SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 2, Honorable Patricia M. Lucas Naomi Matau, Courtroom Clerk Julie Serna, Court Reporter 191 North First Street, San Jose, CA 95113 Telephone: 408.882.2120

To contest the ruling, call (408) 808-6856 before 4:00 P.M. LAW AND MOTION TENTATIVE RULINGS DATE: 1/8/13 TIME: 9 A.M. PREVAILING PARTY SHALL PREPARE THE ORDER (SEE RULE OF COURT 3.1312) LINE #

CASE #

CASE TITLE

RULING

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112CV231044 Hilda & Alice v. Sologne Order of examination

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109CV160143 Anderson v. Sweatt

Ctrl/click on Line 2 for tentative ruling

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112CV226101 DuPerron v. Doe

Ctrl/click on Line 3 for tentative ruling

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112CV227186 Lui v. Lai

Ctrl/click on Line 4 for tentative ruling

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112CV232187 Bullis v. Los Altos School Ctrl/click on Line 5 for tentative ruling

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112CV235030 Doe v. EMQ Children

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112CV228636 Kriehn v. SJ Police Dept

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110CV162161 Zhang v. The Sage Apts

Ctrl/click on Line 8 for tentative ruling

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111CV199876 US Bank v. Collateral Risk Ctrl/click on Line 9 for tentative ruling

LINE 10 110CV185429 Bk Amer v Flipper Marine Continued to 2/5/13 LINE 11 112CV224808 Loretto v. Agrawal

Unopposed and granted: Court will modify proposed form of order

LINE 12 112CV225835 Carnero v. Natn’l Default Ctrl/click on Line 12 for tentative ruling LINE 13 112CV234144 Moses v. Trujillo

Ctrl/click on Line 13 for tentative ruling

LINE 14 111CV213187 Magee v. Husser

Off calendar

LINE 15 110CV189655 Bordbari v. Capital One

Vacated

LINE 16 111CV201246 Geng v. Zhu

Continued to 1/10/13 per Ex Parte Order

LINE 17 111CV199445 CIT Lending v. Khaziri

Off calendar

LINE 18 111CV210656 McManis Faulkner

Return on bench warrant

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SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 2, Honorable Patricia M. Lucas Naomi Matau, Courtroom Clerk Julie Serna, Court Reporter 191 North First Street, San Jose, CA 95113 Telephone: 408.882.2120

To contest the ruling, call (408) 808-6856 before 4:00 P.M. LAW AND MOTION TENTATIVE RULINGS LINE 28 LINE 29 LINE 30

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Calendar line 2 Case Name: Anderson v. Sweatt Case No.: 1-09-CV-160143 Plaintiff/cross-defendant David Anderson demurs to the third amended cross-complaint (“TACC”) filed by defendants/cross-complainants Herbert Sweatt and Nancy Sweatt (collectively, “the Sweatts”) and moves to strike Cross-Complainants’ request for punitive damages. Cross-defendant J.E. Moore Air Conditioning, Inc. dba Aire Service also demurs to the TACC. Herbert’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).) This is an action which arises out of the construction of a home. Plaintiff entered into a contract with the Sweatts in October 2006 whereby Anderson agreed to construct a single family residence for the Sweatts. (First Amended Complaint (“FAC”), ¶ 5.) The Sweatts were informed that the cost to complete the project would be $2.8 million to $3.4 million, but the contract called for $1,964,985 because that was the amount that the Sweatts were able to obtain from the bank. Construction was to begin on October 23, 2006. (Id.) In January 2007, the parties agreed to amend the original contract to provide that the Sweatts would no longer pay Anderson a fixed amount as originally intended but would instead pay costs plus 10% in bi-monthly payments. (FAC, ¶ 6.) In May 2009, the Sweatts stopped making payments to Anderson for the amounts owed for completed work. (FAC, ¶ 8.) After work was stopped for nonpayment, Anderson filed a mechanic’s lien in the amount of $187,339.53 and then filed the instant action to foreclose on the lien and recover additional monies owed. On October 26, 2012, Herbert filed his TACC alleging that the construction done by Anderson was defective and substandard and that Anderson overcharged him for labor and materials. Anderson now demurs to the first cause of action for breach of contract, the second cause of action for breach of warranty, the third cause of action for negligence, and the fourth cause of action for fraud and deceit, while J.E. Moore demurs solely to the second cause of action. Anderson’s demurrer to the first cause of action on the ground that it cannot be ascertained whether the contract at issue is oral, written, or implied by conduct is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. While Herbert insists that it is clear that his first cause of action is based on the same written agreement that is the subject of the FAC, the TACC does not incorporate any of the allegations in the FAC or separately indicate that the contract at issue is written. Anderson’s demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” (Twaite v. Allstate Ins. Co. (1989) 216 Cal.App.3d 239, 264.) Herbert has not incorporated or recited any of the relevant terms of the alleged contract at issue which were purportedly breached.

Anderson’s demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. The SACC fails to allege facts sufficient to plead a cause of action for breach of express warranty in failing to allege the exact terms of any such warranty (see William v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142); however, Herbert sufficiently states a claim for breach of an implied warranty and a demurrer does not lie to only part of a cause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.) An implied warranty of protecting a homeowner from defective construction exists in every contract for new construction. (See Pollard v. Saxe & Yolles Dev. Co. (1974) 12 Cal.3d 374, 378.) Herbert has alleged that he entered into a contract with Anderson in October 2006 for the construction of a single family residence. (SACC, ¶ 8.) Anderson’s demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. The elements of a cause of action for negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) The SACC fails to allege facts which demonstrate that a duty of care was owed by Anderson to Herbert. Anderson’s demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED. “The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) In order to establish fraudulent concealment, a plaintiff must allege that “the defendant [was] under a duty to disclose [a concealed material] fact to the plaintiff.” (Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 96.) Here, Herbert alleges that Anderson concealed the fact that he failed to install the requisite framing members or hardware to install a tongue-and-groove ceiling finish and that he had a duty to disclose this fact. (SACC, ¶¶ 13 and 14.) Herbert further alleges that Anderson knew that the elements were missing but intentionally proceeded with installation and that he (Herbert) would have insisted on the missing elements. (SACC, ¶¶ 13, 15 and 15; see also Lovejoy, supra, 92 Cal.App.4th at 92-93 [providing that “[o]ne who fraudulently makes a misrepresentation of fact … for the purpose of inducing another to act or to refrain from action upon it, is subject to liability to the other in deceit for pecuniary loss caused to him by his justifiable upon the misrepresentation”].) Anderson’s motion to strike is DENIED. A properly pleaded fraud claim, as set forth in the SACC, will itself support a claim for punitive damages. (See Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610.) J.E. Moore’s demurrer to the second cause of action on the ground of uncertainty is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. It is impossible to determine from the allegations of the SACC which defendants are alleged to have breached express warranties and which implied. J.E. Moore’s demurrer to the second cause of action on the ground that it cannot be ascertained whether the contract at issue is oral, written, or implied by conduct is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

