Superior Court, State of California



TO REQUEST ORAL ARGUMENT: Before 4:00 PM today you must notify the:

(1) Court by calling (408) 808-6856 and

(2) Other side by phone or email that you plan to appear at the hearing to contest the ruling

(California Rule of Court 3.1308(a)(1) and Local Rule 8.E.)

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|LINE |CASE NO. |CASE TITLE |TENTATIVE RULING |

|1 |22CV406414 |DEBORAH THAM vs GARDEN COLLECTION |Plaintiffs’ motion requesting an order authorizing service via the California Secretary of State is |

| | |AT PARKWOOD OWNERS ASSOCIATION et |GRANTED. Please scroll down to Lines 1-2 for full tentative ruling. To request oral argument, call |

| | |al |or email the other side and call the court at (408) 808-6856 by 4 p.m. today. (CRC 3.1308(a)(1) and |

| | | |LR 8.E.) Court to prepare formal order. |

|2 |22CV406414 |DEBORAH THAM vs GARDEN COLLECTION |Defendant’s Motion to Strike is GRANTED with ten days leave to amend. Please scroll down to Lines |

| | |AT PARKWOOD OWNERS ASSOCIATION et |1-2 for full tentative ruling. To request oral argument, call or email the other side and call the |

| | |al |court at (408) 808-6856 by 4 p.m. today. (CRC 3.1308(a)(1) and LR 8.E.) Court to prepare formal |

| | | |order. |

|3 |23CV412122 |Jpmorgan Chase Bank, N.a. vs |Defendant’s Motion to Quash is DENIED. First, under Civil Local Rule 8(C), the moving party must |

| | |Angelia Lee |file an amended notice of motion with the hearing date once that date is assigned by the clerk. |

| | | |Without such an amended notice, the Court lacks jurisdiction to hear this motion. (See Diaz v. |

| | | |Professional Community Mgmt. (2017) 16 Cal.App.5th 1190, 1204-1205; Five-O-Drill Co. v. Superior |

| | | |Court of Los Angeles County (1930) 105 Cal. App. 232.) Next, “[o]n a challenge to personal |

| | | |jurisdiction by a motion to quash, the plaintiff has the burden of proving, by a preponderance of the|

| | | |evidence, the factual bases justifying the exercise of jurisdiction.” (Viaview, Inc. v. |

| | | |Retzlaff (2016) 1 Cal.Ap.5th 209-210; see also Summers v. McClanahan (2006) 140 Cal.App.4th 403, |

| | | |413.) Filing a proof of service that complies with all applicable statutory requirements creates a |

| | | |rebuttable presumption that service was proper. (Dill v. Berquist Construction Co. (1994) 24 |

| | | |Cal.App.4th 1426, 1441 (Dill), see also Code Civ. Proc. § 417.10(a); Evid. Code § 647.) The proof of|

| | | |service, including a declaration of diligence and service by mail, on file is presumed to be true. |

| | | |(See Evid. Code, § 647; see also Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750 (Rodriguez) |

| | | |[“Evidence Code section 647 provides that a registered process server’s declaration of service |

| | | |establishes a presumption that the facts stated in the declaration are true”].) Defendant submits no|

| | | |evidence to rebut that presumption. The Court notes Defendant is self-represented. Self-represented|

| | | |litigants are entitled to the same, but no greater, consideration than other litigants and attorneys.|

| | | |(County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.) Self-represented litigants “are held |

| | | |to the same standards as attorneys” and must comply with the rules of civil procedure. (Kobayashi v.|

| | | |Superior Court (2009) 175 Cal.App.4th 536, 543; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, |

| | | |984-985.) There do not appear to be future dates in this case, thus the Parties are ordered to |

| | | |appear. Court to prepare formal order. |

|4 |22CV408165 |Andrew Mo vs Samsung Research |Defendant’s Motion to Compel Arbitration is DENIED. Please scroll down to Line 4 for full tentative |

| | |America, Inc. |ruling. To request oral argument, call or email the other side and call the court at (408) 808-6856 |

| | | |by 4 p.m. today. (CRC 3.1308(a)(1) and LR 8.E.) Court to prepare formal order. |

|5 |22CV408665 |QUOTE VELOCITY, LLC, a Delaware |There are three motions, each set on a different date, pending before the Court in this case: (1) |

