Tentative Rulings

Civil Tentative Rulings and Probate Examiner Recommendations are available below. All attempts possible are made to have the information on these pages updated by 3:00pm the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.

Civil Tentative Rulings: The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial. Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court and other parties by 4:00 p.m. today of their intention to appear for oral argument. The court's notice must be made by facsimile (fax) to 559-733-6774; by email to research_attorney@tulare.courts.ca.gov; or by telephoning (559) 730-5010.

Probate Examiner Recommendations: For further information regarding a probate matter listed below you may contact the Probate Document Examiner at 559-730-5000 ext #1430. The Probate Calendar Clerk may be reached at 559-730-5000 Option 4, then Option 6. Note: The court does not issue probate examiner recommendations on petitions for approval of compromise of claim.

Civil Tentative Rulings & Probate Examiner Recommendations

The Tentative Rulings for Tuesday, April 7, 2026, are:

Re: Julius, Desmond Anthony vs. Amdal Transport Services, Inc.

Case No.: VCU309520

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Motion for Final Approval

Tentative Ruling: To grant the motion; to set the Final Compliance Hearing for December 7, 2026, 8:30 am, Dept. 2.

Facts and Analysis

Plaintiff’s motion for final approval of class action and PAGA settlement, attorneys’ fees, costs, enhancement award, LWDA payment and class certification for settlement purposes came on for hearing on April 7, 2026. The Court finds and rules as follows:

On February 27, 2026, the settlement administrator IYLM Group, through its Case Manager, filed a declaration detailing the following events.

On October 8, 2025, the administrator received a mailing list of 133 individuals On November 12, 2025, after the administrator processed the names through the National Change of Address Database and updated the list with any updated addresses located, the administrator sent class notice by mail. A total of 16 notices were returned, 13 updated addresses were obtained and therefore 3 notices are deemed undeliverable.

The settlement administrator indicates Class members had 60 days, until December January 12, 2026 to submit objections, disputes and/or requests for exclusions. As of the date of this declaration, zero (0) requests for exclusion and zero (0) objections were received from class members. Therefore, all 133 Class Members or 100% of the Class will participate in the settlement.

The court presumes the settlement is fair and reasonable given (a) that it was reached through arms-length bargaining at mediation, (b) that there was sufficient time for investigation and discovery since commencement of litigation (c) class counsel have particularized experience with the claims at issue in the case, and (d) there appear to be no disputes or objections. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4^th 1794, 1802.)

A net settlement amount of $93,049.75 is available to pay to the class members in accordance with the terms of settlement. The highest estimated individual payment is $3,200.00, the average estimated individual payment is $696.87, and the lowest estimated individual payment is $12.96.

The Court believes basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise under the circumstances, in accordance with Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4^th 116, 133. This case involved extensive informal discovery and investigation of disputed claims, including review and analysis by Plaintiff’s expert. The settlement avoids significant risks and delay that would result from further litigation of the case, which would include, amongst other matters, certification proceedings, trial, and the possibility of further delay and cost resulting from appeals.

Class counsel has provided an updated declaration in support of the recovery of attorneys fees in the amount of 33 1/3% of the gross settlement fund of $200,000 or $66,666.67 and costs of $19,723.58.

Counsel indicates spending 148.8 hours at rates ranging from $800 to $500 per hour, creating an updated total lodestar figure of $99,060. (Declaration of Gomez ¶17.)

Counsel has additionally provided sufficient cost information indicating actual costs incurred in the amount of $19,723.58. (Declaration of Gomez ¶25.)

The Court believes the requested attorney fees and costs appear reasonable under the circumstances. Additionally, counsel has provided a sufficient declaration to demonstrate adequate previous experience with class actions to further support the reasonableness of the award.

The settlement administrator has provided, in the declaration describing the work it has performed on the case, a value of services totaling $5,650. The Court believes the amount requested as compensation for the administrator appears reasonable.

The settlement agreement designates California Controller’s Office Unclaimed Property Division, with an identification of the Participating Class Member to whom the funds belong, in accordance with Code of Civil Procedure section 384.

The Court previously approved a representative payment of $5,000 as to Plaintiff Medrano and finds that the class representative payment is appropriate under the circumstances.

Finally, the Court confirms its conditional certification of the settlement class. The Court finds no significant events have occurred that would cause it to change its prior determination that the settlement class met all requirements under Code of Civil Procedure section 382 for certification for settlement purposes at the time it granted Plaintiff’s motion for preliminary approval.

On review of the declarations and pleadings submitted, the Court finds, given the established presumption that the settlement is fair and reasonable under the circumstances of this case, and, particularly, given the absence of any objection or opposition following the class notice, that the settlement is fair and reasonable and that the motion for final approval should be, and is hereby, granted.

Therefore, the following deductions from the gross settlement of $200,000 are approved as follows:

Approved Attorney Fees (33.3%):	$66,666.67
Approved Attorney Costs (expended):	$19,723.58
Approved Enhancement Payment to Plaintiff:	$5,000.00
Approved Settlement Administrator Costs	$5,560.00
Approved Total PAGA Payment	$10,000.00
Approved Net Settlement Amount	$93,049.75

The Court shall enter its order of final approval and judgment in this case on the proposed form submitted by Plaintiff on March 5, 2026.

Final Compliance Hearing is set for December 7, 2026, 8:30 am, Dept. 2.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re: Diaz-Magana, Luz E. vs. Diaz, Roberto et al

Case No.: VCU286266

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Motion to Correct Judgment

Tentative Ruling: To grant the motion.

Facts and Analysis

This is a real property partition action. An order confirming the sale of the property and for distribution of the funds was entered on December 3, 2024. Defendant Roberto Diaz was to receive the sum of $13,556.52. Plaintiff was unable to contact Roberto Diaz after this order was entered. On July 1, 2025, the Court granted a motion to deposit these funds with the Tulare County Treasurer.

Attorney Michael Brown, who filed the motion, states that Robert Diaz came to his office and said he could not cash the check representing his proceeds for the property as it was not in his true name, Robert as opposed to Roberto. Counsel has attached a copy of Defendant Roberto Diaz (or Robert Diaz’s) driver’s license with his true name.

California Code of Civil Procedure (CCP) § 116.725 grants the court the inherent power to correct clerical errors in judgments or orders at any time, either on its own initiative or upon motion by a party. Here, counsel has undertaken to correct an error and taken responsibility for doing so despite the fact that the defendant was not his client. Attorney Brown represented Edward Diaz in this litigation.

The motion to amend the judgment is granted.

Re: Knox, Sean vs. Visalia Unified School District

Case No.: VCU327313

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Demurrer

Tentative Ruling: To sustain the demurrer to the second cause of action without leave to amend; to sustain the demurrer to the third cause of action with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint as to the third cause of action.

Facts

In this matter, Plaintiff alleges causes of action for racial discrimination, wrongful termination in violation of public policy under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 and for intentional infliction of emotional distress.

The complaint alleges Defendant VUSD is a public entity. (Complaint ¶2)

Defendant VUSD demurrers to the second and third causes of action for failure to state facts sufficient to allege a cause of action. Defendant argues that Tameny claims against public entities are barred as matter of law under Government Code section 815 and that the cause of action for IIED fails to assert a basis under statute for liability.

In opposition, Plaintiff argues the second cause of action is grounded in various statutory policies, including under FEHA and Government Code section 12940. Additionally, that the third cause of action pleads vicarious liability under Government Code section 815.2 for IIED pled against individual supervisory and decision making employees sued as Doe Defendants.

Authority and Analysis

Demurrer

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220. To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

Tameny Claims against Public Entities

To start, except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code § 815(a).) “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)

Government tort claims must be pled with particularity. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) They must also be grounded in statute. (Gov. Code § 815; E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 512, fn. 9.)

