Complaint; Filed by: Jose Rafael Hidalgo Garcia (Plaintiff); As to: Gabriel Container (Defendant); Partners Personnel-Management Services, LLC (Defendant) August 13, 2024 (2024)

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Ruling

ANGELA PASQUINI VS DECRON PROPERTIES CORP., ET AL.

Aug 13, 2024 |24STCV01883

Case Number: 24STCV01883 Hearing Date: August 13, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: August 13, 2024 TRIAL DATE: Not set CASE: Angela Pasquini v. Decron Properties Corp., et al. CASE NO.: 24STCV01883 MOTION FOR AN ORDER TO COMPEL ARBITRATION AND STAY THE ACTION MOVING PARTY: Defendants Decron Properties Corp. and Villa Cezanne Apartments RESPONDING PARTY: Plaintiff Angela Pasquini I. BACKGROUND In 2020, Plaintiff Angela Pasquini (Pasquini or Plaintiff) was hired as a Residential Assistant Community Manager with Decron Properties Corp. (Decron). Pursuant to her employment, Pasquini lived and worked at the Ascent Apartments, which is owned by Villa Cezanne Apartments (VCA). Pasquini reported to Senior Community Manager Robin Sidenstecker (Sidenstecker) and Director Gino Cesario (Cesario). David Nagel (Nagel) is the CEO of Decron. Decron and VCA are joint employers. On January 24, 2024, Pasquini filed a complaint against Decron, VCA, Sidenstecker, Cesario, and Nagel for: 1. Breach of Express and Implied Contract; 2. Breach of the Covenant of Good Faith and Fair Dealing; 3. Wrongful Termination in Violation of Public Policy 4. Violation of California Government Code §§12900, 12955, et seq. 5. Intentional Infliction of Emotional Distress; 6. Violation of Business & Professions Code §17200; 7. Intentional Misrepresentation [Fraud], Negligent Misrepresentation and Concealment; 8. Violation of California Labor Code- (Whistleblower) §§1102.5, 6311; 9. Breach of Implied Warranty of Habitability/Quiet Enjoyment; 10. Nuisance; 11. Negligence-Premises Liability; 12. Negligence, Negligent Supervision, Negligent Management 13. Violation of Civil Code §§51, et seq., 52.1, 54.1. In short, Pasquini makes the following allegations: During Pasquinis employment and tenancy at the Ascent Apartments, she made complaints to Defendants. Additionally, Pasquini developed medical conditions which caused her disability and entitled her to disability accommodation. However, Defendants refused to accommodate her. Pasquini also requested her annual performance review, which Defendants refused to provide. In retaliation for requesting a performance review and for needing to take disability leave, Defendants provided Pasquini with a false performance review claiming the report had been reviewed with her and that Pasquinis performance was poor. Eventually, despite her good job performance, Defendants terminated Pasquinis employment and evicted her. On February 27, 2024, Decron and VCA (hereafter, Defendants) filed this Motion for an Order to Compel Arbitration and Stay the Action. The motion was heard on April 18, 2024. After oral argument, the court requested supplemental briefing on three issues: 1) Whether the conclusory allegations in a Plaintiffs Complaint are sufficient to invoke the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the EFAA); 2) whether Plaintiff should be allowed leave to amend her Complaint to bring her Complaint within the meaning of the EFAA; and 3) when it is unclear from the shotgun pleadings which causes of action a statement regarding sexual harassment applies, how should the Court apply the Act in determining which (if any) causes of action may not be compelled to arbitration. The issues have been briefed. The court rules as follows. II. LEGAL STANDARD California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-72.) Under both the FAA and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, the party opposing the petition then bears the burden of proving by a preponderance of the evidence any fact necessary to demonstrate that there should be no enforcement of the agreement, and the trial court sits as a trier of fact to reach a final determination on the issue. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.) Pursuant to Code of Civil Procedure section 1281.2, the Court can compel parties to an arbitration agreement to arbitrate their dispute. The party petitioning to compel arbitration under written arbitration agreement bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and party opposing petition must meet the same evidentiary burden to prove any facts necessary to its defense. The trial court acts as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence. (Code Civ. Proc., § 1281.2; Provencio v. WMA Securities, Inc. (2005) 125 Cal.App.4th 1028, 1031.) III. EVIDENTIARY OBJECTIONS Plaintiff generally and throughout her opposition challenges the admissibility and authenticity of the Employment Agreement attached as Exhibit A to the Declaration of Rick Spade. The objection is overruled. In People v. Cruz, the Appellate Court stated: Authentication of a writing .... is required before it may be admitted in evidence. ([Evid. Code,] §§ 250, 1401.) Authentication is to be determined by the trial court as a preliminary fact ([Evid. Code,] § 403, subd. (a)(3)) and is statutorily defined [as relevant here] as the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is .... (§ 1400.) (People v. Goldsmith (2014) 59 Cal.4th 258, 266, 172 Cal.Rptr.3d 637, 326 P.3d 239 (Goldsmith).) [W]hat is necessary is a prima facie case. As long as the evidence would support a finding of authenticity, the writing is admissible. (Id. at p. 267, 172 Cal.Rptr.3d 637, 326 P.3d 239.) Thus, a writing can be authenticated if its proponent adduces evidence sufficient to make a prima facie showing that the writing is what its proponent claims it is, or, in other words, that the writing is, genuine for the purpose offered. (Goldsmith, supra, 59 Cal.4th at p. 267, 172 Cal.Rptr.3d 637, 326 P.3d 239.) Conflicting inferences regarding the writing's authenticity go to the weight of the writing as evidence, not its admissibility. (Ibid.) As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility. (People v. Valdez (2011) 201 Cal.App.4th 1429, 1435, 135 Cal.Rptr.3d 628.) Except as provided by statute, the testimony of a subscribing witness is not required to authenticate a writing (Evid. Code, § 1411), and there are no limits on the means by which a writing may be authenticated. (Evid. Code, § 1410 [Nothing in this article shall be construed to limit the means by which a writing may be authenticated or proved.].) Rather, a writing may be authenticated by its contents and circ*mstantial evidence, including the testimony of witnesses other than the person or persons who created the writing or witnessed its creation. (Goldsmith, supra, 59 Cal.4th at p. 268, 172 Cal.Rptr.3d 637, 326 P.3d 239; People v. Landry (2016) 2 Cal.5th 52, 87, 211 Cal.Rptr.3d 160, 385 P.3d 327.) (People v. Cruz (2020) 46 Cal.App.5th 715, 729.) Importantly, in Plaintiffs Declaration, she admits to signing the documents. In fact, she states she was required to complete and sign [the documents] on my first day of work. She argues she did not have an opportunity to read or review the documents before [she] signed them. (Pasquini Decl., ¶ 5.) Contrary to Plaintiffs argument, Plaintiff admits to signing the documents. Mr. Spade testified to the custom and practice of Decrons personnel policies and procedures. Based upon his familiarity with the practices and procedures, he located the Employment Agreement in Plaintiffs personnel file. Mr. Spade testified that typically Assistant Community Managers for Decron are provided with an employment contract. Exhibit A fits that description. All of the pages are initialed AP; page five is signed and dated and countered signed by Gino Cesario, from Decron; page seven is signed and dated; page 9 is signed and dated and Plaintiffs name is also hand printed; Page 10 is signed and dated; page 11 is signed and dated; page 13 is signed and dated. The hearsay objection to Exhibit A is overruled. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 316 [documents containing operative facts, such as the words forming an agreement, are not hearsay]; People v. Jimenez (1995) 38 Cal.App.4th 795, 802; People v. Dell (1991) 232 Cal.App.3d 248, 261262; Kepner-Tregoe, Inc. v. Leadership Software, Inc., (5th Cir. 1994) 12 F.3d 527, 540 [Signed instruments such as wills, contracts, and promissory notes are writings that have independent legal significance, and are nonhearsay].) Pasquini separately raises ten (10) objections to the Declaration of Rick Spade and Exhibits A and B.[1] The objections are overruled. IV. DISCUSSION Defendants move to compel arbitration and stay the proceedings in this matter. In opposition, Plaintiff raises seven arguments which generally fall into the following categories: existence of the agreement, enforceability, and miscellaneous challenges. The court addresses each below. A. Existence of Arbitration Agreement Pasquini was employed with Decron as an Assistant Community Manager beginning on or about February 3, 2020. (Spade Decl., ¶ 4.) On February 3, 2020, Pasquini signed an Arbitration Agreement wherein she agreed to arbitrate any claims that arose out of her employment with Decron. (Rodriguez Decl., Exh. A.) The Agreement is between Pasquini and Decron. (Id.) Pursuant to the Arbitration Agreement, Pasquini and Decron agreed to binding arbitration. (Id.) Specifically, Pasquini and Decron voluntarily agreed that: The Parties agree that any dispute that may arise in connection with, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Employee's hiring by, employment with or separation from the Company, and its parent, subsidiary and affiliated corporations and entities, and their predecessors, successors and assigns, or any other dispute by and between the Parties, shall be submitted to binding arbitration, and not through litigation in court or a trial before a judge or jury. This arbitration obligation extends to any and all claims that may arise by and between the Parties, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor market, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, discrimination, harassment, retaliation, disability, loss of future earnings, trade secrets misappropriation, unfair competition, breach of fiduciary duty, breach of duty of loyalty, and claims under the California Constitution, the United States Constitution, and applicable state and federal fair employment laws, federal equal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as amended, the Worker Retraining and Notification Act of 1988, as amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, the California Labor Code, as amended, the California Business and Professions Code, as amended, the California Fair Employment and Housing Act, as amended, and all other state, federal and local laws and regulations, and contractual and common