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1 MICHAEL R. O'NEIL, SBN 155134 AARON B. SILVA, SBN 245483 2 PETER A. AUSTIN, SBN 252067 MURPHY AUSTIN ADAMS SCHOENFELD LLP ^¥1LEB/BiOOl 3 555 Capitol Mall, Suite 850 Sacramento, CA 95814 FEB 1 6 2023 4 Telephone: (916)446-2300 Facsimile: (916) 503-4000 By: C. Carrillo / 5 Email: moneil@murphyaustin.com Deputy Clerii/7 Email: asilva@murphyaustin.com 6 Email: paustin@murphyaustin.com 7 Attomeys for Defendant, CALIFORNIA NORTHSTATE UNIVERSITY, LLC 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 ALI ANWAR, KYLE M. GO, JAMES GO Case No. 34-2021 -00297419-CU-FR-GDSI 12 III, RAHUL RAMAKRISHNAN, and NATHANIEL TAK, DECLARATION BY PETER A. AUSTINI 13 IN SUPPORT OF MOTION BY DEFENDANT CALIFORNIAi Plaintiffs, NORTHSTATE UNIVERSITY, L L C 14 FOR SUMMARY ADJUDICATION ONI 15 v. PLAINTIFF RAHUL RAMARKISHNAN'S 1ST, 2ND, 3RD, CALIFORNIA NORTHSTATE 4TH, 6TH, AND 7TH CAUSES OF 16 UNIVERSITY, LLC, a Califomia Limited ACTION Liability Company, and DOES 1-100, 17 inclusive, Date: May 5,2023 Time: 9:00 a.m. 18 Defendants. Dept.: 27 Reservation No.: Minute Order dated 19 January 26, 2023 20 FAC Complaint Filed: September 15, 2021 Complaint Filed: March 25, 2021 21 Trial Date: June 12,2023 22 Designated Complex 23 24 I, PETER A. AUSTIN, declare as follows: 25 1. I am an attomey at law licensed to practice before the courts of the State of 26 Califomia and an associate in the law firm of Murphy Austin Adams Schoenfeld LLP, attomeys 27 for Defendant Califomia Northstate University, LLC ("CNU") in the above-entitled action. I make 28 this declaration in support of Defendant's Motion for Summary Adjudication. I have personal 4565.018-7924687.1 -1 - DECLARATION BY PETER A. AUSTIN IN SUPPORT OF MOTION BY DEFENDANT CALIFORNIA NORTHSTATE UNIVERSITY, LLC FOR SUMMARY ADJUDICATION 1 knowledge of the facts stated herein and if called to testify I would and could testify competently 2 to the matters stated herein. 3 2. My firm and I represented CNU in the proceeding before the State of Califomia, 4 Office of Administrative Hearings, Bureau of Private Postsecondary Education entitled In the 5 Matter of: California Northstate University (Institution Code No. 4142826), Office of 6 Administrative Hearings Case No. 2020010486 (the "OAH Proceeding"). 7 3. During my representation of CNU in the OAH Proceeding, I had several telephone 8 calls with Kevin Bell, who stated that he was the attomey at the Califomia Attomey General's 9 Office representing the Bureau for Private and Post-Secondary Education ("BPPE") 10 4. On November 5, 2020, I received via email fi-om Christina Villaneuva at 11 Christina.Villaneuva@dca.ca.gov a document entitled "Modified Citation: Assessment of Fine and 12 Order of Abatement" and referred to herein as the "Final Citation". A true and correct copy of the 13 Final Citation is attached to this declaration as Exhibit A. 14 5. On multiple occasions after receiving Exhibit A, I visited the BPPE's website at5 15 www.bppe.ca.gov. Specifically, I visited the page entitled "Disciplinary Actions" located at 16 www.bppe.ca.gov/enforcement/disciplinary_actions.shtml. The most recent time that I visited that 17 page was January 2, 2023. On each occasion that I visited the "Disciplinary Actions" page, the 18 section entitled "Califomia Northstate University" contained links to four docimients entitled as 19 follows: (a) "Citation: Assessment of Fine and Order of Abatement, 7/19/19"; (b) "Appeal of 20 Citation hiformal Conference Decision: Citafion 1920015, Modified, 11/20/19 "; (c) "Modified 21 Citation: Assessment of Fine, 10/26/2020"; and (d) "Evidence of CompHance and Fine Paid: 22 Citation 1920015, Closed, 11/4/2020". 23 6. On January 2, 2023, I clicked on the link for the document entitled "Citation: 24 Assessment of Fine and Order of Abatement, 7/19/19", which has the URL 25 https://www.bppe.ca.gov/enforcement/actions/1920015_calif_northstate_abate.pdf. A true and 26 correct copy of the document that I viewed at this URL is attached hereto as Exhibit B. 27 7. On January 2, 2023, I clicked on the link for the document entitled "Appeal of 28 Citation hiformal Conference Decision: Citation 1920015, Modified, 11/20/19" which has the URL 4565.018-7924687.1 -2- DECLARATION BY PETER A. AUSTIN IN SUPPORT OF MOTION BY DEFENDANT CALIFORNIA NORTHSTATE UNTVERSITY, LLC FOR SUMMARY ADJUDICATION 1 https://www.bppe.ca.gov/enforcement/actions/ca_northstate_modcit.pdf. A tme and correct copy2 of the document that I viewed at this URL is attached hereto as Exhibit C.3 8. On January 2, 2023, I clicked on the link for the document entitled "Modified4 Citation: Assessment of Fine, 10/26/2020" which has the URL 5 https://www.bppe.ca.gov/enforcement/actions/califomianorthstateimiv_mod.pdf. A tme and6 correct copy of the document that I viewed at this URL is attached hereto as Exhibit D. 7 9. On January 2, 2023,1 clicked on the link for the document entitled "Evidence of 8 Compliance and Fine Paid: Citation 1920015, Closed, 11/4/2020" which has the URL9 https://www.bppe.ca.gov/enforcement/actions/calinorthstateuniv_compl.pdf. A tme and correct10 copy of the document that I viewed at this URL is attached hereto as Exhibit E.11 10. On March 15, 2022,1 received by email from Plaintiffs' counsel of record in this12 matter the document entitied "Plaintiff Rahul Ramakrishnan's Supplemental Responses to13 Defendant Califomia Northstate University, LLC's Form Interrogatories, General - Set One." (The14 "Ramakrishnan FROGs".) On December 9, 2022, I received an email with Plaintiffs' Responses15 To Defendant Califomia Northstate University, LLC's Requests For Admission Set One (The16 "Ramakrishnan RFAs".). Attached hereto collectively as Exhibit F are true and correct copies of17 the relevant excerpts from the Ramakrishnan FROGS and Ramakrishnan RFAs which are cited in18 Defendant's Separate Statement of Undisputed Material Facts in Support of their Motion for19 Summary Adjudication.20 11. On December 10,2022,1 attended the deposition of Rahul Ramakrishnan. Attached21 hereto as Exhibit G are true and correict copies of the relevant excerpts from the deposition22 testimonyfranscriptof Rahul Ramakrishnan which are cited in Defendant's Separate Statement of23 Undisputed Material Facts in Support of their Motion for Svunmary Adjudication.24 I declare imder penalty of perjury under the laws of the State of Califomia that the foregoing25 is tme and correct. Executed February 16, 2023, at Sacramento, Califomia.26 PETER AUSTIN "2728 4565.018-7924687.1 3- DECLARATION BY PETER A. AUSTIN IN SUPPORT OF MOTION BY DEFENDANT CALIFORNIA NORTHSTATE UNIVERSITY, LLC FOR SUMMARY ADJUDICATION RE: RAHUL RAMAKRISHNANPAA Exhibit A Business, Consumer Services and Housing Agency-Oovemor Gavin Newsom Bureau for Private Postsecondary EduMtlon ...... 1747 N. Market Blvd. Ste 225 Sacramento. CA 95834 BPPE P.O. Box 980818, West Sacramento, CA 95798-0818 P (916) 574-8900 F (916) 263-1897 www.bppe.ca.gov MODIFIED CITATION: ASSESSMENT OF FINE AND ORDER OF ABATEMENTTo: California Northstate University, LLC, Owner Califomia Northstate University, LLC 9700 West Taron Drive EIkGrove.CA9S757 INSTITUTION CODE: 41462826 CITATION NUMBER: 1920015 MODIFIED CITATION ISSUANCE/SERVICE DATE: October 26,2020 MODIFIED DUE DATE; November 25,2020i FINE AMOUNT; $ 501.00 | ORDER OF ABATEMENT INCLUDED: YES Christina Villanueva issues this Modified Citation: Assessment of Fine (Citation] in her official capacity as Discipline Manager of the Bureau for Private Postsecondary Education (Bureau) of the Califomia D epartment of Consumer Affairs. CITATION A Modified Citation is hereby issued to Califomia Northstate University, Owner of CaUfomia Northstate University (Institution) located at 9700 West Taron Drive, Ellc Grove, CA, 95757, pursuant to Business and Professions Code section 125.9; Califomia Education Code (CEC) sections 94936 and 94932; and Title 5 of the Califomia Code of Regulations (5, CCR) section 75020 for the violations described below. BACKGROUND The Bureau previously issued Citation: Assessment of Fine and Order of Abaternent No. 1920015 to the Owner of the Institution on July 19,2019, which was appealed by the Institution and subsequently withdrawn with prejudice on October 21,2020. VIOLATION CEC Section 94894. Substantive Change Defined The following changes to an approval to operate are considered substantive changes and require prior authorization: (a) A change in educational objectives, including an addition of a new diploma or a degree educational program unrelated to the approved educational progranis offered by the institution, CEC Section 94896. Substantive Change for Institutions Approved by Means of Accreditation (a) An institution tiiat has been granted an approval to operate by means of accreditation shall only make a substantive change in accordance with the institution's accreditation standards. (b) The institution shall notify the bureau of the substantive change on a form provided by the bureau. On April 23,2018, Bureau staff found that the Instimtion was advertising three programs not approved by the Bureau: Bachelor of Science Health Science-to-Doctor of Medicine (BS- MD), Bachelor of Science-to-Doctor of Pharmacy (BS-PharmD), and Pre-Medical Post Baccalaureate (PMPB). On August 23,2018, the Bureau approved the PMPB Non-Degree program. As of July 18, 2019, the Bureau has not received a Change of Educational Objectives Licensing application to obtain approval to offer the BS-MD and BS-PharmD program. Order of Abatement! The Bureau order the Institution to submit an established poUcy or procedure, that identifies how personnel will be present during business hours to allow access to Institution records and be made readily available to the Bureau upon request Reason for modification: Dismissed with prejudice. Assessment of Fine: Thefinefor this violation is $1000.00 The modified administrative fine fortius violation is $00.002. Violation: 5, CCR Section 74112(a)(h)(i)Q)(k)0)(m) - Uniform Data - Annual Report, Performance Fact Sheet (a) Format The format for the Performance Pact Sheet shall be in at least 12 pt type, in an easily readable font, with 1.15 line spacing and alltitlesand column headings shall be in bold 14 pt type, which shall also identify the program for which the Performance Fact Sheet pertains. The Performance Fact Sheet shall contain all and only the information required or specifically permitted by sections 94910 and 94929.5 of the Code or this chapter. A separate Performance Fact Sheet shall be prepared for each program. (hj Completion Rates. Reporting of completion ratesforan institution's Annual Report and Performance Fact Sheet shall include, for each educational program, the number ofstudents who began the program as defined in subdivision (d)(1) of this section, the number ofstudents available for graduation, number of on-time graduates, and completion rate(s).An optional table may be added to include completion rate data for students completing within 150% of the published program length. For an institution reporting completion datxi pursuant to section 94929(b) of the Code, completion data shall be separately reported for each program and the Performance Fact Sheet shall disclose, if true, that the completion data is being reported for students completing within 150% of the published program length, and that data is not being separately reportedfor students completing the program within 100% of the published program length. Programs that are more than one year in length which are reporting 150% Completion Rate will provide four calendaryears of data. Page 2 of11 Modined Citation: Assessment of Fine and Order of Abatement California Northstate University, LLC Owner of Califomia Northstate University, LLC Institution Code: 41462826Completion rates shall be included in the Performance Fact Sheet in a format substantiallysimilar to the chart below (dates, numbers, and other data shown are for example only):On-time Completion Rates (Graduation Rates) (includes data for the two calendaryears priorto reporting)Students Completing Within 150% of the Published Program Length Name of EducationalPj2gram^^0£ram Length)^^pNii^b^? agc^tztfr.:;;'!