| | |Limited Liability Company vs Hi.Q, |Plaintiff’s Motion to Seal Portions of the FAC and Ex. 1, (2) Non-Contracting Defendant’s Demurrer, |

| | |Inc., a Delaware Corporation et al |and (3) Motion to Seal Portions of Ex Parte Application for Issuance of Additional Writ of |

| | | |Attachment. The Court VACATES the 8/22 and 10/17 hearing dates and resets them to September 14, |

| | | |2023, so that all three pending motions can be heard on a single date. The October 3, 2023 case |

| | | |management conference shall remain as set. |

|6 |23CV411033 |C3 Services, LLC vs Natalie Wall |Defendant’s motion for change of venue is GRANTED. Plaintiff agrees the case should be transferred |

| | | |to Marin County. The case will therefore be so transferred. Court to prepare formal order. |

|7 |2010-1-CV-170908 |Target National Bank vs P. Perez |Defendant served an amended notice of motion and all supporting papers for her Motion for an Order to|

| | | |Remove Lien on Real Property on Plaintiff by mail on May 23, 2023. Plaintiff failed to file an |

| | | |opposition. Failure to oppose a motion may be deemed consent to the motion being granted. (Cal. |

| | | |Rule of Court, 8.54(c).) There is also good cause to grant the relief sought. The judgment entered|

| | | |against Defendant has long expired and not been renewed. Thus, the lien should be removed. To |

| | | |request oral argument, call or email the other side and call the court at (408) 808-6856 by 4 p.m. |

| | | |today. (CRC 3.1308(a)(1) and LR 8.E.) Moving party to prepare formal order. |

|8 |17CV311121 |American Express Bank, FSB vs |Plaintiff served an amended notice of this motion to vacate notice of settlement by mail on July 13, |

| | |Adriana Vega |2023. Defendant failed to file an opposition. Failure to oppose a motion may be deemed consent to |

| | | |the motion being granted. (Cal. Rule of Court, 8.54(c).) There is also good cause to set aside the|

| | | |notice of settlement, as Defendant has stopped making payments pursuant to the parties’ agreement. |

| | | |Thus, Plaintiff’s motion is GRANTED. Moving party to prepare formal order. Parties are ordered to |

| | | |appear at 10 a.m. for the case management conference. |

|9 |22CV397712 |Westlake Services LLC vs Maria |Defendant’s motion for attorney’s fees is GRANTED. Please scroll down to Line 9 for full tentative |

| | |Rojas |ruling. To request oral argument, call or email the other side and call the court at (408) 808-6856 |

| | | |by 4 p.m. today. (CRC 3.1308(a)(1) and LR 8.E.) Court to prepare formal order. |

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Calendar Lines 1 & 2

Case Name: Tham, et al. v. Garden Collection at Parkwood Owners Association, et al.

Case No.: 22CV406414

Before the Court is Plaintiffs Deborah Tham’s, filing suit individually and as guardian ad litem for Lucie Tham, a minor (collectively, “Plaintiffs”), motion for an order permitting service of summons and complaint on the California Secretary of State and Defendant Garden Collection at Parkwood Owners Association’s (the “HOA”) motion to strike portions of Plaintiffs’ complaint. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

This action arises out of damages to the interior of a condominium unit caused by a fire sprinkler. According to the Complaint, Ms. Tham purchased real property located at 2078 Mendocino Lane in San Jose (the “Property”) in 2008, at which time she became a member of the HOA. (Complaint, ¶¶ 1, 12, 13.) On May 6, 2022, the HOA’s contractor, Defendant Pacific Maintenance Services, Inc. (“Pacific”), was performing sheetrock repair at the Property. (Id., ¶ 16.) Some of the repair work abutted a fire sprinkler head but Pacific failed to turn off the sprinkler system prior to commencing work and then negligently triggered it, releasing hundreds of gallons of water onto the Property. (Id., ¶ 17.) The water caused extensive damage to the floors, drywall and ceiling. (Id., ¶ 20.) Plaintiff alleges Pacific was not qualified to perform the sheetrock repairs in a multi-unit building in the immediate vicinity of a fire sprinkler head, and that the HOA did not properly vet Pacific’s qualifications to perform the work and/or hired Pacific knowing that they lacked such qualifications. (Id., ¶ 21.)

