Tentative Rulings

The Tentative Rulings for Tuesday, April 1, 2025, are:

Re:                Keller, Rodger vs. County Of Tulare

Case No.:  VCU296056

Date:           April 1, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Five (5) Motions To Compel Further / Admit Admissions as to Plaintiff Melodee Krenk's Discovery Responses

Tentative Ruling: Given the March 19, 2025 verified amended responses to this discovery, the Court orders sanctions  of $1,750 imposed against Plaintiff Krenk and Plaintiff’s counsel of record, jointly and severally, due no later than fifteen (15) days from the date of this hearing. Supplemental discovery responses as to documents to be produced should be provided no later than April 16, 2025.

Facts

On January 26, 2024, the County served Plaintiff Krenk with Form Interrogatories -  General, Set One, Form Interrogatories – Employment, Set One, Special Interrogatories, Set One,  Request for Production of Documents, Set One and Requests for Admissions, Set One

After a number of extensions, on September 27, 2024, Plaintiff’s counsel served responses to the County’s discovery noted above. The responses contained a mixture of substance and objection. No responses were verified by Plaintiff at that time. The responses were signed by counsel.

After entry of a protective order, beginning on October 3, 2024 and lasting until October 15, 2024, the eight Plaintiffs began producing responsive documents on a rolling basis, totaling roughly 5,600 pages of documents. The Plaintiffs did not identify which Plaintiff was producing the documents or to which requests for production the documents corresponded. Furthermore, for each production, Plaintiffs made a joint privilege log that failed to state which Plaintiff was claiming the privilege and to which request for production the privilege was being asserted.

The parties extended the deadline to bring the motion to compel to January 22, 2025.

On January 22, 2025, the County filed, amongst others, the following motions as to Plaintiff Krenk:

1. Motion to Compel Further Responses - Form Interrogatories -  General, Set One;
2. Motion to Compel Further Responses - Form Interrogatories – Employment, Set One;
3. Motion to Compel Further Responses - Special Interrogatories, Set One; 
4. Motion to Compel Further Responses -Request for Production of Documents, Set One; and
5. Motion to Deem Admissions Admitted as to Request for Admissions, Set One.

In opposition, Plaintiff indicates that amended, verified responses were provided March 19, 2025 and therefore the motions to compel are moot. Plaintiff argues that the County failed to properly meet and confer and sanctions requests are improperly noticed, inflated and unwarranted.

Authority and Analysis

As an initial matter, the Court notes that the discovery responses are unverified by Plaintiff Krenk. “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 635-636.)

However, objections to interrogatories and demands for production are not required to be verified because “objections are legal conclusions interposed by counsel, not factual assertions by a party.” (Blue Ridge Insurance Co. v. Superior Court (1988) 202 Cal.App.3d 339, 345.) The initial responses also contained objections, signed by Plaintiff's attorney as required by Code of Civil Procedure sections 2030.250(c) (interrogatories), section 2031.250(c) (production) and section 2033.240(c) (admissions) and therefore preserved.

The lack of verification initally, however, means that no responses were provided under Appleton and the Court does not find the 45-day time period under a motion to compel further to have started, nor does it find a meet and confer requirement applicable here. The Court in its discretion elects to treat the motions to compel further responses as motions to compel initial responses pursuant to Code of Civil Procedure sections 2030.290 and 2031.300  (See Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 [“The proposition that a trial court may construe a motion bearing one label as a different type of motion is one that has existed for many decades. ‘The nature of a motion is determined by the nature of the relief sought, not by the label attached to it. The law is not a mere game of words.’…The principle that a trial court may consider a motion regardless of the label placed on it by a party is consistent with the court's inherent authority to manage and control its docket. (Code Civ. Proc., §§ 128, subd. (a), 187.)”] [citations omitted].) The goal of discovery is to ascertain truth, encourage settlement, and avoid surprise. (Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal. 2d 355, 376.) Dealing with these motions and the overall discovery process engaged in by the parties in this matter best effectuates these goals.

Form Interrogatories -  General, Set One, Form Interrogatories – Employment, Set One and Special Interrogatories, Set One

The next issue is the impact of the supplemental signed and verified responses by Plaintiff to interrogatories provided March 19, 2025.

Code of Civil Procedure section 2030.290 states:

If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under Section 2030.230, as well as any objection to the interrogatories, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2030.210, 2030.220, 2030.230, and 2030.240.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The party propounding the interrogatories may move for an order compelling response to the interrogatories.

Section 2030.220 states

(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

(b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.

"Parties must 'state the truth, the whole truth, and nothing but the truth in answering written interrogatories' [citation]." (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 76.) (See also Weil & Brown, Civil Procedure Before Trial, 8:1104 (citations omitted).) There are two purposes to a discovery verification: First, to make the responses admissible and second, to provide a witness qualified to testify concerning the sources for the discovery responses. (Melendrez v. Superior Court (2013) 215 Cal.App.4th 1343, 1349.)

The March 19, 2025, responses and verifications appear proper under the standard set forth above.

However, as discussed below, the Court does not find these motions moot by the service of the amended and properly verified responses on March 18, 2025, as to the issue of sanctions.

Request for Production of Documents, Set One

Similar to the above, section 2031.300 states:

If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, the following rules shall apply:

(a) The party to whom the demand for inspection, copying, testing, or sampling is directed waives any objection to the demand, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

(b) The party making the demand may move for an order compelling response to the demand.

The March 19, 2025 responses appear properly verified. However, as discussed below, the Court does not find these motions moot by the service of the amended and properly verified responses on March 19, 2025, as to the issue of sanctions. Plaintiff’s responses indicted that they “will” produce additional documents. Supplemental discovery responses as to document production should be provided no later than April 16, 2025.