law claims (excluding workers' compensation, unemployment insurance claims or state or federal disability insurance claims, and claims under any other valid statute or law that expressly precludes arbitration of such claims). (Spade Decl., Exh. A, § 10(a).) Pasquinis initials appear on each page of the employment agreement, including the page with the arbitration provision. (Id.) Pasquini signed the agreement. (Id.) Defendants have shown that a valid agreement to arbitrate exists. Plaintiff offers three arguments in opposition. Each fail. The first challenge is procedural in nature. Plaintiff argues the motion should be denied because Defendants did not incorporate or state verbatim the terms of the arbitration agreement in the notice of motion. The argument relies on a misreading of California Rules of Court, rule 3.1330. Rule 3.1330 states, A petition to compel arbitration or to stay proceedings pursuant to Code of Civil Procedure sections 1281.2 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. There is nothing in Rule 3.1330 which requires that the terms of the arbitration agreement appear verbatim or by reference in the notice of motion. Defendants have attached a copy of the arbitration agreement to the Declaration of Rick Spade which was filed concurrently with the Motion. Defendants complied with Rule 3.1330. Plaintiff next argues there is no agreement to arbitrate because she did not consent to arbitration. In support, Plaintiff offers her declaration where she denies agreeing to arbitrate any claims with Defendants, denies being told that any of the documents she was signing was an agreement to arbitrate, and denies being aware that an agreement to arbitrate existed between her and Defendants. (Pasquini Decl., ¶¶ 5-8.) However, the arbitration agreement bears Plaintiffs initials and signature. Indeed, Plaintiff admits to signing the arbitration. (Pasquini Decl., ¶ 5.) Plaintiff cannot reasonably argue she did not consent to arbitration. Moreover, a contract may still be enforced even if it is a contract of adhesion. Adhesion contracts are fully enforceable . . . unless certain other factors are present which under established legal rules legislative or judicial operate to render it otherwise. (Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 819; E.E.O.C. v. Luce, Forward, Hamilton & Scripps (9th Cir. 2003) 345 F.3d 742, 749 (employers may require employees to agree to binding arbitration of disputes as a condition of employment); Craig v. Brown & Root (2000) 84 Cal.App.4th 416, 421 (no procedural unconscionability found where plaintiff was told to review the companys employee handbook and to acknowledge that he was bound by the policies contained within the handbook, which contained the arbitration policy).) Finally, Plaintiff argues there is no admissible evidence of an arbitration agreement. For this argument, Plaintiff relies on objections to the Declaration of Rick Spade. The court considered her objections and overruled them. There exists a valid arbitration agreement. Further, there is no dispute the arbitration agreement is governed by the Federal Arbitration Act.[2] B. Enforceability California law strongly favors arbitration. Through the comprehensive provisions of the California Arbitration Act (Code Civ. Proc., § 1280 et seq.), the Legislature has expressed a strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution. As with the FAA (9 U.S.C. § 1 et seq.), California law establishes a presumption in favor of arbitrability. An agreement to submit disputes to arbitration is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125.) Arbitration agreements may be declared unenforceable upon such grounds as exist at law or in equity for the revocation of any contract. This saving clause permits agreements to arbitrate to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability, but not by defenses that apply only to arbitration or that derive their meaning from the fact that an agreement to arbitrate is at issue. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) Plaintiff raises two arguments against the enforceability of the arbitration provision: (1) the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Act) prohibits enforcement of the arbitration agreement, and (2) the agreement is unconscionable. 1. The Act In March 2022, President Joseph R. Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act) (9 U.S.C. §§ 401, 402), representing the first major amendment of the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) since its inception nearly 100 years ago. (Murrey v. Superior Court (2023) 87 Cal.App.5th 1223, 1230.) Section 402, subdivision (a), of the [EFAA] describes its applicability, stating that effective immediately, predispute arbitration agreements and joint-action waivers in the context of sexual assault or harassment were no longer valid or enforceable. (Id. at p. 1234.) [A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute. (9 U.S.C. § 402, subd. (a).) (Id. at pp. 1234-35.) The parties disagree over whether the Act applies to Plaintiffs claims. As framed by Plaintiff in her opposition, Plaintiffs sexual harassment claims accrued on or about May, 2022. Plaintiff never voluntarily agreed to arbitrate on the issue of sexual assault or sexual harassment. Therefore, the [Act] serves to bar Defendants attempt for arbitration and their motion must be denied. (Opp., p. 5.) The Complaint alleges, In addition to Defendants misconduct related to her tenancy, throughout her employ Plaintiff was subjected to Defendant EMPLOYERs and MANAGERS discriminatory, harassing and retaliatory conduct including sexual harassment, based upon her sex, gender, age, medical conditions, disability, perceived disability and association with others. (Complaint, ¶ 7.) Paragraph 17 states: Defendants terminated Plaintiffs employ and then continued to discriminate, harass and retaliate against her as a tenant, based upon her sex, gender, age, medical conditions, disability, perceived disability and association with others. The Complaint alleges Defendants sexual harassment of Plaintiff during her time as an employee as well as her time as a tenant. Defendants argue these allegations are conclusory. Defendants further argue that Plaintiff has not asserted a sexual harassment cause of action. However, Defendants do not provide any authority for the proposition that the court may disregard an allegation of sexual harassment, even if it is conclusory, to avoid application of the Act.[3] The court, however, notes the difficulty in distinguishing the claims that include allegations of sexual harassment from those that do not. Indeed, the first, second, third, fourth, fifth, eleventh, twelfth and thirteenth causes of action all include reference to harassment. The eighth cause of action makes reference to such conduct. It is unclear, however, how the sixth, seventh, ninth and tenth causes of action, which do not specifically refer to sexual harassment, come within the scope of the Act. In other words, the complaint is factually deficient. Plaintiff requests leave to amend to cure this defect. The request is denied. Leave to amend would be a proper way to address pleading deficiencies if the court were ruling on a demurrer or motion for judgment on the pleadings. But a motion to compel arbitration is presently before the court. When deciding whether to compel an action to arbitration, the trial court sits as the trier of fact, and may consider affidavits, declarations, and other documentary evidence. (Code Civ. Proc., § 1281.2; Provencio, supra, 125 Cal.App.4th at p. 1031.) Accordingly, the court directs Plaintiff to submit a declaration and/or other documentary evidence detailing the factual basis for her sexual harassment claims and to explain how the alleged sexual harassment relates to each cause of action, if at all. Defendants may submit evidence countering Plaintiffs claims.[4] The court will hear from counsel. 2. Unconscionability Next Plaintiff raises the contractual defense of unconscionability. In general, the doctrine of unconscionability refers to an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.¿ (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133 (Sonic) (cleaned up).) If unconscionable, the arbitration agreement is not a valid contract and therefore is unenforceable.¿ (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz).) ¿ Unconscionability consists of both procedural and substantive elements. Procedural unconscionability addresses the circ*mstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided.) Both elements must be present for a court to refuse to enforce an arbitration agreement. However, the elements do not need to be present in the same degree and are evaluated on a sliding scale. [T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. (Magno v. The College Network, Inc. (2016) 1 Cal.App.5th 277, 284285 (cleaned up).) ¿ i. Procedural Unconscionability¿ ¿ Procedural unconscionability has to do with matters relating to freedom of assent. (Kinney v. United Healthcare Servs. (1999) 70 Cal.App.4th 1322, 1329.) The procedural element focuses on two factors: oppression and surprise.¿ (Id.) Oppression arises from an inequality of bargaining power which results in no real negotiation and an absence of meaningful choice. (Id.) Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the printed form drafted by the party seeking to enforce the disputed terms. (Id.)¿¿ A contract of adhesion creates some amount of procedural unconscionability the term signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Neal v. State Farm Ins. Cos. (1961) 188 Cal.App.2d 690, 694.) In addition, a lack of effort to highlight the presence of an arbitration provision, such as through bold lettering, larger font, or capitalization, has been found to indicate procedural unconscionability. (See Higgins v. Superior Court (2006) 140 Cal.App.4th 1238.)¿¿However, when there is no other indication of oppression other than the adhesive aspect of an agreement, the degree of procedural unconscionability is low. (Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.)¿¿¿ [T]he fact that the arbitration agreement is an adhesion contract does not render it automatically unenforceable as unconscionable. Courts have consistently held that the requirement to enter into an arbitration agreement is not a bar to its enforcement. (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 179 (Serafin); see also Concepcion, supra, at pp. 346-47 [the times in which consumer contracts were anything other than adhesive are long past].)¿ ¿ First, Plaintiff argues the agreement is procedurally unconscionable because it was drafted without input or review by Plaintiff, was presented on a take it or leave it basis, and Plaintiff was not given an opportunity to read or review it.