Preview
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SUMMONS ”mu.
(CITA CION JUDICIAL)
NOTICE TO DEFENDANT:
(A VISO AL DEMANDADO):
supsmongéglfléggfimmm
SKYLINE CONSTRUCTION SERVICES, INC. DBA SCOR scfiuee' 'nmnomc cm o'm'ns":'o°N
INDUSTRIES, a California corporation; [see attachment]
YOU ARE BEING SUED BY PLAINTIFF: AU 6 fi 4 2 021
(LO ESTA DEMANDANDO EL DEMANDANTE):
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EVERARDO RODRIGUEZ CORONA, an individual, ——
A59 ~55 33f"
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30
days. Read the information
below.
You have 30 CALENDAR DAYS after this summons and legal papers are sewed on
you lo file a written response at this court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written
response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can
find these coun forms and more information at the California Couns
Online Self—Help Center (wwwcourtinfo.cagov/selflrelp), your county law
library, or the courthouse nearest you. If you cannot
the court clerk for a fee waiver form. If you do not file your response on pay the filing fee, ask
time, you may lose the case by default, and your wages,
money, and property
may be taken without further waming from the court.
There are other legal requirements. You may want to call an attorney n'ght away. If
you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you
may be eligible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the California Legal Services Web site
(www.lawhelpca/ifomia.org), the Califomia Courts Online SeIf-Help Center
(www.courfinfo.ca.gov/selfhelp), or by contacting your local court or county bar association.
NOTE: The court has a statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more in a civil case.
The court's lien must be paid before the court will dismiss the case.
iAVISO! Lo han demandado. Si no responds dentro de 30 dias, Ia cone puede decidir en su
contra sin escuchar su versién. Lea la informacién a
continuacién.
Tiene 30 DIAS DE CALENDARIO después de que
Ie entreguen esta citacién
y papeles legales para presentar una respuesta por escrito en esta
con‘e y hacer que se entregue una copia demandante. Una carta o una llamada telefénica no Io pmtegen. Su respuesta por escrito
al
tiene que ester
en formato legal correcto si desea que procesen su caso en la corte. Es posible que
haya un fonnulan‘o que usted pueda usar para su respuesta.
Puede encontmr estos formulan'os de Ia cone y mas informacién en el Centm de Ayuda de Ias
Cortes de California (\AMm.sucone.ca.gov), en Ia
biblioteca de Ieyes de su condado o en Ia cone que Ie quede mas
cerca. Si no puede pagar Ia cuota de presentacién, pida al secretario de
la corte
que le dé un formulan'o de exencién de pago de cuotas. Si no presents su respuesta a
tiempo, puede perder el caso por incumplimiento Ia corte le
podra quitar su sueldo, dinero y bienes sin mas advertencia. y
Hay otms requisites Iegales. Es recomendable que Ilame a un abogado inmediatamente. Si no conoce a un
abogado, puede llamar a un servicio de
nemisién a abogados. Si no puede pagara un abogado, es posible que cumpla
con Ios requisites para obtener servicios Iegales gratuitos de un
programa de sen/icios Iegales sin fines de Iucro. Puede encontrar estos grupos sin fines de Iucro
en el sitio web de California Legal Services,
(meJawhelpcalifomiaorg), en eI Centm de Ayuda de Ias Cortes de California, (vwvw.sucone.ca.gov)
o poniéndose en contacto con Ia cone o el
colegio de abogados locales. AVISO: Por Iey, Ia con‘e tiene derecho a reclamar
Ias cuotas y Ios costos exentos por imponer un gravamen sobre
cualquier recuperacién de $10,000 é mas de valor recibida mediante un acuerdo
o una concesién de arbitraje en un caso de derecho civil. Tiene que
pagar el gravamen de la corte antes de que la corte pueda desechar el caso.
The name and address of the court is: CASE NUMBER;
(El nombre ydireccién de Ia cone es): Superior Court of the State of
Califomia ”"CTVfi-B
County 0f San Bernardino, Justice Center 2 1 20 8 1' 1
247 West Third Street, San Bemardino CA 92415
The name, address, and telephone number of plaintiff‘s attorney, or plaintiff without an
attorney, is:
BY FAX
(El nombre, Ia direccién y eI namero de teléfono del abogado del demandante, o
del demandante que no tiene abogado, es):
Ramin R. YounesskUEquO, i435 Wilshire Blvd. Ste. 2200, Los Angeles, CA
90010, (323) 777-7777
2021
DATE: Clerk. by . Deputy
(Fecha)
(Secretario) (Adjunto)
(For proof of service of this summons, use Proof of Service of Summons (form
(Para prueba de entrega de esta citatién use el fon‘nulan‘o Proof of Service of Summons,
W101)
(POS—010)).