J.E. Moore’s demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. The SACC fails to allege the existence of a contractual relationship between Herbert and J.E. Moore specifically and the terms of any such contract.

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Calendar line 3 Case Name: DuPerron v. Doe Case No.: 1-12-CV-226101 I.

Defendant’s Demurrer

This is an action based on allegations of sexual abuse that purportedly took place 48 years ago when Plaintiff and Defendant were both minor boys. The Court previously sustained Defendant’s demurrer to the complaint on the ground that Plaintiff had failed to file the certificate of merit from an attorney and a California licensed mental health practitioner as required by Code of Civil Procedure section 340.1 (“Section 340.1”), subdivision (g). Defendant demurs again to the first amended complaint (“FAC”) on the ground that Plaintiff has failed to file the aforementioned certificate as well as on the ground that his claims are barred by the statute of limitations. At present, Plaintiff still has failed to file a certificate of merit pursuant to Section 340.1, subdivision (g), a fact that he concedes in his opposing papers. Plaintiff asserts that he has not filed the certificate because he is currently unable to afford an attorney and a California licensed mental health practitioner. To the first point regarding Plaintiff’s inability to hire an attorney, self-represented plaintiffs are not excused from complying with Section 340.1, subdivision (g). (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 751-752.) To Plaintiff’s second point, he requests that the Court permit his case to continue “until [he] can get a California Doctor to assess [him].” However, the only basis for the Court to defer the filing of a Certificate of Merit from a “mental health practitioner” under Section 340.1 is if the plaintiff’s attorney files a certificate under subdivision (h)(3) confirming that “the attorney was unable to obtain the consultation required by paragraph (1) because a statute of limitations would impair the action and the certificates required by paragraphs (1) and (2) could not be obtained before the impairment of the action.” If the certificate is executed pursuant to the foregoing, it must be filed within “60 days after filing the complaint.” (Code Civ. Proc., § 340.1, subd. (h)(3).) Here, Plaintiff has no attorney and has not filed a certificate explaining his inability to obtain the consultation from a licensed mental health practitioner. Moreover, Plaintiff’s complaint was filed on June 8, 2012, and therefore any certificate filed at present would be well outside the 60-day period allotted under Section 340.1, subdivision (h)(3). Failure to file a certificate of merit in a timely manner mandates dismissal of the action. (Doyle v. Fenster (1996) 47 Cal.App.4th 1701, 1707.) Not only has Plaintiff failed to file the Certificate of Merit within the statutorily mandated period of time, but he also failed to file it and the complaint within the applicable statute of limitations. Under Section 340.1, an action based on childhood sexual abuse must be filed “within eight years of the date the plaintiff attains the age of majority or within three years of the date the plaintiff discovers or reasonably should have discovered that psychological injury or illness occurring after the age of majority was caused by the sexual abuse, whichever period expires later ….” (Code Civ. Proc., § 340.1, subd. (a).) Plaintiff concedes that he is over the age of twenty-six and therefore Plaintiff must have filed his action within three years after he discovered that his injuries were caused by sexual abuse. The exhibits that Plaintiff has

submitted as amendments to his complaint demonstrate that he was aware of his alleged psychological injury as early as November 2006 and as late as November 2008. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94 [in ruling on a demurrer, the Court may consider matters shown in exhibits attached to the complaint and incorporated by reference].) As stated above, Plaintiff’s initial complaint was filed on June 8, 2012; thus, even if the Court were to accept November 2008 as the date upon which the limitations period began to run rather than November 2006, the complaint was filed well after three years from that date and is therefore time-barred. There is no legal basis to toll the statute of limitations beyond that date. Accordingly, Defendant’s demurrer to the FAC is SUSTAINED WITHOUT LEAVE TO AMEND. II.

Plaintiff’s Motions

Plaintiff’s motions for an order seizing four million dollars of Defendant’s cash assets, seizing Defendant’s passport, sending unedited versions of July 2012 emails to SJPD and US Immigration, releasing name of doctor Defendant visited in Michigan, releasing Defendant’s complete birth date, name and dates of moves, requiring Defendant to personally appear to all court hearings, releasing all private investigation material to Plaintiff, and re statute of limitation, are off calendar as no papers were filed. Plaintiff’s motions to withhold judgment until doctor can assess Plaintiff, to castrate Defendant, to rescind Doe status and to unseal file are off calendar for failure to timely file proof of service as required by CRC 3.1300(c). - oo0oo -

Calendar line 4 Case Name: Lui v. Lai, et al. Case No.: 1-12-CV-227186 Defendant Jovita Lai demurs to the First Amended Complaint of plaintiffs Steven Lui and Betty Lui. Plaintiffs did not file any opposition to the demurrer. The demurrer is sustained. Plaintiffs have the burden to show a reasonable possibility that amendment could cure the defects in the pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Plaintiffs having failed to respond at all to the demurrer, the Court is unable to discern how the defects in the First Amended Complaint could be cured by amendment and it therefore appears that granting leave to amend would be futile. Accordingly, leave to amend is denied.

