Tentative Rulings

The Tentative Rulings for Tuesday, December 2, 2025, are:

Re:                Requejo, Christine Leanne vs. Valley Health Team, Inc.

Case No.:   VCU291366

Date:           December 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion for Final Approval

Tentative Ruling: No documents appear filed in connection with this motion. The Court continues the motion to January 27, 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:                 Hudson & Keyse LLC vs. Mora, Sylvia

Case No.:   TCL116560

Date:            December 2, 2025

Time:            8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Application for Order to Sell Dwelling

Tentative Ruling: To hold a hearing on the issue on the exemption, as noted herein.

Facts

Default judgment in this matter was originally entered on June 13, 2007 as against Sylvia Mora aka Sylvia Myrna Mora (“Judgment Debtor”) in the amount of $2,758.00. (Declaration of Zee ¶4.)

Judgment was renewed on May 19, 2017 in the amount of $7,561.65.

The judgment was renewed again on December 30, 2022 in the amount of $13,845.68. (Declaration of Zee ¶5.)

An abstract of judgment was recorded in Tulare County on January 19, 2012 as document number 2012-0003557, which was amended and recorded on July 28, 2024, as document number 2024-0028754, and on May 7, 2018, as document number 2018-0023561. (Declaration of Zee ¶7.)

On or about May 19, 1988, Judgment Debtor acquired 126 East Beacon Avenue Tulare, CA 93274, APN 187-071-032-000 (the “Levied Property”). (Declaration of Zee ¶8.)

The Judgment Creditor Assignee, Collect Access LLC, has initiated a levy on the Levied Property and the levying officer has recorded a Notice of Levy as of September 9, 2025. (Declaration of Zee ¶10.)

Further, that “The records for the county recorder do not reflect the filing of a homestead declaration under Article 5 (commencing with Section 704.910 ) that describes the dwelling and that has been recorded by the judgment debtor or the spouse of the judgment debtor. On information and belief, Judgment Creditor Assignee has no information which would indicate that the dwelling is a homestead and the amount of the homestead exemption, if any.” (Declaration of Zee ¶11.) Likewise, the records for the County Tax Assessor do not reflect the filing of a declaration of homestead for the Levied Property. (Declaration of Zee ¶12.)

The records for the county tax assessor reflect a homeowner's exemption for the Levied Property. (Declaration of Zee ¶13.)

There are no liens or encumbrances recorded against the Levied Property. (Declaration of Zee ¶16.)

The fair market value of the Levied Property is in excess of $285,900.00. (Declaration of Zee ¶17.)

The application and Notice of Hearing on Right to Homestead Exemption (Judicial Council Form EJ-180 were served personally on the Judgment Debtor. (Declaration of Zee ¶¶18, 19, 21.)

No written opposition appears filed.

Authority and Analysis

Code of Civil Procedure sections 680.010-724.260), is “a comprehensive scheme governing the enforcement of civil judgments in California.” (California Coastal Comm. v. Allen (2008) 167 Cal.App.4th 322, 326.)

Section 704.740 permits the sale of a dwelling or "homestead" to satisfy a money judgment in appropriate circumstances. If the dwelling is owned by a judgment debtor as a joint tenant or tenant in common, "the interest of the judgment debtor in the dwelling and not the dwelling shall be sold." (Code Civ. Proc. § 704.820.) Further, a sale shall not be ordered if the court determines that "the sale of the dwelling would not be likely to produce a bid sufficient to satisfy any part of the amount due on the judgment." (Code Civ. Proc. § 704.780.)

The Court notes:

“In California, a homestead exemption may be asserted two ways. First, a declaration of homestead may be recorded. (… § 704.920.) A recorded homestead protects the property from execution by certain creditors to the extent of the amount of the homestead exemption... [(§§ 704.730, 704.965.)] [Citation.] Because many California debtors failed to file homestead exemptions, the legislature in 1974 enacted legislation which created an ‘automatic’ homestead exemption. (… § 704.720.) This exemption need not be memorialized in a recorded homestead declaration in order to be effective … . [Citations.]”

 “[T]he two exemptions are distinct protections and they operate differently. The declared homestead provides greater rights than the automatic homestead. The declared homestead provides protection from a voluntary sale; judgment liens only attach to the equity in excess of consensual liens; and the protections of the declared homestead survive the death of the homestead owner. The proceeds from a voluntary sale may be reinvested within six months, thus allowing the debtor to invest in another residence. [Citation.] On the other hand, the automatic homestead only entitles the debtor to protection from a forced execution sale. … [¶] … With respect to a judgment lien, which is created by the recordation of an abstract of judgment, the judgment lien only attaches to the equity in the property above and beyond the recorded homestead exemption and any preexisting liens on the property. …”  (Amin v. Khazindar (2003) 112 Cal.App.4th 582, 588–589)

As to the process sought here, the court in Wells Fargo Financial Leasing, Inc. v. D & M Cabinets (2009) 177 Cal.App.4th 59, 67-69 notes:

“Section 704.740 is part of the homestead laws. “Homestead laws are designed to protect the sanctity of the family home against a loss caused by a forced sale by creditors. … The homestead exemption ensures that insolvent debtors and their families are not rendered homeless by virtue of an involuntary sale of the residential property they occupy. Thus, the homestead law is not designed to protect creditors … . This strong public policy requires courts to adopt a liberal construction of the law and facts to promote the beneficial purposes of the homestead legislation to benefit the debtor [and his family].” (Amin v. Khazindar (2003) 112 Cal.App.4th 582, 588)

At issue here is the “automatic” homestead exemption (also called a “residential exemption”), which need not be memorialized in a recorded homestead declaration, and which is available when a party has continuously resided in a dwelling from the time that a creditor's lien attaches until a court's determination in a forced sale process that the exemption does not apply. (Ibid.) “Where a residential exemption is claimed, the judgment creditor is required to obtain a court order for sale of the real property homestead.” (Id. at p. 589.)More Like This Passage

A homestead exemption does not preclude sale of the home but entitles the  homesteader to receive the value of the exemption if the property is sold to satisfy a judgment lien. “When there is sufficient equity in the property, it may be sold and the exemption applies to the sales proceeds that are exempt from the claims of certain creditors and can be used by the debtor to acquire another residence.” (5 Miller & Starr, Cal. Real Estate (3d ed. 2000) Homesteads, § 13:43, p. 87.)

Compliance with section 704.740 affords the following protections to a person entitled to a homestead exemption: A hearing is held, at which the court determines whether a homestead exemption exists. (§§ 704.770, 704.780.) If the court determines a homestead exemption exists, “the court shall determine the amount of the homestead exemption and the fair market value of the dwelling. The court shall make an order for sale of the dwelling subject to the homestead exemption, unless the court determines that the sale of the dwelling would not be likely to produce a bid sufficient to satisfy any part of the amount due on the judgment pursuant to Section 704.800. The order for sale of the dwelling subject to the homestead exemption shall specify the amount of the proceeds of the sale that is to be distributed to each person having a lien or encumbrance on the dwelling and shall include the name and address of each such person… .” (§ 704.780, subd. (b).) If no bid is received at the sale that exceeds the amount of the homestead exemption plus the amount necessary to satisfy all liens and encumbrances on the property, “the homestead shall not be sold and shall be released and is not thereafter subject to a court order for sale upon subsequent application by the same judgment creditor for a period of one year.” (§ 704.800, subd. (a).) If no bid is received that is 90 percent or more of the fair market value determined by the court, the homestead shall not be sold unless the court, upon motion by the judgment creditor, grants permission to accept the highest bid exceeding the minimum bid or makes a new order for sale of the homestead. (§ 704.800.) When the property is sold, the proceeds are distributed in the following order: (1) to the discharge of liens and encumbrances, (2) to the  judgment debtor in the amount of the homestead exemption, (3) to reimbursement of the levying officer's costs, (4) to the judgment creditor, and (5) to the judgment debtor in the amount remaining. (§ 704.850.)”