[S EAL]
1.
2.
D
NOTICE TO THE PERSON SERVED: You
E as an individual defendant.
as the person sued under fl'le fictitious
are served
name of (specify):
3_ E on behalf of (specify):
E
E
under: CCP 416.10 (corporation)
E CCP 416.60
E CCP 416.20 (defunct corporation)
CCP 416.40 (association or partnership)
D
E CCP 416.70
CCP 416.90
(minor)
(conservatee)
E E
(authorized person)
other (specify):
4. by personal delivery on (date):
Page 1 of 1
Form Adapted for Mandatory Use
Judicial Council of California SUMMONS Code or Civil Procedure §§ 412.20, 465
SUM—100 [ReVA July 1. 2009] ww‘couninfocayov
V \r
SUM-200(A)
SHORT TITLE: CASE NUMBER:
__ Everardo Rodriguez Corona v. Skyline Construction Services, Inc.
CIVSB 21 208M
+ This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons.
+ If attachment is used, insert the following statement
this in the plaintiff or defendant box on the summons: "Additional Parties
Attachment form is attached."
List additional parties (Check only one box. Use a separate page for each type ofparty.):
E Plaintiff Defendant D Cross-Complainant E Cross-Defendant
and DOES 1 through 20, inclusive,
Page 2 of 2
Page 1 of 1
Form Adopted for Mandatory Use
JudidaICoundI ofCamomia ADDITIONAL PARTIES ATTACHMENT
suM.200(A) [Rem January 1, 2007]
Attachment to Summons
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Ruling
JULIA MALDONADO VS. DELTA DENTAL OF CALIFORNIA ET AL
Jul 26, 2024 |
CGC23607772
Matter on the Discovery Calendar for Friday, Jul-26-2024, Line 7, PLAINTIFF JULIA MALDONADO'S MOTION TO COMPEL DEPOSITION OF EXPERT WITNESS. Continued to September 3, 2024 at 9:00 a.m. on the court's own motion. =(D302)
Ruling
GERMAN vs LA FLOURE LLC
Jul 25, 2024 |
RIC2001841
GERMAN VS LA FLOURE
RIC2001841 MOTION FOR ATTORNEY'S FEES
LLC
Tentative Ruling:
The Court grants Plaintiff’s motion for attorney fees in the amount of $161,230.00 with an
additional $2,210 for paralegal Flores.
The request for a multiplier is denied.
Plaintiff is awarded her costs as stated in the Memorandum of Costs.
Factual / Procedural Context
The facts related to this matter are described above. However, briefly stated, by
stipulation, a bench trial was conducted from 1/16/24 to 1/18/24. On 2/16/24, the Court issued a
written Statement of Decision ruling in favor of Defendants on the FEHA Complaint, but in favor
of Plaintiff on the wage and hour Complaint awarding her $11,594.80 in damages.
***
Plaintiff, Claudia German, brings this motion for an award of attorneys’ fees ($235,187.50)
plus a multiplier of 1.25 for a total of $293,984.38, and costs ($17,661.69.) (Cal. Rules of Court,
Rule 3.1702; CCP § 1032, and Labor Code §§ 218.5, 226, and 1194.) Plaintiff asserts that counsel
should be fully compensated for their work; that the lodestar amount is reasonable in hours spent
and hourly rates; and a multiplier is necessary to achieve full compensation. Plaintiff argues that
she is the prevailing party by having earned a monetary award on her wage and hour claims at
trial, and pursuant to the Court’s 5/24/24 ruling on her motion to deem her the prevailing party;
that the relevant Labor Code sections authorize an award of attorneys’ fees; and, that the size of
the damages recovered does not dictate the attorneys’ fee award.
Defendants oppose the motion arguing that Plaintiff’s limited recovery ($11,594.80) out of
her claim for $200,000 in damages does not justify attorneys’ fees and costs of $311,646.07; that
Defendants successfully defended 94% of the $200,000 claim; that Plaintiff is not the prevailing
party and its motion for reconsideration should be granted; that contrary to Plaintiff’s claims,
defense counsel acted properly at all times; and, that this case does not involve vindication of any
important rights.
