Complaint - Due Date: Complete Date: October 16, 2023 (2024)

Case

Christopher Resende vs Leticia S. Gomez et al

Nov 20, 2024 | CA25 - Downtown Miami - Judge Manno-Schurr, Valerie | 3 | Auto Negligence | 2024-022242-CA-01

Case

GREGORY M ABAJIAN VS CAR- COR INC ET AL

Nov 21, 2024 | CA31 - Downtown Miami - Judge Sanchez-Llorens, Migna | 3 | Business Torts | 2024-022225-CA-01

Case

Michelle Ramirez vs Gustavo Villafranca

Nov 22, 2024 | CA22 - Downtown Miami - Judge Butchko, Beatrice A | Auto Negligence | Auto Negligence | 2024-022472-CA-01

Case

NADIA SUZZET PADILLA FLORES VS MANUEL ALEJANDRO BLANCO GONZALEZ ET AL

Nov 15, 2024 | CA15 - Downtown Miami - Judge Rodriguez, Jose M | 3 | Auto Negligence | 2024-021939-CA-01

Case

JOAQUIN I MIRAMBA vs ANGEL M VILLALOBOS ACOSTA et al

Nov 20, 2024 | CA24 - Downtown Miami - Judge Arzola, Antonio | 3 | Auto Negligence | 2024-022255-CA-01

Case

EILEEN J. BEWLEY VS MICHAEL D. STEWART

Nov 18, 2024 | 3 | Other Professional Malpractice | 2024-022416-CA-01

Case

SHOVANN STATON-BACKUS VS DC HOTELS, L.L.C.

Nov 18, 2024 | CA32 - Downtown Miami - Judge Fajardo Orshan, Ariana | 3 | Comm Premises Liability | 2024-022108-CA-01

Case

DEVIN RAYMONE HALL VS LAZARO FERNANDEZ

Nov 15, 2024 | CA11 - Downtown Miami - Judge Eig, Spencer | 3 | Auto Negligence | 2024-021966-CA-01

Case

ALEXANDER HERNANDEZ RAMIREZ VS JORGE OSCAR BARRIENTOS GONZALEZ ET AL

Nov 14, 2024 | CA09 - Downtown Miami - Judge Echarte Jr, Pedro P | Auto Negligence | Auto Negligence | 2024-021899-CA-01

Ruling

ROGERS vs STATER BROS. MARKETS

Nov 18, 2024 | CVSW2310226

ROGERS VS STATER MOTION TO BE RELIEVED AS COUNSELCVSW2310226BROS. MARKETS FOR CLIFTON ROGERSTentative Ruling:The Motion is GRANTED. Once counsel serves notice of ruling and returns proof to thecourt, counsel is relieved.

