Nathaniel La Roberts Vs. Lauren Elizabeth Keith

Matter on the Law & Motion Calendar for Monday, July 15, 2024, Line 6. PLAINTIFF RIEYAHNE BLAYLOCK BY AND THROUGH GARDIAN AD LITEM HALIMA QUINN's Motion To Quash Subpoenas From Defendantt Ccsf And Request For Sanctions. The judge pro tem's report and recommendation is adopted. For the 9:30 a.m. Law & Motion calendar, all attorneys and parties may appear in Department 302 remotely. Remote hearings will be conducted by videoconference using Zoom. To appear remotely at the hearing, go to the court's website at sfsuperiorcourt.org under "Online Services," navigate to "Tentative Rulings," and click on the appropriate link, or dial the corresponding phone number. Any party who contests a tentative ruling must send an email to contestdept302tr@sftc.org with a copy to all other parties by 4pm stating, without argument, the portion(s) of the tentative ruling that the party contests. The subject line of the email shall include the line number, case name and case number. The text of the email shall include the name and contact information, including email address, of the attorney or party who will appear at the hearing. Counsel for the prevailing party is required to prepare a proposed order which repeats verbatim the substantive portion of the tentative ruling and attaches a copy of the report and recommendation and must email it to contestdept302tr@sftc.org prior to the hearing even if the tentative ruling is not contested. The court no longer provides a court reporter in the Law & Motion Department. Parties may retain their own reporter, who may appear in the courtroom or remotely. A retained reporter must be a California certified court reporter (CSR), for only a CSR's transcript may be used in California courts. If a CSR is being retained, include in your email all of the following: their name, CSR and telephone numbers, and their individual work email address. =(302/RBU)

Case Number: 24CHCV00725 Hearing Date: July 17, 2024 Dept: F51 JULY 16, 2024 DEMURRER WITH MOTION TO STRIKE Los Angeles Superior Court Case # 24CHCV00725 Demurrer and Motion to Strike Filed: 4/18/24 MOVING PARTY: Defendant Elden Elms, LP, a California Limited Partnership (Defendant) RESPONDING PARTY: Plaintiffs Joshua Lombardo, an individual; and Michael D. Everett, an individual (collectively, Plaintiffs) NOTICE: OK RELIEF REQUESTED: Defendant demurs against the sixth, eighth, and ninth causes of action in Plaintiffs complaint. Defendant also moves to strike references to punitive damages from Plaintiffs complaint. TENTATIVE RULING: The unopposed demurrer is sustained, with 30 days leave to amend. The unopposed motion to strike is granted with 30 days leave to amend. ANALYSIS This is a landlord-tenant action in which Plaintiffs are tenants in a rental unit located at 1255 Elden Avenue, Los Angeles CA 90006, in a residential property owned and operated by Defendant. (Compl. ¶ 1.) Plaintiffs allege that the subject property holds numerous habitability violations, and resulting in ongoing bed bug infestations at the Subject Property, Plaintiffs endured slum-type living conditions resulting in financial loss, property loss, personal injury and presently ongoing emotional distress. ( Id. at ¶ 3.) On 3/7/23, Plaintiffs filed their complaint against Defendant, alleging the following causes of action: (1) Breach of Warranty of Habitability (Civil Code § 1941.1); (2) Breach of Warranty of Habitability (Health & Safety § 17920.3); (3) Breach of Warranty of Habitability (Civil Code § 1942.4); (4) Negligence; (5) Nuisance; (6) Intentional Infliction of Emotional Distress; (7) Breach of Contract; (8) Unfair Business Practices; and (9) Fraudulent Concealment. On 4/18/24, Defendants filed the instant demurrer and motion to strike. No opposition has been filed to date. ANALYSIS As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that the pleading does not state facts sufficient to constitute a cause of action and is uncertain, meaning ambiguous and unintelligible. (Code Civ. Proc., § 430.10, subds. (e) and (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿( Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿ A demurrer tests the pleading alone, and not the evidence or facts alleged. ( E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaints properly pleaded or implied factual allegations. ( Ibid. ) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. ( Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Here, Defendants demur to the sixth, eighth, and ninth causes of action in Plaintiffs complaint on the bases that Plaintiffs fail¿to allege facts sufficient to¿constitute those causes of action, thereby rendering them fatally uncertain. A. Meet and Confer Defendants counsel declares that on 4/4/24, she sent Plaintiffs counsel a letter in an attempt to resolve the issues raised in the instant demurrer and motion to strike. (Decl. of Rochelle M. McKenzie ¶ 2.) On 4/16/24, counsel for the parties met and conferred telephonically, but were unable to come to a resolution. ( Id. at ¶ 3.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a). B. Intentional Infliction of Emotional Distress Plaintiffs sixth cause of action alleges Intentional Infliction of Emotional Distress against Defendant. The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendants outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. ( Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) A mere allegation that a plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendants alleged outrageous conduct, does not state a cause of action for intentional infliction of emotional distress. (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 10471048.) Here, Plaintiffs allege that although they notified Defendants of the bed bug infestations, Defendants knowingly, intentionally and willfully failed to abate the uninhabitable conditions (bed bug infestations), maintaining a company policy of apathy and/or denial. As such Plaintiffs were forced to live in uninhabitable conditions (bed bug infestations) for an extended period as a result of Defendants incessant failure to abide by their statutory duties to abate known uninhabitable conditions. (Compl. ¶ 139.) As a direct and proximate result thereof, Plaintiffs have endured and presently continue to endure many sleepless nights and much emotional and mental distress, coupled with other physical conditions associated with severe presently ongoing mental and emotional distress. ( Id. at ¶ 143.) Defendant argues that Plaintiffs allegations do not rise to the requisite level of outrageousness to support a cause of action for intentional infliction of emotional distress because Plaintiffs do not reference any specific practices or maintenance by Defendant that led to the habitability issues with the unit. In fact, the Plaintiffs resided in the unit for over 2 years without any bed bug complaints from March 2021 until April 2023 until the first