The Reply asserts that the Opposition fails to cite to legal authority for their baseless
position that Plaintiff’s counsel is not entitled to fees requested; that Defendants have not
challenged Plaintiff’s counsel’s billing practices or hourly billing rates or any specific entries that
should be reduced or stricken; that Plaintiff has already been determined to be the prevailing
party; that Plaintiff has already limited her attorney’s fees and costs to only those related to the
wage and hour claims portion of the action (not FEHA claims); and, that Defendants are not the
“arbiters” of what are and are not important rights.
Analysis
The matter of reasonableness of a party’s attorney fees is within the sound discretion of
the trial court. (Bruckman v. Parliament Escrow Co. (1989) 190 Cal.App.3d 1051, 1062.) Fee
motions should be based on detailed time records. (Crespin v. Shewry (2004) 125 Cal.App.4th
259, 271.) The records should detail crucial information as the types of issues involved, services
performed, numbers of hours, billing rates, etc. (Martino v. Denevi (1986) 182 Cal.App.3d 553,
559.) The court is then entitled to make its own evaluation of the reasonable worth of the work
done in light of the nature of the case and the credibility of counsel’s declaration, unsubstantiated
by time records and billing statements. (See Weber v. Langholz (1995) 39 Cal.App.4th 1578,
1587; see also Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1394.)
In determining the reasonable amount of attorney fees, the court first determines a
lodestar figure (time reasonably spent by each biller multiplied by an hourly rate that is reasonable
for each biller). (Serrant v. Priest (1977) 20 Cal.3d 25, 48.) In exercising its discretion, the Court
may consider all of the facts and the entire procedural history of the case in setting the amount of
a reasonable attorney fee award. (Bernardi, supra, 167 Cal.App.4th 1379, 1394; see also PLCM
Group, supra, 22 Cal.4th at 1096 (factors considered in determining the reasonableness of a
party’s attorney fees include the nature of the litigation, its difficulty, the amount involved, the skill
required in its handling, the skill employed, the attention given and the success or failure). The
court does not need expert testimony to determine the reasonable amount of a fee award. (PLCM
Group, supra, 22 Cal.4th at 1095.)
A “reasonable” hourly rate is the prevailing rate charged by attorneys of similar skill and
experience in the relevant community. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,
1095.) Here, Jonathan P. LaCour of Employees First Labor Law, P.C., declares that he is the
President and Managing Attorney of the law firm, which is dedicated to protecting the rights of
employees in the workplace. (Dec.LaCour ¶¶ 1-2.) He was admitted to the State Bar of California
in 2012 (12 years in practice), and his entire practice is dedicated to labor and employment
disputes. (Id. ¶ 2.) He declares he was assisted in this case by Lisa Noveck, Esq., Jameson
Evans, Esq., and Adrian Flores (paralegal). (Id. ¶ 3.) Mr. LaCour declares that he normally bills
at $850 per hour but used a reduced rate of $700 per hour for this case. (Id. ¶ 17.) Ms. Noveck
was admitted to the Bar in November of 2017 (6 ½ years in practice), normally bills at $725 per
hour, but is requesting the reduced rate of $575 per hour. (Dec.Noveck ¶¶ 3, 10.) Mr. Evans was
admitted to the Bar in November of 2021 (2 ½ years in practice), normally bills at $600 per hour,
but requests the reduced rate of $450 per hour. (Dec.Evans ¶¶ 3, 9.) Adrian Flores declares he
worked as a Litigation Support Member at the Knight Law Group and began working as a
paralegal for this law firm in September of 2021, and requests an hourly rate of $250 per hour.
(Dec.Flores ¶¶ 3, 6.)
In addition, Plaintiff has offered additional declarations of experts who claim the hourly
rates set forth above are reasonable within the legal community. David M. deRubertis of the
deRubertis Law Firm, APC, declares he concentrates on handling and trying employment matters
on behalf of employees in California. (Dec.deRubertis ¶ 3.) He has been in practice since
November of 2000, had conducted 31 trials, and obtained multiple multi-million dollar verdicts.
(Id. ¶¶ 6-7.) He is a recognized expert in employment law who knows Plaintiff’s attorneys and
declares they have outstanding reputations as aggressive, yet ethical advocates. (Id. ¶¶ 13- 21.)
He declares that most of his practice is contingency-based, but his current hourly rate is $1,300
per hour. (Id. ¶ 23.) He opines that the requested rates are “more than reasonable and more than
in line with the prevailing market rates” and are even “a bit below prevailing market rates.” (Id. ¶
24.) He provides examples of case in Los Angeles County where rates were awarded up to
$1,350, and other firms charge rates above those requested by Plaintiff’s counsel here. (Id. ¶¶
26-33.) Mr. deRubertis has also reviewed the National Law Journal Billing Survey for 2017, 2016,
and 2014, which indicated hourly rates above what is being requested here. (Id. ¶¶ 34-36; see
also Dec.LaCour ¶¶ 38-45.)