¿ Based on the foregoing, the court finds that the arbitration agreement is a contract of adhesion. However, the court notes these factors are not sufficient to invalidate an arbitration agreement. (Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1674 [ Reasonable diligence requires the reading of a contract before signing it. A party cannot use his own lack of diligence to avoid an arbitration agreement. ].) And, as explained above, the fact that it is an adhesion contract does not render it automatically unenforceable as unconscionable. ¿ Plaintiff next argues the arbitration agreement is procedurally unconscionable because she was not given the arbitration rules. The failure to attach a copy of the arbitration rules could be a factor supporting a finding of procedural unconscionability where the failure would result in surprise to the party opposing arbitration. (Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 690.)¿ In Lane, the Court concluded, The failure to attach a copy of the arbitration rules could be a factor supporting a finding of procedural unconscionability where the failure would result in surprise to the party opposing arbitration. (Id.) The Lane Court ultimately determined that 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 partiesthe AAA rules are available on the Internet. (Id. at p. 691.)¿¿¿ ¿ The court finds a low degree of procedural unconscionability. [T]he less procedural unconscionability is present, the more substantive unconscionability is required to justify a determination. (Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 980 (Dotson).) Under the sliding scale approach, Plaintiff must therefore demonstrate a high degree of substantive unconscionability for the court to find the agreement unenforceable. ¿ ii. Substantive Unconscionability ¿ ¿ Assessing substantive unconscionability, courts generally focus on the terms of the agreement and look for terms that are overly harsh or one-sided such that they shock the conscience. (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281 (Nyulassy); see also Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-911 (clarifying various definitionse.g., shocks the conscience, unduly oppressive, unreasonable favorable mean same thing).) The paramount consideration is mutuality of the obligation to arbitrate. (Nyulassy, 120 Cal.App.4th at pp. 1281, 1287.) Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided. One such form, as in Armendariz, is the arbitration agreements lack of a modicum of bilaterality, wherein the employees claims against the employer, but not the employers claims against the employee, are subject to arbitration. Another kind of substantively unconscionable provision occurs when the party imposing arbitration mandates a post-arbitration proceeding, either judicial or arbitral, wholly or largely to its benefit at the expense of the party on which the arbitration is imposed. In determining unconscionability, our inquiry is into whether a contract provision was unconscionable at the time it was made. (Sonic, supra, 57 Cal.4th at pp. 1133-34 (cleaned up).) To state it simply: it is substantively unconscionable to require a consumer to give up the right to utilize the judicial system, while imposing arbitral forum fees that are prohibitively high. (Id. at pp. 1144-45.) Here, Plaintiff points to four terms which she maintains are substantively unconscionable. First, Plaintiff argues that the arbitration agreement impermissibly requires confidentiality. Plaintiff cites Ramos v. Superior Court (2018) 28 Cal.App.5th 1042 in support of the proposition that provisions requiring all aspects of the arbitration be maintained in strict confidence is substantively unconscionable. (Ramos, at p. 1067.) Ramos is distinguishable. In Ramos, the arbitration provision stated, Except to the extent necessary to enter judgment on any arbitral award, all aspects of the arbitration shall be maintained by the parties and the arbitrators in strict confidence. (Ramos, at p. 1065.) Here, the arbitration agreement states: Except as may be permitted by law as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. (Spade Decl., Exh. A, § 10(i).) Unlike Ramos, the arbitration provision vests the arbitrator with the authority to determine whether, under the law, any aspect of the arbitration may be disclosed. Stated another way, Plaintiff is not foreclosed as in Ramos to conduct discovery to support her claims. Second, Plaintiff argues the arbitration agreement impermissibly implies that Plaintiff must pay arbitration fees. When an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court. (Armendariz, supra, at pp. 110-111.) Plaintiffs argument is flawed. Under applicable law, a plaintiff may be required to pay a portion of the arbitration costs. The cost simply cannot exceed the expenses that would be incurred in bringing an action in court. To the extent Plaintiff is arguing the arbitration agreement implies that she must bear prohibitively high costs, a review of the arbitration agreement does not favor that reading. Here, the arbitration provision states: The costs of arbitration, including the arbitrator's fees, shall be allocated and paid in accordance with then-applicable law. If required by applicable law, the Company shall pay all of the arbitrator's fees and the arbitration related costs. If, however, under applicable law, the Company is not required to pay all of the arbitrator's fees and/or the arbitration-related costs, such fees and costs will be apportioned between the parties by the arbitrator in accordance with applicable law and, if applicable law is silent on this issue, such arbitration fees and costs shall be allocated equally between the Company and Employee. (Spade Decl., Exh. A, § 10(k).) Under the plain language of the provision, costs of arbitration are allocated in accordance with applicable law. As discussed, applicable law does not authorize Plaintiff to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court. This provision is not substantively unconscionable. Plaintiff next argues that the arbitration impermissibly restricts venue for the arbitration proceedings. The arbitration provision mandates the location of the arbitration proceeding shall be in the city or county of the Companys then-current headquarters. (Spade Decl., Exh, A, § 10(j).) In support, Plaintiff cites Government Code section 12965 which allows an aggrieved person to bring an action in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice . . . . (Gov. Code, §12965, subd. (c)(3).) The argument is unsupported. Plaintiff, who has the burden, does not show that Decrons company headquarters is located in a county other than Los Angeles. Last, Plaintiff argues that the agreement impermissibly requires her to waive her right to jury trial. By agreeing to the arbitration clause, absent a showing of unconscionability, Plaintiff agreed to proceed in an arbitral forum, not a court of law. Plaintiff has not shown substantive unconscionability. Ultimately, determining whether an agreement is unconscionable requires evaluating the totality of the agreements substantive terms as well as the circ*mstances of its formation to determine whether the overall bargain was unreasonably one-sided. (Sonic, supra, 57 Cal.4th at p. 1146.)¿¿¿ Because both substantive and procedural components of unconscionability need to be present, Plaintiff has not shown the contract was unconscionable. The two factors [of procedural and substantive unconscionability] are interrelated and are to be balanced in determining the enforceability of an arbitration provision. (Dotson, supra, 181 Cal.App.4th at p. 980.) The court has balanced the factors. Viewed together, the court finds that the arbitration agreement is not unconscionable. 3. Miscellaneous Challenges Plaintiff raises two additional arguments: (1) VCA is a non-signatory to the arbitration agreement and therefore lacks standing to enforce it; (2) Compelling Plaintiffs claims to arbitration when Sidenstecker, Cesario, and Nagel are not signatories to the agreement would lead to conflicting rulings. The court does not and need not address these arguments at this time. V. CONCLUSION The motion to compel arbitration is CONTINUED to September 10, 2024. Plaintiff is directed to provide evidence (affidavits, declarations, or other documentary evidence) of her sexual harassment allegations and to explain how those allegations are connected to other causes of actions. Defendants may submit counter evidence and argument. Plaintiffs supplemental filings are due by August 23, 2024. Defendants response is due by September 5, 2024. Defendants are ordered to give notice. Dated: August 13, 2024 Kerry Bensinger Judge of the Superior Court [1] There is no Exhibit B attached to Mr. Spades declaration. [2] This arbitration section of the Agreement shall be exclusively governed by and construed and enforced pursuant to the substantive and procedural provisions of the Federal Arbitration Act, 9 U.S.C. § 1 (FAA), and not individual state substantive and procedural laws regarding enforcement of arbitration agreements. (Spade Decl., Exh. A, § 10(e).) [3] Defendants cite Yost v. Everyrealm, Inc. (S.D.N.Y. 2023) 657 F. Supp.3d 563 for the proposition that the Act does not operate to invalidate a binding arbitration agreement if the plaintiff fails to plead a plausible sexual harassment claim. (Defendants Supp. Brief, p. 1:24-28.) The court is not persuaded. The rules of pleading in federal court are generally different from the rules of pleading in California state courts, since the Federal Rules of Civil Procedure recognize a form of notice pleading, usually designed simply to put a defendant on notice of the nature of a claim, whereas California requires the pleading of facts pursuant to its system of code pleading derived from the New York Code of 1848, known as the Field Code. (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561.) Further, the general rule is that where an action founded on a federal statute is properly brought in the state courts, the law of the state, in the absence of any contrary provisions in the federal statute, controls in matters of practice and procedure. [Citation.] (Id. at pp. 561-562, fn. omitted.) Here, Defendants do not cite any portion of the Act that requires that Plaintiffs causes of action (which all arise under California law) must observe federal pleading standards. Moreover, Yost does not stand for the proposition that any court examining a motion to compel arbitration pursuant to an agreement to arbitrate governed by the FAA must apply a plausibility standard to the plaintiffs complaint. [4] Defendants alternatively request that the court sever Plaintiffs sexual harassment claims from her non-sexual harassment claims. Because of the factual deficiencies in the Complaint, the court cannot address this request or the case law purportedly supporting the request at this time. The court defers its ruling.