Ruling

RAMIREZ vs YAMAHA GOLF-CAR COMPANY

Nov 21, 2024 | CVRI2300242

MOTION FOR SUMMARY JUDGMENTRAMIREZ VS YAMAHA ON COMPLAINT FOR AUTO (OVERCVRI2300242GOLF-CAR COMPANY $25,000) OF KENIN RAMIREZ BYYAMAHA GOLF-CAR COMPANYTentative Ruling: Defendant’s Motion for Summary Judgment is denied. Defendant’s Motion forSummary Adjudication as to the Products Liability Cause of Action based on the count for breachof warranty is granted.Defendant’s Motion for Summary Judgment on Defendant Tyler Joseph Studer’s Cross-Complaint is denied.Request for Judicial NoticeYGC asks the Court to take judicial notice of (1) Plaintiff’s Form Complaint filed on 1/17/2023(Exhibit P); and (2) Studer’s Cross-Complaint against YGC filed on 12/4/2023 (Exhibit Q). (YGC’sRequest for Judicial Notice [“RJN”], Nos. 1–2.) Under Evid. Code § 452(d)(1), this Court may takejudicial notice of its own records. As both exhibits are records of this Court, the Court grants thisunopposed request.Evidentiary ObjectionsPlaintiff objects to certain evidence submitted in support of YGC’s motion for summaryjudgment/adjudication. Under CRC Rule 3.1354(b), each written objection must be numberedconsecutively and must (1) identify the name of the document in which the specific materialobjected to is located; (2) state the exhibit, title, page, and line number of the materialobjected to; (3) quote or set forth the objectionable statement or material; and (4) state theground for each objection to that statement or material. (CRC Rule 3.1354(b)(1)–(4) [emphasisadded].)Here, Plaintiff’s evidentiary objections fail to follow the requirements of CRC Rule 3.1354(b) inevery respect, except for stating the grounds for the objection. Plaintiff simply objects to “ExhibitA” and portions of “J. Gardner deposition,” without identifying the name of the document to whichthe specific materials are located, nor quoting or setting forth the objectionable statement ormaterial. Thus, the Court declines to rule on Plaintiff’s evidentiary objections because they do notcomply with the requirements of CRC Rule 3.1354(b) and are not accompanied by a separateproposed order. (Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8.) Moreover,as YGC argues in its reply brief, the evidentiary objections are untimely.Summary JudgmentA motion for summary judgment shall be granted if all the papers submitted show that there is notriable issue as to any material fact and that the moving party is entitled to a judgment as a matterof law. (CCP § 437c(c).) A party may also seek summary adjudication of an entire a cause ofaction or, under certain circumstances, parts thereof, which may be made by a standalone motionor as an alternative to a motion for summary judgment and proceeds in all procedural respectsas a motion for summary judgment. (CCP §§ 437c(f)(1)-(2), (t); see Lilienthal & Fowler v. Sup. Ct.(1993) 12 Cal.App.4th 1848, 1854–55; see also Public Utilities Com. v. Sup. Ct. (2010) 181Cal.App.4th 364, 380.)The moving party bears the initial burden of production to make prima facie showing no triablematerial fact issues. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the movingparty meets this burden, the burden shifts to the opposing party to make converse prima facieshowing that a triable issue of material fact exists. (Id.) The evidence of the moving party is strictlyconstrued, and the evidence of the opposing party liberally construed. (Crouse v. Brobeck,Phleger & Harrison (1988) 67 Cal.App.4th 1509, 1524.) Doubts as to the propriety of granting themotion must be resolved in favor of the party resisting the motion. (Stationers Corp. v. Dun &Bradstreet, Inc. (1965) 62 Cal.2d 412, 417.)Summary Judgment/Adjudication Against YGCYGC moves for summary judgment on Plaintiff’s products liability cause of action, which is basedon three separate counts: strict liability, negligence, and breach of warranty.A. Strict Liability—Manufacturing, Design, and Failure to Warn“The elements of a strict products liability cause of action are a defect in the manufacture or designof the product or a failure to warn, causation, and injury. More specifically, plaintiff must ordinarilyshow: (1) the product is placed on the market; (2) with knowledge that it will be used withoutinspection for defect; (3) the product proves to be defective; and (4) the defect causes injury.”(Nelson v. Sup. Ct. (2006) 144 Cal.App.4th 689, 695.) “In products liability cases, a consumerinjured by a defective product may sue any business entity in the chain of production andmarketing, from the original manufacturer down through the distributor and wholesaler to theretailer; liability of all such defendants is joint and several.” (Kaminski v. Western MacArthur Co.(1985) 175 Cal.App.3d 445, 455–56.) Strict liability applies to three types of defects—manufacturing defects, design defects and warning defects. (Anderson v. Owens-CorningFiberglass Corp. (1991) 53 Cal. 3d 987, 995.)“A manufacturing defect exists when an item is produced in a substandard condition. [quotationsomitted.] Such a defect is often demonstrated by showing the product performed differently fromother ostensibly identical units of the same product line.” (McCabe v. Am. Honda Motor Co. (2002)100 Cal.App.4th at 1119–20.) A design defect occurs where the product either fails to perform assafely as an ordinary consumer would expect or when the product is inherently dangerous. (Carlinv. Sup. Ct. (1996) 13 Cal.4th 1104, 1150.) Failure to warn is a species of design defect productsliability, pursuant to which an otherwise faultless product may be deemed defective if it isunreasonably dangerous to sell the product to a user without suitable warning and the warning isnot given. (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1238.) “Strictliability failure to warn requires the plaintiff to prove that the defendant ‘did not adequately warnof a particular risk that was known or knowable in light of the generally recognized and prevailingbest scientific and medical knowledge available at the time of manufacture and distribution.’” (Id.at 1239.)In his Complaint, Plaintiff asserts one cause of action for product liability against YGC, in whichhe alleges defects in design, manufacture, and failure to warn, negligence, and breach of expressand implied warranties. YGC argues that its motion for summary judgment should be grantedbecause Plaintiff has no evidence to prove that (1) the Golf Car was defective, and that (2) suchdefect caused his injuries. This argument is based on Plaintiff’s allegedly factually deficientdiscovery responses. (See Def.’s Mot. 11:23–14:2.)Factually devoid discovery responses, containing only boilerplate answers restating theallegations of the complaint, may lead to an inference that the plaintiff cannot prove causation,which is sufficient to shift the burden of production on motion for summary judgment. (Andrewsv. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107.) Factually devoid discovery responsesmay be sufficient to meet the moving party’s initial burden and require the opposing party produceevidence. (Union Bank v. Sup. Ct. (1995) 31 Cal.App.4th 573, 580.) However, the deficientresponses must involve facts likely to be known by the responding party. (Villa v. McFerren (1995)35 Cal.App.4th 733, 749.) If there is no basis to suppose that the plaintiff would have access tothe information, a deficient response is insufficient to shift the burden. (Hagen v. Hickenbottom(1995) 41 Cal.App.4th 168, 187.) Furthermore, a discovery response is not factually devoidmerely because it includes objections, even if the objections are improper. (Bayramoglu v.Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726, 736; Gaggero v. Yura (2003) 108Cal.App.4th 884, 893.)In response to interrogatories regarding Plaintiff’s allegations of design and manufacturing defectsin the Golf Car that caused his injuries, Plaintiff claimed that a “malfunction” in the Golf Car causedhim to be ejected “suddenly and without warning,” that the Golf Car “did not have any safeguardsin place to prevent [] [him] from being ejected,” and that there was “no warning that the [] [GolfCar] could flip over.” (DSS ¶¶ 21–23.) Plaintiff responded that the Golf Car was “defective”because it “malfunction[ed]” and there was “no warning.” (Id. at ¶ 24.) Plaintiff also respondedthat YGC was negligent in “manufactur[ing], check[ing], inspect[ing], and [making] sure that the[Golf Car] was in a safe condition” and that it should “provide adequate warnings, restrictions, andnotice to lawful users on how to operate the [Golf Car] and that they have a risk of flipping over.”(Id. at ¶ 25.)While the responses are evasive and do not provide facts indicating the precise issues andcomponents that make up the alleged design and manufacturing defects, it is unlikely that suchfacts would be within Plaintiff’s personal knowledge. This information would require an expert, orthe testimony of qualified employees of YGC. The deposition of YGC’s PMK has been noticed for11/25/2024, and the site inspection regarding the Golf Car is scheduled for 11/22/2024. (FradkinDecl. ¶¶ 7–8.) Given the circumstances, Plaintiff’s opposition on these ground are well-taken.Therefore, these factually devoid responses are insufficient to meet YGC’s initial burden ofproduction and shift the burden to Plaintiff. YGC has not produced any evidence showing that theGolf Car it manufactured and distributed was not defective. Because YGC failed to satisfy its initialburden, summary judgment is denied.B. NegligenceThe elements of a cause of action for negligence are: (1) a legal duty to use due care; (2) breachof such duty; (3) the breach was the proximate or legal cause of resulting injuries. (Ladd v. Cnty.of San Mateo (1996) 12 Cal.4th 913, 917.) “In order for a plaintiff to satisfy the causation elementof a negligence cause of action, he or she must show the defendant's act or omission was asubstantial factor in bringing about the plaintiff's harm . . . . In other words, [the] plaintiff must showsome substantial link or nexus between omission and injury.” (Leyva v. Garcia (2018) 20Cal.App.5th 1095, 1104.)“Products liability is the name currently given to the area of the law involving the liability of thosewho supply goods or products for the use of others to purchasers, users, and bystanders forlosses of various kinds resulting from so-called defects in those products.” (Merrill v. Navegar,Inc. (2001) 26 Cal.4th 465, 478.) A plaintiff may recover in a products liability under a theory ofstrict liability or negligence, but in both cases, the plaintiff must show that the defect was asubstantial factor in his or her injuries. (Demara v. Raymond Corp. (2017) 13 Cal.App.5th 545,553.)YGC relies on the same factually deficient discovery responses to assert that Plaintiff does notpossess, and cannot reasonably obtain, evidence to establish his negligence claim. (Aguilar,supra, 25 Cal.4th at 845.) However, for the reasons above, the interrogatories seek informationthat Plaintiff could not possess without an expert and the completion of depositions and otherwritten discovery. Therefore, the responses to these interrogatories, although lacking specificity,do not satisfy YGC’s burden of establishing that Plaintiff cannot obtain any evidence of defects.YGC did not produce any evidence that the Golf Car was not defective. Accordingly, summaryjudgment is denied.C. Breach of WarrantyYGC alternatively seeks summary adjudication as to Plaintiff’s breach of warranty claim. It arguesthat Plaintiff’s breach of express warranty claim lacks merits because Plaintiff has failed tosubstantiate any breach by YGC of any express warranty related to the Golf Car.An express warranty “is a contractual promise from the seller that the goods conform to thepromise. If they do not, the buyer is entitled to recover the difference between the value of thegoods accepted by the buyer and the value of the goods had they been as warranted.” (Daughertyv. Am. Honda Motor Co., Inc. (2006) 144 Cal.App.4thc 824, 830; Comm. Code § 2313.)The essential elements of a cause of action for breach of an express warranty to repair are: “(1)an express warranty to repair defects given in connection with the sale of goods; (2) the existenceof a defect covered by the warranty; (3) the buyer’s notice to the seller of such a defect within areasonable time after its discovery; (4) the seller’s failure to repair the defect in compliance withthe warranty; and (5) resulting damages.” (Orchian v. BMW of N. Am., LLC (2014) 172Cal.App.4th 1322, 1333–34 [cleaned up]; Com. Code, § 2313.) “In order to plead a cause ofaction for breach of express warranty, one must allege the exact terms of the warranty, plaintiff’sreasonable reliance thereon, and a breach of that warranty which proximately causes plaintiff’sinjury.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142.)Here, the Complaint does not allege any express warranty provisions that YGC allegedlybreached. When YGC requested Plaintiff to specify the terms of the warranty that YGCpurportedly breached, Plaintiff responded that YGC breached the “warranty of merchantability,”which is an “implied” warranty under California law, not an “express” one. (See DSS ¶ 26.) Plaintiffhas failed to identify any contract specifying an express warranty that accompanied the Golf Car,the entity that allegedly contracted with, specific terms of an express warranty, the applicability ofan express warranty to him, his reliance on any warranty in a transaction with YGC, and how thealleged breach proximately caused his injuries. (Id. at ¶ 27.) As such, Plaintiff’s breach of expresswarranty claim is subject to summary adjudication.Plaintiff’s implied warranty claim fails for the same reason. The essential elements of a cause ofaction for breach of an implied warranty of merchantability are: (1) that the defendantmanufactured, distributed, or sold the product; (2) that the plaintiff was harmed; and (3) that theproduct’s design was a substantial factor in causing harm to the plaintiff. (Soule v. General MotorsCorp. (1994) 8 Cal.4th 548, 560.) In California, the law mandates vertical privity of contract tomaintain a cause of action for a breach of implied warranty claims. (All West Electronics v. M-B-W (1998) 64 Cal.App.4th 717, 724.) Vertical privity means that the plaintiff and the defendantmust “occupy adjoining links in the chain.” (Osborne v. Subaru of Am. Inc. (1988) 198 Cal.App.3d646, 656.)Here, Plaintiff has failed to provide any factual support regarding his contractual relationship withYGC. (DSS ¶ 27.) The undisputed evidence shows that Plaintiff was a passenger in the Golf Car.(Id. at ¶ 2.) Plaintiff did not purchase or own the Golf Car. (Id. at ¶ 28.) Instead, the transactionalhistory shows that YGC sold the Golf Car to Yamaha Motor Finance Corp., U.S.A., which thenleased it to Dos Lagos. (Id. at ¶¶ 3, 29.) This evidence shows that Plaintiff has failed todemonstrate that he had an adjoining link in the chain with YGC. As such, Plaintiff’s breach ofimplied warranty claim is subject to summary adjudication.Because YGC’s motion for summary judgment against Studer’s Cross-Complaint is dependenton the granting of YGC’s motion for summary judgment against Plaintiff’s Complaint, it is denied.

