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Ruling

MCCARDLE vs A-1 CLUTCH CO., et al.

Aug 02, 2024 |Civil Unlimited (Asbestos) |23CV045569

23CV045569: MCCARDLE vs A-1 CLUTCH CO., et al. 08/02/2024 Hearing on Motion for Summary Adjudication filed by MCCORD CORPORATION (Defendant) in Department 18Tentative Ruling - 07/31/2024 Patrick McKinneyThe Motion for Summary Adjudication filed by MCCORD CORPORATION on 06/13/2024 isGranted.Defendant McCord Corporation’s (“Defendant”) Motion for Summary Adjudication (“MSA”) ofplaintiff Vicky McCardle’s (“Plaintiff” or “Ms. McCardle”) punitive damages claim isGRANTED.ANALYSIS OF MSATo be entitled to an award of punitive damages, a plaintiff must show by clear and convincingevidence that the defendant is guilty of malice, oppression or fraud. (Cal. Civ. Code § 3294(a).)The definition of “malice” includes “despicable conduct which is carried on by the defendantwith a willful and conscious disregard of the rights or safety of others.” (§ 3294(c).) “Despicableconduct” is conduct that is so vile, base, or contemptible that it would be looked down on anddespised by reasonable people. (See CACI 3946.)A finding of malice does not require an actual intent to cause harm. “Conscious disregard for thesafety of another may be sufficient where the defendant is aware of the probable dangerousconsequences of his or her conduct and he or she willfully fails to avoid such consequences.Malice may be proved either expressly through direct evidence or by implication throughindirect evidence from which the jury draws inferences.” (Pfeifer v. John Crane, Inc. (2013) 220Cal.App.4th 1270, 1299.)Further, a defendant’s “prolonged failure” to take adequate measures to protect people whoworked with its products against a known hazard to their health and safety may justify aconclusion that the conduct was malicious, fraudulent, or oppressive. (Bankhead v.ArvinMeritor, Inc.) (2012) 205 Cal.App.4th 68, 86.) However, the Cal. Supreme Court has statedthat by addition of the word “despicable” to Civ. Code § 3294(c), “the statute plainly indicatesthat absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious”disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must befound.” (College Hospital, Inc. v. Sup.Ct. (1994) 8 Cal.4th 704, 725.)A clear and convincing evidentiary standard applies to evidence presented by a plaintiff inopposition to a motion for summary adjudication of punitive damages claims. (Basich v. AllstateIns. Co. (2001) 87 Cal.App.4th 1112, 1118-1119.) However, the clear and convincingevidentiary standard “does not impose on a plaintiff the obligation to ‘prove’ a case for punitivedamages at summary [adjudication].” (Pacific Gas and Electric Co. v. Sup.Ct. (2018) 24Cal.App.5th 1150, 1158-1159.) “Summary ... adjudication ‘on the issue of punitive damages isproper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV045569: MCCARDLE vs A-1 CLUTCH CO., et al. 08/02/2024 Hearing on Motion for Summary Adjudication filed by MCCORD CORPORATION (Defendant) in Department 18convincing proof of malice, fraud or oppression.’” (Ibid.)Further, a defendant moving for summary adjudication must still make an initial prima facieshowing that no disputed issues of material fact exist such that defendant is entitled to summaryadjudication as a matter of law in order to shift the burden of production to plaintiff to presentclear and convincing evidence of malice, oppression or fraud. (Aguilar v. Atl. Richfield Co.(2001) 25 Cal. 4th 826, 850.)Plaintiff alleges that she was exposed to respirable asbestos from working with Defendant’sasbestos-containing automotive gaskets from 1969 to 1971 while taking automotive shop classesin Sacramento and in the 1980s while working for Papa Stemple in Oroville, California.Defendant seeks to meet its initial burden of production on summary adjudication by pointing toPlaintiff’s assertedly “factually devoid” responses to Plaintiff’s sufficiently comprehensivewritten and deposition discovery. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96,106-107.) The Court finds that Defendant’s Special Interrogatories (“SROG”) Nos. 31-34constitute sufficiently comprehensive written discovery regarding Plaintiff’s punitive damagesclaim.Plaintiff’s Response to SROG No. 31, seeking all facts regarding the punitive damages claim,incorporates by reference Plaintiff’s Response to SROG No. 1, seeking identification ofasbestos-containing materials attributable to Defendant to which Plaintiff alleges exposure.Plaintiff’s Response to SROG No. 1 is “factually devoid” as to the punitive damages claimbecause it does not state specific facts regarding what Defendant knew about the hazards from itsproducts at any specific time. The Response contains only conclusory statements of Defendant’salleged punitive damages liability, and states that Defendant never provided asbestos warningsfor its asbestos-containing gaskets until some unspecified date in the 1980s when Defendantceased to sell asbestos-containing gaskets. The Response does not state with specificity whenPlaintiff worked with Defendant’s gaskets in the 1980s or when in the 1980s Defendant ceasedto sell asbestos-containing gaskets.Plaintiff’s Response to SROG No. 32, seeking all documents supporting Plaintiff’s punitivedamages claim, incorporates by reference Plaintiff’s prior Response to SROG No. 5, seekingidentification of documents supporting Plaintiff’s threshold exposure claim. Plaintiff’s Responseto SROG No. 5 identifies some specific deposition transcripts. However, neither the Response toSROG No. 1 nor No. 5 state what relevant information these transcripts contain.Plaintiff’s Response to SROG No. 33, seeking identification of all witnesses, incorporates byreference Plaintiff’s prior Response to SROG No. 3. SROG No. 3 identifies Plaintiff herself andChristina Neckels. Defendant presents evidence that at deposition Plaintiff had no personalknowledge to support a punitive damages claim. (Defendant’s Undisputed Material Facts(“DUMF”) Nos. 11-17.) Defendant does not present similar information from the deposition ofidentified witness Christina Neckels. However, it is unclear from Plaintiff’s written discovery SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV045569: MCCARDLE vs A-1 CLUTCH CO., et al. 08/02/2024 Hearing on Motion for Summary Adjudication filed by MCCORD CORPORATION (Defendant) in Department 18responses whether Ms. Neckels has any personal knowledge to support a punitive damages claimor if she is solely a product identification witness.The Court finds that Defendant has met its initial burden of production on summary adjudicationand that the burden to produce evidence sufficient to create triable issues of material fact under aclear and convincing evidentiary standard shifts to Plaintiff.In Opposition, Plaintiff presents evidence that she testified at deposition that she had a yearlongautomobile mechanic’s class in high school from approximately 1970 to 1971 in which shescraped off old automobile gaskets made by Defendant. She also testified that she workedapproximately five years for Papa Stemple, where she testified she replaced a lot of head gaskets,including those branded as Defendant’s. Plaintiff initially testified that she worked for PapaStemple from approximately 1980 to 1985, but later changed her testimony to 1983 to 1988 asher best estimate, perhaps after reviewing her Social Security records. (See Plaintiff’s Index ofExhibits (“PIOE”) Exh. 1.) She testified that she did not recall any asbestos warnings on any ofthe packages of gaskets she worked with. (Ibid.)Plaintiff also presents the 2015 deposition testimony of Defendant’s person most qualified(“PMQ”), Terrence Connally. He testified that Defendant incorporated asbestos into itsautomotive gaskets prior to 1970 when he began his employment with Defendant. He testifiedthat he was not aware of Defendant ever conducting any testing regarding release of asbestos inusing, installing or removing Defendant’s asbestos-containing gaskets and that Defendant neveremployed an industrial hygienist. Defendant’s PMQ also testified that Defendant became awareof the hazards of asbestos in the late 1970s when the EPA started coming out with issuesassociated with asbestos.Defendant’s PMQ testified that Defendant never provided warnings or advice to its ownemployees about the potential hazards of asbestos, and never provided any asbestos warnings onits asbestos-containing gaskets or gasket packaging. He further testified that Defendant’spresident recommended to someone on 7/22/1986 that Defendant would still need at least threeyears to remove asbestos from its gaskets for engines operating at temperatures above 400degrees. He testified that “from time to time” prior to 1990 Defendant sold asbestos-containinggaskets to Ford Motor Company and may have sold asbestos-containing head gaskets to Ford aslate as 1992. (PIOE Exh. 2.)The Court finds that Plaintiff’s Opposition evidence is insufficient to create triable issues ofmaterial fact regarding Plaintiff’s punitive damages under a clear and convincing evidentiarystandard. It can be inferred from Plaintiff’s evidence that Defendant’s automotive gasketsincorporated asbestos through approximately 1989. (Miller v. Department of Corrections (2005)36 Cal.4th 446, 470.) However, Plaintiff presents no evidence regarding exactly what Defendantknew at any specific time regarding whether reasonably foreseeable uses of its asbestos-containing gaskets, i.e, scraping off old gaskets from automobile engines, would expose personssimilarly situated to Plaintiff to respirable asbestos. Plaintiff’s evidence does not create triable SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV045569: MCCARDLE vs A-1 CLUTCH CO., et al. 08/02/2024 Hearing on Motion for Summary Adjudication filed by MCCORD CORPORATION (Defendant) in Department 18issues of Defendant’s malice, oppression or fraud, as opposed to gross negligence.Wherefore, the Court GRANTS Defendant’s MSA of Plaintiff’s punitive damages claim.CONTESTING TENTATIVE ORDERSNotify the Court and all other parties no later than 4:00 pm the day before the scheduled hearingand identify the issues you wish to argue through the following steps:1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov2. Case Search3. Enter the Case Number and select Search4. Select the Case Name5. Select the Tentative Rulings Tab6. Select Click to Contest this Ruling7. Enter your Name and Reason for Contesting8. Select Proceed.