—rn^r^Sj J-B=:fi--n]jtar.j Students s ^ ^ | § 1 5 0 % ^'^^-iffl Students Available CompletioCalendar jWho for 150% !»»RateYear Began . Graduation Graduate I jthe I* I ProgramStudent's Initials: . Date;.Initial only ajieryou have had sufficient timeto read and understand the information.(I) fob Placement Rates.(l)Any placement data required by sections 94910(b) and 94929.S(a) of the Code shall bereported for Page3ofll Modified Citation: Assessment of Fine and Order of Abatement California Northstate UniverslQr, LLC, Owner of California Nordistate University, LLC Institution Code: 41462826the number ofstudents who began the program as defined in subdivision (d)(1) of this sectionfor eachreported calendaryear.(3) If the institution makes ariy claim related to preparing students for a Job or regarding jobplacement, the list required by section 94910(f)(2) of the Code shall identify the employment positions by using die Detailed Occupation or six-digit level of the Standard Occupational Classification codes. (4) Placement rate shall be calculated asfollows: the number ofgraduates employed in thefield as d&pned in section 94928(e)(l) of the Code in conjunction with section 74112(d)(3) divided by the number ofgraduates available for employment as defined in section 94928(d) of the Code.Job Placement rates and related disclosures shall be included in the Performance FactSheet in a format substantially similar to the charts below, (dates, numbers, and other data shown arefor example only):Job Placement Rates (includes data fortiietwo calendaryears prior to reporting)Name of Educational Program (Program Length) i^^^^^pNumber of i^gStudents ^ ^ W h o Began i M ^ f f i ® fa^^^J Graduates Graduates jEmployed In ^^^^Igarrogram Available I Employed jthe Field Calendar < iNumberof jft>r in the Field | Year [(Graduates I Employme Student's Initials: Date: Initial only after you have had sufficient time to read and understand the information. Gainful Employment Categories (includes data for the two calendaryears prior to reporting) Name of Educational Program (Program Length) Parttimevs. Full Time Employment Total Graduates is Graduates Employed in the fieldGraduates Employed in the field at Employed in the Page.4 of 11 Modified Citation: Assessment of Fine and Order of Abatement California Northstate University, LLC, Owner of California Northstate University, LUC Institution Code: 41462826 20 least 30 hours per week Field to 29 hours per week riiiri-rrfii 20XX15 40 55 20XY5 15 20^^pSraduates Employed in tiie jGraduates Employed in thefieldin jTotal Graduatesig^^ield jconcurrent aggregated positions lEmployed in the "in 3 single position ipield20XX52 5520XY^19 20Self-Employed/Freelance Positioris Total Graduates Employed in t^^^Graduates Employed who are self-employed or orkingJristitutional Empl^ment gCraduates Employed in thefieldwho are employed by Total Graduates Employed i e die Field {institution, an employer owned by the Institution, or an ^^gemployer who shares ownership with the institutionStudent's Initials: Date: Page 5 of 11 Modified CitHtian: Assessment of Fine and Order of Abatement Califomia Nordistate University, LLC, Owner of Califomia Northstate University, LLC Institution Code: 41462826Initial only afteryou have had sufficient timeto read and understand the information. "(j) License Examination Passage Rates. If license examination passage rates are not availablefrom the appropriate state agency, an institution shall collecttiieinformation directly from itsgraduates. If an institution demonstrates that, after reasonable efforts, it is unable to obtain the examination passage information from its graduates, the institution shall report thenumber ofstudents it could not contact and note in a font the same size as the majority of the data on the Performance Fact Sheet, "License examination passage data is not available from the state agency administering the examination. We were unable to collect data from [enter the number)graduates." Reporting of license examination passage rates for the Ann ual Report and the Performance Fact Sheet shall include, for each educational program: the number of graduates in the reported year, the number of documented graduates who passed thefirstavailable examination, number of documented graduates who failed thefirstavailable examination, the number of graduates for whom data is not available. An optional column may be added to separately report licensing examination data for graduates who take and pass the exam afterfailing initially. The Annual Report shall also include a description of the precedes for attempting to contact those students. For licensing examinations that are not continuously administered, license examination passage rates shall be included in the Performance Fact Sheet in a format substantially similar to the chart below, (dates, numbers, and other data shown are for example only):License Examination Passage Rates (includes data for the two calendaryears prior toreporting)Name ofEduc^onalProgramff^Qgfo^l^^npth) Number Number IDate Exam Number of Number of Who Who esults Graduates in Graduates Passed Failed First Announced Calendar Taking Exam Exam Exam Available Year Exam Date 2/1/20XX 3/15/20XX 277 80 40 40 50% 7/15/20XX 277 iocT 75" 25" 75%" io/T/2byx' il7l5720»C 277" 82" 68r 14" 76% 2/1/20XY 3/20/20XX 304 80 40 40 50% 67i720XY 304" ioT TO" 36"" 70%" 10/1/20XY 11/19/20XX 304 92 62 30 67%' License examination passage data is not available from tiie state agency administering the examination. We were unable to collect datafrom32 graduates. Student's Initials:. . Date: Initial only after you have had sufficient time Page 6 of 11 Modified Citadon: Assessment of Fine and Order of Abatement California Northstate University, LLC, Owner of Califomia Northstate University, LLC Institution Code: 41462826to read ond understand the information.For licensing examinations that are continuously administered, license examination passagerates shall be included in the Performance FactSheet in a format substantially similar to thechart below(dates, numbers, and other data shown are for example only):License Examination Passage Rates (includes data for the two calendaryears prior toreporting)Name of Educational Program (Program Length) ^^Number Who ~ Number Who ^ Number of Number of Passed First Failed First ^ ^ ^ ^ ^ p l^raduates in Graduates Available Available ^ ^ ^ ^ ^Calendar Calendar Year Taking Exam Exam Exam ^^^s^irf^Year r iPassage RateLicense examination passage data is not availablefromthe state agency administering theexamination. We were unable to collect datafrom10 graduates.Student's Initials: Date;Initial only afteryou have had sufficient timeto read and understand the information."(k) Salary and Wage Information.All Salary and Wage Information shall be reported to the Bureau pursuant to sections 94910(d) and 94929.5(a)(3) oftiieCode and shall be included in the Performance Fact Sheet,for each educational program, in a format substantially similar to the chartbelow (dates, numbers, salaries, and other data shown are for example only).Salary and Wage Information (includes data fortiietwo calendaryears prior to reporting)Name of Educational Program (Program Length)Annual Salary and Wages Reported for Graduates Employed in th e Field Graduates Graduates ^ ^ ^ ^ S No Salary Calenda jAvailable Employed |$15,000 I$20,0011$25,0011$30,001 Informal r for inthe |- I- !- 1- on Year ^J$20,000 l$2S,000 j$30,000 |$35,000 Page 7 of 11 Modified Citation: Assessment of Pine and Order of Abatement California Northstate University, LLC, Owner of Califomia Northstate University, LLC InsUtutlon Code: 41462826 „,„„.^... A..j,,...;^r;;!'iJ!;^{U.JA.j-..-!i f f i g l p l l Employme Field |fJ^,|Reportec^^teint 'fiimnaiiiiiiiSSL.20XX 100 70 40 1620XY {80 55 1.5. 35A list ofsources used to substantiate salary disclosures is availablefromthe school (Inserthow student can obtain this information.)Student's Initials:. . Date:Initial only after you have had sufficient timeto read and understand the information.""