issue arose. (Dem. 4:69.) Defendant further argues that Plaintiffs have not sufficiently alleged severe emotional distress resulting from Defendants conduct. ( Id. at 4:1328, citing Wong v. Jing (2010) 189 Cal.App.4th 1354.) The Court agrees and notes the Plaintiffs have failed to oppose this demurrer. Based on the foregoing, the demurrer against Plaintiffs sixth cause of action is sustained. C. Unfair Business Practices Plaintiffs eighth cause of action alleges that Defendant violated Business and Professions Code section 17200 et seq. (the UCL). To set forth a claim for unfair business practices in violation of the UCL, a plaintiff must establish that the defendant was engaged in an unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and certain specific acts. (Bus. & Prof. Code, § 17200.) In essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice borrows violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder. ( People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.) A plaintiff alleging an unfair business practice under the UCL must show that the defendant's conduct is tethered to an underlying constitutional, statutory or regulatory provision, or that it threatens an incipient violation of an antitrust law, or violates the policy or spirit of an antitrust law. ( Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 613.) Fraudulent, as used in the statute, does not refer to the common law tort of fraud but only requires a showing members of the public are likely to be deceived. ( Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 618.) Here, Plaintiffs allege that Defendants failure to maintain the Subject Property and failure to abate known habitability violations while demanding rent constitutes an unlawful business practice. & Moreover, & the unlawful practices of the Defendants violated California Civil Code §§ 1941, 1941.1, 1942.4. (Compl. ¶¶ 157158.) Defendant argues that the allegations that Defendant failed to maintain the property and abate the habitability violations while demanding rent are insufficient to support a cause of action for unfair business practices. There are no specific allegations that this was a practice of the Defendant. (Dem. 5:276:1.) The Court once again, agrees and notes Plaintiff failed to oppose this demurrer. Accordingly, the demurrer against Plaintiffs eighth cause of action is overruled. D. Fraudulent Concealment Plaintiffs ninth cause of action alleges Fraudulent Concealment against Defendant. The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. ( Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) Fairness requires that allegations of fraud be pled with particularity so that the court can weed out nonmeritorious actions before a defendant is required to answer. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity requirement typically necessitates pleading facts that show how, when, where, to whom, and by what means the representations were tendered. ( Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Here, Plaintiffs allege that prior to their April 2023 discovery of the bedbug infestation in their apartment, Defendants knew of widespread bed bug infestations at the Subject Property and Plaintiffs Unit. However, Defendants intentionally withheld this information from Plaintiffs. (Compl. ¶ 163.) Specifically, Plaintiffs allege that Defendants knew that the Subject Property and Subject Unit was infested with bedbugs and that prospective tenants would incur significant physical injuries and severe emotional distress, along with property damage and economic losses, and therefore intentionally did not notify Plaintiffs so that they could ensure that the unit would be leased out by them. ( Id. at ¶ 168.) Such knowledge was materially relevant to Plaintiffs and Defendants, as, had Plaintiffs known of the bedbugs within the unit, Plaintiffs would not have leased the Subject Property. ( Id. at ¶ 165.) Defendant argues that Plaintiff fails to allege that Defendant owed them a duty to disclose the presence of bed bugs in other units that are not leased to Plaintiffs. (Dem. 7:1415.) Defendant further argues that this cause of action is not pled with the requisite specificity because Plaintiffs have failed to include any such facts about the specific representations made and at what point in time in the Complaint. ( Id. at 7:2223.) The Court agrees, and again notes that Plaintiffs have failed to oppose the instant motion. Based on the foregoing, the Court finds that Plaintiffs have failed to allege facts sufficient to constitute a cause of action for fraudulent concealment. Accordingly, the demurrer is sustained as to Plaintiffs ninth cause of action. MOTION TO STRIKE The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. ( Id. , § 436, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. ( Id. , § 437.) A. Punitive Damages Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) Malice is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. ( Id. at subd. (c); Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) Oppression means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the persons rights. ( Ibid. ) Fraud is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. ( Ibid. ) Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. ( Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) Here, Defendant argues that punitive damages are not warranted because Plaintiffs only claim inaction in the form of failing to abate bed bugs, which is not enough to support punitive damages. (MTS 2:2021.) Defendant contends that Plaintiffs[] Complaint merely alleges that Defendant failed to abate bed bugs. Nothing about the facts in the Complaint suggest any intentional let alone malicious behavior other than Plaintiffs[] conclusory allegation, absent of specific notifications made, that Defendant failed to address the alleged bed bugs. ( Id. at 4:1619.) Once again, the Court notes Plaintiffs have failed to oppose the instant motion and grants the Motion to Strike. LEAVE TO AMEND Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. ( Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. ( Id. ; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, [i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend. ( Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). Here, the Court notes that this is the first demurrer brought against Plaintiffs original complaint. Therefore, under the Courts liberal policy of granting leave to amend, Plaintiff is granted 30 days leave to amend the complaint to cure the defects set forth above. Plaintiff is cautioned that following an order sustaining a demurrer & with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. & The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. ( Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) CONCLUSION The unopposed demurrer is sustained with 30 days leave to amend. The unopposed motion to strike is granted with 30 days leave to amend.