Requests for Admissions, Set One

As with the above, the Court starts failure to provide verified responses on September 27, 2024.

Section 2033.280 states:

If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply:

(a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 2018.010). The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied:

(1) The party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230.

(2) The party’s failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

As to motions to deem admissions admitted, the process statutorily authorized differs from motions to compel responses to interrogatories and requests. Rather, section 2033.280 continues, stating:

(b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010).

(c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.

Here, Plaintiff Krenk has served amended, verified responses on March 19, 2025, prior to this hearing and the Court, under subsection (c) must examine substantial compliance with Section 2033.220 as to these supplemental responses.

The March 19, 2025 amended responses and verification appear to be in substantial compliance of section 2033.220 requirements and therefore, the Court does not deem the admissions admitted under 2033.280(c).

However, under subsection (c), the issue of sanctions is not moot by the service of substantially compliant responses prior to the hearing date.

Sanctions

The Court notes that, despite the denial of the motion to deem admissions admitted, “It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc §2033.280(c).)

Further, the service of further responses to interrogatories and requests in the face of a motion to compel responses, after initially failing to verify the responses until March 19, 2025 after these motions were filed, does not moot the sanctions issue.

Under California Rule of Court, rule 3.1348(a) entitled “Sanctions despite no opposition” the sanctions issue remains unresolved:

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.

(See also Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 407 [“Nothing in the text of section 2030.290 suggests that section 2030.290 ceases to apply merely because a party serves a tardy response.”]

Under Code of Civil Procedure sections 2033.280(c) (Admissions), 2030.290(c) (Interrogatories) and 2031.300(c) (Requests for Production), the Court imposes sanctions in the total amount of amount of $1,750, representing one hour for each motion at the rate of $350 per hour. Sanctions are imposed jointly and severally against Plaintiff Krenk and counsel of record due within fifteen (15) days from the date of this hearing.

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:                Garcia Manzo, Daniel vs. Ruiz Food Products, Inc.

Case No.:   VCU309612

Date:           April 1, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion to Compel Arbitration

Tentative Ruling: To deny the motion.

Background Facts

On June 3, 2024, Plaintiff filed this complaint against Defendant Ruiz for a single cause of action under PAGA, Labor Code section 2698, et seq.

On July 11, 2024, Defendant Ruiz answered the complaint, asserting, amongst other affirmative defenses, that this matter was subject to arbitration.

On February 28, 2025, Defendant filed this motion to compel arbitration. In support, Defendant presents the declaration of its custodian of records.

Facts – Agreement to Arbitrate

Defendant indicates that “An arbitration agreement is presented to an employee by Company personnel in the ordinary course of business” and “After they are dated and signed, arbitration agreements are collected via hand collection, mail, or email and the records created are contemporaneously stored in a physical file particularly identified with the employee's name and employment identification number.” (Declaration of Valenzula ¶3.) Defendant indicates that, as to Plaintiff, his personnel file was maintained by Company's Human Resources Department at Company's Dinuba, California facility, located at 501 South Alta Ave., Dinuba California 93618. (Declaration of Valenzula ¶3.) Defendant indicates that, after a search was conducted, the arbitration agreement (“Agreement”) attached as Exhibit A is a true and correct copy of the Agreement which was signed at or near the time Plaintiff dated the document. (Declaration of Valenzuela ¶3 – Ex. A.) The Court observes both an English and Spanish version of the Agreement appear signed by Plaintiff on September 9, 2021. (Exhibit A.)

In opposition, Plaintiff objects to the declaration of Valenzula in total, but does not otherwise contest the Agreement or Plaintiff’s signature thereon.

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).) 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 on or about September 9, 2021. (Exhibit A.)

"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.)

Here, under the authority cited above, attachment of the Agreement is sufficient to authenticate it. Plaintiff has not challenged the Agreement’s authenticity under Gamboa and the Court overrules the objections to the declaration submitted by Defendant.

Therefore, the Court finds an agreement to arbitrate exists.

Facts – Scope of Agreement

The Agreement states:

“Except as otherwise provided this Agreement applies to any dispute, past, present or future, arising out of or related to [Plaintiffs] (sometimes "you" or "your"):

(a) employment or other relationship with Ruiz Food Products, Inc. ("Company") or relationship with any of its parents, subsidiaries or other related entities, directors, members, shareholders, employees, clients, agents, representatives, successors and assigns ( each of which are intended third party beneficiaries of this Agreement), and/or

(b) termination of employment, regardless of its date of accrual.

Except as otherwise provided herein, this Agreement also applies, without limitation, to disputes with any entity or individual arising out of or related to the application for employment, background checks, privacy, the employment relationship or the termination of that relationship, contracts, trade secrets, unfair competition, compensation, classification, mm1mum wage, seating, expense reimbursement, overtime, breaks and rest periods, termination, retaliation, discrimination or harassment and claims arising under the Fair Credit Reporting Act, Defend Trade Secrets Act, Title VII of the Civil Rights Act of 1964 (subject to the next to last paragraph of this Section 1, if applicable), 42 U.S.C. §1981, Rehabilitation Act, Civil Rights Acts of 1866 and 1871, the Civil Rights Act of 1991, 8 U.S.C. § 1324b (unfair immigration related practices), 41 U.S.C. § 4712, the Pregnancy Discrimination Act, Equal Pay Act, Americans with Disabilities Act, Age Discrimination in Employment Act, Family and Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act ( except for claims for employee benefits under any benefit plan sponsored by the Company and (a) covered by the Employee Retirement Income Security Act of 1974 or (b) funded by insurance), Affordable Care Act, Genetic Information Non-Discrimination Act, Uniformed Services Employment and Reemployment Rights Act, Worker Adjustment and Retraining Notification Act, Older Workers Benefits Protection Act of 1990, Occupational Safety and Health Act, Consolidated Omnibus Budget Reconciliation Act of 1985, False Claims Act, state or local statutes or regulations addressing the same or similar subject matters, and all other federal, state or local statutory, common law and any other legal claims arising out of or relating to any aspect of your employment and/or the termination of that employment (including, but not limited to, claims of whistleblowing or retaliation, or under common law, such as contract and tort claims).”