(1) Definitions. Definitions for all terms contained on the Performance Fact Sheet shall beincluded as part of the Performance FactSheet in the same format as required in subdivision(a).The following are the definitions for the Performance FactSheet"Number of Students Who Began the Program" meanstiienumber ofstudents who began aprogram who were scheduled to complete the program within 100% of the published programlength within the reporting calendaryear and excludes all students who cancelled during thecancellation period."Students Available for Graduation" is the number of students who began the program minusthe number ofstudents who have died, been incarcerated, or been called to active militaryduty. "Number of On-time Graduates" is the number ofstudents who completed the program within100% of the published program length within the reporting calendaryear. "On-time Completion Rate" is the number of on-time graduates divided by the number ofstudents available for graduatioti "150% Graduates" is the number ofstudents who completed the program within 150% of theprogram length (includes on-time graduates). "150% Completion Rate" is the number ofstudents who completed the program in the reported calendar year within 150% of the published program length, Including on-timegraduates, divided by the number ofstudents available for graduation. "Graduates Available for Employment" means the number ofgraduates minus the number ofgraduates unavailable for employment "Graduates Unavailable for Employment" means the graduates who, after graduation, die, become incarcerated, are called to actfve military duty, are intemational students that leave the United States or do not have a visa allowing employment in the United States, or are continuing their education in an accredited or bureau-approved postsecondary institution. "Graduates Employed in the Field" means graduates who beginning within six months after a student completes the applicable educational program are gainfully employed, whose employment has been reported, and for whom the institution has documented verification of employment For occupations for which the state requires passing an examination, the six months period begins after the announcement of the examination results fortiiefirst examination available after a student completes an applicable educational program. "Placement Rate Employed in the Field" is calculated by dividing the number of graduates gainfully employed in thefieldby the number ofgraduates available for employment "Number of Graduates Taking Exam" is the number ofgraduates who took thefirstavailable exam in the reported calendar year. Page 8 of11 Modified Citation: Assessment of Fine and Order of Abatement California Northstate University, LLC, Owner of Califomia Northstate University, LLC Institution Code: 41462826"First Available Exam Date" is the date for thefirstavailable exam after a student completed aprogram."Passage Rate" is calculated by dividing the number of graduates who passed the exam by thenumber of graduates who took the reported licensing exam"Number Who Passed First Available Exam" is the number of graduates who took and passedth efirstavailable licensing exam after completing the program,"Salary" is as reported by graduate or graduate's employer."No Salary Information Reported" is the number ofgraduates for whom, after makingreasonable attempts, the school was not able to obtain salary information."(m) Documentation supporting all data reported shall be maintained electronically by theinstitution for at leastfiveyears from the lasttimethe data was included in either an AnnualReport or a Performance Fact Sheet, and shall be provided to the Bureau upon request; andthe data for each program shall include at a minimum:Violation: CEC Section 74112 (a): The Institution used the wrong format on the2015/2016 SPFS for the Doctor of Medicine and Bachelor of Science in Health Sciences(BSHS). Additionally,In addition, the 2015/2016 SPFS for the Doctor of Pharmacy program, the Institutionincluded a disclosure in the Job Placement Rates section, which is not allowed per 5, CCRSection 74112 (a).Violation: S, CCR Section 74112 (h): The 2015/2016 SPFS for the Doctor of Pharmacyprogram reported 150% Completion Rates but failed to report four years data.Violation: 5, CCR Section 74112 (i)(l): The 2015/2016 SPFS for the BSHS program failedto contain the Job Placement Rates and Gainful Employment Categories,Violation: 5^ CCR Section 74112 (i)(3): Institution staff did not have access to die list ofjob classifications and corresponding SOC codes and were unable to provide the list toBureau staff upon requestViolation: 5, CCR Section 74112 (i)(4): The 2015/2016 SPFS fortiieDoctor of Pharmacyprogram failed to accurately report "Graduates Employed in the Field".Violation: 5, CCR Section 74112 0): The 2015/2016 SPFS for the BSHS program failed tocontain the License Examination Passage Rates table.Violation: 5, CCR Section 74112 (k): The 2015/2016 SPFS for the Doctor of Pharmacyprogram failed to accurately report "Graduates Employed in the Field" and Salary and WageInformation. Additionally, the 2015/2016 SPFS for the BSHS program failed to contain tiieSalary and Wage Information table.Violation: 5, CCR Section 74112 0): The 2015/2016 SPFS for tiie BSHS program faCed tocontain the required definitions.Violation: 5, CCR Section 74112 (m): Institution staff did not have access to thesupporting documentation for the 2015/2016 SPFS and was unable to provide it to Bureaustaff upon request Page 9 of11 Modified Citation: Assessnaentof Pine and Order of Abatement California Northstate University, LLC, Owner of Califomia Northstate University, LLC Institution Code: 41462826 Order of Abatement; The Bureau orders the Institution to maintain compliance with 5, CCR section 74112 and shall submit a written policy of how future compliance with 5, CCR section 74112 will be maintained. Reason for modification: Dismissed with prejudice. Assessment of Fine; Thefinefor this violation is $3500.00 The modified administrativefinefor this violation is SflQiKl Violation; 5, CCR Section 71930 (e) -Maintenance of Records (e)All records that the institution is required to maintain by the Act or this chapter shall be made immediately available by the institution for inspection and copying during normal business hours by the Bureau and any entity authorized to conduct investigations. CEC Section 94929.7(a) f2) (a) The information used to substantiate the rates and information calculated pursuant to Sections 94929 and 94929.5 shall do both of the following: (2) Be retained in an electronic format and made available to the bureau upon request Institution staff did not have access to the information requested by Bureau staff and could not make records immediately available for inspection and copying during the unannounced Compliance inspection. Order of Abatement; The Bureau orders the Institution to submit a policy and procedure ensuring that the Institution has personnel/staff available during normal business hours to access the required documentation. Reason for modification: The Order of Abatement has been satisfied. Assessment of Fine Thefinefor this violation is $501.00 ASSESSMENT OF A FINEIn accordance with CEC section 94936; and 5, CCR sections 75020 and 75030, the Bureau herebyorders this assessment offinein the amount of $501.00 for the violations described above.Payment must be made to the Bureau by November 25,2020. Page 10 of 11 Modified Citation: Assessment of Fine and Order of Abatement California Northstate University, LLC, Owner of California Northstate University, LLC Institution Code: 41462826I PAYMENT OF ADMINISTRATIVE FINEI The Institution shall pay the civU penalty In the amount of $501.00 by way of cashiers' checkI or money order. The payment shall be mailed to:! Cheryl Lardizabal, Discipline Citation Programj Bureau for Private Postsecondary Educationi 1747 N. Market Blvd., Suite 225i Sacramento, CA 95834i The civil penalty must be paid to the Bureau by November 25,2020. Payment of an' administrative citation is not an admission of guilt or liability. The Institution gives up dierightto an administrative hearing and all otherrightsaccorded by the California Administrative Procedure Act and other applicable laws. The Institution's failure to pay the Modified Citation civil penalty pursuant to the terms of this settiement will result in denial of an application for an approval or renewal to operate; disciplinary action, and/or collection action. The Bureau for Private Postsecondary Education may file an Amended Modified Citation for the fiailure of conditions required of the Institution. CONTACT INFORMATION If you have any questions regarding this Modified Citation, or desire further information, please contact Cheryl Lardizabal, Citation Analyst, at (916) 574-8968 or Cheryl.Lardizabal@dca.ca.gov. Christina Villanueva Date Discipline Manager Enclosure > Declaration of Service by Certified and First-Class Mail > Payment of Fine Page 11 of 11 Modified Citation: Assessment of Fine and Order of Abatement Califomia Northstate University, LLC, Owner of Califomia Northstate University, LLC institution Code: 41462826PAA Exhibit B ^ D j R ^ BUSINESS, CONSUMER SERVICES AND HOUSING AQENCY • QAVIN NEWSOM, GOVERNOR |_IT_,fZ~ DEPARTUENT OF CONSUUERAFFARS* BUREAU FOR PRIVATE POSTSECONDARY EDUCATIONI B F ^ P C 2536 Capitol OalB Olive, Suite 400, SaotBmento.CA 95833 tm.am.'mmm^ P.O, Box 980818, Weal SacJamentD, CA 9578^0818I P (916) 431-6959 | Toll-Fiee (688) 37&-7S89 | Mww.bppe.ca.sov CITATION! ASSESSMENT OF FINE AND ORDER OF ABATEMENT To: California Northstate University, LLC, Owner{ California Northstate University, LLCI 9700 West Taron Drive1 Elk Grove, CA 95757ii INSTITUTION CODE: 41462826I CITATION NUMBER: 192001SI CITATION ISSUANCE/SERVICE DATE: July 19,2019 DUE DATE; August 18.2019 (PINE AM0UNT7$ 6501.00 |i ORDER OF ABATEMENT INCLUDED: YesjI Christina Villanueva issues this Citation: Assessment of Fine and Order of Abatement (Citation) inI her official capacity as Discipline Manager of the Bureau for Private Postsecondary Education (Bureau) of the Califomia Department of Consumer Affairs. CllAllQIiiI A Citation is hereby issued to California Northstate University, LLC, Owner of Califomia Northstate University, LLC (Institution) located at 9700 West Taron Drive, Elk Grove, CA 95757, pursuant to I Business and Professions Code section 125.9; California Education Code (CEC) sections 94936 and j 94932; and Titie 5 of the Califomia Code of Regulations (5, CCR) section 75020 for the violations described below. BACKGROIIND On April 26,2018, an unannounced Compliance inspection was conducted at the Institution. During • the inspection, the Institution did not have the administrative staff available onsite to provide ; immediate access to student and institutional records. Additionally, the Institution could not make the necessary corrections to the 2015/2016 School Performance Fact Sheet (SPFS). The Institution's representative stated that the Institution did not have administrative staff onsite to make tiie necessary corrections to the SPFS during the onsite inspection. The Institution's staff was unable to provide the supporting documentation to Bureau staff upon request as die Institution's representative was the only one that had access to the information and could npt access it while out of the office. In addition, prior to and during the inspection, Bureau staff found that the Institution advertises on its website and in the Institution's catalog, a Bachelor of Science-to-Doctor of Medicine (BS-MD) program and a Bachelor of Science-to-Doctor of Pharmacy (BS-PharmD) program that is not approved by the Bureau. VIOLATIONViolation;CEC Section 94894. Substantive Change DefinedThe following changes to an approval to operate are considered substantive changes and require priorauthorization:(a) A change in educational objectives, including an addition of a new diploma or a degree educationalprogram unrelated to the approved educational programs offered by the institution.CEC Section 94896. Substantive Change for Institutions Approved by Means of Accreditation(a) An institution that has been granted an approval to operate by means of accreditation shall onlymake a substantive change in accordance with the institution's accreditation standards.