Immediately after this incident, Ms. Pham notified the HOA’s property manager, Kris Peterson of Common Interest Management and requested that the HOA take the appropriate remedial measures. (Complaint, ¶ 22.) When Peterson advised her that Pacific would be handling damage mitigation, Ms. Tham expressed concerns with Pacific’s qualifications to perform such work and asked her to locate a qualified specialist instead. (Id.) Peterson initially indicated that she would do so, but advised that no companies were available for the next two weeks. (Id.)

Shortly thereafter, Pacific, who Plaintiffs allege was not qualified to perform water damage mitigation, attempted a “dry-out” at the Property. (Complaint, ¶ 23.) Despite Peterson’s advisement that no specialized companies were immediately available to perform the remediation work, Ms. Tham retained Servpro, another contractor, to perform such work given the urgency of the situation. (Id., ¶ 24.) When Servpro inspected the Property, it identified numerous errors in Pacific’s work. (Id., ¶ 25.)

As a result of the water damage, the Property was uninhabitable, and Plaintiffs have been unable to reside there since May 6, 2022. (Complaint, ¶ 26.) Ms. Tham has repeatedly made efforts to get the HOA to start work on the repairs, but it delayed doing so. (Id., ¶ 27.) Months passed before the HOA retained a contractor selected by Ms. Tham from a list provided to her by the HOA to perform the remediation, and the HOA has failed and continues to fail to fulfill its duty to perform the repairs necessary to restore the Property to a livable condition. (Complaint, ¶¶ 28-29.)

The HOA has also failed to provide Ms. Tham and her contractor with the specifications necessary to comply with the standards required by the CC&Rs, causing Ms. Tham to suffer stress and delay to the remediation work. (Complaint, ¶¶ 30-33.) Ms. Tham recently adopted Lucie as a single parent, and their displacement from the Property has significantly impacted Lucie’s health and well-being, as well as Ms. Tham’s. (Id.)

Plaintiffs filed the Complaint on October 14, 2022, asserting: (1) breach of CC&Rs (against the HOA); (2) for enforcement of equitable servitudes (against the HOA); (3) breach of the implied covenant of good faith and fair dealing (against the HOA); (4) nuisance (against the HOA); (5) breach of fiduciary duty (against the HOA); (6) negligence (against the HOA); (7) professional negligence (against Pacific); (8) breach of implied covenant to perform work in a good and competent manner (against Pacific); and (10) for declaratory relief (against the HOA).

On April 26, 2023, Plaintiffs filed a motion for an order permitting service of the summons and complaint on the Secretary of State for Pacific. On May 10, 2023, the HOA filed the motion to strike portions of the Complaint. Plaintiffs oppose this motion.

II. Plaintiffs’ Motion for Order Permitting Service on California Secretary of State

A summons may be served on a corporation by any of the methods set forth in Code of Civil Procedure section 416.10, including “[i]f authorized by any provision in [Corporations Code] Section 1701, 1702, 2110, or 2111 ….” (Corp. Code, § 416.10, subd. (d).) Corporations Code section 1702 provides:

If the agent designated [for service of process] cannot with reasonable diligence be found at the address designated for personally delivering the process … and it is shown by affidavit to the satisfaction of the court that process against a domestic corporation cannot be served with reasonable diligence upon the designated agent by hand in the manner provided by [Code of Civil Procedure sections 415.20, subdivision (a), 415.30, subdivision (a), 416.10, subdivisions (a), (b) or (c), and 416.20, subdivision (a)], the court may make an order that the service be made upon the corporation by delivering by hand to the Secretary of State, or to any person employed in the Secretary of State’s office in the capacity of an assistant or deputy, one copy of the process for each defendant to be served, together with a copy of the order authorizing such service.

(Corp. Code, § 1702, subd. (a).)

According to Timothy R. Owen’s declaration and the exhibits attached thereto, Pacific is now a suspended corporation whose agent for service of process- Victor Peraza- is purportedly located 352 E. 118th Place in Los Angeles. (Declaration of Timothy R. Owen, ¶ 2, Exhibit 1.) A suspended corporation that continues to operate as an ongoing business may be served under Code of Civil Procedure section 416.10, as any other corporation. (Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 302.) However, neither Pacific nor Victor Peraza are located at that address, as a process server unsuccessfully attempted to effectuate personal service at that location three separate times. (See Affidavit of Due Diligence executed by Miguel Molina, p. 1.) Plaintiffs also unsuccessfully attempted to serve Pacific at two other locations, one in Los Angeles, and the other in Redlands (Riverside County). (Affidavit of Due Diligence executed by Douglas Forrest, p. 1 and Affidavit of Due Diligence executed by Jose Fuerte, p. 1.)