Brian Brieter, Esq. declares he has been in practice since 1999, has tried more the 50 civil
jury cases, and obtained multiple 7-figure results. (Dec.Brieter ¶¶ 3-6.) He opines that the rates
being requested here are reasonable and similar or less than hourly rates in Los Angeles and
Southern California. (Id. ¶¶ 7-10.) Jacob Nalbandyan of Levin & Nalbandyan, LLP submits a
similar declaration. (Dec.Nalbandyan.) He has been in practice since 2010, and has been lead
trial, arbitration, and appellate counsel in numerous cases. (Id. ¶¶ 2, 10.) He is familiar with Mr.
LaCour and his reputation, and in his opinion $700 per hour is a reasonable rate for his services.
(Id. ¶ 17.)
None of these expert opinions are particularly helpful in this case tried in Riverside County
nor are they persuasive. It should also be noted that with the exception of Mr. LaCour, all three
attorneys and the paralegal are fairly new for the hourly rates they are requesting. While Plaintiff
asserts these hourly rates are reasonable, the Court finds a reasonable rate as follows: Jonathan
P. LaCour from $700 to $500; Lisa Noveck from $575 to $400; and Jameson Evans from $450 to
$300. Mr. Flores’ rate is reduced from $250 to $100 for the same reason. (22.1 hours at $100 =
$2,210.00.)
However, with respect to the specific entries of time, notably Defendants failed to
challenge the specific billing entries to set forth a basis to reduce the requested fees further.
Nothing in Defendants’ opposition points to any entries that should be deducted or otherwise
stricken. The Court will note that Defendants objected that Plaintiff was seeking fees for their
FEHA claims, as opposed solely to her Wage and Hour Claims. However, as noted by Plaintiff,
none of the requested entries were solely for FEHA claims. As such, the Court finds the number
of hours requested reasonable.
As to attorneys’ fees, Mr. LaCour claims 218.9 hours, which at $500 per hour is
$109,450.00; Ms. Noveck claims 49.5 hours, which at $400 is $19,800; Mr. Evans claims 106.6,
which at $300 is $31,980 for a total of $161,230.00.
Multiplier
Plaintiff’s experts also weigh in on what they consider to be the importance of a multiplier
in a contingency employment case such as this. (Dec.Kramer ¶¶ 10-13; Dec.deRubertis ¶¶ 37-
42; Dec.Brieter ¶¶ 11-13.) The purpose of a fee enhancement is primarily to compensate the
attorney for the prevailing party at a rate reflecting the risk of nonpayment in contingency cases
as a class. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138.) The adjustment to the lodestar
figure constitutes earned compensation that is intended to approximate market-level
compensation for services, which typically includes a premium for the risk of nonpayment or delay
in payment of attorney’s fees. (Ibid.)
However, given the applicable statutes authorizing attorneys’ fees, the risk of taking the
case on contingency is somewhat reduced. While Plaintiff claims the case was complex, it did not
have a level of difficulty that would require exceptional skill warranting an enhancement. Instead,
it was a fairly run of the mill wage and hour case.
As such, the Court exercises its discretion and declines to award an enhancement or
positive multiplier to Plaintiff.
Costs
As to the costs, Mr. LaCour seeks $17,661.69. The largest items on the Memorandum of
Costs (MOC) are deposition costs of $9,770.25 and “other” at $5,369.46. However, Plaintiff’s
MOC remains unchallenged by a motion to tax/strike costs, and there was no opposition to their
request for costs. Thus, the MOC is accepted as is, and Plaintiff is entitled to her claimed costs.