Here, “…section 815 bars Tameny actions against public entities." (Miklosy v. Regents of Univ. of California (2008) 44 Cal.4th 876, 900; see also Lloyd v. County of Los Angeles (2009) 172 Cal.App.4th 320, 329 [finding a "cause of against the County, a Tameny claim for wrongful termination in violation of public policy, fails to state a claim."]) "Because the 'classic Tameny cause of action' is a common law, judicially created tort … and not authorized by statute, it is not properly asserted against the Regents." (Miklosy, supra, 44 Cal. 4th at 899-900.)

Plaintiff cites to City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143 in support that an employee could bring a Tameny claim for disability discrimination. However, Miklosy, supra, 44 Cal. 4^th at 900, fn 7 states:

In [City of Moorpark], we held that an employee could bring a Tameny cause of action for disability discrimination. The defendant in that case happened to be a public entity, but the question of a public entity's tort immunity under section 815 was not raised in that case. ‘It is axiomatic that cases are not authority for propositions not considered.’ [citation omitted]”

Here, the demurrer expressly argues immunity under Government Code section 815 bars this cause of action.

Miklosy further states “Although the Court of Appeal's discussion of section 815 was dictum (see Palmer, supra, at p. 910 & fn. 11), we agree with the Palmer court that section 815 bars Tameny actions against public entities.” (Miklosy, supra, 44 Cal. 4^th at 899-900.)

The Court finds that a Tameny claim itself remains a common law claim and is barred.

Plaintiff also cites to Sinatra v. Chico Unified School Dist. (2004) 119 Cal.App.4th 701, 707 which examined whether Education Code section 44922 embodies a fundamental public policy in support of a Tameny claim against a public entity. The Sinatra court concluded that the claim under section 44922 lacks such a fundamental public policy. (Id.) Sinatra, like City of Moorpark, does not address the issue noted in Miklosy regarding section 815 immunity.

Therefore, the Court finds these cases bar a Tameny claim against a public entity for violation of public policy and the Court sustains the demurrer.

IIED against Public Entities

Here, IIED is a claim which is not based in statute.

However, Plaintiff argues that Defendant is vicariously liable under Government Code section 815.2 for IIED committed by Defendant’s supervisors and decision makers.

Under section 815.2, “a public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee . . . .”

This appears a proper route as to public entity liability pursuant to Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1389 [“Accordingly, as long as the Complaint adequately pleads the elements of negligence, negligent infliction of emotional distress and intentional infliction of emotional distress against [State employee defendants], it also adequately pleads the vicarious liability of the State for those causes of action.”].)

Therefore, the Court examines the allegations in the complaint as to the elements of an IIED claim.

"The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 228-29.) "Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous." (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534.)

Further, the Court acknowledges that Light v. Dept. of Parks & Recreation (2017) 14 Cal.App.5th 75, 97-101 concluded that claims for IIED arising from employment may be asserted in a civil suit where the actionable conduct also forms the basis for a FEHA violation.

Here, Plaintiff alleges “DEFENDANTS discriminated against PLAINTIFF in violation of Government Code § 12940(a) by (1) terminating PLAINTIFF due to his race, ethnicity, or national origin; and (2) otherwise discriminating against PLAINTIFF with regard to the terms and conditions of his employment because of his race so that he was treated differently than his similarly situated co-workers of different races.” (FAC ¶28.)

The complaint names various Doe Defendants and the cause of action for IIED expressly alleges “Plaintiff alleges that Does 1–50 were supervisors, administrators, and decision-makers of Visalia Unified School District who personally engaged in the extreme and outrageous conduct described herein. These individuals are sued in their personal capacities pursuant to Government Code §820.” (FAC ¶48.)

However, the Court finds the allegations lacking specificity as to outrageous and extreme conduct as to acts by unnamed VUSD employees. Plaintiff, at most, generally alleges that supervisory employees terminated Plaintiff’s employment based on a perception of Plaintiff as more aggressive or less competent due to Plaintiff’s race. Therefore, while Plaintiff “…may pursue a claim for intentional infliction of emotional distress in the employment context where the conduct at issue violates FEHA and also satisfies the elements of the [IIED] claim" under Light, 14 Cal. App. 5th at 101-102, the Court will require a pleading of sufficient facts that these unnamed supervisory employees engaged in extreme and outrageous conduct with the intention of causing emotional distress.

In Light, such sufficient allegations included that the allegations that a defendant supervisor “ostracized Light in the workplace, encouraged Light to lie to investigators, pursued Light at home and in the office to determine whether Light did so, and verbally and physically attacked Light after Light disobeyed. The trier of fact could conclude this conduct was extreme and outrageous (especially in light of Seals's supervisory position), taken for purposes of retaliation prohibited by FEHA, and intended to cause Light emotional distress.” (Id. at 102.)

Therefore, the Court holds Plaintiff may not generally allege a violation of FEHA or that the Doe Defendants acted with in discriminatory manner.

The Court, therefore, sustains the demurrer to the third cause of action.

Leave to Amend

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

The Court sustains the demurrer to the second cause of action without leave to amend, finding that Tameny claims are barred against public entities as a matter of law.

The Court sustains the demurrer to the third cause of action with leave to amend. Plaintiff shall have ten (10) days to file an amended complaint as to the third cause of action.

Re: Hernandez-Gonzalez, Virginia vs. Wild Jacks Restaurant Traver

Case No.: VCU329230

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Motion to Compel Arbitration

Tentative Ruling: To deny the motion on the basis of unconscionability

Facts

In this matter, Plaintiff alleges violations of the Labor Code and Business and Professions Code on a classwide basis against Defendant Wild Jacks Restaurant Traver.

Defendant seeks to dismiss the class claims and compel arbitration on an individual basis.

Facts – Agreement to Arbitrate

In support, Defendant submits the declaration of its general manager, who states that on or about June 27, 2024, Plaintiff applied for and was hired by Defendant. (Declaration of Aguilar ¶5.) Further that, on or about March 1, 2025, the general manager instructed manager Priscilla Rebollero to distribute an arbitration agreement (“Agreement”) to the employees, including Plaintiff and to permit the employees, including Plaintiff, as much time as needed to review the Agreement before signing it. (Declaration of Aguilar ¶¶6,7, 10 – Ex. A.) Further that the signature on Exhibit A “looks very similar to other documents Hernandez-Gonzalez’s personnel file” including various other onboarding documents provided as Exhibit B. (Declaration of Aguilar ¶¶10, 12.)

Additionally, Defendants submits the declaration of manager Rebollero who declares facts consistent with the above as to distribution of the Agreement, the signature of Plaintiff, and, additionally that “t. On March 1, 2025, after Hernandez-Gonzalez’s initial review of the Arbitration Agreement, she approached me with a question about whether she would still be able to sue if she had a disagreement with Wild Jack’s. I then advised Hernandez-Gonzalez to write down any questions she had so that I could first forward them to Aguilar for a response, and then to Human Resources if Aguilar was unable to answer. Hernandez-Gonzalez ultimately chose not to write down any questions at that time, indicating that she would take additional time to review the Arbitration Agreement before providing me with her questions” and that on March 2, 2025, Plaintiff returned the Agreement signed by Plaintiff. (Declaration of Rebollero ¶¶5-9, 11-12 – Exs. A, B.)

In opposition, Defendant does not appear to challenge that the Agreement was signed by Plaintiff, except by objections to the declarations of Rebollero and Aguiliar, which the Court overrules.

Authority and Analysis – Agreement to Arbitrate

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.” (Code Civ. Proc. § 1281.2(a), (b).) (emphasis added.) The motion to compel arbitration requires the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court’s discretion. (Code Civ. Proc., §1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413–414.) The motion must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218.)

Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement. (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal. App. 5th 1152, 1160; Cal. Rules of Court, rule 3.1330.) “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee, supra, 88 Cal.App.4th at 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.)

However, when the opposing party disputes the agreement, then the opposing party must provide evidence to challenge its authenticity. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.)

Under California law, "[t]he burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence …." (Gamboa, supra, 72 Cal.App.5th at 164-165.)

"However, the burden of production may shift in a three-step process." (Gamboa, supra, 72 Cal.App.5th at. 165.)

