Tentative ruling in department 4 on Jul. 11, 2024 in Riverside County, CA - Case no: xxxxx690

HARRIS vs PREMIUM AUTO, Motion to Compel Arbitration by CVRI2400962 INC. PREMIUM AUTO, INC. Tentative Ruling: Grant. Factual/Procedural Context This action involves the sale and purchase of a used automobile. On 9/21/2023, Plaintiff and Defendant entered into a Retail Installment Sale Contract (“RISC”) concerning Plaintiff’s purchase of a used 2016 Range Rover Sport. The RISC contains an arbitration clause, in which Plaintiff agreed to arbitrate “[a]ny claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between [Plaintiff] and [Defendant]” that arises out of Plaintiff’s purchase of the subject vehicle. (See Hazrat Decl. ¶ 2, Ex. 1.) On 2/21/2024, Plaintiff filed the operative Complaint against Defendant, alleging (1) intentional misrepresentation, (2) negligent misrepresentation, (3) violation of Bus. & Prof. Code § 17200, and (4) violation of the Consumer Legal Remedies Act (“CLRA”). *** Defendant brings the instant motion to compel arbitration on the basis of the RISC. Defendant argues that California Supreme Court’s decision in Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 898 found that arbitration clauses in an automobile sales contract are not unconscionable. Defendant thus asks the Court to compel Plaintiff to arbitrate this action before the American Arbitration Association (“AAA”) and to stay this action pending completion of arbitration. In opposition, Plaintiff argues that the motion should be denied, because under McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, his claim for “public injunctive relief” under the CLRA to enjoin Defendant’s illegal and deceptive practices is a matter of public policy not subject to arbitration. In reply, Defendant argues that all of Plaintiff’s claims are subject to arbitration, and that Plaintiff seeks “private” injunctive relief for the benefit of the public, not public injunctive relief. In the event the Court finds that such claim is not arbitrable, Defendant asks the Court to sever and stay Plaintiff’s claim for injunctive relief pending arbitration. Analysis Under the Federal Arbitration Act (“FAA”), the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Mgmt., LLC (9th Cir. 2016) 656 F. App’x. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or “the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development, LLC (2012) 55 Cal.4th 223, 236.) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Id.) Plaintiff does not dispute that the FAA applies in this case, or that he entered into a written arbitration agreement that covers the instant dispute. (See Hazrat Decl. ¶ 2, Ex. 1.) Instead, Plaintiff opposes the instant motion solely on the basis that the arbitration agreement is invalid based on the California Supreme Court’s ruling in McGill v. Citibank, N.A. (2017) 2 Cal.5th 945 and Mejia v. DACM Inc. (2020) 54 Cal.App.5th 691. Plaintiff argues that he is seeking a public injunction under the CLRA to enjoin Defendant “from continuing to make false and misleading statements to consumers regarding the sale of motor vehicles.” (Compl. ¶ 71.) Plaintiff relies upon McGill and Mejia to argue that because California law prohibits arbitration of claims for public injunctive relief, the arbitration provision in this case is invalid and unenforceable. However, neither McGill nor Mejia stand for the proposition that an arbitration provision is invalid simply because it requires arbitration of claims for which a public injunction is a remedy or because it does not allow an arbitrator to issue a public injunction. Rather, the arbitration provision is invalid only if it precludes the parties from seeking a public injunction altogether, “in any forum.” (See McGill, supra, 2 Cal.5th at 961 [“Thus, insofar as the arbitration provision here purports to waive McGill’s right to request in any forum such public injunctive relief, it is invalid and unenforceable under California law.”] [emphasis added]; Mejia, supra, 54 Cal.App.5th at 704 [“We concur with the trial court’s interpretation of the arbitration clause as barring Mejia from seeking public injunctive relief ‘in any forum,’ thereby rendering the arbitration clause unenforceable under McGill.”] [emphasis added].) For instance, the McGill Court acknowledged that the parties had “elected in the Arbitration Agreement to exclude public injunctive relief requests from arbitration” but noted that the case could still go to arbitration on some of the claims asserted by the plaintiff. (McGill, supra, 2 Cal.5th at 966.) “Moreover, case law establishes that a stay of proceedings as to any inarbitrable claims is appropriate until arbitration of any arbitrable claims is concluded. [Citation]) Thus, arbitration of claims the parties have agreed to arbitrate may proceed pursuant to whatever procedures the arbitration agreement specifies, unaffected by any subsequent proceedings made necessary by invalidation of the waiver regarding the public injunctive