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Calendar line 5 Case Name: Bullis Charter School v. Los Altos School District, et al. Case No.:

1-12-CV-232187

Petitioner and cross-defendant Bullis Charter School has filed a special motion to strike and a demurrer to the First Amended Cross-Complaint (“FACC”) filed by respondents and defendants Los Altos School District, Board of Trustees of the Los Altos School District, and Jeffrey Baier (collectively, “LASD”). The application of amicus Huttlinger Alliance for Education is GRANTED. Huttlinger’s request for judicial notice is GRANTED. I.

SPECIAL MOTION TO STRIKE A.

Public Interest Exception of Code of Civil Procedure 425.17

LASD argues that the FACC falls within the public interest exception of Code of Civil Procedure section 425.17, which was adopted in 2003 to address “a disturbing abuse of Section 425.16…”. This statutes provides, in relevant part: Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist: (1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney’s fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision. (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter. (Code Civ. Proc, § 425.17, subd. (b).) LASD contends that its FACC falls within this exception because LASD seeks only declaratory relief and access to public records. Bullis counters that the first requirement has not been met because LASD is seeking “very LASD-specific relief”: i.e., LASD is “advancing its own interests in seeking to avoid sharing valuable public school facilities which it exclusively controls” (Reply Memorandum, at 5:6-7, 28). However, Bullis’s argument begs the question. If LASD is correct and it ought not to be required to provide facilities to Bullis, then the relief in the form of a judicial declaration benefits the People of the State of California to the same extent that it benefits LASD: the law would be followed as it relates to the respective rights and obligations of the school district and

the charter school. In that respect, LASD does not seek any relief greater than or different from the relief sought for the general public. People ex re. Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 503-04 (reversing order granting anti-SLAPP motion against qui tam complaint of former employee concerning insurance fraud: public interest exception applies even though employee could recover bounty of $30 million to $37.5 million). This case bears no resemblance to City of Colton v. Singletary (2012) 206 Cal.App.4th 751, cited by Bullis, in which the City of Colton sought monetary relief arising out of a business relationship with a real estate developer. Accordingly, the public interest exception in section 425.17 applies to this case. B.

Application of Code of Civil Procedure 425.16

Even if the public interest exemption did not apply to bar this special motion to strike, the record does not establish that each of the two prongs of the analysis can be satisfied. i. Arising From Protected Activity Bullis argues that the FACC arises from an act in furtherance of Bullis’s right of petition or free speech. Bullis first states that charter schools can exist and operate only through petitioning activity. Bullis argues that the FACC’s allegations that Bullis is undeserving of its charter status because of its admissions and fundraising policies arise from Bullis’s continued charter petitioning activity. In support of this argument, Bullis cites to paragraph 72 in the FACC, which states that LASD seeks a declaration that Bullis’s admissions practices are discriminatory and that LASD is not required to furnish Bullis with any facilities until Bullis’s improper practices have been rectified. Paragraph 72 does not state that Bullis should lose its charter status. Consequently, Bullis’s argument in this regard is without merit. Bullis also argues that its petitioning activity for access to “reasonably equivalent” school district facilities is protected petitioning activity. LASD does not dispute this. Education Code section 47614 states, in relevant part: Each school district shall make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school’s in-district students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools of the district. Facilities provided shall be contiguous, furnished, and equipped, and shall remain the property of the school district. The school district shall make reasonable efforts to provide the charter school with facilities near to where the charter school wishes to locate, and shall not move the charter school unnecessarily. (Ed. Code, § 47614, subd. (b).) Bullis’s Verified Petition for Writ of Mandate and Complaint for Declaratory Relief (“Petition”) filed in this action seeks to compel LASD to provide reasonably equivalent facilities to Bullis students in accordance with Proposition 39, which requires that school district facilities be shared fairly among all public school pupils. (Petition, p. 4:10-17.) The first and third causes of action in the FACC seek declaratory relief that LASD can refuse to

furnish Bullis with facilities because of Bullis’s admissions practices and large amount of private funding. (FACC, ¶¶ 72, 91-93.) LASD cites to City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78 for the proposition that where a public entity requests only declaratory relief to clarify its legal duties, its request does not arise from protected activity. The Supreme Court stated that “the mere fact an action was filed after protected activity took place does not mean it arose from that activity. The antiSLAPP statute cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’” (Id. at pp. 76-77, quoting ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002, italics in original.) In response, Bullis cites to City of Santa Monica v. Stewart (2005) 126 Cal. App. 4th 43. City of Santa Monica involved lawsuits that were brought relating to the enforcement of initiatives approved by voters in Santa Monica and Pasadena. The initiatives sought to prevent city officials from receiving certain advantages from persons or entities who derived benefit from discretionary decisions made by those officials. (Id. at p. 50.) In one of the suits involved in the appeal, the trial court had “denied an anti-SLAPP motion brought by the initiative’s sponsor to strike Pasadena’s cross-complaint, granted a summary judgment motion in favor of the city, and denied the initiative sponsor’s motion for attorneys’ fees under the private attorney general statute.” (Ibid.) In opposing the motion, Pasadena argued that the sponsor was properly named in the cross-complaint “precisely because [it] chose to intervene and demand that Pasadena certify the Initiative….” (Id. at p. 73-74.) There is no similar assertion in this case, which more closely resembles City of Cotati, 29 Cal.4th at 80: both the first act (Bullis’s petitioning activity) and the pleading subject to the anti-SLAPP motion (the FACC) arise from the same controversy (here, allocation of school facilities), as distinct from the latter arising from the former. Bullis has not met the first prong of the section 425.16 test. ii. Probability of Prevailing Had Bullis met its burden to show that LASD’s claims arise out of protected activity, the Court would reach the issue of whether LASD has shown a probability of prevailing. Under the test for the second prong of the anti-SLAPP analysis, the court does “not consider the credibility of evidence nor [] compare the weight of the evidence; rather, [it] accept[s] as true the evidence that is favorable to the cross-complainant and evaluate[s] the crossdefendant’s evidence only for purpose of determining whether it has defeated the crosscomplainant’s evidence as a matter of law. City of Colton, 206 Cal.App.4th at 769-70. With regard to the second and fourth causes of action, for reasons discussed in greater detail in connection with the demurrer, the Court finds that these causes of action have at least minimal merit and, therefore, LASD has shown that it has a probability of prevailing. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 820 [If a plaintiff can show a probability of prevailing on any part of its claim, the cause of action is not meritless and will not be struck.].)