(See also Fidelity National Title Ins. Co. v. Schroeder (2009) 179 Cal.App.4th 834, 844-845 [“The bid must exceed the amount of the homestead and the balance due on the deed of trust, and after [the] defendant's wife receives her share, there must be some amount remaining to partially satisfy [the] plaintiffs' judgments.”].)

Here, the declaration of Zee indicates to the Court that the last know address of the Judgment Debtor is the Levied Property, that it has been owned by the Judgment Debtor since 1988, and that a homeowner’s exemption has been filed.

Additionally, the Court notes that the estimated value of the Levied Property is $285,900.00.

Further, that the homestead exemption is the greater of $300,000, adjusted annually for inflation beginning January 1, 2022, or the countywide median sale price for a single-family home in the calendar year prior not to exceed $600,000.

As such, the Court intends to conduct the hearing as described above.

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:                Discover Bank vs. Lucas, Elmer

Case No.:   VCL204243

Date:           December 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion for Entry of Judgment Pursuant to Stipulation

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

Facts

On October 17, 2022, Plaintiff filed this action against Defendant for open book account and account stated in the amount of $7,562.36

Defendant was served with the summons and complaint, but did not file an answer.

On January 9, 2023, the parties entered into a stipulation to resolve this matter. Defendant acknowledged being obligated to Plaintiff for the principal amount of $7,562.36 and that this amount would be deemed satisfied if 35 monthly payments of $210.66 were paid and a final payment of $189.26 was paid.

In the event of default, the stipulation indicates that Plaintiff is entitled to entry of judgment for the amount noted above plus any costs and less any credits.

The stipulation indicates that the Court shall retain jurisdiction under Code of Civil Procedure section 664.6. However, the Court notes that this matter has not been dismissed and the Court has not lost jurisdiction over the parties and this matter.

Plaintiff indicates that Defendant made payments totaling $2,106.60, with the last payment made on October 30, 2023.

Authority and Analysis

Section 664.6 (a) states: 

“If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

“The court’s retention of jurisdiction under section 664.6 includes jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.” (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4^th 1050, 1061.) “Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.” (Osumi v. Sutton (2007) 151 Cal.App.4^th 1355, 1360.)

As indicated above, the Court retains jurisdiction over the parties and this matter and therefore is prepared to “enter judgment pursuant to the terms of the settlement.”

Defendant appears to have breached the settlement, based upon the declaration of Plaintiff’s counsel and, the Court, having no opposition, grants the motion and enters judgment in the amount requested of $5,821.06, consisting of the principal amount due of $7,562.36 plus the costs of $365.30 less credits for payments of $2,106.60. 

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:                 Kimble, Lisa vs. Genova Management Group LLC

Case No.:   VCU297657

Date:           December 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Continued Motion for Preliminary Approval  

Tentative Ruling: To continue this motion to January 27, 2026, 8:30 am, Dept. 2; to order a supplemental declaration as to information to calculate the lodestar and the presently incurred costs.

Background

On September 19, 2025, an amended complaint was filed in this matter alleging class action causes of action and a cause of action for civil penalties under PAGA. It appears that the PAGA claims initially asserted in VCU299903 have been brought into this matter. 

1. Sufficiency of Amount of Settlement (Net Estimated: 2,254,500)

The gross settlement amount is $3,675,000 Plaintiff estimates approximately 3,614 proposed Class Members, providing an estimated average payout of $623.82 per member.

The Class Members consist of all current and former non-exempt, hourly paid employees that worked for Defendants in California during the period of April 21, 2019 through May 7, 2025.

Plaintiffs primarily alleged the following violations: (1) failure to pay minimum and straight time wages; (2) failure to pay overtime wages; (3) failure to provide meal periods; (4) failure to authorize and permit rest periods; (5) failure to timely pay final wages at termination; (6) failure to provide accurate itemized wage statements; (7) failure to indemnify employees for expenditures; and (8) unfair business practices; and (8) PAGA.

Plaintiff provide estimates of the maximum recovery for each of the asserted wage and hour claims and penalties with information showing how the estimates were calculated including the damages models utilized. (Declaration of Yslas ¶¶ 8– 17.) The total maxim recovery is approximately $58,000,000, with an estimated reasonable recovery, after applying various discount rates regarding the chance of success as to each claim, of $ 3,652,402.77 (Declaration of Yslas ¶¶ 8– 17.)

After agreeing to participate in early mediation, Defendants informally produced time and pay records for Settlement Class members, key class data points, and other documents and information relevant to the claims alleged in advance of mediation. The parties reached the settlement after a second full day mediation. 

The Court finds the information provided in support of the gross settlement amount sufficient for the Court to preliminarily approve the gross settlement amount, as the settlement amount appears to be within the recognized range of reasonableness given the claims and defenses asserted in this case.

Plaintiff’s deductions from the gross settlement of $3,675,000 are proposed as follows:

Proposed Court Approved Attorney Fees (33.3%):	$1,225,000
Proposed Attorney Costs (up to):	$46,000
Proposed Enhancement Payment to Plaintiff Kimble:	$10,000
Proposed Enhancement Payment to Plaintiff Stockton:	$7,500
Proposed Settlement Administrator Costs	$32,000
Proposed PAGA Penalties	$100,000
Proposed Net Settlement Amount	$2,254,500.00

2.  Class Notice

The settlement agreement provides no claim form will be required of class members to participate in distributions.  Only those wishing to object or opt out must file notice with the settlement administrator.  Objections or opt out notices are to be made within 60 days.

The Court regularly approves notice periods of 60 days or longer. The class notice period is approved.

With respect to the content of the Notice, the Court finds the Class Notice to be reasonable.  It clearly provides to the class member an estimate of the settlement share the employee is to receive and provides adequate instructions for any class member to opt out of the settlement or to submit an objection.

3.  Enhancement Awards to Class Representative

The Court preliminarily approves Plaintiffs Kimble and Stockton as Class Representative for purposes of settlement only. The proposed enhancement award to Plaintiff Kimble is $10,000. The proposed enhancement award to Plaintiff Stockton is $7,500.

The Court has, in past cases, approved enhancement awards of $5,000.00 routinely.

Enhancement payments “are fairly typical in class action cases.” (Cellphone Termination Fee Cases (2010) 180 Cal.App.4th 1110, 1393.) Enhancement payments “are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” (Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 958-959.) “[T]he rationale for making enhancement or incentive awards to named plaintiffs is that he or she should be compensated for the expense or risk he has incurred in conferring a benefit on other members of the class.” (Clark v. American Residential Services LLC (2009) 175 Cal.App.4^th 785, 806.)

The Court’s review of the declarations of Plaintiffs indicates justification for the $5,000 award, but no amount higher. The Court, therefore, will approve the enhancement awards of $5,000.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33.3% of the gross settlement fund of $3,675,000 or $1,225,000 and costs not to exceed $46,000 are sought by Plaintiff’s counsel.