Ruling

Jose Regalado vs Graham Murray

Nov 21, 2024 | 23CV00076

23CV00076REGALADO v. MURRAY DEFENDANT’S MOTION TO COMPEL Defendant’s motion to compel is granted. The complaint, filed on January 10, 2023, alleges assault and battery, negligence,violation of Civil Code sections 43 and 52.1, and intentional infliction of emotional distress asthe result of an alleged physical attack by defendant. An answer was filed by defendant onJanuary 30, 2024. Defendant, through his counsel, maintains he served form and special interrogatories, setone and request for production of documents, set one, on plaintiff’s counsel, via email service onMay 20, 2024. (Dec of Fu, Ex. A; Supp. Dec. of Fu, Ex. B.) On July 29, 2024, defendant’scounsel maintains he wrote to plaintiff’s attorneys Manuel Juarez and L.M. Parmenter, informingthem that the discovery responses were overdue and demanded responses. This letter was sentvia email to Manuel Juarez and L.M. Parmenter at Baylaw1@yahoo.com andlmparmenter@lawpar.com, the same email addresses used to serve the discovery requests (Dec.of Fu, Ex. B; Supp. Dec. of Fu, Ex. C.) Defense counsel did not receive a response. Defendantthen filed and served a case management conference statement on August 27, 2024, indicating“Plaintiff has overdue responses to discovery Defendant propounded on 5-28-2023 (sic).Plaintiff’s counsels have ignored the meet and confer correspondence demanding Plaintiffprovide responses.” (Supp. Dec. of Fu, Ex. D.) On September 6, 2024, defendant served thismotion to compel, and it was filed on September 19, 2024. Plaintiff’s counsel denies receiving the discovery requests, and the meet and confer letter,but does not contend the email address used on the proofs of service was incorrect, or that theproofs are defective. The Court notes the email utilized by plaintiff’s counsel in opposing thismotion is lmparmenter@lawpar.com, the same address used by defendant’s counsel when theyserved the discovery requests and the meet and confer letter. Further, this motion was served onSeptember 6, 2024, over two months ago, with the attached discovery requests – yet plaintiff hasstill refused to respond to the requests. The motion is granted as defendant provided evidence that the requests were served onplaintiff’s counsel and plaintiff failed to respond. Plaintiff is ordered to serve verified responsesto the three sets of discovery at issue within 20 days from the date of this hearing. The Court Page 1 of 14cannot award discovery sanctions against plaintiff and/or his counsel because the notice failed torequest sanctions. “Where sanctions are sought against the opposing party’s counsel, the noticeof motion must expressly so state.” (Weil & Brown Civil Procedure Before Trial (2023 TRG) §8:1985.) The “notice of motion must contain the name of all persons, parties, and attorneysagainst whom sanctions are sought”; the type of sanctions; the authority for the sanctions; and adeclaration outlining the facts supporting the amount of the sanctions. (Id. at § 8:2000.)Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal orderincorporating, verbatim, the language of any tentative ruling – or attaching and incorporating thetentative by reference - or an order consistent with the announced ruling of the Court, inaccordance with California Rule of Court 3.1312. Such proposed order is required even if theprevailing party submitted a proposed order prior to the hearing (unless the tentative issimply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition ofsanctions following an order to show cause hearing, if a proposed order is not timely filed.

Ruling

NADIA HESHMATI VS DENNIS HOWARD WILEN, ET AL.

Nov 20, 2024 | 24SMCV04108

Case Number: 24SMCV04108 Hearing Date: November 20, 2024 Dept: 207 TENTATIVE RULING DEPARTMENT 207 HEARING DATE November 20, 2024 CASE NUMBER 24SMCV04108 MOTION Motion to be Relieved as Counsel MOVING PARTY Randy Chang of The Chang Firm OPPOSING PARTY Plaintiff Nadia Heshmati MOTION Randy Chang of The Chang Firm, counsel for Plaintiff Nadia Heshmati (Counsel) moves to be relived as counsel, citing a fatal breakdown in communication[.] Plaintiff Nadia Heshmati (Plaintiff) opposes the motion and Counsel replies. LEGAL STANDARD Code of Civil Procedure section 284 provides [t]he attorney in an action or special proceeding may be changed at any time before or after judgment or final determination as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered in the minutes; 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other. Procedural Requirements California Rules of Court, rule 3.1362, requires: (1) the motion must be made on form MC-051; (subd. (a)); (2) it must be accompanied by a declaration on form MC-052 stating why the motion is brought under Code of Civil Procedure section 284(2) instead of a consent brought under section 284(1); (subd. (c)); (3) a proposed order on form MC-053 must be lodged with the court, specifying all hearing dates scheduled in the action or proceeding, including the date of trial, if known; (subd. (e)); and (4) The documents must be served on the client and on all parties that have appeared in the case. (subd. (d).) If the notice is served by mail or electronic service, it must be accompanied by a declaration indicating that the address served is the current address, or in the case of service by mail, that it was served on the last known address and a more current address could not be located after reasonable efforts within 30 days before filing the motion. (Ibid.) The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Ibid.) Substantive Requirements Rules of Professional Conduct, rule 1.16(a) outlines the reasons a lawyer must withdraw from representation of a client: (1) the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; (2) the representation will result in violation of the Rules of Professional Conduct or the State Bar Act; (3) the lawyers mental or physical condition renders it unreasonably difficult to carry out the representation effectively; or (4) the client discharges the lawyer. Rules of Professional Conduct, rule 1.16(b) outlines the reasons a lawyer may withdraw from representation of a client: (1) the client insists upon presenting a claim or defense in litigation, or asserting a position or making a demand in a non-litigation matter, that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law; (2) the client either seeks to pursue a criminal or fraudulent course of conduct or has used the lawyers services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud; (3) the client insists that the lawyer pursue a course of conduct that is criminal or fraudulent; (4) the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively; (5) the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation; (6) the client knowingly and freely assents to termination of the representation; (7) the inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal; (8) the lawyers mental or physical condition renders it difficult for the lawyer to carry out the representation effectively; (9) a continuation of the representation is likely to result in a violation of these rules or the State Bar Act; or (10) the lawyer believes in good faith in a proceeding pending before a tribunal that the tribunal will find the existence of other good cause for withdrawal. DISCUSSION Counsel has filed forms MC-051, MC-052, and MC-053. The attorney declaration (MC-052) indicates that the motion was filed instead of filing a consent because There is a fatal breakdown in communication between attorney and client such that it would be impractical and impossible to effectively represent the client. Plaintiff opposes the motion on the grounds that she does not have money to pay another lawyer (Heshamti Decl. at ¶¶ 14-16; 18; 22-23), but also indicates that there may be a conflict of interest between Counsel and the opposing party Defendant Michael Carbajal. (Heshmati Decl. at ¶¶ 9-13.) The Court finds that both Counsels and Plaintiffs declarations demonstrate there has been an irreparable breakdown of the attorney-client relationship. As such, the Court finds that the motion is substantively proper. (See generally Rules Prof. Conduct, rule 1.16(b)(4).) The proof of service indicates that the motion (form MC-051) was served on the client by mail and email. However, there is no indication that forms MC-052 or MC-053 were served on any party. Specifically, there is no indication that either Defendant (both of whom have answered) was served the required forms. (See Cal. Rules of Court, rule 3.1362(d) [The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail].) As such, the Court finds the motion to be procedurally defective. CONCLUSION AND ORDER For the foregoing reasons, the Court continues the hearing to January 15, 2025 at 8:30 A.M. in Department 207 to enable Counsel to properly serve the required forms. Further, on the Courts own motion, the Court continues the Case Management Conference from January 7, 2025 to January 15, 2025 at 8:30 A.M. in Department 207. All parties shall comply with California Rules of Court, rules 3.722, et seq., regarding Initial and Further Case Management Conferences. In particular, all parties shall adhere to the duty to meet and confer (Rule 3.724) and to the requirement to prepare and file Case Management Statements (Rule 3.725). Counsel shall provide notice of the Courts ruling and the continued proceedings. Thereafter, Counsel shall file the notice and proof of service to demonstrate compliance with the Courts orders and the California Rules of Court. DATED: November 20, 2024 ___________________________ Michael E. Whitaker Judge of the Superior Court