relief claims the parties did not agree to arbitrate. According to the high court, “‘piecemeal’ litigation” of claims the parties have agreed to arbitrate and claims they have not agreed to arbitrate is consistent with the FAA.” (Id.) Thus, some of Plaintiff’s claims and requests for relief may be arbitrated and others may be tried in this Court after arbitration is completed. In Mejia, the trial court found that the arbitration agreement prevented plaintiff from seeking and obtaining a public injunction in arbitration and made arbitration the only forum available to the plaintiff. (Mejia, supra, 54 Cal.App.5th at 704.) The Court of Appeal noted that the trial court “might have ‘saved’ the arbitration clause by ‘sever[ing] the prohibition on public injunctive relief from the Arbitration Provision’” but could not do so due to a “poison pill” provision that restricted the right to sever.” (Id.) In this case, the arbitration agreement does not include any provision that prevents Plaintiff from seeking public injunctive relief in arbitration. (See Hazrat Decl. ¶ 2, Ex. 1.) The arbitration agreement simply states that “[a]ny award by the arbitrator shall be in writing and will be final and binding on all parties, subject to any limited right to appeal under the Federal Arbitration act.” (Id.) Moreover, the arbitration agreement prohibits claims, not brought on an individual basis, but as a “consolidated, representative, class, collective, injunctive or private attorney general action.” (Id.) It further states: Neither you nor we waive the right to arbitrate any related or unrelated claims by filing any action in small claims, court, or by using self-help remedies, such as repossession, or by filing an action to recover the vehicle, to recover a deficiency balance, or for individual or statutory public injunctive relief. (Id. [emphasis added].) Based on the above language, the arbitration agreement only seeks to limit the class action capacity in which an individual can bring a claim against Defendant. In other words, the only limitation as to a public injunctive relief claim is in a class representative capacity. This is important, because claims under the CLRA other consumer protection statutes may be asserted as individual claims seeking public injunctive relief. (McGill, supra, 2 Cal.5th at 959; Dicarlo v. Moneylion, Inc. (C.D. Cal. Dec. 20, 2019) 2019 U.S. Dist. LEXIS 228268, at *8 [provision that preserved the plaintiff’s right to obtain in arbitration “all remedies available in an individual lawsuit” did not bar public injunctive relief and was valid under McGill]; Gonzalez-Torres v. Zumper, Inc. (N.D. Cal. Dec. 2, 2019) 2019 U.S. Dist. LEXIS 207390, at *24 [concluding that an arbitration agreement that empowered the arbitrator to “issue any and all remedies authorized by law” did not run afoul of McGill because “[a]lthough a plaintiff may not assert claims on behalf of a class in arbitration, the Agreement does not prohibit plaintiff from being awarded public injunctive relief as a remedy for his individually-asserted claims in arbitration”].) Thus, based on the above, Plaintiff has failed to demonstrate that the arbitration agreement at issue is unenforceable under McGill or Mejia. In any event, the issue of which claims or disputes should be arbitrated must be decided by the arbitrator and not this Court. In Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, the arbitration agreement delegated “the determination of the scope or applicability of the arbitration provision” to the arbitrator. (Id. at 891.) Under those circumstances, the Court of Appeal concluded that “it is the arbitrator who will consider the conscionability of the agreement and the scope of the arbitration clause, including whether the class arbitration is available under the arbitration provision, and whether the provision purports to waive the Aanderuds’ right to seek public injunctive relief in all forum and, if so, what impact this has on the enforceability of the arbitration provision as a whole.” (Id. at 897; see also Henry Schein Inc. v. Archer & White Sales, Inc. (2019) 139 S.Ct. 524, 530.) Here, the arbitration agreement delegates questions of arbitrability to the arbitrator. (Hazrat Decl. ¶ 2, Ex. 1 [“Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision . . . and the arbitrability of the claim or dispute) . . . shall, at your or our election, be resolved by neutral, binding arbitration and not by court action.”] [emphasis added].) Thus, Plaintiff has agreed to submit to arbitration questions of the interpretation and scope of the arbitration provision and the arbitrability of specific claims. Accordingly, the Court grants Defendant’s motion to compel arbitration to allow the arbitrator to determine the threshold question of which claims and disputes are to be arbitrated and then, to arbitrate any claims or disputes the arbitrator finds to be arbitrable. All proceedings in this action are stayed pending completion of the arbitration proceedings.