The Court concludes that based on this showing, Plaintiffs have demonstrated that Pacific cannot, with reasonable diligence, be served with summons and complaint in any of the manners of service set forth in subdivision (a) of Corporations Code section 1702. Accordingly, Plaintiffs’ motion requesting an order authorizing service via the California Secretary of State is GRANTED.

III. The HOA’s Motion to Strike

The HOA moves to strike Plaintiffs’ request for punitive damages (prayers for relief on fourth and fifth causes of action) and related allegations (¶¶ 5, 62, 69), arguing that Plaintiffs have not pleaded facts entitling them to recover such damages. The Court agrees.

The right to recover punitive damages requires proof of “oppression, fraud, or malice” on the part of the defendant by “clear and convincing evidence.”  (Civ. Code, § 3294, subd. (a).)   For pleading purposes, to support a prayer for punitive or exemplary damages, the complaint must allege “ultimate facts of the defendant’s oppression, fraud or malice.”  (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.)  Simply pleading the statutory terms “oppression, fraud or malice” is insufficient to adequately allege punitive damages, but only to the extent that the complaint pleads facts to support those allegations.  (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511.)  Therefore, specific factual allegations demonstrating oppression, fraud or malice are required.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)  However, the complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the defendant’s wrongful conduct.  (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255).   

Under the punitive damages statute, “malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code, § 3294, subd. (c)(1).)  “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  (Id., § 3294, subd. (c)(2).)  “Despicable conduct,” in turn, has been described as conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.)  Finally, “fraud” is defined within the statute as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”  (Civ. Code, § 3294, subd. (c)(3).)    

When the defendant is a corporation, as the HOA is here, “[a]n award of punitive damages against [it] … must rest on the malice of the corporation’s employees.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) Consequently, to plead an entitlement to such damages, the plaintiff must plead facts establishing that an officer, director or managing agent of the corporation “authorized or ratified the wrongful conduct for which the [punitive] damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (b), emphasis added.)

Here, the Court agrees with the HOA that Plaintiffs have failed to plead facts to establish the HOA engaged in oppressive, malicious or fraudulent conduct. At most, what Plaintiffs have pleaded is gross negligence rather than “vile, base, contemptible, miserable, wretched or loathsome” conduct, and gross negligence is not sufficient to justify an award of punitive damages. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87.) Plaintiffs also plead no facts to suggest that the HOA’s actions were performed with animus or evil motive, which is essential to recovering punitive damages on the basis of malicious conduct. (See G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29-30 [explaining that “it is always in its analysis malice of the one kind, the malice of evil motive …. [The] animus malus must be shown to exist in every case before an award in punitive damages may be made against a defendant, since the evil motive is the controlling and essential factor which justifies such an award ….,” internal citations omitted].)

Plaintiffs also fail to allege ratification or authorization of the HOA’s oppressive, malicious or fraudulent conduct by one of its officers, directors or managing agents. Plaintiffs argue that because the HOA can only operate through the Board of Directors, “it can reasonably be inferred that an officer, director, or managing agent of the HOA had the requisite advance knowledge or acted with the requisite conscious disregard or oppression, fraud, or malice. (Opp. at p. 9.) But this is not the standard for pleading an entitlement to punitive damages, which requires facts, not inferences.

Accordingly, the HOA’s motion to strike is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.

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Calendar Line 4

Case Name: Andrew Mo vs Samsung Research America, Inc.

Case No.: 22CV408165

Before the Court is Defendant Samsung Research America, Inc.’s (“Samsung”) Motion to Compel Arbitration. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

This is an action for wrongful termination and retaliation. Plaintiff Andrew Mo who was a Senior Director of Software (Internal Global System Level of Principal Engineer) for Samsung, alleges he reported discriminatory behavior by a senior executive as required by Samsung internal policies and was promptly fired in retaliation for this protected activity. Mo filed his Complaint on December 2, 2022, asserting (1) Unlawful retaliation in violation of public policy, (2) wrongful termination in violation of public policy, and (3) discrimination and harassment. Defendant filed an answer on February 6, 2023, denying all allegations and asserting in its fifteenth affirmative defense that Plaintiff’s claims are subject to binding arbitration.