Ruling

MULLICAN vs JOHNSON

Nov 21, 2024 | CVRI2400136

Motion for Attorney's Fees by TERESACVRI2400136 MULLICAN vs JOHNSONJOHNSONTentative Ruling: Grant: $6120 in fees and $60 in costsFactual / Procedural Context:Janella Denney Mullican (“Mullican”) contends that Teresa Johnson (“Johnson”) broughta lawsuit against her regarding an accident where Mullican had no fault. Mullican alleges that inNovember 2018, when she was entering the Santa Rosa Equestrian Center with her horse andbuggy, Johnson and her horse were exiting the venue. With no fault on Mullican’s part, Johnson’shorse reared-up, which resulted in Johnson being injured. Mullican contends that Johnson filed alawsuit against her for assault and negligence, which resulted in a verdict in Mullican’s favor.Mullican’s complaint in this matter asserts a cause of action for malicious prosecution andone for abuse of process.Johnson filed a special motion to strike the complaint, which was granted to both causesof action and this matter was dismissed. She now seeks attorney’s fees and costs under CCP §426.16(c)(1) in the amount of $9,855.20. She asserts that the amount she seeks is reasonable.In opposition, Mullican contends that Johnson has failed to establish that the hourly ratesought is reasonable. She argues that the number of hours spent on the anti-SLAPP motion isexcessive.As of 11/14/24, no reply could be located on eCourt.3Additionally, the owner of a ferocious dog, knowing the vicious propensities of the animal, is responsible for anyinjuries inflicted by it upon persons free from fault. (Lavrerone v. Mangianti (1871) 41 Cal. 138, 140-41.)Furthermore, a keeper, in contrast to an owner, is not an insurer of dog's good behavior, but must have scienter orknowledge of animal's vicious propensities to be liable for injuries inflicted by the dog. (Buffington v. Nicholson(1947) 78 Cal.App.2d 37, 43.)AnalysisUnder CCP § 425.16(c)(1), “a prevailing defendant on a special motion to strike shall beentitled to recover his or her attorney’s fees and costs.” A prevailing defendant is only entitled toreasonable attorneys’ fees and costs pertaining to the anti-SLAPP motion. (S.B. Beach Propertiesv. Berti (2006) 39 Cal.4th 374, 381.) The trial court is not bound by the amount sought by aprevailing defendant and has discretion to award them a lesser sum. (Robertson v. Rodriguez(1995) 36 Cal.App.4th 347, 362.)The matter of reasonableness of a party's attorney's fees is within the sound discretion ofthe trial judge. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.).Lodestar is the objective starting point to determine if attorney’s fees are reasonable. (Nichols v.City of Taft (2007) 155 Cal.App.4th 1233, 1242.) Lodestar is calculated by assessing thereasonable rate for comparable services in the local community, multiplied by the reasonablenumber of hours spent on the case. (Id.) Lodestar requires the court to determine what is areasonable rate and number of hours expended on a case. (Concepcion v. Amscan Holdings, Inc.(2014) 223 Cal.App.4th 1309, 1320.)Johnson’s counsel indicates that her hourly rate is $450, she has over 10 years of civilexperience, and she has spent over 25 hours on this matter. Mullican contends the amount ofhours spent on this matter is excessive and Johnson has failed to establish that the rates soughtare reasonable. The amount of time spent on this matter does appear excessive and some of thecharges sought do not pertain to the actual motion, and others are secretarial in nature. Mullican’scauses of action fall squarely within the anti-SLAPP statute. (Rusheen v. Cohen (2006) 37 Cal.4th1048, 1055-1056.) Due to this, the first prong of the anti-SLAPP statute was easily met and notmuch effort was needed on Johnson’s part to establish this requirement. Under the anti-SLAPPstatute, after Johnson established that the first prong had been met, the burden then shifted toMullican to establish a prima facie showing of all the required elements for both of her causes ofaction. (Id.) As such, seeking fees for over 25 hours spent in this matter appears excessive.The rate of $450 for an attorney practicing over 10 years does not appear excessive.However, Laurel A. Buchanan is not the only individual that billed on this matter. The billinginvoices show billing entries for individuals with the initials YV, CB, IC, and WH. It is unclear whothese individuals are, their experience, and their job positions. Laurel A. Buchanan only appearsto be responsible for $6,840 of the amount billed in this matter.Hence the Court only considered those fees billed by Laurel A. Buchanan, and some ofthese costs should be reduced because they are not proper. Some of the billing entries do notpertain to the anti-SLAPP motion or Johnson’s request for attorneys’ fees and costs - $45 (5/15/24billing re service of pleading.) Some of the fees are for work that appear secretarial in nature -$675 (5/24/24 going to court to print out documents (it is unclear why this was not done online),8/2/24 checking register, 8/2/24 checking for upcoming hearings and 8/4/4 downloadingdocuments). This would reduce the amount to $6,120, which is approximately 13.6 hours of time.This appears reasonable for preparing the straightforward anti-SLAPP motion and the motion forfees and costs. As such, if the Court grants the motion in the following amounts: $6,120 in feesand $60 in costs.

Ruling

REYES vs GARZA

Nov 20, 2024 | CVRI2400055

MOTION TO COMPEL RESPONSESTO FIRST SET DEMAND FORCVRI2400055 REYES VS GARZA PRODUCTION OF DOCUMENTSSERVED ON DEFENDANT VINCENTGEORGE GARZA BY VANEZA REYESMOTION TO COMPEL RESPONSESTO FIRST SET FORMCVRI2400055 REYES VS GARZA INTEROGATORIES SERVED ONDEFENDANT GEORGE REYES BYVANEZA REYESMOTION FOR ORDER COMPELLINGRESPONSES TO FIRST SET SPECIALCVRI2400055 REYES VS GARZA INTERROGATORIES SERVED ONDEFENDANT VINCENT GEORGEGARZATentative Ruling: Motions to Compel are moot.As to Sanctions, it is denied.If a party to whom interrogatories were directed fails to serve a timely response, the propoundingparty may move for an order compelling response and for a monetary sanction. (Code Civ. Proc.,§2030.290(b). If the party to whom demand for inspection has been made fails to timely respond,the propounding party may bring a motion to compel a response. (See Code Civ. Proc.,§2031.300.) Discovery responses to interrogatories FROG and RFP are due within 30 days fromthe date they were served. (Code Civ. Proc., §§ 2030.260 [interrogatories], 2031.260 [RFP].)Failing to respond within the time limit waives most objections to the discovery requests, includingclaims of privilege and “work product” protection. (Code Civ. Proc., §§ 2030.290(a), 2031.300(a).)Here, Defendant V. Garza represents in his opposition that late responses were served on Plaintiffon October 10, 2024. Plaintiff does not dispute this fact. Therefore, the motions are denied asmoot.If Plaintiff contends any of the responses are unsatisfactory, she is required to meet and conferin good faith on any unsatisfactory responses before relying on the Court to make thedetermination as to their sufficiency. The trial court has discretion to rule on the motions to compel“regardless of whether a party serves an untimely response.” (Sinaiko Healthcare Consulting, Inc.v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) However, there areprocedural requirements which must be met for an order compelling the further responses,including a requirement for good faith meet and confer (Code Civ. Proc., §2016.040), and arequirement for a separate statement (Cal. Rules of Court, rule 3.1345). Before seeking an ordercompelling further responses to the belatedly served responses, the above proceduralrequirements should be complied with.Plaintiff contends that the Court should still sanction Defendant despite the late responses. “Thecourt may award sanctions under the Discovery Act in favor of a party who files a motion to compeldiscovery, even though … the requested discovery was provided to the moving party after themotion was filed.” (Cal. Rules of Court, rule 3.1348(a).)Plaintiff’s request for sanction is denied as Defendant V. Garza has demonstrated, by declarationof his counsel, that he acted with substantial justification that makes the imposition of sanctionunjust. (Code Civ. Proc., §§ 2030.300(d); 2033.290(d).) Defendant’s counsel represents that sheemailed Plaintiff’s counsel before these motions were filed, requesting for an extension to serveresponses. (Sasaki Decl., ¶ 3.) Although Plaintiff’s counsel presents his declaration denying thatany such email was found in his inbox, there is no reason to believe that Defendant’s counsel’srepresentations are untrue.

Ruling

PATRICK DICORATO, ET AL. VS DESHAWN JARVIS, ET AL.