"First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at p. 165.) "The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.]" (Id.) "For this step, 'it is not necessary to follow the normal procedures of document authentication.' [Citation.]” (Id.)

Here, Defendant has provided the Agreement it submits was signed by Plaintiff after employment commenced and therefore meets the first step in this analysis.

"If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement." (Gamboa, supra, 72 Cal.App.5th at 165.) “The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.” (Id.)

In Gamboa, the Court of Appeal found that the plaintiff “met her burden on the second step by filing an opposing declaration, saying she did not recall the agreement and would not have signed it if she had been aware of it: ‘I do not remember these documents at all .... Had I been made aware of the existence of an arbitration agreement, and been explained its provisions, I would not have signed any such documents.’” (Gamboa, supra, 72 Cal.App.5th at 167.)

Here, there is no declaration by Plaintiff indicating they did not sign the Agreement, or the other onboarding documents.

Therefore, the Court finds an agreement to arbitrate between the parties.

Facts – Scope of Agreement

The Agreement expressly applies to “any claim, dispute, and/or controversy…” including “all disputes, whether based on tort, contract, statute…”

Authority and Analysis – Scope of Agreement

Based on the claims pled in the complaint under the Labor Code and Business and Professions Code, the Court finds the claims at issue here are within the scope of the Agreement.

Facts – FAA Application

The Agreement states that any disputes:

“…shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act (9 U.S.C §§ 1, etseq.) in conformity with the procedures of the California Arbitration Act (Cal Code Civ. Proc. Sec. 1 280 et seq., including section 1 283.05 and all of the Act’s other mandatory and permissive rights to discovery)”

Authority and Analysis – FAA Application

The party asserting the FAA applies to an agreement has “the burden to demonstrate FAA coverage by declarations and other evidence.” (Hoover v. American Income Life Ins.Co. (2012) 206Cal.App.4th 1193, 1207; see Shepard v. Edward Mackay Enterprises, Inc. (2007) 148Cal.App.4th 1092, 1101)

“The FAA applies to contracts that involve interstate commerce (9 U.S.C. §§ 1, 2), but since arbitration is a matter of contract, the FAA also applies if it is so stated in the agreement.” (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 963.)

Here, there is no challenge to the application of the FAA to the Agreement.

Facts – Defenses to Enforcement – Unconscionability

Plaintiff does, however, challenge enforcement of the Agreement, arguing it is unconscionable.

In support, Plaintiff notes the Agreement is adhesive as presented in the employment context, is preprinted, and was not the product of negotiation between the parties and that this establishes a degree of baseline procedural unconscionability.

Further, Plaintiff argues that that the Agreement is substantively unconscionable because its scope is overly broad, there is a lack of mutuality, there is an indefinite duration, that the Agreement attempts to require arbitration for sexual harassment claims, that the Agreement contains an unenforceable waiver of PAGA claims and that severance cannot cure these issues.

Authority and Analysis – Defenses to Enforcement – Unconscionability

The inquiry into unconscionability consists of two prongs: A contract will be revoked if it is both procedurally unconscionable and substantively unconscionable. (Armendariz v. Foundation Health Psychcare Service, Inc. (2000) 24 Cal.4th 82, 102.) Procedural and substantive unconscionability need not be present to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Id. at 114.)

Procedural Unconscionability

“‘Procedural unconscionability’ concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. It focuses on the factors of oppression and surprise. The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party. The component of surprise arises when the challenged terms are ‘hidden in a prolix printed form drafted by the party seeking to enforce them.’” (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.)

The Court also considers whether circumstances of the contract’s formation created such oppression or surprise that closer scrutiny of its overall fairness is required. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126-127.) “The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney.” (Id.) As OTO recognizes, the pressure exerted on a standard employee to accept an adhesive arbitration agreement as a condition of employment is “particularly acute,” which indicates oppression. (Id. at 127.)

“An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power on a take-it-or-leave-it basis. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245.) Arbitration contracts imposed as a condition of employment are typically adhesive. (Armendariz, supra, 24 Cal.4th at 114-115; Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.) But the fact that an agreement is adhesive is not, alone, sufficient to render it unconscionable. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1561.) “[A] compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a ‘take it or leave it’ basis.” (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.)

Here, the Court agrees that the Agreement at issue has some degree of procedural unconscionability as a preprinted form provided to an employee, that the Agreement appears to be a condition of employment and that the Agreement was not the product of negotiation.

Substantive Unconscionability

“Substantive unconscionability occurs when a contract, particularly, contracts of adhesion, impose terms “that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. All of these formulations point to the central idea that the unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party. Unconscionable terms impair the integrity of the bargaining process or otherwise contravene the public interest or public policy or attempt to impermissibly alter fundamental legal duties.” (OTO, L.L.C. v. Kho, supra, 8 Cal. 5th at 129–30, internal quotations and citations omitted.)

Armendariz sets forth elements of essential substantive fairness as follows:

(1) provide for a neutral arbitrator:

(2) provide for adequate discovery;

(3) require the arbitrator to issue a written decision that permits limited judicial review;

(4) provide for the same remedies that would otherwise be available to the employee in court;

(5) not require the employee to bear costs unique to arbitration; and

(6) provide a “modicum of bilaterality” between the employer and employee. (Armendariz, supra. 24 Cal 4th at 102-113, 117-118.)

Scope and Duration

Here, the Agreement states it applies to “any claim, dispute, and/or controversy that either I may have against my Worksite Employer… or that my Worksite Employer may have against me arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, compensation by, or any other association with my Worksite Employer shall be submitted to and determined exclusively by binding arbitration…”

Plaintiff cites to Cook v. University of Southern California (2024) 102 Cal.App.5th 312, where the court found agreement was overbroad in scope because it required arbitration of "all claims, whether or not arising out of Employee's University employment, remuneration or termination." (Id. at 321.) The court found the term substantively unconscionable as it "required Cook to arbitrate claims that are unrelated to her employment with USC." (Id.)

The Cook court contrasted its clause with the one in Roman v. Superior Court (2009) 172 Cal.App.4th 1462. In Roman, the clause at issue stated it applied to “all disputes and claims arising out of the submission of this application," and “all disputes . . . which might arise out of my employment with the company.” (Id. at 1467.) Cook noted: "In Roman, unlike here, the arbitration clause in question was expressly limited to claims arising from the employee's job application and subsequent employment." (Cook, supra, 102 Cal.App.5th at 323.)

Here, the requirement to arbitrate claims concerning “any other association” with Defendant renders this clause overbroad in scope in line with Cook and distinguishable from Roman.

As to the duration, the Agreement appears to apply indefinitely. Read together with the scope of the Agreement noted above, the reasonable interpretation of this term is that it applies indefinitely. (See Cook, supra, 102 Cal.App.5th at 325 ["…the arbitration agreement was unconscionable because it survived indefinitely following Cook's termination from USC") While the agreement in Cook could not be revoked except for the president of USC signing it, there is no limit on the duration here where post-employment claims are within the scope of the Agreement.

As such, the Court finds the duration and scope substantively unconscionable.

Mutuality

Cook also examined the issue of mutuality, noting “The agreement requires Cook to arbitrate any and all claims she may have against USC 'or any of its related entities, including but not limited to faculty practice plans, or its or their officers, trustees, administrators, employees or agents, in their capacity as such or otherwise.' However, the agreement does not require USC's 'related entities' to arbitrate their claims against Cook." (Cook, supra, 102 Cal.App.5th at 326.) The court concluded “This confers a benefit on USC and its broadly defined 'related entities' that is not mutually afforded to Cook.” (Id. at 327.)

Here, Plaintiff notes the Agreement defines “Worksite Employer” as Defendant and requires arbitration of claims by Plaintiff against Defendant and “their respective owners, directors, officers, managers, employees, agents, subsidiaries, and parties affiliated with their employee benefits and health plans.” However, the Agreement does not require the Defendant’s “respective owners, directors, officers, managers, employees, agents, subsidiaries, and parties affiliated with their employee benefits and health plans” to bring such claims against Plaintiff in arbitration.