Ruling

JODI BRINTNELL VS CHERIE MCGRAHAM, ET AL.

Aug 13, 2024 |22CHCV00047

Case Number: 22CHCV00047 Hearing Date: August 13, 2024 Dept: F51 AUGUST 12, 2024 MOTION FOR ATTORNEY FEES Los Angeles Superior Court Case # 22CHCV00047 Motion Filed: 3/6/24 MOVING PARTY: Plaintiff Jodi Brintnell (Plaintiff) RESPONDING PARTY: Defendants Cherie McGraham, individually dba Smokehouse on Main; and Cheriebee Incorporated dba Smokehouse on Main (collectively, Defendants) NOTICE: OK RELIEF REQUESTED: An order awarding Plaintiff attorney fees and costs in the amount of $28,768.00. TENTATIVE RULING: The motion is granted in part. Plaintiff is awarded $18,471.25 in attorney fees and costs. Plaintiff is reminded that all documents must be text searchable when technologically feasible without impairment of the document's image. (CRC 2.256(b)(3).) Plaintiff is further reminded to review the 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing documents, parties must comply with the TECHNICAL REQUIREMENTS which are set forth at page 4, line 4 through page 5, line 12 of the Courts 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil (particularly bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply with these requirements in the future may result in papers being rejected, matters being placed off calendar, matters being continued so documents can be resubmitted in compliance with these requirements, documents not being considered and/or the imposition of sanctions. BACKGROUND This is an employment action in which Plaintiff alleges that she was an employee of Defendants between February and June 2021, during which time Defendants failed to compensate Plaintiff for meal and rest breaks. On 1/19/22, Plaintiff filed her complaint, alleging against Defendant the following causes of action: (1) Failure to Pay Minimum Wage; (2) Failure to Pay Overtime Wages; (3) Failure to Provide Meal Periods; (4) Failure to Provide Rest Periods; (5) Failure to Provide Accurate Itemized Wage Statements; (6) Failure to Reimburse Business Expenses; (7) Failure to Pay All Wages Owed Upon Termination; (8) Failure to Provide Paid Sick Leave; (9) Improper Wage Deductions from Gratuities; and (10) Unfair Business Practices. On 3/10/22 and 6/17/22, Defendants filed their answers. On 11/23/23, the parties executed a settlement offer pursuant to Code of Civil Procedure section 998, settling entire lawsuit by Defendants paying Plaintiff $7,500.00, plus attorney fees, costs, and expenses either by written stipulation or by noticed motion. (Ex. 1 to Decl. of Svetlana Lukyanov, pp. 12.) On 3/6/24, Plaintiff filed the instant motion. On 3/12/24, Plaintiff filed a Notice of Conditional Settlement of the entire case. On 5/13/24, Defendants filed their opposition. On 2/13/24, Plaintiff filed her reply. On 5/24/24, the Court continued the instant motion and requested further clarification from the parties. On 6/7/24, each of the parties filed their supplemental briefs. ANALYSIS A. Right to Recovery An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, the parties stipulated that Plaintiffs counsel, Bleau Fox, a P.L.C., shall be entitled to bring a motion for reasonable attorneys fees and costs of suit incurred in prosecuting this action on behalf of Plaintiff, to be determined by the Court, unless the Parties are able to otherwise stipulate to an agreed upon amount. (Ex. 1 to Lukyanov Decl., p. 2.) Additionally, Plaintiff asserts, and Defendants do not contest, that Plaintiff is entitled to recover reasonable attorney fees pursuant to Labor Code sections 226, subdivision (e)(1); 218.5, subdivision (a); and 1194, subdivision (a). Accordingly, the Court finds that Plaintiff is entitled to recover reasonable attorney fees, costs, and expenses as authorized by both statute and contract. B. Attorney Fees Incurred The burden is on the party seeking attorney fees to prove that the fees it seeks are reasonable. (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 169.) In determining a reasonable fee award, the Court begins with the lodestar method of calculation, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.¿(Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734, 744; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 10951096.) Here, Plaintiff seeks to recover $25,180.00 in attorney fees, encompassing 73.18 hours of her attorneys time, billed at the following rates: Name Title Hourly Rate Hours Total Megan Childress Attorney $350.00 7.05 $2,467.50 Svetlana Lukyanov Attorney $350.00 3.0 $1,050.00 $450.00 38.8 $17,460.00 Thomas P. Bleau Attorney $450.00 5.4 $2,430.00 Paralegals/Law Clerks $75.00 11.5 $862.50 $125.00 7.5 $937.50 Total 65.75 $25,207.50 (Ex. 3 to Lukyanov Decl.)[1] Plaintiff also seeks to recover an additional $2,250.00 for her counsel to review Defendants opposition, draft her reply, and appear for the instant hearing. (Pl.s Suppl. Brief 5:1921.) 1. Counsels Hourly Rate When determining a reasonable hourly rate, courts consider whether the stated rates are within the range of reasonable rates charged by and judicially awarded [to] comparable attorneys for comparable work. (Children's Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 783.) Lawyers who work on a contingency fee basis may seek heightened attorney fees because of the inherent contingent risk associated with their cases. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132 [a contingent fee contract, since it involves a gamble on the result, may properly provide for a larger compensation than would otherwise be reasonable.].) Here, Plaintiff asserts that her counsels hourly rates are not only within the range of rates charged by other litigators with comparable experience in the highly specialized field of wage-and-hour litigation, but they are rather toward the low end. Private attorneys in the Los Angeles/Orange County metropolitan area with comparable experience typically charge on average over $500.00 per hour. (Pl.s Mot. 8:2326.) In opposition, Defendants argue that Plaintiffs counsels hourly rates are unreasonably high, specifically that Plaintiff is demanding that Defendants pay for legal services by Ms. Lukyanov a 2019 Bar admittee - at the same hourly rate as Ms. Childress (a 2009 Bar admittee) and Mr. Bleau (a 1991 Bar admittee). Plaintiff offers no explanation or justification for this excessively high hourly rate. (Defs. Opp. 6:1619.) The Court notes that neither party submits any further evidence supporting their arguments relating to the reasonableness of Ms. Lukyanovs hourly billing rate. As such, the Court finds it reasonable to reduce Ms. Lukyanovs hourly billing rate to $350.00 per hour, for a total reduction of $3,880.00. 2. Hours Expended Plaintiff seeks to recover attorney fees for the 65.75 hours expended by her attorneys on this matter, and proffer an itemized list of time entries detailing her attorneys work on the matter. (Ex. 3 to Lukyanov Decl.) In addition to the attorney hourly billing rate, Defendants challenge the following specific entries in Plaintiffs attorneys proffered time log: (1) excessively billed time entries; and (2) time incurred in preparing Plaintiffs settlement conference brief. (Def.s Opp. 3:94:20.) a. Excessively Billed Entries Defendants argue that the fees for the following time entries should be reduced as inefficient and excessive: · 3.5 hours spent drafting Plaintiffs complaint; · 2 hours spent attempting to strike Defendants answer; · 11 hours of paralegal work responding and propounding discovery; · 1.5 hours spent reviewing Defendants document production; · 2.0 hours reviewing and revising the parties settlement agreement; · 0.2 hours billed for each e-mail sent in the case; and · 14.6 hours drafting the instant motion. The Court notes that Defendants do not provide further explanation or argument as to how or why the time incurred by Plaintiffs counsel for these items is excessive and/or unreasonable. In opposition, Plaintiff maintains that the time billed was reasonable based on the circ*mstances of the case. (Pl.s Reply 2:224:14.) Based on the foregoing, the Court finds it reasonable to reduce the fee award for time incurred in drafting Plaintiffs complaint to 2.0 hours; time spent propounding and responding to discovery to 3.0 hours; and time spent preparing the instant motion to 5.0 hours, for a total reduction of $5,945.00. b. Settlement Conference Brief Defendants further argue that Plaintiff should not be allowed to recover attorney fees incurred in preparing Plaintiffs settlement conference brief. Defendants assert that Plaintiffs counsel billed seven and four-tenth (7.4) hours to draft a settlement conference Brief that was not used at the settlement conference. While a review of the docket reflects that Plaintiff filed a settlement conference brief one day before the June 2 settlement conference, it does not appear that brief was in any way used to support settlement discussions or otherwise move this case towards settlement/completion. (Defs. Opp. 5:1923.) In reply, Plaintiff argues that even if somehow the brief was not received by the mediator (which might be untrue and it is unclear how Defendants attorney is aware of this fact), this happened due to technical issues in the court filing system and was not Plaintiffs fault. Plaintiffs attorney, Thomas P. Bleau, used this brief in preparation for the conference and settlement discussions. (Pl.s Reply 3:49.) Based on the foregoing, the Court sees no basis to strike Plaintiffs attorney fees incurred in preparing her settlement conference brief, which Defendants concede was filed with the Court. C. Costs Plaintiff asserts that she incurred costs and expenses totaling $1,338.75, which encompasses research fees, filing fees, process server fees, and courtesy copy delivery fees. (Ex. 4 to Lukyanov Decl.) The Court notes that Defendants do not object to any of the costs claimed. Accordingly, the Court grants Plaintiffs motion to recover $1,338.75 in costs and expenses. CONCLUSION The motion is granted in part. Plaintiff is awarded $18,471.25 in attorney fees and costs.