Ruling

AJIBOLA vs BRINKS INCORPORATED, et al.

Aug 02, 2024 |Civil Unlimited (Other Employment Complaint Case) |23CV049390

23CV049390: AJIBOLA vs BRINKS INCORPORATED, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by BRINKS INCORPORATED (Defendant) + in Department 25Tentative Ruling - 08/01/2024 Jenna WhitmanThe Motion to Compel Arbitration filed by BRINKS INCORPORATED, CODIE JONES on03/26/2024 is Denied.BACKGROUND. Plaintiff Olusegun Ajibola has worked in various positions for defendantBrink’s Incorporated since May 2004. In this action, he asserts various claims arising out ofemployment since 2021, when defendant asserts as part of a promotion, plaintiff signed variousemployment documents, including the 2021 arbitration agreement. Defendant asserts thatplaintiff signed a prior arbitration agreement in 2016, which is superseded by the 2021agreement, and seeks to compel arbitration of plaintiff’s claims under the 2021 agreement. Asdiscussed below, the first and apparently only issue the court need address is whether defendanthas established plaintiff’s agreement to arbitrate under the 2021 agreement. However, in theinterest of completeness, the court has also addressed the preemption and unconscionabilityquestions.APPLICABLE LAW. A petition to compel arbitration “shall be heard in a summary way in themanner and upon the notice provided by law for the making and hearing of motions.” (Code Civ.Proc. § 1290.2.) A court shall order arbitration “if it determines that an agreement to arbitrate thecontroversy exists,” unless the opposing party shows waiver or grounds for rescission, neither ofwhich is asserted here. (Code Civ. Proc., § 1281.2.) In determining the existence of an arbitrationagreement, a “court sits as a trier of fact, weighing all the affidavits, declarations, and otherdocumentary evidence, as well as oral testimony received at the court’s discretion, to reach afinal determination.” (Gamboa v. Ne. Cmty. Clinic (2021) 72 Cal.App.5th 158, 164.)“First, the moving party bears the burden of producing prima facie evidence of a writtenagreement to arbitrate the controversy.” (Gamboa, supra, 72 Cal.App.5th at p. 165.) This may besatisfied either by attaching a copy of the proffered agreement or quoting its terms, verbatim.(Id.) “If the moving party meets its initial prima facie burden and the opposing party disputes theagreement, then in the second step, the opposing party bears the burden of producing evidence tochallenge the authenticity of the agreement.” (Ibid.) “If the opposing party meets its burden ofproducing evidence, then in the third step, the moving party must establish with admissibleevidence a valid arbitration agreement between the parties. The burden of proving the agreementby a preponderance of the evidence remains with the moving party.” (Id., at pp. 165–66.) A“party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration.”(Id., at p. 166.) Arbitration agreements are “as enforceable as other contracts, but not more so.”(Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 418.)ANALYSIS. Here, defendant supplies a copy of the 2021 arbitration agreement, satisfying thefirst step. Plaintiff responds by declaring under oath that he does “not recall signing anydocuments during the promotion process” and, now having reviewed defendant’s copy of the SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV049390: AJIBOLA vs BRINKS INCORPORATED, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by BRINKS INCORPORATED (Defendant) + in Department 252021 arbitration agreement purportedly bearing his e-signature, does “not recall signing” the2021 arbitration or confidentiality agreements, either. (Ajibola Decl. ¶ 13.) Although defendantscontend this is insufficient to shift the burden, Gamboa, in describing the opposing party’sburden in the second step, observes that it can be met “in several ways. For example, theopposing party may testify under oath or declare under penalty of perjury that the party neversaw or does not remember seeing the agreement, or that the party never signed or does notremember signing the agreement.” (Gamboa, supra, 72 Cal.App.5th at 156, emphasis added. Cf.Iyere v. Wise Auto Grp. (2023) 87 Cal.App.5th 747, 757 [holding employee who did not recallhand-signing agreement, but also did not deny signing a stack of documents which employerasserted included the agreement, did not create factual dispute regarding authenticity of hissignature; and contrasting cases involving handwritten signatures with cases involving electronicsignature, where an “individual's inability to recall signing electronically may reasonably beregarded as evidence that the person did not do so”].)Thus, the burden shifts back to defendant to establish the existence of the agreement “withadmissible evidence” by a preponderance. (Gamboa, supra, at p. 156.) On reply, defendantargues that plaintiff does not deny signing the agreement, failing to address the actual evidencesupplied by plaintiff creating a dispute of fact as to whether he signed the agreement. Nor doesdefendant attempt to provide any of the type of evidence required to authenticate an electronicsignature (i.e., set forth facts establishing that the electronic signature was the “act of” plaintiff).(Espejo v. S. California Permanente Med. Grp. (2016) 246 Cal.App.4th 1047, 1061, citing Civ.Code, § 1633.9, and Ruiz v. Moss Bros. Auto Grp. (2014) 232 Cal.App.4th 836, 838.) Defendanthas therefore failed to establish by a preponderance of the evidence that plaintiff electronicallysigned the 2021 arbitration agreement. Because defendant waives its reliance upon the prior,2016 agreement, and does not seek to compel arbitration under the terms of that agreement, themotion to compel arbitration is DENIED.In addition, the “Entire Agreement and Severability” clause, which provides that the 2021agreement supersedes any other understandings on the subject, “other than any prior arbitrationagreement which shall remain in full force and effect,” precludes enforcement of the agreement.This provision either establishes that the 2016 agreement remains in effect (which defendant haswaived, and which does not delegate the issue of arbitrability to the arbitrator) or gives rise toambiguity (which must be construed against defendant, such that the 20q6 agreement must beconstrued to remain in “full force and effect”) or results in two arbitration agreements withconflicting fundamental terms (most notably on the gateway issue, which is fundamental) inwhich case that the court must conclude that any agreement is void for lack of a meeting of theminds. (See, e.g., Maxine Furs of Hoover, Inc. v. Groundhog Enterprises, Inc. (N.D. Cal. Sept.18, 2023) No. 23-CV-00641-JST, 2023 WL 6536192, at *2.)Even if defendant had met its burden, and the 2021 arbitration agreement governs plaintiff’sclaims, the 2021 agreement is, on this record, unconscionable and therefore invalid on that basis,as well. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV049390: AJIBOLA vs BRINKS INCORPORATED, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by BRINKS INCORPORATED (Defendant) + in Department 25A “party opposing arbitration bears the burden of proving any defense, such asunconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle Mkt. Dev. (US), LLC (2012) 55Cal.4th 223, 236.) “Both procedural unconscionability and substantive unconscionability must beshown, but they need not be present in the same degree and are evaluated on a sliding scale.” (Id.at p. 247 [citations and quotation marks omitted].)As to procedural unconscionability, the agreement was not likely adhesive given that there wasan opt out provision, making the entire provision “negotiable.” However, there is some evidenceto suggest surprise, however slight. Defendant does not supply any admissible evidence of thecirc*mstances under which the agreement was purportedly presented to plaintiff, including how,when, what plaintiff was told about the employment package, whether the arbitration agreementwas one of many documents, whether the arbitration agreement or the opt out provision wascalled to his attention, how much time he had to consider it, etc. Plaintiff’s lack of anyrecollection of signing the arbitration agreement suggests both that the arbitration provision wasnot called to his attention, and that defendant has superior knowledge regarding thecirc*mstances under which it was presented and yet has failed to provide relevant evidence. Inaddition, the choice of law provision is far from straightforward, and there is no evidence thatdefendant explained this provision, which is buried in a footnote, to plaintiff. (Pinela v. NeimanMarcus Grp., Inc. (2015) 238 Cal.App.4th 227, 244; Haydon v. Elegance at Dublin (2023) 97Cal.App.5th 1280, 1288.) The court must find that there is at least a moderate level of proceduralunconscionability.The arbitration agreement and confidentiality agreement were, according to defendant, signed aspart of the same package, concerned the same transaction (plaintiff’s promotion), and address thesame subject (dispute resolution); thus, for purposes of evaluating substantive unconscionability,if any, of the parties’ agreement, they must be read together. (Alberto v. Cambrian Homecare(2023) 91 Cal.App.5th 482, 490-491.)Read together, the agreements are substantively unconscionable for several reasons. First, theconfidential agreement suffers from a lack of mutuality. While the arbitration agreement itself isnominally mutual, the confidentiality agreement carves out an exception for injunctive relief.Under the confidentiality agreement, any breach by plaintiff “will constitute immediate andirreparable damage” warranting injunctive or other equitable relief. The agreement furtherrelieves Brinks of any bond obligation, “unless local law provides otherwise.” “Courts repeatedlyhave found an employer-imposed arbitration agreement to be substantively unconscionable whenit requires the employee to arbitrate the claims he or she is mostly likely to bring, but allows theemployer to go to court to pursue the claims it is most likely to bring.” (Carbajal v. CWPSC, Inc.(2016) 245 Cal.App.4th 227, 248; see also Carmona v. Lincoln Millennium Car Wash, Inc.(2014) 226 Cal.App.4th 74, 87 [similar]; Lange v. Monster Energy Co. (2020) 46 Cal.App.5th436, 451 [recognizing substantive unconscionability where defendant articulated no legitimatecommercial need for provisions waiving injunction bond and creating assumption of irreparableinjury].) SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV049390: AJIBOLA vs BRINKS INCORPORATED, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by BRINKS INCORPORATED (Defendant) + in Department 25The Texas choice-of-law and forum provisions are also unconscionable. (See Pinela, supra, 238Cal.App.4th at p. 251; Lab. Code, § 925, Defendant agrees that California law must apply toplaintiff’s claims, but an employer’s “after-the-fact expression of willingness to amend thearbitration agreement to conform to law is ineffective.” (Martinez v. Master Protection Corp.(2004) 118 Cal.App.4th 107, 116.) Substantive unconscionability is assessed at the time theagreement was made. (See Am. Software v. Ali (1996) 46 Cal.App.4th 1386, 1391.)An agreement containing an advance waiver of the right to a jury trial for any non-arbitrabledispute is “not allowed by law.” (Dougherty v. Roseville Heritage Partners (2000) 47Cal.App.5th 93, 107.) The agreement is “further one-sided” because it includes a PAGA waiver,which “can fairly be read to limit only the employee’s rights.” (Hasty v. Am. Auto. Assn. (2023)98 Cal.App.5th 1041, 1062, review denied (May 1, 2024).) Without reaching all of thearguments put forth by plaintiff, the court is convinced that the agreement is permeated bysubstantively unconscionable terms.Finally, plaintiff has not established that the FAA transportation exemption applies. He does notprovide evidence from which the court can determine whether plaintiff’s employment agreementconstitutes a “contract[] of employment of... any other class of workers engaged in foreign orinterstate commerce.” (9 U.S.C. § 1.) Although he briefly describes his duties, there is little or noevidence disclosing the precise nature of Brink’s business activities from which the court coulddetermine whether and to what extent it engages in delivering goods in the flow of interstatecommerce, and whether plaintiff facilitated delivery (including on a “last leg” basis) of suchgoods. (Southwest Airlines Co. v. Saxon (2022) 596 U.S. 450; Carmona Mendoza v. Domino'sPizza LLC (9th Cir. 2023) 73 F.4th 1135, 1137; Bissonnette v. LePage Bakeries Park St., LLC(2024) 601 U.S. 246, 256; Betancourt v. Transportation Brokerage Specialists, Inc. (2021) 62Cal.App.5th 552, 554; Waithaka v. Amazon.com, Inc. (1st Cir. 2020) 966 F.3d 10, 23. See alsoOrtiz v. Randstad Inhouse Servs., LLC (9th Cir. 2024) 95 F.4th 1152, 1160-1162 [worker indistribution warehouse who himself did not make deliveries nonetheless exempt “activelyengaged” and “intimately involved with” interstate transportation of goods].) Thus, the courtcannot find the subject arbitration agreements are exempted from arbitration by the FAA.ORDER. For the foregoing reasons, the motion is DENIED.PLEASE NOTE: If this tentative ruling is contested by 4:30 p.m. on August 1, 2024, the hearingwill be hedl at 10:00 a.m. on August 2, 2024. If this presents a conflict, counsel shall meet andconfer regarding mutually acceptable hearing dates and then JOINTLY emailDept25@alameda.courts.ca.gov with at least three mutually agreeable dates/times, August 12 orlater, to hear argument.This matter has been contested. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 23CV049390: AJIBOLA vs BRINKS INCORPORATED, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by BRINKS INCORPORATED (Defendant) + in Department 25Department 25 is inviting you to a scheduled meeting. Please sign onto Zoomgov.com usingcredentials below.Meeting ID: 161 8066 1142Passcode: 5805---One tap mobile+16692545252,,16180661142# US (San Jose)+14154494000,,16180661142# US (US Spanish Line)---Dial by your location• +1 669 254 5252 US (San Jose)• +1 415 449 4000 US (US Spanish Line)• +1 669 216 1590 US (San Jose)• +1 551 285 1373 US (New Jersey)• +1 646 828 7666 US (New York)• +1 646 964 1167 US (US Spanish Line)• 833 568 8864 US Toll-freeFind your local number: https://alameda-courts-ca-gov.zoomgov.com/u/acJeuPd9Xq