The Court agrees the Agreement lacks mutuality in line with Cook.

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

Here, the Agreement seeks to require arbitration of any claims of harassment, without carving out claims for sexual harassment.

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 or “EFAA” mandates that “no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” (Title 9 of the United States Code section 402, subdivision (a).)

Here, although no harassment claim is alleged, this is irrelevant, as an agreement is reviewed for substantive unconscionability at the time it was entered into and is not otherwise dependent upon the claims asserted. (Najarro v. Superior Court (2021) 70 Cal.App.5th 871, 882. [as to PAGA waivers and the lack of a PAGA claim])

The Agreement’s failure to carve out sexual harassment claims renders this portion substantively unconscionable.

Blanket Waiver of Collective Actions

Finally, Plaintiff argues that the term “all claims that I may have, of have had in the past at any time, against my Worksite Employer must be brought in my individual capacity and not as a plaintiff or claim member in any purported class action, collective action or representative action proceeding” is an unenforceable waiver of PAGA claims.

In Viking River, the United States Supreme Court held that, under an agreement permitting such, a PAGA cause of action may be divided into individual and representative claims and that the individual claims may be ordered to arbitration: "PAGA authorizes any 'aggrieved employee' to initiate an action against a former employer 'on behalf of himself or herself and other current and former employees' to obtain civil penalties that previously could have been recovered only by the State in an [Labor Workforce and Development Agency] enforcement action." (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 645.) The "individual PAGA claim" is the claim for the violations suffered by the aggrieved employee and the "representative PAGA claim" is the PAGA claim arising out of events involving other employees. (Id. at 648.)

The Viking River decision “left undisturbed” and “intact” both of the rules from Iskanian, supra, 59 Cal.4th 348 that (1) prohibited categorical waivers of the right to bring a PAGA action in any forum and (2) prohibited waivers of PAGA claims on behalf of other employees, i.e., non-individual or representative claims. (Adolph, supra, 14 Cal.5th at 1117-1118.)

However, the United States Supreme Court held that the third rule, which prohibited the "'division of PAGA actions into individual and non-individual claims through an agreement to arbitrate'" was preempted by the FAA. (Id. at 1118.)

Specifically, the Viking River Court stated:

"The agreement between Viking and Moriana purported to waive 'representative PAGA claims. Under Iskanian, this provision was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in that manner. But the severability clause in the agreement provides that if the waiver provision is invalid in some respect, any portion that remains valid must still be 'enforced in arbitration.' Based on this clause, Viking was entitled to enforce the agreement insofar as it mandated arbitration of Moriana's individual PAGA claim." (Id. at 1924-1925.)

As summarized by Adolph: "The high court explained that an anti-splitting rule 'unduly circumscribes the freedom of parties to determine "the issues subject to arbitration" and "the rules by which they will arbitrate," [citation], and does so in a way that violates the fundamental principle that "arbitration is a matter of consent."' (Viking River, at p. 659.) Requiring parties to adjudicate a PAGA action entirely in one proceeding, the high court said, 'compels parties to either go along with an arbitration in which the range of issues under consideration is determined by coercion rather than consent, or else forgo arbitration altogether. Either way, the parties are coerced into giving up a right they enjoy under the FAA.' (Viking River, at p. 661.) Thus, Viking River requires enforcement of agreements to arbitrate a PAGA plaintiff's individual claims if the agreement is covered by the FAA." (Adolph, supra, 14 Cal.5th at 1118-1119.)

“There is no individual component to a PAGA action because '"every PAGA action . . . is a representative action on behalf of the state."' [Citation.]" (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 87.) The term "individual" refers to those claims brought by a plaintiff as a representative of the State and which seek to recover civil penalties under PAGA for Labor Code violations experienced by the plaintiff. (See Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 648 [referring to these claims as "Type A" claims].) The term “non-individual” refers to those claims brought by a plaintiff as a representative of the State and which seek to recover civil penalties under PAGA for Labor Code violations experienced by employees other than the plaintiff. (Galarsa, at 649 [referring to these claims as "Type O" claims].)

As summarized by the California Supreme Court in Adolph, an agreement that is covered by the FAA may require arbitration of "alleged Labor Code violations personally sustained by a PAGA plaintiff — so-called 'individual' claims." (Adolph, supra, 14 Cal.5th at 1114, 1119.) "'[W]hen an appropriate arbitration agreement exists'" and "a plaintiff has filed a PAGA action comprised of individual and non-individual claims," the trial court must "'bifurcate and order [the] individual PAGA claim[] to arbitration.'" (Id. at 1126, 1123.) In this circumstance, the "order compelling arbitration of [the] individual claim[] does not strip the plaintiff of standing to litigate non-individual claims [i.e., claims on behalf of other employees] in court." (Id. at 1123) Instead, "'the individual PAGA claim[] in arbitration remain[s] part of the same lawsuit as the representative claims remaining in court.'" (Id. at 1126.) The plaintiff would thus be "'pursuing a single PAGA action "on behalf of [himself or herself] and other current or former employees," albeit across two fora.' [Citation.]" (Id.)

Here, however, there is an intent to split the claims by the reference in the same sentence to individual claims, as required under Viking River. As such, the Court does not find this term unconscionable.

Severance

Courts have discretion to sever unconscionable clauses and enforce the remainder of the contract. (Civ. Code, § 1670.5, subd. (a); Armendariz, supra, 24 Cal.4th at p. 1244.)

There is a strong preference for courts to sever unconscionable provisions unless unconscionability permeates the entire agreement. (De Leon v. Pinnacle Property Management Services, LLC (2021) 72 Cal.App.5th 476, 492.) However, if "the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced." (Armendariz, supra, 24 Cal.4th at p. 124.) But if "the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate." (Id.)

Here, the Agreement provides for severance, stating “If any term, provision, or portion of this Agreement is declared void or unenforceable it shall be severed, and the remainder of this Agreement shall be enforceable.”

Here, while the Court could strike the reference to harassment to cure the EFAA issue, the Court finds it cannot cure the overbreadth of the scope of the arbitration term, the indefinite duration or mutuality issues via severance. “An arbitration agreement can be considered permeated by unconscionability if it contains more than one unlawful provision . . . Such multiple defects indicate a systematic effort to impose arbitration not simply as an alternative to litigation, but as an inferior forum that works to the employer's advantage." (Dougherty, supra, 47 Cal.App.5th at 107.) The Court will not rewrite the scope and duration terms of the Agreement nor add parties bound by the Agreement to cure the mutuality issue.

The Court having found some procedural unconscionability, finds sufficient substantive unconscionability to prevent enforcement of the arbitration term. Therefore, the Court denies the motion.

Re: Lopez, Roselia vs. Selene Finance, L.P.

Case No.: VCU329543

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Motion to Set Aside

Tentative Ruling: No documents appear filed in connection with this motion. Therefore, the Court takes the hearing off calendar.

Re: Delgadillo, Tobias vs. Ruiz Foods Exports, Inc.

Case No.: VCU317124

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Motion to Compel Arbitration

Tentative Ruling: No documents appear filed in connection with this motion. Therefore, the Court takes the hearing off calendar.

Re: Jasmin Megana Delgado, Jacquelin vs. Ruiz Food Products, Inc. et al

Case No.: VCU320097

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Motion to Compel Arbitration

Tentative Ruling: No documents appear filed in connection with this motion. Therefore, the Court takes the hearing off calendar.

Re: Garges, Alicia vs. Fox, Robert G.

Case No.: VCU323968

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Demurrer

Tentative Ruling: To sustain the demurrer with leave to amend as to (1) Deceit, (2) False Promise Fraud, (3) Rescission, and (8) Retaliation; Plaintiff shall have ten (10) days to file an amended complaint as to these causes of action; To overrule the demurrer as to (4) Trespass, (5) Nuisance, (6) Negligence and (7) Breach of Contract.