(b) The institution shall notify the bureau of the substantive change on a form provided by the bureau.On April 23,2018, Bureau staff found that the Institution was advertising three programs notapproved by the Bureau: Bachelor of Science Health Science-to-Doctor of Medicine (BS-MD),Bachelor of Science-to-Doctor of Pharmacy (BS-PharmD), and Pre-Medical Post Baccalaureate(PMPB).On August 23,2018, the Bureau approved the PMPB Non-Degree program.As of July 18,2019, the Bureau has not received a Change of Educational Objectives Licensingapplication to obtain approval to offer the BS-MD and BS-PharmD program.Order of Abatemeini;;The Bureau orders the Institution to cease offering the following programs: BS-MD and BS-PharmD.Additionally, if the Institution would like to offer the progranis to the public, the Institution shallsubmit the Change of Educational Objectives Licensing application to the Bureau to obtain approvalto offer the BS-MD and BS-PharmD programs.Asse^smentitfFlnneThefinefor this violation is $1000.00Violation!5, CCR Section 74112(a)(h)(i)0)Ck)(])(m) - Uniform Data - Annual Report, Performance FactSheet(a) Format The formatfor the Performance FactSheet shall be in at least 12 pttype,in an easilyreadable font, with 1,15 line spacing and alltitiesand column headings shall be in bold 14 pt type,which shall also identify the program for which the Performance FactSheet pertains. The PerformanceFact Sheet shall contain all and only the information required or specifically permitted by sections94910and 94929.5 of the Code or this chapter. A separate Performance Fact Sheet shall be preparedfor eachprogram.(h) Completion Rates. Reporting of completion rates for an institution's Annual Report andPerformanceFact Sheet shall include, for ea(± educational program, the number ofstudents who began theprogramas defined in subdivision (d)(1) of this section, the number of students available for graduation,number Page 2 of 11 Citation: Assessment of Pine and Order of Abatement California Northstate University, LLC, Owner of Califomia Northstate UnlversiQr, LLC Institution Code: 41462826of on-time graduates, and completion rate(s). An optional table may be added to include completionrate data for students completing within 150% of the published program length. For an institutionreporting completion data pursuant to section 94929(b) of the Code, completion data shall beseparately reported for each program and the Performance Fact Sheet shall disclose, if true, that thecompletion data is being reported for students completing within 150% of the published programlength, and that data is not being separately reported for students completing the program within100%of the published program length. Programs that are more than one year in length which are reporting150% Completion Rate will provide four calendaryears of data.Completion rates shall be included in the Performance Fact Sheet in a format substantially similar tothechart below (dates, numbers, and other data shown are for example only):On-time Completion Rates (Graduation Rates) (includes data for the two calendaryears prior toreporting)Name ofEdticatiotialProgram (Program Length) Number of Students Students Available Number of On-time WhoCalendar Began the for On-time CompletionYear Graduation Graduates Rate Program20XX^ 10020XY !80Students Completing Within 150% of the Published ProgramLength Name of Educational Program (Program Length) Number of I c Students jstudents 450%Calendar lAvallablefor; iso^g iCompletionYear I Began the i Graduation Graduates i Rate i Program20XX 100 198 95 197%20XY 80 iso t78- i98%•20XZ 90 190 187 :97%*20YA 87 i85 174 187%Student's Initials: Date:Initial only after you have had sufficient timeto read and understand the information.(i) Job Placement Rates. Page 3 of 11 Citation: Assessment of Fine and Order of Abatement California Northstate University, LLC, Owner of California Northstate University, LLC Institution Code: 41462826(l)Any placement data required by sections 94910(b) and 94929,5(a) of the Code shall be reported forthe number ofstudents who began the program as defined in subdivision (d)(l) of this section for eachreported calendar year.(3) If the institution makes any claim related to preparing students for a job or regarding jobplacement,tiie list required by section 94910(f)(2) of the Code shall identify the employment positions by using theDetailed Occupation or six-digit level of the Standard Occupational Classification codes.(4) Placement rate shall be calculated as follows: the number ofgraduates employed in thefieldasdefined in section 94928(e)(1) of the Code in conjunction with section 74112(d)(3) divided by thenumber of graduates available for employment as defined in section 94928(d) of the Code.Job Placemen t rates and related disclosures shall be Included In the Performance Fact Sheet in aformat substantially similar to the charts.below, (dates, numbers, and other data shown are forexample only):lob Placement Rates (includes data for the two calendaryears prior txi reporting)Name of Educational Program (Program Length) 1 Number of I Students Placement Graduates I Graduates Rate% jWho Began Calendar jthe Number of jAvailable for i Employed in Employed In Year Graduates j Employment Ithe Field the Field I Program 2ffii0(^ jlOO 70 70 55 79% 20XY i80 55 55 20 '36%Student's Initials: Date:Initial only after you have had sufficient timeto read and understand the information.Gainful Employment Categories (includes datOfor the two calendaryears prior to reporting)Name of Educational Program (Program Length)Parttimevs. Full Time Employment Graduates Employed in the field 20Graduates Employed in the field at Total Graduates to 29 hours per week least 30 hours per week Employed in the Field20»< 15 40 5520XY 5 15 20 Page 4 of 11 Citation: Assessment of Pine and Order of Abatement Califomia Northstate University, LLC, Owner of Califomia Northstate University, LLC Institution Code: 41462826Single Position vs. Concurrent Aggregated Positions jGraduates Employed in the iGradiiates Employed In the field in jTotal Graduates Jfield jconcurrent aggregated positions iEmployed in the i in a single position iField20XX 52 15520XY 19 20Self-Employed/Freelance Positions ^Graduates Employed who are self-employed or working Total Graduates Employed in (freelance the-Fleld20XX 3 5520XY!5 20 L-Iristitutional Employment Graduates Employed in the field who are employed by the ITotal Graduates Employed In 1 institution, an employer owned by the institution, or ithe Field - 'i:;: 1 an employer who shares ownership with the 5
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Ms. Sanders is not a signatory to either the note or deed of trust. 6. Subsequently, in or about 2010, Mr. Sanders deeded an interest in the Property to Ms. Sanders and that deed was recorded with the Sacramento County Recorder's Office. 7. After Mr. Sanders filed for bankruptcy, the Deed of Trust became a Zombie Mortgage. That is, neither Harborside or any subsequent assignee of the Deed of Trust provided the monthly statements required under 15 USCA 1638 and 12 CFR 7026.7. 8. At some point in time, the note and Deed of Trust were purchased by ARCPE [1, LLC (“ARCPE”)] and Mr. Sanders apparently defaulted under the note. 9. However, even though Ms. Sanders was on title to the Property and ARCPE had constructive notice of her interest in the Property, she was not provided a Notice of Default and Intent to Sell and she was never served a Notice of Trustee Sale all in violation of Civil Code § 2924b. . . . .... 11. In or about 2024, ARCPE conducted a non-judicial foreclosure sale of the Property and purchased the Property under a credit bid. Page 1 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV008962: SANDERS vs ARCPE 1, LLC, A FLORIDA LIMITED LIABILITY COMPANY,08/08/2024 Hearing on Motion - Other to Stay Unlawful Detainer Action in Department 54 12. Thereafter, ARCPE served a notice to vacate on all occupants of the Property. This is when Ms. Sanders learned that the Property had been sold at a non-judicial foreclosure sale. . . . ARCPE is now seeking to evict Ms. Sanders from the Property.(FAC ¶¶ 5-12.)As referenced in Ms. Sanders’ allegations, ARCPE sought to obtain possession of the Propertyafter the foreclosure sale. It filed a verified complaint for unlawful detainer against Ms. Sanderson April 11, 2024. The unlawful detainer (“UD”) action is captioned ARCPE 1, LLC v. Sanders;its case number is 24UD02344.In the instant motion, Ms. Sanders seeks an order staying the UD action or, in the alternative,consolidating the two cases since this action concerns title and equitable rights in the sameproperty as the UD action.Ms. Sanders filed this motion on May 9, 2024. Since that time, default judgment has beenentered against her in the UD action. (See Judgment – Unlawful Detainer, July 22, 2024 in24UD02344.[1]) Review of the UD action’s register of actions reflects that Ms. Sanders demurredto the UD action on May 10, 2024. The Honorable Stephen Lau overruled the demurrer on June10, 2024, and ordered Ms. Sanders to file an answer by June 18, 2024 by 4:00 p.m. (OrderRegarding Demurrer, June 11, 2024 in 24UD02344.) 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The parties were attempting to negotiate a settlement between January and March 2024, but settlement discussions have since stalled, thus making it apparent that this motion for leave to amend is necessary. I understand that [Defendants’ counsel] is currently in trial, but I wanted to get this motion on the Court’s calendar as soon as possible. 15. No one is prejudiced by the filing of this Fifth Amended Complaint. No depositions of the parties have been taken as of yet. Good cause exists to allow Plaintiffs’ Complaint to be amended so that all material issues between the parties are tried at the same time.(Am. Decl. of Karen M. Goodman ISO Mot. ¶¶ 14-15.) The Court notes that trial was recentlycontinued in this case until December 3, 2024. (Minute Order July 19, 2024.)Plaintiffs shall file and serve a “clean” version (i.e., not redline) of the proposed Fifth AmendedComplaint attached as Exhibit B to the Amended Goodman Declaration[2] no later than August16, 2024. (Although not required by statute or court rule, Plaintiffs are directed to present theclerk with a copy of this ruling at the time they files the Fifth Amended Complaint to facilitate itsfiling.)//////This minute order is effective immediately. No formal order or other notice is required. (Code Page 1 of 3 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2019-00262592-CU-OR-GDS: Guy Reed vs. Jeff Will 08/08/2024 Hearing on Motion for Leave to File Fifth Amended Complaint in Department 54Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)[1] Plaintiffs’ request for judicial notice filed in support of the motion is unopposedand granted.[2] Plaintiffs may change the trial date listed on the proposed Fifth AmendedComplaint to reflect the new trial date.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. 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MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, ...
