the First Set of Form Interrogatories is granted as to Defendants Timothy Eaves, Sr., and Debbie Eaves, only.  Plaintiff’s request for monetary sanctions in the form of the reimbursement of reasonable attorney fees incurred in having to bring the motion is granted

 

Timothy Eaves, Sr. and Debbie Eaves ARE HEREBY ORDERED to (1) serve to Plaintiff’s attorney verified responses, without objections, to the Form Interrogatories (Set One) on or before February 6, 2015, and (2) pay monetary sanctions to Plaintiff in the amount of $1,600.00 on or before February 17, 2015

 

As to the minor defendant, Timothy Eaves, a licensed attorney has not yet appeared in this action on his behalf, which is the subject the Order to Show Cause scheduled for hearing on the same date as this Motion.  The Court will reserve ruling on this Motion as to the minor defendant.

 

(2) Off Calendar – no hearing will be held.  Plaintiff’s Motion to Compel defendants to produce documents pursuant to the Notices of Taking Deposition, dated June 25, 2014, and for monetary sanctions is continued to February 17, 2015, at 2 pm, in Department C13.  Plaintiff was ordered to give notice of the continuance of these Motions, but there is no Proof of Service in the Court file.  

 

(3)  Off Calendar – no hearing will be held.  Plaintiff’s Motion to for Order Deeming Admitted the Truth of Facts in the Requests for Admissions served on defendant, Timothy Eaves, and for monetary sanctions, is continued to February 17, 2015, at 2 pm, in Department C13.  Plaintiff was ordered to give notice of the continuance of these Motions, but there is no Proof of Service in the Court file of the continuance from 11-4-14 to 12-2-14, and from 12-3-14 to 1-20-15. 

 

(4)  Order to Show Cause Directed to Guardian Ad Litem, Debbie Eaves.   Again, the Court notes Timothy is a minor and he can only appear in this action through an attorney.  A non-attorney appointed as Guardian Ad Litem cannot appear in pro per on behalf a minor without engaging in the unauthorized practice of law.  (J.W. v. Superior Court (1993) 17 Cal.App.4th 958.)

 

Plaintiff’s counsel is to give notice.

 

7

Jung vs Hwang

Motion for Leave to Amend 

 

Ruling:  Off Calendar – no hearing will be held.    Motion for Leave to Amend is DENIED, without prejudice, on the basis Plaintiff/Cross-Defendant failed to acknowledge the impending trial date of February 9, 2015 and, in light of the same, prejudice to Cross-Complainant appears likely.

 

Further, the Motion is DENIED for the additional reason that Cross-Defendant failed to fully comply with CRC 3.1324.  While Counsel attached a copy of the Proposed Amended Answer and identified the changes, as required, Counsel fails to clearly declare when the relevant facts were discovered or why the amendments are necessary.  (CRC 3.1324(b).)  At best, Counsel declares: “Said amendment is necessary and proper and allowing such amendment would be in furtherance of justice.  Said amendment necessary (sic) based on the allegation and evidence discovered after Plaintiff/Cross-Defendant filed his original answer.” (¶4 of Park Dec.)  “This additional fact was not confirmed until recent investigation.” (¶5 of Park Dec.)

 

Here, given that the original Answer was filed by Cross-Defendant on January 14, 2014 (more than a year ago) and trial is scheduled for February 9, 2015, the above is insufficient to demonstrate the Motion is timely and necessary.

 

8

Khwaja vs Newabi

Motion for Terminating Sanctions

 

Ruling:  Off Calendar – no hearing will be held.  Court ruled on this motion on 9-30-14.

 

9

King vs Cosway USA

Motion to Set Aside/Vacate Default and Judgment

 

Ruling:  Off Calendar – no hearing will be held.  The unopposed Motion to Set Aside Default and Default Judgment filed by defendant Cosway USA, Inc. is GRANTED

 

The Motion was timely filed under Code of Civil Procedure section 473(b), and is accompanied by an attorney affidavit of fault attesting to counsel’s mistake, inadvertence, surprise, or neglect, which resulted in the default and default judgment.  That declaration is sufficient to meet the statutory requirements. (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1036-1037.)

 

The Answer lodged on 8-22-14 shall be filed and served by 1-27-15. Moving Party to give notice.