Ruling

FERMIN GARCIA VS QUIK TOW LLC, ET AL.

Aug 13, 2024 |22STCV31358

Case Number: 22STCV31358 Hearing Date: August 13, 2024 Dept: 31 Tentative Ruling Judge Kerry Bensinger, Department 31 HEARING DATE: March 29, 2024 TRIAL DATE: January 6, 2025 CASE: Fermin Garcia v. Quik Tow LLC, et al. CASE NO.: 22STCV31358 MOTIONS TO COMPEL RESPONSES TO DISCOVERY MOTION TO DEEM REQUESTS FOR ADMISSIONS ADMITTED MOVING PARTY: Plaintiff Fermin Garcia RESPONDING PARTY: No opposition I. BACKGROUND On September 26, 2022, Plaintiff, Fermin Garcia, filed this action against Defendants, Quik Tow LLC (Quik Tow) and Ignacio Gonzalez (Gonzalez), for wage and hour violations. On January 16, 2024, Plaintiff served Gonzalez with the First Set of Form Interrogatories, Special Interrogatories, Request for Production of Documents, and Request for Admissions (RFA). Gonzalez did not serve responses. On April 25, 2024, Plaintiff filed these motions to compel Gonzalezs responses to the interrogatories and production demands, and to deem the RFAs admitted against Gonzalez. The motions were served to Gonzalezs counsel. On June 20, 2024, Defendants filed a Substitution of Attorney indicating that Defendants were now self-represented. On July 9, 2024, Quik Tow filed a Substitution of Attorney indicating it had retained new counsel. Gonzalez remains self-represented. Given that Gonzalez is a self-represented litigant, the court directs Plaintiff to personally serve Gonzalez with these motions unless the parties agree to electronic service, file proof of agreement with the court, and serve Defendant Gonzalez with these motions along with proof of service. II. CONCLUSION Based on the foregoing, Plaintiffs discovery motions are CONTINUED to September 16, 2024, to allow Plaintiff to personally serve Defendant Ignacio Gonzalez with these motions. Moving party to give notice. Dated: August 13, 2024 Kerry Bensinger Judge of the Superior Court

Ruling

HAYLEY SIPE VS SXC STUDIO CITY, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL.

Aug 19, 2024 |23STCV07063

Case Number: 23STCV07063 Hearing Date: August 19, 2024 Dept: 52 Tentative Ruling: Plaintiff Hayley Sipes Motion for Terminating Sanctions Plaintiff Hayley Sipe moves for terminating sanctions against defendant SXC Studio City, LLC (SXC). After a court issues an order compelling responses to interrogatories or requests for production, [i]f a party then fails to obey the order, the court may make those orders that are just, including imposing monetary, issue, evidence, or terminating sanctions. (CCP §§ 2030.290(c) [interrogatories], 2031.300(c) [requests for production].) On June 7, 2024, the court ordered SXC to serve responses without objections to plaintiffs form interrogatories employment, special interrogatories, and requests for production, set one, within 30 days. The court further ordered SXC to pay plaintiff $883.50 in sanctions for each of plaintiffs three motions. SXC disobeyed those orders. SXC did not serve any responses or pay the sanctions as of July 14, 2024. (Ranen Decl., ¶¶ 28-30.) Terminating Sanctions Courts may impose a terminating sanction by striking out a defendants answer (CCP § 2023.030(d)(1)) or rendering a judgment by default against it (id., subd. (d)(4)). Discovery sanctions should be imposed incrementally, starting with monetary sanctions and ending with the ultimate sanction of termination. (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.) [A] terminating sanction should generally not be imposed until the court has attempted less severe alternatives and found them to be unsuccessful and/or the record clearly shows lesser sanctions would be ineffective. (Ibid.) Appropriate sanctions are those suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but [not] which are designed not to accomplish the objects of discovery but to impose punishment. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 488.) Terminating sanctions are appropriate. Sanctions short of termination have been ineffective to curb SXCs misuse of the discovery process. The monetary sanctions had no effect on SXC. Plaintiff has been completely unable to accomplish the objects of discovery. The purpose of discovery is to make trial less a game of blindmans bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent. (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 473.) SXC has not complied with its discovery obligations. It disobeyed the courts order compelling it to do so. SXCs misuse of the discovery process has prevented plaintiff from conducting any discovery as to SXC. Absent terminating sanctions, plaintiff would face trial by surprise. Under these circ*mstances, the court finds terminating sanctions appropriate. The court therefore will strike SXCs answer and enter its default. Monetary Sanctions Plaintiff moves for $2,925 in sanctions against SXC and its counsel of record, Reza Sina of Sina Law Group. After a party fails to obey an order compelling responses, the court may impose monetary sanctions [i]n lieu of or in addition to greater sanctions. (CCP §§ 2030.90(c) [interrogatories]; 2031.300(c) [requests for production].) The court finds it appropriate to impose monetary sanctions in addition to the terminating sanction. Plaintiff did not, however, reasonably incur $2,925 in expenses for this motion. That amount includes fees at $450 per hour for 1 hour expected to review any opposition and 1.5 hours to prepare a reply. (Palencia Decl., ¶ 2.) SXC did not file an opposition. Plaintiff filed only a notice of non-opposition, not a reply brief. The court finds plaintiff reasonably incurred 3 hours of fees to draft the motion, 0.1 hours for the notice of non-opposition, and 1 hour preparing for the hearing, for a total of $1,845 in attorney fees plus the $60 filing fee. Disposition Plaintiff Hayley Sipes motion for terminating sanctions and additional monetary sanctions against defendant SXC Studio City, LLC is granted. The court hereby strikes the answer of defendant SXC Studio City, LLC. The court hereby enters the default of defendant SXC Studio City, LLC. Defendant SXC Studio City, LLC and its counsel of record, Reza Sina of Sina Law Group, are ordered to pay plaintiff Hayley Sipe $1,905 in sanctions within 30 days. Defendant and its counsel are jointly and severally liable for the sanctions.

Ruling

MEGHAN HIDALGO, AN INDIVIDUAL VS MEUNDIES, INC., A DELAWARE CORPORATION, ET AL.