Facts

In this matter, Plaintiffs sue Defendants Robert G. Fox and Stephanie L. Fox. Trustees of the Fox Family Trust, for (1) Deceit, (2) False Promise Fraud, (3) Rescission, (4) Trespass, (5) Nuisance, (6) Negligence, (7) Breach of Contract and (8) Retaliation.

Plaintiff alleges they are residential tenants of 5637 W Seeger Court Visalia, CA 93277 pursuant to a written rental agreement with Defendants, that the agreement contained an implied warranty of habitability, quiet enjoyment and good faith and fair dealing. (Complaint ¶¶1-5.) Further, that Civil Code § 1941.1(a) and Health & Safety Code § 17920.3 provide that a residential building is deemed untenable to the extent to which it contains any nuisance. (Complaint ¶6.)

Additionally, that Civil Code § 1942.5 and common law prevents retaliation by Defendants for Plaintiffs’ exercising of rights to complain about habitability conditions, nuisances, and any other rights under law. (Complaint ¶7.)

Plaintiffs allege Defendants knew or should have known of “to electrical issues, pool maintenance failures, and pest infestations” and otherwise failed to disclose these issues based upon the special relationship of landlord and tenant. (Complaint ¶¶8, 9.)

Specifically, Plaintiff allege that prior to entering into the lease, in or around July 2023, Defendants promised a fully functional swimming pool with regular pool maintenance service and that such a promise was a material inducement for Plaintiffs to enter the Lease, as the pool increased the rental value of the Premises. (Complaint ¶10.) Further, that as inducement to enter the lease, Defendants “promised that the pool would be maintained and clean, but Defendants never intended to fulfill this promise, and made that false promise solely to defraud Plaintiffs into entering the Lease.” (Complaint ¶11.)

Plaintiffs allege additional habitability defects:

a. Old, overcharged electrical panel with improper breakers and no safety switch;

b. Non-functional pool pump and sweep;

c. Flickering power outages affecting half the house;

d. No GFCI outlet near the pool;

e. Inoperable garage door opener with exposed wires;

f. Pool pump and filter with exposed wiring;

h. Infestations of black widows, ants, cockroaches, and bees upon move-in” (Complaint ¶13.)

Plaintiffs allege further that, upon move in, the pool was not maintained as promised and was unusable and that Defendants failed to address electrical and other habitability defects. (Complaint ¶14.)

Further that “Defendants engaged in a pattern of trespass into the Premises, to which Plaintiffs objected, violating Plaintiffs’ rights to privacy, exclusive occupancy, and quiet enjoyment, including unannounced visits by Defendants on or about July 15, 2024, April 28, 2025, and April 29, 2025.” (Complaint ¶15.)

Additionally, that Plaintiffs began reporting issues February 25, 2024 related to the above. (Complaint ¶16.)

Further, that additional issues arose during the tenancy, including:

a. Ongoing electrical issues;

b. Pool maintenance failures causing green water and black algae growth;

c. Pool leak causing 3 inches of water loss weekly;

d. Unusable pool due to contamination or excessive chemicals;

e. Continued pest infestations; f. Severe mosquito problem due to stagnant pool water;

g. Unidentified organisms in the pool.

h. Missing screen on living room slider door,

i. Bent window screen in a bedroom;

j. Hole in master bedroom wall with exposed wires;

k. Large hole in garage wall leading to attic with exposed wires;

l. Non-functional wall switch in living room.” (Complaint ¶17.)

Plaintiffs allege further that the failure to maintain the pool and electrical issues described above “caused unsafe and uninhabitable conditions, including potential electrical hazards and health risks from pests and contaminated pool water.” (Complaint ¶18.)

Additionally that “Each of the habitability defects was also a nuisance in that it was hazardous to health, offensive to the senses, or obstructed the free use of the Premises, which Defendants refused to abate.” (Complaint ¶19.)

Plaintiffs offered to arrange repairs themselves but Defendants declined or failed to act and “To the extent Defendants attempted repairs, they permitted workers to access the Premises without obtaining Plaintiffs’ consent, in violation of Civil Code § 1954.” (Complaint ¶¶20, 21.)

Additionally, Plaintiffs allege that during the tenancy, “disputes arose concerning Defendants’ failure to perform legal duties, including:

a. Failure to correct uninhabitable conditions (electrical, pool, pests);

b. Trespassing into the Premises without proper notice;

c. Harassing Plaintiffs during visits;

d. Inadequate or non-existent repairs to pool and electrical systems;

e Hostile behavior, including blaming Plaintiffs for non-payment despite proof (e.g., July 3, 2024);

f. Failure to respond to thousands of communications regarding defects.” (Complaint ¶23.)

Further, that “As Plaintiffs began to exercise their rights, Defendants engaged in an escalating pattern of retaliation, maliciously intended to punish and oppress Plaintiffs, including accusing Plaintiffs of non-payment of rent, and sending a legal notice with incorrect payment amounts on or around June 24, 2025” and that “The retaliation culminated in Defendants’ demands for rent despite unresolved habitability issues, pressuring Plaintiffs to pay in full to fund repairs.” (Complaint ¶¶24, 25.)

As to each cause of action noted above, Plaintiffs incorporate these allegations.

Defendants demurrer to the entirety of the complaint regarding the incorporation of the allegations and demurrer to each cause of action for failure to allege facts sufficient to state a cause of action.

No opposition appears filed and Defendants have filed a notice of non-opposition.

Authority and Analysis

To start, the Court does not find that the incorporation of general allegations in support of the individual causes of action to render the complaint uncertain. “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

As such, the Court examines each cause of action.

(1) Deceit and (2) False Promise - Fraud

The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation; (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

Additionally, fraud must be pled with particularity which "necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered." (Id. at 645.) "The same elements comprise a cause of action for negligent misrepresentation, except there is no requirement of intent to induce reliance." (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) "Each element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged." (Id.)

The Court agrees that, as to these fraud-based causes of action, the complaint lacks the requisite specificity. The pleading of “Defendants” does not permit either Defendant to properly evaluate against whom the allegations are directed. The complaint’s allegations do not indicate how the alleged false statements were communicated to Plaintiffs. Further, the general incorporation of all allegations, as to the fraud-based causes of action, renders these causes of action uncertain, as the Court cannot discern which promises are alleged to be false.

Therefore, the Court sustains the demurrer to the first and second causes of action with leave to amend.

(3) Rescission

"When a party has been induced by fraud or mistake to enter into a contract, the party may have the contract set aside and seek restitution of those benefits lost to him by the transaction." (Merced County Mut. Fire Ins. Co. v. Cal. (1991) 233 Cal. App. 3d 765, 771.)

Here, the basis for rescission appears to be fraud and therefore the Court sustains the demurrer here with leave to amend.

(4) Trespass

"The elements of trespass are: (1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm." (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262.) "The essence of the cause of action for trespass is an 'unauthorized entry' onto the land of another." (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 16.) "The cause of action for trespass affords protection for a possessory, not necessarily an ownership interest." (Allen v. McMillion (1978) 82 Cal.App.3d 211, 218.)

Here, the complaint alleges Plaintiffs’ tenancy right to possess the Property, specific dates where Plaintiffs allege Defendant Robert Fox entered the premises without either prior notice or consent, that Plaintiffs were harmed via emotional distress and that Defendants, through these acts, proximately caused the alleged harm. Plaintiff cites Civil Code section 1954 which restricts the ability of Defendants, as landlords, to enter the Property.

Therefore, the Court overrules the demurrer as to trespass.

(5) Nuisance

This cause of action appears to sound in private nuisance.

The elements of private nuisance are: (i) plaintiff occupied the property; (ii) defendant, by acting or failing to act, created a condition or permitted a condition to exist that: was harmful to health, or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (iii) the condition interfered with plaintiff's use or enjoyment of the land; (iv) that plaintiff did not consent to defendant's conduct; (v) that an ordinary person would be reasonably annoyed or disturbed by defendant's conduct; (vi) plaintiff was harmed; (vii) defendant's conduct was a substantial factor in causing plaintiff's harm; and (viii) the seriousness of the harm outweighs the public benefit of defendant's conduct. (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534;CACI 2021.)

"Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code § 3479.) "A nuisance may be both public and private, but to proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land." (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.)

Here, Plaintiffs allege “a. Pest infestations (black widows, ants, cockroaches, bees, opossums). b. Mosquitoes due to stagnant, green pool water. c Unusable pool with black algae and unidentified organisms. d. Electrical hazards from exposed wires and power outages” constitute a nuisance as harmful health and/or offensive to the senses, interfered with Plaintiffs’ enjoyment of the land, that Plaintiffs did not consent, that an ordinary person and that Defendants failed to remedy these issues. (Complaint ¶¶18, 19, 38, 49.) This appears sufficient to allege private nuisance for these specific allegations.

Therefore, the Court overrules the demurrer as to nuisance.

(6) Negligence

The elements of a negligence claim include: (1) legal duty owed to plaintiffs to use due care, (2) breach of duty, (3) causation, and (4) damage. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

A duty of care exists as to the landlord to provide habitable premises. (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 918..) The complaint sufficiently alleges a breach of that duty and damages due to “failing to repair electrical systems, maintain the pool, and address pest infestations.” (Complaint ¶53.)

As such, the Court finds a sufficient pleading as to negligence and overrules the demurrer.

(7) Breach of Contract

"In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession or the premises." (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.)

The elements of a cause of action for breach of the implied warranty of habitability “are the existence of a material defective condition affecting the premises’ habitability, notice to the landlord of the condition within a reasonable time after the tenant’s discovery of the condition, the landlord was given a reasonable time to correct the deficiency, and resulting damages.” (Erlach v. Sierra Asset Servicing, LLC (2014) 226 Cal.App.4th 1281, 1297.)

“The implied warranty of habitability recognizes ‘the realities of the modern urban landlord-tenant relationship’ and imposes upon the landlord the obligation to maintain leased dwellings in a habitable condition throughout the term of the lease.” (Peterson v. Superior Court (1995) 10 Cal.4th 1185, 1204.) “The implied warranty of habitability ... gives a tenant a reasonable expectation that the landlord has inspected the rental dwelling and corrected any defects disclosed by that inspection that would render the dwelling uninhabitable. The tenant further reasonably can expect that the landlord will maintain the property in a habitable condition by repairing promptly any conditions, of which the landlord has actual or constructive notice, that arise during the tenancy and render the dwelling uninhabitable.” (Id. at 1205-1206.)

Here, Plaintiffs sufficiently allege that the pest, pool and electrical issues constitute materially defective conditions affecting habitability, that they provided notice of these issues to Defendants within a reasonable time, that Defendants failed to correct the issues and that Plaintiffs were damaged.

This is sufficient to survive demurrer as to this cause of action and therefore the Court overrules the demurrer.

(8) Retaliation

Under Civil Code section1942.5(a):

"If the lessor retaliates against the lessee because of the exercise by the lessee of the lessee's rights under this chapter or because of the lessee's complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the payment of rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:

(1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, has provided notice of a suspected bed bug infestation, or has made an oral complaint to the lessor regarding tenantability.

(2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.

(3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.

(4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability.

(5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor.” (Civ. Code, §1942.5, subd. (a).)

Here, Plaintiffs allege Defendants harassed Plaintiffs and threatened “…legal action in response to Plaintiffs” lawful exercise of their rights to complain about habitability defects and request repairs.” (Complaint ¶63.) However, Plaintiffs do not allege that they were not in default of rent or that any retaliation occurred within 180 days of the various events noted above.

As such, the Court sustains the demurrer with leave to amend as to the eighth cause of action.

Re: LVNV Funding LLC vs. Pine, Brian

Case No.: VCL327093

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Plaintiff’s Motion for Judgment on the Pleadings

Tentative Ruling: To grant the motion and enter judgment as requested.

Facts and Analysis

On October 17, 2025, Plaintiff initiated this action for a single cause of action for breach of contract, alleging damages in the amount of $9,455.85.

On January 26, 2026, Defendant filed an answer to the complaint on Form PLD-C-010 checking the box 3(b) admitting all statements of the complaint and denying no statements contained in the complaint.

On February 19, 2026, Plaintiff filed this motion for judgment on the pleadings, seeking entry of judgment in the amount of $9,860.85, consisting of the principal amount of $9,455.85 plus costs of $405.00. (Declaration of Lucero ¶10.)

Meet and Confer

Plaintiff states that counsel attempted to contact Defendant regarding this Motion in accordance with Code of Civil Procedure section 439(a). “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (Code Civ. Proc., § 439, subd. (a).)

Authorities and Analysis

A motion for judgment on the pleadings (MJOP) is used to challenge a pleading in the same manner as a general demurrer, i.e., the challenged pleading (1) establishes that the court does not have subject matter jurisdiction or (2) does not allege facts sufficient to support a cause of action or defense.(Code Civ. Proc. § 438(c)(1); International Assn. of Firefighters v. City of San Jose (2011) 195 Cal.App.4^th 1179,1196.) Like a demurrer, the grounds for the motion must appear on the face of the pleading or be based on facts capable of judicial notice, including court records. (Stencel Aero Engineering Corp. v. Superior Court (1976) 56 Cal.App.3d 978, 986, and fn. 6.)

A motion for judgment on the pleadings may be based upon “matters properly the subject to judicial notice.” Saltarelli & Steponovich v. Douglas (1995) 50 Cal.App.4th 1, 5. Judicial notice may be taken “of a party’s admissions or concessions, but only in cases where the admissions “cannot reasonably be controverted,’ such as in answer to interrogatories or request for admissions, or in affidavits and declaration filed on the party’s behalf.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Here, the answer filed by Defendant sufficiently provides the basis to grant this motion, as Defendant admits the allegations of the complaint.

The Court, therefore, grants the motion for judgment on the pleadings and will enter judgment as requested.

Re: Leyva, Elvis Quezada vs. Wespak, Inc.

Case No.: VCU328871

Date: April 7, 2026

Time: 8:30 A.M.

Dept. 2-The Honorable Bret D. Hillman

Motion: Defendant’s Motion to Compel Arbitration

Tentative Ruling: To grant the motion. A Case Management Conference regarding the status of arbitration is set for February 5, 2027 at 8:30 AM in Department 2.

Background Facts

In this matter, Plaintiff sues Defendant Wespak for class action violations of the Labor Code and for unfair competition.

Defendant, as a responsive pleading, files this motion to strike the class claims and compel arbitration of the remaining claims based upon an arbitration agreement purportedly signed in handwriting by Plaintiff.

Facts – Agreement to Arbitrate

In support, Defendant provides the declaration of its Director of Human Resources, who indicates familiarity with the onboarding procedures and retention of employee records for Defendant, including those applicable to Plaintiff during his employment from January 10, 2025 through May 5, 2025. (Declaration of Hernandez ¶¶2, 3.) Declarant indicates that during the relevant period, Hernandez supervised another individual who conducted the standard onboarding process, including providing Plaintiff with an Arbitration Agreement (“Agreement”). (Declaration of Hernandez ¶4.) Declarant states Plaintiff executed the onboarding documents including the Agreement, and returned them to be placed in the personnel file and maintained by Defendant. (Declaration of Hernandez ¶4.) Declarant attaches a true and correct copy of the Agreement as Exhibit A. (Declaration of Hernandez ¶4 – Ex. A.)

In opposition, Plaintiff does not dispute executing the Agreement.

Authority and Analysis – Agreement to Arbitrate

"However, the burden of production may shift in a three-step process." (Gamboa, supra, 72 Cal.App.5th at. 165.)

"First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at p. 165.) "The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.]" (Id.) "For this step, 'it is not necessary to follow the normal procedures of document authentication.' [Citation.]” (Id.)