AARON AUTOMOTIVE MOTION TO SET ASIDE DEFAULTBY CVSW2309867 GROUP, INC. VS DONATO VICTOR DONATO Tentative Ruling: The Motion is DENIED. Mr. Donato claims he failed to respond to the FAC due to his excusable neglect. (Motion, p. 8 of 12.) He states he was “in the middle of losing my attorney due to my lack of funds and income being cut back” and that he “was not aware” that he needed to respond to the FAC. (Ibid.) This is the full extent of his explanation. He does not assert that he was not properly served. He acknowledges the FAC, which contradicts his statement that he was unaware he needed to respond. When represented by counsel, Mr. Donato and Plaintiff reached a partial stipulation for leave to amend the original Complaint to resolve a demurrer and motion to strike. (4/25/24 Minute Order.) Mr. Donato has not shown specific facts to demonstrate any excusable neglect or mistake, surprise, or inadvertence for that matter. (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410.) Thus, he has not met his burden on this motion.

Motion for an Order to Require an Undertaking for Costs Pursuant to Code CUNNINGHAM vs CVRI2301873 of Civil Procedure §1030 by PARDIS AMIRHOUSHMAND AMIRHOUSHMAND, RICHARD GARCIA Tentative Ruling: The Motion is taken off calendar by moving party.

MOTION TO BE RELIEVED AS CVRI2305990 BROWN VS LEWIS COUNSEL FOR ANGELA R. LEWIS MOTION TO BE RELIEVED AS CVRI2305990 BROWN VS LEWIS COUNSEL Tentative Ruling: The Court grants attorney Hornbuckle’s motion to be relieved as counsel for Angela Lewis and James Lewis, effective upon the filing of the proof of service of a signed order upon the client. On calendar today is also a CMC hearing. The Court orders all counsel to appear to discuss setting future dates.

MOTION TO COMPEL FURTHER BALTAZAR VS COUNTY OF RESPONSES TO SPECIAL CVRI2303050 RIVERSIDE INTERROGATORIES, SET ONE BY COUNTY OF RIVERSIDE Tentative Ruling: Motion continued to September 30, 2024, 8:30am, D-4.