Nov 19, 2024 | 23NWCV01335

Case Number: 23NWCV01335 Hearing Date: November 19, 2024 Dept: C Patrick Dicorato, et al. vs Deshawn Jarvis, et al. Case No.: 23NWCV01335 Hearing Date: November 19, 2024 @ 9:30 a.m. #1 Tentative Ruling Plaintiff Patrick DiCoratos Motion to Compel Further Responses to Requests for Production of Documents from Defendant Tonya Castaneda is GRANTED in part and DENIED in part as set forth below. Defendant shall serve verified, code-compliant responses within 30 days, absent agreement by the parties to a longer period. The Court imposes sanctions in the amount of $1,560.00 upon Defendant and Defendants counsel, jointly and severally, payable in 60 days. Moving party to give notice. Background This consolidated action arises from a multi-car collision on October 23, 2021 near Norwalk, CA. All parties were traveling westbound on SR-91 when traffic stopped suddenly. TONYA CASTANEDA rearended DASHAWN JAMOR JARVIS who rearended NATHALIE TRAN who rearended PATRICK DICORATO and JAXSON DICORATO who rearended TINA HAHN. DICORATO, HAHN and JARVIS filed separate lawsuits which were consolidated per stipulation on August 23, 2024. On February 16, 2024, Plaintiff PATRCIK DICORATO (Plaintiff) filed this motion to compel further responses to Requests for Production of Documents (Set One) from Defendant TONYA CASTANEDA (Defendant) pursuant to CCP §2031.230. Plaintiff also moves for sanctions. Meet and Confer Requirement A motion¿to compel further responses to requests for production shall be accompanied by a meet and confer declaration.¿ (Code Civ. Proc. § 2031.310(b)(2).)¿ The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion.¿ (Code Civ. Proc. § 2016.040.)¿ The Court finds that Plaintiff has fulfilled the meet and confer requirement. Separate Statement A motion to compel further responses requires a separate statement. (Cal. Rules of Court, rule 3.1345(a).) Plaintiff properly filed separate statements. Legal Standard The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities; (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item; (3) An objection to the particular demand for inspection, copying, testing, or sampling. (CCP § 2031.210.) A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. (CCP § 2031.220.) A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. (CCP § 2031.230.) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made; (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted. (CCP 2031.240, subd. (b).) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete; (2) A representation of inability to comply is inadequate, incomplete, or evasive; (3) An objection in the response is without merit or too general. (CCP §2031.310, subd. (a).) Discussion As relevant here, on November 10, 2023, Plaintiff served Defendant with Requests for Production of Documents, Set One (RFP). (Jurczak Decl., ¶ 2, Ex. 1.) On December 20, 2023, Defendant served responses. (Id., ¶ 3, Ex. 2.) On December 21, 2023, Plaintiff sent a detailed meet and confer letter requesting a response by January 4, 2024, and reminding Defendant that the deadline for Plaintiff to file a motion to compel further response was February 7, 2024. (Id., ¿ 4, Ex. 3.) After several meet and confer efforts, Defendant served supplemental responses to some, but not all, of the discovery requests. (Id., ¶¶ 5-14.) Plaintiff seeks to compel further responses to RFP Nos. 2, 4, 5, 12, 13, 18, 22, 23, 24, 25, 26, 34, 37, 40, 44 and 46. Defendant has filed a response to the motion which provides further clarification to Defendants previous responses. However, the response is unverified, so the Court will not consider them. RFP Nos. 2, 4, 5, 12, 13, 18, 25, 26, 34, and 37 These requests pertain to the incident itself: · RFP No. 2: All DOCUMENTS RELATING TO correspondence concerning the INCIDENT and the attendant circumstances between the YOU and any other person and/or entity, excluding any documents with counsel. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Thus, no documents are produced. Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 2 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 2 is GRANTED. · RFP No. 4: All DOCUMENTS, or writings of any kind evidencing, referring to, constituting, referencing, documenting, or in any other way having any bearing on any investigation conducted by YOU OR ANYONE ACTING ON YOUR BEHALF RELATING TO the allegations contained in Plaintiff's Complaint, excluding your counsel. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Without waiving the foregoing objections and in the spirit of good faith and cooperation, this responding party responds: After a diligent search and a reasonable inquiry, responding party produces 173 photographs of the vehicles involved in this incident and the vehicle repair estimate for responding partys vehicle and plaintiffs vehicle. Plaintiff argues that Defendant fails to state whether she has complied in whole or in part. (CCP § 2031.220.) The Court determines that RFP No. 4 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 4 is GRANTED. · RFP No. 5: All DOCUMENTS RELATING TO statements that YOU OR ANYONE ACTING ON YOUR BEHALF obtained that refer or relate to the allegations contained in Plaintiff's Complaint, including, without limitation, all notes or summaries of any communication with any person who has knowledge of the facts of the INCIDENT, excluding your counsel. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Thus, no documents are produced. Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 5 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 5 is GRANTED. · RFP No. 12: All DOCUMENTS RELATING TO photographs or videotapes of the vehicles involved in the INCIDENT, which were taken at any time from the date of the INCIDENT to the present date. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible. Without waiving the foregoing objections and in the spirit of good faith and cooperation, this responding party responds: After a diligent search and a reasonable inquiry, responding party produces 173 photographs of the vehicles involved in this incident. Plaintiff argues that Defendant fails to state whether she has complied in whole or in part. (CCP § 2031.220.) The Court determines that RFP No. 12 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 12 is GRANTED. · RFP No. 13: All DOCUMENTS RELATING TO the INCIDENT. including but not limited to police reports, incident reports, accident reports, repair bills, repair estimates, repair invoices, photographs, videotapes, statements, correspondence, e-mails, reports, and diagrams. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Without waiving the foregoing objections and in the spirit of good faith and cooperation, this responding party responds: After a diligent search and a reasonable inquiry, responding party produces 173 photographs of the vehicles involved in this incident and the photographs of the vehicles involved in this incident and the vehicle repair estimate for responding partys vehicle and plaintiffs vehicle. Plaintiff argues that Defendant fails to state whether she has complied in whole or in part. (CCP § 2031.220.) The Court determines that RFP No. 13 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 13 is GRANTED. · RFP No. 18: All DOCUMENTS RELATING TO any roadway conditions, or other problem of the physical setting where the INCIDENT occurred which YOU contend caused or contributed to the INCIDENT. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Thus, no documents are produced. Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 18 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 18 is GRANTED. · RFP No. 25: Produce all photographs taken by YOU on the day of the INCIDENT. Defendants Response: Objection. This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible. Further, this demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence and invades this partys right to privacy. Thus, no documents are produced. Plaintiff states: [a]fter meeting and conferring, Defendant agreed to supplement if Plaintiff agreed to narrow this request to 30 minutes before the incident until 30 minutes after the incident and exclude text messages. This is agreeable but Defendant refuses to follow through on the agreement. The motion to compel further response to RFP No. 25 is GRANTED per agreement of the parties. (CCP § 2031.210, subd. (a)(1).) · RFP No. 26: Any correspondence sent to or received from anyone other than YOUR own attorney, concerning the INCIDENT and attending circumstances and claimed damages serving as a basis for this action. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Thus, no documents are produced. Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 26 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 26 is GRANTED. · RFP No. 34: All DOCUMENTS that support YOUR contention that YOU did not cause the INCIDENT. Defendants Response: Objection: This demand is untimely and therefore burdensome and oppressive as this responding party has just answered plaintiff's complaint. Further, this demand is violative of the attorney workproduct privilege, and thus is burdensome, oppressive and harassing. Thus, no documents are produced. Plaintiff argues that Defendant fails to identify with particularity any documents to which an objection is being made. (CCP 2031.240(b).) The Court determines that RFP No. 34 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 34 is GRANTED. · RFP No. 37: Any and all photographs taken subsequent to the INCIDENT of YOUR vehicle, involved in the incident which is the subject of this action (Please provide color photographs and/or best reproduction or duplication. If color photographs are not available, please provide black and white copies). Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Without waiving the foregoing objections and in the spirit of good faith and cooperation, this responding party responds: Attached hereto is 173 photographs of the vehicles involved in this incident. Plaintiff argues that Defendant fails to state whether she has complied in whole or in part. (CCP § 2031.220.) The Court determines that RFP No. 37 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 37 is GRANTED. RFP Nos. 22 and 46 These requests pertain to the vehicle driven by Defendant. · RFP No. 22: All DOCUMENTS RELATING TO the title for the SUBJECT VEHICLE driven by YOU on the day of the INCIDENT. Defendants Response: Objection. This demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence. However, without waiving the aforementioned objections, this responding party responds: After a diligent search and a reasonable inquiry, responding party produces a copy of the vehicle registration for responding partys vehicle. Plaintiff argues that Defendant fails to state whether she is complying in full or in part. (CCP § 2031.220.) The Court determines that RFP No. 22 is within the proper scope of discovery and the response is not code-compliant. The motion to compel further response to RFP No. 22 is GRANTED. · RFP No. 46: All DOCUMENTS and ELECTRONICALLY STORED INFORMATION RELATING TO the current location of the SUBJECT VEHICLE. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Further, This demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence and invades this partys right to privacy. Plaintiff argues he needs to know the current location of Defendants vehicle in order to conduct a vehicle inspection. The Court determines that RFP No. 46 is within the proper scope of discovery. The motion to compel further response to RFP No. 46 is GRANTED. RFP Nos. 23 and 24 These requests pertain to Defendants cell phone records. · RFP No. 23: All DOCUMENTS RELATING TO cellular telephone billing records of the cellular telephone(s) possessed by YOU for the day of the INCIDENT. Defendants Response: Objection. This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible. Further, this demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence and invades this partys right to privacy. Thus, no documents are produced. Plaintiff states that after meeting and conferring, Defendant agreed to supplement if Plaintiff agreed to narrow this request to 30 minutes before the incident until 30 minutes after the incident and exclude text messages. Plaintiff agrees to the timeframe but disagrees to the text messages. If Defendant was texting while driving and the records will show that, then they need to be produced. The Court limits the request to phone records 30 minutes before the incident and 30 minutes after the incident, including text messages. Subject to the limitation above, the motion to compel further response to RFP No. 23 is GRANTED. · RFP No. 24: All DOCUMENTS RELATING TO text messages sent and received by the cellular telephone(s) possessed by YOU for the day of the INCIDENT. Defendants Response: Objection. This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible. Further, this demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence and invades this partys right to privacy. Thus, no documents are produced. As discussed above, the Court limits the request to phone records 30 minutes before the incident and 30 minutes after the incident, including text messages. Subject to the limitation above, the motion to compel further response to RFP No. 24 is GRANTED. RFP Nos. 40 and 44 This set of requests for documents relate to electronically stored information. · RFP No. 40: All DOCUMENTS and ELECTRONICALLY STORED INFORMATION RELATING to purchases made by YOU on the date of the INCIDENT for the eight hours prior to the time of the INCIDENT. Defendants Response: Objection. This demand seeks documents irrelevant to the subject matter of this action and which are not calculated to lead to the discovery of admissible evidence. Further, this demand invades this partys right to privacy. Thus, no documents are produced. Plaintiff argues that Defendants purchases on the day of the incident are relevant to show whether Defendant consumed anything that impaired her ability to operate a motor vehicle. The Court determines that the request is overbroad. The information Plaintiff seeks can be obtained by other means of discovery without unreasonably invading Defendants privacy interests. The motion to compel further response to RFP No. 40 is DENIED. · RFP No. 44: All DOCUMENTS and ELECTRONICALLY STORED INFORMATION RELATING TO the names and contact information of any passengers in the SUBJECT VEHICLE at the time of the INCIDENT. Defendants Response: Objection: This demand is overbroad, uncertain, remote as to time, indefinite, vague, ambiguous, and unintelligible, and violates the attorney-work product privilege. Thus, no documents are produced. Plaintiff does not state a reason for the request. In any event, the Court determines that the request is overbroad and vague. The motion to compel further response to RFP No. 40 is DENIED. Sanctions [T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §2031.310, subd. (h).) Plaintiff seeks sanctions against Defendant in the amount of $2,560.00 for two hours spent preparing the motion, an anticipated two hours reviewing Defendants Opposition and preparing a Reply, and one hour attending the hearing, at a rate of $500 per hour, plus $60 in fees. Under the circumstances here, the Court imposes sanctions in the amount of $1,560.00 upon Defendant and Defendants counsel, jointly and severally, payable in 60 days.