Aug 07, 2024 |Unlimited Civil (Breach of Contract/Warranty) |24CV006536
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54Tentative RulingDefendant Hyundai Motor America’s (“Hyundai”) motion to compel arbitration and stay actionis DENIED as follows.BackgroundPlaintiff Geoffrey Johnsen Malveaux (“Plaintiff”) filed this Lemon Law action against Hyundaiand San Leandro Hyundai Kai (“SLHK”) on July 18, 2023, arising out of his purchase of a 2020Hyundai Elantra (the “Subject Vehicle”) on October 6, 2020.Plaintiff alleges three causes of action against Hyundai for violations of the Song-BeverlyConsumer Warranty Act (the “Song-Beverly Act”): (1) breach of express warranty; (2) breach ofimplied warranty; and (3) violation of section 1793.2 of the Song-Beverly Act. Plaintiff allegesthat the Subject Vehicle came with express and implied warranties from Hyundai. (Complaint, ¶¶9, 10.) Plaintiff alleges the Subject Vehicle was delivered with serious defects andnonconformities to warranty, including electrical, structural, and engine defects. (Complaint, ¶11.) Plaintiff alleges a negligent repair cause of action against SLHK. (Complaint, ¶¶ 59-63.)Plaintiff has not sued the selling dealership.The Subject Vehicle came with a copy of Hyundai’s Owner’s Handbook & WarrantyInformation (the “Warranty Booklet”), which contains an arbitration agreement that states, inpertinent part: BINDING ARBITRATION FOR CALIFORNIA VEHICLES ONLY PLEASE READ THIS SECTION IN ITS ENTIRETY AS IT AFFECTS YOUR RIGHTS If you purchased or leased your Hyundai vehicle in the State of California, you and we each agree that any claim or disputes between us (including between you and any of our affiliated companies) related to or arising out of your vehicle purchase, use of your vehicle, the vehicle warranty, representation in the warranty, or duties contemplated under the warranty . . . shall be resolved by binding arbitration . . . even if the claim is initially filed in a court of law.(Declaration of Jordan A. Willette (“Willette Decl.”) ¶ 3, Ex. B at p. 13.)When Plaintiff purchased the Subject Vehicle, he also entered into a contract with the sellingdealership (Sacramento Hyundai) titled “Retail Installment Sale Contract – Simple FinanceCharge (With Arbitration Provision)” (the “RISC”). (Willette Decl. ¶ 2, Exh. A.) The RISC Page 1 of 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54contains an arbitration agreement that states, in part: Any claim or dispute, whether in contract, tort or statute... between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action.(Willette Decl. Ex. A, p. 7.)Hyundai moves to compel arbitration pursuant to the Warranty Booklet on the groundsPlaintiff’s claims are based upon Hyundai’s warranty obligations. In the alternative, Hyundaialso moves pursuant to the RISC on the grounds of equitable estoppel, citing to Felisilda v. FCAUS LLC (2020) 53 Cal.App.5th 486.Legal StandardCalifornia has a public policy which encourages arbitrations and courts have repeatedly approvedand upheld arbitration clauses. (See, e.g., Moncharsh v. Heily & Blasé (1992) 3 Cal.4th 1, 9[California has a “strong public policy in favor of arbitration as a speedy and relativelyinexpensive means of dispute resolution”]; Madden v. Kaiser Foundation Hospitals (1976) 17Cal.3d 699, 707 [California’s statutory scheme “evidence[s] a strong public policy in favor ofarbitrations ... [as a] favored method of resolving disputes”]; Gross v. Recabaren (1988) 206Cal.App.3d 771, 775; Berman v. Dean Witter Co. (1975) 44 Cal.App.3d 999, 1003; Greenfield v.Mosley (1988) 201 Cal.App.3d 735, 744.)“Under both federal and state law, the threshold question presented by a petition to compelarbitration is whether there is an agreement to arbitrate.” (Sparks v. Del Mar Child and FamilySvcs. (2012) 207 Cal.App.4th 1511, 1517.) “Absent a clear agreement to submit disputes toarbitration, courts will not infer that the right to a jury trial has been waived.” (Id. at 1518.)“In a petition to compel arbitration, the party seeking to compel arbitration bears the burden ofproving the existence of a valid arbitration agreement by a preponderance of the evidence.[Citation.] The party opposing the petition bears the burden of proving by a preponderance of theevidence any fact necessary to its defense, including that an arbitration provision is invalid orotherwise not enforceable.” (Brinkley v. Monterey Financial Servs., Inc. (2015) 242 Cal.App.4th314, 325.)A written agreement to submit a controversy to arbitration is valid, enforceable, and irrevocableconsistent with standard contract principles. (Code Civ. Proc., § 1281.2; Badie v. Bank of Page 2 of 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54America (1998) 67 Cal.App.4th 779, 787.) Included among these is the long-accepted rule thatambiguities in an arbitration agreement, as in any other type of contract, must be interpretedagainst the drafting party. (Victoria v. Superior Court (1985) 40 Cal.3d 734, 739, 745-747.)Non-signatories generally may not compel contractual arbitration. (See JSM Tuscany, LLC v.Superior Court (2011) 193 Cal.App.4th 1222, 1236-1237.) However, there are exceptions wherearbitration agreements may be enforced by a non-signatory. Nonparties asserting a party’s rightsmust show some basis for extending the agreement to them. (Westlye v. Look Sports, Inc. (1993)17 Cal.App.4th 1715, 1728.) Further, a "third party" non-signatory may enforce an arbitrationagreement only through the grounds available under state contract law, such as agency, alter ego,or intended benefit. (See Arthur Andersen LLP v. Carlisle (2009) 556 U.S. 624, 631.) UnderCalifornia law, a non-signatory may assert a third-party beneficiary theory (see, e.g., Thornton v.Career Training Center, Inc. (2005) 128 Cal.App.4th 116). Non-signatories may also enforcearbitration agreements through the doctrine of equitable estoppel. (See, e.g., MolecularAnalytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696 [claims assertedagainst non-signatory "intimately intertwined" with contract containing arbitration clause].).Discussion[1]A. Warranty BookletHyundai argues Plaintiff’s claims against it are subject to arbitration pursuant to the WarrantyBooklet, which includes the arbitration agreement set forth above and which also sets forth thefollowing language: “This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us (including our affiliated companies) relating to or arising out of your vehicle purchase, use of your vehicle, or the vehicle warranty subject to arbitration to the maximum extent permitted by law. .... IF YOU PURCHASED OR LEASED YOUR VEHICLE IN CALIFORNIA, YOUR WARRANTY IS MADE SUBJECT TO THE TERMS OF THIS BINDING ARBITRATION PROVISION. BY ACCEPTING BENEFITS UNDER THIS WARRANTY, INCLUDING HAVING ANY REPAIRS PERFORMED UNDER WARRANTY, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, PLEASE CONTACT US AT OPT-OUT@HMAUSA.COM WITHIN THIRTY (30) DAYS OF YOUR PURCHASE OR LEASE TO OPT-OUT OF THIS ARBITRATION PROVISION. Page 3 of 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54(Willette Decl., Ex. B pp. 13-14.)Hyundai argues: “Given that Plaintiff purchased his vehicle in California, is bringing this actionpursuant to [the] warranty, and ha[s] alleged that repairs have been performed under thewarranty, it is clear the arbitration provision applies.” (Mem. of P.&A. ISO Mot. (“MPA”) 8:15-18.) Hyundai further argues that it may compel arbitration under the doctrine of equitableestoppel because Plaintiff is asserting claims directly based upon the warranty. (MPA 8:19-23.)The Court finds that Hyundai has failed to show an agreement to arbitrate exists pursuant to theWarranty Booklet. Neither Hyundai, nor Plaintiff, signed the Warranty Booklet. In fact, there isno signature line anywhere for any party to accept its terms. The Warranty Booklet simplyexplains the terms of the warranty, with an opt out option if the buyer so chooses. In Norcia v.Samsung Telecommunications America, LLC (9th Cir. 2017) 845 F.3d 1279, the Ninth Circuitfound that an arbitration provision in Samsung’s warranty handbook with an opt out provisionwas not enforceable as to the plaintiff. After analyzing California law, the Court found that theplaintiff did not expressly assent to any agreement in the brochure. Nor did [plaintiff] sign the brochure or otherwise act in a manner that would show 'his intent to use his silence, or failure to opt out, as a means of accepting the arbitration agreement. [citation.] Under California law, an offeree's inaction after receipt of an offer is generally insufficient to form a contract. [citation]. Therefore, Samsung’s offer to arbitrate all disputes with [plaintiff] “cannot be turned into an agreement because the person to whom it is made or sent makes no reply, even though the offer states that silence will be taken as consent,” [citation], unless an exception to this general rule applies.(Norcia, supra, at p. 1286.) The Ninth Circuit further reasoned, "Nor would a reasonable personunderstand that receiving the seller's warranty and failing to opt out of an arbitration provisioncontained within the warranty constituted assent to a provision requiring arbitration of all claimsagainst the seller, including claims not involving the warranty." (Id. at p. 1290.) The sameanalysis applies here. The Warranty Booklet does not operate as a contract with an enforceablearbitration agreement.Further, Plaintiff have presented evidence that he never signed the Warranty Booklet, was nevergiven notice by Hyundai or the selling dealership that an arbitration provision existed inside theWarranty Booklet, or that he was required to opt-out of this arbitration agreement within 30 daysof the purchase. He only became aware of the arbitration provision by this instant motion tocompel arbitration. (Pl.’s Decl. ¶¶ 6, 7.) Plaintiff also did not rely on the Warranty Booklet in Page 4 of 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54asserting his claims and, instead, relied on the representations made by the selling dealership andpublicly available information concerning Hyundai’s express warranties. (Id. at ¶ 8.)B. The RISCIn the alternative, Hyundai moves to compel arbitration pursuant to the RISC on the grounds ofequitable estoppel, citing to Felisilda, supra, 53 Cal.App.5th 486. Hyundai is not a party to theRISC or the arbitration provision. However, Hyundai contends they have standing to enforce theagreement because Plaintiff’s claims are inextricably intertwined with the underlying contractualobligations and arise out of the purchase of the Subject Vehicle.Plaintiff relies on Ochoa v. Ford Motor Company (Ford Motor Warranty Cases) (2023) 89Cal.App.5th 1324, which created a split of authority regarding a non-signatory manufacturer’sability to compel arbitration in Lemon Law actions, as well as Kielar v. Hyundai Motor America(2023) 94 Cal.App.5th 614, in which the Third District Court of Appeal joined in recent decisionsthat disagreed with Felisilda and concluded the trial court erred in ordering arbitration. Asdiscussed further below, the Court opts to follow Ochoa and Kielar.In Felisilda, the plaintiffs brought Lemon Law claims against the vehicle manufacturer and itscertified dealer. The trial court ordered the plaintiffs’ claims against both defendants toarbitration, even though the manufacturer was not a party to the sales contract that contained thearbitration provision at issue. In affirming the trial court, the Felisilda court concluded that thearbitration provision applied to claims against the manufacturer based on equitable estoppelbecause the plaintiffs’ claims against the manufacturer were based solely on the warrantiescontained in the sales contract. The court stated: “The Felisildas’ claim against FCA directly relates to the condition of the vehicle that they allege to have violated warranties they received as a consequence of the sales contract. Because the Felisildas expressly agreed to arbitrate claims arising out of the condition of the vehicle – even against third party nonsignatories to the sales contract – they are estopped from refusing to arbitrate their claim against FCA. Consequently, the trial court properly ordered the Felisildas to arbitrate their claims against FCA.”