Case Number: 22TRCV00835 Hearing Date: July 16, 2024 Dept: P MOTION TO DIRECT COMPLIANCE WITH SUBPOENA TO VA HOSPITAL The court considered the moving papers. No opposition or reply papers were filed. RULING The Motion to Direct Compliance With Subpoena to VA Hospital is GRANTED. Nonparty VA Hospital is ordered to comply with the subpoena served by the moving parties on or about February 8, 2024. BACKGROUND On 9/16/2022, plaintiff Stanley Matthews (Plaintiff) filed this action against defendants Centinela Hospital Medical Center Auxiliary, Cedars Foot & Ankle Center, and Ashkan Soleymani, DPM (sued as Ashkan Soleyman, M.D.) (Dr. Soleymani), asserting causes of action for (1) medical malpractice and (2) negligent misrepresentation. The Complaint alleges that this action arises from the care and treatment provided by Dr. Soleymani to Plaintiff for an infection of his right big toe and part of his foot. Plaintiff contends that Dr. Soleymani performed a surgery claiming to have removed pieces of rotten bones out of Plaintiffs right foot and that the surgery was successful. Plaintiff claims that he believed his foot still looked infected, so he visited another doctor, who performed an x-ray of Plaintiffs right foot and concluded that his right big toe had to be amputated. On 5/1/2024, defendants Cedars Foot & Ankle Center and Dr. Soleymani (collectively, Defendants) filed the instant motion seeking an order directing nonparty VA Hospital to comply with their deposition subpoena for business records. On 6/3/2024, the court held the hearing on the motion and issued an authorization allowing Defendants to serve nonparty VA Hospital through electronic and certified mail. The court ordered Defendants to serve a supplemental declaration before the hearing showing service on VA Hospital. On 6/5/2024, Defendants filed a new notice of motion showing they served the nonparty as the court instructed. No opposition has been filed. The trial Setting Conference is set for 9/11/2024. A. Legal Standard [D]iscovery from a nonparty may be obtained only by deposition subpoena (§ 2020.010, subd. (b)). Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130 (italics removed) (Unzipped). A business records subpoena directs the nonpartys custodian of records (or other qualified person) to deliver the requested documents (in person, by messenger, or by mail) to the deposition officer specified in the subpoena. [Citation.] Id. at p. 131. A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired. Code Civ. Proc., § 2020.410, subd. (a). A provider of health care, health care service plan, or contractor shall not disclose medical information regarding a patient of the provider of health care or an enrollee or subscriber of a health care service plan without first obtaining an authorization, except as provided in subdivision (b) or (c). Civ. Code, § 56.10, subd. (a). However, a provider of health care, a health care service plan, or a contractor shall disclose medical information if the disclosure is compelled by a party to a proceeding before a court & pursuant to a & subpoena duces tecum, notice to appear served pursuant to Section 1987 of the Code of Civil Procedure, or any provision authorizing discovery in a proceeding before a court &. Civ. Code, § 56, subd. (b)(1). If a subpoena requires & the production of books, documents, electronically stored information, or other things before a court &, the court, upon motion & may make an order & directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. Civ. Code Proc., § 1987.1, subd. (a) (emphasis added). B. Discussion As an initial matter, the court finds the instant motion timely as it was filed on May 1, 2024, within 60 days of March 11, 2024, the date set by the subpoena to produce records. Code Civ. Proc., § 2025.480, subd. (b) (stating that a motion [to compel compliance with a deposition notice or subpoena] shall be made no later than 60 days after the completion of the record of the deposition &); Unzipped, supra, 156 Cal.App.4th at p. 136 (The record [is] complete as of the date set for the production [of business records] &). Defense counsel attests to the following facts in support of the motion. This is a medical malpractice action, where plaintiff Stanley Matthews claims that he was injured as a result of medical treatment rendered by defendants. Throughout the course of this litigation, defendants learned that Mr. Matthews received medical treatment at the VA Hospital. Defense counsel then served a subpoena to the VA Hospital on or around February 8, 2024. (Exhibit A) In response, the Department of Veterans Affairs notified the copy service on or around April 25, 2024, that they would not be complying with the document subpoena, and that an authorization would be required for the release of the requested records. Defense counsel has recently learned that Mr. Matthews is deceased, and therefore, there will be no forthcoming signed authorization for the release of these records. Motion, Declaration of John C. Lender, ¶ 2 (emphasis added). Having reviewed the subpoena and found it seeks relevant information, having noted that there has been no opposition to the motion filed, and given defense counsels declaration, the court finds it proper to grant the motion. C. Conclusion The Motion to Direct Compliance With Subpoena to VA Hospital is GRANTED. Nonparty VA Hospital is ordered to comply with the subpoena served by the moving parties on or about February 8, 2024. Moving parties to give notice.

Case Number: 24NNCV00238 Hearing Date: July 15, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: July 15, 2024 TRIAL DATE: No date set. CASE: MICHAEL CERDA, et al. v. PASADENA MEADOW NURSING CENTER L.P.. CASE NO.: 24NNCV00238 (1) MOTION TO APPOINT YVETTE SALAZAR AS SPECIAL ADMINISTRATOR; (2) MOTION TO REDESIGNATE RONALD CERDA AS A PLAINTIFF MOVING PARTY : (1) Plaintiff Yvette Salazar (2) Nominal Defendant Ronal Cerda RESPONDING PARTY : (1) Cross-Complainants and Nominal Defendants Gregory Cerda, Ernest Cerda, and Yvonne Mejia (2) None SERVICE: (1)/(2) Filed June 17, 2024 OPPOSITION : (1) Filed July 1, 2024 RELIEF REQUESTED (1) Plaintiff Yvette Salazar seeks to be appointed the special administrator to prosecute Decedent Ruben Cerdas survival claims in the instant action. (2) Nominal Defendant Ronald Cerda seeks to be re-designated as a plaintiff in this action and for leave to amend complaint so that the caption and allegations reflect his designation as a plaintiff. BACKGROUND This case arises out of the death of Ruben Armando Cerda (Decedent). Plaintiffs Michael Cerda and Yvette Salazar, individually and as heirs and successors in interest to Decedent, initiated this action on March 13, 2024 against Pasadena Meadows Nursing Center, LP dba Huntington Post Acute; Pasadena Hospital Association, LTD, Climb Inc., and Melissa Ung (collectively, Defendants). Gregory Cerda, Ronald Cerda, Ernest Cerda, and Yvonne Mejia are identified as nominal defendants. The Complaint asserts the following causes of action: (1) Elder/Dependent Adult Abuse/Neglect (Survival Action); (2) Negligence/Professional Negligence (Survival Action); (3) Wrongful Death; (4) Statutory Violations/Breach of Resident Rights (Health & Safety Code § 1430(b); and (5) Negligent Infliction of Emotional Distress. On May 15, 2024, Cross-Complainants Gregory Cerda, Ernest Cerda, and Yvonne Mejia, individually and as successors in interest to Decedent Ruben Armando Cerda, (collectively, Cross-Complainants) filed a cross-complaint against