Here, Defendant has provided the Agreement it submits was signed by Plaintiff. (Declaration of Hernandez ¶4 – Ex. A.) This is sufficient as to this first step.

As noted above, there appears to be no dispute that Plaintiff executed the Agreement.

Facts – Scope of Agreement

The Agreement expressly applies to “…any claim, dispute and/or controversy… arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with WesPak…whether based on tort, contract, statutory, or equitable law…”

Authority and Analysis – Scope of Agreement

The Agreement, therefore, covers the claims at issue in the complaint.

Facts and Analysis – FAA Application

The Agreement states:

“I agree that the arbitration and this Agreement shall be controlled by the Federal Arbitration Act ("FAA" or 9 U.S.C. Sec. 1 et seq.). I understand and agree that WesPak is engaged in interstate commerce.”

Declarant further states “WesPak is engaged in interstate commerce. WesPak conducts business that affects interstate commerce, including business activitics involving out-of-state vendors, customers, and/or goods moving in interstate commerce.” (Declaration of Hernandez ¶8.)

In general, the FAA "governs arbitration provisions in contracts that involve interstate commerce." (Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1263, 147 Cal. Rptr. 3d 717.) Title 9 of the United States Code section 2, ("the primary substantive provision of the FAA" as noted by Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 384) provides in part:

"A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract . . . ." (9 U.S.C. § 2,; see Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265, 277 ["involving commerce" broadly construed].)

Further, "'the term “[e]nforcement of this agreement to arbitrate shall be governed by the [FAA]'" has been found to properly invoke the FAA. (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 343.) The applies the same here regarding the language that the Agreement “shall be controlled” by the FAA.

Plaintiff does not challenge that the FAA applies to the agreement via interstate commerce and the language above, but argues the transportation workers exemption applies.

Facts – Transportation Workers Exception

In support, Plaintiff’s counsel states Defendant “…operates as a vertically integrated grower, packer, and shipper of agricultural commodities. These products include, among others, stone fruits (such as peaches, plums, nectarines, and apricots), citrus (including oranges, lemons, and mandarins), and table grapes.” (Declaration of Falakassa ¶3.) Further, that Defendant’s operations include local agricultural production, large-scale packing, cold storage, and coordinated distribution of these goods to customers throughout the United States and international markets. (Declaration of Falakassa ¶4.)

Additionally, that Defendant “…represents that it “grows and packs fruit that is perfectly suited to the climate and soils of California’s San Joaquin Valley,” including a wide array of citrus, stone fruit, and table grapes, and that it provides “a full range of premium fresh produce and convenient sourcing for [its] export and retail customers.” (Declaration of Falakassa ¶6.)

Further, that Defendant “…operates multiple modern packing lines, maintains extensive pre-cooling facilities, and utilizes approximately 62,000 square feet of cold storage to “quickly and efficiently prepare [products] for shipment.” (Declaration of Falakassa ¶7.)

Further that “WesPak is registered with the Federal Motor Carrier Safety Administration (FMCSA) as both a carrier and broker and is classified as operating in both interstate and intrastate commerce.” (Declaration of Falakassa ¶8.)

Additionally, that “WesPak, through its affiliated entity WesPak Sales in Dinuba, California, appears on the United States Department of Agriculture’s National Shippers Contact List. This directory identifies companies that regularly ship goods within and from the United States and is utilized by freight brokers and carriers to facilitate interstate shipping transactions.” (Declaration of Falakassa ¶9.)

Plaintiff, therefore, argues this indicates Defendant’s goods are distributed beyond California, are consistent with high volume distirubtion operation serving interstate and international markets, that directly participates in, and facilitates, the transportation of goods across state lines.

Plaintiff declares employment as a “Box Handler and Palletizer” who was “primarily responsible for loading and unloading pallets, assembling boxes, sorting products, and preparing goods for shipment. I regularly moved products within the warehouse and helped prepare them to be shipped out to customers. My job duties primarily involved physically handling and preparing goods for shipment through Defendant’s distribution process. Specifically, I was responsible for loading and unloading pallets from trucks, assembling and packing boxes with agricultural products, organizing and sorting goods within the warehouse, and moving materials to designated staging areas for outbound shipment. I regularly worked with products such as citrus, stone fruit, and grapes, which were prepared for delivery to customers both within and outside the State of California.” (Declaration of Plaintiff ¶5.)

Additionally, that “As part of my daily responsibilities, I ensured that products were properly packaged, palletized, and ready for transport, and I regularly assisted in the movement of goods that were ultimately shipped through Defendant’s interstate distribution network” and “The products I handled included fruits such as grapes, peaches, nectarines, plums, oranges, lemons, and other agricultural goods. These products were packaged and prepared for shipment to locations both inside and outside of California.” (Declaration of Plaintiff ¶¶6, 7.)

In reply, Defendants object to the declaration of Falakassa on grounds of failure to provide a foundation for the facts asserted and lack of personal knowledge. The Court agrees, in part, and will sustain the objections to Nos. 1, 2, 3, 8, 9, and 12. The Court overrules the objections to Nos. 4-7, 10, and 11 as to the declaration of Falakassa.

Defendants further object to Plaintiff’s declaration on similar grounds. However, the Court finds Plaintiff’s declaration sufficient to overcome these objections as to Plaintiff’s duties. The Court overrules the objections to the declaration of Plaintiff.

Further, Defendants direct the Court to the March 5, 2026 declaration of Hernandez (filed in opposition to the motion to continue this motion) which states Plaintiff was designated as a “"PD302 - Box Handler and Palletizer," a packinghouse position within WesPak's packinghouse operations” and “A palletizer's role is to take packed boxes as they come down the conveyor and place those boxes onto a pallet positioned on the ground, stacking and organizing boxes on the pallet until a full pallet is complete” and does not include “loading carrier vehicles. Palletizers do not load trucks or other carrier vehicles, and they do not perform shipping or dispatch function,” “routing shipments,” “operating as a deck loader,” or “traveling with or transporting goods” (Declaration of Hernandez – March 5, 2026 - ¶¶5-11.)

Authority and Analysis – Transportation Workers Exception

Section 1 of the FAA exempts from its coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." (9 U.S.C. §1.) The exemption applies to only to transportation workers engaged in interstate or foreign commerce. (Bissonnette v. LePage Bakeries Park St., LLC (2024) 601 U.S. 246, 252-253.) A transportation worker is defined as “…one who is actively engaged in the transportation of good across borders via the channels of foreign or interstate commerce." (Id. at 256 [internal citations omitted].) The worker "…must at least play a direct and necessary role in the free flow of goods across borders." (Id.)

"A transportation worker need not work in the transportation industry to fall within the exemption from the FAA provided by §1 of the Act." (Id.) Conversely, not every worker who works in the transportation industry is an exempt transportation worker. (Southwest Airlines Co. v. Saxon (2022) 596 U.S. 450, 460.) The focus for purposes of the exemption is not the industry the worker's employer is engaged in, but instead the individual worker's job duties. (Bissonnette, supra, 610 U.S. at 256.)

Further, a worker does not have to personally transport goods across state lines to qualify as a transportation worker. (Saxon, supra, 596 U.S. at 458-459.)

In Saxon, the plaintiff was a ramp supervisor who trained and supervised teams of ramp agents who physically loaded and unloaded cargo on and off airplanes that travel across the county. (Id.) The plaintiff declared that she "frequently" loaded and unloaded cargo alongside the ramp agents. (Id.) The Supreme Court held that workers who frequently load and unload cargo to and from vehicles that travel in interstate commerce are "transportation workers" under the FAA exemption. (Id. at 456.)

In Ortiz v. Randstad Inhouse Services, LLC (9th Cir. 2024) 95 F.4th 1152, the plaintiff worked at a warehouse that received products from foreign shippers and then prepared them for further distribution across state lines. (Id. at 1157-1158.) Ortiz's job was to transport packages to different areas of the warehouse and to help prepare the packages for shipment, all within the warehouse. (Id. at 1158.)