(Felisilda, supra, 53 Cal.App.5th at p. 497.)The Ochoa case involved several Lemon Law actions against only the manufacturer that wereconsolidated into one action. In affirming the trial court’s denial of the manufacturer’s motion tocompel arbitration, the Ochoa court expressly declined to follow Felisilda and concluded thatequitable estoppel did not apply because the plaintiffs’ claims were not founded in the salecontract. Specifically, in its discussion of Felisilda, the Ochoa court stated: Page 5 of 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54 That the Felisilda plaintiffs and the dealer agreed in their sale contract to arbitrate disputes between them about the condition of the vehicle does not equitably estop the plaintiffs from asserting FCA has no right to demand arbitration. Equitable estoppel would apply if the plaintiffs had sued FCA based on the terms of the sale contract yet denied FCA could enforce the arbitration clause in that contract. (Felisilda, supra, 53 Cal.App.5th at pp. 495-496.) That is not what the plaintiffs did in Felisilda.(Ochoa, supra, 89 Cal.App.5th at p. 1334.)The Ochoa court also rejected the Felisilda court’s broad interpretation of language in thearbitration agreement related to claims against third parties, specifically the provision thatpermitted arbitration of any claim or dispute arising out of the “ ‘purchase or condition of thisvehicle, the cont[r]act or any resulting transaction or relationship (including any suchrelationship with third parties who do not sign this contract) ... .’ ” (Ochoa, supra, 89Cal.App.5th at p. 1334.) This language was found in the arbitration agreements in both Felisildaand Ochoa, and is identical to the language in the arbitration provision in the RISC in this case.Regarding this language, the Ochoa court stated, “We do not read this italicized language asconsent by the purchaser to arbitrate claims with third party nonsignatories. Rather, we read it asa further delineation of the subject matter of claims the purchasers and dealers agreed toarbitrate.” (Id. at pp. 1334-1335.)In concluding that the plaintiff’s Lemon Law claims were not founded in the sale contract, theOchoa court noted that although many of the plaintiffs referred to the contract in their complaintsand even occasionally attached it as an exhibit, “no plaintiffs alleged violations of the salecontracts’ express terms. Rather, plaintiffs’ claims are based on FMC’s statutory obligations toreimburse consumers or replace their vehicles when unable to repair in accordance with itswarranty. ... Not one of the plaintiffs sued on any express contractual language in the salecontracts.” (Ochoa, supra, 89 Cal.App.5th at p. 1335.) The Ochoa court also noted that the salecontracts did not contain any warranties, finding that “the substantive terms of the sale contractsrelate to sale and financing and nothing more.” (Ibid.) The court also rejected the manufacturer’sargument that California law treats all warranty claims as contract claims, citing to Greenman v.Yuba Power Products, Inc. (1963) 59 Cal.2d 57 and Corporation of Presiding Bishop of Churchof Jesus Christ of Latter Day Saints v. Cavanaugh (1963) 217 Cal.App.2d 492 (Cavanaugh).Ultimately, the Ochoa court concluded: But, contrary to FMC’s assertion, it does not “naturally follow” from any contractual character of manufacturer warranty claims that they inhere in a retail sale contract containing no warranty terms. Following Greenman, supra, 69 Cal.2d 57, and Cavanaugh, supra, 217 Cal.App.2d 492, independent manufacturer warranties are not part of, but are independent from, retail sale contracts. Page 6 of 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54 Again, the “fundamental point” of using equitable estoppel to compel arbitration is to prevent a party from taking advantage of a contract’s substantive terms while avoiding those terms requiring arbitration. (Felisilda, supra, 53 Cal.App.5th at p. 496.) Plaintiffs’ claims in no way rely on the sale contracts. Equitable estoppel does not apply.(Ochoa, supra, at p. 1336.)The Ochoa opinion was published on April 4, 2023. On July 19, 2023, the California SupremeCourt granted review while noting that Ochoa “may be cited, not only for its persuasive value,but also for the limited purpose of establishing the existence of a conflict in authority that wouldin turn allow trial courts to exercise discretion under Auto Equity Sales, Inc. v. Superior Court(1962) 57 Cal.2d 450, 456 [20 Cal. Rptr. 321, 369 P.2d 937], to choose between sides of anysuch conflict.” (Ochoa v. Ford Motor Co. (In re Ford Motor Warranty Cases) (July 19, 2023,S279969) 2023 Cal. LEXIS 4235.)Given the conflict between Felisilda and Ochoa and the Supreme Court’s statement in itsopinion granting review of Ochoa, the Court has discretion to choose which case to follow. Here,the Court follows Ochoa. The Court notes that this case is factually nearly identical to Ochoa,including the language of the respective arbitration clauses, the lack of warranties in therespective sale contract, and the fact that the selling dealership is not a party to this action.Additionally, like the plaintiffs in Ochoa, Plaintiff’s claims are not founded on the RISC, asPlaintiff does not allege any breach of the RISC’s terms. Instead, Plaintiff’s claims “are based on[Hyundai]’s statutory obligations to reimburse consumers or replace their vehicles when unableto repair in accordance with its warranty.” (Ochoa, supra, at p. 1335.) Indeed, Plaintiff has not“sued on any express contractual language in the sale contract[].” (Ibid.) (See generally,Complaint.)The choice to follow Ochoa is also supported by the Third District Court of Appeal’s recentdecision in Kielar, which also declined to follow Felisilda. Kielar involved a writ of mandatechallenging the trial court’s decision to grant Hyundai Motor America’s motion to compelarbitration of Mr. Kielar’s claims under the Song-Beverly Act. The Kielar court concluded thetrial court erred in ordering arbitration because Kielar’s claims did not rely on any terms of theRISC and, thus, equitable estoppel did not apply to the situation. (Kielar, supra, 94 Cal.App.5that p. 620.) The Kielar court stated: “Kielar's complaint alleges ‘Hyundai issued a writtenwarranty.’ This warranty was not part of his sales contract with the dealership. Indeed, the salescontract acknowledges this separate warranty and disclaims any implied warranties by thedealership[.]” (Ibid.) Thus, the Kielar court concluded the manufacturer’s warranties thataccompany the sale of a vehicle without regard to the terms of the RISC between the purchaserand the dealer are independent of the RISC. (Ibid.) Lastly, the Kielar court found, similar toOchoa, that the parenthetical language in the arbitration provision referring to non-signatorythird parties was only a delineation of the subject matter of claims the purchasers and dealers Page 7 of 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54agreed to arbitrate. (Ibid.)Based on the foregoing, the Court concludes Hyundai does not have standing to enforce theRISC’s arbitration provision as a non-signatory under an equitable estoppel theory. Hyundaidoes not argue that is has standing under any other theory.C. ConclusionFor the stated reasons, Hyundai’s motion to compel arbitration is DENIED.The minute order is effective immediately. No formal order pursuant to California Rules ofCourt, rule 3.1312, or further notice is required.[1] Plaintiff’s request for judicial notice is granted. Plaintiff’s objections to evidence areoverruled.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED. Page 8 of 9 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 24CV006536: MALVEAUX vs HYUNDAI MOTOR AMERICA, A CALIFORNIA CORPORATION, et al. 08/08/2024 Hearing on Motion to Compel Arbitration and Stay Action in Department 54Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 9 of 9
Ruling
34-2022-00329242-CU-OE-GDS
Aug 07, 2024 |Unlimited Civil (Other Employment Complaint Case) |34-2022-00329242-CU-OE-GDS
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00329242-CU-OE-GDS: Gurmail Kaur vs. Kamal Chand 08/08/2024 Hearing on Demurrer in Department 54Tentative RulingPlaintiff Gurmail Kaur’s (“Plaintiff”) demurrer to the 19th and 20th affirmative defenses allegedin Defendants’ Answer to the First Amended Complaint (“FAC”) is SUSTAINED with leave toamend, as follows.BackgroundThis action arises out of work Plaintiff performed for the Defendant Sacramento Bhartiya SabhaChurch Corporation dba Sacramento Laxmi Narayan Temple (the “Temple”). Plaintiff filed theoriginal complaint in November 2022 against the Temple and individual Defendants KamalChand, Surendra Singh, and Ablash Singh (collectively “Defendants”). The Complaint allegedcauses of action for several Labor Code (wage and hour) violations along with humantrafficking, financial elder abuse, breach of oral contract, intentional infliction of emotionaldistress, and false light.Following discovery and the depositions of Plaintiff and the individual Defendants, Plaintiff fileda motion for leave to amend in February 2024 to allege additional causes of action for maliciousprosecution and abuse of process, based on the individual Defendants conduct in evictingPlaintiff from the Temple’s housing where she had been living. That motion was unopposed andgranted, and Plaintiff filed the operative FAC on April 17, 2024.Defendants filed an Answer to the FAC on May 17, 2024 (“Answer”). The Answer allegestwenty affirmative defenses. Plaintiff demurs to the 19th and 20th affirmative defenses, whichstate: AS AND FOR AN NINETEENTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE Defendant alleges that as volunteer officers or directors, any liability is limited pursuant to Civil Code section 5800. AS AND FOR AN TWENTYTH, SEPARATE AND DISTINCT AFFIRMATIVE DEFENSE Defendant alleges that they are entitled to immunity as set forth in California Corporate Code section 7231.