HARRIS vs PREMIUM AUTO, Motion to Compel Arbitration by CVRI2400962 INC. PREMIUM AUTO, INC. Tentative Ruling: Grant. Factual/Procedural Context This action involves the sale and purchase of a used automobile. On 9/21/2023, Plaintiff and Defendant entered into a Retail Installment Sale Contract (“RISC”) concerning Plaintiff’s purchase of a used 2016 Range Rover Sport. The RISC contains an arbitration clause, in which Plaintiff agreed to arbitrate “[a]ny claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between [Plaintiff] and [Defendant]” that arises out of Plaintiff’s purchase of the subject vehicle. (See Hazrat Decl. ¶ 2, Ex. 1.) On 2/21/2024, Plaintiff filed the operative Complaint against Defendant, alleging (1) intentional misrepresentation, (2) negligent misrepresentation, (3) violation of Bus. & Prof. Code § 17200, and (4) violation of the Consumer Legal Remedies Act (“CLRA”). *** Defendant brings the instant motion to compel arbitration on the basis of the RISC. Defendant argues that California Supreme Court’s decision in Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 898 found that arbitration clauses in an automobile sales contract are not unconscionable. Defendant thus asks the Court to compel Plaintiff to arbitrate this action before the American Arbitration Association (“AAA”) and to stay this action pending completion of arbitration. In opposition, Plaintiff argues that the motion should be denied, because under McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, his claim for “public injunctive relief” under the CLRA to enjoin Defendant’s illegal and deceptive practices is a matter of public policy not subject to arbitration. In reply, Defendant argues that all of Plaintiff’s claims are subject to arbitration, and that Plaintiff seeks “private” injunctive relief for the benefit of the public, not public injunctive relief. In the event the Court finds that such claim is not arbitrable, Defendant asks the Court to sever and stay Plaintiff’s claim for injunctive relief pending arbitration. Analysis Under the Federal Arbitration Act (“FAA”), the moving party on a motion to compel arbitration must demonstrate the existence of an arbitration agreement between the parties that covers the controversy or claims at issue. (Roes v. SFBSC Mgmt., LLC (9th Cir. 2016) 656 F. App’x. 828, 829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity or “the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development, LLC (2012) 55 Cal.4th 223, 236.) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Id.) Plaintiff does not dispute that the FAA applies in this case, or that he entered into a written arbitration agreement that covers the instant dispute. (See Hazrat Decl. ¶ 2, Ex. 1.) Instead, Plaintiff opposes the instant motion solely on the basis that the arbitration agreement is invalid based on the California Supreme Court’s ruling in McGill v. Citibank, N.A. (2017) 2 Cal.5th 945 and Mejia v. DACM Inc. (2020) 54 Cal.App.5th 691. Plaintiff argues that he is seeking a public injunction under the CLRA to enjoin Defendant “from continuing to make false and misleading statements to consumers regarding the sale of motor vehicles.” (Compl. ¶ 71.) Plaintiff relies upon McGill and Mejia to argue that because California law prohibits arbitration of claims for public injunctive relief, the arbitration provision in this case is invalid and unenforceable. However, neither McGill nor Mejia stand for the proposition that an arbitration provision is invalid simply because it requires arbitration of claims for which a public injunction is a remedy or because it does not allow an arbitrator to issue a public injunction. Rather, the arbitration provision is invalid only if it precludes the parties from seeking a public injunction altogether, “in any forum.” (See McGill, supra, 2 Cal.5th at 961 [“Thus, insofar as the arbitration provision here purports to waive McGill’s right to request in any forum such public injunctive relief, it is invalid and unenforceable under California law.”] [emphasis added]; Mejia, supra, 54 Cal.App.5th at 704 [“We concur with the trial court’s interpretation of the arbitration clause as barring Mejia from seeking public injunctive relief ‘in any forum,’ thereby rendering the arbitration clause unenforceable under McGill.”] [emphasis added].) For instance, the McGill Court acknowledged that the parties had “elected in the Arbitration Agreement to exclude public injunctive relief requests from arbitration” but noted that the case could still go to arbitration on some of the claims asserted by the plaintiff. (McGill, supra, 2 Cal.5th at 966.) “Moreover, case law establishes that a stay of proceedings as to any inarbitrable claims is appropriate until arbitration of any arbitrable claims is concluded. [Citation]) Thus, arbitration of claims the parties have agreed to arbitrate may proceed pursuant to whatever procedures the arbitration agreement specifies, unaffected by any subsequent proceedings made necessary by invalidation of the waiver