Ruling

ANDREW PASMANT, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO GILBERTO PASMANT VS BREA WHITTIER LLC, ET AL.

Nov 20, 2024 | 23NWCV03926

Case Number: 23NWCV03926 Hearing Date: November 20, 2024 Dept: C ANDREW PASMANT, et al. vs. BREA WHITTIER LLC, et al. CASE NO.: 23NWCV03926 HEARING: 11/20/2024 #4 TENTATIVE ORDER Defendant Brea Whittier LLC dba Brookdale Central Whittiers Motion to Compel Arbitration and Stay Proceedings is DENIED. Moving parties to give notice. Defendant Brea Whittier LLC dba Brookdale Central Whittier moves to compel arbitration. Background On December 4, 2023, Andrew Pasmant filed his Complaint. On April 19, 2024, Plaintiffs Andrew Pasmant, Robert Pasmant, Ronald Pasmant, and Yvonne Moreno, individually and as Successors-in Interest to Gilberto Pasmant (Plaintiffs) filed the operative First Amended Complaint against Defendants Brea Whittier LLC dba Brookdale Central Whittier (Brookdale), Eldercare Corp. dba Echo Hospice of Orange County (Echo), SoCal Post Acute Holdings, LLC dba Social Post-Acute Care (SoCal), and Does 1 through 50, inclusive, (collectively, Defendants) alleging (1) elder abuse/neglect against all defendants; (2) professional negligence against all defendants; (3) wrongful death against all defendants; (4) negligent infliction of emotional distress against all defendants; and (5) violation of patients rights against Defendant SoCal. Specifically, Plaintiffs allege that Decedent Gilberto Pasmant (Decedent) was a resident of Brookdale from June 2022 through May 2023, a patient of Echo from June 2022 to January 2023, and a patient of SoCal from May 2023 through July 27, 2023. (First Amended Complaint, ¶ 6.) During the times of Decedents residence at these facilities, Plaintiffs allege that Decedent was mentally incapacitated due to dementia and Alzheimers disease. (Id.) Plaintiffs allege that Defendants knowingly failed to provide decedent with needed aid, resulting in injuries and Decedents death on July 27, 2023. (Id., ¶¶ 13, 24.) On June 14, 2024, SoCal filed their answer. On June 18, 2024, Echo filed their answer. On July 15, 2024, Brookdale filed the instant motion. On November 7, 2024, Plaintiffs filed their opposition. As of November 14, 2024, Brookdale has not filed a reply. Motion to Compel Arbitration Timeliness CCP § 1005(b) provides that all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California. In addition, [p]roof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing. (Cal. Rules of Court, Rule 3.1300(c).) CCP § 1005(b) provides that all papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing. Here, the moving papers are timely as they were filed on July 15, 2024, which is at least 16 days before the November 20, 2024, hearing. However, the opposition is untimely, as it was filed on November 7, 2024, which is less than nine court days before the hearing. The Court admonishes Plaintiffs to ensure timely filings going forward but will exercise its discretion to consider the Opposition, as the delay was not substantial nor prejudicial. Evidentiary Objections Plaintiffs object to the paragraphs 1 through 6 of Molly M. Loys Declaration and Exhibits A through E attached thereto on the grounds that they lack foundation under Evidence Code section 702. Plaintiffs contend that Molly Loys conclusory statements are inadequate as the requirement is not that the declarant recite the conclusion that he can competently testify but that he allege facts showing his competence per Roy Bros. Drilling Co. v. Jones (1981) 123 Cal.App.3d 175, 182. Plaintiffs argue that Molly Loy makes no claim to personally handling negotiation of the agreements in question or any of the documents Brookdale proffers. In Roy, the court was addressing the standard for summary judgment, specifically the requirement under Code of Civil Procedure section 437 subd. (c) that [s]upporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. (Code Civ. Proc., § 437(c).) Unlike in Roy, the Court here is not deciding a motion for summary judgment, but rather a motion to compel arbitration. In deciding a motion to compel arbitration, the moving party can carry its initial burden to make a prima facie showing of the existence of a written arbitration agreement...by complying with Rule 3.1330. (Ramirez v. Golden Queen Mining Co., LLC (2024) 102 Cal. App. 5th 821, 832.) Per Rule 3.1330, the petition 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. Here, Molly Loys Declaration meets the requirements of 3.1330. Thus, Plaintiffs objection to the declaration for lacking foundation is OVERRULED. Plaintiffs also object to the purported arbitration agreement contained in Exhibit A to the Loy Declaration for lack of foundation and failure to properly authenticate. However, [t]he party seeking arbitration need not follow the normal procedures of document authentication and need only allege the existence of an agreement and support the allegation as provided in rule [3.1330]. (Ramirez, supra, 102 Cal.App.5th at 831.) Here, Brookdale does not need to follow normal authentication procedures, and it properly alleged the existence of an agreement and supported the allegation per Rule 3.1330. Thus, Plaintiffs objection to the arbitration agreement for lack of foundation and failure to authenticate is OVERRULED. Plaintiffs also object to the purported arbitration agreement as inadmissible hearsay under Evidence Code section 1271. Here, it would be nonsensical for a prima facie showing under Rule 3.1330 to require provisions of the purported arbitration agreement to be stated verbatim in the petition or a copy to be attached to the petition, only for the Court to be prevented from considering the agreement on the basis of hearsay. If courts held otherwise, no motion to compel arbitration would ever be granted as a prima facie showing of the existence of an arbitration agreement could never be made. Thus, Plaintiffs objection to the arbitration agreement as inadmissible hearsay is OVERRULED. Legal Standard Under both the Federal Arbitration Act 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.) In ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.) With respect to the moving partys burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court. (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160.) The right to compel arbitration exists unless the court finds that the right has been waived by a partys conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2(a)-(c).) Discussion Applicability of the Federal Arbitration Act (FAA) The party seeking to enforce an arbitration agreement has the burden of showing FAA preemption. (Lane v. Francis Capital Mgmt. LLC (2014) 224 Cal.App.4th 676, 684.) California law provides that parties may expressly designate that any arbitration proceeding should move forward under the FAA's procedural provisions rather than under state procedural law. (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal. 4th 376, 394). Otherwise, the FAA provides for enforcement of arbitration provisions in any contract evidencing a transaction involving commerce. (9 USC § 2.) (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 277.) Accordingly, [t]he party asserting the FAA bears the burden to show it applies by presenting evidence establishing the contract with the arbitration provision has a substantial relationship to interstate commerce[.] (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 234, [italics added].) Moreover, as noted above, California contract law applies to the validity of the arbitration agreement. (Winter, supra, 166 Cal.App.4th at p. 947.) Here, Brookdale argues that the FAA governs this dispute because the Agreement involves interstate commerce. To support their argument, Brookdale cites to Scott v. Yoho (2016) 248 Cal.App.4th 392. In Scott, an arbitration agreement between a patient and a medical practice was found to be governed by the FAA because the medical practice bore on interstate commerce in a substantial way, notwithstanding the fact that the procedure at issue was conducted in California by a state licensed doctor on an in-state patient. (Id., at 402.) The Scott court found that the following facts created a sufficient nexus with interstate commerce: [a]pproximately 20 percent of the medical supplies were shipped from out of state. Dr. Yoho declared some of the materials used for Ms. Parker's liposuction procedure originated from outside California. Defendants advertised on the internet and communicated with out-of-state patients by telephone, mail and e-mail. About 5 percent of defendants' patients are from outside the state. Further, the medical practice has contacts with out-of-state companies. (Id., at 40102.) Brookdale argues that the Agreement contains a Pharmacy Services Agreement which describes medications Brookdale obtained from other states. (Loy Decl., Ex. A.) However, the Pharmacy Services Agreement does not mention that such medications were obtained from other states, and Brookdale provides no other evidence to support this assertion. Brookdale also asserts that they obtained supplies and medical equipment from vendors outside of California, accepted residents from outside of California, and advertised on the internet, but similarly fail to provide evidence to support these assertions. Conversely, the Agreement explicitly states that the California Code of Civil Procedure 1280 et seq. shall govern the procedure of the Agreement, and that nothing in the Agreement is to be construed to contradict any applicable California statutory or regulatory grievance. (Loy Decl., Ex. A.) The Agreement consistently mentions California law but makes no mention of the FAA or Federal law preempting California law. Overall, Brookdale fails to meet their burden to establish that the FAA governs the purported Agreement. Thus, California law governs. Existence of a Valid Arbitration Agreement The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (Code of Civ. Proc. § 1281.2.) With respect to the moving party's burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court. (See Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218; see also Cal. Rules of Court, rule 3.1330 [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].) Once such a document is presented to the court, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges. [Citation] (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160.) Here, Brookdale seeks to compel arbitration of Plaintiffs claims based on a Residency Agreement that includes an arbitration agreement. In support of the existence of an arbitration agreement, Brookdale attached to the Motion a copy of the Residency Agreement, which contains an Agreement to Arbitrate (the Agreement). (Loy Decl., ¶ 2, Ex. A.) The pertinent provision reads as follows: A. ARBITRATION. 