Defendant claims Mo agreed to arbitrate his claims against Samsung. The following language appears in Mo’s April 14, 2021 offer letter:

MANDATORY ARBITRATION OF EMPLOYMENT-RELATED CLAIMS

Any dispute, controversy or claim arising out of or relating to your employment with SRA or termination of employment, including any alleged violation of statute, common law or public policy shall be submitted to final and binding arbitration before the American Arbitration Association (“AAA”) to be held in San Francisco, California before a single arbitrator, in accordance with the then-current AAA Employment Arbitration Rules and Mediation Procedures as modified by the terms and conditions contained in this paragraph. Notwithstanding anything to the contrary, nothing in this paragraph shall be interpreted to mean that you are precluded from filing complaints with the California Department of Fair Employment and Housing and/or federal Equal employment Opportunity Commission, and the National Labor Relations Board. The arbitration shall be governed by the laws of the State of California. A copy of the AAA Employment Arbitration and Mediation procedures are available online at employment. Discovery in any arbitration proceeding shall be conducted according to the AAA Employment Arbitration rules and Mediation Procedures. By signing below, you agree to waive all rights to a jury trial and waives [sic] the right to pursue any class action, collective action, or representative claims to the maximum extent allowed by law. To the extent a class or collective action or representative claim may not be waived, the [sic] you agree to stay any such claims until after all claims subject to arbitration are fully resolved. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by the American Arbitration Association. The arbitrator shall issue a written opinion stating the essential findings and conclusions on which the arbitrator’s award is based. SRA will pay the arbitrator’s fees and arbitration expenses and any other cost unique to the arbitration hearing (recognizing that each side bears its own deposition, witness, expert and attorney’s fees and other expenses to the same extent as if the matter were being heard in court). If, however, any party prevails on a statutory claim that affords the prevailing party attorneys’ fees and costs, then the arbitrator may award reasonable attorneys’ fees and costs to the prevailing party. Any dispute as to who is a prevailing party and/or the reasonableness of any fee or costs shall be resolved by the arbitrator. [sic] you may call the American Arbitration Association at 800-778-7879 if you have any question about the arbitration process.

This Agreement to arbitrate is freely negotiated between you and SRA and is mutually entered into between the parties. YOU FULLY UNDERSTAND THAT YOU ARE EACH GIVING UP THE RIGHT TO PURSUE CLAIMS AGAINST SRA IN COURT AND TO HAVE THOSE CLAIMS DECIDED BY A JURY. Please initial here _____ to acknowledge that you have read and agreed to the preceding paragraphs.

(Declaration of Kayla Lucia in Support of Defendant’s Motion to Compel Arbitration and Stay Action (“Lucia Decl.”), Ex. D; Declaration of Andrew Mo (“Mo Decl.”), Ex. A (all emphases in original).) The Offer Letter also states: “You also will be eligible to participate in a Long Term Incentive Plan (LTIP) with a target of $2,800,000. The terms and conditions of participation are included in the enclosed sample LTIP document for you to review.”) (Id.) The LTIP Mo ultimately signed does not contain an arbitration clause but does contain a confidentiality clause:

The Plan is strictly confidential. If you disclose the Plan or its contents to another employee, contractor, vendor or other individual or entity the Committee deems to be a violation of the confidentiality of the Plan, you will be ineligible for any further payments under the Plan and will be required to repay any prior payments under the Plan.

(Mo Decl., Ex. C.)

Under “ADDITIONAL EMPLOYMENT REQUIREMENTS”, the Offer Letter also states: “You will also be required to sign an ‘Employee Confidentiality and Inventions Agreement’ [“Confidentiality Agreement”] on your first day of employment. This document encompasses assignment of inventions, confidentiality obligations, and other matters. If you would like to review a copy of the agreement prior to accepting this offer, please let me know.” (Lucia Decl., Ex. D, Mo Decl., Ex. A.) The Confidentiality Agreement contains this arbitration clause:

Arbitration. Any dispute, controversy, or claim arising out of or related to this Agreement or any breach of this agreement shall be submitted to and decided by binding arbitration. Arbitration shall be administered exclusively by the American Arbitration Association and shall be conducted consistent with the rules, regulations, and requirements thereof as well as any requirement imposed by California law. Any arbitral award determination shall be final and binding upon the Parties.