(Answer 5:16-22.)Legal Standard“Code of Civil Procedure section 431.30, subdivision (b) provides that an answer to thecomplaint ‘shall contain,’ in addition to a ‘general or specific denial’ of the complaint’sallegations, ‘[a] statement of any new matter constituting a defense.’” (Harris v. City of Santa Page 1 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00329242-CU-OE-GDS: Gurmail Kaur vs. Kamal Chand 08/08/2024 Hearing on Demurrer in Department 54Monica (2013) 56 Cal.4th 203, 239.) “The phrase ‘new matter’ refers to something relied on by adefendant which is not put in issue by the plaintiff. Thus, where matters are not responsive toessential allegations of the complaint, they must be raised in the answer as ‘new matter.’” (Dep’tof Finance v. City of Merced (2019) 33 Cal.App.5th 286, 294 [internal quotation marks andcitations omitted].) “Such ‘new matter’ is also known as ‘an affirmative defense.’” (Ibid.[internal quotation marks and citations omitted].) “Where, however, the answer sets forth factsshowing some essential allegation of the complaint is not true, such facts are not ‘new matter,’but only a traverse.” (State Farm Mut. Auto. Ins. Co. v. Superior Court (1991) 228 Cal.App.3d721, 725.)A party may file a demurrer to an answer on the grounds that it fails to state facts sufficient toconstitute a defense. (Code Civ. Proc., § 430.20, subd. (a).) A demurrer to an answer follows thesame general rules as a demurrer to a complaint. (South Shore Land Co. v. Petersen (1964) 226Cal.App.2d 725, 732.) Thus, only the contents on the face of the answer are considered, andfactual allegations are accepted as true, butlegal conclusions are not. (Ibid.)Affirmative defenses must be pled in the same fashion, and with the same specificity, as a causeof action in a complaint. (Dep’t of Finance v. City of Merced, supra, 33 Cal.App.5th at p. 294;FPI Development, Inc. vs. Nakashima (1991) 231 Cal.App.3d 367, 384; Mountain AirEnterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 756.) The critical pleadingrequirement is that the answer alleges the facts on which it is founded. (See California Trust Co.v. Gustason (1940) 15 Cal.2d 268, 273.)As with a cause of action, an affirmative defense must be pleaded with ultimate facts. (5 WitkinCal. Procedure (2024), Pleading, § 1122.) Terse legal conclusions will not generally survivedemurrer. (FPI Development, Inc., supra, 231 Cal.App.3d at p. 384; Quantification SettlementAgreement Cases (2011) 201 Cal.App.4th 758, 813.)DiscussionPlaintiff demurs to the 19th and 20th affirmative defenses on the basis that they “fail to statefacts sufficient to constitute a defense and are uncertain.” (Demurrer 2:3-5.)In essence, Plaintiff argues that these affirmative defenses are conclusory and lack any facts tosupport their application. (See, e.g., Mem. of P.&A. ISO Demurrer (“MPA”) 6:17-7:2, 8:2-8.)Defendants opposes the demurrer, in part. They state that the 19th affirmative defense “wasinadvertently included in the Answer” and concede that it should be stricken. (Opp’n 5:9-14.)However, they respond that the 20th affirmative defense is not a “new matter” and, therefore,does not need to be plead with any further specificity. (Opp’n 5:16-6:15.) Page 2 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00329242-CU-OE-GDS: Gurmail Kaur vs. Kamal Chand 08/08/2024 Hearing on Demurrer in Department 54The Court disagrees. Corporations Code section 7231 is referred to as a statutory “businessjudgment rule,” which sets forth the “statutory standard of care” that “applies to parties(particularly shareholders and creditors) to whom . . . directors owe a fiduciary obligation.”(Frances T. v. Village Green Owners Ass’n (1986) 42 Cal.3d 490, 506; Ritter & Ritter, Inc. v.The Churchill Condominium Ass’n (2008) 166 Cal.App.4th 103, 122 [referring to CorporationsCode section 7231 as “a statutory business judgment rule”].) Business judgment rules are viewedas affirmative defenses. (See, e.g., Ekstrom v. Marquesa at Monarch Beach HOA (2008) 168Cal.App.4th 1111, 1123 [“Just as the corporate business judgment rule, which is a rule of judicialdeference to good faith management decisions of corporate boards, is a defense (citation), so toois the rule of judicial deference to decisions of homeowner association boards . . . .”].)Accordingly, Defendants were required to allege facts to support its application. However, theAnswer fails to allege any facts to support the defense’s applicability in this case. Defendantsallege simply that “they are entitled to immunity as set forth in California Corporate Codesection 7231.” This allegation fails to state sufficient facts to set forth the defense.For the stated reasons, Plaintiff’s demurrer is sustained in its entirety. Leave to amend is grantedas to the 20th affirmative defense since this is the first challenge to Defendants’ Answer.Defendants may file and serve a First Amended Answer to the FAC no later than August 19,2024. Although not required by statute or court rule, Defendants are directed to present the clerkwith a copy of this ruling at the time they file the First Amended Answer to facilitate its filing.This minute order is effective immediately. No formal order or other notice is required. (CodeCiv. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely either Page 3 of 4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2022-00329242-CU-OE-GDS: Gurmail Kaur vs. Kamal Chand 08/08/2024 Hearing on Demurrer in Department 54telephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 4 of 4
Ruling
34-2021-00311890-CU-PO-GDS
Aug 07, 2024 |Unlimited Civil (Other Personal Injury/Propert...) |34-2021-00311890-CU-PO-GDS
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00311890-CU-PO-GDS: Mayra Barrera vs. Page Hudson 08/08/2024 Hearing on Motion to Quash Deposition Subpoena for Production of Business Records in Department 54Tentative RulingThe Notice of Motion does not provide notice of the Court’s tentative ruling system, as requiredby Local Rule 1.06(D). Moving counsel is directed to contact opposing counsel forthwith toadvise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If moving counselis unable to contact opposing counsel prior to the hearing, they shall be available at the hearingin the event opposing counsel appears without following the procedures set forth in Local Rule1.06(B).Plaintiff Mayra Barrera’s (“Plaintiff”) motion to quash Defendant Dr. Jeffrey A. Saladin, DentalCorporation dba Children’s Choice Pediatric Dental Care’s (“Defendant”) Subpoena forProduction of Business Records served on Chartwell Staffing Solutions (“CSS”) is ruled upon asfollows.BackgroundThis is a personal injury action arising out of a slip and fall incident that occurred on January 6,2020, when Plaintiff was present at Defendant’s dental clinic. The operative First AmendedComplaint alleges causes of action for negligence, premises liability, and loss of consortium.Plaintiff claims she sustained significant injuries to her head, neck, left shoulder, back, and kneeas a result of the incident. (See Pl.’s Resp. to Form Interrogatories, Set One (“FI Resp.”), Nos.6.1-6.7, attached as Ex. A to Opp’n; Pl.’s Supp. Resp. to Form Interrogatories, Set One (“Supp.FI Resp.”), No. 6.7, attached as Ex. B to Opp’n.) Plaintiff also claims loss of income. (FI Resp.No. 8.1; Supp. FI Resp. Nos. 2.6, 8.2-8.8.) Her discovery responses state that she was notemployed at the time of the incident, that she worked from August – November of 2020 at CSSas a Warehouse Assistant, and that she has not worked since November 2020. (Supp. FI Resp.Nos. 2.6, 8.2, 8.4-8.6.) Prior to the incident, Plaintiff’s last employment had been in 2015. (Supp.FI Resp. No. 8.3.) Plaintiff claims she will lose income in the future as a result of the incidentbecause her “severe spinal and knee injuries will affect her ability to work.” (Supp. FI Resp. No.8.8.) Plaintiff did not provide a substantive response to Form Interrogatory No. 8.7, which askedher to state the total income she has lost to date as a result of the incident (and how the amountwas calculated). (Supp. FI Resp. No. 8.7.) Plaintiff has not provided any documents to supporther wage loss claim. (Decl. of Dora Gamero ISO Opp’n (“Gamero Decl.”) ¶ 5.)Plaintiff’s supplemental responses to Defendant’s Form Interrogatories, set one, disclosed thatPlaintiff was involved in an incident at CSS, which caused pain to her low back. (Gamero Decl. ¶8; Supp. FI Resp. No. 10.3.) “As discovery has continued, Defendant[] became aware thatPlaintiff’s incident at [CSS] was . . . significant,” and “caused her to seek emergency care andcaused her to take time off work.” (Gamero Decl. ¶ 9; see also medical records attached as Ex. Cto Opp’n.) Page 1 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00311890-CU-PO-GDS: Mayra Barrera vs. Page Hudson 08/08/2024 Hearing on Motion to Quash Deposition Subpoena for Production of Business Records in Department 54In June 2023, Defendant served the subject Deposition Subpoena for Production of BusinessRecords to the Custodian of Records for CSS (“Subpoena”). The Subpoena seeks: Any and all documents and records, and all writings, including, but not limited to, employment, payroll and applications for employment, work absence and incident reports, personnel records, pre-employment exam records and progress reports, pertaining to [Plaintiff’s] employment.(Subpoena, attached as Ex. A to Mot.) Plaintiff’s counsel was served with a copy of theSubpoena on June 18, 2024. (Decl. of Justin Farahi ISO Mot. ¶ 4.)DiscussionPlaintiff moves to quash the Subpoena on the basis that it “seeks employment records inviolation of [her] right to privacy.” (Not. of Mot. & Mot. (“Mot.”) 2:4-8, 4:25.) Plaintiff arguesthat the Subpoena “is extremely overbroad in light of the privacy rights implicated.” (Id. at 5:16.)In the alternative, Plaintiff states the Court should issue a protective order effectively limiting theSubpoena “so that [it] would cover only those records directly relevant to the Incident and thelegal matter of the lawsuit.” (Id. at 6:3-6.) Plaintiff also seeks monetary sanctions. (Id. at 7:3-6,7:11-13.)Defendant[1] opposes the motion, rejoining that the Subpoena is “directly relevant to the issues inthe instant Litigation and [is] required so that Defendant[] can fully assess Plaintiff’s damages.”(Opp’n 2:4-6.) Defendant argues: Given the uncertainty of Plaintiff’s wage loss claim and her failure to provide proper and adequate responses [to written discovery], Defendant[] had no option but to subpoena Plaintiff’s employment and wage loss records. Also, given Plaintiff’s work-related injury, which is the likely cause of her wage loss (and could have contributed to her damages), it is Defendant’s position that any work-related document is relevant, as Defendant[ is] entitled to know if there are any additional causes/reasons for Plaintiff’s wage loss. (Gamero Decl. ¶ 12). Lastly, given that Plaintiff’s employment with [CSS] began in August 2020, seven (7) months after the incident, any possible invasion into Plaintiff’s privacy is very minimal. As such, Defendants respectfully request that Plaintiff’s motion to quash be denied. (Gamero Decl. ¶ 13).