1. Any and all claims or controversies arising out of, or in any way relating to, this Agreement or your stay at the Community, excluding any action for eviction, and including disputes regarding interpretation of this Agreement, whether arising out of State or Federal law, whether existing or arising in the future, whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of statutory duties, irrespective of the basis for the duty or the legal theories upon which the claim is asserted, shall be submitted to binding arbitration, as provided below, and shall not be filed in a court of law. The parties to this Agreement further understand that a jury will not decide their case. The California Code of Civil Procedure 1280 et seq. concerning arbitration shall govern the procedure, except if inconsistent with this Arbitration Provision or expressly stated otherwise in this Agreement. Further, nothing in this Agreement is to be construed to contradict any applicable California statutory or regulatory grievance, challenge or mediation procedure. Any party who demands arbitration must do so for all claims or controversies that are known, or· reasonably should have been known, by the date of the demand for arbitration, and if learned of during the course of the arbitration proceeding shall amend the claims or controversies to reflect the same. All current damages and reasonably foreseeable damages arising out of such claims or controversies shall also be incorporated into the initial demand or amendment thereto. (Loy Decl., Ex. A.) The Agreement, executed on October 7, 2016, appears to be signed by the Decedent, Andrew Pasmant as Decedents Power of Attorney, and Brookdale. (Loy Decl., Ex. A.) This evidence establishes the existence of a valid arbitration agreement between Plaintiffs and Brookdale. Thus, Brookdale has met their burden to prove the existence of an arbitration agreement binding Plaintiffs. The burden now shifts to Plaintiffs to challenge enforceability. Defenses to Enforcement Violation of Health & Safety Code Section 1599.81 Health & Safety Code section 1599.81 states: (a) All contracts of admission that contain an arbitration clause shall clearly indicate that agreement to arbitration is not a precondition for medical treatment or for admission to the facility. (b) All arbitration clauses shall be included on a form separate from the rest of the admission contract. This attachment shall contain space for the signature of any applicant who agrees to arbitration of disputes. (c) On the attachments, clauses referring to arbitration of medical malpractice claims, as provided for under Section 1295 of the Code of Civil Procedure, shall be clearly separated from other arbitration clauses, and separate signatures shall be required for each clause. (d) In the event the contract contains an arbitration clause, the contract attachment pertaining to arbitration shall contain notice that under Section 1430, the patient may not waive his or her ability to sue for violation of the Patients Bill of Rights. (Health & Safety Code section 1599.81.) As a preliminary matter, the Court notes that in Valley View Health Care, Inc. v. Chapman (2014) 992 F.Supp.2d 1016, 1041, Section 1599.81 subdivision (d) was found to be preempted by the Federal Arbitration Act to the extent that it barred arbitration of claims under California Patient's Bill of Rights. However, the remaining text or effect of subdivisions (a)-(c) were not preempted. Further, as the FAA does not govern the instant arbitration agreement, this ruling does not affect this Courts decision here. Plaintiffs argue that the purported agreement violates the above provisions as it is not contained on a separate form or attachment with its own separate space for signature, but rather buried in section V with a stray clause tucked into section VI, subsection A. Plaintiffs contend that these deficiencies render the agreement unenforceable. In support of this assertion, Plaintiffs cite the following cases: Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 69; Medeiros v. Superior Court (2007) 146 Cal.App.4th 1008, 1015; and Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 168. In Malek, the court found that a health insurers failure to comply with Health & Safety Code Section 1363.1, which requires certain disclosures and conditions when binding arbitration is included as a contract term in a health care service plan, rendered the arbitration agreement unenforceable. (Malek, supra, 121 Cal.App.4th at 62.) Specifically, Section 1363.1, subdivision (d), required that the arbitration disclosure in Malek be displayed immediately before the signature line, and it was not. (Id.) The court noted that the arbitration disclosure requirements of Section 1363.1 are mandatory. (Id. at 63.) The Malek court found that [t]he very purpose of the disclosure requirement of section 1363.1 is to ensure that the parties agree to be bound to contractual arbitration. It would be absurd to impose an administrative penalty on a health service plan provider for failure to comply with the arbitration disclosure requirements but permit arbitration to go forward. Under those circumstances, there would be no consent to arbitrate. (Id. at 69.) Similarly, in Zembsch, the court held that arbitration provisions in a health insurers health care service plan were unenforceable for failure to comply with Health & Safety Code Section 1363.1s statutory disclosure requirements. (Zembsch, supra, 146 Cal.App.4th at 168.) Additionally, in Madeiros, the court held that arbitration provisions in an employers health benefits election agreement and evidence of coverage form were unenforceable for failure to comply with Health & Safety Code Section 1363.1s statutory disclosure requirements. (Medeiros, supra, 146 Cal.App.4th at 1015.) Plaintiffs argue that based on the cases discussed above, the instant arbitration agreement, although it does not fall under Health & Safety Code Section 1363.1, is also unenforceable for failure to comply with statutory requirements of Health & Safety Code section 1599.81. Health & Safety Code Section 1363.1, entitled Binding arbitration included as contract term; required disclosures and conditions, states as follows: Any health care service plan that includes terms that require binding arbitration to settle disputes and that restrict, or provide for a waiver of, the right to a jury trial shall include, in clear and understandable language, a disclosure that meets all of the following conditions: (a) The disclosure shall clearly state whether the plan uses binding arbitration to settle disputes, including specifically whether the plan uses binding arbitration to settle claims of medical malpractice. (b) The disclosure shall appear as a separate article in the agreement issued to the employer group or individual subscriber and shall be prominently displayed on the enrollment form signed by each subscriber or enrollee. (c) The disclosure shall clearly state whether the subscriber or enrollee is waiving his or her right to a jury trial for medical malpractice, other disputes relating to the delivery of service under the plan, or both, and shall be substantially expressed in the wording provided in subdivision (a) of Section 1295 of the Code of Civil Procedure. (d) In any contract or enrollment agreement for a health care service plan, the disclosure required by this section shall be displayed immediately before the signature line provided for the representative of the group contracting with a health care service plan and immediately before the signature line provided for the individual enrolling in the health care service plan. (Health & Safety Code Section 1363.1.) Here, the agreement violates section 1599.81 subdivision (b) because the arbitration clauses are not included on a form separate from the rest of the admission contract. Instead, the arbitration clauses are contained on pages 9-11 of the admission contract, the majority of which are contained in Section V. (Loy Decl., Ex. A.) Another clause entitled Waiver of Trial by Jury, which appears to be concerning arbitration, is listed under Section VI entitled Miscellaneous. Thus, the agreement violates section 1599.81 subdivision (b). Generally speaking, a contract made in violation of a regulatory statute is void, ... [however,] the rule is not an inflexible one to be applied in its fullest rigor under any and all circumstances. (Malek, supra,121 Cal.App.4th at 70, citing Arya Group, Inc. v. Cher (2000) 77 Cal.App.4th 610, 615.) In each case, the extent of enforceability and the kind of remedy granted depend upon a variety of factors, including the policy of the transgressed law, the kind of illegality and the particular facts. (Id.) As to the first consideration regarding policy, the Malek court stated that the policy of section 1363.1 is to protect health care consumers from the consequences of unknowingly waiving their right to a jury trial in a dispute with their health care service plan. (Malek, supra,121 Cal.App.4th at 71.) Here, there is no authority provided by Plaintiffs which discusses the policy of Health & Safety Code section 1599.81. However, based on the similar provisions in sections 1363.1 and 1599.81, it logically follows that the policy behind section 1599.81 is likely to protect inhabitants of long-term health care facilities from unknowingly waiving their right to a jury trial in a dispute with the long-term health care facility. As to the second consideration regarding illegality, the Malek court found that although the violation of section 1363.1 does not involve the kind of illegality that automatically renders an agreement void, nevertheless, the parties were not equally at fault. Blue Cross knew or should have known of the disclosure requirements under section 1363.1. (Malek, supra,121 Cal.App.4th at 71.) Here, there does not appear to be any illegality. However, like the insurer in Malek, Brookdale knew or should have known of the disclosure requirements under section 1599.81. As to the third consideration regarding the facts of the case, the Malek court found that [a]s a health care service plan provider, Blue Cross should have been aware that section 1363.1 provided specific disclosure requirements. In this factual context, enforcing the arbitration provision would defeat the policy of section 1363.1. (Malek, supra,121 Cal.App.4th at 71-72.) Here, Brookdale should have been aware that section 1599.81 provided specific disclosure requirements, such that enforcing the arbitration provision would defeat the policy of section 1599.81. Therefore, as a contract made in violation of a regulatory statute is generally void and the factors regarding the extent of enforceability go towards unenforceability here, the Agreements deficiencies under section 1599.81 render the Agreement unenforceable per Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 