(Mo Decl., Ex. B.) The Confidentiality Agreement also provides:

Specific Performance; Injunctive Relief. A breach of certain provisions of this Agreement may result in irreparable and continuing damage to Company for which there may be no adequate remedy at law, and Company shall be entitled to injunctive relief under this Agreement without the necessity of proving actual damages or posting bonds, and/or a decree for specific performance, and such other equitable relief as may be granted (including monetary damages) by a court of competent jurisdiction. If Company is granted injunctive relief and/or damages, Company shall be entitled to attorneys’ fees and costs. A court of competent jurisdiction shall have the authority to change the duration and scope of the restrictions hereof, in accordance with applicable laws.

(Mo Decl., Ex. B.)

Mo does not dispute that he signed each of these Agreements. However, before signing them, Mo did request that the binding arbitration clauses in both the Offer Letter and the Confidentiality Agreement be removed. (Mo Decl., Ex. E.) Samsung responded: “I have consulted with our VP HR/Legal. Please see my answers below. Unfortunately, the clauses in the offer letters have been reviewed/approved by our Samsung legal team and are non-negotiable.” (Id.)

II. Requests for Judicial Notice

Defendant asks the Court to take judicial notice of the American Arbitration Association Employment Arbitration Rules and Mediation Procedures pursuant to California Evidence code section 452, 453 and 455. And both parties ask the Court to take judicial notice of numerous records in lawsuits filed in other courts.

The Court GRANTS Defendant’s request for judicial notice concerning the American Arbitration Association Employment Arbitration Rules and Mediation Procedures. However, as the Court can only take judicial notice of relevant items (see Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301), and the other lawsuits are not germane to the Court’s analysis on this motion, the Parties’ respective requests for judicial notice of the other items is DENIED.

III. Delegation

Samsung first argues an arbitrator must decide whether there is valid arbitration agreement between the Parties because the reference to the AAA rules constitute a delegation clause.

“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.” (Tiri, supra, 226 Cal.App.4th at p. 242; see also Rent-A-Center, supra, 561 U.S. at pp. 68, 69, fn. 1.) The “clear and unmistakable” test reflects a “heightened standard of proof” that reverses the typical presumption in favor of the arbitration of disputes. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 787 [137 Cal. Rptr. 3d 773] (Ajamian).” (Aanderud v. Superior Court (2017) 13 Cal. App. 5th 880, 892.)

To determine delegation, the Court must first consider what language constitutes the arbitration agreement. Plaintiff argues the arbitration agreement consists of all three agreements Plaintiff signed with Samsung in connection with the start of his employment. Samsung seeks to avoid having the Court consider the Offer Letter, Confidentiality Agreement and LTIP together because Plaintiff signed the Confidentiality Agreement on a different date than his Offer Letter, and, in fact Plaintiff signed the Confidentiality Agreement before he had to. The Court rejects Samsung’s argument. There can be no reasonable dispute that Plaintiff was required to sign both the Offer Letter and the Confidentiality Agreement to commence his employment. Thus, those agreements were signed as part of the same transaction, i.e., Plaintiff’s employment at Samsung.

Here, the Offer Letter contains no language directly addressing delegation. Instead, it states: “Any dispute, controversy or claim arising out of or relating to your employment with SRA or termination of employment, including any alleged violation of statute, common law or public policy shall be submitted to final and binding arbitration . . . The arbitration shall be governed by the laws of the State of California. A copy of the AAA Employment Arbitration and Mediation procedures are available online at employment.” The Confidentiality Agreement also does not expressly mention delegation.

Samsung nevertheless argues that because the Offer Letter references the AAA procedures and the AAA Rules provide: “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement”, the Offer Letter meets the “clear and unmistakable” test. However, the Offer Letter and the Confidentiality Agreement both reference California law, which the Parties do not dispute requires the trial court to make this determination. The Offer Letter only references the availability of the AAA Employment Arbitration and Mediation procedures, without more, after stating the agreement is governed by California law. The Confidentiality Agreement also contains a provision permitting Samsung (but not Plaintiff) to seek injunctive relief, which states: “A court of competent jurisdiction shall have the authority to change the duration and scope of the restrictions hereof, in accordance with applicable laws.”