Ruling

PRODGER, et al. vs PACIFIC HELICOPTERS, LLC, et al.

Aug 02, 2024 |Civil Unlimited (Other Personal Injury/Propert...) |22CV017064

22CV017064: PRODGER, et al. vs PACIFIC HELICOPTERS, LLC, et al. 08/02/2024 Hearing on Motion to Seal Motion to File Documents Under Seal; filed by Ivan Lukitsa (Defendant) in Department 1BTentative Ruling - 07/30/2024 Sandra BeanThe Motion to Seal Defendant Ivan Lukitsa's Motion to File Documents Under Seal; Points andAuthorities; Declaration of Rebekka Martorano filed by Ivan Lukitsa on 05/31/2024 is Granted.The Motion for Determination of Good Faith Settlement (CCP 877.6) filed by Ivan Lukitsa on05/30/2024 is Granted.Defendant Ivan Lukitsa’s Unopposed Motion to File Documents Under Seal, referring to Mr.Lukitsa’s Motion for Determination of Good Faith Settlement, is supported by good cause. TheCourt hereby GRANTS Mr. Lukitsa’s motion to file the unredacted version of his Motion forDetermination of Good Faith Settlement under seal.Further, Ivan Lukitsa’s Unopposed Application for Determination of Good Faith Settlementpursuant to Code of Civil Procedure section 877.6 is hereby GRANTED.The settlement between Plaintiffs and Mr. Lukitsa is determined to have been made and enteredinto in good faith between the parties to the agreement.------If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, theTentative Ruling will become the order of the court. How Do I Contest a Tentative Ruling? Findyour case in eCourt at https://eportal.alameda.courts.ca.gov/using “Case Search” or “Calendar Search” (after you log in)Select the Tentative Rulings TabSelect "Click to Contest this Ruling"Enter your name and briefly identify the issues you wish to argue.Select "Proceed"You must also notify the department via email (Dept1b@alameda.courts.ca.gov) and opposingparties by no later than 4:00 PM, one court day before the scheduled hearing.Please provide this information to any opposing parties.PLEASE TAKE NOTICE THAT THE HEARING/CONFERENCE WILL BE IN-PERSON WITH THE OPTION TO APPEAR REMOTELY.COUNSEL AND PARTIES MAY APPEAR EITHER IN-PERSON IN DEPARTMENT 1BAT RENE C. DAVIDSON COURTHOUSE OR BY REMOTELY THROUGH THEZOOM PLATFORM.COUNSEL AND PARTIES WHO CHOOSE TO APPEAR REMOTELY MUST HAVEAN APPROPRIATE INTERNET CONNECTION, A WORKING MICROPHONE, ANDFUNCTIONING CAMERA, OTHERWISE THE PARTY OR ATTORNEY MUSTAPPEAR IN PERSON. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 22CV017064: PRODGER, et al. vs PACIFIC HELICOPTERS, LLC, et al. 08/02/2024 Hearing on Motion to Seal Motion to File Documents Under Seal; filed by Ivan Lukitsa (Defendant) in Department 1BDepartment 1BMeeting ID 16057295607Personal Meeting URL https://zoomgov.com/j/16057295607One tap mobile+16692545252,,16057295607# US (San Jose)+14154494000,,16057295607# US (US Spanish Line)Join by SIP 16057295607@sip.zoomgov.comJoin by H.323161.199.138.10 (US West)161.199.136.10 (US East)

Ruling

ADAMS vs PACIFIC GAS AND ELECTRIC CORPORATION, et al.