Ruling
JULIA MALDONADO VS. DELTA DENTAL OF CALIFORNIA ET AL
Jul 22, 2024 |
CGC23607772
Matter on the Discovery Calendar for Monday, July 22, 2024, line 5, DEFENDANT DELTA DENTAL OF CALIFORNIA'S Motion To Compel Enforcement Of Records Subpoena And Request For Sanctions Against Plaintiff And Plaintiffs Counsel Pro Tem Judge David McDonald, a member of the California State Bar who meets all the requirements set forth in CRC 2.812 to serve as a temporary judge, has been assigned to hear this motion. Prior to the hearing all parties to the motion will be asked to sign a stipulation agreeing that the motion may be heard by the Pro Tem Judge. If all parties to the motion sign the stipulation, the hearing will proceed before the Judge Pro Tem who will decide the motion with the same authority as a Superior Court Judge. If a party appears by telephone, the stipulation may be signed via fax or consent to sign given by email. If not all parties to the motion sign the stipulation, the Pro Tem Judge will hold a hearing on the motion and, based on the papers submitted by the parties and the hearing, issue a report in the nature of a recommendation to the Dept. 302 Judge, who will then decide the motion. If a party does not appear at the hearing, the party will be deemed to have stipulated that the motion will be decided by the Pro Tem Judge with the same authority as a Superior Court Judge. The Pro Tem Judge has issued the following tentative ruling: Motion granted. The Court notes that Plaintiff agreed to produce documents responsive to the subpoena, except for the emergency contact information. Defendants have a right to confirm that all documents have been produced by Kaiser. Plaintiff shall execute an authorization to Kaiser allowing production absent the emergency contact information. Sanctions of $950 imposed against Plaintiff. For the 9:00 a.m. Discovery calendar, all attorneys and parties are required to appear remotely. Hearings will be conducted by videoconference using Zoom. To appear 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 (DISCOVERY, DEPARTMENT 302 DAILY AT 9:00 A.M.), or dial the corresponding number and use the meeting ID, and password for Discovery Department 302. Any party who contests a tentative ruling must send an email to davididaho14@gmail.com 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. If the tentative ruling is not contested, the parties are deemed to have stipulated to the Pro Tem hearing the motion and the Pro Tem will sign an order confirming the tentative ruling. The prevailing party is required to prepare a proposed order repeating verbatim the substantive portion of the tentative ruling and must e-mail it to the Judge Pro Tem. The court no longer provides a court reporter in the Discovery Department. Parties may retain their own reporter, who may appear 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/JPT)
Ruling
NORENA RODRIGUEZ vs CRAFTSMAN LATH AND PLASTER
Jul 24, 2024 |
CVRI2401635
MOTION TO STRIKE COMPLAINT ON
COMPLAINT FOR OTHER
NORENA RODRIGUEZ VS
EMPLOYMENT (OVER $35,000) OF
CVRI2401635 CRAFTSMAN LATH AND
JHON ALEXANDER NORENA
PLASTER, INC.
RODRIGUEZ BY CRAFTSMAN LATH
AND PLASTER, INC.
Tentative Ruling:
GRANT, with 30 days leave to amend.
Defendant moves to strike portions of Plaintiff’s Complaint concerning allegations relating to, and
prayer for, punitive damages. The Court grants the motion because the Complaint lacks the
minimum level of facts required to meet the pleading requirements for punitive damages under
Civil Code § 3294. While Plaintiff alleges that Defendant was “acting in a deliberate, cold, callous,
cruel and intentional manner…”, these underlying allegations are bare legal conclusions without
factual support. Plaintiff fails to allege the underlying facts constituting malice, oppression, or
fraud. Plaintiff does not allege facts showing that Plaintiff has a legitimate disability, as defined by
FEHA, nor does Plaintiff provide facts indicating he was entitled to an accommodation which was
deliberately withheld. Finally, Plaintiff also fails to allege corporate employer liability; no ultimate
facts are alleged in the Complaint as to any misconduct of a managing agent binding the corporate
employer, or ratification of conduct of an employee that is outrageous in nature. The Complaint
merely alleges, in conclusory fashion, that the alleged acts constituting malice, oppression, or
fraud, were carried out by Defendant’s officers, directors, or managing agents.
Ruling
BARNES, AS AN AGGRIEVED EMPLOYEE vs BAY AREA COMMUNITY RESOUR...
Jul 23, 2024 |
Civil Unlimited (Other Employment Complaint Case) |
24CV070890
24CV070890: BARNES, AS AN AGGRIEVED EMPLOYEE vs BAY AREA
COMMUNITY RESOURCES, INC., A CALIFORNIA NONPROFIT CORPORATION
07/23/2024 Hearing on Motion to Compel Arbitration filed by BAY AREA COMMUNITY
RESOURCES, INC., a California Nonprofit corporation (Defendant) in Department 21
Tentative Ruling - 07/22/2024 Noël Wise
The Hearing on Motion to Compel Arbitration filed by BAY AREA COMMUNITY
RESOURCES, INC., a California Nonprofit corporation (Defendant) scheduled for 07/23/2024
is continued to 09/24/2024 at 01:30 PM in Department 21 at Rene C. Davidson Courthouse .
The court needs additional time to review the papers.