The Arbitration Agreement, any such covered claim noted above, or any legal dispute or controversy "arising out of, relating to, or concerning, the scope, validity, enforceability or breach of this Agreement, shall be resolved by final, and binding arbitration in accordance with the Employment Arbitration Rules of the American Arbitration Association ("AAA Rules") then in effect, and not by court or jury trial ... " (Exhibit A.)

Further, the Agreement states it is “governed by the Federal Artiration Act (‘FAA’) (9 U.S.C. §§ 1 et seq.)” (Exhibit A.)

Relevant here, the Agreement states “Private attorney general representative actions brought on behalf of the state under California labor Code are not arbitrable, are outside the scope of this Agreement and may be maintained in a court of law, but any claim on your own behalf as an aggrieved employee for damages allegedly incurred (as opposed to representative claims for civil penalties) shall nevertheless be arbitrable.” (Exhibit A.) Further, the Agreement states “Both the Company and you agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others.” (Exhibit A.)

Authority and Analysis – FAA Application

The party asserting that the Federal Arbitration Act (“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) 206 Cal.App.4th 1193, 1207.)

By expressly designated the FAA as the law governing the Arbitration Policy, the parties “adopted the FAA – all of it – to govern their arbitration.” (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122; Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 355.) Plaintiff does not challenge the FAA’s application.

The terms of use at issue in this case expressly state that the FAA shall apply.

Authority and Analysis – Scope of Agreement and PAGA

Defendant seeks to split the PAGA claim and compel the “individual” portion to arbitration pursuant to the Agreement, while staying the “representative portion” pending arbitration.

To start, the Court notes “[t]here 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].)

Prior the Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, PAGA claims could not be waived, could not be split, and could not be compelled to arbitration pursuant to Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348. (Viking River at 1916.)

“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.” (Id. at 1924-25.) Therefore, “the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.”  (Id. at 1924.) 

That rule referred to above in Iskanian was that “PAGA claim ‘lies’ completely ‘outside the FAA’s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship.’  [Citation.]  It is . . . a dispute between an employer and the state, which alleges directly or through its agents—either the Labor and Workforce Development Agency or aggrieved employees—that the employer has violated the Labor Code.”  (Iskanian, supra, 59 Cal.4th at 395-396.)

Viking River therefore holds that the PAGA claim may be split into Type A and Type O claims and that, pursuant to a proper agreement, that the Type A claim may be compelled to arbitration under the FAA and that the Type O claim remains and cannot be submitted to arbitration. (Viking River 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.)

The court in Mondragon v. Sunrun Inc. (2024) 101 Cal. App. 5th 592 carved out the entire PAGA action (Type A and Type O) claims, finding “representative claims filed under” PAGA applied to both all such claims are “representative.”

In Mondragon, the carve out provision excluded claims brought “as a representative of the state of California as a private attorney general under” the Private Attorney General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.)” and the trial court denied the motion to compel Plaintiff’s causes of action under PAGA to arbitration. (Id. at 599-601.)

The Mondragon court concluded that “There is no other language in the arbitration agreement suggesting the parties intended to treat PAGA claims seeking penalties for violations regarding Mondragon (i.e., individual PAGA claims) separately from PAGA claims seeking penalties for violations regarding other employees (i.e., non-individual PAGA claims). The PAGA carve-out is not reasonably susceptible to the interpretation…” that it applies only to Type A “individual” claims. (Id. at 613.)

The Mondragon court noted that Viking River’s analysis did not change this result and instead supports it:

“If anything, Viking River confirms Mondragon's interpretation that the carve-out applies to both individual and non-individual claims…Here, the language of the PAGA carve-out more closely tracks the language describing representative claims in the first sense—claims brought “as a representative of the state of California.” Therefore, under Viking River, the carve-out included (and the agreement to arbitrate excluded) “every PAGA claim.” (Viking River, at p. 648.)” (Id. at 614-615.)

Here, the Court examines the Agreement’s language as to the PAGA claim, noting first it states “Private attorney general representative actions brought on behalf of the state under California labor Code are not arbitrable, are outside the scope of this Agreement and may be maintained in a court of law, but any claim on your own behalf as an aggrieved employee for damages allegedly incurred (as opposed to representative claims for civil penalties) shall nevertheless be arbitrable.”

The language of the Agreement broadly excludes “representative actions” which the Court has addressed above, noting that all PAGA claims are “representative.”

While the Agreement does mention individual claims (“claim on your own behalf as an aggrieved employee” it discusses “damages allegedly incurred (as opposed to representative claims for civil penalties),” the Court notes that PAGA claims, both Type A and Type O, seek recovery of civil penalties as opposed to damages, even as to Type A claims. “Penalties under PAGA are unique to that statute. ‘The civil penalties recovered on behalf of the state under the PAGA are distinct from the statutory damages to which employees may be entitled in their individual capacities.’ (Iskanian, supra, 59 Cal.4th at p. 381)” (Provost v. YourMechanic, Inc. (2020) 55 Cal.App.5th 982, 990.) Therefore, the Court does not consider the distinction between a claim on an employee’s own behalf for damages (unavailable in a PAGA action) and “representative claims for civil penalties” to properly evidence an intent to split the PAGA claim pursuant to Viking River or otherwise compel the Type A PAGA claim to arbitration.