Defendants, asserting the following causes of action: (1) Elder/Dependent Adult Abuse/Neglect (Survival Action); (2) Negligence/Professional Negligence (Survival Action); (3) Wrongful Death; (4) Statutory Violations/Breach of Resident Rights (Health & Safety Code § 1430(b); (5) Negligent Infliction of Emotional Distress; and (6) Request for Declaratory Relief to be Named as Successor-in-Interest to Decedent. The Cross-Complaint identifies Michael Cerda and Yvette Salazar as nominal cross-defendants. On June 17, 2024, Plaintiff Yvette Salazar filed the instant motion to be appointed as special administrator of Decedent Ruben Cerdas survival claims pursuant to Code of Civil Procedure § 377.33. Cross-Complainants oppose the instant motion. On June 17, 2024, Nominal Defendant Ronald Cerda seeks to be re-designated as a plaintiff in this action and leave to file an amended complaint so that the caption and allegation reflect this new designation. TENTATIVE RULING (1) Plaintiff Yvette Salazars motion to be appointed special administrator pursuant to Code of Civil Procedure section 377.33 is GRANTED. (2) Nominal Defendant Ronald Cerda motion to be re-designated as a plaintiff is GRANTED. DISCUSSION I. Motion to be Appointed Special Administrator Plaintiff Yvette Salazar (Salazar) moves to be appointed special administrator Decedent Ruben Cerdas survival claims pursuant to Code of Civil Procedure § 377.33. The court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent's successor in interest as a special administrator or guardian ad litem. (Code Civ. Proc. § 377.33.) Here, Salazar argues that she should be appointed special administrator of Decedent Ruben Cerdas survival claims because she is the person most knowledgeable regarding the events that gave rise to this lawsuit. In particular, Salazar attests she: (1) was her brothers emergency contact at all of the defendant facilities (Salazar Decl. ¶¶ 4, 6); (2) was regularly in contact with Defendant Climb Inc.s personnel ( Id. at ¶ 4); (3) participated in her late-brothers quarterly Individual Program Plan ( Ibid. ); (4) spoke and interacted with her late-brother frequently ( Id. at ¶¶ 5, 9); (5) communicated with hospital staff regarding her late-brothers condition and provided informed consent for all necessary procedures ( Id. at ¶ 16.) Salazar reasons that, because the plaintiffs and cross-complainants have competing wrongful death claims and discovery will likely be protracted, it would be appropriate to appoint a special administrator for the survival claims in order to streamline the discovery process. (Motion re: Special Administrator at pg. 4.) Furthermore, Salazar argues that all of the siblings would benefit from her appointment because they would be relieved of the burden of proving the survival claims and each would receive an equal share of the proceeds that would be awarded to Decedents estate. ( Ibid. ) In opposition, Cross-Complainants first argue that it would be inappropriate Salazar to serve as a special administrator through her attorney because there is a conflict of interest amongst the Plaintiffs and Cross-Complainants. (Opposition at pg. 4.) However, this argument is not persuasive because Salazar seeks to be the special administrator over Decedents survival claims only. These claims do not belong to either Plaintiffs or Cross-Complainants because they are separate and distinct from their wrongful death claims and remaining individual claims. (Code of Civ. Proc. §§ 377.30; 377.62.) Instead, because Decedent died intestate, the siblings would be entitled to an equal share of any settlement or judgment award. (Prob. Code § 6402(b),(c).) Thus, Cross-Complainants concern that Salazar and her counsel would reach a settlement that is more favorable to them is unwarranted. (See Opposition at pg. 4.) Second, Cross-Complainants argue that they are distrustful of the representation that Salazars counsel will provide based on pre-litigation statements made to them. ( Id. at pg. 5; Mejia Decl. ¶ 12-21; Gregory Cerda Decl. ¶¶ 11-21; Ernest Cerda Decl. ¶¶ 11-21.) Also, Cross-Complainants do not wish to be associated with Ronald Cerda and Salazar for personal reasons. ( Id. at pp. 4-5; Mejia Decl. ¶¶ 7-11; Gregory Cerda Decl. ¶¶ 6-10; (Ernest Cerda Decl. ¶¶ 6-10.) Based on the representations made from Salazars counsel, it appears that any distrust that was formed was likely due to miscommunication or misunderstanding. (See Reply, Francis Decl. ¶¶ 1-19.) While there appears to be a rift amongst siblings, Cross-Complainants desire not to be associated with Salazar is insufficient to preclude her appointment as special administrator of Decedents survival claims. Furthermore, this argument is undermined by the fact that Cross-Complainants proposed Gregory Cerda act as a co-special administrator alongside Salazar. (See Opposition at pg. 3.) Moreover, the only support as to why Gregory Cerda should be appointed as a special administrator is because he is the second oldest sibling. (See Mejia Decl. ¶ 22; Ernest Decl. ¶ 20.) Notably, Cross-Complainants do not set forth any evidence to suggest Salazar is not the best person to represent Decedents survival claims. Accordingly, because of Salazars close relationship with Decedent and due to the likelihood that she is the person who possesses the most knowledge regarding the events that gave rise to this action, Salazars motion to be appointed special administrator is granted. // // // II. Motion for Re-Designation Nominal Defendant Ronald Cerda (Ronald) seeks to be re-designated as a plaintiff in this action because he believes that his interests as a wrongful death heir would be best served by participating in this action as a plaintiff. (Motion re: Re-Designation at pg. 1; Cerda Decl. ¶¶ 2-3.) As one of Decedent Ruben Cerdas siblings and statutory heirs, Ronald was named as a nominal defendant because he did not seek to participate in the action. ( Id. at pg. 1; Cerda Decl. ¶¶ 1-2; Code Civ. Proc. § 377.60(a); Probate Code § 6402(b),(c); Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808.) Because Ronald was named a nominal defendant, he is for practical purposes a plaintiff. ( See Ruttenberg, supra, 53 Cal.App.4th at pg. 808 [An heir named as a nominal defendant in a wrongful death action is, in reality, a plaintiff.].) Therefore, it follows that he has claims that arise out same series of occurrences as the other plaintiffs and that are adverse to the named defendants. (See Code Civ. Proc. § 378(a).) Consequently, Ronald may formally join in this action as a plaintiff. Accordingly, Ronalds motion to be re-designated as a plaintiff is granted. Plaintiffs are permitted to file an amended complaint solely for the purpose that the caption and allegations reflect this re-designation. CONCLUSION Plaintiff Yvette Salazars motion to be appointed special administrator pursuant to Code of Civil Procedure section 377.33 is GRANTED. Nominal Defendant Ronald Cerdas Motion to be Re-Designated as a Plaintiff is GRANTED. Plaintiffs are permitted to file an amended complaint solely for the purpose that the caption and allegations reflect this re-designation. Moving Parties to give notice. Dated: July 15, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org