Although the Court recognizes the utilization of the percentage of the common fund methodology to award attorneys’ fees, the Court requires a declaration from counsel that provides an estimate as to what the lodestar would be in this case. The ultimate goal of the Court is to award reasonable attorneys’ fees irrespective of the method of calculation. As such, the court needs to know the estimate of the approximate lodestar supported by declarations for preliminary approval. Counsel should submit information as to the time spent on this action and the hourly rates of all counsel working on the case. Without such information, the Court declines to preliminarily approve the fees.

 

The Court also cannot preliminarily approve costs up to $46,000 without a declaration which states the costs currently expended. 

The Court, however, finds that Plaintiff’s counsel are experienced class action attorneys through the declarations of counsel.

5.  Claims Administrator

The court preliminary approves Phoenix Class Action Administrators as the claims administrator for this class action based both on prior experience with this settlement administrator in other class actions litigated in this court and on the Declaration of Jodey Lawrence, President of Business Development for Phoenix. The Court preliminarily approves administration costs not to exceed $32,500 based upon the Declaration of Lawrence and the itemized estimate. (Declaration of Lawrence ¶16 – Exhibit B.)

6. Unclaimed Settlement Proceeds

The court preliminarily approves the distribution of unclaimed settlement proceeds to 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.

7. Release

The Court finds the proposed release of claims reasonable under the circumstances.

8. LWDA Notice

Counsel’s declaration indicates confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Declaration of Yslas ¶ 7 – Exhibit 2.)

9. Class Certification

Code of Civil Procedure section 382 permits certification “when the question is of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.”  (Code Civ. Proc. § 382.)  The plaintiff bears the burden of demonstrating that class certification under section 382 is proper.  (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460.)  To do so, “[t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) 

Here, the Motion and accompanying declaration of counsel  sufficiently sets forth the basis for finding the class is numerous and ascertainable as 3,614 employees have been identified through Defendants’ employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendants. Further, the class representatives, through their declarations, indicate they will adequately and fairly represent the Class Members and will not place their interests above any Class Member. The Class Representatives were employed by Defendant during the relevant time period and thus worked under the same policies and procedures as the Class Members.

Therefore, the Court continues this motion to January 27, 2026, 8:30 am, Dept. 2 and orders a supplemental declaration as to information to calculate the lodestar and the presently incurred costs.

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:                 LaRumbe-Torres, Josian vs. Kaweah Health Medical Center et al

Case No.:   VCU313564

Date:           December 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Plaintiff’s Motion for Leave to File Amended Complaint; (2) Plaintiff’s Motion to Compel Further Responses by Defendant Amergis to Requests for Production Nos. 21 and 32

Tentative Ruling: (1) To grant the motion and order the proposed amended complaint filed no later than ten (10) days from the date of this hearing; (2) To deny the motion as to No. 21; to grant the motion as to No. 32.

(1) Plaintiff’s Motion for Leave to File Amended Complaint

Facts

Plaintiff’s complaint for medical malpractice initially named Defendant Kaweah, Dr. Barrera, Does 1 through 50 and ABC Companies 1-50.

On April 25, 2025, Plaintiff substituted Doe 1 for Defendant Amergis.

On October 2, 2025, Defendant Amergis filed a motion for summary judgment, set for January 20, 2026. The motion indicates that nurse Jacqueline Dobbs was employed by Defendant Amergis.

No trial date has been set.

On October 30, 2025, Plaintiff filed this motion to file an amended complaint to

·        Revise the caption to add Jaqueline Dobbs, RN.

·        To change the preamble, paragraphs 1, and 10 to include Jaqueline Dobbs, RN.

·        To add new paragraph 7 adding Jaqueline Dobbs, RN.

·        To renumber paragraphs subsequent to paragraph 7

·        To add a new Second Cause of Action adding Jaqueline Dobbs, RN.

·        To relabel the Second Cause of Action to Third Cause of Action

In support, Plaintiff’s counsel’s declaration states that “RN Dobbs was the primary labor and delivery nurse caring for Plaintiff Guadalupe Torres during her labor and delivery of her baby boy Josiah LaRumbe-Torres from January 11, 2024 to January 12, 2024 at Kaweah Health Medical Center” and that “RN Dobbs was employed by Amergis, a staffing agency, when placed at Kaweah Health Medical Center as a labor and delivery nurse.” (Declaration of Mungcal ¶¶4. 5.)  

No opposition appears to have been filed as to this motion for leave to amend.

Authority and Analysis

Section 473, subdivision (a)(1) permits a "party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect" upon such terms as the court may deem just.”

However, "[w]hether an amendment to change the name of a party will be allowed depends on whether the mistake is merely a misnomer in the description of the partyor 'a substitution or change of parties.' [Citation.] As Witkin has observed, 'the allowance of amendment and relation back to avoid the statute of limitations does not depend on whether the parties are technically or substantially changed; rather the inquiry is as to whether the nature of the action is substantially changed.' (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 1147, p. 564.)" (Diliberti v. Stage Call Corp. (1992) 4 Cal.App.4th 1468, 1470.)

While no party cites to Kerr-McGee Chemical Corp. v. Superior Court (1984) 160 Cal. App. 3d 594, the Court finds its applicable to the central issue presented via this motion: the use of section 473 to add a new party to the action.

In Kerr-McGee.,  the trial court “appears to have attempted to act pursuant to section 473 under the supposition that plaintiffs made a mistake in the names which authorized the trial court to, in effect, substitute ‘Kerr-McGee Chemical Corporation, doing business as Trona Medical Clinic’ as a defendant in place of Trona Medical Clinic.” (Id. at 597.)

The plaintiffs had initially named and served “Trona Medical Clinic” but no fictitious name allegations were made regarding it. (Id. at 597.) Further Kerr-McGee Chemical Corp. had not been named initially as a defendant. (Id.)

Plaintiff, however, served Kerr-McGee Chemical Corp.’s agent for service of process with a copy of the summons and first amended complaint that named as defendants a hospital, several doctors, “Trona Medical Clinic” and Does 1 through 30, inclusive. (Id.)

Kerr-McGee Chemical Corp. moved to quash service of summons and complaint, and plaintiffs filed an amendment under section 474 to their complaint alleging both that they had been ignorant of the true name of a defendant and that the true defendant was Kerr-McGee Chemical Corp., doing business as Trona Medical Clinic. (Id at 596-597.) The trial court denied the motion to quash, reasoning that Kerr-McGee Chemical Corp. had been served on behalf of named Defendant Trona Medical Clinic and that under section 473 and in furtherance of justice, it could allow a party to amend the complaint, as "there was apparently some mistake made" by the plaintiffs. (Id.)

The appellate court noted the time within which the plaintiff could re-serve Kerr-McGee Chemical Corp as a Doe defendant expired pursuant to Code of Civil Procedure section 581a [now section 583.140, 583.210, et seq] as to service of the summons and complaint within three years after commencement of the action. (Id. at p. 597, fn. 2.) Therefore, the appellate court examined the trial court’s use of section 473 as to adding a new defendant.