Last, the language in the waiver as to class or representative actions does not compel a different analysis. That portion of the Agreement states “Both the Company and you agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others.” Here, Plaintiff has not sought to adjudicate a collective claim in arbitration, but rather the entirety of the PAGA claim (Type A and Type O) in a civil court.

The Court finds the terms and language utilized in this Agreement similar enough to Mondragon to reach the same result: The Agreement carves out the entire PAGA claim from arbitration.

Therefore, the Court denies the motion.

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:                Harris, Daliila vs. Redwood Family Care Network Inc.

Case No.:   VCU314305

Date:           April 1, 2025

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, finding formation of the agreement to arbitrate between the parties and delegating the remainder of the issues to the arbitrator based on the delegation clause.

Facts

In this matter, Plaintiff sues Defendants Redwood Family Care Network, Inc. and Ashley Newlin for whistleblower retaliation, disability discrimination, retaliation, failure to provide a workplace free of discrimination, harassment and retaliation, wrongful termination, failure to provide reasonable accommodation, negligence, intentional infliction of emotional distress, failure to provide timely meal and rest periods, and failure to furnish accurate wage statements.

After answering the complaint, Defendants jointly moved to compel this matter to arbitration based upon an electronically signed Mutual Agreement to Arbitrate All Claims Agreement (“Agreement”)

The Agreement appears to contain a delegation clause in Paragraph 3, as cited below. Therefore, the Court examines first the impact of the delegation clause.

Facts - Delegation Clause

As noted above, the Agreement states:

“3. Except as provided below, the arbitrator shall have the authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this agreement, including without limitation any claim that the agreement is void or voidable.”

The Court may treat an argument as waived where no legal authority supporting the argument is cited. (Hood v. Gonzales (2019) 43 Cal.App.5th 57, 73-74.) “Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned. [Citation.]” (Anastos v. Lee (2004) 118 Cal.App.4th 1314, 1318 [finding party cited no applicable statute or case authority supporting their contention].)

Defendant’s objections to Plaintiff’s declaration opposing the motion are overruled, as are Plaintiff’s objections to the declaration of Tim Heaslip, as discussed later in this ruling.

Authority and Analysis – Delegation Clause

Malone v. Superior Court (2014) 226 Cal.App.4th 1551 summarizes the applicable analysis with respect to delegation clauses:

“A delegation clause requires issues of interpretation and enforceability of an arbitration agreement to be resolved by the arbitrator. Delegation clauses have the potential to create problems of circularity. For example, suppose an arbitration agreement delegates the issue of enforceability to the arbitrator. If the arbitrator concludes that the arbitration agreement is, in fact, not enforceable, this would mean that the entire agreement, including the delegation clause, is unenforceable-a finding that would undermine the arbitrator's jurisdiction to make that finding in the first place. For this reason, courts have treated the delegation clause as a separate agreement to arbitrate solely the issues of enforceability…

“For this reason, when a party is claiming that an arbitration agreement is unenforceable, it is important to determine whether the party is making a specific challenge to the enforceability of the delegation clause or is simply arguing that the agreement as a whole is unenforceable. If the party's challenge is directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable. In contrast, if the party is making a specific challenge to the delegation clause, the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable). (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70)”

Here, Plaintiff has not challenged the delegation clause itself and, rather, has challenged the entire agreement, arguing formation issues and unconscionability. The Agreement’s delegation clause delegates, amongst other things, enforceability to the arbitrator. Therefore, the Court, pursuant to the above, severs out the delegation clause, leaving it to the arbitrator to determine if the agreement is enforceable. Caremark, LLC v. Chickasaw Nation (9th Cir. 2022) 43 F.4th 1021, 1029 [“In other words, a delegation clause is essentially a mini-arbitration agreement, nested within a larger one.”].)

Therefore, the Court notes its limited review of the formation of the Agreement as follows:

“…the issues reserved to the courts for decision ‘always include’ whether an arbitration agreement was formed, even in the presence of a delegation clause. [citations omitted]. That principle follows from the fundamental premise that arbitration is "strictly 'a matter of consent.'" [citations omitted] ‘To take the question of contract formation away from the courts would essentially force parties into arbitration when the parties dispute whether they ever consented to arbitrate anything in the first place." [citations omitted]...Accordingly, a court ‘should order arbitration of a dispute only where the court is satisfied that neither the formation of the parties' arbitration agreement nor (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability or applicability to the dispute is in issue.” (Id. at 1029-1030.)

Facts – Formation

Defendants indicate Plaintiff was an employee of Defendant Redwood from February 1, 2023 until September 17, 2023. (Declaration of Oddo ¶4.)

Defendant Redwood’s Talent Acquisition Manager indicates he is the duly authorized custodian of records for Redwood and that, at the time Plaintiff was hired, Redwood utilized DocuSign for electronic communications and execution of documents electronically. (Declaration of Heaslip ¶¶2, 3, 5.) The Court notes employees must choose to opt in or out of the Mutual Arbitration Agreement as part of the hiring process. (Declaration of Heaslip ¶4.)

The use of DocuSign involves sending a document to an employee for signature, designation of what fields need to be signed by a recipient, the recipient creating an electronic signature (by either drawing one in the DocuSign software, or selecting one generated by DocuSign), completing all required fields, and inserting the electronic signature in the designated areas. (Declaration of Heaslip ¶5.) The employee must then click a “Finish” button in the DocuSign software to finalize and insert the electronic signatures. (Declaration of Heaslip ¶5.) Once signed, the employee’s signature is assigned a unique identifying code, and the Onboarding/Recruiting Specialist, who is facilitating the onboarding, or the Manager, is notified via email that the employee signed the document. (Declaration of Heaslip ¶5.) The onboarding documents, including the Mutual Arbitration Agreement, are not sent to any email address other than the one provided by the applicant. (Declaration of Heaslip ¶6.)