The Ninth Circuit concluded that the plaintiff in Ortiz was a transportation worker in interstate commerce, noting that his "job description met all three benchmarks laid out in Saxon. Both Ortiz and Saxon fulfilled an admittedly small but nevertheless 'direct and necessary' role in the interstate commerce of goods: Saxon ensured that baggage would reach its final destination by taking it on and off planes, while Ortiz ensured that goods would reach their final destination by processing and storing them while they awaited further interstate transport." (Id. at 1162.)

The Ninth Circuit continued:

"Both were also 'actively engaged' and 'intimately involved with' transportation: Saxon handled goods as they journeyed from terminal to plane, plane to plane, or plane to terminal, while Ortiz handled them as they went through the process of entering, temporarily occupying, and subsequently leaving the warehouse--a necessary step in their ongoing interstate journey to their final destination. [Citation.] Both were actively engaged in the interstate commerce of goods. If Saxon is an exempt transportation worker, Ortiz is, too." (Id.)

The Court contrasts the transporting of goods in interstate commerce as in Ortiz and Saxon with the work related to assembling boxes and palletizing produce products here. Plaintiff appears to have participated in an internal process of finalizing pallets and did not load, transport of ship products akin to the facts of Ortiz and Saxon. It is uncontroverted that Plaintiff did not perform trucking or dispatch functions, determine routes or coordinate logistics. He did not work on the loading dock or move with shipped goods. It appears everything plaintiff did was before the goods entered the stream of interstate commerce. In both Ortiz and Saxon, the exempt workers appeared to take goods already in the stream and physically move them further through their journey in interstate commerce. Although arguably the products at issue here are placed into the stream of interstate commerce, Plaintiff did not play a necessary part in facilitating “continued movement” in interstate commerce akin to Ortiz and Saxon, as opposed to the initial placement into the stream. Therefore, the Court does not find the transportation exception applies.

Authority and Analysis – Class Action Waiver

As the FAA applies, the class action waiver is enforceable. (Viking River Cruises v. Moriana (2022) 596 U.S. 639, 651 ["'a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so'"]; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352 [holding class action waivers are enforceable under FAA and California rule to contrary preempted].)

Therefore, the Court applies the class action waiver and dismisses the class claims.

Facts - Defenses to Enforcement – Unconscionability

In support of procedural unconscionability, Plaintiff notes the Agreement is a preprinted, standardized agreement drafted by an employer, presented to an employee, on a take it or leave it basis and without a meaningful opportunity to negotiate.

As to substantive unconscionability, Plaintiff points to overbreadth as to the scope and duration of the Agreement, a wholesale PAGA waiver, and an improper preclusion of administrative remedies.

Authority and Analysis – Defenses to Enforcement – Unconscionability

Procedural Unconscionability

Here, the Court agrees there exists a degree of procedural unconscionability here on the grounds that the Agreement is a contract of adhesion, presented to an employee by an employer on a preprinted form without its terms subject to negotiation by the parties. The Agreement was presented with other onboarding documents. Therefore, the Court agrees there is a “slight to modest” degree of procedural unconscionability.

Substantive Unconscionability

Armendariz sets forth elements of essential substantive fairness as follows:

(1) provide for a neutral arbitrator:

(2) provide for adequate discovery;

(3) require the arbitrator to issue a written decision that permits limited judicial review;

(4) provide for the same remedies that would otherwise be available to the employee in court;

(5) not require the employee to bear costs unique to arbitration; and

(6) provide a “modicum of bilaterality” between the employer and employee. (Armendariz, supra. 24 Cal 4th at 102-113, 117-118.)

Scope and Duration

Here, the Agreement states:

“I AGREE THAT ANY AND ALL CONTROVERSIES,CLAIMS, OR DISPUTES WITH ANYONE (INCLUDINGTHE COMPANY ANDANY.EMPLOYEE, SUPERVISOR, OR SHAREHOLDERS) ARISING OUT OF, RELATING TO, OR RESULTING FROM MY EMPLOYMENT WITH WESPAK, INC. OR TERMINATION OF MY EMPLOYMENT WITH WESPAK, INC. OR ANY OF ITS AFFILIATED ENTITIES, SHALL BE SUBJECT TO BINDING ARBITRATION UNDER THE ARBITRATION RULES SET FORTH IN FEDERAL ARBITRATION ACT ("FAA").”

Further, the Agreement applies to:

“…any claim, dispute, and/or controversy that either party may have against one another…which would otherwise require or allow resort to any court or other governmental dispute resolution forum between myself and WesPak (or its owners, directors, officers, managers, employees, agents, and parties affiliated with its employee benefit and health plans) arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with WesPak, whether based on tort, contract, statutory, or equitable law, or otherwise.”

Here, while the first section quoted above appears to properly limit arbitrable claims to those tethered to employment, the second section appears to expand the claims to “…or other association with WesPak, whether based on tort, contract, statutory, or equitable law, or otherwise” beyond the employment relationship.

Additionally, this term extends the duration of the Agreement to an indefinite period of time because other associations with Defendant could occur outside of the employment of Plaintiff or termination thereof.

PAGA Waiver

The Agreement, as to the waiver of class and representative claims states:

“This means that an arbitrator will hear only my individual claims and does not have the authority to fashion a proceeding as a class or collective action or to award relief to a group of employees in one proceeding. Thus, WesPak has the right to defeat any attempt by me to file or join other employees in a class, collective, representative, or joint action lawsuit or arbitration (collectively "class claims"). I and WesPak both agree that any challenge to the prohibition against consolidating the claims of others into a single proceeding, whether as a class, a representative action or otherwise, is a gateway issue and shall be determined by the Superior Court; and any substantive claims shall not be decided by the arbitrator until after the gateway determination is made by the Court. I further understand that I will not be disciplined, discharged, or otherwise retaliated against for exercising my rights under Section 7 of the National Labor Relations Act, including but not limited to challenging the limitation on a class, collective, representative, or joint action. I understand and agree that all claims brought under this binding arbitration agreement shall be brought in my individual capacity. This binding Agreement shall not be construed to allow the consolidation or joinder of other claims involving other employees or permit such claims to proceed as a class action, collective action, private attorney general action or any similar representative action… . By signing this agreement, I am agreeing to waive any rights that I may have to bring an action on a class, collective, private attorney general, representative or other similar basis.”

Specifically, the Viking River Court stated:

Here, the Court finds there is an intent to split claims into individual Type A claims and representative Type O claims as this paragraph references “individual claims” and “individual capacity” and therefore is permitted under

Administrative Remedies

As to administrative remedies, the Agreement states:

“I understand and agree that nothing in this agreement shall be construed so as to preclude me from filing any administrative charge with, or from participating in any investigation of a charge conducted by, any government agency such as the Department of Fair Employment and Housing and/or the Equal Employment Opportunity Commission.”

Plaintiff argues that this language “restricts access to critical statutory administrative remedies, including Berman hearings before the California Labor Commissioner” because the Agreement only carves out the DFEH and EEOC.

However, the Court does not read this term in such a narrow fashion. Read as a whole, the term states nothing precludes Plaintiff from filing any administrative charge with any government agency. That the Agreement provides examples such as the DFEH and EEOC does not, in the Court’s opinion, create an exhaustive list precluding other filings with other agencies. Additionally, the Court notes “…the fact that arbitration supplants an administrative hearing cannot be a basis for finding an arbitration agreement unconscionable.” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal. 4th 1109, 1146.)

As such, the Court does not find the administrative remedies term unconscionable.

Severance

Courts have discretion to sever unconscionable clauses and enforce the remainder of the contract. (Civ. Code, § 1670.5, subd. (a); Armendariz, supra, 24 Cal.4th at p. 1244.)

Here, the Agreement does not contain a severance provision.

However, the Court finds it can cure the unconscionable term “or other association with WesPak” that improperly expands the scope of the Agreement by simply striking it. Having done so, the Court finds no substantive unconscionability and will enforce the Agreement.

Judicial Branch of California

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