However, the appellate court rejected the trial court's attempt to correct the “misnomer” under section 473, stating that, "before the court allowed Kerr-McGee to be substituted into the action pursuant to section 473 it was a stranger to the action. Clearly, the court's action was nothing less than permitting the addition of a new party to replace a named party defendant. The court's order permitting such substitution was not authorized by law." (Id. at 599.) The appellate court continued, stating "…to construe section 473 to allow the substitution in this case would be to convert that statute into a substantive authority to add an entirely new party to a proceeding after the statute of limitations has run, rather than to interpret it as it always has been interpreted, as a procedural statute to authorize correction of obvious and minor mistakes, such as in spelling of a defendant's name. As has been pointed out, it is important to maintain the distinction between correcting an honest error in the name of a correctly named party and joining a new party in the litigation for the first time under the guise of a claim of misnomer. [Citations.]" (Id. at 599-560, fn. 3.)

Section 473(a)(1) is appropriately used and which involves typographical or clerical errors, as opposed to additions of new parties:

“Cases interpreting this section clearly hold that section 473 does not authorize the addition of a party for the first time whom the plaintiff failed to name in the first instance. Thus, in commenting on the section, the court in Stephens v. Berry 249 Cal. App. 2d 474, 478, said: ‘Code of Civil Procedure section 473 permits amendment of a pleading by adding or striking out the name of a party, or by correcting a mistake in the name of a party. The cited cases furnish good examples of the scope of the statute where its authority is used to correct a mistake in the name of a party.’” (Id. at 598-599.)

The Kerr-McGee appellate court, provided examples such as correcting "Southern Pacific Railroad Company" to "Southern Pacific Company" from Thompson v. Southern Pacific Co. (1919) 180 Cal. 730 and correcting "Clio Mill and Mining Company" to "Clio Mining Company" from Nisbet v. Clio Mining Co. (1905) 2 Cal. App. 436, amongst others.

However, the same concerns present in Kerr-McGee regarding the statute of limitations and relation back to the initial filing of the complaint are not present here.

The Court observes that, as noted by Plaintiff, the statute of limitations for medical malpractice for a minor under Code of Civil Procedure section 340.5 is as follows:

“Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.”

Here, Plaintiff is just under two years old and therefore has up to his eighth birthday to file a separate suit against Dobbs, consolidate it with this matter and essentially end up in the same place with a delay. The Court sees little utility to requiring this process instead of simply permitting the amendment here.

The Court discerns no prejudice to the parties. The Court notes these amendments are sought while Ameritas’s summary judgment motion is pending.

Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280 notes, on this issue:

“[W]hen a plaintiff seeks leave to amend [its] complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, ‘[i]t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.’ (Melican v. Regents of the Univ. of Calif. (2007) 151 Cal.App.4th 168, 176.)”

Here, the Court will permit Amergis to file an amended summary judgment motion to dispel any prejudice from the amendment.

Therefore, the Court will permit the proposed amended complaint to be filed no later than ten (10) days from the date of this hearing.

(2) Plaintiff’s Motion to Compel Further Responses by Defendant Amergis to Requests for Production Nos. 21 and 32

Facts

Plaintiff’s complaint for medical malpractice initially named Defendant Kaweah, Dr. Barrera, Does 1 through 50 and ABC Companies 1-50.

On April 25, 2025, Plaintiff substituted Doe 1 for Defendant Amergis.

Plaintiff, via a prior motion, sought to add nurse Jacqueline Dobbs as a Defendant, as she was employed by Defendant Amergis via the motion to amend the complaint. The Court, having granted that motion, notes that Dobbs will be a Defendant in this matter once the proposed amended complaint is filed.

The allegations of the complaint center on the birth of Plaintiff on January 12, 2024 and the surrounding care including a cesarean section birth.

On May 2, 2205, Plaintiff propounded Requests for Production on to Defendant Amergis.

On July 24, 2025, Defendant Amergis provided initial responses.

On August 11, 2025, Defendant Amergis provided further supplemental responses.

On September 11, 2025, Defendant Amergis provided second further supplemental responses.

On September 24, 2025, Plaintiff filed this motion to compel further responses to Nos. 21 and 32.

In opposition, Defendant Amergis argues that it does not have custody or control, or the ability to obtain, Dobbs’ phone records and that because it is a staffing agency, and not a medical treatment provider, it does not have a table of contents as to such policies and procedures.

Authority and Analysis

Code of Civil Procedure section 2031.210 requires, in response to a request for production, the following:

“(a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities.

(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item.

(3) An objection to the particular demand for inspection, copying, testing, or sampling.”

 Code of Civil Procedure section 2031.220 provides “A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”

Code of Civil Procedure section 2031.230 provides “A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”

Finally, Code of Civil Procedure section 2031.310(a) permits a party to demand a further response where:

“(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

 

(3) An objection in the response is without merit or too general.”

Under subsection (b), the motion must “set forth specific facts showing good cause justifying the discovery sought by the demand.” In Digital Music News LLC v Superior Court (2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing that there “a disputed fact that is of consequence in the action and the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.”  If the moving party has shown good cause for the requests for production, the burden is on the objecting party to justify the objections. (Kirkland v. Sup.Ct (2002) 95 Cal. App.4th 92, 98.) 

No. 21

No. 21 requests:

“All paging, pager, phone call, and messaging records from January 11, 2024 – January 14, 2024 for all healthcare providers including Jacqueline Dobbs, RN.”

Defendant Amergis’s initial response stated:

“After a diligent search and reasonable inquiry, responding party responds: Responding party is continuing with efforts to determine whether responsive documents exist within its care, custody, and control. If non-privileged responsive documents exist within its care, custody, and control, Responding Party will provide a supplemental response.”

Defendant Amergis’s further supplemental response stated:

“After a diligent search and reasonable inquiry, responding party responds: Responding Party does not have and never has had any documents within its care, custody, and control responsive to this request.”

Defendant Amergis’s second further supplemental response stated:

“After a diligent search and reasonable inquiry, responding party responds: Responding Party does not have and never has had any documents within its care, custody, and control responsive to this request.”

Plaintiff seeks to compel Defendant Amergis to obtain the records from Dobbs or to obtain an authorization from Dobbs so that Plaintiff may subpoena the records directly.

The motion states “Without these records, Plaintiff has no way of determining whether RN Dobbs was using her cell phone while on duty or during her shift. This information is critical in determining the communications that RN Dobbs had with members of the healthcare team, as well as possible unrelated communications RN Dobbs may have had with others while she was managing the labor and delivery of Josiah.”

As noted above, Defendant Amergis argues that it does not have custody or control, or the ability to obtain, Dobbs’ phone records. Plaintiff cites no law or facts that would legally permit an employer to obtain cell phone records of its employee through a motion to compel further responses directed at the defendant employer. “Ordering a party to produce documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents.” (7-UP Bottling Co. v. Archer Daniels Midland Co. (In re Citric Acid Litig.) (9th Cir. 1999) 191 F.3d 1090, 1107-1108.)

Further, given the addition of Dobbs as a Defendant in this matter and Plaintiff’s ability to request these documents in discovery, the Court will deny this request.

No. 32

No. 32 requests:

“The table of contents for all Amergis Policies and Procedures in effect on January 11, 2024-January 12, 2024.”

Defendant Amergis’s initial response stated:

“Objection. This request calls for information not relevant to this matter and is not likely to lead to the discovery of admissible evidence. Moreover, it is vague, ambiguous, and overly broad as to the term “all Amergis policies and procedures.” Without waiving the above objections, and after a diligent search and reasonable inquiry, responding party responds: Responding party is in the process of determining whether responsive documents exist within its care, custody, and control. If non-privileged responsive documents exist within its care, custody, and control, Responding Party will provide a supplemental response”

Defendant Amergis’s further supplemental response stated:

“Objection. This request calls for information not relevant to this matter and is not likely to lead to the discovery of admissible evidence. Moreover, it is vague, ambiguous, and overly broad as to the term “all Amergis policies and procedures.” Without waiving the above objections, and after a diligent search and reasonable inquiry, responding party responds: Responding Party does not have and never has had any documents within its care, custody, and control responsive to this request.”