Redwood’s DocuSign account indicates that on January 13, 2023, Redwood sent Plaintiff the initial onboarding packet, including the Mutual Arbitration Agreement, Plaintiff opened the packet on January 13, 2023 at 1:04 pm and Plaintiff completed signing the packet on January 13, 2023 at 2:44 p.m. (Declaration of Heaslip ¶9.) The Agreement was assigned the DocuSign envelope number C334D3537FFE45BE8EA81BFEF0D91020. (Declaration of Heaslip ¶9.) Redwood has provided a copy of the executed Agreement, the certificate of completion form DocuSign and the envelope and document history associated with the execution on January 13, 2023. (Declaration of Heaslip ¶¶9, 10, 11 - Exs. A, B and C.) Collectively, these documents confirm Plaintiffs personal email address, daliilaharris@gmail.com, was used to authenticate her identity in accessing the envelope and executing the Agreement via DocuSign. (Declaration of Heaslip ¶12.)

In opposition, Plaintiff indicates that during the onboarding process, she was asked to sign a number of documents via DocuSign. (Declaration of Plaintiff ¶3.) However, Plaintiff states she does not recall being presented with the Agreement at the email address noted above. (Declaration of Plaintiff ¶3.)

Authority and Analysis – Formation

“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.)

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, 13 Cal. App. 5th 1152, 1160 (2017); 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 v. Longwood Management Corp. (2001), 88 Cal.App.4th 215, 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 v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165.)“However, the burden of production may shift in a three-step process." (Id. 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, this burden is met through the attachment of Exhibit A, the Agreement.

“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.)

Here, Plaintiff states that does not recall being presented with or signing the Agreement. She does not deny that the email address discussed is hers and does recall signing the onboarding paperwork. (Declaration of Plaintiff ¶3.) From the exhibits to the Heaslip declaration, it appears the arbitration agreement was one of the first items in the onboarding email.

When an opposing party disputes that they signed an arbitration agreement electronically, the moving party has the burden of proving by a preponderance of the evidence that the electronic signature is authentic. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846; see also Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067; Espejo v. Southern Cal. Permanente Med. Group (2016) 246 Cal.App.4th 1047, 1060 ("[W]e conclude that defendants here met their initial burden by attaching to their petition a copy of the purported arbitration agreement bearing Espejo's electronic signature. Once Espejo challenged the validity of that signature in his opposition, defendants were then required to establish by a preponderance of the evidence that the signature was authentic."). The burden of authenticating an electronic signature is not great. (Fabian, supra, 42 Cal.App.5th at 1067.)

Authority and Analysis – Electronic Signature/Acceptance

Civil Code section 1633.9 addresses how a proponent of an electronic signature may authenticate the signature—that is, show the signature is, in fact, the signature of the person the proponent claims it is.” (Ruiz, supra, 232 Cal. App. 4th at 843.) An electronic record or signature is attributable to a person if it was “the act of the person.” (Civ. Code, § 1633.9(a).) The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or signature was attributable. (Civ. Code, § 1633.9(a).)

Specifically, a defendant properly authenticates the plaintiff’s electronic signature on an arbitration agreement by providing a declaration (1) detailing defendant’s security precautions regarding the transmission and use of the plaintiff’s username and password; and (2) detailing the steps an applicant would have to take to create the electronic record. (Espejo, supra, 246 Cal.App.4th at 1062.)

Espejo indicates that factors such as the privacy of an employee’s username, the requirement that the employee reset their password before accessing the system,  the existence of a signature line containing the signatory’s typed full name,  identification of the time the document was electronically signed, an IP address identifying the location where it was signed and the existence of a confirmation email support a finding that the agreement was signed. (Id. at 1052, 1053, 1062.)

Fabian, supra, 42 Cal.App.5th at 1067 concerned  the issue of a purported electronic signature obtained through the DocuSign service. There, the  plaintiff disputed signing the contract containing the arbitration term, noting that defendant’s declaration failed to show how the electronic signature could have only been placed on the agreement by plaintiff. (Id. at 1068.)

Specifically, the Fabian court noted defendant’s declaration “…did not make clear the meaning of the letters "DS" or the significance of the words "DocuSigned By:" that appear above Fabian's electronic initials and signature. Most importantly, [defendant’s declarant] did not explain how Fabian's electronic initials and signature were the "act of Fabian" by offering evidence that DocuSign assigned Fabian a unique "identity verification code" to initial and sign the Contract. [Defendant’s declarant] did not explain the significance of the 15-digit alphanumeric characters or the words "Identity Verification Code: ID Verification Complete" that appear below Fabian's electronic signature. By not providing any specific details about the circumstances surrounding the Contract's execution, [Defendant’s declarant] offered little more than a bare statement that Fabian "entered into" the Contract without offering any facts to support that assertion. This left a critical gap in the evidence supporting [defendant’s] petition.” (Id. at 1070.)

By contrast, the Fabian court examined Newton v. Am. Debt Servs (N.D. Cal. 2012) 854 F.Supp.2d 712, where “…the declarant in that case proved that the ‘docusigned’ electronic signature was the plaintiff's by explaining the process used to verify the signature. (Newton, supra, 854 F.Supp.2d at p. 731.) There, the defendant submitted a declaration stating that it sent a contract to the plaintiff using DocuSign, and that the plaintiff signed the Client Signature portion of the contract. (Ibid.) Once signed, the signature was assigned an identifying code, such as the one that appeared above the plaintiff's signature on the subject contract. (Ibid.)” (Fabian, supra, 42 Cal.App.5th at 1068-1069.)