Case Number: 23AHCV01203 Hearing Date: July 17, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: July 17, 2024 TRIAL DATE: No date set. CASE: Katherine Perez v. Octavio Lara, et al. CASE NO.: 23AHCV01203 MOTION FOR TERMINATING SANCTIONS MOVING PARTY : Defendant Octavio Lara RESPONDING PARTY : Plaintiff Katherine Perez SERVICE: OK (overnight mail, 5/24/24) OPPOSITION: N/A REPLY: N/A RELIEF REQUESTED Defendant moves for an order dismissing Plaintiffs complaint based on alleged discovery misconduct. BACKGROUND Plaintiff Katherine Perez sued defendants Octavio Lara, fictitiously-named John Doe, and Does 1 to 50 on May 26, 2023, for negligence and related claims arising from a car accident that occurred on June 3, 2021 on Interstate 210. On December 28, 2023, Lara filed his answer. On January 8 and 10, 2024, Lara moved for an order compelling Plaintiff to produce further responses to several sets of discovery; he subsequently removed the motions from calendar. On March 21, 2024, the Court granted Plaintiffs counsels motion to be relieved. On April 18, 2024, the Court granted Laras motion to compel Plaintiff to appear for deposition and produce documents. The Court also imposed monetary sanctions on Plaintiff. On May 24, 2024, Lara filed the instant motion for terminating sanctions, contending that Plaintiff has not complied with the Courts April 18, 2024, and has not indicated she has any intent to do so. Plaintiff filed no opposition, and Lara no reply. A final status conference is set for August 8, 2024, and jury trial on August 20, 2024. TENTATIVE RULING The motion is DENIED. LEGAL STANDARD The Civil Discovery Act requires the court to impose monetary sanctions on a party who unsuccessfully opposes a motion to compel initial or further discovery responses. (See Code Civ. Proc., §§ 2030.290(c), 2030.300(d), 2031.300(c), 2031.310(h), 2033.280(c), 2033.290(d).) If a party then fails to obey an order compelling initial or further response, the Act permits the court at its discretion to impose escalating sanctions, including issue, evidence, or terminating sanctions. (See id. , §§ 2030.300(e), 2031.310(i).) DISCUSSION On April 18, 2024, the Court ordered Plaintiff to appear for deposition and produce documents on May 21, 2024, and to pay $450.00 in monetary sanctions within sixty (60) days. (See 04-18-2024 Minute Order.) Laras counsels uncontradicted declaration establishes Plaintiff did not comply with any part of this order. (McNulty Decl., ¶¶ 5-6.) The Court has the discretion to impose escalating sanctions. However, a terminating sanction remains slightly premature. In imposing discovery sanctions, [t]he trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery[.] ( Id., 992.) Sanctions should be tailored to the harm created by the withheld discovery and should not be used as punishment. ( Ibid. ) The court should also consider whether the discovery misconduct was willful and whether the requesting party was prejudiced by the others failure to comply. ( Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 37.) Case law suggests the court should take an incremental approach to sanctions, holding that terminating sanctions should be used sparingly and as a last resort, ( Department of Forestry & Fire Protection v. Howell (2017) 18 Cal.App.5th 154, 191); that terminating sanctions are the ultimate sanction and should not be automatically imposed for every such disobedience of a discovery order ( Karz v. Karl (1982) 137 Cal.App.3d 637, 649); and that less severe alternatives should be attempted unless there is reason to believe they would be ineffective. ( Lopez v. Watchtower Bible & Tract Society of New York, Inc . (2016) 246 Cal.App.4th 566, 604.) Here, the facts do not sufficiently establish a willful failure to comply with the Courts order, nor do they establish that lesser sanctions cannot induce Plaintiffs compliance. The Court might have imposed lesser sanctions, but Lara did not request any in the alternative. The Court recognizes that Defendant will suffer prejudice if trial proceeds as scheduled. The Court therefore orders a short continuance and reserves a hearing date for a renewed sanctions motion. The Court will consider terminating sanctions at that time if Plaintiff still has not complied with the Courts order. Whether or not Plaintiff complies, the Court will consider lesser sanctions as appropriate to remediate any prejudice caused by Plaintiffs misconduct. CONCLUSION The Court denies the motion without prejudice. The Court advances to this date the final status conference and jury trial set for August 8 and August 20, 2024, respectively, and continues them to October 3 and October 15, 2024. The Court reserves a hearing date for Defendants renewed sanctions motion on September 4, 2024, at which the Court will reconsider terminating or lesser sanctions depending Plaintiffs compliance with the Courts April 18, 2024 order. Defendant is ordered to give notice by overnight mail and file proof of such with the Court. Dated: July 17, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org

Re: Gonzales v. Contreras Superior Court Case No. 23CECG02610 Hearing Date: July 18, 2024 (Dept. 503) Motion: Petition to Approve Compromise of Disputed Claim of Minor Tentative Ruling: To grant. Order signed. No appearances necessary. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: jyh on 7/16/24 . (Judge’s initials) (Date)

Case Number: 23VECV05269 Hearing Date: July 17, 2024 Dept: 107 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES NORTHWEST DISTRICT Angela Xifaras, Plaintiff, v. Cal Pacific Medical Aesthetics, et al., Defendants. Case Number Department 23VECV05269 107 COURTS [TENTATIVE] RULING RE: Motion to Compel Arbitration [THE FOLLOWING IS A TENTATIVE RULING IN THE ABOVE CASE]: Defendant Cal Pacific Medical Aesthetics moves to compel arbitration of the claims brought by plaintiff Angela Xifaras. This court denies the motion. I. BACKGROUND On May 24, 2022, plaintiff Angela Xifaras (Plaintiff) underwent a cosmetic surgery performed by defendant James Hartleroad, M.D. (Dr. Hartleroad) at defendant Cal Pacific Medical Aesthetics (Defendant and, together with Plaintiff, Parties) to inject a substance called Bellafill into her buttocks. (Complaint ¶ 2.) Plaintiff alleges that because Dr. Hartleroad instead injected silicone, she suffered issues with discoloration, deformity, and pain and had to undergo subsequent procedures to remove the silicone. (Ibid.) The same day, Plaintiff executed an arbitration agreement (the Agreement). (Hartleroad Decl. ¶ 3, Exh. 1.) On November 27, 2023, Plaintiff initiated this action by filing a complaint (the Complaint) alleging causes of action for (1) battery, (2) negligent hiring, training, supervision, and retention, (3) medical battery, (4) intentional misrepresentation, (5) negligent misrepresentation, (6) fraudulent concealment, (7) medical malpractice, (8) lack of informed consent, (9) violation of Business and Professions Code § 17200, et seq., and (10) intentional infliction of emotional distress. On April 16, 2024, Defendant filed a motion (the Motion) to compel arbitration. On April 29, 2024, Plaintiff filed an opposition (the Opposition) to the Motion, to which Defendant replied on July 10, 2024. II. EVIDENTIARY OBJECTIONS Defendant objects to the Xifaras Declaration (as defined below) and the declaration by Plaintiffs counsel (the Hemesath Declaration), both of which Plaintiff submits with the Opposition. (Objections p. 2.) Defendants Objections to the Xifaras Declaration 1. Objection No. 1 is overruled. 2. Objection No. 2 is overruled 3. Objection No. 3 is overruled. 4. Objection No. 4 sustained as to the first sentence only on the grounds that the declarant lacks personal knowledge and that the statement is speculative. It is overruled as to the second sentence. 