PLEASE NOTE: This tentative ruling will become the ruling of the court if uncontested by
04:00pm the day before your hearing. If you wish to contest the tentative ruling, then both notify
opposing counsel directly and the court at the eCourt portal found on the court’s website:
www.alameda.courts.ca.gov.
If you have contested the tentative ruling or your tentative ruling reads, “parties to appear,”
please use the following link to access your hearing at the appropriate date and time:
https://alameda-courts-ca-gov.zoomgov.com/my/department21 . If no party has contested the
tentative ruling, then no appearance is necessary.
Ruling
Jacob Salcido vs. PB Loader Corporation / COMPLEX
Jul 23, 2024 |
23CECG04509
Re: Jacob Salcido v. PB Loader Corporation/COMPLEX
Superior Court Case No. 23CECG04509
Hearing Date: July 23, 2024 (Dept. 502)
Motion: Defendant PB Loader Corporation’s Motion to Stay the
Representative PAGA Action
Tentative Ruling:
To grant defendant PB Loader Corporation’s motion to stay the representative
PAGA action pending arbitration of plaintiff Jacob Salcido’s individual PAGA claim.
(Code Civ. Proc., § 1281.4.)
Explanation:
If a court of competent jurisdiction has ordered arbitration of an issue involved in
a pending action, the court, upon motion of a party to the action, shall stay the action
until an arbitration is had in accordance with the order to arbitrate. (Code Civ. Proc., §
1281.4.) Specifically, “the trial court may exercise its discretion to stay the non-individual
[PAGA] claims pending the outcome of the arbitration [of a plaintiff’s individual PAGA
claims] pursuant to section 1281.4 of the Code of Civil Procedure.” (Adolph v. Uber
Technologies, Inc. (2023) 14 Cal.5th 1104, 1123.) The opposing party would need to
present a convincing argument as to why this would be an impractical manner of
proceeding. (Id., at 1124.)
The court has discretion to stay the action until after arbitration. As set forth in
Adolph, the determination of whether the plaintiff is an aggrieved employee and the
ensuing judgment on the issue is one that will affect the plaintiff’s standing to prosecute
the non-individual PAGA claim. (Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th,
1124.)
As the court has already ordered arbitration for what could be a dispositive issue,
and there has been no clear showing of prejudice that will result from staying the action,
the court is inclined to order a stay of the proceedings until after arbitration of plaintiff’s
individual PAGA claim.
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: KCK on 07/22/24 .
(Judge’s initials) (Date)
Ruling
TATUM vs EDGES ELECTRICAL GROUP, LLC
Jul 25, 2024 |
Civil Unlimited (Wrongful Termination) |
24CV068271
24CV068271: TATUM vs EDGES ELECTRICAL GROUP, LLC
07/25/2024 Hearing on Motion to Compel Arbitration in Department 24
Tentative Ruling - 07/22/2024 Rebekah Evenson
Defendant’s Motion to Compel Arbitration is GRANTED.
Plaintiff does not dispute that he executed an undated “Voluntary Arbitration Agreement”
(hereinafter “the Agreement”) with Defendant. The claims that Plaintiff asserts in this case fall
within the scope of the Agreement.
The Court observes that the parties’ evidence concerning the circumstances under which Plaintiff
signed the Agreement is conflicting. Defendant’s former Accounting Assistant Joann
Killingsworth submits a declaration that Plaintiff signed the Agreement as part of his new hire
orientation on or about September 29, 2020. Plaintiff’s opposition brief (but not his declaration)
states that he had already been working for Defendant since 2018, but he appears to agree that he
signed the agreement in 2020 (or at least, he does not deny it.)
Plaintiff’s declaration states that he was presented with the Agreement in connection with
Defendant’s settlement of a pending class action, and that he was told he had to sign the
Agreement to get the settlement check. However, Defendant presents evidence that contradicts
Plaintiff’s recollection of events. The class action that Plaintiff references was not even filed
until 2021, and Plaintiff was given the settlement check in 2023. (See the Declaration of Nancy
Cooper filed with the reply papers.) Therefore, Defendant contends Plaintiff could not have been
told in 2020 that the Agreement had anything to do with the settlement of the class action. Given
the vagueness of Plaintiff’s declaration and the documentary evidence submitted by Defendant
about the class action to which Plaintiff refers, the Court finds Defendant’s evidence more
credible on this issue.