Aug 19, 2024 |24STCV05412

Case Number: 24STCV05412 Hearing Date: August 19, 2024 Dept: 34 Defendant Meundies, Inc. and Jonathan Shokrians Motion to Compel Arbitration and Stay Court Action is DENIED. Background[1] Plaintiff Meghan Hidalgo (Plaintiff) alleges as follows: Defendant MeUndies, Inc. (Meundies) denied promotions and pay increases to Plaintiff throughout the course of her employment despite her exceptional job performance and director level contributions. Male employees and white employees were consistently hired for positions senior to Plaintiff, despite her having more relevant job experience and carrying more responsibility in her role. During Plaintiffs employment, MeUndies and Defendant Jonathan Shokrian (Shokrian and collectively with Meundies as Defendants), the Chief Executive Officer (CEO), subjected Plaintiff to an onslaught of harassing conduct including demeaning comments, micromanagement, assignment of unfavorable job tasks, the denial of promotions and pay raises, and wrongful termination, all because she is a woman. In response, Plaintiff spoke out. She complained about the hostile and discriminatory environment at MeUndies, and asked the company to address the problems that permeated the workplace. In response, for complaining of and actively resisting the discriminatory and harassing conduct of Defendants, Ms. Hidalgo was subjected to a campaign of retaliation culminating in her wrongful termination. On March 4, 2024, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-10 for: 1. Sex/Gender Harassment; 2. Sex/Gender Discrimination; 3. Retaliation; 4. Failure to Prevent Discrimination, Harassment; 5. Retaliation; 6. Unequal Pay; 7. Failure to Pay all Wages at Separation; 8. Negligent Hiring, Supervision and Retention; and, 9. Wrongful Termination. A Case Management Conference is set for August 19, 2024. Legal Standard On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement. (Code Civ. Proc., § 1281.2, subds. (a) and (b).) The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence. (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.) The burden then shifts to the opposing party to prove by a preponderance of the evidence a defense to enforcement (e.g., fraud, unconscionability, etc.) (Id.) 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 courts discretion, to reach a final determination. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) 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 Defendants move the court to compel arbitration of all claims and causes of action between Plaintiff and Defendants, and dismiss or, alternatively, stay all further judicial proceedings in this action pending completion of arbitration. Merits 1. Existence of a Valid Arbitration Agreement Defendants submit Plaintiff worked for MeUndies from February of 2020 until February of 2023. (Declaration of Connie Tong. ¶ 4.) At the time Plaintiff was hired, MeUndies used an electronic onboarding system for new hires to review and sign certain onboarding documents. (Id., ¶ 5.) During onboarding, MeUndies provided new employees with a copy of the Mutual Arbitration Agreement (the Agreement). (Id.) The Agreement reads as follows: MUTUAL ARBITRATION AGREEMENT This Mutual Arbitration Agreement (Agreement) is entered into between MeUndies (Company) and the undersigned employee (Employee). In consideration of the mutual agreements to arbitrate contained herein, and in consideration of the Employees employment or continued employment by the Company, the Company and Employee agree that any and all disputes, controversies or claims (Claims) arising out of or related to the Employees application for employment, employment, or termination of employment with the Company, or otherwise, shall be submitted to and resolved through confidential final and binding arbitration under the JAMS Employment Arbitration Rules and Procedures in effect at the time the claim is made, and in accordance with the Federal Arbitration Act or the applicable state law modifying or supplementing the Federal Arbitration Act. A copy of the current rules and procedures are provided concurrently herewith if the Employee elects (and Employee hereby acknowledges the opportunity to review the rules prior to signing this Agreement), and may also be provided in the future by contacting the Company or visiting http://www.jamsadr.com/rules-employment-arbitration. This Agreement is intended to cover and includes, but is not limited to, any and all Claims for wage and hour violations, discrimination, harassment, retaliation, misrepresentation, sexual harassment or hostile work environment, wrongful termination in violation of public policy, breach of contract, negligence, tortious interference, intentional infliction of emotional distress, defamation, misappropriation of trade secrets, unfair competition or business practices, fraud, and any other violation of any federal, state or local law, statute, regulation or ordinance. This Agreement covers Claims against the Company as well as any past or present affiliates, and against any current and former employees, agents, principals, shareholders, partners, members, officers and directors of the Company or of any affiliates, involving matters occurring in the course or scope of the Companys business or otherwise. THE COMPANY AND EMPLOYEE AGREE THAT CLAIMS COVERED UNDER THIS AGREEMENT WILL NOT BE SUBJECT TO TRIAL BY JURY OR BY A COURT OF ANY JURISDICTION. IN ADDITION, EMPLOYEE WAIVES ANY CLAIM TO CLASS OR COLLECTIVE RELIEF, AND AGREES TO PROCEED INDIVIDUALLY FOR ALL CLAIMS IN ARBITRATION. EMPLOYEE WAIVES ANY AND ALL RIGHT TO HAVE A CLAIM BROUGHT, HEARD OR ARBITRATED AS A CLASS OR COLLECTIVE ACTION. This Agreement shall not include Claims under the National Labor Relations Act, Private Attorney General Act, Workers Compensation claims, Unemployment Insurance and Benefits claims, claims based upon a pension or benefit plan which contains an arbitration or other dispute resolution procedure, and any Claims within the jurisdiction of a small claims court, all of the foregoing if and only to the extent that such Claims cannot be compelled to be submitted to mandatory arbitration under applicable law. Nothing in this Agreement constitutes a waiver of the Employees right to file a charge or complaint with the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, or any other federal, state or local administrative agency. However, any litigation arising from such administrative charges or complaints shall be subject to mandatory arbitration under this Agreement. Nothing in this Agreement precludes either Company or the Employee from seeking appropriate interim injunctive relief pursuant to applicable federal or state law before or while arbitration proceedings are pending, or precludes bringing a claim in a court of competent jurisdiction to compel arbitration under this Agreement. The Company or Employee shall initiate the arbitration process by delivering a written request for arbitration to the other party within the applicable federal or state statute of limitations that would apply to the filing of a civil action with the subject claims. Failure to deliver a timely written request for arbitration within such time limits will preclude the aggrieved party from instituting any legal action, arbitration or other proceedings and constitute a complete waiver of all such claims. The Company and Employee each have the right to representation by counsel with respect to arbitration of any Claim under this Agreement. A single neutral arbitrator shall be selected by agreement between the Company and Employee in accordance with the JAMS rules, and from the JAMS panel of specialists. To the extent applicable in civil actions (and unless modified by the JAMS rules), all rules of civil procedure before and during trial shall apply and be observed in the arbitration, including, but not limited to, all rights to conduct discovery, to file motions (including a motion for summary judgment), designate expert witnesses, present evidence, and examine and cross-examine witnesses. Resolution of the dispute shall be based solely upon the law governing the claims and defenses pleaded and the applicable statute of limitations, and the arbitrator may not invoke any basis, including, but not limited to, notions of just cause, other than such controlling law. The arbitrator shall have the immunity of a judicial officer from civil liability when acting in the capacity of an arbitrator, which immunity supplements any other existing immunity. The arbitrator shall conduct a full hearing at which the parties shall be entitled to present evidence, and examine and cross-examine witnesses. The arbitrator shall issue a written decision with the essential factual findings and conclusions of law upon which any award is based within thirty days from the date that the arbitration hearing concludes or the post-hearing briefs (if requested) are filed, whichever is later. The arbitrator shall have authority to award equitable relief, damages, attorneys fees, costs, and interest to the extent permitted by law, including, but not limited to, any remedy or relief that a governing court could lawfully order. To the extent otherwise required by law, any arbitration costs and fees that the Employee would not be required to bear if the Employee were free to bring an action in court, shall be paid by the Company. For purposes of clarification, any filing fee or administrative fee required by JAMS shall be paid by the Employee to the extent such fee does not exceed the initial filing fee to commence an action in a state court or United States District Court with jurisdiction over the Claims, whichever is the lesser (the amount of such fee in excess of that amount will be paid by the Company); thereafter, the administrative fees required by JAMS and the fees of the arbitrator for his or her services will be paid by the Company. Nevertheless, neither party shall be responsible for the other partys attorneys fees and costs absent an award of such fees by the arbitrator. The Company and Employee shall be equally bound by any decision of the arbitrator. Except as otherwise indicated above, the arbitrator shall have sole and exclusive authority to resolve all claims between the parties, including the arbitrability of the claims. The obligations set forth in this Agreement shall survive the termination of the Employees employment with Company. Should any term or provision, or portion thereof, of this Agreement be declared void or unenforceable, in whole or in part, it shall be severed to the extent necessary to bring the provision within the applicable requirements of the law and the remainder of this Agreement shall be enforceable. This Agreement shall be binding upon the parties hereto, their heirs, successors and assigns. This Agreement supersedes any and all prior arbitration agreements entered into between the Company and Employee, and can only be modified or revoked by a written agreement signed by both parties hereto which specifically states that the parties both intend to modify or revoke this Agreement. Nothing in this Agreement will be construed to create any express or implied contract of employment, or will alter, change or modify the at-will nature of the Employees employment with Company. (Id., Exhibit A.) The foregoing paragraph is followed by Plaintiffs purported signature. Defendants contend that on February 11, 2020, Plaintiff electronically executed the Agreement via a Human Resources software platform called TriNet. (Id., ¶ 7.) According to Ms. Tong, Meundies employees access the arbitration agreement by using their unique username and password. (Id., ¶ 8.) Employees agree to use an electronic signature when signing the document electronically. (Id.) The date the employee electronically signs the agreement is then recorded in Meundies computer system. (Id.) Plaintiffs Agreement was signed by adhering to the above-referenced procedures. (Id., ¶ 7.) Ms. Tong verified that Plaintiff electronically signed the document. (Id.) Further, Defendants contend the above arbitration clause encompasses all workplace disputes, including claims relating to termination of her employment. (Id., ¶ 13.) Plaintiff contends Defendants offer no admissible evidence that [Plaintiff] knowingly entered into an agreement to arbitrate, or electronically signed the agreement. (Opposition, at p. 1.) Further, Plaintiff contends she never saw an arbitration agreement, was never given any explanation of what she was asked to sign, was never given any assistance, and did not knowingly waive her right to jury. (Id. [without emphasis added].) Plaintiff contends that she does not recall seeing the Mutual Arbitration Agreement nor electronically signing the document. (Hildago Decl., ¶¶ 6, 9.) Moreover, Plaintiff denies that the signature on the Agreement is her signature. (Id., ¶ 10.) After her termination, Plaintiff contends she was sent an email with an arbitration agreement. (Id., Exhibit A.) The court finds that Defendant has not met their burden. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842. While presumably Defendants met their burden to show an agreement to arbitrate, here, Plaintiff denies signing the contract, thereby placing the burden of proving by a preponderance of the evidence that the electronic signature was authentic. (Id., at p. 846.) The party seeking to authentic an electronic signature can do so by presenting evidence of the contents of the contract in question and the circ*mstances surrounding the contracts execution. (Fabian v. Renovate America, Inc. (2019) 42 Cal.App.th 1062, 1067.) Ms. Tongs declaration does not provide sufficient evidence that Plaintiff signed the Agreement. Other than mentioning TriNet, Ms. Tong does not explain how such a platform is reliable and does not offer evidence as to how she knew that Plaintiff signed the Agreement. Plaintiff denies the existence of the signature on the Agreement. (Hildago Decl., ¶ 10.) The court finds that Plaintiffs reliance on Bannister v. Marinidence Opco, LLC, 64 Cal.App.5th 541, 544, (2021) is persuasive. In Bannister, the Court held that an employer must do more than simply recite the login procedure to prove that an employee actually signed an arbitration agreement: Where, as here, the respondent challenges the validity of the signature, however, the petitioner must establish by a preponderance of the evidence that the signature was authentic. [] In such 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 courts discretion, to reach a final determination. (Id. [citations omitted].) Here, the court finds that the authentication evidence lacking. What we have is an electronic signature on a document Tong did not present to Ms. Hidalgo, did not review with Ms. Hidalgo, did not watch Ms. Hidalgo sign, and did not confirm Ms. Hidalgos review and signature at the time the document was allegedly signed. Defendants simply cannot meet the standard to authenticate evidence. The motion is DENIED.[2] [1] The motion was filed (and electronically served) on May 6, 2024, and originally set for hearing on December 23, 2024. On May 14, 2024, a Notice of Rescheduled Hearing Date Re: Defendants Motion to Compel Arbitration was filed, wherein the December 23, 2024 hearing was continued to June 7, 2024; notice was given to counsel. On June 3, 2024, the court continued the hearing to July 18, 2024; the court provided notice. On July 5, 2024, the court continued the hearing to August 19, 2024; the court provided notice. [2] Because the courts denial is based on Defendants failure to meet its burden of establishing the existence of a valid arbitration, the court will not address Plaintiffs alternative argument that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 9 U.S.C. §402, mandates a denial as well.