Defendant Amergis’s second further supplemental response stated:

Objection. This request calls for information not relevant to this matter and is not likely to lead to the discovery of admissible evidence. Moreover, it is vague, ambiguous, and overly broad as to the term “all Amergis policies and procedures.” Without waiving the above objections, and after a diligent search and reasonable inquiry, responding party responds: Responding Party requests Propounding Party narrow the scope of its request to only request table of contents for Policies & Procedures that are directly relevant to this matter and subject incident

Here, Plaintiff states that “RN Dobbs was employed Amergis and bound by those policies and procedures when delivering care in January of 2024. Furthermore, the policies and procedures illuminate the interworkings of the relationship between Kaweah Hospital, Amergis and RN Dobbs.”

In opposition, Amergis reframes the request, noting it does not have medical policies and procedures. The request, however, is not limited as such.

The Court agrees that production of the table of contents, in full is appropriate. Direct relevance is not the standard for discovery.

In Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 590-91 (emphasis in original, internal quotation marks omitted), the appellate court describe the standard as follows: 

“California law provides parties with expansive discovery rights.  Section 2017.010 states: [A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.  [Citation omitted, emphasis in original.]  The statutory phrase subject matter is broader than the issues and is not limited to admissible evidence.  [Citations.]  For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....  [Citation.]  Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence.  [Citation.]  These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.  [Citation.]”

No privacy objection or interest has been stated requiring more than the standard above. The Court does not find the terms of the request overbroad, vague or ambiguous, and these are generally considered nuisance objections. (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 901.)

Therefore, the Court will order a further response to No. 32.

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:                Loza, Marisela vs. Addiction Research and Treatment, Inc., a Corporation

Case No.:  VCU321645

Date:           December 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Compel Arbitration

Tentative Ruling: To deny the motion based on unconscionability

Background Facts

On May 19, 2025, Plaintiff filed this class action matter for violations of the Business and Professions Code as well as various Labor Code violations.

On October 27, 2025, Defendant Addiction Research Treatment, Inc., filed this motion to compel arbitration.

Facts - Agreement to Arbitrate

In support, Defendant provides the declaration of its Director of the BAART Programs Southeast, owned by Defendant. (Declaration of Mohtasham-Reaves ¶2.) The Director indicates that review of Plaintiff’s personnel file, maintained in the regular course of business, indicates Plaintiff was employed from September 17, 2017 to March 27, 2025 and that when Plaintiff was hired in September 2017, Plaintiff was handed copies of onboarding documents, including an agreement to arbitrate (“Agreement”). (Declaration of Mohtasham-Reaves ¶¶3, 7.) Further, that on September 18, 2017, Plaintiff voluntarily signed the Agreement and Plaintiff hand delivered a signed copy to Defendant, attached as Exhibit A. (Declaration of Mohtasham-Reaves ¶9 – Ex. A.)

No opposition to the actual agreement to arbitrate has been raised.

Authority and Analysis

The Court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.)

To start, “[f]or 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 moving party must provide evidence to support its authenticity.  (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.)  “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." (Id. at 165.)

"First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]" (Id.) "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 met its initial burden of production under Gamboa through the attachment Exhibit A that purports to be the arbitration agreement bearing Plaintiff’s handwritten signature.

No opposition to the signature or execution of Exhibit A has been raised in opposition. Therefore, the Court finds an agreement to arbitrate exists.

Facts – Scope of Agreement

The Agreement states that “any controversy, clam or dispute between me and BAART Programs (and/or any of its owners, directors, officers, employees, volunteers or agents) relating to or arising out of my employment or the cessation of my employment will be submitted…” to arbitration. Such claims include, but are not limited to: “unpaid wages, breach of contract, torts, violation of public policy, discrimination, harassment or any other employmentrelated claims under laws including but not limited to Title Vil of the Civil Rights Act of 1964, Americans With Disabilities Act, the Age Discrimination in Employment Act, California Fair Employment and Housing Act, the California Labor Code and any other statutes or laws relating to an employee's relationship with his or her employer.”

Authority and Analysis – Scope of Agreement

As noted above, Plaintiff brings class claims for violations of the Labor Code, a Business and Professions Code section 17200 claim. These claims are covered by the scope of the Agreement pursuant to its express language.

Facts – Delegation

Defendant argues that:

“The Agreement clearly mandates that the arbitrator have exclusive jurisdiction over Ms. Loza’s claims arising out of her employment with ART – it specifically states that such claims “will be submitted to final and binding arbitration in the county in which [Plaintiff] work(ed) for determination in accordance with the American Arbitration Association’s (“AAA”) National Rules for the Resolution of Employment Disputes, as the exclusive remedy for such controversy, claim or dispute.” (Id., ¶ 9, Ex. A [emphasis added].) The Agreement explicitly refers to the “[AAA] National Rules for the Resolution of Employment Disputes” as the only remedy for all claims she alleges against ART. (Reaves Decl., ¶ 9, Ex. A.) Further, the Agreement demands that it “be construed as broadly as possible under relevant law.” (Id.)” (Motion 14:16-25.)

Plaintiff argues that there is no clear and unmistakable delegation clause.

Authority and Analysis – Delegation

“Parties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement. [Citation.] They ‘can agree to arbitrate almost any dispute—even a dispute over whether the underlying dispute is subject to arbitration.’ ” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 241.) “There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.” (Id. at 242.)

Here, the Court finds no delegation clause and that the parties did not clearly and unmistakably delegate issues of arbitrability to the arbitrator. Malone v. Supr. Ct. (2014) 226 Cal.App.4th 1551, 1560 found a delegation clause sufficiently clear and unmistakable where clause provided "arbitrator has exclusive authority to resolve any dispute relating to interpretation, applicability, or enforceability of this binding agreement.”

Facts – FAA Applicability

The Director states further that Defendant “serves thousands of patients, some of which are out-of-state residents,” “purchases medical products, equipment and medications – including Methadone – from out-of-state distributors,” and “sends patients’ lab work to out-of-state facilities.” (Declaration of Mohtasham-Reaves ¶¶ 4, 5.)

In opposition, Plaintiff challenges the declaration, arguing it is insufficient as to the effect on interstate commerce specifically as to Plaintiff’s work. Plaintiff further notes the class action is limited to California employees, and that all work performed by Plaintiff occurred in California.

Authority and Analysis – FAA Applicability

Section 2 of the Federal Arbitration Act (FAA), 9 U.S.C. § 2, applies to any "written provision in…a contract evidencing a transaction involving commerce."

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.)

Plaintiff cites to Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, but the Court notes that in Lane, no declarations were provided:

“He argued that the statutory provision was preempted by the FAA, but submitted no declarations to show the transaction at issue involved interstate commerce. (127 Cal.App.4th at p. 213.) The court found the petitioner had failed to present a factual record establishing preemption. (Ibid.) Similarly, here, although FCM raised FAA preemption in a footnote, it submitted no declarations or other evidence to establish the facts necessary to show the employment relationship involved interstate commerce.”

Plaintiff cites to Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227 that the declaration in support of interstate commerce must be connected to the employee’s work. However, Carabajal states “CW Painting presented nothing about the nature of its business or Carbajal's work that showed any connection with interstate commerce” and the Defendant “claimed the FAA applied, but it presented no evidence to establish any connection to interstate commerce.” (Id. at 239.)