 

10

Martin vs Carson

(1) Motion to Intervene (2) OSC re Failure to Appear 

 

Tentative Ruling:  Motion for Leave to Intervene is DENIED, on the basis Proposed Intervenor FAST TRAK failed to file a Proof of Service, demonstrating correct service on Plaintiff Melissa Martin, despite having been previously granted a continuance to do the same.

 

Further, the Motion is DENIED for the additional reason that FAST TRAK failed to demonstrate that intervention is necessary to protect FAST TRAK’s interests and, rather, it appears intervention would enlarge the scope of this action and result in delay.

 

Given the completion of the Settlement, the amount of FAST TRAK’s recovery is already determined.  Of primary concern for FAST TRAK is whether it will be able to obtain its funds from Plaintiffs.

 

Arguably, as stated by Defendants, FAST TRAK can pursue an action against Plaintiffs, regardless of the completion of this action and separate from these proceedings.

 

Additionally, allowing intervention may delay the resolution of this action or enlarge its scope, as it would bring the separate agreement between FAST TRAK and Andrew Martin, into consideration (issues wholly separate from the instant claims for Motor Vehicle Negligence and Products Liability).

 

Further, while FAST TRAK’s effort to intervene is understandable, given the facts that existed at the time it filed its Ex Parte Application, it is no longer clear intervention is necessary to protect the referenced Settlement Agreement:  Subsequent to the filing of FAST TRAK’s Ex Parte Application, Defendants filed a Notice of Settlement, notifying the Court of the subject Settlement.

 

For all these reasons, the arguments raised in opposition to intervention outweigh any demonstrated need.  (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 139-140.)

 

11

Mediterranean Food LLC vs T.B. Holdings Inc.

Motion to Compel Answers to Form Irogs

 

Ruling:  Off Calendar per MP – no hearing will be held.

 

12

Pedraza vs Pirate’s Dinner

Motion for Summary Judgment and/or SAI

 

Ruling:   Off Calendar – no hearing will be held.  Case dismissed.

13

Skilled Healthcare vs Dharma Construction

(1) Motion to Compel Further Responses to Special Irogs (2) Motion to Compel Production (3) CMC

 

Tentative Ruling:  (1) Cross-Defendant’s Motion to Compel Further Responses to Special Interrogatories (Set 5) Nos. 543, 552, 561, 570, 579, 588, 597, and 606 is granted. Although the motion may be technically moot given the ruling on the MSJ on the Cross-Complaint, the abovementioned Irogs are relevant to Plaintiff’s case.  To avoid unnecessary costs and time, the Court rules on the merits herein.

 

Even under Code of Civil Procedure section 2030.210(a)(2), RP did not clearly indicate it was exercising its option to produce writings in the response; and the document attached does not appear current as it appears to have been from 2011. Have there been any more payments on any of the contracts at issue since 2011?   Furthermore, the response itself is not fully responsive to the interrogatory as it has not been summarized.

 

Sanctions are awarded pursuant to Code of Civil Procedure section 2030.290(c). RP is not substantially justified in its position that it can simply produce a spreadsheet in response to a special interrogatory. The Court finds that Dharma did not comply with its duty to answer “as complete and straightforward as the information reasonably available to the responding party permits.” (Code Civ. Proc., §2030.220(a).) Simply referring to an outdated spreadsheet does not comply with the Code of Civil Procedure. Sanctions against Dharma’s counsel in the amount of $705 (3hours at $235 per hour) to be paid within 30 days.

 

(2) Off Calendar – no hearing will be held.  Motion to Compel Production withdrawn by MP

 

MP is to give notice.

 

14

Wooden vs HVM

(1) Motions for Discovery, set two (2) CMC

       

Tentative Ruling:  Defendant’s Motion to Compel Plaintiff to Respond to Special Interrogatories, Form Interrogatories, Requests For Admissions, Requests For Production (Set 2) is GRANTED. Plaintiff is to provide verified responses, without objections within 20 days of the date of the notice of ruling herein. Sanctions against Plaintiff in the amount of $715, (3 hours at $225 per hour, plus $40 filing fee) also payable within 20 days.  MP is to give notice.

 

These unopposed straight motions to compel Defendant’s 2nd set of discovery (Form & Special Irogs, RFAs, RFPs) is granted.  Defendant is entitled to discovery to defend itself in this litigation.  Sanctions are warranted.  Plaintiff failed to provide responses despite two letters and failed to provide any opposition herein.