regarding the public injunctive relief claims the parties did not agree to arbitrate. According to the high court, “‘piecemeal’ litigation” of claims the parties have agreed to arbitrate and claims they have not agreed to arbitrate is consistent with the FAA.” (Id.) Thus, some of Plaintiff’s claims and requests for relief may be arbitrated and others may be tried in this Court after arbitration is completed. In Mejia, the trial court found that the arbitration agreement prevented plaintiff from seeking and obtaining a public injunction in arbitration and made arbitration the only forum available to the plaintiff. (Mejia, supra, 54 Cal.App.5th at 704.) The Court of Appeal noted that the trial court “might have ‘saved’ the arbitration clause by ‘sever[ing] the prohibition on public injunctive relief from the Arbitration Provision’” but could not do so due to a “poison pill” provision that restricted the right to sever.” (Id.) In this case, the arbitration agreement does not include any provision that prevents Plaintiff from seeking public injunctive relief in arbitration. (See Hazrat Decl. ¶ 2, Ex. 1.) The arbitration agreement simply states that “[a]ny award by the arbitrator shall be in writing and will be final and binding on all parties, subject to any limited right to appeal under the Federal Arbitration act.” (Id.) Moreover, the arbitration agreement prohibits claims, not brought on an individual basis, but as a “consolidated, representative, class, collective, injunctive or private attorney general action.” (Id.) It further states: Neither you nor we waive the right to arbitrate any related or unrelated claims by filing any action in small claims, court, or by using self-help remedies, such as repossession, or by filing an action to recover the vehicle, to recover a deficiency balance, or for individual or statutory public injunctive relief. (Id. [emphasis added].) Based on the above language, the arbitration agreement only seeks to limit the class action capacity in which an individual can bring a claim against Defendant. In other words, the only limitation as to a public injunctive relief claim is in a class representative capacity. This is important, because claims under the CLRA other consumer protection statutes may be asserted as individual claims seeking public injunctive relief. (McGill, supra, 2 Cal.5th at 959; Dicarlo v. Moneylion, Inc. (C.D. Cal. Dec. 20, 2019) 2019 U.S. Dist. LEXIS 228268, at *8 [provision that preserved the plaintiff’s right to obtain in arbitration “all remedies available in an individual lawsuit” did not bar public injunctive relief and was valid under McGill]; Gonzalez-Torres v. Zumper, Inc. (N.D. Cal. Dec. 2, 2019) 2019 U.S. Dist. LEXIS 207390, at *24 [concluding that an arbitration agreement that empowered the arbitrator to “issue any and all remedies authorized by law” did not run afoul of McGill because “[a]lthough a plaintiff may not assert claims on behalf of a class in arbitration, the Agreement does not prohibit plaintiff from being awarded public injunctive relief as a remedy for his individually-asserted claims in arbitration”].) Thus, based on the above, Plaintiff has failed to demonstrate that the arbitration agreement at issue is unenforceable under McGill or Mejia. In any event, the issue of which claims or disputes should be arbitrated must be decided by the arbitrator and not this Court. In Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, the arbitration agreement delegated “the determination of the scope or applicability of the arbitration provision” to the arbitrator. (Id. at 891.) Under those circumstances, the Court of Appeal concluded that “it is the arbitrator who will consider the conscionability of the agreement and the scope of the arbitration clause, including whether the class arbitration is available under the arbitration provision, and whether the provision purports to waive the Aanderuds’ right to seek public injunctive relief in all forum and, if so, what impact this has on the enforceability of the arbitration provision as a whole.” (Id. at 897; see also Henry Schein Inc. v. Archer & White Sales, Inc. (2019) 139 S.Ct. 524, 530.) Here, the arbitration agreement delegates questions of arbitrability to the arbitrator. (Hazrat Decl. ¶ 2, Ex. 1 [“Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision . . . and the arbitrability of the claim or dispute) . . . shall, at your or our election, be resolved by neutral, binding arbitration and not by court action.”] [emphasis added].) Thus, Plaintiff has agreed to submit to arbitration questions of the interpretation and scope of the arbitration provision and the arbitrability of specific claims. Accordingly, the Court grants Defendant’s motion to compel arbitration to allow the arbitrator to determine the threshold question of which claims and disputes are to be arbitrated and then, to arbitrate any claims or disputes the arbitrator finds to be arbitrable. All proceedings in this action are stayed pending completion of the arbitration proceedings.