Aug 02, 2024 |Civil Unlimited (Other Employment Complaint Case) |24CV064049

24CV064049: ADAMS vs PACIFIC GAS AND ELECTRIC CORPORATION, et al. 08/02/2024 Hearing on Motion - Other Informal Discovery Conference; filed by Mark Adams (Plaintiff) in Department 25Tentative Ruling - 08/01/2024 Jenna WhitmanThe Motion re: NOTICE OF MOTION AND MOTION FOR INFORMAL DISCOVERYCONFERENCE filed by Mark Adams on 05/20/2024 is Denied.The undersigned does not conduct IDCs. To the extent defendant(s) take the position that theyneed not respond to discovery until the pleadings are settled, that is incorrect. However, plaintiffhas not filed a motion establishing, through evidence, that defendants failed to produce witnessesfor duly noticed depositions or that third parties have failed to comply with properly servedsubpoenas.This ruling has been contested. Hearing has been continued to 08/02/24 at 3:30 PM.If you plan to appear in person, the hearing will be heard in Dept. 25 at 1221 Oak Street and notin Dept. 109 as previously indicated.The zoom information for this hearing is below:Meeting ID: 161 8066 1142Passcode: 5805---One tap mobile+16692545252,,16180661142# US (San Jose)+14154494000,,16180661142# US (US Spanish Line)---Dial by your location• +1 669 254 5252 US (San Jose)• +1 415 449 4000 US (US Spanish Line)• +1 669 216 1590 US (San Jose)• +1 551 285 1373 US (New Jersey)• +1 646 828 7666 US (New York)• +1 646 964 1167 US (US Spanish Line)• 833 568 8864 US Toll-freeFind your local number: https://alameda-courts-ca-gov.zoomgov.com/u/acJeuPd9Xq

Ruling

SVC CORPORATION vs ALI

Aug 05, 2024 |Civil Unlimited (Unlawful Detainer/Residential...) |24CV062674

24CV062674: SVC CORPORATION vs ALI 08/05/2024 Hearing on Motion to Quash Service of Summons; filed by Ahsan Ali (Defendant) in Department 511Tentative Ruling - 08/01/2024 Sarah Sandford-SmithThe Motion to Quash Service of Summons filed by Ahsan Ali on 07/29/2024 is Granted.The motion of Specially Appearing Defendant Ahsan Ali (dba King Construction) to quashservice of summons, pursuant to CCP § 418.10(a)(1), is GRANTED.Plaintiff successfully requested entry of default and default judgment on March 11, 2024, basedupon its filing of proof of personal service of the summons. Although Defendant is the movingparty, Plaintiff SVC Corporation bears the burden of proving valid service. See Summers v.McClanahan (2006) 140 Cal.App.4th 403, 413; and Dill v. Berquist Const. Co., Inc. (1994) 24Cal.App.4th 1426, 1439-1440. On July 22, 2024, the Court conducted an evidentiary hearing onDefendant’s motion to set aside default. The Court found that Plaintiff failed to prove thatDefendant Ali was personally served on February 19, 2024.The Court will prepare the order. The parties are ordered to obtain a copy from the eCourt portal.Counsel for Specially Appearing Defendant Ali shall file and serve the notice of entry of orderno later than August 12, 2024.

Ruling

Sukumar VS Zand

Aug 02, 2024 |Civil Unlimited (Other Non-Personal Injury/Pro...) |RG20064932

RG20064932: Sukumar VS Zand 08/02/2024 Hearing on Motion for Summary Adjudication filed by Afshin Zand (Defendant) in Department 520Tentative Ruling - 07/30/2024 Julia SpainThe second motion of Defendant Afshin Zand for summary adjudication of issues againstPlaintiffs Ponani Sukumar and Holistic Vegetarian House Corporation, pursuant to CCP §437c(f)(1) and (p)(2), is DENIED.Defendant’s second motion for summary adjudication is directed at the First AmendedComplaint filed by Plaintiffs on January 29, 2021. The First Amended Complaint asserts thefollowing claims against Defendant: (1) Breach of Contract; (2) Intentional Misrepresentation;(3) Negligent Misrepresentation; (4) Unfair Business Practices (Bus. & Prof. Code § 17200 etseq.); (5) Unjust Enrichment; and (6) Declaratory Relief.Defendant’s motion is denied because it is based on the same issues previously raised in hismotions for summary adjudication filed on April 18, 2022, September 2, 2022, and March 6,2023, that the Court denied on May 26, 2023. See CCP § 437c(f)(2) (defendant must satisfy thecourt that newly discovered facts or circ*mstances exist or that the applicable law has changed);and Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 (“Unless the requirements of section437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order mustformally begin with the court on its own motion.”) (italics in original). In Le Francois, theCalifornia Supreme Court held that the trial judge in Santa Clara County erred when he grantedthe second motion for summary judgment filed by defendant in an employment case afteranother judge denied the first motion).The Court will prepare the order and mail copies to the parties. Plaintiff shall file and serve thenotice of entry of order no later than August 12, 2024.NOTICE: This tentative ruling will automatically become the court’s final order on AUGUST 2,2024 unless, by no later than 4pm on AUGUST 1, 2024, a party to the action notifies BOTH: 1)the court by emailing Dept520@alameda.courts.ca.gov; AND 2) all opposing counsel or self-represented parties (by telephone or email) that the party is contesting this tentative ruling.The subject line (RE: ) of the email must state: “Request for CONTESTED HEARING: [the casename], [number].” When a party emails to contest a tentative ruling, the party must identifythe specific holding(s) within the ruling they wish to contest via oral argument.The court does not provide court reporters for hearings in civil departments. A party who wants arecord of the proceedings must engage a private court reporter. (Local Rule 3.95.) Any privatelyretained court reporter must also participate via video conference. His/Her email must beprovided to the court at the time the Notice of Contest is emailed. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA RG20064932: Sukumar VS Zand 08/02/2024 Hearing on Motion for Summary Adjudication filed by Afshin Zand (Defendant) in Department 520ALL CONTESTED LAW AND MOTION HEARINGS ARE CONDUCTED VIA REMOTEVIDEO unless an in person appearance is required by the court. Invitations to participate in thevideo proceeding will be sent by the court upon receipt of timely notice of contest. A party maygive email notice he/she will appear in court in person for the hearing, however all othercounsel/parties and the JUDGE MAY APPEAR REMOTELY.