5. Objection No. 5 is overruled. 6. Objection No. 6 is overruled. 7. Objection No. 7 is overruled. Defendants Objections to the Hemesath Declaration 1. Objection No. 1 is overruled. 2. Objection No. 2 is overruled. 3. Objection No. 3 is overruled. 4. Objection No. 4 is sustained on the grounds that the declarant lacks personal knowledge. III. THE ARBIRATION AGREEMENT Defendant submits with the Motion a declaration by Dr. Hartleroad (the Hartleroad Declaration), which certifies and attaches a copy of the Agreement. The Agreement is one of 11 total pages of documents and agreements attached to the Hartleroad Declaration. (Hartleroad Decl. Exh. 1.) Article 1 of the Agreement provides, in relevant part, that any dispute as to medical malpractice, that is as to whether any medical or dental services rendered under this contract were unauthorized or improperly, negligently or incompetently rendered, will be determined by submission to arbitration. (Hartleroad Decl. Exh. 1.) Article 2 of the Agreement provides, It is the intention of the parties that this agreement shall cover all existing or subsequent claims or controversies whether in tort, contract or otherwise, and shall bind all parties whose claims may rise out of or in any way relate to treatment or services provided by [Your Spa Name Here] to a patient. (Hartleroad Decl. Exh. 1.) A few lines above the signature line, the Agreement additionally provides, NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE Of MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO JURY OR COURT TRIAL. (Refer to Article 1 of California Code of Civil Procedure sect 1295). (Hartleroad Decl. Exh. 1.) The Agreement is signed and dated by only Plaintiff. (Hartleroad Decl. Exh. 1.) The Agreement does not provide for a division of payment for arbitration. (Hartleroad Decl. Exh. 1.) IV. DISCUSSION Under both the Federal Arbitration Act and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. ( Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The right to arbitration depends upon contract; a petition to compel arbitration is simply a suit in equity seeking specific performance of that contract. ( Marcus & Millichap Real Estate Inv. Brokerage Co. v. Hock Inv. Co. (1998) 68 Cal. App.4th 83, 88.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, the party opposing the petition then bears the burden of proving by a preponderance of the evidence any fact necessary to demonstrate that there should be no enforcement of the agreement, and the trial court sits as a trier of fact to reach a final determination on the issue. ( Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413; Provencio v. WMA Securities, Inc. , 125 Cal.App.4th 1028, 1031.) In determining whether an¿arbitration¿agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing¿arbitration. ( Weeks v. Crow ¿(1980) 113 Cal.App.3d 350, 353.)¿¿ ¿ This court is empowered by California Code of Civil Procedure section 1281.2 to compel parties to arbitrate disputes pursuant to an agreement to do so. The court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists&. (Cal. Code Civ. Proc. §¿1281.2.) Thus, Section 1281.2 requires a court to order arbitration if it determines that an agreement to arbitrate exists. ( Ruiz v. Moss Bros. Auto Group, Inc . (2014) 232 Cal.App.4th 836, 841.)¿¿ ¿¿ California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. ( Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 97172.) This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute. ( Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) Notwithstanding that strong policy, the United States Supreme Court has held, [A]rbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. ( AT & T Technologies, Inc. v. Communications Workers of America (1986) 475 U.S. 643, 648.) The hearing and determination of a petition to compel arbitration in the manner and upon the notice provided by law for the hearing of motions generally means that the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court's discretion. ( Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1157.) This Courts Authority to Decide Threshold Issues Defendant argues that a question of validity of contract and/or arbitration agreement is one for the arbitrator and not the local court. (Motion p. 7.) The trial court typically decides the threshold issues of enforceability of the arbitration agreement and the scope of issues to be arbitrated. ( Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891.) However, parties can agree to arbitrate gateway questions of arbitrability, such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy. ( Ibid .) There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability. The clear and unmistakable test reflects a heightened standard of proof that reverses the typical presumption in favor of the arbitration of disputes. ( Id . at 892, internal citations omitted, emphasis original.) When the question is simply whether plaintiff entered at all into the arbitration agreement of which the delegation clause is a part, the initial determination of whether an arbitration agreement exists is one for the court, not the arbitrator. ( Theresa D. v. MBK Senior Living LLC (2021) 73 Cal.App.5th 18, 27.) Plaintiff challenges the enforceability of the Agreement in this action, and disputes that any arbitration agreement exists that may be enforced against her in this action. (Opposition pp. 34.) Thus, following Theresa D. v. MBK Senior Living LLC , supra , 73 Cal.App.5th 18 at 27, the initial determination of whether the Agreement may be enforced in this action is one that may be determined by this court, rather than by the arbitrator. Moreover, the Agreement does not contain any provisions delegating the role of determining the abritrability of Plaintiffs claims to an arbitrator. In the absence of such a delegation provision, following Aanderud v. Superior Court , supra, 13 Cal.App.5th 880 at 891, the court should typically decide whether the Agreement may be enforced in a particular action, and so this court may do so. Existence of an Agreement to Arbitrate In California, general principles of contract law determine whether the parties have entered a binding agreement to arbitrate. ( Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) 1. Plaintiffs Signature on the Agreement Defendant contends that because the authenticity of Plaintiffs signature on the Agreement is not disputed, Plaintiff must be compelled to arbitrate her claims. (Reply pp. 34.) Defendant cites Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 75659 as a very similar case. (Id. at p. 3.) Plaintiff declares, [a]mong the many documents I signed was the agreement that Defendants are claiming requires this case to be arbitrated. I do not recall signing the agreement nor any discussion about this agreement. (Xifaras Decl. ¶ 3.) We agree with Defendant that the facts of this case are similar to those of Iyere v. Wise Auto Group , supra , 87 Cal.App.5th 747 at 75659 in regard to the authenticity of the signature on the arbitration agreement at issue. Like in Iyere v. Wise Auto Group , supra , at 75659, Plaintiff here does not deny having signed the Agreement. In fact, she admits to having signed it among the other documents she signed. (Xifaras Decl. ¶ 3.) In light of such admission, that she does not recall signing the Agreement does not contradict the evidence that Defendant has brought that she did sign it. Thus, Defendant has brought evidence that the Agreement was signed by Plaintiff, which she does not dispute. This court consequently, in making its findings and its ruling on the Motion, does not rely on the assumption that the authenticity of Plaintiffs signature is disputed or on Plaintiffs declaration that she does not recall signing the Agreement. 