Here, Defendant’s declaration in support explains the DocuSign process, including that on January 13, 2023, Defendant sent Plaintiff the onboarding packet, including the Agreement, that Plaintiff opened the packet and completed signing the packet approximately one hour and forty minutes later. The DocuSign process generated a unique number from which Defendant was able to examine its records to confirm the execution of the Agreement. Further, that Plaintiff’s personal email address noted above was utilized for all documents, including the Agreement. As Plaintiff does not dispute the use of DocuSign for other documents provided during the onboarding process, the Court finds a sufficient showing under the standards set forth by Fabian and Newton noted above that the Agreement was executed by Plaintiff.

As to Plaintiff’s objections to Defendant’s declaration in support of this motion, the Court finds the Agreement qualifies as a business record and was properly authenticated. The declaration states the Agreement was part of the regular course of business as it was part of the employment onboarding process, that it was executed at the time of Plaintiff’s hiring and that Heaslip is a new hire manager responsible for screening, recruiting of potential applicants and on boarding new employees, as well as overseeing the completion of audit files for Redwood, is the duly authorized custodian, that the record was kept in the regular course of business in a timely manner. The Court notes that employers in California are required to maintain employee personnel files during employment and for at least three years following an employee's termination, including the Agreement. (Lab. Code § 1198.5.)

Unconscionability – Delegation Clause

In Malone v. Superior Court (2014) 226 Cal.App.4th 1551, the court examined procedural and substantive unconscionability related to the delegation clause alone:

“The party resisting arbitration bears the burden of proving unconscionability. [Citations.] Both procedural unconscionability and substantive unconscionability must be shown, but ‘they need not be present in the same degree’ and are evaluated on ‘“a sliding scale.”’ [Citation.] ‘[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.’ [Citation omitted.] ‘Where there is no other indication of oppression or surprise, the degree of procedural unconscionability of an adhesion agreement is low, and the agreement will be enforceable unless the degree of substantive unconscionability is high.’ [Citation omitted.]” (Id. at 1561.)

Procedural Unconscionability – Delegation Clause

As to procedural unconscionability, Malone noted this element focuses on “…the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. [Citation omitted]” (Id.)

 “‘“Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form.”’ [Citation.]” (Citation omitted) When the contract is a contract of adhesion imposed and drafted by the party with superior bargaining power, the adhesive nature of the contract is “evidence of some degree of procedural unconscionability.” (Citation omitted) However, the fact that an agreement is adhesive is not, alone, sufficient to render it unconscionable. (Citation omitted)” (Id.)

Here, Plaintiff notes, Defendant required her to sign the Agreement without an opt out procedure. Even if the Court were to find some procedural unconscionability here, the Court notes, as to its limited review of the delegation clause below, no substantive unconscionability identified by Plaintiff.

Substantive Unconscionability – Delegation Clause

“Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided. [Citations.] A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be ‘so one-sided as to “shock the conscience.”’ [Citation.]” (citation omitted)” (Malone, supra, 226 Cal. App. 4^th at 1561)

Malone concluded that a substantively unconscionable delegation clause has three components: “(1) a delegation clause is outside the reasonable expectation of the parties; (2) delegation clauses are not bilateral; and (3) the arbitrator has a self-interest in finding the agreement arbitrable—both so that the arbitrator can be compensated for arbitrating the dispute on the merits, and so that the arbitrator will be considered for further arbitration assignments.” (Id. at 1563-1564.)

Here, Plaintiff has made no showing specific to the delegation clause’s unconscionability and therefore has not met the burden under Malone noted above.

Lacking substantive unconscionability, the Court grants the motion and delegates issues of enforceability, and others, to the arbitrator, pursuant to the Agreement’s delegation clause.

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:                 RENFRO, MARGIE M vs. PRIME TOWING & TRANSPORT, INC, et al         

Case No.:   PCU317211

Date:            April 1, 2025

Time:           8:30 A.M. 

Dept.           23-The Honorable Glade F. Roper

Motion:     Demurrer to Complaint

Tentative Ruling: To sustain the demurrer with leave to amend; Plaintiff shall have ten (10) days from this hearing to file an amended complaint; to deny the request for sanctions under section 128.5

Facts

At issue appears to be a 2008 Great Dane 28 foot trailer VIN 1GRAA56158K295746 (“Vehicle” or “Trailer”) (Complaint ¶1.) Plaintiff is Margie M Renfro, individual, doing business as Maria’s Market and alleges that she owns the Vehicle after purchase from “Renfro Auto” on May 2, 2024. (Complaint 2:22-24, 3:1.) It is alleged the Trailer was purchased from a company who filed bankruptcy. (Complaint 2:16-18.)

At some point, CHP is alleged to have “yellow tagged” the Vehicle, and towed it around May 3, 2024. (Complaint ¶¶2, 4.) Plaintiff alleges she was informed that Defendant Prime Towing towed the Trailer and had possession thereof. (Complaint ¶5.) It is alleged that Defendant Prime would not release items from the Trailer or the Trailer without a release from CHP. (Complaint ¶6.)

It is further alleged that CHP and Prime stated that Plaintiff did not own the Trailer. (Complaint ¶8.) Plaintiff attempted to retrieve the Trailer from Defendant Prime, including calling Defendant Prime’s owner, Defendant Delatorre, but the Trailer and access thereto, were not returned. (Complaint ¶¶9, 10, 11, 12.)

Plaintiff alleges further that DMV informed Plaintiff that “on October 4th, 2024 Prime Towing had done a lien and was the registered owner, but there was still time to reverse it; so they sent a certified letter, we objected and the lien is reversed per code.” (Complaint ¶12.)

It is further alleged that Prime failed to properly notify Plaintiff of the lien sale and that Prime made itself registered owner of the Tailer on October 4, 2024. (Complaint ¶18.)