The Court rejects Plaintiff’s argument that the Agreement is void based on the doctrine of “fraud
in the inception”. As indicated above, given the timing of when Plaintiff appears to concede he
signed the Agreement and when the class action case was filed and settled, Plaintiff’s
explanation that he understood the Agreement was related to the class action and that he was told
he had to sign the Agreement to receive the class action settlement check is not credible. But
even if the Court were to credit Plaintiff’s declaration, he does not state that any employee or
agent of Defendant told him the Agreement was not an arbitration agreement; he merely assumed
the Agreement was related to the class action settlement (which Plaintiff was not paid until three
years later) because he was told he had to sign the Agreement to receive the settlement check.
In addition, the five page agreement is titled “VOLUNTARY ARBITRATION AGREEMENT”;
contrary to Plaintiff’s assertion, the word “Accounting” does not appear anywhere in or near the
title of the Agreement. No one reading the Agreement could fail to understand that it was an
arbitration agreement, and not a document relating to the settlement of a class action.
The Court also rejects Plaintiff’s argument that the arbitration agreement is unenforceable on the
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
24CV068271: TATUM vs EDGES ELECTRICAL GROUP, LLC
07/25/2024 Hearing on Motion to Compel Arbitration in Department 24
grounds of unconscionability. In order for a party to oppose enforcement of an arbitration
agreement on the grounds of unconscionability, that party must show that the agreement was
both procedurally and substantively unconscionable. (See, e.g., Oto LLC v. Kho (2019) 8 Cal.5th
111, 125.)
For the reasons stated above, the Court does not find credible Plaintiff’s argument that the
Agreement was procedurally unconscionable (i.e., that he felt pressure to sign the Agreement in
2020 in order to receive a class action settlement check for a case that was not filed until 2021
and a check that was not issued until 2023.) But even if the Court were to find some level of
procedural unconscionability in Plaintiff’s execution of the Agreement, Plaintiff does not
demonstrate any substantive unconscionability in the Agreement.
The Agreement complies with the requirements for agreements to arbitrate employment disputes
set forth in Armendariz v. Foundation Health Psychare Services Inc. (2020) 24 Cal.4th 83, 102.
Plaintiff contends the provision of the Agreement that “each party shall bear their own standard
litigation type costs, such as deposition fees, transcript fees, and witness fees” conflicts with
Code of Civil Procedure § 1282.5(b). The Court disagrees. Code of Civil Procedure § 1282.5(b)
provides that in a consumer arbitration, a certified shorthand reporter shall be provided upon
request of an indigent consumer, at the expense of the nonconsumer party. No provision of the
Agreement negates the application of § 1282.5(b) or requires Plaintiff to pay for the cost of
retaining a certified shorthand reporter.
But even assuming the Agreement could be construed as negating the application of § 1282.5(b),
that is the only (purportedly) unconscionable provision of the Agreement identified by Plaintiff.
Therefore, assuming the provision in the Agreement that each party shall bear its own “transcript
fees” is substantively unconscionable because it (impliedly) conflicts with § 1282.5(b), the Court
would exercise its discretion to sever that provision and enforce the remainder of the agreement.
(Civil Code § 1670.5 and Armendariz, supra, 24 Cal.4th at 121-122.)
Plaintiff is ordered to arbitrate the claims he asserts in this case, pursuant to the terms of the
“Voluntary Arbitration Agreement”.
This case is STAYED pending completion of the parties’ arbitration, pursuant to Code of Civil
Procedure § 1281.4.
The Case Management Conference currently scheduled for August 6, 2024 is CONTINUED to
August 5, 2025 at 9:00 a.m. in Department 24. By no later than July 22, 2025, the parties shall
file a joint status report indicating whether the arbitration has been completed, or if not, when it
is expected to be completed.
The Initial Case Management Conference scheduled for 08/06/2024 is continued to 08/05/2025
at 09:00 AM in Department 24 at Rene C. Davidson Courthouse .