LASD argues that a judicial declaration will provide the certainty it needs to comply and to assure its community that the law is being properly followed. LASD contends, therefore, that so long as the Court provides such a declaration, LASD will have “prevailed”. Neither party has provided case authority addressing precisely this issue in a section 425.16 context. Obtaining a declaration “will prevent further issues arising from the conflicting interpretations, and [will be] an effective remedy to settle the parties’ right on the future regarding the meaning of the [relevant law].” California School Bds. Assn v. State of California (2011) 192 Cal.App.4th 770, 791. Bullis has not argued that LASD is not entitled to a declaration. Code of Civil Procedure section 1032 provides that when a party recovers “other than monetary relief” (i.e., declaratory relief), the prevailing party shall be determined by the court. As stated by the Sixth District Court of Appeal, the “shared fairly,” “reasonably equivalent,” and contiguous provisions require a district, in responding to a Proposition 39 facilities request, to give the same degree of consideration to the needs of charter school students as it does to the students in district-run schools. (Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal. App. 4th 1022, 1040, quoting Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal. App. 4th 986, 999.) The California Constitution, at articles 5, 7.5 and 8, requires uniformity in public education; discrimination and tuition are prohibited in public education. Educ. Code section 201, 220, 221.1 and 235. The Court cannot conclude, as a matter of law, that LASD is not entitled to a declaration to provide certainty and guidance to the parties and to the community. Accordingly, Bullis’s special motion to strike is DENIED. II.

DEMURRER Bullis’s request for judicial notice is GRANTED. A.

First Cause of Action

LASD’s first cause of action is for declaratory relief; LASD seeks a judicial declaration that it can take into account Bullis’s admissions policies and tuition expectation in denying or reducing facilities offers. (FACC, ¶ 72.) Bullis argues that the first cause of action is barred by res judicata and that LASD lacks standing to bring that claim. i. Res Judicata Bullis argues that the first cause of action is barred by res judicata because of LASD’s 2008 lawsuit. The doctrine of res judicata precludes the relitigation of certain matters which have been resolved in a prior proceeding under certain circumstances. Its purpose is “to preserve the integrity of the judicial system, promote judicial economy, and protect litigants from harassment by vexatious litigation.” The doctrine has two aspects. It applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a

prior action, referred to as issue preclusion. The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (Brinton v. Bankers Pension Servs. (1999) 76 Cal. App. 4th 550, 556, internal citations omitted.) The 2008 lawsuit mainly concerned Bullis’s admissions preference for applicants residing in a certain geographic location. In contrast, the current lawsuit concerns LASD’s own obligations under Proposition 39 with regard to facilities offers and whether those obligations are affected by Bullis’s alleged admissions practices and tuition expectation. The issues in this action are not identical to those raised in the earlier action. Moreover, LASD relies in this action on conduct that has occurred since 2008. Further, the Court finds that the public interest exception to res judicata applies under the facts of this case. (See Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal. 4th 251, 257.) Therefore, the first cause of action is not barred by res judicata. ii. Standing Bullis argues that LASD lacks standing to assert the claim regarding Bullis’s admissions practices. This argument is without merit. LASD seeks judicial guidance regarding its own rights and duties under Proposition 39. This is sufficient to show that LASD has standing in this action. Accordingly, because the first cause of action is not barred by res judicata and LASD does not lack standing to bring the claim, Bullis’s demurrer to the first cause of action is OVERRULED. B.

Third Cause of Action

The third cause of action seeks a judicial declaration that LASD can take into account Bullis’s private funding in formulating facilities offers. (FACC, ¶¶ 91-93.) Bullis argues that the third cause of action raises non-justiciable policy arguments. “[T]he ‘political question’ rule relates to the appropriate role of the judiciary in a tripartite system of government.” (Schabarum v. California Legislature (1998) 60 Cal. App. 4th 1205, 1213.) “The rule compels dismissal of a lawsuit when complete deference to the role of the legislative or executive branch is required and there is nothing upon which a court can adjudicate without impermissibly intruding upon the authority of another branch of government.” (Id. at p. 1214.) Bullis argues that the law does not support LASD’s position that Bullis’s private funding may be considered by LASD in complying with Proposition 39. Even if Bullis is correct, that does not mean that the Court cannot examine the applicable law and apply it to the facts presented by this case. (Id. at p. 1213 [“. . . it is well established that it is a judicial function to interpret the law . . . .”].) LASD seeks instruction on its duties and obligations

under Proposition 39, specifically how to comply with the mandate that school facilities be “shared fairly” and that a charter school have access to “reasonably equivalent” school district facilities The Court can make such a determination (i.e. an interpretation of the law) without intruding upon the authority of another branch of government. Accordingly, Bullis’s demurrer to the third cause of action is OVERRULED. C.