Where there is conflicting language indicating that an arbitrator should decide certain issues and a court others, there is not clear and unmistakable delegation. (Nelson v. Dual Diagnosis Treatment Center, Inc. (2022) 77 Cal. App. 5th 643.) Samsung argues this last sentence refers only to the injunctive relief clause and not the agreement as a whole. First, this argument ignores that there are some issues retained for a court rather than an arbitrator to decide—if Samsung brings an action for injunctive relief for violation of the Confidentiality Agreement, the court, not an arbitrator decides whether it can hear that claim. Next, that last sentence is just as amenable to the interpretation that the court, on an action by Samsung for injunctive relief, may change the duration and scope of the confidentiality provisions. In either case, under the totality of this analysis, the Court does not find the delegation to meet the clear and unmistakable requirement and will thus turn to enforceability.

IV. Legal Standard and Analysis

In a motion to compel arbitration, the Court must determine “(1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement.” (Bruni v. Didion (2008) 160 Cal. App. 4th 1272, 1283 (citations omitted).) “The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination. [Citation.]” (Bruni, 160 Cal. App. 4th at 1282 (citations omitted).)

Even if the Court finds the Parties agreed to arbitrate these claims, the agreement is unenforceable if it is unconscionable. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83.) Unconscionability consists of both procedural and substantive elements. The prevailing view is that both procedural and substantive unconscionability must be present, but the two elements of unconscionability need not be present to the same degree. A sliding scale is invoked such that the more substantively oppressive the contract term the less evidence of the procedural unconscionability is required to conclude that the contract provision is unenforceable, and vice versa. (Armendariz, 24 Cal.4th at 114.)

The procedural element tests the circumstances of contract negotiation and formation and focuses on “oppression” or “surprise” due to unequal bargaining power. (See Armendariz, 24 Cal.4th at 114.) “Oppression” occurs when a contract involves lack of negotiation and meaningful choice, and “surprise” occurs where the alleged unconscionable provision is hidden within a printed form. (Pinnacle Museum Tower Ass’n v. Pinnacle Mkt.Dev. (US), LLC (2012) 55 Cal.4th 223, 247, citing Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1317; Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231; Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 179.)

Plaintiff is correct that the arbitration agreement here is an adhesion contract. He could not begin his employment until he signed the Offer Letter and Confidentiality Agreement, and in response to his request to remove the arbitration clauses from those agreements, Plaintiff was expressly told that those terms were not negotiable. The California Supreme Court has made clear that in such a take-it-or-leave it scenario when a prospective employee is looking for work, the procedural unconscionability prong is generally met. (Armendariz, 24 Cal. 4th at 115.) However, this is a low degree of procedural unconscionability, thus a higher level of substantive unconscionability must be shown. (Davis v. Kozak (2020) 53 Cal. App. 5th 897, 910.)

Substantive unconscionability relates to the fairness of the terms of the arbitration agreement and assesses whether they are overly harsh or one-sided. (Armendariz, supra, 24 Cal.4th at p. 114; 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1213.)

Plaintiff points to the injunctive relief available to Samsung, language in the Confidentiality Agreement making Samsung “entitled to injunctive relief under this Agreement without the necessity of proving actual damages or posting bonds, and/or a decree for specific performance, and such other equitable relief as may be granted (including monetary damages),” and the inability to obtain third party discovery in the arbitration under California law to argue substantive unconscionability. The Court finds Plaintiff’s analysis persuasive under Davis v. Kozak (2020) 53 Cal. App. 5th 897. While here Samsung explains the sensitivity of its confidential information necessitates the differing treatment of it’s and Plaintiff’s forms of relief for future claims and the employer in Davis provided no explanation for this same difference, the Court does not find Samsung’s explanation sufficient. The Confidentiality Agreement contemplates Plaintiff coming to his employment with his own inventions, yet the Agreement does not provide Plaintiff with the same ability to obtain injunctive relief to prevent Samsung from improperly using those inventions as the Agreement provides to Samsung. Moreover, Samsung required Plaintiff to agree that Samsung need not prove actual damages or post a bond to obtain injunctive relief. Thus, if Plaintiff and Samsung had a dispute over whether it or Plaintiff owned particular technology, only Samsung would have the ability to bring its concerns to court and obtain an injunction—without having to protect Plaintiff’s interests in the same technology. Plaintiff, however, would have to bring his same claim to arbitration under Samsung’s interpretation of these agreements.