DEMURRER ON 2ND AMENDED COMPLAINT FOR OTHER PERSONAL INJURY/PROPERTY CVRI2300372 LEE VS FMK LABS, INC. DAMAGE/WRONGFUL DEATH TORT (OVER $25,000) OF SANG KYU LEE BY FMK LABS, INC. Tentative Ruling: The Court sustains Defendant FMK Labs, Inc’s demurrer, without leave to amend. The Court notes that on calendar is also a Case Management Conference Hearing and an OSC re Plaintiff’s failure to file a proof of service as to Defendants Min Kim and Sang Suh. It does not appear that Defense counsel represents these two individual defendants. Plaintiff is ordered to appear and explain why these defendants have not been served, or face sanctions for failure to file a declaration per Local Rule 3116. Factual / Procedural Context In February 2021, Plaintiff Sang Kyu Lee (“Plaintiff”) was hired to work at the cosmetic assembly line in Defendant FMK Labs, Inc.’s (“Defendant”) production facility. Plaintiff alleges he was not provided any training or orientation by Defendant, and he was seriously injured by an assembly line injection needle on his 4th day of work. On January 23, 2023, Plaintiff filed this action. On September 27, 2023, Plaintiff filed his operative Second Amended Complaint (“SAC”) alleging two causes of action: 1) Negligence; and 2) Intentional Tort of Wonton Disregard of Plaintiff’s Safety and Well Being. *** Defendant now demurs to the SAC on the ground it fails to state facts sufficient to constitute a cause of action and is uncertain. (C.C.P., § 430.10(e), (f).) Defendant argues Plaintiff alleges that Defendant was his employer, that he was injured while acting in the course and scope of his employment, and that he subsequently filed a workers compensation claim. As such, his workers compensation claim is the exclusive remedy and Plaintiff cannot maintain a civil lawsuit against Defendant for his on the job injury. Plaintiff opposes and argues his allegations are outside of the workers compensation exclusive remedy bar as he alleges a delay in providing temporary benefits and medical services and an intentional tort. Plaintiff also alleges Defendant failed to pay him proper wages. Plaintiff attaches a proposed Third Amended Complaint which seeks to add a proposed 3rd cause of action for failure to provide an accurate wage statement. Defendant replies arguing Plaintiff fails to present any argument or authority as to why the demurrer should not be sustained. Moreover, the proposed Third Amended Complaint fails to state a cause of action and any wage claim is barred by the 3-year statute of limitations and does not relate back. Analysis A demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or from matters outside the pleading that are judicially noticeable. (Blank vs. Kirwan (1985) 39 Cal.3d 311, 318.) In evaluating a complaint under these standards, if there is any valid cause of action stated, even if not the one intended, the complaint is sufficient. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) The sufficiency of the cause of action is tested by presuming all of the material factual allegations in the complaint are true. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966–67.) “The complaint must be construed liberally . . . with a view to substantial justice between the parties.” (C.C.P., § 452; Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) If the complaint fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer lies where the pleading does not state facts sufficient to constitute a cause of action. (C.C.P., § 430.10(e)). A special demurrer lies where a pleading is uncertain, ambiguous, and unintelligible. (C.C.P., § 430.10(f)). Demurrers for uncertainty will only be sustained where the defendant cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Demurrers for uncertainty are to be overruled when addressed to inconsequential matters, the facts are within the knowledge of the defendant or ascertainable in discovery, or not dispositive of one or more causes of action. (Id.) Workers’ Compensation As Defendant argues, Plaintiff’s action is barred by workers’ compensation exclusivity. The Workers’ Compensation Act covers employee injuries where: (1) both the employer and employee are subject to the provisions of the Workers’ Compensation Act; (2) the employee is performing service related to and within the course of employment; (3) the injury is proximately caused by employment; and (4) the employee’s injury is not self-inflicted, does not arise out of an altercation in which the injured employee is the initial physical aggressor, or in the course of the employee's commission of certain felonies or while intoxicated or engaged in voluntary off-duty recreational activities. (See Labor Code, § 3600(a).) If these conditions do not exist, the employee may bring a civil action. (Labor Code, §§ 3600-3602.) If the complaint affirmatively alleges facts indicating coverage by workers’ compensation laws and fails to allege additional facts negating application of the exclusive remedy principle, no civil action will lie, and the complaint is subject to a general demurrer. (Colombo v. State of California (1991) 3 Cal.App.4th 594, 599 [citations omitted].) As stated in Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 811-812, if the acts are a normal part of the employment relationship or worker’s compensation process, or the motive does not violate a fundamental state policy, then the cause of action is barred; otherwise, it may go forward. The court focused on whether the “acts or motives that establish the elements of the cause of action and considers whether these acts or motives constitute ‘a risk reasonably encompassed within the compensation bargain. [citation.] If they do, then the exclusive remedy provisions govern and bar the cause of action. If they do not, then the exclusive remedy provisions are inapplicable because the malfeasor is no longer acting as an ‘employer’ as understood in these provisions.” (Id. at 819-820.) Damages for mishandling of a workers compensation claim fall within the scope of the exclusivity. (Id. at p. 815; see also Everfield v. St. Comp. Ins. Fund (1981) 115 Cal.App.3d 15, 21 [“[t]he gravamen of the cause of action is simply the delay in payment and the change of amount paid. It follows that based upon what we have explained, the exclusive jurisdiction over such matters correctly reposes in the Worker’s Compensation Appeals Board …”].) Here, as Defendant argues, Plaintiff’s claims squarely fall within the employment relationship and workers compensation process, namely Plaintiff’s hand injury while working for Defendant, taking Plaintiff to an urgent care for treatment and failure to timely report the incident to worker’s compensation board. (SAC, ¶¶ 5-9, 12, 15.) These facts are all part of the employment relationship or worker’s compensation process. As such, the action is barred. Plaintiff does not provide any relevant argument or authority in opposition to the demurrer to the SAC, as currently filed. As such, the Court shall deny leave to amend where the facts are not in dispute and no liability exists under substantive law. (Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 535 [disapproved on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919]; Murphy v. Twitter, Inc. (2021) 60 Cal.App.5th 12, 35, 41- 42 [trial court properly sustained defendant’s demurrer without leave to amend because each of plaintiff's claims barred under applicable law].) Proposed Third-Amended Complaint Plaintiff has sought leave to amend to include a new cause of action for failure to provide accurate wage statements. The statute of limitations for violations of Labor Code §§ 226 and 1174 (both are referenced in the proposed Third Amended Complaint) is one year. (C.C.P., §340(a).) Plaintiff alleges that his last date worked was February 11, 2021 (the date he was injured). Under the one-year statute of limitations, his claims would have expired on February 11, 2022. This proposed new claim is untimely. Even if it were for unpaid wages, CCP § 338 sets forth a three- year statute of limitations. Either way, the new claims would be untimely. While the court has discretion to permit a further amendment of a complaint, the Court finds no basis to allow the Plaintiff’s new pleading. While an amendment need not relate to the claims or defenses originally pleaded, if there is a statute of limitations problem, it must appear that the amendment is “based on the same general set of facts pleaded in the original complaint.” (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 626 [disapproved on other grounds by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019 [court may be justified in denying leave to amend complaint that would apparently be barred by statute of limitations].) Here, the claims in the original complaint simply related to a claim of negligence, not wage and hour violations. The Court finds that Plaintiff’s new allegations arises from a completely different injury than what was originally alleged. As such, granting leave to amend would only engender a further demurrer, which would be sustained without leave to amend because the statute of limitations has run. As such, the demurrer as to Defendant FMK Labs is sustained, without leave to amend.

Motion for Leave to Amend Complaint on KIMBLE vs ALPHA PHI 4th Amended Complaint MYEASHA RIC1906176 ALPHA FRATERNITY INC KIMBLE by MYEASHA KIMBLE, WILLIAM HILLIARD Tentative Ruling: These matters are off calendar as a Notice of Settlement was filed on 7/23/2024.