Second and Fourth Causes of Action

The second cause of action seeks a judicial declaration that LASD is entitled going forward to receive an annual list of all Bullis student names and addresses for use in calculating aid, funding, and facilities offers to Bullis, and to assist LASD in receiving appropriate reimbursements from other school districts for non-LASD students enrolled at Bullis. (FACC, ¶ 82.) The fourth cause of action is brought under the Public Records Act and also seeks student names and addresses. (FACC, ¶ 96.) Generally, under the PRA, public records are open to inspection at all times during the office hours of a state or local agency and every person has a right to inspect any public record. (Gov. Code, § 6253, subd. (a).) A governmental agency is considered a “person” for purposes of the PRA. (See Los Angeles Unified School Dist. v. Superior Court (2007) 151 Cal. App. 4th 759, 769.) Certain types of records are exempt from disclosure under the PRA. As is relevant here, the PRA does not require the disclosure of records, the disclosure of which is exempted or prohibited pursuant to federal or state law. (Gov. Code, § 6254, subd. (k).) Under federal law, the Family Educational Rights and Privacy Act (“FERPA”) provides for the privacy of education records. (Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal. App. 4th 1393, 1397.) “‘Education records’ are defined as documents which ‘contain information directly related to a student’ or ‘are maintained by an educational agency or institution . . . .’ (Id., citing 20 U.S.C. § 1232g, subd. (a)(4)(A).) Under FERPA, “the term ‘directory information’ relating to a student includes the following: the student’s name, address, telephone listing, date and place of birth, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous educational agency or institution attended by the student.” (20 U.S.C. § 1232g, subd. (a)(5)(A).) The information sought by LASD, names and addresses of students, constitutes “directory information” under FERPA. State law is preempted to the extent it actually conflicts with federal law (i.e., when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress). (Rim of the World Unified School Dist. v. Superior Court, supra, 104 Cal. App. 4th at pp. 1398-1399.) Such a conflict has been found between FERPA and state law with regard to student expulsion records. (Id. at p. 1399.) The current matter does not concern expulsion records, but rather, to directory information. Although FERPA states that no funds shall be made available to any educational agency or institution that releases educational records, with certain exceptions, it does not prohibit the release of directory information. (See 20 U.S.C. § 1232g, subds. (b)(1), (b)(2).) FERPA requires the following with regard to public directory information:

Any educational agency or institution making public directory information shall give public notice of the categories of information which it has designated as such information with respect to each student attending the institution or agency and shall allow a reasonable period of time after such notice has been given for a parent to inform the institution or agency that any or all of the information designated should not be released without the parent’s prior consent. (20 U.S.C. § 1232g, subd. (a)(5)(B).) This provision does not prohibit the release of directory information outright, but requires that parents be given the opportunity to consent to the release of the information. Therefore, to the extent state law requires disclosure of directory information even without parental consent, it is preempted by FERPA. Aside from that restriction, however, state law is not preempted. State law defines “directory information” in essentially the same manner as FERPA: “Directory information” means one or more of the following items: pupil’s name, address, telephone number, date of birth, email address, major field of study, participation in officially recognized activities and sports, weight and height of members of athletic teams, dates of attendance, degrees and awards received, and the most recent previous public or private school attended by the pupil. (Ed. Code, § 49061.) Bullis relies on Education Code section 49073, which states, in relevant part, that “[s]chool districts shall adopt a policy identifying those categories of directory information as defined in subdivision (c) of Section 49061 that may be released.” Under section 49061, “school district” includes a public school. Therefore, section 49073 authorizes Bullis to adopt a policy identifying categories of directory information that may be released. However, the allegations of the FACC do not make clear that Bullis has adopted any such policy. Since no policy has been articulated, Bullis cannot rely on any such undisclosed policy to withhold directory information. To clarify: [d]irectory information may be released according to local policy as to any pupil or former pupil. However, notice shall be given at least on an annual basis of the categories of information that the school plans to release and of the recipients. No directory information shall be released regarding any pupil if a parent has notified the school district that the information shall not be released. (Ed. Code, § 49073.) Under the current allegations of the FACC, Bullis does not have a disclosed policy that would permit it to withhold directory information. However, before any information could be disclosed, notice would need to be provided to parents “of the categories of information that the school plans to release and of the recipients” and, to the extent “a parent has notified

[Bullis] that the information shall not be released,” that information could not be disclosed to LASD. Regardless, since the allegations of the FACC show that LASD is entitled to at least some directory information, Bullis’s demurrer to the second and fourth causes of action is OVERRULED. On a final note, LASD states that the Proposition 39 regulations provide: The charter school must report actual ADA to the school district every time that the charter school reports ADA for apportionment purposes. The reports must include in-district and total ADA and in-district and total classroom ADA. The charter school must maintain records documenting the data contained in the reports. These records shall be available on request by the school district. (Cal. Code Regs., tit. 5, § 11969.9, subd. (l).) LASD argues that this provision means that Bullis must provide student names and addresses to verify students’ in-District status. This provision does not state that names and addresses must be provided. Rather, a charter school must make available “records documenting the data contained in the reports.” The regulation does not specify what information must be included in the records. Further, while LASD would be entitled to review the records under this regulation, LASD has not alleged that it requested to do so. If LASD wants to review records pursuant to CCR section 11969.9, subd. (l), it must add allegations in the operative pleading that ask for such relief. Pursuant to CRC 3.1320(j)(1), Bulllis has ten days to answer or otherwise plead. - oo0oo -

Calendar line 6 Case Name: Doe v. EMQ Children and Family Services, et al. Case No.: 1-12-CV-235030 Defendants EMQ Children and Family Services and EMQ Familiesfirst, Inc. demur to the Complaint of plaintiff Janice Doe and move to strike portions thereof. Plaintiff did not file any opposition to the demurrer. The demurrer is sustained. Plaintiff has the burden to show a reasonable possibility that amendment could cure the defects in the pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Plaintiff having failed to respond at all to the demurrer, the Court is unable to discern how the defects in the Complaint could be cured by amendment and it therefore appears that granting leave to amend would be futile. Accordingly, leave to amend is denied. The motion to strike is moot. - oo0oo -

Calendar line 7 Case Name: Kriehn v. San Jose Police Department, et al. Case No.: 1-12-CV-228636 Defendants City of San Jose and the City of San Jose demur to the First Amended Complaint filed by plaintiff Jess Kriehn. Defendants’ request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).) Defendants’ demurrer on the ground of uncertainty and failure to state facts sufficient to constitute a cause of action is sustained. A government entity is immune from liability except as otherwise specified by statute. (Gov. Code, § 815; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 809, fn. 7.) Plaintiff fails to allege a specific statute that provides for the theory of liability set forth in the First Amended Complaint. The burden is on Plaintiff to show in what manner he can amend the First Amended Complaint and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiff’s opposition does not address the arguments of Defendants’ demurrer, and therefore leave to amend is denied. - oo0oo -

Calendar line 8 Case Name: Zhang, et al. v. The Sage Apartments @ Cupertino, LLC, et al. Case No.:

1-10-CV-162161

Defendants The Sage Apartments @ Cupertino, LLC, PPC Sage, LLC, and Pacific Property Company (collectively, “Defendants”) now move for summary adjudication of the first and third causes of action in Plaintiffs’ Complaint. Defendant American Management Services California dba Pinnacle has filed a joinder. Defendants’ request for judicial notice is GRANTED. Defendants’ objections to Plaintiffs’ evidence are sustained. Defendants argue that Zhang cannot prevail on her negligence cause of action because she cannot establish damages. Defendants first contend that Zhang’s cause of action for breach of the implied warranty of habitability provides the basis for her contract damages, so the negligence cause of action is the only cause of action that provides the basis for Zhang to seek general damages for personal injuries, including emotional distress and post-traumatic stress disorder, and special damages for psychiatric and other medical, health care, and related expenses. Defendants then argue that Zhang did not suffer any physical injury and that Zhang cannot recover for mental and emotional distress in a negligence cause of action absent physical injury. Whether or not Defendants are correct, these arguments (and the associated evidence) are insufficient for Defendants to meet their initial burden with regard to the negligence cause of action. Zhang’s negligence cause of action also seeks damages for property damage and loss of use of property, including personal property in the apartment. (Complaint, ¶ 18.) Defendants provide no argument or evidence regarding the property damage and therefore have not met their initial burden of showing that Zhang suffered no recoverable damages in connection with the negligence cause of action. Accordingly, Defendants’ motion is DENIED as to the first cause of action. Defendants argue that Zhang’s strict liability cause of action is based on essentially the same facts and allegations as those supporting Zhang’s claim for breach of the implied warranty of habitability. Defendants cite to Peterson v. Superior Court (1995) 10 Cal. 4th 1185, 1206 for the proposition that “[t]he implied warranty of habitability . . . does not support an action for strict liability.” The Peterson Court found that “landlords and hotel owners should not be held strictly liable in tort for injuries to tenants and hotel guests caused by defects in the premises.” (Peterson v. Superior Court, supra, 10 Cal. 4th at p. 1209.) Defendants argue that the Complaint shows that Defendants were in a landlord-tenant relationship with Zhang because they entered into a written rental agreement. (Separate Statement of Undisputed Facts in Support of Motion for Summary Adjudication of Defendants The Sage Apartments @ Cupertino, LLC, PPC Sage, LLC, Pacific Property Company, Issue 1, No. 3; Complaint, ¶ 8.) In response, Zhang cites to McCarthy v. Martinson (1996) 51 Cal. App. 4th 632, 637 for the proposition that “the Supreme Court carefully limited Peterson to situations where the

landlord or hotel proprietor was not involved in the construction process or the installation of the defective product.” The Peterson Court stated: We need not, and do not, decide whether different considerations would apply in the event the landlord or hotel owner had participated in the construction of the building. But in such circumstances strict liability would attach, if at all, based upon the landlord’s status as a builder who is engaged in the business of constructing (i.e. manufacturing) rental properties. (Peterson v. Superior Court, supra, 10 Cal. 4th at p. 1200, internal citation omitted.) Zhang argues that Defendants have not presented any evidence showing they were not involved in the construction or installation of the defective ceiling, so Defendants have not met their initial burden. Zhang alleges in the Complaint that Defendants “designed, built, owned, operated, managed, repaired, maintained, and controlled” the apartment complex. (Complaint, ¶ 7.) Consequently, the allegations currently in the Complaint show that Defendants are potentially liable as builders of the apartment. Defendants fail to present any argument or evidence regarding this issue and consequently fail to meet their initial burden. Accordingly, Defendants’ motion is DENIED as to the third cause of action. Pinnacle has filed a joinder to Defendants’ motion for summary adjudication. However, Pinnacle did not file a separate statement or any other papers in support of its joinder. Filing a joinder to a summary judgment/adjudication motion without a separate statement is insufficient for purposes of the summary judgment statute. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 635-636.) The joinder is DENIED. - oo0oo -

Calendar line 9 Case Name: U.S. National Bank Association v. Collateral Risk Management, Inc. Case No.: 1-11-CV-199876 Defendant/cross-complainant Collateral Risk Management, Inc. (“CRM”) moves for summary adjudication of the fifth cause of action for declaratory relief in its second amended cross-complaint (“SACC”) against cross-defendant American Metal & Iron, Inc. (“AMI”). AMI’s request for judicial notice is granted only as to the authenticity and contents of the document and not the truth of any recitals contained therein. (See Evid., § 452, subd. (c); Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063.) CRM’s hearsay objection 2 is sustained. AMI’s evidentiary objections are sustained, except for objection 2 to the Decker declaration which does not state a legal basis for objection and is therefore overruled. CRM’s evidentiary objection 1 is overruled and objection 3 is sustained. AMI first asserts that as a threshold matter, CRM cannot maintain its claims against AMI because it is not qualified to do business in California. Corporations Code section 2203, subdivision (c) provides, in pertinent part, that “[a] foreign corporation … which transacts intrastate business without complying with Section 2105 shall not maintain any action or proceeding upon any intrastate business so transacted in any court of this state, commences prior to compliance with Section 2105, until it has complied with the provisions thereof ….” Corporations Code section 2105, subdivision (a), in turn, requires that “[a] foreign corporation shall not transact intrastate business without having first obtained from the Secretary of State a certification of qualification.” The judicially noticed printout from the California Secretary of State website reflects that there is no record in California of CRM as a California corporation or a foreign corporation that is qualified to conduct business in California. However, “record not found” is hearsay. In any event, this fact on its own does not necessarily defeat CRM’s claims against AIM. The statutory requirements set forth above hinge on whether CRM has conducted “intrastate business” which is specifically defined in the Corporations Code as “entering into repeated and successive transactions of its business in this state, other than interstate or foreign commerce.” (Corp. Code, § 191, subd. (a).) Where a defendant seeks to establish that a foreign corporation is not entitled to maintain an action under Corporations Code section 2203, he or she has the burden of establishing that fact by a preponderance of the evidence. (McMillan Process Co. v. Brown (1939) 33 Cal.App.2d 279, 284.) AIM has not demonstrated that CRM has entered into “repeated and successive transactions” in California. Consequently, the argument that CRM cannot maintain its action against AIM for failure to comply with Corporations Code section 2105 is without merit. CRM’s motion for summary adjudication is DENIED. CRM fails to meet its initial burden to demonstrate with admissible evidence each of the elements of the fifth cause of action. Specifically, CRM has not demonstrated that it fully performed its obligations under the Inventory Agreement with AMI and U.S. Bank National Association. (See Four Star