Preview
. v \r V SU M-1 00 SUMMONS ”mu. (CITA CION JUDICIAL) NOTICE TO DEFENDANT: (A VISO AL DEMANDADO): supsmongéglfléggfimmm SKYLINE CONSTRUCTION SERVICES, INC. DBA SCOR scfiuee' 'nmnomc cm o'm'ns":'o°N INDUSTRIES, a California corporation; [see attachment] YOU ARE BEING SUED BY PLAINTIFF: AU 6 fi 4 2 021 (LO ESTA DEMANDANDO EL DEMANDANTE): B" ¥ MM EVERARDO RODRIGUEZ CORONA, an individual, —— A59 ~55 33f" NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are sewed on you lo file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these coun forms and more information at the California Couns Online Self—Help Center (wwwcourtinfo.cagov/selflrelp), your county law library, or the courthouse nearest you. If you cannot the court clerk for a fee waiver form. If you do not file your response on pay the filing fee, ask time, you may lose the case by default, and your wages, money, and property may be taken without further waming from the court. There are other legal requirements. You may want to call an attorney n'ght away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpca/ifomia.org), the Califomia Courts Online SeIf-Help Center (www.courfinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. iAVISO! Lo han demandado. Si no responds dentro de 30 dias, Ia cone puede decidir en su contra sin escuchar su versién. Lea la informacién a continuacién. Tiene 30 DIAS DE CALENDARIO después de que Ie entreguen esta citacién y papeles legales para presentar una respuesta por escrito en esta con‘e y hacer que se entregue una copia demandante. Una carta o una llamada telefénica no Io pmtegen. Su respuesta por escrito al tiene que ester en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un fonnulan‘o que usted pueda usar para su respuesta. Puede encontmr estos formulan'os de Ia cone y mas informacién en el Centm de Ayuda de Ias Cortes de California (\AMm.sucone.ca.gov), en Ia biblioteca de Ieyes de su condado o en Ia cone que Ie quede mas cerca. Si no puede pagar Ia cuota de presentacién, pida al secretario de la corte que le dé un formulan'o de exencién de pago de cuotas. Si no presents su respuesta a tiempo, puede perder el caso por incumplimiento Ia corte le podra quitar su sueldo, dinero y bienes sin mas advertencia. y Hay otms requisites Iegales. Es recomendable que Ilame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de nemisién a abogados. Si no puede pagara un abogado, es posible que cumpla con Ios requisites para obtener servicios Iegales gratuitos de un programa de sen/icios Iegales sin fines de Iucro. Puede encontrar estos grupos sin fines de Iucro en el sitio web de California Legal Services, (meJawhelpcalifomiaorg), en eI Centm de Ayuda de Ias Cortes de California, (vwvw.sucone.ca.gov) o poniéndose en contacto con Ia cone o el colegio de abogados locales. AVISO: Por Iey, Ia con‘e tiene derecho a reclamar Ias cuotas y Ios costos exentos por imponer un gravamen sobre cualquier recuperacién de $10,000 é mas de valor recibida mediante un acuerdo o una concesién de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la corte antes de que la corte pueda desechar el caso. The name and address of the court is: CASE NUMBER; (El nombre ydireccién de Ia cone es): Superior Court of the State of Califomia ”"CTVfi-B County 0f San Bernardino, Justice Center 2 1 20 8 1' 1 247 West Third Street, San Bemardino CA 92415 The name, address, and telephone number of plaintiff‘s attorney, or plaintiff without an attorney, is: BY FAX (El nombre, Ia direccién y eI namero de teléfono del abogado del demandante, o del demandante que no tiene abogado, es): Ramin R. YounesskUEquO, i435 Wilshire Blvd. Ste. 2200, Los Angeles, CA 90010, (323) 777-7777 2021 DATE: Clerk. by . Deputy (Fecha) (Secretario) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form (Para prueba de entrega de esta citatién use el fon‘nulan‘o Proof of Service of Summons, W101) (POS—010)). [S EAL] 1. 2. D NOTICE TO THE PERSON SERVED: You E as an individual defendant. as the person sued under fl'le fictitious are served name of (specify): 3_ E on behalf of (specify): E E under: CCP 416.10 (corporation) E CCP 416.60 E CCP 416.20 (defunct corporation) CCP 416.40 (association or partnership) D E CCP 416.70 CCP 416.90 (minor) (conservatee) E E (authorized person) other (specify): 4. by personal delivery on (date): Page 1 of 1 Form Adapted for Mandatory Use Judicial Council of California SUMMONS Code or Civil Procedure §§ 412.20, 465 SUM—100 [ReVA July 1. 2009] ww‘couninfocayov V \r SUM-200(A) SHORT TITLE: CASE NUMBER: __ Everardo Rodriguez Corona v. Skyline Construction Services, Inc. CIVSB 21 208M + This form may be used as an attachment to any summons if space does not permit the listing of all parties on the summons. + If attachment is used, insert the following statement this in the plaintiff or defendant box on the summons: "Additional Parties Attachment form is attached." List additional parties (Check only one box. Use a separate page for each type ofparty.): E Plaintiff Defendant D Cross-Complainant E Cross-Defendant and DOES 1 through 20, inclusive, Page 2 of 2 Page 1 of 1 Form Adopted for Mandatory Use JudidaICoundI ofCamomia ADDITIONAL PARTIES ATTACHMENT suM.200(A) [Rem January 1, 2007] Attachment to Summons