Towfik vs. AMN Services LLC

The attorney in an action or special proceeding may be changed at any time before or after judgment or final determination . . . [u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” (Code Civ. Proc., § 284.)

Rule of Court 3.1362 governs motions to be relieved as counsel. The court has reviewed the materials submitted by Moving Counsel, Attorney Austin Nichter, and finds that Moving Counsel have complied with the requirements of Rule 3.1362.

The court’s order shall become effective upon the filing of a Proof of Service showing service of the signed order on Plaintiff Judith Hummer.

Moving Counsel to give notice.

13 Towfik vs. TENTATIVE RULING: AMN Services LLC Motion to Enforce Order

Plaintiff Orit Towfik moves to enforce this Court’s October 8, 2025, order and compel Defendant Farbod Esmailian (“Esmailian”) to participate in the pending JAMS arbitration. For the following reasons, the motion is GRANTED.

Esmailian is ORDERED to rescind his Notice of Withdrawal from the JAMS arbitration within 15 days and participate in the arbitration.

Procedural History

On July 11, 2025, Defendant AMN Services LLC (“AMN”) filed its motion to compel arbitration. It served that motion on counsel for Plaintiff and counsel for Defendant The Regents of the University of California (“The Regents”). (ROA 26.) Esmailian was not served with that motion.

On August 6, 2025, Defendant The Regents filed a motion for joinder in AMN’s motion to compel arbitration. (ROA 43.) The Regents’ motion included its own memorandum of points and authorities setting forth its contentions that arbitration should be compelled. (Ibid.) The Regents served Esmailian with that joinder.

On August 27, 2025, the parties – including counsel for Esmailian – submitted a stipulation to advance the hearing on The Regents’ joinder to be heard concurrently with AMN’s motion to compel

arbitration on October 8, 2025. (ROA 64.) That stipulation was also served on counsel for Esmailian. (ROA 59.) Esmailian was also served with Plaintiff’s Opposition to the motion to compel arbitration and the replies filed by the Regents and AMN. (ROAs 86, 96, 102.) In particular, AMN served Esmailian with its reply on October 1, 2025, in which AMN set forth its contentions as to why the arbitration agreement applies to Esmailian. (ROA 94.)

Esmailian himself, along with counsel, appeared at the October 8, 2025, hearing on the motion to compel arbitration. (ROA 98.) The Court granted the motion to compel arbitration as to all Defendants and the action was stayed pending the completion of arbitration. (Ibid.) AMN served notice of that ruling on Esmailian. (ROA 106.)

Plaintiff then filed a demand for arbitration and the parties agreed to stay the JAMS arbitration to pursue private mediation. (Naumova Dec., ¶¶ 6-7.) However, after mediation did not result in a settlement, Esmailian’s counsel sent a “Notice of Withdrawal from Arbitration” dated March 4, 2026. (Naumova Dec., Ex. H.) On March 25, 2026, Esmailian’s counsel emailed the other parties’ counsel:

Judge Gaffney’s order is incorrect as to Dr. Esmailian. Judge Gaffney relied on baseless and erroneous allegations in the Complaint that – “[t]he Complaint alleges that Defendant Esmailian was Defendant Regents’ employee and Plaintiffs’ supervisor.” [¶] It is undisputed that Dr. Esmailian was not the Regent’s employee at the time of the alleged incident and has never been the Regent’s employee. He was also not Plaintiff’s supervisor at the time of the incident and has never been Plaintiff’s supervisor. He has no employment affiliation with Plaintiff whatsoever as a matter of law. This is well supported by the facts.” (Naumova Dec., Ex. J.)

On May 1, 2026, Plaintiff filed this motion to enforce the order compelling arbitration. (ROA 130.)

Reconsideration

Esmailian was served with the Regents’ moving papers, Plaintiff’s opposition, all of the reply papers for the arbitration motion. He appeared at the hearing, both personally and through counsel. He was served with notice of the Court’s ruling. Yet he did not submit any sort of objection to the Court’s October 8, 2025, ruling until March 4, 2026 – almost 5 months later, and after he participated in mediation.

To be clear, Esmailian has not moved for reconsideration of the

Court’s October 8, 2025, order – he has not filed any motion at all. Instead, his opposition to this motion seeks reconsideration of the October 8, 2025, order. However, any such motion for reconsideration of the October 8, 2025, would be untimely.

A motion for reconsideration must be filed within 10 days of service on him of notice of entry of the order in question. (Code Civ. Proc. § 1008(a).) The 10-day deadline for seeking reconsideration is extended under Code Civ. Proc. § 1013 for service by mail, fax, electronic service or overnight delivery, which applies “in the absence of a specific exception provided for by this section or other statute or rule of court.” (Code Civ. Proc. § 1013(a),(c),(e).)

Esmailian contends that the Court’s October 8, 2025, ruling is erroneous because he does not have an agency relationship with the other defendants because he is an independent contractor. (ROA 138 at 6:8-9 [“Given Defendant Esmailian is an independent contractor, there is simply no basis to claim agency.”].) However, the two are not mutually exclusive. (Secci v. United Independant Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846, 859 [“California law recognizes that an individual hired as an independent contractor may be an agent. ‘Agency and independent contractorship are not necessarily mutually exclusive legal categories as independent contractor and servant or employee are.

In other words, an agent may also be an independent contractor. [Citation.]’ ”.].) The Complaint alleges that “UCI HEALTH cloaked Defendant ESMAILIAN with the appearance of actual authority, such that Plaintiff was justified in relying thereon, and therefore his acts and/or omissions to act are imputable to Defendant UCI HEALTH...” (Complaint, ¶ 9.)

Esmailian also contends that the claim against him for hostile work environment based on race in violation of FEHA is not “intertwined with” the claims against the remaining Defendants, apparently because there are 8 causes of action in total but only one is directed at Esmailian:

Additionally, the claim against Defendant Esmailian is not “intertwined with” the claims against the remaining defendants. There is only one cause of action against Defendant Esmailian - Hostile Work Environment Based on Race in Violation of FEHA. There are 8 causes of action against the defendants that filed the Motion to Compel.

(ROA 138 at 5:19-22.)

Not quite. The third cause of action for failure to prevent harassment focuses on Esmailian’s conduct. (Complaint, ¶ 62 [“62. At all times relevant to this action, Defendant ESMAILIAN severely and pervasively engaged in unwelcome overtures, racial epithets and unwanted verbal comments based on race with Plaintiff.”].) The remaining causes of action assert discrimination or retaliation for Plaintiff’s alleged reporting of Esmailian’s conduct. (See, e.g., Complaint.) More importantly, however, the Court’s order compelling Esmailian to arbitrate was based on principles of agency and equitable estoppel. Esmailian has not established that Plaintiff’s agency allegations are false as a matter of law. Esmailian does not provide a sufficient basis to set aside the Court’s October 8, 2025, order.

Plaintiff to give notice.

14 Colligan vs. OFF CALENDAR So-Cal Boys Restaurant Group Inc. 15 Mohagen vs. TENTATIVE RULING: BMW of North America, LLC For the reasons set forth below, Defendant BMW of North America, LLC’s (“BMW” or “Defendant”) motion for summary judgment/adjudication is GRANTED.

Preliminarily, both Plaintiff’s opposition and BMW’s reply were untimely. The Court exercises its discretion to consider the untimely opposition and reply.

Statement of Law

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc.