Tentative Rulings

The Tentative Rulings for Tuesday, July 16, 2024, are:

Re:                Diaz Nunez, Manuel vs. Titan Ag Services, Inc.

Case No.:   VCU296822

Date:           July 16, 2024

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Motion for Preliminary Approval of Class Action and PAGA Settlement

Tentative Ruling: To grant the motion and approval the settlement, as modified herein; to set the motion for final approval of settlement on January 28, 2025, 8:30 am, Dept 2. 

1. Sufficiency of Amount of Settlement (Net Estimated: $652,000)

The gross settlement amount is $1,200,000. Plaintiff estimates 9,784 Class Members and 5,125 Aggrieved Employees for purposes of PAGA penalty payment.

Class Members expect an average gross recovery of approximately $66.64.

Class Members consist of all non-exempt employees who are or previously were employed by Defendant Titan AG Services, Inc. (“Titan AG”), staffed to work at Defendant Royal Farms, Inc.’s (“Royal Farms”) farms and performed work in California during the Class Period defined as March 21, 2019 through September 11, 2022.

“Aggrieved Employees” refers to all non-exempt employees who are or previously were employed by Defendant Titan AG Services, Inc., staffed to work at Defendant Royal Farms, Inc.’s farms and performed work in California during March 21, 2022, through September 11, 2022.

Plaintiff primarily alleged the following violations (1) Unfair Competition in Violation of Cal. Bus. & Prof. Code §§ 17200, et seq.; (2) Failure to Pay Minimum Wages in Violation Of Cal. Lab. Code §§ 1194, 1197 & 1197.1; (3) Failure to Pay Overtime Wages in Violation Of Cal. Lab. Code §§ 510, et seq.; (4) Failure to Provide Required Meal Periods in Violation Of Cal. Lab. Code §§ 226.7 & 512 and the Applicable IWC Wage Order; (5) Failure to Provide Required Rest Periods in Violation Of Cal. Lab Code §§ 226.7 & 512 and the Applicable IWC Wage Order; (6) Failure to Pay Wages When Due in Violation Of Cal. Labor Code §§ 201, 202 and 203; (7) Failure to Provide Accurate Itemized Statements in Violation Of Cal. Lab. Code § 226; (8) Failure to Reimburse Employees for Required Expenses in Violation of Cal. Lab. Code § 2802 and (9) Violation of PAGA.

Counsel projected liability exposure for class claims (excluding PAGA penalties) ranged between $3,655,464.70 (“Conservative Model”) and $13,250,192 (“Aggressive Model”) if successful at trial. (Declaration of Lapuyade ¶43.) Plaintiff has provided discussion of the value of each claim, applied various discount rates regarding the chance of success as to each claim which correspond to the final gross settlement amount. (Declaration of Lapuyade ¶¶44-54.) Additionally, the estimated PAGA liability ranged from between $158,375 (“Conservative Model”) to  $9,932,450 (“Aggressive Model.”) (Declaration of Lapuyade ¶55-57.) 

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

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

Plaintiff’s deductions from the gross settlement of $1,200,000 are proposed as follows:

Proposed Court Approved Attorneys’ Fees (33.3%):	$400,000
Proposed Attorney Costs (Expended):	$25,000
Proposed Enhancement Payment to Plaintiff:	$10,000
Proposed Settlement Administrator Costs	$53,000
Proposed Total PAGA Payment	$75,000
Proposed Net Settlement Amount	$652,000

2.  Class Notice

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

Objections or opt out notices are to be made within 60 days.

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

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

3.  Enhancement Awards to Class Representative

The Court preliminarily approves Plaintiff Nunez as Class Representative for settlement only. The proposed enhancement award to Plaintiff is $10,000.

The Court has, in past cases, approved enhancement awards of $5,000 routinely. Enhancement payments “are fairly typical in class action cases.” (Cellphone Termination Fee Cases (2010) 180 Cal.App.4th 1110, 1393.) Enhancement payments “are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” (Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 958-959.) “[T]he rationale for making enhancement or incentive awards to named plaintiffs is that he or she should be compensated for the expense or risk he has incurred in conferring a benefit on other members of the class.” (Clark v. American Residential Services LLC (2009) 175 Cal.App.4^th 785, 806.)

The Court’s review of the declarations of Plaintiff indicates justification for the $5,000 award, but no amount higher.

The Court will approve the enhancement award of $5,000.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33.3% of the gross settlement fund of $1,200,000 or $400,000 and costs not to exceed $25,000 are sought by Plaintiff’s counsel.

Counsel has utilized the percentage of common fund methodology as well as provided adequate lodestar information to evaluate the reasonableness of the fee request.

Counsel Hernández indicates 24.2 hours at the rate of $829 per hour for a lodestar of $24,061.80. (Declaration of Hernández ¶18.)

Counsel Zakay indicates 108.4 hours at $600 per hour for a lodestar of $61,974. (Declaration of Zakay ¶6, 7)

Counsel Lapuyade indicates 275.7 hours at rates ranging from $700 to $400 for a total lodestar of $148,510. (Declaration of Lapuyade ¶¶10, 16.)

Therefore, the total lodestar for all three firms is $234,993.30. (Declaration of Lapuyade ¶13)

In order to award the $400,000 requested, the Court would need to apply a multiplier of 1.7. The Court will permit a maximum multiplier of 1.5. The Court has reviewed the declarations of counsel in support of the final approval motion as to what is now an additional .2, but, in its discretion, rules that the additional .5 awarded adequately takes into account the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented. (See In re Vitamin Cases (2003) 110 Cal.App.4th 1041, 1052 quoting Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 833) Despite any agreement by the parties to the contrary or the unopposed nature of the motion, the Court has an independent responsibility to review the attorney fee provision of the settlement agreement and award an amount that it determines to be reasonable. (Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 128.)

Therefore, the Court will approve $352,482.95 in fees.

The Court notes that Counsel Lapuyade and Counsel Zakay each declare they expect to spend an additional 20-30 hours each between approval of this motion and final approval. The Court intends to examine the billing records as to this additional work upon presentation via the final approval motion as to this additional 40 to 60 hours.

As to costs, counsel indicates presently incurred costs of $15,920.57 total. (Declaration of Lapuyade ¶21; Declaration of Zakay ¶11.) The Court, therefore, preliminarily approves no more than $25,000 in costs.

5.  Claims Administrator

The court preliminary approves Apex Class Action, LLC as the claims administrator for this class action based both on prior experience with this settlement administrator in other class actions litigated in this Court and the declaration of its Chief Executive Officer. The Court preliminarily approves administration costs not to exceed $53,000, which appears reasonable given the size of the class.

6. Unclaimed Settlement Proceeds

The Court preliminarily approves the distribution of unclaimed settlement proceeds The Children’s Advocacy Institute (“CAI”) in accordance with Code of Civil Procedure section 384.

7. Release

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

8. LWDA Notice

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

9. Class Certification

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

Here, the Motion and accompanying declaration of Counsel Lapuyade sufficiently sets forth the basis for finding the class is numerous and ascertainable as 9,784 employees have been identified through Defendant’s employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendant. Further, the class representative, through her declaration, indicates they will adequately and fairly represent the Class Members and will not place their interests above any Class Member. The Class Representative was employed by the Defendant during the relevant time period and thus worked under the same policies and procedures as the Class Members.

The preliminarily approved deductions from the gross settlement of $1,200,000 therefore are as follows:

Preliminarily Approved Attorneys’ Fees (1.5 Lodestar):	$352,482.95
Preliminarily Approved Attorney Costs (Up To):	$25,000
Preliminarily Approved Enhancement Payment to Plaintiff:	$5,000
Preliminarily Approved Settlement Administrator Costs	$53,000
Preliminarily Approved Total PAGA Payment	$75,000
Preliminarily Approved Net Settlement Amount	$689,517.05

The Court, therefore, sets the hearing on the motion for final approval January 28, 2025, 8:30 am, Dept 2.  

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Ramos, Beatriz vs. Volt Management Corp.

Case No.:   VCU304753

Date:           July 16, 2024

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendants’ Motion to Compel Arbitration and Stay       

Tentative Ruling: To grant the motion and stay this matter.

Background Facts

Plaintiff alleges various Labor Code violations, as well as discrimination, sexual harassment, retaliation and wrongful termination against Defendants Volt Management Corporation, Saputo Cheese USA, Inc. and Genaro Doe (later amended to Genaro Toledo) arising out of Plaintiff’s former employment.

On June 21, 2024, Defendants Saputo and Volt jointly filed this motion to compel arbitration. Defendants seek to enforce an arbitration agreement allegedly signed by Plaintiff that covers the claims alleged above.

Facts – Existence of Agreement

In support of the motion, Defendants submit the declaration of Sonia Elwood, currently the Senior Operations Manager for Volt, having held that position since October 2021. (Declaration of Elwood ¶1.) Elwood indicates that Saputo is a client of Volt and Volt provides staffing services to fulfill temporary staffing needs. (Declaration of Elwood ¶2.) Elwood indicates access to Volt’s internal systems including onboarding documentation, personnel files, and other employment related documents, including Plaintiff’s personnel file. (Declaration of Elwood ¶¶1, 3, 4.)

Elwood further explains that Plaintiff had two placements with Saputo: the first placement began on July 19, 2018 and ended on January 19, 2019, and the second placement with Saputo began on October 7, 2020 and ended on January 29, 2021. (Declaration of Elwood ¶5.)

Elwood details the electronic onboarding systems in place as to each of the placements, noting that, as to each onboarding process, employees provided a personal email address, created a unique password unknown and inaccessible to Volt, requires input of various personal information and finally obtains an electronic signature after accessing, receiving, singing and authenticating certain documents, including arbitration agreements. (Declaration of Elwood ¶¶6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19.)

Attached as Exhibit C is an Employment Agreement electronically signed by Plaintiff July 17, 2018 and containing an arbitration provision at paragraph 8, as to the first placement. (Declaration of Elwood ¶10 – Exhibit C.)

Attached as Exhibit K is a “Volt Hire Package” that includes an Employee Guide Acknowledgment, containing an arbitration term. (Declaration of Elwood ¶17 – Exhibit K.)

As to formation, in opposition, Plaintiff has filed a declaration stating she does not recall signing nor acknowledging the arbitration agreement on any occasion or agreeing to its terms. (Declaration of Ramos ¶12.) Plaintiff states Defendants failed to mention or explain the arbitration agreement and its contents, and failed to explain Plaintiff was relinquishing certain rights. (Declaration of Ramos ¶13.)

Authority and Analysis – Existence of Agreement to Arbitrate

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.”  (Code Civ. Proc. § 1281.2(a), (b).) (emphasis added.)

Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement.  (Baker v. Italian Maple Holdings, LLC, 13 Cal. App. 5th 1152, 1160 (2017); Cal. Rules of Court, rule 3.1330.)  “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Management Corp. (2001), 88 Cal.App.4th 215, 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.)  

However, when the opposing party disputes the agreement, then the opposing party must provide evidence to challenge its authenticity.  (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) 

Under California law, "[t]he burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence …." (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165.)“However, the burden of production may shift in a three-step process." (Id. at 165.)

“First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]” (Gamboa, supra, 72 Cal.App.5th at p. 165.) “The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.]” (Id..) “For this step, 'it is not necessary to follow the normal procedures of document authentication.’ [Citation.]” (Id.)

Here, this burden is met through Elwood’s attachment of Exhibits C and K, as to the documents containing arbitration terms.

 “If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement." (Gamboa, supra, 72 Cal.App.5th at 165.) “The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.” (Id.)

Here, Plaintiff has indicated she never signed the agreements and does not remember seeing the agreements. “The opponent need not prove that his or her purported signature is not authentic, but must submit sufficient evidence to create a factual dispute and shift the burden back to the arbitration proponent, who retains the ultimate burden of proving, by a preponderance of the evidence, the authenticity of the signature.” (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 755.) Under Gamboa, above, Plaintiff’s statement appears sufficient to shift the burden back to Defendants.

When the authentication of an electronic signature or acceptance is challenged, the court in Ruiz v. Moss Bros. Auto Grp. (2014) 232 Cal. App. 4th 836, 842 notes a required showing of evidence by the employer to demonstrate the authenticity of the electronic signature. Specifically, when an employer contends that an employee electronically signed an arbitration agreement, the employer's failure to authenticate the employee's purported electronically signature is ground to deny the employer's motion to compel arbitration.  (Id. at 843-44.)

 “Civil Code section 1633.9 addresses how a proponent of an electronic signature may authenticate the signature—that is, show the signature is, in fact, the signature of the person the proponent claims it is.” (Id. at 843.) An electronic record or signature is attributable to a person if it was “the act of the person.” (Civ. Code, § 1633.9(a).) The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or signature was attributable. (Civ. Code, § 1633.9(a).)

Specifically, a defendant properly authenticates the plaintiff’s electronic signature on an arbitration agreement by providing a declaration (1) detailing defendant’s security precautions regarding the transmission and use of the plaintiff’s username and password; and (2) detailing the steps an applicant would have to take to create the electronic record. (Espejo, supra, 246 Cal.App.4th at 1062.)

Espejo indicates that factors such as the privacy of an employee’s username, the requirement that the employee reset their password before accessing the system,  the existence of a signature line containing the signatory’s typed full name,  identification of the time the document was electronically signed, an IP address identifying the location where it was signed and the existence of a confirmation email support a finding that the agreement was signed. (Id. at 1052, 1053, 1062.) To the Court,  the process described Elwood provides the “critical factual connection” that Plaintiff, and only Plaintiff, could have electronically signed the documents containing the arbitration terms, given the “process for signing documents and protecting the privacy of the information with unique and private user names and passwords…” (Id. at 1062.) (Declaration of Elwood ¶¶6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19.)

Here, the Court does not find that the issue in Ruiz is also present here. Ruiz found denial of the motion to compel proper when the employer failed to offer “any explanation of how [it] inferred the electronic signature on the agreement was the act of [the employee]” despite the fact that the electronic signature bore the employee’s name and the date of execution. (Ruiz, supra, 232 Cal. App. 4th at 844.) Where the employee’s declarations contain conclusory allegations with little detail and the employer provides evidence that explains in detail the onboarding process and authenticates the employee’s signature on the arbitration agreement, the courts have found that it was more likely than not that the employee signed the arbitration agreement. (Id. at 838-840 & 844; Fabian v. Renovate Am., Inc., (2019) 42 Cal.App.5th 1062, 1069-1070.)

Moreover, Plaintiff’s declaration states slightly more than a conclusory allegation that she does not recall electronically signing any arbitration agreement, but fails to address the completion of other onboarding documents, including those requiring personal information of Plaintiff, as noted in the declaration of Elwood.

The Court finds Defendants’ presentation of the onboarding process, including Plaintiff’s completion of other documents electronically that require personal information, and the documents containing the arbitration terms themselves, in total, meets Defendant’s burden to show the existence of an agreement to arbitrate by a preponderance of the evidence.

The Court, therefore, finds an agreement to arbitrate exists.

Facts – Contents and Scope of the Agreement

Exhibit C, the one page Employment Agreement executed by Plaintiff as to the first placement, contains the following:

“AGREEMENT TO ARBITRATE DISPUTES: Any employment and/or employment termination related disputes and/or disputes arising out of or relating to the actions of the Company (or Company’s employees) and/or disputes arising out of or related to any assignment and/or termination of any assignment and/or arising out of or relating to the actions of the Client (or Client’s employees), shall be settled by final and binding arbitration, pursuant to the Federal Arbitration Act, in accordance with the employment rules of the American Arbitration Association (“AAA”), which can be found at www.adr.org or a copy of the AAA rules can be provided to Employee upon Employee’s request to the Company at the time of hire…” (Declaration of Elwood ¶10 – Exhibit C.)

Further, Exhibit K, the Volt Employee Guide, contains the following:

Any dispute, controversy or claim which arises out of, involves, affects or relates in any way to your employment with Volt or a claimed breach of the employment relationship or the conditions of employment or the termination of employment, or in any way arising out of, involving, affecting or related to any assignment or termination of any assignment with any customer of Volt, and/or disputes, controversies or claims arising out of or related to the actions of Volt, Volt’s employees or Volt’s customer, or customer’s employees under Federal, State and/or local laws shall be resolved by final and binding arbitration, pursuant to the Federal Arbitration Act, in accordance with the applicable rules of the American Arbitration Association (www.adr.org) in the state where you are employed by Volt…

Your continued employment with Volt is your agreement to the above provision requiring arbitration of any and all employment/assignment disputes.” (Declaration of Elwood ¶17 – Exhibit K.)

Authority and Analysis – Federal Arbitration Act

The party asserting that the Federal Arbitration Act (“FAA”) applies to an agreement has “the burden to demonstrate FAA coverage by declarations and other evidence.” (Hoover v. American Income Life Ins.Co. (2012) 206 Cal.App.4th 1193, 1207.)

Here, Plaintiff disputes that the FAA applies, despite the express language in Exhibit C.

Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 345 noted: “’The question, therefore, is whether the parties expressly incorporated the FAA's procedural provisions into their agreements.’” The question of whether the FAA has been incorporated into the agreement "'"is a question of law involving interpretation of statutes and the contract."'" (Id. at p. 346.) Exhibit C unambiguously incorporates the FAA. The FAA therefore applies to the Arbitration Agreement. (See also Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122.)

Authority and Analysis –Scope of the Agreement

As noted above, Plaintiff sues for a number of theories involving Labor Code violations, discrimination, wrongful termination and retaliation arising out of Plaintiff’s employment with Defendants. The Court finds the arbitration terms noted above apply to Plaintiff’s claims.

The Court, having found an agreement to arbitrate the controversy exists, looks to grounds to revoke the agreement under Code of Civil Procedure section 1281.2(b).

Plaintiff raises application of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”) and unconscionability to prevent application of the arbitration terms in this case.

Facts as to Application of Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

The Court starts with Plaintiff’s complaint, which alleges that, in 2018, during Plaintiff’s first placement, “Saputo employee Genaro (“Genaro”), harassed Plaintiff and made advances toward her by asking her out and asking to take her for a drink, among other things. Ms. Ramos always rejected Genaro’s advances.” (Complaint ¶14.)

In October 20200, Plaintiff alleges Genaro asked Plaintiff to get into his vehicle so they could go out, to which Plaintiff refused and changed her shift to avoid Genaro. (Complaint ¶¶15, 16.)

Further, the complaint alleges “On or around January 27, 2021 Ms. Ramos called Carla and asked to be transferred to another facility in order to work the third shift once again. Carla told Plaintiff that Defendant could not do so due to COVID-19 and asked why Plaintiff was requesting a transfer. Plaintiff informed Carla that Genaro was making sexual advances toward her, and Plaintiff further stated her concerns and fears of retaliation for reporting Genaro. Carla told Plaintiff, “Let me talk to HR,” however, no action was taken in response to Plaintiff’s complaints.” (Complaint ¶18.)

Plaintiff alleges further that “The following day, on or around January 28th, 2021, Carla called Ms. Ramos and told her, “We don’t need you to work today.” However, Carla did not provide a reason for this sudden change. Ms. Ramos was not scheduled to work the following days of January 29th and January 30th. On January 30th, 2021, Carla called Plaintiff and informed her that she was terminated due to her attendance. Ms. Ramos asked Carla if she was being terminated as a result of her complaints against Genaro. Carla responded, “Oh no not because of him, you are not the only one.” Carla went on to inform Plaintiff that she was not eligible for rehire.” (Complaint ¶19.)

The complaint further alleges “Plaintiff believes, and based thereon alleges that Defendant terminated Plaintiff due to her complaints against Genaro. Defendant provided Plaintiff her final paycheck on or around February 5, 2021. Plaintiff believes, and based thereon alleges that Defendant terminated her due to her good-faith complaints of discrimination and harassment, and due to her use of sick pay relating to her COVID-19 quarantine.” (Complaint ¶21.)

The Court notes that Plaintiff has provided a declaration under penalty of perjury as to these allegations. (Declaration of Ramos ¶¶3-10.)

Plaintiff has alleged two causes of action for sexual harassment.

On December 28, 2023, Plaintiff filed a complaint with the Civil Rights Department and obtained a right to sue letter. (Declaration of Ramos ¶11.)

Authority and Analysis - Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 2022 Enacted H.R. 4445, 117 Enacted H.R. 4445” and codified as 9 U.S.C. § 402 states as follows:

“(a) In general. Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

(b) Determination of applicability. An issue as to whether this chapter [9 USCS §§ 401 et seq.] applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter [9 USCS §§ 401 et seq.] to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter [9 USCS §§ 401 et seq.] applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.” (9 U.S.C. § 402)

The Act applies “to any dispute or claim that arises or accrues on or after March 3, 2022.”  (9 U.S.C. § 402 – Applicability of section.)

A claim normally “accrues” when “the plaintiff has a complete and present cause of action.” (Rotkiske v. Klemm (2019) 140 S. Ct. 355, 360.) “Traditionally at common law, a ‘cause of action accrues “when [it] is complete with all of its elements”—those elements being wrongdoing, harm, and causation.’ [Citation.]” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.)

Plaintiff’s claim appears to have accrued before the March 3, 2022 date, given that all of the events occurred prior to that date.

However, Plaintiff cites to Kader v. Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214 in support of the application of the Act to analysis of when the “dispute” occurred for purposes of application of the Act.

Kader

In Kader, the plaintiff signed two arbitration agreements, one in May 2018 and another in June 2019. (Id. at 218.) The plaintiff alleged acts of sexual harassment in July 2018, November 2018, and April 2019. (Id.) The plaintiff “kept the incidents to himself out of shame and fear of losing his job.” (Id.)

As noted, Plaintiff signed a second arbitration agreement in June 2019. (Id.) Following the signing of this second agreement, Plaintiff alleges eight subsequent incidents of sexual harassment and assault took place between September 2019 and February 28, 2022. (Id. at 219.)

An additional allegation of sexual harassment and/or assault took place March 16, 2022. (Id.)

In May 2022, the plaintiff filed a complaint with the DFEH and obtained a right to sue notice on May 27, 2022. (Id.) The same day, the plaintiff filed the complaint against plaintiff’s employer and alleged harasser, including causes of action for sexual harassment, sexual bater, discrimination, retaliation, negligence, intentional infliction of emotional distress and defamation. (Id.)

The court in Kader noted that it was unclear if the plaintiff complained about the conduct to anyone other than the harasser and alleged “ felt that he could not report [the harassing] conduct to [his employer] or its related entities without suffering retaliation.” (Id.)

The defendants in Kader thereafter filed a motion to compel arbitration, arguing that the Act did not apply because the claims accrued prior to the effective date of the Act, the second arbitration agreement from 2019 was signed after the conduct giving rise to the harassment or assault took place, and the plaintiff never complained during the time he was employed. (Id.)

After a writ of mandate, the trial court denied the motion. (Id.)

The appellate court began its analysis of the Act, emphasizing a statutory note to the Act:

“The Act consists of two sections. Title 9 United States Code section 402(a), provides that at the election of the person alleging conduct constituting a sexual harassment dispute or  sexual assault dispute, ‘no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.’ Any issue as to whether the Act applies to a dispute is to be determined under federal law. (9 U.S.C. § 402(b).)

Section 401 of the Act defines several relevant terms: (1) a predispute arbitration agreement is ‘any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement’; (2) a sexual assault dispute is ‘a dispute involving a nonconsensual sexual act or sexual contact’; [*222]  and (3) a sexual harassment dispute is ‘a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.’ (9 U.S.C. § 401(1), (3), & (4).)

A statutory note to the Act adds: ‘This Act, and the amendments made by this Act, shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.’ (Pub.L. No. 117-90, § 3 (Mar. 3, 2022) 136 Stat. 28, reprinted in notes foll. 9 U.S.C. § 401.) HN6 All provisions enacted by Congress, including a provision codified as a statutory note, must be given equal weight regardless of their placement by the codifier. (Famuyide v. Chipotle Mexican Grill, Inc. (D.Minn., Aug. 31, 2023, No. CV 23-1127 (DWF/ECW)) 2023 WL 5651915, p. *3 (Famuyide).) ‘The Court must read § 402(a) in conjunction with the statutory note, as both are binding law.’ (Ibid.)”

The appellate court in Kader examined the definition of “dispute” under this statutory note, holding “the date that a dispute has arisen for purposes of the Act is a fact-specific inquiry in each case, but a dispute does not arise solely from the alleged sexual conduct. A dispute arises when one party asserts a right, claim, or demand, and the other side expresses disagreement or takes an adversarial posture.” (Id. at 222.)

Under the facts presented in Kader, the appellate court found the agreement invalid because there was no evidence of the assertion of a right, claim or demand and the accompanying disagreement or adversarial position until after the Act’s effective date, when the plaintiff sought the right to sue letter from the DFEH. (Id. at 218, 222-224.) Therefore, the Act applied and invalidated the arbitration agreement. (Id. at 225.)

The Court, therefore, undertakes the fact specific inquiry here and distinguishes Kader on its facts. Kader emphasized that the dispute arose in May 2022, after the effective date of the act, when the plaintiff there filed the DFEH claim, and that the plaintiff did not there complain or otherwise make the employer aware of the harassment. Thus, no dispute arose between the plaintiff and the employer prior to the Act’s effective date.

Here, Plaintiff alleges, on January 27, 2021, “informed [Onesite Coordinator] Carla that Genaro was making sexual advances toward her, and Plaintiff further stated her concerns and fears of retaliation for reporting Genaro.” (Complaint ¶18; Declaration of Ramos ¶9.) Plaintiff thereafter alleges she was terminated due to the complaints of harassment against Genaro. (Complaint ¶21.) 

In contrast to Kader, Plaintiff asserted a right (to be free from harassment at work) January 27, 2021 and received a disagreement or adversarial position from Defendants when she was terminated on January 30, 2021. Plaintiff alleges she was told not to come to work the day after she made the complaint, was not put on the schedule to work on the following two days, and told she was terminated when she inquired about the schedule three days later. She was told on the date of termination she was not eligible for rehire. The complaint is clear that Plaintiff believed when she got her final paycheck on February 5, 2021, that she had been terminated because of her sexual harassment complaints. The Court, on these facts, finds the dispute arose upon Plaintiff’s termination after reporting the harassment.

Therefore, the Court finds the Act does not apply to this lawsuit.

Facts – Unconscionability

Plaintiff asserts the arbitration provision is unconscionable.

As to procedural unconscionability, Plaintiff argues she could not negotiate the terms of the agreement, that it was buried within different documents and that Plaintiff, and other employees, were given no choice but to sign the provision. Plaintiff argues the agreement was a contract of adhesion.

Substantively, Plaintiff argues that there are limitations on discovery at the arbitrator’s discretion. Plaintiff does not appear to argue any of the other terms are substantively unconscionable.

Authority and Analysis – Unconscionability

The inquiry into unconscionability consists of two prongs: A contract will be revoked if it is both procedurally unconscionable and substantively unconscionable. (See Armendariz, 24 Cal.4th 83, 102.) Procedural and substantive unconscionability need not be present to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Id. at 114.)

Procedural Unconscionability

“‘Procedural unconscionability’ concerns the manner in which the contract was negotiated and the circumstances of the parties at that time.  It focuses on the factors of oppression and surprise. The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party. The component of surprise arises when the challenged terms are ‘hidden in a prolix printed form drafted by the party seeking to enforce them.’” (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.)

Where a contract of adhesion includes the unequal bargaining power of contracting parties, with the weaker party’s inability to negotiate, this may indicate procedural unconscionability in the form of oppression. (See Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1372.) “The term ‘adhesion contract’ refers to standardized contract forms offered to consumers of goods and services on essentially a ‘take it or leave it’ basis without affording the consumer a realistic opportunity to bargain and under such conditions that the consumer cannot obtain the desired product or services except by acquiescing in the form contract. [Citations.] The distinctive feature of a contract of adhesion is that the weaker party has no realistic choice as to its terms. [Citations.]” (Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 356.) 

“[A] compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a ‘take it or leave it’ basis.” (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.)

Moreover, the Court notes Chamber of Commerce of the United States v. Bonta (9th Cir. 2023) 62 F.4th 473 as to the lawfulness of AB 51 as codified in Labor Code section 432.6 under the FAA.

The Ninth Circuit concluded that “the FAA preempts AB 51 as whole to the extent it applies to arbitration agreements.” (Id. at 490.) Therefore, the Ninth Circuit affirmed the district court’s opinion issuing a statewide preliminary injunction and blocking enforcement of Labor Code section 432.6. (Id.) “When the FAA applies, it preempts any contrary state law and is binding on state as well as federal courts.” (Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1263.) As noted above, the FAA applies to this Agreement.

Finally, the Court notes that Labor Code section 432.6 also states, in part: “[n]othing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act…” (Labor Code §432.6(f)).

Here, the Court finds some procedural unconscionability present due to her inability to negotiate the terms of the agreement and its placement with other employment documents. However, that the agreement was provided on a take it or leave it basis does not add to the procedural unconscionability.

Substantive Unconscionability

“ ‘Substantive unconscionability’ focuses on the terms of the agreement and whether those terms are so one-sided as to ‘shock the conscience.’ ” (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1330 (citations omitted).) The paramount consideration in assessing [substantive] conscionability is mutuality. (Ibid.) Substantive unconscionability looks to overly harsh or one-sided results. (Armendariz, supra, 24 Cal.4th at 99.)

Substantive unconscionability occurs when a contract, particularly, contracts of adhesion, impose terms “that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. All of these formulations point to the central idea that the unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party. Unconscionable terms impair the integrity of the bargaining process or otherwise contravene the public interest or public policy or attempt to impermissibly alter fundamental legal duties.” (OTO, L.L.C. v. Kho, supra, 8 Cal. 5th at 129–30, internal quotations and citations omitted.)

Plaintiff makes no argument that the arbitration term is substantively unconscionable. The Court does not find the language in the Agreement uncertain and Plaintiff provides no legal authority for this argument. (Opposition 8:4-11.)

In any event, Armendariz sets forth elements of essential substantive fairness as follows:

(1) provide for a neutral arbitrator:

(2) provide for adequate discovery;

(3) require the arbitrator to issue a written decision that permits limited judicial review;

(4) provide for the same remedies that would otherwise be available to the employee in court;

(5) not require the employee to bear costs unique to arbitration; and

(6) provide a “modicum of bilaterality” between the employer and employee. (Arnendariz, supra. 24 Cal 4th at 102-113, 117-118.)

As noted above, Plaintiff has challenged the second factor “provide for adequate discovery.” On that issue, the court in Davis v. Kozak (2020) 53 Cal.App.5th 897, 910-911 noted:

“A limitation on discovery is an important way in which arbitration can provide a simplified and streamlined procedure for the resolution of disputes. [citation omitted] At the same time, ‘[a]dequate discovery is indispensable for the vindication of statutory claims’ [citation omitted], and ‘[t]he denial of adequate discovery in arbitration proceedings leads to the de facto frustration of’ statutory rights (Armendariz, supra, 24 Cal.4th at p. 104). In this context, “adequate” does not mean ‘unfettered.’ [citation omitted] In striking the appropriate balance between the desired simplicity of limited discovery and an employee's statutory rights, courts assess the amount of default discovery permitted under the arbitration agreement, the standard for obtaining additional discovery, and whether the plaintiffs have demonstrated that the discovery limitations will prevent them from adequately arbitrating their statutory claims. [citation omitted]”

Here, the agreement states: “The arbitration shall be conducted in accordance with the employment rules of the American Arbitration Association (“AAA”), which I understand can be found at www.adr.org or provided to me by Volt at my request” (Exhibit K at 20.)

Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1476 examined similar language, with a similar reference to the AAA’s employment dispute rules as follows, finding the discovery provided adequate under Armendariz:

“Similarly, in this case the AAA's employment dispute rules applicable to Roman's arbitration proceeding expressly authorized the arbitrator to order ‘such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.’ There appears to be no meaningful difference between the scope of discovery approved in Armendariz and that authorized by the AAA employment dispute rules, certainly not the role of the arbitrator in controlling the extent of actual discovery permitted.”

Therefore, the Court does not find this term of the Agreement in favor of substantive unconscionability.

As noted above, unconscionability has a procedural and a substantive component, requiring both to be present, though not in the same degree. (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 177.) “A sliding scale is applied so that ‘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.’ ” (Id. at 178.) Here, there is a total lack of substantive unconscionability coupled with slight procedural unconscionability. The Court, therefore, does not find the arbitration term unconscionable.

Therefore, the Court grants the motion and stays this matter.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 In the Matter of Gravitas Golden LLC

Case No.:   VCU308748

Date:           July 16, 2024

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Petition to Compel Arbitration

Tentative Ruling: To continue the petition to August 27, 2024, 8:30 am, Dept. 2

Facts

Petitioner’s petition seeks to compel arbitration between Petitioner and Respondent based upon a written agreement permitting Respondent to be the guardian for a specific golden retriever for the purpose of breeding the dog and permitting Respondent to retain the dog upon the completion of breeding.

The written agreement, attached the declaration of counsel, contains a term as to “binding arbitration” as follows:

“10. Binding Arbitration: All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the County of Tulare, state of California or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in business and contract law and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.”

The document appears to be fully executed by Petitioner and Respondent via e-signature.

Prior to the filing of this petition, Petitioner demanded the parties participate in binding arbitration due to Respondent’s alleged breach of the agreement as to failure to release the dog for breeding purposes.

The Court notes, however, that no proof of service of the petition or the accompanying documents has been filed. The Court, therefore, continues the motion to August 27, 2024, 8:30 am, Dept. 2 and orders a proof of service of the petition and notice of the continued hearing date to be filed prior thereto.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Jimenez, Arturo Gutierrez vs. Ruiz Food Products, Inc.

Case No.:   VCU304423

Date:           July 16, 2024

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motion to Compel Further Responses (1) Interrogatories and (2) Requests for Production of Documents against Defendant Ruiz Food Products, Inc.

Tentative Ruling: (1) and (2): To deny the motions

Facts Common to (1) and (2)

In this employment discrimination, retaliation, termination and reasonable accommodation case, Plaintiff, on February 28, 2024, served Form Interrogatories – Employment Law, Form Interrogatories – General, and Requests for Production of Documents on Defendants Ruiz Food Products.

After extensions to respond, on May 1, 2024, Defendant provided what appear to be objection only responses “without providing any substantive responses.” (Rostomyan Decl. ¶8.) Plaintiff notes “Defendant’s objections are also not verified.”

Between May 8, 2024 and May 14, 2024, the parties exchanged emails as part of a meet and confer process which appeared to focus mostly on an alleged arbitration agreement and moving to compel arbitration in this matter.

On May 28, 2024, Plaintiff filed these motions to compel.

In opposition, Defendants indicate they have located the arbitration agreement, contend that this objection is therefore valid and challenge the validity of the meet and confer process.

Authority and Analysis

A motion to compel must be accompanied by a meet and confer declaration “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code of Civil Procedure 2016.040, 2031.310(b)(2))

The meet and confer requirement is designed “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order . . . . This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016, quoting Townsend v. Superior Ct. (1998) 61 Cal.App.4th 1431, 1435, internal quotations and citations omitted.) Thus, there must be a serious effort at negotiation and informal resolution. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.)

 “[T]he law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Id.) The particular level of effort required in each case depends on the circumstances including the amount of discovery propounded, the time available to confer before the motion filing deadline, and the extent to which a party was complicit in the lapse of available time. (Obregon v. Superior Ct. (1998) 67 Cal.App.4th 424, 432.) “An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances, the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success.” (Id. at pp. 432–33.)   To that end, trial courts are entrusted with discretion and judgment to determine the necessary effort required to satisfy the requirement of an informal resolution. (Id. at 433.)

Here, the central meet and confer issues appear to be both the filing of the motion after an insufficient process as well ignoring the arbitration agreement issue. While the Court notes that Defendant has not yet filed a motion to compel arbitration and sought an accompanying stay, the Court finds the objections to discovery based on an arbitration agreement valid and necessary to preserve the right to arbitration.

The Court agrees that under Bower v. Inter-Con Security Systems, Inc. (2014) 232 Cal.App.4th 1035, Sobremonte v. Superior Court (1998) 61 19 Cal.App.4th 980 and Guess?, Inc. v. Superior Court (2000) 79 Cal.App.4th 553, participation in discovery in a civil matter may result in a waiver of arbitration.

Here, Defendant had located a partial arbitration agreement, but could not file a motion to compel arbitration without a complete agreement. Defendant expressed this issue via the objections to the discovery and in response to Plaintiff’s meet and confer letter.

To the Court, the particular level of effort here should have involved an extension of time to supplement the responses or provide the complete arbitration agreement and a corresponding extension of the time to file the motion to compel.

The Court notes the motion to compel was filed May 28, 2024 and the arbitration agreement, in full, was found June 26, 2024. A relatively short thirty-day extension may have obviated the Court’s involvement on this issue.

In any event, the Court finds that Defendant, as the responding party has met the burden of justifying the arbitration objection to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

The Court, therefore, will deny the motions and deny the requests for sanctions. 

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Huerta, John vs. Buffalo Market, Inc.

Case No.:   VCU293236

Date:           July 16, 2024

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Enter Judgment after Settlement Pursuant to Section 664.6

Tentative Ruling: To enter judgment in the amount of $18,430.85.

Facts

On July 7, 2023, a fully executed settlement agreement between Plaintiff Huerta and Defendant BMI provided that: “BMI agrees to pay to Mr. Huerta and his counsel the gross sum of $75,000.00 as damages paid for settlement of disputed claims. Payment shall be made as follows: $10,000 paid on July 1, 2023, $5,000 paid on August 1, 2023, and payments of $5,000 per month on the first day of each month thereafter until the settlement sum of $75,000 is paid in full.” (Settlement Agreement ¶2.a.)

Further, the Agreement notes that, in case of default, “If BMI shall fail to pay any payment under this Agreement when due, after not less than five (5) calendar days written notice of such default is given, Plaintiff may, at his option, apply ex parte and enter a judgment against BMI in the amount of the Agreement less any payments made, plus 10% interest per annum, plus attorney’s fees and costs in collection efforts. BMI shall have ten (5) calendar days of said written notice to cure such default.”

On July 24, 2023, Plaintiff filed a request for dismissal on the condition that the Court retain jurisdiction over the matter and on July 31, 2024, the Court dismissed the matter without prejudice and retained jurisdiction under section 664.6.

On June 21, 2024, Plaintiff filed this ex parte motion to enforce the settlement based upon the payment of only $60,000 out of the $75,000 agreed upon amount. Plaintiff indicates notice was provided to Defendant’s counsel of the failure to pay the $5,000 payment due June 1, 2024.

Plaintiff seeks $15,000 in principal, plus $3,020.85 in interest, plus $2,100 in attorneys fees (three hours at a $700 hourly rate) and a $60 filing fee for this motion.

No opposition appears to have been filed as to this motion.

Authority and Analysis

Section 664.6 (a) states: 

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

“The court’s retention of jurisdiction under section 664.6 includes jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.” (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4^th 1050, 1061.) “Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.” (Osumi v. Sutton (2007) 151 Cal.App.4^th 1355, 1360) The mandatory requirements for application of Code of Civil Procedure section 664.6: (1) the request for the trial court to retain jurisdiction has been made during the pendency of the case; (2) by the parties themselves, and (3) in a writing signed by the parties expressly, clearly, and unambiguously requesting the court retain jurisdiction under this statute. (Mesa RHF Partners, LP. v. City of Lost Angeles (2019) 33 Cal.App.5th 913, 917.)

No party challenges the retained jurisdiction of the Court pursuant to the stipulation and order filed in this matter. Further, no party has challenged that the parties entered into a valid, binding settlement agreement.

Here, Plaintiff seeks to enforce the settlement agreement via a judgment based upon the failure to comply fully with the terms thereof. Section 664.6 permits the Court to enter a judgment in strict conformance with the terms of a settlement agreement.  (Code Civ. Proc. § 664.6(a) [“the court, upon motion, may enter judgment pursuant to the terms of the settlement.”]  Further, “if the court determines that the parties entered into an enforceable settlement, it should grant the motion and enter a formal judgment pursuant to the terms of the settlement.”  (Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182.)

The Court, therefore, will enter judgment as to the $75,000 principal, less the $60,000 in payments.

As to the attorneys’ fees, costs and interest, Greentree Financial Group, Inc. v. Execute Sports, Inc. (2008) 163 Cal.App.4th 495, 500 notes damages for failing to pay money are “‘easily determinable’” and are limited to “‘interest at [the] prevailing rate[]’” and (perhaps) “reasonable costs [incurred] in pursuing the payment.” (Id. at 500.)

Here, the settlement agreement provides for interest, attorneys’ fees and costs. The Court, therefore will include interest, fees and costs in the judgment.

The Court accepts the calculation of interest at $3,020.85.

The Court will include the $60 filing fee for this motion.

However, as to the attorneys’ fees sought, the Court will reduce the amount. The Court will permit 1 hour for this motion at the reasonable local rate of $350 per hour.

Therefore, the Court will enter judgment in the principal amount of $15,000 plus $3,020.85 in interest, plus $60 filing fee, plus $350 in reasonable attorneys’ fees, for a total of $18,430.85.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division