On this basis, the Court finds the arbitration agreement unconscionable and unenforceable. Accordingly, Defendant’s motion to compel arbitration is denied.

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Case Name: Westlake Services LLC vs Maria Rojas

Case No.: 22CV397712

Before the Court is Defendant’s Motion for Attorney’s Fees. Pursuant to California Rule of Court 3.1308, the Court issues its tentative ruling.

I. Background

On April 28, 2022 Plaintiff Westlake Services LLC (“Westlake”) filed a complaint against Defendant Maria Rojas for breach of contract deficiency judgment, money lent, paid or expended stemming from Defendant’s alleged failure to complete payments for a 2014 Chrysler 300 (the “Vehicle”). After Westlake failed to respond to discovery, the Court issued an order compelling Westlake to respond to request for production of documents and special interrogatories and assessing $640 in sanctions against Westlake. On March 29, 2023, Westlake unilaterally filed a request for dismissal without prejudice. The dismissal was not a result of any settlement, and Ms. Rojas never communicated to Westlake that she was insolvent.

Ms. Rojas, who was represented by supervised law students, now moves for her reasonable attorneys’ fees. Westlake opposes the motion.

II. Legal Standard and Analysis

Civil Code section 2983.4 provides:

Reasonable attorney’s fees and costs shall be awarded to the prevailing party in any action on a contract or purchase order subject to the provisions of this chapter regardless of whether the action is instituted by the seller, holder or buyer. Where the defendant alleges in his answer that he tendered to the plaintiff the full amount to which he was entitled, and thereupon deposits in court, for the plaintiff, the amount so tendered, and the allegation is found to be true, then the defendant is deemed to be a prevailing party within the meaning of this section.

This section is applicable even where the prevailing party is represented by legal aid attorneys. (Winters v. Security Pacific Nat. Bank (1975) 49 Cal. App. 3d 510.) However, the fact that Westlake dismissed this case does not automatically make Ms. Rojas the prevailing party as a matter of law. The Damian court explains:

As our Supreme Court observed in Santisas, “[I]t seems inaccurate to characterize the defendant as the 'prevailing party' if the plaintiff dismissed the action only after obtaining, by means of settlement or otherwise, all or most of the requested relief, or if the plaintiff  dismissed for reasons, such as the defendant's insolvency, that have nothing to do with the probability of success on the merits.” (17 Cal. 4th at p. 621.)  The Heather Farms court also recognized that a defendant as to whom the plaintiff has voluntarily dismissed is not necessarily the “prevailing party” in the action. (21 Cal. App. 4th at p. 1574 [dismissal was more the result of obdurate behavior on the part of the defendant rather than any successful legal strategy].) On the other hand, it is certainly possible to view a dismissal as having been entered “in favor” of a defendant where a “plaintiff with only a marginal chance at recovery [has] invest[ed] only the filing fee to commence an action, [and] forc[ed] the opposing party to engage in expensive discovery, only to dismiss the action prior to final judgment when it appeared the case was sinking, Titanic-like, beneath the waves of overwhelming adverse evidence.” (Catello v. I.T.T. General  Controls, supra, 152 Cal. App. 3d at p. 1013.)

(Damian v. Tamondong (1998) 65 Cal. App. 4th 1115, 1129.)

Here, Plaintiff dismissed this case without prejudice after receiving an unfavorable ruling on a motion to compel. Plaintiff argues assessing attorneys’ fees here would discourage dismissal of cases against indigent defendants. This argument is unpersuasive for at least two reasons: (1) there is no evidence in the record that Ms. Rojas is unable to pay or that such inability to pay was communicated to Plaintiff and (2) if Plaintiff suspected this based on the record it already has, it should have known this before filing this lawsuit. Lawsuits do not only cause monetary hardships on the participants, they can also cause stress and divergence of time away from other essential activities. On the record here, the Court finds Ms. Rojas the prevailing party. She achieved her litigation objective.

Plaintiff next argues the fees sought are unreasonable because the amount charged for law clerks is too high, work was duplicative and work was assigned for training rather than substance. The Court has carefully reviewed both Scott Maurer declarations, including the time entry log attached to the opening Maurer declaration, and finds the time spent to be reasonable. The Court also finds the rates charged reasonable for this market.

Accordingly, Defendant’s motion for attorneys’ fees is GRANTED. Plaintiff is ordered to pay Defendant $5,342.00 in attorneys’ fees.

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