It is further alleged “Plaintiff send [sic] a representative to the Defendants Prime Towing to retrieve a $300.00 dollar King Pin Lock from the Trailer and was denied entry to facility…” (Complaint 5:21-23/)

On these facts Plaintiff appears to allege causes of action for negligence, negligence per se (containing a number of counts), conversion, trespass to chattel, opposition to lien sale, and fraud. The Court notes the complaint is verified by Plaintiff, except to matters on information and belief as stated therein. The Court notes a number of illegible exhibits attached to the complaint.

Defendants demurrer to the complaint and each cause of action stated therein, as discussed below.

No opposition has been filed.

Authority and Analysis

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.)

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.)

Negligence and Negligence Per Se

To start, “…the doctrine of negligence per se is not a separate cause of action but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence." (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737-738, quotations, citations omitted.)

To establish a cause of action for negligence, plaintiff must plead and prove the following elements: Defendant owed a legal duty of care to plaintiff; defendant breached the duty (negligent act or omission); plaintiff was injured as a result (proximate or legal cause); and damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

"A legal duty 'may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship."' (Gu v. BMW of North America, LLC (2005) 132 Cal. App. 4th 195, 204, citations omitted.)

Count 1 - Vehicle Code section 14602.6

As noted by Defendants on demurrer, Vehicle Code section 14602.6 would appear to apply to instances where a peace officer determines that a person was driving a vehicle without a license, with a suspended license or without some other requirement. This section would not appear to establish a duty under the facts pled in this matter.

Count 2 – Unknown Code Section

Count 2 starts with a subsection (3) and continues with a subsection (b) of an unidentified code. The Court cannot ascertain whether this section applies and therefore finds it uncertain, ambiguous and unintelligible.

Count 3 – Civil Code 3071

Civil Code section 3071 provides, in pertinent part:

"(a) A lienholder shall apply to the department for the issuance of an authorization to conduct a lien sale pursuant to this section for any vehicle with a value determined to be over four thousand dollars ($4,000).…

(b) Upon receipt of an application made pursuant to subdivision (a), the department shall do all of the following:

(1) Notify the vehicle registry agency of a foreign state of the pending lien sale, if the vehicle bears indicia of registration in that state.

(2) By certified mail, send a notice, a copy of the application, and a return envelope preaddressed to the department to the registered and legal owners at their addresses of record with the department, and to any other person whose name and address is listed in the application.…

(4) If the Declaration of Opposition form is signed and returned to the department, the lienholder shall be allowed to sell the vehicle only if he or she obtains a court judgment, if he or she obtains a subsequent release from the declarant or if the declarant, cannot be served as described in subdivision (e).…

(f) Upon receipt of authorization to conduct the lien sale from the department, the lienholder shall immediately do all of the following:

(1) At least five days, but not more than 20 days, prior to the lien sale, not counting the day of the sale, give notice of the sale by advertising once in a newspaper of general circulation published in the county in which the vehicle is located. If there is no newspaper published in the county, notice shall be given by posting a Notice of Sale form in three of the most public places in the town in which the vehicle is located and at the place where the vehicle is to be sold for 10 consecutive days prior to and including the day of the sale.

(2) Send a Notice of Pending Lien Sale form 20 days prior to the sale but not counting the day of sale, by certified mail with return receipt requested, to each of the following:

(A) The registered and legal owners of the vehicle, if registered in this state.

(B) All persons known to have an interest in the vehicle.

(C) The department.…

(h) Following the sale of a vehicle, the person who conducts the sale shall do both of the following:

(1) Remove and destroy the vehicle's license plates.

(2) Within five days of the sale, submit a completed "Notice of Release of Liability" form to the Department of Motor Vehicles.

(i) The Department of Motor Vehicles shall retain all submitted forms described in paragraph (2) of subdivision (h) for two years.

(j) No lien sale shall be undertaken pursuant to this section unless the vehicle has been available for inspection at a location easily accessible to the public for at least one hour before the sale and is at the place of sale at the time and date specified on the notice of sale. Sealed bids shall not be accepted. The lienholder shall conduct the sale in a commercially reasonable manner.

(k) Within 10 days after the sale of any vehicle pursuant to this section, the legal or registered owner may redeem the vehicle upon the payment of the amount of the sale, all costs and expenses of the sale, together with interest on the sum at the rate of 12 percent per annum from the due date thereof or the date when that sum was advanced until the repayment. If the vehicle is not redeemed, all lien sale documents required by the department shall then be completed and delivered to the buyer.

(l) Any lien sale pursuant to this section shall be void if the lienholder does not comply with this chapter. Any lien for fees or storage charges for parking and storage of a motor vehicle shall be subject to Section 10652.5 of the Vehicle Code”

This section would not appear to establish a legal duty owed to Plaintiff for purposes of a negligence cause of action. Rather, it appears to operate to either validate or void a lien sale depending upon the performance or excuse of the requirements of the section.

In any event, no facts are stated under this cause of action as to the elements of negligence and no paragraph appears to integrate the prior or subsequent paragraphs.

Count 4 – Civil Code section 3068(a)

Subsection (a) of 3068 states

“(a) Every person has a lien dependent upon possession for the compensation to which the person is legally entitled for making repairs or performing labor upon, and furnishing supplies or materials for, and for the storage, repair, or safekeeping of, and for the rental of parking space for, any vehicle of a type subject to registration under the Vehicle Code, subject to the limitations set forth in this chapter. The lien shall be deemed to arise at the time a written statement of charges for completed work or services is presented to the registered owner or 15 days after the work or services are completed, whichever occurs first. Upon completion of the work or services, the lienholder shall not dismantle, disengage, remove, or strip from the vehicle the parts used to complete the work or services.”