However, Plaintiff seeks to apply Bernhardt v. Polygraphic Co. of America (1956) 350 U.S. 198, 200-201 regarding a connection between the employee’s duties and interstate commerce in employment arbitration matters:

“Nor does this contract evidence "a transaction involving commerce" within the meaning of § 2 of the Act. There is no showing that petitioner while performing his duties under the employment contract was working "in" commerce, was producing goods for commerce, or was engaging in activity that affected commerce, within the meaning of our decisions.” (See also, as Plaintiff cites, Ayala v. Teledyne Def. Elecs (C.D.Cal. 2021) 533 F. Supp. 3d 920, 926.)

Here, the declaration indicates Plaintiff was a Registered Counselor at BAART Programs in Visalia and that ART purchases medical products, equipment and medications from out-of-state distributors and sends patients’ lab work to out-of-state facilities. This is sufficient for the Court to find Plaintiff’s performance as a counselor, providing treatment services to individuals affected by opioids, affected commerce with respect to the purchase of the items noted above.

Therefore, the Court finds the FAA applies.

Facts – Waiver of Class Action Claims

The Agreement is silent as to waiver of class action claims.

Authority and Analysis – Waiver of Class Action Claims

Where the FAA applies, class arbitration cannot be compelled absent a contractual basis for concluding the parties agreed to class arbitration. (Lamps Plus, Inc. v. Varela (2019) 587 U.S. 176, 178-179.) Where the contract is silent or ambiguous as to the intent to permit classwide arbitration, classwide arbitration must be refused. (Lamps Plus, supra, 587 U.S. at 178-179; Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. (2010) 559 U.S. 662, 684.)

Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115 is directly on point, where the parties had entered an agreement subject to the FAA to conduct an individual arbitration but the agreement did not included an express waiver of classwide arbitration or any class waiver at all. (Id. at 1120, 1127.) The appellate court noted that the agreement evinced an intent only to arbitrate claims between the parties, and not any class claims.

As such, the Court finds the class claims waived, subject to any defenses to enforcement of the Agreement.

Facts – Unconscionability

Plaintiff argues the Agreement is both procedurally and substantive unconscionable. Further, Plaintiff seeks to have the Agreement read together with a Confidentiality Statement that was presented to Plaintiff at the same time as the Agreement, executed at the same time, was a condition of employment and refers to disputes between the parties.

As to procedural unconscionability, Plaintiff argues the Agreement is a contract of adhesion, drafted by Defendant, presented to Plaintiff amongst a number of other onboarding documents, that the Agreement was a condition of employment, that the Agreement is oppressive, and that it is legally complex and difficult to understand.

As to substantive unconscionability, Plaintiff argues it confers a non-mutual benefit to third parties, the pre-dispute jury waiver is overbroad, the Agreement fails to provide a copy of the arbitration rules, the Agreement does not exclude NLRB or EEOC administrative charges, that the Agreement does not guarantee the opportunity to have judicial review of the award and vacate or modify it as needed, that the confidentiality statement that permits withholding of compensation or benefits as to the return of documents or materials, that a neutral arbitrator is not provided for by the Agreement and that these issues cannot be cured by severance.

Authority and Analysis – Defense 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.)

“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.)

However, the fact that an arbitration agreement is mandatory for employment may be a factor in determining that it is procedurally unconscionable. (See, e.g., Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 393; Armendariz, supra, 24 Cal.4th at pp. 114-115.) Where a contract of adhesion includes the unequal bargaining power of contracting parties, with the weaker party's inability to negotiate, this may indicate procedural unconscionability in the form of oppression. (See Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1372.)  “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.” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126-127.) 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.)

Here, the Court finds a medium degree of procedural unconscionability based on the inequality of bargaining power between Defendant and Plaintiff, the absence of any real negotiation with respect to a preprinted agreement to arbitrate, that the Agreement was presented with other onboarding documents, the lack of review by counsel, the conditional nature of the Agreement, and the education and experience of Plaintiff as described in the declaration.  On balance, the Agreement is a single page and the Court does not find it overtly complex or filled with legal jargon that would render it further procedurally unconscionable.

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.)

Mutuality

Here, the Agreement states “…any controversy, clam or dispute between me and BAART Programs (and/or any of Its owners, directors, officers, employees, volunteers or agents) relating to or arising out of my employment or the cessation of my employment will be submitted to final and binding arbitration in the county in which I work(ed) for determination in accordance with the American Arbitration Association's (““AAA”) National Rules for the Resolution of Employment Disputes, as the exclusive remedy for such controversy, claim or dispute.”

Plaintiff cites to  Cook v. University of Southern California (2024) 102 Cal.App.5th 312 as to the issue of mutuality. There, “[t]he 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, the Court finds the agreement only requires the Plaintiff to arbitrate claims against Defendant and a list of related entities or persons, for Defendant to arbitrate its claims against Plaintiff, but lacks a corresponding obligation for the Defendant’s owners, directors, officers, employees, volunteers or agents to arbitrate claims against Plaintiff. Therefore, like in Cook, the agreement lacks mutuality. This is further enforced by the second paragraph, which states “In any such arbitration, both I and BAART Programs…” without reference to the owners, directors, officers, employees, volunteers or agents.

Pre-Dispute Jury Waiver

Here, the Agreement states:

“BY AGREEING TO THIS BINDING ARBITRATION PROVISION, IF I AM OFFERED AND I ACCEPT EMPLOYMENT WITH BAART PROGRAMS, BOTH I AND BAART PROGRAMS WAIVE ALL RIGHTS TO TRIAL BY JURY. This arbitration agreement is to be construed as broadly as possible under relevant law.”

 "[I]t has always been understood without question that parties could eschew [a] jury trial . . . by agreeing to a method of resolving [a] controversy, such as arbitration, which does not invoke a judicial forum. . . . [P] . . . [P]  When parties agree to submit their disputes to arbitration they select a forum that is alternative to, and independent of, the judicial . . . ." ((Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 713-714.)

In Lange v. Monster Energy Co. (2020) 46 Cal.App.5th 436, 451-453, the jury waiver provision stated:

“Without in any way detracting from the intent and obligation of the Company and you to arbitrate all disputes and controversies between them in accordance with the above provisions, in the event that any controversy or claim is determined in a court of law, both you and the Company hereby irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement, the breach thereof or  the employee's employment or other business relationship. Except as otherwise required by law, both you and the Company hereby specifically waive any claims for punitive or exemplary damages or for any other amounts awarded for the purposes of imposing a penalty….YOU AGREE TO WAIVE THE RIGHT TO A JURY AND TO SUBMIT DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR EMPLOYMENT  TO NEUTRAL, BINDING ARBITRATION.”

The Lange court described the arguments as follows:

“Lange contends that the agreement's jury trial waiver is substantively unconscionable. Monster responds that the jury waiver was an inherent component of the parties' agreement to resolve disputes through arbitration and is, therefore, not unconscionable.”

The court resolved this, noting:

“Lange and Monster are not arguing about the same jury trial waiver. While Monster refers to a jury trial waiver inherent in arbitration agreements, Lange's argument is focused on the jury trial waiver preceded by the words “in the event that any controversy or claim is determined in a court of law.” And that jury trial waiver is not susceptible to any interpretation other than as an unconscionable predispute jury trial waiver. (See Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 961.)” (Id.)