(Opp’n 4:15-23.) Page 2 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00311890-CU-PO-GDS: Mayra Barrera vs. Page Hudson 08/08/2024 Hearing on Motion to Quash Deposition Subpoena for Production of Business Records in Department 54Pursuant to Code of Civil Procedure section 1987.1, the Court: [M]ay make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon such terms or conditions as the court shall declare including protective orders. In addition, the court may make any other order as may be appropriate to protect the parties, the witness, the consumer, or the employee from unreasonable demands, including unreasonable violations of the right of privacy of the witness, consumer, or employee.“ ‘In general, “any party may obtain discovery regarding any matter, not privileged, that isrelevant to the subject matter involved in the pending action or to the determination of anymotion made in that action, if the matter either is itself admissible in evidence or appearsreasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., §2017.010.)’ [Citation.]” (County of Los Angeles v. Super. Ct. (2021) 65 Cal.App.5th 621, 638-639.) However, “ ‘[e]ven if information is otherwise discoverable, it may be protected by aconstitutional ... privilege ... [including] ... the right to privacy ... .’ [Citation.]” (Id. at p. 639.)“The California Constitution (Cal Const art I, § 1) creates ‘a zone of privacy’ that protectsagainst unwarranted compelled disclosure of private or personal information and extends to aperson’s confidential financial affairs as well as to the details of an individual’s personal life.[Citations.] [¶] This right to privacy protects an individual’s reasonable expectation of privacyagainst a serious invasion. [Citations.]” (Cal. Judges Benchbook: Civ. Proceedings – Discovery(Cal. CJER Sept. 2022 Update) § 4.140.) Like medical records, a person’s employment recordsare within the constitutionally protected zone of privacy. (Board of Trustees v. Superior Court(1981) 119 Cal.App.3d 516, 528-530, disapproved on other grounds by Williams v. SuperiorCourt (2017) 3 Cal.5th 557.)Unlike an evidentiary privilege, a person’s constitutionally-protected right to privacy “isqualified, not absolute. In each case, the court must carefully balance the right of privacy againstthe need for discovery [citation].” (Weil & Brown, Cal. Practice Guide: Civ. Procedure BeforeTrial (The Rutter Group 2024 update) ¶ 8:294 [citing cases].) “The showing required toovercome the protection depends on the nature of the privacy right asserted; in some cases, asimple balancing test is sufficient, while in others, a compelling interest must be shown.” (Ibid.)“Only obvious invasions of interests fundamental to personal autonomy must be supported by acompelling interest.” (Williams, supra, 3 Cal.5th at p. 557.)“In determining whether . . . discovery . . . would violate state constitutional privacy rights,[courts] must apply the framework the California Supreme Court established in Hill v NationalCollegiate Athletic Ass'n (1994) 7 C4th 1, 26 CR2d 834.” (Cal. Judges Benchbook, supra, at ¶4.146 [citing County of Los Angeles, supra, at pp. 629, 640].) Under Hill, a party who alleges an Page 3 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00311890-CU-PO-GDS: Mayra Barrera vs. Page Hudson 08/08/2024 Hearing on Motion to Quash Deposition Subpoena for Production of Business Records in Department 54invasion of must establish (1) a legally protected privacy interest, (2) an objectively reasonableexpectation of privacy in the circ*mstances, and (3) conduct by the defendant that constitutes aserious invasion of privacy. (Mathews v Becerra (2019) 8 Cal.5th 756, 769.) The party seekingdiscovery of the subject information “may prevail by negating any of these three elements or bypleading and proving that the invasion of privacy is justified because it substantively furthers oneor more countervailing interests. The [party asserting a privacy invasion] may then rebut the . . .assertion of countervailing interests by showing that there are feasible and effective alternativesto [obtain the information] that have a lesser impact on [their] privacy interests.” (Cal. JudgesBenchbook, supra, at ¶ 4.416 [citing Mathews, supra, and Hill, supra].)“The court must then ‘carefully balance’ the interests involved: i.e., the claimed right of privacyversus the public interest in obtaining just results in litigation.” (Weil & Brown, supra, at ¶ 8:323[citing cases] [emphasis omitted].) “ ‘The court must consider the purpose of the informationsought, the effect that disclosure will have on the affected persons and parties, the nature of theobjections urged by the party resisting disclosure and availability of alternative, less intrusivemeans for obtaining the requested information. [Citation.]’ ” (SCC Acquisitions, Inc. v. SuperiorCourt (2015) 243 Cal.App.4th 741, 754-755.) “ ‘Based on an application of these factors, themore sensitive the nature of the personal information that is sought to be discovered, the moresubstantial the showing of the need for the discovery that will be required before disclosure willbe permitted. [Citations.]’ [Citation.]” (Id. at p. 755.)“The party asserting a privacy interest has the burden of establishing its extent and theseriousness of the prospective invasion. Against this showing, the judge must weigh thecountervailing interests the opposing party identifies.” (Cal. Judges Benchbook, supra, at § 4.146[citing Williams, supra, 3 Cal. 5th at p. 557].)Applying these legal standards, the Court finds that the Subpoena does not improperly intrudeupon Plaintiff’s right to privacy. Although Plaintiff has a legally protected privacy interest in heremployment records, Defendant’s proffered interests in favor of disclosure outweigh her right toprivacy in this case based upon the motion record. The scope of records at issue is minimized byPlaintiff’s length of employment with CSS (4 months). Also, Defendant has shown the difficultyit has encountered in trying to obtain information concerning Plaintiff’s wage loss claim by lessintrusive means.For the stated reasons, Plaintiff’s motion to quash is denied.[2] Defendant’s request for monetarysanctions (Opp’n 9:6), is unsupported by evidence and is denied.This minute order is effective immediately. No formal order or other notice is required.(Code Civ. Proc., § 1019.5; Cal. Rules of Court, rule 3.1312.)[1] The Court notes that the opposition is filed by Defendant and co-defendant CC Page 4 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00311890-CU-PO-GDS: Mayra Barrera vs. Page Hudson 08/08/2024 Hearing on Motion to Quash Deposition Subpoena for Production of Business Records in Department 54Amulet Management, LLC. However, the Subpoena was issued only by Defendant. CCAmulet Management, LLC has not shown how it has standing to oppose the motion.Therefore, the Court limits its discussion to the opposition as made by Defendant.[2] The Court notes that Plaintiff states in her moving papers that compliance withthe Subpoena is impossible because “Chartwell Staffing Solutions, with address at 1300Oliver Road, Suite 280, Fairfield, CA 94534, no longer exists.” (Separate Statement ISOMot. 2:17-21.) To the extent this statement is true, Plaintiff has not shown how it is abasis for her to seek to quash the Subpoena.NOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- Page 5 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2021-00311890-CU-PO-GDS: Mayra Barrera vs. Page Hudson 08/08/2024 Hearing on Motion to Quash Deposition Subpoena for Production of Business Records in Department 5413.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearingor at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided. Page 6 of 6
Ruling
34-2023-00337523-CU-BC-GDS
Aug 07, 2024 |Unlimited Civil (Breach of Contract/Warranty) |34-2023-00337523-CU-BC-GDS
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO 34-2023-00337523-CU-BC-GDS: Tawana Ragsdale vs. Nissan North America, a Delaware Corporation 08/08/2024 Hearing on Motion to Compel Arbitration in Department 53Tentative RulingNOTICE:Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on thiscalendar must comply with the following procedure:To request limited oral argument, on any matter on this calendar, you must call the Law andMotion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before thehearing and advise opposing counsel. At the time of requesting oral argument, the requestingparty shall leave a voice mail message: a) identifying themselves as the party requesting oralargument; b) indicating the specific matter/motion for which they are requesting oral argument;and c) confirming that it has notified the opposing party of its intention to appear and thatopposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If norequest for oral argument is made, the tentative ruling becomes the final order of the Court.Unless ordered to appear in person by the Court, parties may appear remotely eithertelephonically or by video conference via the Zoom video/audio conference platform with noticeto the Court and all other parties in accordance with Code of Civil Procedure §367.75. Althoughremote participation is not required, the Court will presume all parties are appearing remotely fornon-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-ca-gov.zoomgov.com/my/sscdept53.54 and the Zoom Meeting ID is 161 4650 6749. To appear onZoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NOCOURTCALL APPEARANCES WILL BE ACCEPTED.Parties requesting services of a court reporter will need to arrange for private court reporterservices at their own expense, pursuant to Government code §68086 and California Rules ofCourt, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy forOfficial Reporter Pro Tempore available on the Sacramento Superior Court website athttps://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court-Approved Official Reporters Pro Tempore by utilizing the list of Court Approved OfficialReporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-13.pdf.A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to besigned by each party, the private court reporter, and the Judge prior to the hearing, if not using areporter from the Court’s Approved Official Reporter Pro Tempore list.Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiverand requests a court reporter, the party must submit a Request for Court Reporter by a Party witha Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing Page 1 of 2 SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO34-2023-00337523-CU-BC-GDS: Tawana Ragsdale vs. Nissan North America, a Delaware Corporation 08/08/2024 Hearing on Motion to Compel Arbitration in Department 53or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerkwill forward the form to the Court Reporter’s Office and an official reporter will be provided.TENTATIVE RULING:This matter is DROPPED from calendar at the request of the moving party.This minute order is effective immediately. No formal order or other notice is required. (CodeCiv. Proc. §1019.5; CRC, Rule 3.1312.) Page 2 of 2
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