In the Court’s view, Plaintiff has not sufficiently pled facts as to the elements of negligence under this subsection (a) as pled. Here, it is alleged within this count, that “Prime Towing wrongfully withheld the trailer from Plaintiffs; not sending the lien information; the tow information…to allow them to retrieve items from vehicle; check the conditions of the vehicle; and provide valid cost of the storage and tow; as well as the reason for the tow.”

Proper pleading requires a complaint to contain a "statement of the facts constituting the cause of action, in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a)(1).) These requirements force parties "to give fair notice of their claims to opposing parties so they can defend" and to "'"set forth the essential facts of [the] case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of [the] cause of action"'" (Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1384; Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.)

The allegations here are insufficient to establish what duty was owed by Defendants to Plaintiff, breach thereof, causation and some estimate of damages based on failing to allow retrieval of the items.

Therefore, the Court sustains the demurrer with leave to amend.

Count 5 - Civil Code section 3070

Section 3070 states, in relevant part:

(a) Whenever the possessory lien upon any vehicle is lost through trick, fraud, or device, the repossession of the vehicle by the lienholder revives the possessory lien but any lien so revived is subordinate to any right, title, or interest of any person under any sale, transfer, encumbrance, lien, or other interest acquired or secured in good faith and for value between the time of the loss of possession and the time of repossession.

(b) It is a misdemeanor for any person to obtain possession of any vehicle or any part thereof subject to a lien pursuant to this chapter by trick, fraud, or device.

(c) It is a misdemeanor for any person claiming a lien on a vehicle to knowingly violate this chapter.

Here, Plaintiff appears to misinterpret subsection (a) and (b) as to the loss of a lienholder’s lien via trick, fraud or device. A violation of subsections (b) involves recovery of the vehicle via trick, fraud or device causing the loss of the lienholders lien. Additionally, while subsection (c) would apply to the alleged conduct, it creates liability for a misdemeanor as opposed to civil liability.

Therefore, the Court sustains the demurrer as to this count.

Conversion

A cause of action for conversion requires the following elements: (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119.)

Here, Plaintiff alleges ownership of the Trailer, that Defendants towing of the vehicle and retention thereof was wrongful because they failed to provide notice to Plaintiff and noticed the prior registered owner, and it “caused Plaintiff harm.”

In the Court’s view, this is conclusory and speculative as to the damages element. As noted above, the prior paragraphs contained in the complaint are not integrated into this cause of action and pleading “caused Plaintiff harm” does not properly allege this element.

The Court sustains the demurrer to this cause of action

Trespass to Chattels

"[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property 'not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered.' [Citation.] 'Though not amounting to conversion, the defendant's interference must, to be actionable, have caused some injury to the chattel or to the plaintiff's rights in it. Under California law, trespass to chattels "lies where an intentional interference with the possession of personal property has proximately caused injury." [Citation.] In cases of interference with possession of personal property not amounting to conversion, "the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use." [Citations.] In modern American law generally, "[t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort" of conversion.' [Citation.] (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400-1401.)

The elements for trespass to chattel are: (1) Plaintiff owned/possessed/had a right to possess the personal property; (2) Defendants intentionally interfered with Plaintiff's use or possession of the personal property or intentionally damaged the personal property, (3) Plaintiffs did not consent; (4) Plaintiffs were harmed; and (5) Defendants' conduct was a substantial factor in causing Plaintiffs' harm. (CACI 2101.)

Here, Plaintiff appears to incorporate the allegations stated in prior paragraphs and pages of the complaint, which the Court finds too ambiguous and conclusory over a 19 page complaint that does not consistently state paragraph numbers.

"A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made." (People v. Lim (1941) 18 Cal.2d 872, 883.) "Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet." (Id.) "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 [17 Cal.Rptr.2d 708].) A demurrer for uncertainty will not lie where the ambiguous allegations refer to immaterial matters or are presumptively within the knowledge of the demurring party. (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.)

The Court does not find the blanket incorporation of the preceding paragraphs sufficient to apprise the defendant of the issues to meet on this cause of action.

Therefore, the Court sustains the demurrer on this cause of action. The Court will permit leave to amend to allege the facts in support of trespass to chattels as to the trailer, the lock or other personal property within the trailer noted throughout the complaint.

Opposition to Lien Sale

It is unclear what common law or statutory basis is alleged other than what is referenced above in the “counts” under negligence per se. The Court finds this cause of action duplicative and sustains the demurrer.

Fraud

"The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (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.)

The particularity requirement for fraud requires the pleading of facts showing how, when, where, to whom, and by what means the representations were made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) This is to provide the defendant with notice and to give the court enough information to assess whether there is a foundation for the charge of fraud. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Here, the Court does not find the blanket incorporation of nearly the entire complaint satisfactory as to pleading fraud with the requisite specificity. By incorporating all the prior allegations, the fraud cause of action does not provide the Court sufficient information to assess the elements and specificity requirements.

Therefore, the demurrer is sustained to the fraud cause of action with leave to amend.

Plaintiff shall have ten (10) days to file an amended complaint consistent with the above ruling.

Sanctions

Defendants request sanctions pursuant to Code of Civil Procedure section 128.5.

First, under section 128.5(f)(1)(A), this motion must be made separately from other motions. (Code Civ. Proc. § 128.5(f)(1)(A).) Here, the request for sanctions was made within the demurrer.

Additionally, “…a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected…” (Code Civ. Proc. § 128.5(f)(1)(B).)

Here, no 21 day safe harbor period has been commenced via service of the notice of motion. Strict compliance, not substantial compliance, with the 21 day safe harbor notice provisions is required. (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1007.) As one court described it: "Close is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute." (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 414.) Strict compliance serves the statutes' remedial purpose and underscores the seriousness of a motion for sanctions. (Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538.)

Therefore, the Court denies the request for sanctions.

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.

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division