Ruling

HAMID COHANIM VS KONICA MINOLTA BUSINESS SOLUTIONS U.S.A., INC., ET AL.

Aug 13, 2024 |22STCV21151

Case Number: 22STCV21151 Hearing Date: August 13, 2024 Dept: 76 On July 19, 2024, the Court continued the hearing on this motion for summary judgment from August 1 to August 13, 2024. In the Opposition, Plaintiff requests a continuance to take Defendants depositions, which were scheduled for August 6, 2024. The parties are to advise the Court as to whether these depositions occurred on August 6, 2024, and how much time is required for preparation of a substantive opposition and reply. The Court will continue the hearing on the motion for summary judgment accordingly, keeping in mind the November 4, 2024 trial date.

Ruling

JACOB HERNANDEZ VS PEPE'S TOWING, A BUSINESS ENTITY FORM UNKNOWN, ET AL.

Aug 15, 2024 |22STCV16403

Case Number: 22STCV16403 Hearing Date: August 15, 2024 Dept: 72 SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES DEPARTMENT 72 TENTATIVE RULING JACOB HERNANDEZ, Plaintiff, v. PEPES TOWING, et al., Defendants. Case No: 22STCV16403 Hearing Date: August 15, 2024 Calendar Number: 4 Plaintiff Jacob Hernandez (Plaintiff) moves for the appointment of Plaintiffs surviving spouse, Rocio Lopez (Lopez); and Plaintiffs minor sons Adrian D. Ruiz-Hernandez and Nathan A. Hernandez (acting through their mother and guardian Adriana Rodriguez, the former wife of Plaintiff) as the successors in interest of Plaintiff, who is deceased. Plaintiff additionally moves for an order authorizing Lopez to be served by publication as a Defendant/Involuntary Plaintiff under Code of Civil Procedure, section 415.50, on the grounds that she is a necessary party under Code of Civil Procedure, section 389, but cannot be located after a diligent search. The Court CONTINUES the motion for appointment of successors in interest. The Court requests that Plaintiff provide any available evidence from Leticia Magdaleno or Elvira Hernandez or any other source as to when Plaintiff and Lopez separated The Court GRANTS the motion for authorization to serve Lopez by publication. Background This is an employment action. Plaintiff was employed by Defendant Pepes Inc. (Defendant), who was originally sued as Pepes Towing. Plaintiff filed this action on May 18, 2022, raising claims for (1) wrongful termination in violation of public policy; (2) medical leave retaliation; (3) retaliation for requesting accommodations for disabilities under FEHA; (4) failure to engage in a timely, good faith interactive process under FEHA; (5) failure to reasonably accommodate disabilities under FEHA; (6) disability discrimination under FEHA; (7) harassment based on disabilities under FEHA; (8) retaliation for opposing violations of FEHA; (9) failure to prevent and stop harassment, discrimination, and retaliation under FEHA; and (1) whistleblower retaliation under Labor Code, sections 1102.5 and 1102.6. Plaintiff alleges that the wrongdoing occurred from roughly December 2020 to February 2022. (Complaint ¶ 13.) Plaintiff was terminated on February 11, 2022. (Complaint ¶ 11.) Plaintiff passed away on September 30, 2023 at Adventist Health White Memorial Hospital, 1720 E Cesar E Chavez Avenue, Los Angeles, California. (6/5/24 Rodriguez Decl., Ex. 1.) Plaintiff filed this motion on June 10, 2024. No party filed an opposition. The Court held a hearing on July 2, 2024 and continued this motion. The Court indicated that Plaintiff should make efforts to locate Lopezs friends and acquaintances and search the telephone directory, voters register, or real and personal property index for Lopez. Legal Standard A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedents successor in interest . . . and an action may be commenced by the decedents personal representatives or, if none, by the decedents successor in interest. (Code Civ. Proc., § 377.30.) After the death of a plaintiff, the court, on motion, shall allow a pending action that does not abate to be continued by the decedents personal representative or successor-in-interest. (Code Civ. Proc., § 377.31.) The person who seeks to commence or continue a pending action as the decedents successor-in-interest shall execute and file an affidavit or declaration providing: (1) the decedents name, (2) the date and place of decedents death, (3) No proceeding is now pending in California for administration of the decedents estate, (4) a copy of the final order showing the distribution of the decedents cause of action to the successor-in-interest, if the decedents estate was administered, (5) either the affiant or declarant is the decedents successor in interest or the affiant or declarant is authorized to act on behalf of the decedents successor in interest, with facts in support thereof, (6) No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding, and (7) the statements are true, under penalty of perjury. (Code Civ. Proc., § 377.32.) For the purposes of [appointing a successor in a legal action], decedent's successor in interest means the beneficiary of the decedents estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action. (Code Civ. Proc., § 377.11.) For the purposes of this chapter, beneficiary of the decedent's estate means: (a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under the decedent's will. (b) If the decedent died without leaving a will, the sole person or all of the persons who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under Sections 6401 and 6402 of the Probate Code or, if the law of a sister state or foreign nation governs succession to the cause of action or particular item of property, under the law of the sister state or foreign nation. (Code Civ. Proc., § 377.10.) Discussion Appointment of Successor It is still unclear who the proper successor is. Adriana Rodriguez, the mother of Adrian Ruiz-Hernandez and Nathan Hernandez, has provided a declaration containing all of the information required by Code of Civil Procedure, section 377.32 as to Adrian Ruiz-Hernandez and Nathan Hernandezs rights to step in as successors to Plaintiff. Geoffrey Lyon declares that Plaintiff had married Lopez in Las Vegas, Nevada. (Lyon Decl. ¶ 2.) Lyon declares that his firm was unable to find any divorce records between Plaintiff and Lopez. (Lyon Decl. ¶ 3.) Plaintiff and Lopez married on December 5, 2016. (Koh Decl. ¶ 2, Ex. 2.) It appears that Plaintiff died intestate. Plaintiff never mentioned anything to Rodriguez about having a will or planning to have a will before he died. (Supplemental Rodriguez Decl. ¶ 5.) Rodriguez has no information that Plaintiff had a will and has not been told by any attorneys or anyone else that he had a will. (Supplemental Rodriguez Decl. ¶ 5.) Elvira Hernandez, Plaintiffs mother, similarly declares that Plaintiff never told her anything about having a will or planning on having a will, and that she has no information about Plaintiff having a will. (Elvira Hernandez Decl., ¶¶ 3-4.) In June 2023, around three months before Plaintiffs death, he told his mother that whatever he possessed would go to his sons and some would go to Leticia Magdaleno, who was his girlfriend at the time. (Elvira Hernandez Decl. ¶ 3.) Magdaleno declares that Plaintiff never mentioned having a will, but said that he was planning to divorce Lopez so that he could marry Magdaleno and that he would then prepare a will. (Magdaleno Decl. ¶ 3.) Magdaleno has not been contacted by any attorney or anyone else stating that Plaintiff had a will. (Magdaleno Decl. ¶ 4.) Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. (Fam. Code, § 760.) (a) Separate property of a married person includes all of the following: (1) All property owned by the person before marriage. (2) All property acquired by the person after marriage by gift, bequest, devise, or descent. (3) The rents, issues, and profits of the property described in this section. (Fam. Code, § 770, subd. (a).) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, after the date of separation of the spouses, are the separate property of the spouse. (Fam. Code, § 771, subd. (a).) Quasi-community property is any property acquired or acquired in exchange for property which would have been community property if the acquiring spouse had been domiciled in California at the time of its acquisition. (Fam. Code, § 125.) As to community property, the intestate share of the surviving spouse is the one-half of the community property that belongs to the decedent under Section 100. (b) As to quasi-community property, the intestate share of the surviving spouse is the one-half of the quasi-community property that belongs to the decedent under Section 101. (c) As to separate property, the intestate share of the surviving spouse is as follows: (1) The entire intestate estate if the decedent did not leave any surviving issue, parent, brother, sister, or issue of a deceased brother or sister. (2) One-half of the intestate estate in the following cases: (A) Where the decedent leaves only one child or the issue of one deceased child. (B) Where the decedent leaves no issue, but leaves a parent or parents or their issue or the issue of either of them. (3) One-third of the intestate estate in the following cases: (A) Where the decedent leaves more than one child. (B) Where the decedent leaves one child and the issue of one or more deceased children. (C) Where the decedent leaves issue of two or more deceased children. (Prob. Code, § 6401.) Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse, under Section 6401, or the entire intestate estate if there is no surviving spouse, passes as follows: (a) To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240. (Prob. Code, § 6402.) If the interest in the outcome of this action constitutes community property, it appears that the interest would belong entirely to Lopez. If the interest is separate property, Lopezs interest would be one-third. (See generally Prob. Code, § 6401.) The interest in this case is not quasi-community property because Plaintiff was domiciled in this state when his claims accrued. Based on the Complaint, it appears that Plaintiffs causes of action arose during Plaintiffs marriage to Lopez. Plaintiff argues, based on the June 5, 2024 declaration of Adriana Rodriguez, paragraph 9, that Plaintiff and Lopez stopped living together approximately a year after their 2016 marriage. However, this statement is declared based on information and belief, and not personal knowledge. It therefore is not sufficient evidence. Unless Plaintiff can produce evidence of separation, the Court is required to treat the claims as community property based on the presumption set forth in section 760. Request for Publication Plaintiff requests authorization to serve Lopez by publication in the Los Angeles Daily Journal once a week for four consecutive weeks. As discussed above, the facts in the record show that Lopez may have an interest in this action. In fact, it is possible that Lopez is the proper successor to the exclusion of Plaintiffs children. Lopez is therefore a necessary party in this action, because complete relief cannot be afforded between the remaining parties without her participation. (Code Civ. Proc., § 389, subd. (a).) Plaintiffs counsel has filed a Doe amendment renaming Doe 1 as Rocio Lopez. (Motion, Ex. 5.) Section 415.50, authorizing service by publication specifies this method of service is only warranted when the party to be served cannot with reasonable diligence be served in another manner specified in this article.... (Kott v. Superior Court (1996) 45 Cal.App.4th 1126, 1137, quoting Code Civ. Proc., § 415.50, subd. (a).) The Judicial Council comment to this section is instructive in defining the showing required before a trial court is justified in finding a party has exercised reasonable diligence in attempting to locate the party to be served. The term reasonable diligence & denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. A number of honest attempts to learn [the] defendant's whereabouts or his address by [1] inquiry of relatives, friends, and acquaintances, or of [2] his employer, and by [3] investigation of appropriate city and telephone directories, [4] the voters register, and [5] the real and personal property index in the assessors office, near the defendants last known location, are generally sufficient. These are likely sources of information, and consequently must be searched before resorting to service by publication. However, the showing of diligence in a given case must rest on its own facts and no single formula nor mode of search can be said to constitute due diligence in every case. (Kott, supra, 45 Cal.App.4th at pp. 1137-1138 [internal citations omitted; cleaned up].) Plaintiffs law firm contacted Leticia Magdaleno, a close friend of Plaintiff, and confirmed that she had no information as to the whereabouts of Lopez. (Lyon Decl. ¶ 4.) Plaintiffs firm contacted Adriana Rodriguez, Elvira Hernandez (Plaintiffs mother), and Leticia Magdaleno, a coworker of Plaintiff, in attempts to find Lopez. (Koh Decl. ¶¶ 3, 4, 8, 11.) Plaintiffs firm mailed letters to four individuals with the names Rocio Lopez who were believed to be likely candidates. (Koh Decl. ¶ 9.) Plaintiffs firm searched on TruthFinder for Lopez and found 97 results for Rocio Lopez in Los Angeles, but determined that there were too many results to be helpful. (Koh Decl. ¶ 12.) Plaintiffs firm also conducted searches on Westlaw PeopleMap, Google, Facebook, LinkedIn, and Instagram, but could not find Lopez. (Koh Decl. ¶ 7.) As mentioned above, the Court indicated at the first hearing on this motion that Plaintiff should make efforts to locate Lopezs friends and acquaintances and search the telephone directory, voters register, or real and personal property index for Lopez. Plaintiff has since made additional efforts to locate Lopez. The only the only persons Plaintiff is aware of knowing Rocio Lopez well in the months and years leading up to his death are the 3 declarants, Elvira Hernandez (mother); Leticia Magdaleno (live-in girlfriend/fiancée), and Adriana Rodriguez (ex-wife). Rodriguez does not have any names or contact information of Lopezs family, friends, acquaintances, or employers, nor does she have any of Lopezs personal contact information. (Supp. Rodriguez Decl. ¶ 10-11.) Only Magdaleno was able to locate some potential acquaintances of Lopez, and only through Google. (Magdaleno Decl. ¶ 11.) Magdaleno also provided a possible address and phone number for Lopez. (Magdaleno Decl. ¶ 9.) Plaintiff checked the possible addresses and phone numbers, including based on a new TruthFinder search, and was unable to locate or contact Lopez. (Supp. Koh Decl. ¶¶ 13-26; Second Supp. Koh Decl. ¶¶ 2-3.) Plaintiff searched the Assessors Indices based on the available addresses for Lopez and contacted the owners to ask about her whereabouts. (Supp. Koh Decl. ¶¶ 12, 15, 16, 23.) Plaintiff attempted to contact Lopezs potential associates, but was unable to do so. (Second Supp. Koh Decl. ¶ 5.) Plaintiff was unable to search the voter registration records for Lopez because they require a drivers license or state ID number, neither of which Plaintiff or the declarants have for Lopez. (Supp. Koh Decl. ¶ 13; Magdaleno Decl. 10; Supp. Rodriguez Decl. 12.) Plaintiff additionally searched the white pages, WestLaw PeopleMaps, Google, and LinkedIn for Lopez, but could not find her. (Supp. Koh Decl. ¶¶ 24-26; Second Supp. Koh Decl. ¶¶ 3.) The Court is satisfied that Plaintiff has conducted reasonable search efforts to find Lopez. The Court therefore authorizes service by publication.