Electric, Inc. v. F&H Construction (1992) 7 Cal.App.4th 1375, 1380 [indemnitee seeking to recover on agreement for indemnification must demonstrate (1) the parties’ contractual relationship, (2) the indemnitee’s performance under the agreement; (3) loss within the meaning of the agreement, and (4) the amount of damages sustained].) - oo0oo -

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Calendar line 12 Case Name: Carnero v. National Default Servicing Corporation Case No.:

1-12-CV-225835

Defendant National Default Servicing Corporation moves to set aside the default taken against it when it was nine days late filing a demurrer to the First Amended Complaint of plaintiffs Jose Carnero and Marta Carnero. Plaintiffs incorrectly refer to the current motion as “the second motion”; a previous hearing date of December 18, 2012, was taken off calendar and the Court has not previously been asked to consider a request for the relief sought. The motion is supported by an attorney affidavit of fault, and Defendant is entitled to the relief sought. Relief is also appropriate as a discretionary matter, and Plaintiffs have not been prejudiced. The motion is granted. Plaintiffs’ request for sanctions is denied as the motion is well taken; in any event, Plaintiffs have failed to comply with Code of Civil Procedure section 128.7, and neither the Code of Professionalism nor Penal Code section 118(a) provides a basis for an award of sanctions in a civil case. Defendant has ten days leave from notice to file its demurrer to the First Amended Complaint, to be set for hearing on Tuesday, February 26, 2013. A Case Management Conference is set for Tuesday, April 9, 2013, at 10:00 a.m. - oo0oo -

Calendar line 13 Case Name: Moses v. Trujillo, et al. Case No.:

1-12-CV-234144

Defendants Sam Trujillo and Conceptus, Inc. move to compel arbitration and to stay this action pending arbitration. Plaintiff repeatedly cites Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, for the proposition that “trial court erred in failing to hold an evidentiary hearing before ruling on the motion to compel arbitration” (Opposition Memorandum, at 8:2022 and 9:13-15)—inaccurately suggesting that the trial court is required to hold an evidentiary hearing on every motion to compel arbitration. This is a material mischaracterization of the holding in Hotels Nevada, which reverses the denial of a motion to compel arbitration: the opposite of what Plaintiff seeks in this case. In Hotels Nevada, the trial court denied a motion to compel arbitration on the basis of unverified allegations in the plaintiff’s complaint and then set the matter for an evidentiary hearing. Noting that “the party opposing arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense” (144 Cal.App.4th at 758), the appellate court reversed the order denying the motion to compel arbitration, with direction that the trial court “hold an evidentiary hearing before, not after, ruling on appellant’s motion to compel arbitration.” (Id.: emphasis added.) However, the court also specifically negated the premise that Plaintiff attempts to argue here: i.e., the trial court is required, on every motion to compel arbitration, to conduct an evidentiary hearing: “The role of the trial court is to sit as a trier of fact, weighing any affidavits, declaration, and other documentary evidence, together with oral testimony received at the court’s discretion, to reach a determination on the issue of arbitrability.” (Id.: emphasis added.) This statement by the Nevada Hotels court is consistent with the Supreme Court’s conclusion a decade earlier that “[t]here simply is no authority for the proposition that a trial court necessarily abuses its discretion, in a motion proceeding, by resolving evidentiary conflict without hearing live testimony.” Rosenthal v. Great Western Financial Securities Corporation (1996) 14 Cal.4th 394, 414. Rosenthal, like Hotels Nevada, involved a claim that the contract containing the arbitration clause was obtained through fraud in the execution: a claim which, as Defendants correctly point out in the reply, is not made in this case. Here, there are no “sharply conflicting factual accounts” nor any need to determine witness credibility (Rosenthal, 14 Cal.4th at 414): in fact, there is no material discrepancy of fact, and therefore no need for the Court, in its discretion, to require an evidentiary hearing. The determination on this motion can be made as a matter of law, as set forth below. Plaintiff’s first argument is that Defendants have failed to submit evidence of an arbitration agreement, but Plaintiff admits in her declaration in opposition that in October 2009, she signed Exhibit A, an Amended and Restated Change of Control Agreement (“Agreement”). This Agreement contains an arbitration clause which reads as follows: Except as provided below [in subparagraph (viii) relating to provisional non-monetary remedies], any dispute or controversy which establishes a legal or equitable cause of action (“Claim”) between the Employee and the Company arising out of, or relating to Employee’s employment and/or this Agreement shall be submitted to final and binding arbitration as the sole and exclusive remedy for such controversy or dispute. It is the