70. Defenses to Enforcement Code of Civil Procedure Section 1281.2 Code of Civil Procedure section 1281.2 provides in relevant part that: 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: . . . (c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. (CCP § 1281.2) [A] trial court must decide whether section 1281.2(c) applies based only on the three conditions identified in that subdivision. (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 978.) The last paragraph of section 1281.2 sets forth four options available to the Court when the Court makes a finding that there is a possibility of conflicting rulings: If the court determines that a party to the arbitration is also a party to litigation in a pending court action or special proceeding with a third party as set forth under subdivision (c), the court (1) may refuse to enforce the arbitration agreement and may order intervention or joinder of all parties in a single action or special proceeding; (2) may order intervention or joinder as to all or only certain issues; (3) may order arbitration among the parties who have agreed to arbitration and stay the pending court action or special proceeding pending the outcome of the arbitration proceeding; or (4) may stay arbitration pending the outcome of the court action or special proceeding. (CCP § 1281.2.) Section 1281.2(c)'s primary purpose is to avoid conflicting rulings, not further judicial economy. (Acquire II, Ltd., supra, 213 Cal.App.4th at p.978; see also Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 488 [the statute was intended primarily to prevent conflicting rulings resulting from arbitration proceedings and other related litigation arising out of the same transaction.].) Here, Plaintiffs cite to section 1281.2 and state that there are multiple co-defendants and plaintiffs in this matter. However, outside of this conclusory statement, Plaintiffs fail to make any argument to establish that a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. Thus, Plaintiffs fail to establish that the arbitration agreement is unenforceable under Code of Civil Procedure section 1281.2. Defenses to Enforcement Unconscionability Section 1281.2(b) of the Code of Civil Procedure provides that 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 grounds exist for the revocation of the agreement. Here, Plaintiff argues that the agreement is unenforceable due to unconscionability. 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.) It consists of procedural and substantive components, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. (Id.) Although both components of unconscionability must be present to invalidate an arbitration agreement, they need not be present in the same degree. (Armendariz v. Found. Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 114 (abrogated in-part on other grounds by Concepcion, 563 U.S. 333).) Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. [Citations.] In other words, the more substantively unconscionable the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. (Id.) The party resisting arbitration bears the burden of proving unconscionability. (Pinnacle Museum Tower Assn v. Pinnacle Market Dev. (2012) 55 Cal.4th 223, 247.) Procedural Unconscionability Procedural unconscionability pertains to the making of the agreement. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Procedural unconscionability focuses on two factors: oppression and surprise. Oppression arises from an inequality of bargaining power which results in no real negotiation and an absence of meaningful choice. Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms. (Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 484.) A contract of adhesion typically denotes a standardized contract imposed and drafted by the party of superior bargaining strength which relegates to the subscribing party only the opportunity to adhere to the contract or reject it. (Armendariz, supra, 24 Cal.4th at 113.) The adhesive nature of a contract is one factor that the courts may consider in determining the degree of procedural unconscionability. (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 fn.4.) [O]rdinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms. A party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing&. Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701. Here, as to oppression, Plaintiffs argue that the agreement is one of adhesion, as it was standardized, preprinted, and apparently offered to potential residents with no real option but to sign it as is. Plaintiffs contend that nowhere does it authorize negotiation, confirm that negotiation occurred, or contemplate further negotiation, which constitutes oppression arising from an inequality of bargaining power. Plaintiffs argue that they were faced with a form contract offering no option for variance, that the decedent had dubious mental capacity, there was a need for immediate and stable transfer to nursing care, and a resulting lack of time or opportunity for aid from an attorney. The Court notes that Plaintiffs repeatedly cite to Nelson in their argument regarding unconscionability, but nowhere do they provide the full citation. The Court recognizes that Brookdale, a company, imposed and drafted the Agreement with sophistication and superior bargaining power compared to Plaintiffs, the children of the decedent-patient/resident, who had no legal representative and no sophistication as to legal documents. There is also an adhesive nature to the contract because the signatory Plaintiff who signed as power of attorney on behalf of the decedent, the prospective patient/resident, could reasonably have believed that the decedent would not be able to live at Brookdale and receive care if they chose not to sign the Agreement. Further, accepting as true the Plaintiffs contention that the decedents mental capacity was diminished also signifies oppression as the decedent had minimal to no bargaining power. Thus, the foregoing indicates moderate oppression based on an inequality of bargaining power and an absence of meaningful choice. Plaintiffs make no clear argument as to the presence of unfair surprise. Thus, the arbitration agreement is procedurally unconscionable to a moderate degree based on oppression. Substantive Unconscionability An agreement is substantively unconscionable if it imposes terms that are overly harsh, unduly oppressive, unreasonably favorable, or so one-sided as to shock the conscience. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-911.) All of these formulations point to the central idea that unconscionability doctrine is concerned not with a simple old-fashioned bad bargain [citation], but with terms that are unreasonably favorable to the more powerful party. [Citation.] (Id. at p. 911.) These include terms that impair the integrity of the bargaining process or otherwise contravene the public interest or public policy; terms (usually of an adhesion or boilerplate nature) that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law, fine-print terms, or provisions that seek to negate the reasonable expectations of the nondrafting party, or unreasonably and unexpectedly harsh terms having to do with price or other central aspects of the transaction. (Id.) Where a party expressly has the unilateral ability to avoid arbitration, the arbitration agreement is unenforceable, as illusory. (Saika v. Gold (1996) 49 Cal.App.4th 1074, 1081.) Where the parties agree to be bound by arbitration, "lack of mutuality does not render the contract illusory, i.e., lacking in mutual consideration." (Armendariz, supra, 24 Cal.4th at 118.) An employers contractual ability to modify terms of a personnel handbook in writing carries with it a duty to act in good faith such that an accompanying arbitration provision is not illusory. (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1213-1214; Accord Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1473.) Here, Plaintiffs argue that the arbitration agreement is substantively unconscionable because it lacks mutuality and provides for an equal apportionment of costs associated with arbitration. As to mutuality, Plaintiffs state that defendants purported agreement provides similar unconscionable carve-out provisions in Section V, subsection (A)(1) as those found in Lopez v. Bartlett Care Center, LLC (2019 39 Cal.App.5th 311, 321-22. In Lopez, the court found that an arbitration agreement between a patient and a long-term health care facility lacked mutuality because it require[d] residents to arbitrate those claims they are most likely to bring against the Facility (medical malpractice, personal injury, elder abuse) while allowing the Facility to pursue in court the actions the Facility is most likely to bring against residents (evictions and collections). (Id.) Like the Lopez agreement which allowed the facility to pursue actions for evictions in court while requiring patients to arbitrate all other claims, the Agreement here exempts evictions from arbitration as it states [a]ny and all claims or controversies arising out of, or in any way relating to, this Agreement or your stay at the Community, excluding any action for eviction....shall be submitted to binding arbitration... (Loy Decl., Ex. A., italics added.) Thus, the Agreement here requires residents to arbitrate those claims they are most likely to bring against the Brookdale (medical malpractice, personal injury, elder abuse) while allowing Brookdale to pursue in court the actions Brookdale is most likely to bring against residents (evictions). Therefore, the Agreement is substantively unconscionable for lack of mutuality. Plaintiffs also argue that the Agreement is substantively unconscionable as it provides for an equal apportionment of costs associated with arbitration, citing Armendariz. (Loy Decl., Ex. A.) Per Armendariz, an arbitration agreement must ensure that a plaintiff does not bear any costs above that which he or she would have to pay in court. (Armendariz, supra, 24 Cal.4th at 10313.) Thus, the agreement is substantively unconscionable for requiring Plaintiffs to bear costs above that which they would have to pay in court, such as the arbitrators fees and forum fees. Overall, there is moderate procedural unconscionability due to oppression, and moderate substantive unconscionability due to a lack of mutuality and a burdensome cost-sharing requirement between Plaintiffs and Brookdale. As a showing of both procedural and substantive unconscionability to a certain degree is required to prevent enforcement, Plaintiff has established that the Agreement is also unenforceable for unconscionability. For the foregoing reasons, Defendant Brea Whittier LLC dba Brookdale Central Whittiers Motion to Compel Arbitration and Stay Proceedings is DENIED.

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