Ruling

CURRY vs AAA-CSAA

Aug 02, 2024 |Civil Unlimited (Other Personal Injury/Propert...) |23CV032669

23CV032669: CURRY vs AAA-CSAA 08/02/2024 Hearing on Motion to Continue Trial filed by Elizabeth Curry (Plaintiff) in Department 25Tentative Ruling - 08/01/2024 Jenna WhitmanThe Motion to Continue Trial Date filed by Elizabeth Curry on 07/18/2024 is Denied.This case was dismissed on February 6, 2024. Plaintiff now moves to continue trial. There is nopending litigation before the court, much less a trial date. The motion is denied.This ruling has been contested. Hearing has been continued to 08/02/24 at 3:30 PM.If you plan to appear in person, the hearing will be heard in Department 25.The zoom information for this hearing is below:Meeting ID: 161 8066 1142Passcode: 5805---One tap mobile+16692545252,,16180661142# US (San Jose)+14154494000,,16180661142# US (US Spanish Line)---Dial by your location• +1 669 254 5252 US (San Jose)• +1 415 449 4000 US (US Spanish Line)• +1 669 216 1590 US (San Jose)• +1 551 285 1373 US (New Jersey)• +1 646 828 7666 US (New York)• +1 646 964 1167 US (US Spanish Line)• 833 568 8864 US Toll-freeFind your local number: https://alameda-courts-ca-gov.zoomgov.com/u/acJeuPd9Xq

Ruling

NEWSOME vs STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Aug 02, 2024 |Civil Unlimited (Contract/Warranty Breach - Se...) |23CV026472

23CV026472: NEWSOME vs STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY 08/02/2024 Hearing on Motion to Deem Request for Admissions Admitted filed by State Farm Mutual Automobile Insurance Company (Defendant) in Department 520Tentative Ruling - 07/26/2024 Julia SpainThe Motion to Deem RFA's Admitted filed by State Farm Mutual Automobile InsuranceCompany on 06/05/2024 is Granted.Defendant State Farm Mutual Automobile Insurance Co.’s (“Defendant”) Motion to DeemRequests for Admissions (Set One) Admitted is GRANTED. (Code Civ. Proc., § 2033.280, subd.(b).)Defendant’s evidence shows that Defendant served Plaintiff Majeeda S. Newsome (“Plaintiff”)with Requests for Admissions (“RFAs”) on March 20, 2024 (Adkins Decl. ¶ 2; Exh. A), thatPlaintiff’s responses were due on April 25, 2024 (Id. at ¶ 3), that on May 20, 2024, Defendantagreed to an extension, allowing Plaintiff to respond by May 30, 2024 (Id. at ¶ 4), and that as ofJune 5, 2024, the date that Defendant filed the present motion, no responses to RFA (Set One)were received from Plaintiff. (Id. at ¶ 5.)Mandatory sanctions in the reduced amount of $300.00 are issued against Plaintiff, payable toDefendant forthwith. (Code Civ. Proc., § 2033.280, subd. (c).)NOTICE: This tentative ruling will automatically become the court’s final order on FridayAugust 2, 2024 unless, by no later than 4:00 p.m. on Thursday August 1, 2024, a party to theaction notifies BOTH: 1) the court by emailing Dept520@alameda.courts.ca.gov; AND 2) allopposing counsel or self- represented parties (by telephone or email) that the party is contestingthis tentative ruling.The subject line (RE:) of the email must state: “Request for CONTESTED HEARING: [the casename], [number].” When a party emails to contest a tentative ruling, the party must identify thespecific holding(s) within the ruling they wish to contest via oral argument.The court does not provide court reporters for hearings in civil departments. A party who wants arecord of the proceedings must engage a private court reporter. (Local Rule 3.95.) Any privatelyretained court reporter must also participate via video conference. His/Her email must beprovided to the court at the time the Notice of Contest is emailed.ALL CONTESTED LAW AND MOTION HEARINGS ARE CONDUCTED VIA REMOTEVIDEO unless an in person appearance is required by the court. Invitations to participate in thevideo proceeding will be sent by the court upon receipt of timely notice of contest. A party maygive email notice he/she will appear in court in person for the hearing, however all othercounsel/parties and the JUDGE MAY APPEAR REMOTELY. SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA23CV026472: NEWSOME vs STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY08/02/2024 Hearing on Motion to Deem Request for Admissions Admitted filed by State Farm Mutual Automobile Insurance Company (Defendant) in Department 520

Ruling

DE GUZMAN vs AREVALO RESENDIZ, et al.