2. Fraud in the Inducement Claims that, due to fraud in the execution of the agreement as a whole, the parties reached no contract containing an arbitration clause, are [] to be decided by the court. ( Rosenthal v. Great Western Fin. Securities Corp. , supra , 14 Cal.4th 394, at 419.) Fraud in the inducement [] occurs when the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable. ( Rosenthal v. Great Western Fin. Securities Corp. , supra , 14 Cal.4th 394, at 415, emphasis removed.) Fraud in the inducement is a subset of the tort of fraud. ( Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage. ( Ibid .) Plaintiff contends that Defendant has failed to meet its burden of showing the existence of a contract and compliance with all laws applicable to any such contract. (Opposition p. 3.) Plaintiff argues that she consented to contract only to the injection of Bellafill into her buttocks and since this action arises out of the injection of silicone into her buttocks, she never consented to any contract applicable to this action. (Id. at p. 4.) Plaintiff additionally argues that the Agreement is invalid because Plaintiff was fraudulently induced to enter it by Dr. Hartleroads misrepresentations that he would inject Bellafill and not silicone into Plaintiffs buttocks. ( Ibid .) We find that this action arises, however, from the same medical procedure that the Agreement and accompanying documents and agreements were intended to govern. And, although Plaintiff contends that it is Defendants burden to show that the arbitration agreement is valid because Plaintiffs consent thereto was not induced through fraud, following Rosenthal v. Great Western Fin. Securities Corp. , supra , 14 Cal.4th 394, at 419, this burden belongs to Plaintiff. Plaintiff has made no showing that Defendants knew that their misrepresentations about the substance to be injected into her buttocks were false, and therefore, Plaintiff has failed to allege all the elements for fraud in the inducement. We therefore find that Plaintiff has failed to meet her burden of showing that Plaintiffs consent was induced through fraud. 3. The Agreements Identification of Defendants Plaintiff additionally argues that the Agreement is invalid because its text does not identify Defendants as party to the Agreement. (Opposition p. 5.) She emphasizes that Article 2 of the Agreement, which defines the scope of the Agreement, fails to name either Defendant or Dr. Hartlroad. (Ibid.) This court additionally observes that both Article 1 and the warning a few lines above the signature line refer only to claims of medical malpractice being subject to arbitration, and that the Agreement is not signed by Defendants. (Hartleroad Decl. Exh. 1.) Neither Party disputes that the Agreement and the accompanying ten pages of documents and agreements together constitute a single contract. We agree with Plaintiff that because Article 2 of the Agreement fails to name Defendants, it does not broaden the scope of the Agreements arbitration mandate to cover all existing or subsequent claims or controversies& that rise out of or in any way relate to treatment or services provided by Defendants. Article 2 therefore does not broaden the scope of the Agreements arbitration mandate to cover any of the claims brought in this action. However, Article 1 mandates that any dispute as to medical malpractice, that is as to whether any medical or dental services rendered under this contract were unauthorized or improperly, negligently or incompetently rendered be determined by submission to arbitration and not by a lawsuit or resort to court process. Because we found above that Plaintiffs claims in this action arise from the same medical procedure that the Agreement and its accompanying documents and agreements govern, we find that Article 1 applies to Plaintiffs claims to the extent they fall within Article 1s scope. This court finds that the Agreement therefore governs only Plaintiffs claims of medical malpractice, as it is defined in Article 1 of the Agreement, and no other claims brought in this action. We consequently find that the Agreement, to the extent that it is enforceable, governs Plaintiffs seventh cause of action for medical malpractice and her eighth cause of action for lack of informed consent. However, we fail to find that an agreement to arbitrate that governs Plaintiffs remaining eighth causes of action in this action exists. Code of Civil Procedure section 1295, subdivision (a) Code of Civil Procedure section 1295, subdivision (a) provides, Any contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider shall have such provision as the first article of the contract and shall be expressed in the following language: It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration. Code of Civil Procedure section 1295, subdivision (b) provides, Immediately before the signature line provided for the individual contracting for the medical services must appear the following in at least 10-point bold red type: NOTICE: BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT TRIAL. SEE ARTICLE 1 OF THIS CONTRACT. Under section 1295, arbitration of& professional negligence claims may not be compelled if the requirements of that section are not met. ( Herbert v. Superior Court (1985) 169 Cal.App.3d 718, 727.) The certain warnings mandated by Code of Civil Procedure section 1295, subdivisions (a) and (b) differ from the language in the Agreement. The Agreement omits Section 1295s references to California law and misstates the warning above the signature lines reference to Article 1. (Hartleroad Decl. Exh. 1.) We therefore find that the Agreement does not comply with Section 1295s requirements. Consequently, following Herbert v. Superior Court , supra , 169 Cal.App.3d 718 at 727, arbitration of professional negligence claims may not be compelled pursuant to the Agreement. Unconscionability The doctrine of unconscionability applies to arbitration agreements. ( Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1469.) Civil Code section 1670.5, subdivision (a) provides, If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract. Unconscionability has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. The 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. ( Peng v. First Republic Bank , supra , at 1469, internal citations omitted, emphasis original.) Ordinary contracts of adhesion, although they are indispensable facts of modern life that are generally enforced, contain a degree of procedural unconscionability. ( Baltazar v. Forever 21, Inc . (2016) 62 Cal.4th 1237, 1244.) [W]here a consumer enters into an adhesive contract that mandates arbitration, it is unconscionable to condition that process on the consumer posting fees he or she cannot pay. ( Gutierrez v. Autowest, Inc . (2003) 114 Cal.App.4th 77, 89.) Additionally, arbitral costs may be unconscionable for other reasons. (Id. at 89, fn. 9.) Per Code of Civil Procedure section 1295, subdivision (e), [a]ny contract for medical services which contains a provision for arbitration of any dispute as to professional negligence of a health care provider is not a contract of adhesion, nor unconscionable nor otherwise improper where, inter