parties’ intent that issues of arbitrability of any dispute shall be decided by the Arbitrator. (Emphasis added.) This is a broadly phrased arbitration clause, covering any dispute that arises out of Plaintiff’s employment with Defendant Conceptus. All of Plaintiff’s stated claims arise out of such employment: Plaintiff alleges her employment as a factual premise (Complaint, at 2:2-4 and 3:19-21); and each of the causes of action is based on alleged misrepresentations about her performance and the circumstances of her departure. Without any facts or logic, Plaintiff argues only the conclusion that her claims do not come within the scope of the clause: that such claims “clearly could not have been the subject matter of the [Agreement]” (Opposition Memorandum, at 7:24-26). Plaintiff also argues that the claims are excluded by the “time period covered (during employment only)” (Opposition Memorandum, at 7:26), but does not provide any cite to language in the Agreement purportedly containing such a limitation. Indeed, there is no such language of limitation, and to the contrary there is a specification that arbitration applies to “any dispute”. Claims against an employer which are subject to an arbitration clause are not excluded therefrom because the conduct in question occurred post-employment. Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401 (reversing order denying motion to compel arbitration). Plaintiff’s primary argument is that the arbitration clause in the Agreement was superseded by a subsequent agreement and therefore does not apply to her claims. In her declaration, Plaintiff states that “years later” after the Agreement (i.e., actually the following year, 2010), she entered into Exhibit B, a Letter Agreement containing a non-disparagement provision which is the basis of the claims in this case. (Moses Declaration, at 2:14-24.) Plaintiff then asserts her “understanding” essentially that the Letter Agreement created an exception to the Agreement with respect to the arbitration clause. (Id., at 3:17-19.) However, Plaintiff’s private, uncommunicated “understanding” is not probative of the meaning of either agreement. Plaintiff argues several aspects of the Letter Agreement in support of her assertion that it supersedes the Agreement’s arbitration clause. Plaintiff points out that the Letter Agreement does not refer to the Agreement or to arbitration, and contains an attorney fee clause that refers to “any legal proceeding involving the interpretation or enforcement of this Letter Agreement”. However, none of these facts is inconsistent with the obligation to arbitrate under the Agreement. Plaintiff also argues that “the Letter Agreement states that only the latter’s terms [i.e., the terms of the 2007 Proprietary Information and Inventions Agreement] will ‘survive the termination of your employment as well as the expiration of the Consulting Period’” (Opposition Memorandum, at 6:23-24). This argument materially misstates the Letter Agreement: there is no “only” in the sentence in paragraph 13 on which Plaintiff relies. While the Letter Agreement does provide that the Proprietary Information and Inventions Agreement survives termination of employment, it does not state that no other agreement survives termination of employment. Finally, Plaintiff relies on the integration clause in the Letter Agreement that provides at paragraph 23 that the Letter Agreement “fully supersedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter hereof.” (Emphasis added.) A fair reading of the Letter Agreement is that the “subject matter thereof” is a postemployment consultancy and severance pay. In two respects, then, this scenario is materially different from the facts of Grey v. American Marketing Services (2012) 204 Cal.App.4th 803,

807-09, on which Plaintiff relies. In Grey, as part of the employment application process the plaintiff signed an agreement containing a broad arbitration clause. Then, after commencing employment, he signed an employment contract containing a narrower arbitration clause that excluded statutory claims, as well as an integration clause providing that the second agreement set forth “the entire agreement between the parties in connection with Employee’s employment….” (204 Cal.App.4th at 805: emphasis added.) The scope of the integration clause in Grey was substantially broader than the clause in the Letter Agreement, which limits itself to “the subject matter [of the Letter Agreement].” Also, the scope of the second agreement in Grey was the plaintiff’s employment, contrasted with the distinctly narrower scope of the Letter Agreement. Accordingly, the Court finds that even if the Letter Agreement is considered an integrated contract, the broader subject matter of the Agreement is not within the scope of the narrowly worded integration clause. The Court finds that there is clear and unmistakable evidence of a currently enforceable arbitration provision between Plaintiff and Defendant Conceptus governing the claims in this case. Plaintiff argues that the arbitration clause is “procedurally and/or substantively unconscionable” (Opposition Memorandum, at 9:1; emphasis added). Defendants respond that unconscionability is a “gateway issue” properly reserved for the arbitrator where there is clear and unmistakable evidence that the contracting parties intended to reserve to the arbitrator issues of arbitrability. Here, the Agreement’s arbitration clause could hardly be clearer: “It is the parties’ intent that issues of arbitrability of any dispute shall be decided by the Arbitrator.” Even were it not for the contractual stipulation here that gateway issues are for the arbitrator, Plaintiff’s unconscionability argument does not defeat this motion. Defendants are correct that Plaintiff has the burden of proof as to this defense (Hotels Nevada, 144 Cal.App.4th at 758), and that Plaintiff must establish both procedural and substantive unconscionability. Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1471. Plaintiff relies on three facts to establish procedural unconscionability: that the Agreement was drafted by Defendant Conceptus; that she was told she would be wasting her time and money to consult legal counsel as nothing would be changed; and that “the terms were claimed all for my benefit”. (Moses Declaration, at 2:3-7.) Certainly, an agreement is not unconscionable as to the non-drafting party simply because she did not draft it. Plaintiff does not claim that she was prevented from consulting counsel or that she was not given sufficient time to consult counsel—or even that she had any interest at all in consulting counsel before signing. The fact that “nothing would be changed” such that it was essentially an adhesion contract does not render an employment agreement unenforceable. Roman, 172 Cal.App.4th at 1470-1471. Plaintiff does not claim that she was unaware of the arbitration obligation or that she was surprised by it. “The arbitration provision was not buried in a lengthy employment agreement” (id.), but was clearly labeled and expressed in plain language. Plaintiff has failed to establish procedural unconscionability. Plaintiff presents only one argument that the Agreement was substantively unconscionable: lack of mutuality, because “Defendants demand that Ms. Moses arbitrate all claims of any kind or time period, whereas neither Defendant is under any such comprehensive requirement vis-à-vis Ms. Moses.” (Opposition Memorandum, at 9:12-18.) Plaintiff does not cite any language in the Agreement in support of this assertion, and indeed it is simply not

correct: paragraph 8(f)(1) obligates Defendant Conceptus to arbitrate any claim it has with Plaintiff “arising out of or relating to Employee’s employment and/or this Agreement”, subject to the provisional remedy exception in paragraph 8(f)(viii) which is mutual. Plaintiff has not met her burden to show that the Agreement and its arbitration clause are unconscionable. Finally, Plaintiff argues in passing that the discovery stay should be lifted, and that she has had an “insufficient opportunity” to present evidence on account of that stay. (Opposition Memorandum, at 10:10-12.) However, Plaintiff does not articulate any respect in which the stayed discovery would bear on the issues before the Court on this motion. Defendants’ Objections were not presented in a manner that would allow the Court to sustain any of them. For example, the statements to which objection were made were lengthy and contained unobjectionable material. The Court has not considered them in making this ruling. The motion is granted. Plaintiff and Defendant Conceptus are ordered to arbitration in accordance with the Agreement, and this action is otherwise stayed. The February 5, 2013 Case Management Conference is vacated, and an Arbitration Review Conference is set for July 11, 2013, at 10:30 a.m. - oo0oo -

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