Aug 02, 2024 |Civil Unlimited (Motor Vehicle - Personal Inju...) |24CV069253

24CV069253: DE GUZMAN vs AREVALO RESENDIZ, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by Lyft, Inc. (Defendant) in Department 520Tentative Ruling - 07/26/2024 Julia SpainThe Motion to Compel Arbitration filed by Lyft, Inc. on 06/28/2024 is Granted.Defendant Lyft, Inc.’s (“Defendant”) motion to compel arbitration and stay proceedings isGRANTED.Defendant has established that a valid arbitration agreement exists, that Plaintiff Jesus deGuzman (“Plaintiff”) actively agreed to its terms on more than one occasion (Sniegowski Decl.¶¶ 3-16; Exhs. 2-9; B.D. v. Blizzard Entertainment, Inc. (2022) 76 Cal.App.5th 931, 942-946)and that the arbitration agreement is not unconscionable. (Code Civ. Proc., § 1281.2; Armendarizv. Foundation Health Psychcare Services, Inc.(2000) 24 Cal.4th 83, 102-103; 122; Murrey v.Superior Court (2023) 87 Cal.App.5th 1223, 1238.)BACKGROUNDThis motion to compel arbitration arises out of a vehicular accident that took place on July 24,2022 (“the Incident”) while Plaintiff was riding as a passenger in a vehicle owned by DefendantJonathan Emannuel Arevalo Resendiz (“Resendiz”) pursuant to their use of Defendant’s device-based rideshare platform. (Complaint Attachment 1; Sniegowski Decl. ¶¶ 3-16; Exhs. 2-9.)In order to access Defendant’s rideshare platform, users must first create an account.(Sniegowski Decl. ¶ 8.) Users cannot request or purchase rideshare services without firstaccepting Defendant’s Terms of Service (“TOS”), which contain an arbitration agreement thatusers are informed of in capital letters at the outset of the TOS. (Sniegowski Decl. ¶¶ 8-9; Exh.3.)Here, Defendant’s business records reflect that Plaintiff created an account on Defendant’srideshare platform using the telephone number (415) 531-9333 and the email addressjjdgr8@gmail.com. (Sniegowski Decl. ¶ 11.) It further reflects that Plaintiff affirmativelyaccepted Defendant’s terms of service on 5 separate occasions (Id. at ¶12; Exhs. 2-9) and thatsince creating his account, that Plaintiff has requested rideshare services on 574 differentoccasions by clicking on a large “I Agree” button. (Id. at ¶¶ 13; 15.) Defendant’s evidencefurther indicates that Plaintiff would not have been able to access Defendant’s rideshareapplication without first accepting the Terms of Service, which Plaintiff did. (Id. ¶ 16.)LAWA. Motion to Compel Arbitration – Legal Standard (Code Civ. Proc., § 1281.2)Under Code of Civil Procedure section 1281.2, a trial court must grant a motion or petition tocompel arbitration “if it determines that an agreement to arbitrate the controversy exists.” SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV069253: DE GUZMAN vs AREVALO RESENDIZ, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by Lyft, Inc. (Defendant) in Department 520(Gamboa v. Northeast Community Clinic (2023) 72 Cal.App.5th 158, 164.) Because theexistence of the agreement is a statutory prerequisite to compelling arbitration, the party seekingarbitration bears the initial burden of proving its existence by a preponderance of the evidence.(Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 (“Rosenthal”).)The moving party can meet this initial burden by attaching a copy of the arbitration agreementpurporting to bear the opposing party's signature. (Gamboa, supra, 72 Cal.App.5th at p.165;Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) Once the movingparty meets its initial burden, the opposing party bears the burden of producing evidence tochallenge the authenticity of the agreement. (Condee, supra, 88 Cal.App.4th at p. 219.)General principles of contract law determine whether the parties have entered a bindingagreement to arbitrate, which include the requirement of mutual assent, determined under anobjective standard applied to the outward manifestations or expressions of the parties, thereasonable meaning of their words and acts, and not their unexpressed intentions orunderstandings. (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 460.)Relevant here, the various methods of online contract formation provide varying degrees ofnotice to users, with "browsewrap” agreements providing the least, “scrollwrap” and “clickwrap”providing the most. (B.D., supra, 76 Cal.App.5th at pp. 945-946.)A “browsewrap” agreement is one in which an internet user accepts a website's terms of usemerely by browsing the site. (Sellers, supra, 73 Cal.App.5th at p. 463.)A “clickwrap” agreement is one in which an internet user actively accepts a website's terms ofuse by clicking an “I agree” or “I accept” button, with a link to the agreement readily available.(Sellers, supra, 73 Cal.App.5th at p. 463.)California and federal courts have reached consistent conclusions when evaluating theenforceability of agreements at either end of the spectrum, generally finding clickwrapagreements to be enforceable and browsewrap agreements to be unenforceable. (B.D., supra, 76Cal.App.5th at p. 946.)B. UnconscionabilityBecause agreements to arbitrate are contracts, they may be invalidated for the same reasons asother contracts, which include unconscionability. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111,125.) The unconscionability doctrine has both procedural and substantive elements, “the formerfocusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh orone-sided results.” (Sonic-Calabasas A, Inc. v. Moreno, supra, 57 Cal.4th at 1133.) The partyresisting arbitration bears the burden of proving unconscionability. (Pinnacle Museum TowerAssn v. Pinnacle Market Dev. (US), LLC (2012) 55 Cal.4th 223, 236 (“Pinnacle”).)Both procedural and substantive unconscionability must be shown for this defense to beestablished, but not necessarily in the same degree. (OTO, supra, 8 Cal.5th at p. 125.) The moresubstantively one-sided the contract term, the less evidence of procedural unconscionability is SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV069253: DE GUZMAN vs AREVALO RESENDIZ, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by Lyft, Inc. (Defendant) in Department 520required for the term to be unenforceable, and vice versa. (Id. at pp. 125–126.) Whenunconscionability is shown, the trial court has discretion either to refuse enforcement or to strikethe unconscionable provision and enforce the remainder of the agreement. (Civ. Code, § 1670.5,subd. (a); Armendariz, supra, 24 Cal.4th at p. 122.)C. Enforceability of a Delegation Clause“Parties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court,questions regarding the enforceability of the agreement.” (Tiri v. Lucky Chances, Inc. (2014)226 Cal.App.4th 231, 241.) Therefore, even when a delegation clause is part of a contract ofadhesion that is procedurally unconscionable, courts may enforce the delegation clause as long asit is not found to be substantively unconscionable. (Id. at pp. 245-250.) California courts havefound delegation clauses to be proper and enforceable – especially in cases in which the FAAapplies. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1556-1557.) This has been truefollowing the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion(2011) 563 U.S. 333 in which it overruled a line of California cases that it considered wereimpermissibly hostile to arbitration. (Id. at p. 1556.)ANALYSISI. Delegation Clause Mandates ArbitrationThe Federal Arbitration Act (“FAA”) applies to the present arbitration agreement. (SniegowskiDecl. ¶ 12; Exhs. 2-9; MPA p. 9: 2-18; 16:10-17:21; 20:23-23:1; fn.7.) Not only do the terms ofthe arbitration agreement expressly indicate that the FAA applies, but Defendant operates amobile device-based ridesharing software platform that enables individuals in all fifty states, theDistrict of Columbia and parts of Canada to be matched with independent drivers who canprovide rides using their own personal vehicles. (MPA p.11:12-21; Sniegowski Decl. ¶¶ 4; Exhs.2-9.) Defendant is therefore engaged in interstate commerce, making the FAA applicable to thearbitration agreement at issue.Plaintiff does not dispute either that the FAA applies or that the arbitration agreement contains adelegation clause that delegates the issues of arbitrability to the arbitrator as Defendant contends.