Here, the jury trial waiver is not limited to the inherent nature of arbitration, but extends, by the plain language of the term, to “all rights to trial by jury.” Therefore, the Court likewise finds this term, as stated, unconscionable.

Arbitration Rules

Next, Plaintiff argues the Agreement is unconscionable regarding its references to the applicable rules, the failure to provide a copy thereof and a lack of advisement to Plaintiff  as to accessing the rules.

However, Baltazar, supra, 62 Cal.4th at 1246-1247 discusses the failure to provide a copy of the rules as weighing on procedural unconscionability. Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 721 does not appear to discuss the failure to attach the rules in any unconscionability analysis. Further, Lane, supra, 224 Cal.App.4th at 691 notes “[W]e conclude the failure to attach a copy of the AAA rules did not render the agreement procedurally unconscionable. There could be no surprise, as the arbitration rules referenced in the agreement were easily accessible to the parties — the AAA rules are available on the Internet.”

Absent argument that the rules themselves contain some substantive unconscionability, the Court does not consider the failure to attach the rules or the lack of advisement on access to be substantively unconscionable.

Exclusion of NLRB and EEOC Administrative Charges

Next, citing exclusively to NLRB cases, Plaintiff argues that the failure to expressly exclude from arbitration the right to file charges with the NLRB or other federal statutory claims renders it unconscionable.

However, the Agreement states “…any other claims where mandatory arbitration is prohibited by law” are not covered by the Agreement and “…such claims may be presented by you to the appropriate court or government agency.”

The Court, therefore, does not find the lack of an express exclusionary reference to the NLRB or EEOC charges to be  substantively unconscionable.

Judicial Review

Next, Plaintiff argues that the term “Any judgment upon the award rendered by the arbitrator(s) may be entered in any court having Jurisdiction thereof” fails to provide the Court an opportunity to examine the award under Armendariz, supra, 24 Cal. 4^th.

The Armendariz court, however, held that “…in order for such judicial review to be successfully accomplished, an arbitrator in a FEHA case must issue a written arbitration decision that will reveal, however briefly, the essential findings and conclusions on which the award is based.”  (Id. at 107.)

Here, the Agreement provides the Arbitrator shall issue a written decision, which meets the standard set forth above. The Court, therefore, does not find this term substantively unconscionable.

Confidentiality Agreement

Plaintiff first argues that the Court must evaluate substantive unconscionability contained in the Confidentiality Agreement and carry such analysis to the Arbitration Agreement pursuant to Alberto v. Cambrian Homecare (2023) 91 Cal.App.5^th 482.

Here, the Confidentiality Agreement states “(c) If I am an employee..., I authorize the withholding of any compensation and benefits due to me until such documents and materials have been returned.” Plaintiff argues that this term violates Labor Code sections 201-204, 227.3 (as to the obligations to timely pay employees during employment and following discharge of employment)  and Labor Code section 221 (as to making it “unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee.”)

To start, Alberto stated:

“‘Under Civil Code section 1642, it is the general rule that several papers relating to the same subject matter and executed as parts of substantially one transaction, are to be construed together as one contract [citation].’” (IMO Development Corp. v. Dow Corning Corp. (1982) 135 Cal.App.3d 451, 463.) According to that rule, documents executed as part of a single transaction are construed together, even if they do not expressly refer to one another. (Boyd v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 378; Cadigan v. American Trust Co. (1955) 131 Cal.App.2d 780, 786–787 [“it [is] unnecessary for either instrument to refer to the other”].) (Id. at 490.)

The Alberto court noted further “So, unconscionability in the Confidentiality Agreement can, and does, affect whether the Arbitration Agreement is also unconscionable. To hold otherwise would let Cambrian impose unconscionable arbitration terms, and then avoid a finding of unconscionability because it put the objectionable terms in a (formally) separate document.” (Id. at 491.)

In Alberto, the appellate court affirmed the finding of substantive unconscionability in the confidentiality agreement on the basis that “…the Confidentiality Agreement’s injunction provisions made the parties’ agreement to arbitrate insufficiently mutual. The Arbitration Agreement required [employee] to arbitrate all of her claims against [employer]. But the “Confidentiality Agreement” allowed [employer]to obtain—outside of arbitration—an “immediate” injunction for [employee’s] breach of [employer’s] confidentiality requirements. Specifically, the “Confidentiality Agreement” required [employee] to consent to an “order of an immediate injunction, without bond, from any court of competent jurisdiction, enjoining and restraining” [employee] from disclosing confidential or proprietary information. It allowed [employer]to obtain attorney fees if it prevailed on such an injunction. An injunction enforcing [employer]’s confidentiality terms would, of course, exclusively benefit [employer].” (Id. at 492.)

Therefore, given the presentation of the Confidentiality Agreement at the same time as the Agreement re: arbitration, the Court will examine the substantive unconscionability of the wage and benefit withholding in the Confidentiality Agreement.

Here, like in Alberto, this is a one way provision in favor of Defendant conferring an exclusive benefit and wholly lacking mutuality.

Therefore, the Court finds this portion of the Confidentiality Agreement substantively unconscionable.

Neutral Arbitrator

Here, the Agreement states arbitration will be conducted “…in accordance with the American Arbitration Association's (““AAA”) National Rules for the Resolution of Employment Disputes, as the exclusive remedy for such controversy, claim or dispute.”

Plaintiff argues the Agreement is silent on the arbitrator selection process and does not guarantee that the arbitrator will be neutral, as required in Armendariz.

However, “The rules of the American Arbitration Association specified by the clause as governing the resolution of disputes are generally regarded to be neutral and fair.”
(Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1126-1127.) (See also Chavarria v. Ralphs Grocery Co. (9th Cir. 2013) 733 F.3d 916, 923 […institutional arbitration administrators, namely AAA or JAMS, which have established rules and procedures to select a neutral arbitrator.”].)

As such, the Court does not find substantive unconscionability on this issue.

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, there is no express severance term.

Additionally, the Court has identified a lack of mutuality, an unconscionable predispute jury waiver, and an unconscionable term in the Confidentiality Agreement. In the Court’s opinion, and lacking an express severance term, the Court finds the unconscionability permeates the Agreement and cannot be cured via severance.

Therefore, the Court finds the Agreement unconscionable and denies the motion on that basis.

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:                 Liou, Bethany vs. Stonecrest Financial, Inc.

Case No.:   VCU325597

Date:            December 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Defendant’s Motion to Expunge Lis Pendens

Tentative Ruling: To continue this matter to December 16, 2025, 8:30 am, Dept. 2; to order the declaration of Taymuree referenced in the memorandum of points and authorities filed.

Facts

In this matter, Plaintiffs Liou, Grande Oak, and Grande LLC allege causes of action for quiet title, cancellation of deed, wrongful foreclosure, declaratory relief, fraudulent inducement, unjust enrichment, intentional interference, negligent misrepresentation, accounting, lis pendens, injunctive relief and for disgorgement against Defendants Stonecrest, Secured Income, PLM Loan, Freeman and Taymuree.

On September 11, 2025, Plaintiffs filed notices of recording of two lis pendens (1) with the Tulare County Recorder’s Office as Instrument No. 2025-047598 in connection with seven (7) parcels of land in Tulare County (the “Parcels”) and (2) with the San Mateo County Recorder’s Office in connection with the 68 Almendral Avenue, Atherton, California 94027  (the “Atherton Property”).