alia , it contains the certain language, which warns the signer that they are signing an arbitration agreement, contained in subdivisions (a) and (b) of the same code section. Code of Civil Procedure section 1284.2 provides, in relevant part, Unless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator. Plaintiff contends that the Agreement is unenforceable because it is unconscionable. (Opposition p. 5.) She argues that the Agreement is procedurally unconscionable because it is an adhesion contract presented on a take-it-or-leave-it basis and because Plaintiff was induced to enter the Agreement by Defendants fraudulent misrepresentations. (Ibid.) And, she argues that the Agreement is substantively unconscionable because it likely imposes such a financial burden on Plaintiff that it leads to the very real possibility that Plaintiff may be deprived of any forum to resolve her claims. (Ibid.) Plaintiff submits with the Opposition a declaration (the Xifaras Declaration), which she signs under penalty of perjury, that states, On or about May 24, 2022, before I received injections to my buttocks by staff at [Defendant], I was presented with forms to sign. Among the many documents I signed was the agreement that Defendants are claiming requires this case to be arbitrated. I do not recall signing the agreement nor any discussion about this agreement. I was not told that the agreement was optional, and I was not told I could have the agreement reviewed by an attorney or that I could propose any changes whatsoever to the agreement. (Xifaras Decl. ¶ 3.) The Xifaras Declaration also states, I do not have the available funds to pay for such an arbitration; On average, I earn approximately $3000 monthly and my monthly living expenses consume this income; and I have no other assets or property such as retirement accounts, investment accounts, or stocks or bonds. (Xifaras Decl. ¶¶ 46.) Defendants argue that [b]ased on Plaintiffs financial stance and her ability to pay expensive aesthetic treatments, the cost of arbitration should be shared equally between the Plaintiff and the Defendants, ensuring that neither party is unduly burdened by the financial implications of accessing dispute resolution mechanisms, which is particularly important in the context of medical service agreements where the disparity in resources between the service provider and the client could be significant. (Motion p. 8.) Although Defendants submit declarations with the Motion, they do not describe any financial inability by Defendants to pay for arbitration. As an initial matter, we observe that because we find above that the Agreement does not comply with Code of Civil Procedure section 1295, subdivisions (a) and (b), Section 1295, subdivision (e) does not apply and does not prevent this court from finding that the Agreement is a contract of adhesion or unconscionable. Defendant argues that Plaintiff submitted no evidence relating to the specific circumstances surrounding the signing of the [Agreement]. (Reply p. 5.) We disagree because Plaintiff submits the Xifaras Declaration with the Opposition. And, although Defendant observes that [t]here is no evidence that Plaintiff informed any of the Defendants that she was not willing to sign the [Agreement] and that Defendant refused to provide services, Defendant submits no evidence that the Agreement was not an adhesion contract or that Plaintiff was free to decline to sign the Agreement and would have still received services. Following Sonic-Calabasas A, Inc. v. Moreno , supra , 57 Cal.4th 1109 at 1157, the facts in a motion to compel arbitration such as this Motion are to be proven by affidavit or declaration and documentary evidence. We find that the Agreement is an adhesion contract. Through the Xifaras Declaration, Plaintiff makes a showing that Plaintiff was not afforded a real opportunity to negotiate, or refuse to sign the Agreement. Further, the Xifaras Declaration states that the Agreement was not explained to Plaintiff so that she could fully understand it, nor was she afforded any opportunity to or advised to consult an attorney before signing it, especially given that the Agreement was first presented to her on the same day as the procedure. This court therefore finds that some amount of procedural unconscionability exists. We observe that because the Agreement does not reference payment for arbitration, Code of Civil Procedure section 1284.2 would require Parties to equally split the cost of arbitration. Based on the financial status of Plaintiff described in the Xifaras Declaration and in the absence of any showing by Defendants about their ability to afford arbitration, we believe that Plaintiff is unable to afford arbitration. Following Gutierrez v. Autowest, Inc ., supra, 114 Cal.App.4th 77 at 89, this court finds that because the Agreement is an adhesion contract, forcing Plaintiff to pay for more costly arbitration in order to bring her claims in the face of arbitration costs that she cannot afford is substantively unconscionable. Defendant argues that Plaintiff bears the burden of showing that arbitration would be prohibitively expensive and that arbitration agreements that require parties to pay their own costs are not necessarily invalid. (Reply pp. 56, citing Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 9192 and Vasquez v. Greene Motors, Inc . (2013) 154 Cal.Rptr.3d 778, 794, rev. granted.) We agree with these propositions but find the cases that Defendant cites distinguishable. Vasquez v. Greene Motors, Inc ., supra, at 79495 explains that a party arguing the existence of substantive unconscionability on the grounds of excessive arbitration costs must submit evidence of his own financial resources, the reasonably anticipated cost of this particular arbitration, and the amount of the potential award. In Vasquez v. Greene Motors, Inc ., supra, at 795, the plaintiff provided evidence of none of these items. And in Green Tree Financial Corp.-Alabama v. Randolph , supra, at 90, the record contain[ed] hardly any information on the matter [of the plaintiffs costs of going to arbitration]. Here, through the Xifaras and the Hemesath Declarations, Plaintiff has raised evidence of the costs of arbitration and Plaintiffs inability to pay them. Thus, we are satisfied that the evidence in this case exceeds those in Vasquez v. Greene Motors, Inc ., supra, at 795 and Green Tree Financial Corp.-Alabama v. Randolph , supra, at 90 and that Plaintiff has met her evidentiary burden. Thus, this court finds both that both procedural and substantive unconscionability exist in the Agreement. Additionally, we find sufficient procedural and substantive unconscionability to find that the Agreement should not be enforced. Conclusion This court finds that (1) no agreement to arbitrate exists that governs Plaintiffs causes of action, other than the seventh and eighth causes of action, (2) the Agreement does not comply with Section 1295s requirements, and (3) the Agreement is unenforceable because it is unconscionable. Accordingly, this court DENIES the Motion. Dated: July 17, 2024 _______­­­­­­­­­­___________________________ Hon. Eric Harmon Judge of the Superior Court

LYKKEBERG VS. WILBURN, ET AL. Case Number: 23CV-0202789 This matter is on calendar for review regarding status of arbitration. This matter was stayed by the Court’s Order dated January 23, 2024 pending conclusion of a FINRA arbitration between the parties. No status report has been filed. An appearance is necessary on today’s calendar.