(MPA p. 10: 4-7.)Therefore, as a preliminary matter, it is proper to compel the present controversy to arbitrationbased on the delegation clause and the fact that Plaintiff has not disputed it.II. Arbitration Agreement (even absent Delegation Clause) Is EnforceableHowever, even if the arbitration agreement did not contain a delegation clause, it would still beenforceable because Defendant’s evidence establishes that a valid arbitration agreement existedbetween the parties and that the arbitration agreement is not substantively unconscionable. (Code SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV069253: DE GUZMAN vs AREVALO RESENDIZ, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by Lyft, Inc. (Defendant) in Department 520Civ. Proc., § 1281.2; Armendariz v. Foundation Health Psychcare Services, Inc.(2000) 24Cal.4th 83, 102-103; 122; Murrey v. Superior Court (2023) 87 Cal.App.5th 1223, 1238.)A. Online Contract Formation – Clickwrap Agreements Are EnforceableHere, Defendant’s Terms of Service and Arbitration Agreement were presented as part of a“clickwrap” agreement as defined above. (Sellers, supra, 73 Cal.App.5th at p. 463-464.)According to the Declaration of Defendant’s “Safety Program Senior Specialist” AlexSniegowski, Plaintiff was required to affirmatively agree to Defendant’s TOS by clicking a large“I Agree” button before he could request rides through Defendant’s rideshare platform.(Sniegowski Decl. ¶ 8.)Sniegowski’s Declaration satisfies Defendant’s prima facie burden of establishing that a validagreement to arbitrate existed between the parties. (Gamboa, supra, 72 Cal.App.5th at p.165;Condee, supra, 88 Cal.App.4th at p. 219.)Plaintiff has presented no evidence to the contrary and in fact concedes that he was required toaccept Defendant’s terms of service to use Defendant’s rideshare platform. (Oppo. p. 6:16-20.)B. UnconscionabilityThe primary basis for Plaintiff’s Opposition is Plaintiff’s contention that the arbitrationagreement is unconscionable. (Oppo. pp. 3: 1-12:3.) Plaintiff argues that it is procedurallyunconscionable because riders who choose to use Defendant’s rideshare platform have nomeaningful choice in negotiating the terms of the arbitration agreement, making it a “contract ofadhesion.” (Oppo. p. 3:1-8:2.) Plaintiff further argues that the agreement is substantivelyunconscionable because arbitrator bias is likely and appellate relief is unavailable. (Oppo. pp.8:4-12:3.) The Court addresses these arguments below.i. Procedural UnconscionabilityWhere an arbitration agreement is offered on a “take-it-or-leave-it basis, it is procedurallyunconscionable. (Murrey, supra, 87 Cal.App.5th at p. 1238.) Here, where Plaintiff was requiredto accept the TOS and likewise the arbitration agreement, the Court accepts that a certain degreeof procedural unconscionability existed and proceeds to examine whether the agreement wassubstantively unconscionable as well. (Murrey, supra, 87 Cal.App.5th at p. 1238.)ii. Substantive UnconscionabilityIn Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, theCalifornia Supreme Court addressed the issue of substantive unconscionability and instructedthat, at a minimum, a mandatory employment arbitration agreement must: SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV069253: DE GUZMAN vs AREVALO RESENDIZ, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by Lyft, Inc. (Defendant) in Department 520(1) provide for neutral arbitrators,(2) provide for more than minimal discovery,(3) require a written award that permits limited judicial review,(4) provide for all of the types of relief that would otherwise be available in court, and(5) require the employer to pay the arbitrator's fees and all costs unique to arbitration.(Armendariz, supra, 24 Cal.4th at pp. 102-103.)Here, Plaintiff’s Opposition make the conclusory allegation that the arbitration agreement “as itsvery nature is so grossly imbalanced as to shock the conscience” (Oppo. p. 8:4-6), but identifiesno provision of the agreement that “shocks the conscience.”Plaintiff acknowledges that the agreement in this case “would allow for a written award, that itwould still provide Mr. De Guzman with the opportunity to conduct discovery, and that Lyft hasoffered to pay the costs for non-frivolous claims.” (Oppo. p. 9: 1-3.) However, he claims thatnotwithstanding that the agreement satisfies the Armendariz requirements, that it is substantivelyunconscionable because there is a “high likelihood of arbitrator bias and lack of ability to receiveall of the types of appellate relief that would be available in court[.]” (Oppo. p. 9:3-6.)The Court remains unconvinced that Defendant’s status as a “repeat player” makes its arbitrationagreement substantively unconscionable or that the unavailability of appellate review is a validbasis for a finding of substantive unconscionability.Plaintiff’s Opposition cites to Mercuro v. Superior Court (2002) 96 Cal.App.4th 167 in supportof his contention that the “repeat player effect” should factor into this Court’s unconscionabilityanalysis. (Oppo. p. 12:19-22.) However, the Mercuro court expressly states: “While our SupremeCourt has taken notice of the ‘repeat player effect,’ the court has never declared this factorrenders the arbitration agreement unconscionable per se.” (Mercuro v. Superior Court (2002) 96Cal.App.4th 167, 178.) The Mercuro court therefore rejected the plaintiff’s contention in thatcase that the “repeat player effect” was a valid basis for finding substantive unconscionability.(Ibid.)The sole basis Plaintiff cites to in support of his position that the lack of appellate relief makesarbitration substantive unconscionability is that Armendariz requires that an arbitrationagreement provide “for all of the types of relief that would otherwise be available in court.”(Oppo. p. 12:24-13:4 citing to Armendariz, supra, 24 Cal.4th at p. 102.) However, thisinterpretation of Armendariz would authorize the wholesale invalidation all arbitrationagreements since arbitration, by its very nature, is not identical to litigation. This reading ofArmendariz is neither practical nor consistent with California case law that has enforcedarbitration agreements notwithstanding that they universally deprive their participants ofappellate review. Accordingly, Plaintiff has failed to meet his burden of showing that thearbitration agreement is substantively unconscionable. (Pinnacle, supra, 55 Cal.4th at p. 236.)CONCLUSION SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA 24CV069253: DE GUZMAN vs AREVALO RESENDIZ, et al. 08/02/2024 Hearing on Motion to Compel Arbitration filed by Lyft, Inc. (Defendant) in Department 520Apart from the delegation clause making arbitration appropriate in this instance, Defendant hasestablished a valid arbitration agreement and Plaintiff has failed to show that the agreement wassubstantively unconscionable. (Armendariz, supra, 24 Cal.4th at p. 102-103.) Defendant’smotion is therefore granted. (Code Civ. Proc., § 1281.2.)NOTICE: This tentative ruling will automatically become the court’s final order on FridayAugust 2, 2024 unless, by no later than 4:00 p.m. on Thursday August 1, 2024, a party to theaction notifies BOTH: 1) the court by emailing Dept520@alameda.courts.ca.gov; AND 2) allopposing counsel or self- represented parties (by telephone or email) that the party is contestingthis tentative ruling.The subject line (RE:) of the email must state: “Request for CONTESTED HEARING: [the casename], [number].” When a party emails to contest a tentative ruling, the party must identify thespecific holding(s) within the ruling they wish to contest via oral argument.The court does not provide court reporters for hearings in civil departments. A party who wants arecord of the proceedings must engage a private court reporter. (Local Rule 3.95.) Any privatelyretained court reporter must also participate via video conference. His/Her email must beprovided to the court at the time the Notice of Contest is emailed.ALL CONTESTED LAW AND MOTION HEARINGS ARE CONDUCTED VIA REMOTEVIDEO unless an in person appearance is required by the court. Invitations to participate in thevideo proceeding will be sent by the court upon receipt of timely notice of contest. A party maygive email notice he/she will appear in court in person for the hearing, however all othercounsel/parties and the JUDGE MAY APPEAR REMOTELY.

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