The parties have relatively long history of litigating issues as to these properties, which appears to have resulted in a June 21, 2024 stipulation of judgment and separate settlement agreement  containing a release of all claims related to the Parcels and Atherton Property, foreclosure sales, evictions and the underlying loan.

The Court notes here that the evidence of stipulated judgment and settlement agreement are the Declaration of Defendant Taymuree ¶¶12-21 and Exhibits 11 and 12. However, the Court’s file contains only two declarations of Taymuree, filed October 21, 2025 and October 23, 2025 which are three and four pages, respectively, and which each contain only four (4) paragraphs and no attached exhibits.

Further, the motion argues that this complaint is barred by res judicata as to the unlawful detainer judgment as to the Atherton Property. Again, however, the Court lacks a declaration from Taymuree that contains a paragraph 22 and Exhibit 13.

The Court, therefore, will continue this matter to December 16, 2025, 8:30 am, Dept. 2 and order the declaration of Taymuree referenced in the memorandum of points and authorities filed.

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:                 Espino, Mary Helen vs. Hurd, Feather Rain

Case No.:   VCU314693

Date:            December 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Continued Motion to Compel Responses

Tentative Ruling: At the prior hearing, the counsel for Plaintiffs indicated that code complaint responses as to the requests for admissions had been served and sought additional time to respond to the remaining discovery at issue. The Court continued the motion and noted that the hearings may be taken off calendar pursuant to a stipulation that the responses were received.

As the Court has received no further filings from counsel, the Court will assume code complaint responses have been provided, the pending discovery matter is resolved, and the matter can be placed off calendar.

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:                 In the Matter of J.G. Wentworth Originations, LLC

Case No.:   VCU325618

Date:            December 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Continued Petition to Approve Transfer of Structured Settlement

Tentative Ruling: To deny the petition

Facts

The Petition states that Payee is 21 years old, single, with no minor children. Further, that Payee is employed, earning $2,000 per month. Payee does not have any court ordered support payments.

Payee currently receives an annuity from Metropolitan Life Insurance Company. The petition states “Payee is in the process of obtaining annuity documentation. Exhibit “C” will be supplemented once/if it is received.” And “Payee is in the process of obtaining settlement documentation. Exhibit “D” will be supplemented once/if it is received.”

The Court notes no Exhibit C or D filed was filed with the initial petition. On October 31, 2025, Exhibits C and D were filed.

Exhibits C indicates an annuity contract was executed on or about 2019 based on a settlement agreement with a defendant which resulted in the issuance of an annuity from Metropolitan Tower Life Insurance Company, that underlying settlement was pursuant to a tort action and was not a result of a head injury or a Workers Compensation claim, and that Payee attempted to locate the annuity contract and has been unsuccessful. (Exhibit C, D )

Payee seeks to transfer one (1) payment of $79,786.00 due on September 6, 2029, for $50,000.00. This creates a discount 12.22%. The petition indicates there are no future payments.

Payee has not attempted or completed any previous transactions involving my structured settlement payments.

Payee’s declaration states, as to hardship “I am currently experiencing a financial hardship. If approved, I will use the money received from the proposed settlement to purchase a reliable vehicle and use a portion as a deposit for my own apartment, as well as necessary items for the apartment.” (Declaration of Payee ¶11.)

The petition states Payee is not likely to require future medical care and treatment for injuries sustained in connection with the settlement and that the settlement was not intended for such purposes. Payee has waived his right to seek independent counsel.

Authority and Analysis

A transfer of structured settlement payment rights is not effective unless the transfer has been approved in advance in a final court order based on the following express findings by the Court.

Under Ins. Code § 10139.5(a)(1), the Court must determine whether the “transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents.” The Court considers the following non-exclusive factors under Ins. Code § 10139.5(b):

(1) The reasonable preference and desire of the payee to complete the proposed transaction, taking into account the payee’s age, mental capacity, legal knowledge, and apparent maturity level.

(2) The stated purpose of the transfer.

(3) The payee’s financial and economic situation.

(4) The terms of the transaction, including whether the payee is transferring monthly or lump sum payments or all or a portion of his or her future payments.

(5) Whether, when the settlement was completed, the future periodic payments that are the subject of the proposed transfer were intended to pay for the future medical care and treatment of the payee relating to injuries sustained by the payee in the incident that was the subject of the settlement and whether the payee still needs those future payments to pay for that future care and treatment.

(6) Whether, when the settlement was completed, the future periodic payments that are the subject of the proposed transfer were intended to provide for the necessary living expenses of the payee and whether the payee still needs the future structured settlement payments to pay for future necessary living expenses.

(7) Whether the payee is, at the time of the proposed transfer, likely to require future medical care and treatment for the injuries that the payee sustained in connection with the incident that was the subject of the settlement and whether the payee lacks other resources, including insurance, sufficient to cover those future medical expenses.

(8) Whether the payee has other means of income or support, aside from the structured settlement payments that are the subject of the proposed transfer, sufficient to meet the payee’s future financial obligations for maintenance and support of the payee’s dependents, specifically including, but not limited to, the payee’s child support obligations, if any. The payee shall disclose to the transferee and the court his or her court-ordered child support or maintenance obligations for the court’s consideration.

(9) Whether the financial terms of the transaction, including the discount rate applied to determine the amount to be paid to the payee, the expenses and costs of the transaction for both the payee and the transferee, the size of the transaction, the available financial alternatives to the payee to achieve the payee’s stated objectives, are fair and reasonable.

(10) Whether the payee completed previous transactions involving the payee’s structured settlement payments and the timing and size of the previous transactions and whether the payee was satisfied with any previous transaction.

(11) Whether the transferee attempted previous transactions involving the payee’s structured settlement payments that were denied, or that were dismissed or withdrawn prior to a decision on the merits, within the past five years.

(12) Whether, to the best of the transferee’s knowledge after making inquiry with the payee, the payee has attempted structured settlement payment transfer transactions with another person or entity, other than the transferee, that were denied, or which were dismissed or withdrawn prior to a decision on the merits, within the past five years.

(13) Whether the payee, or his or her family or dependents, are in or are facing a hardship situation.

(14) Whether the payee received independent legal or financial advice regarding the transaction. The court may deny or defer ruling on the petition for approval of a transfer of structured settlement payment rights if the court believes that the payee does not fully understand the proposed transaction and that independent legal or financial advice regarding the transaction should be obtained by the payee.

(15) Any other factors or facts that the payee, the transferee, or any other interested party calls to the attention of the reviewing court or that the court determines should be considered in reviewing the transfer.”

Further, the Court still lacks additional information regarding Payee’s “(3)…financial and economic situation.” Information such as Payee’s monthly expenses would indicate to the Court the effect of the transferring the structured settlement payments at issue. The declaration of Payee contains insufficient information for the Court to fully analyze Payee’s economic situation.

The Court has only an approximate estimate of payee’s income. It still lacks estimates as to the cost of the proposed new apartment, apartment related costs or the purchase of a reliable vehicle. Further, if the petition is granted, the Court cannot see how petitioner will be able to afford the new apartment on his stated income or  will be able to maintain and insure the new vehicle. Petitioner has not shown he could not borrow at less than 12.22% interest to obtain a new vehicle. The Court finds the discount rate here higher than what is typically seen on these petitions.

Based on the information that the Court must evaluate when it considers the approval of the transfer of structured settlement funds, the Court finds that it is not in the best interests of the payee to approve the transfer of structured settlement. The Petition is denied.

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