Ruling

LAWRENCE "LEON" GIBBS AVRAMIDIS, AN INDIVIDUAL VS ILDICO INC., ET AL.

Aug 14, 2024 |23STCV18233

Case Number: 23STCV18233 Hearing Date: August 14, 2024 Dept: 32 LAWRENCE LEON GIBBS AVRAMIDIS, Plaintiff, v. ILDICO INC., et al., Defendants. Case No.: 23STCV18233 Hearing Date: August 14, 2024 [TENTATIVE] order RE: defendant ildico inc.s motion to compel further responses BACKGROUND On August 2, 2023, Plaintiff Lawrence Leon Gibbs Avramidis filed this employment action against Defendants Ildico Inc. and Jean John Simonian. On July 5, 2024, Defendant Ildico filed the instant motion to compel further responses to discovery. Plaintiff filed his opposition on August 1, 2024. Defendant filed its reply on August 7, 2024. LEGAL STANDARD Upon receiving responses to its discovery requests, the propounding party may move for an order compelling further responses if the responses are incomplete or evasive, or objections are without merit or too general. (Code Civ. Proc., §§ 2030.300(a), 2031.310(a), 2033.290(a).) A moving party must demonstrate good cause to compel further responses to inspection demands. (Id., § 2031.310(b)(1).) MEET AND CONFER A motion to compel further must be accompanied by a meet and confer declaration demonstrating an attempt to resolve the matter informally. (Code Civ. Proc., §§ 2030.300(b)(1), 2031.310(b), 2033.290(b).) The Court finds that Defendant has satisfied the meet and confer requirement. (See Tate Decl.) DISCUSSION As an initial matter, the parties have narrowed their contentions to three discovery requests after Plaintiff served supplemental responses to the remaining requests at issue. The Court addresses the three outstanding requests herein. RFP No. 84 seeks Any and all DOCUMENTS that RELATE TO YOUR alleged employment with DEFENDANTS. RFP No. 100 seeks Any and all DOCUMENTS that RELATE TO any and all employment by YOU with any employer or self-employment subsequent to YOUR alleged employment with DEFENDANTS. RFP No. 104 seeks All DOCUMENTS RELATING TO payments made to YOU or on YOUR behalf to any PERSON by any insurance company, public entity, or any other source or PERSON. Plaintiff objected to the requests as overbroad, burdensome, irrelevant, invading privacy, seeking privileged information, and not reasonably particularized. However, during meet and confer, Defendant agreed to narrow the requests in the following manner: (i) the term relate to is changed to support; and (ii) Defendant only seeks documents regarding Plaintiffs claims for lost wages, emotional distress damages, and Plaintiffs mitigation of damages. (Tate Decl. ¶¶ 6-7, Ex. D, E.) Defendant has established good cause for the requested documents, as they pertain to Plaintiffs employment and damages, matters directly placed at issue by Plaintiffs own allegations. The information sought is related to the subject matter or reasonably calculated to lead to admissible evidence. (See Code Civ. Proc., § 2017.010.) The narrow scope of the requests as established in meet and confer renders Plaintiffs overbreadth and burden objections without merit. Plaintiff does not explain how the requests implicate any privilege or invade any privacy interest. Therefore, further responses are warranted. CONCLUSION Defendant Ildico Inc.s motion to compel further responses is GRANTED as to RFP Nos. 84, 100, and 104, subject to the limitations agreed upon by Defendant. Plaintiff shall provide further responses within 15 days of this order. Sanctions are denied.

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