Magana vs. Casa Pacifica Nursing Center, LLC

venued in a location convenient for all parties, normally the county where the Facility is located.

(Declaration of Jeffrey S. Healey (“Healey Decl.”), ¶ 2, Ex. A [Arbitration Agreement].)

The Arbitration Agreement broadly covers all claims relating to the provision of care, treatment, and services, including claims for injury or death arising from negligence, intentional torts, and statutory causes of action, including claims under the California Welfare and Institutions Code and Health and Safety Code section 1430. (Id., Arbitration Agreement, Article 2.) The claims asserted in this action therefore fall within the scope of the Agreement. (See Complaint.)

The Arbitration Agreement also expressly provides that it is governed by the Federal Arbitration Act (“FAA”). Accordingly, the FAA applies. (Id., Arbitration Agreement, Article 7.)

The FAA states that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The United States Supreme Court has described this provision as reflecting both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339 (“Concepcion”).)

The FAA permits agreements to arbitrate to be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability.” (Concepcion, supra, 563 U.S. at p. 339.) When deciding whether a valid arbitration agreement exists, courts generally apply “ordinary state-law principles that govern the formation of contracts.” (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944.) “[T]he party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.” (Green Tree Fin. Corp. v. Randolph (2000) 531 U.S. 79, 91.)

On a motion to compel arbitration under the FAA, the court’s role is limited to deciding: “(1) whether there is an agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute.” (Brennan v. Opus Bank (9th Cir. 2015) 796 F.3d 1125, 1130.) If these conditions are satisfied, the court is without discretion to deny the motion and must compel arbitration. (9 U.S.C. § 4; Dean Witter Reynolds, Inc. v. Byrd (1985) 470 U.S. 213, 218 [“By its terms, the [FAA] leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration.”].)

“The trial court determines whether an agreement to arbitrate exists ‘using a three-step burden-shifting process.’ [Citation.] First, the party petitioning to compel arbitration must state ‘the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.’ [Citations.] Signatures on the arbitration agreement need not be authenticated at this initial stage.” (West v. Solar Mosaic LLC (2024) 105 Cal.App.5th 985, 992.)

“If the petitioner meets their initial burden, the burden of production shifts to the party opposing the petition to compel arbitration, who must offer admissible evidence creating a factual dispute as to the agreement’s existence. [Citation]. When the dispute centers on the authenticity of signatures, ‘[t]he opponent need

not prove that his or her purported signature is not authentic, but must submit sufficient evidence to create a factual dispute and shift the burden back to the arbitration proponent, who retains the ultimate burden of proving, by a preponderance of the evidence, the authenticity of the signature.’ ” (Id., at p. 992.)

Defendant Casa Pacifica met its initial burden by submitting a copy of the Arbitration Agreement purportedly signed by Plaintiff, which encompasses Plaintiff’s claims for elder abuse and neglect, violation of the Resident’s Bill of Rights, and negligence. (Declaration of Jeffrey S. Healey (“Healey Decl.”), ¶ 2, Ex. A.)

The burden therefore shifted to Plaintiff to produce admissible evidence creating a factual dispute regarding the agreement’s existence or authenticity.

Plaintiff argues no valid agreement to arbitrate was formed because there was no knowing consent or mutual assent. Plaintiff submits his declaration attesting that he does not speak English, the arbitration agreement was entirely in English, and he does not recall receiving, reviewing, or signing the arbitration agreement or having arbitration explained to him. (Opposition, Declaration of Martin Ramos Magana (“Magana Decl.”), ¶¶ 2-6, 11-12.)

Limited English proficiency and a claimed failure to recall signing an arbitration agreement generally do not invalidate an otherwise enforceable agreement. (See Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1590—immaterial that patient claimed inability to read English, the equivalent of a 5th grade education, and did not remember signing the document; see also Caballero v. Premier Care Simi Valley LLC (2021) 69 Cal.App.5th 512, 519—patient has initial burden to request assistance if unable to read or understand arbitration agreement.)

However, Plaintiff adequately challenges the authentication of the purported agreement because Plaintiff’s signature on the Arbitration Agreement appears to be electronic, yet Defendant Casa Pacifica provides insufficient evidence regarding the execution and authentication of the electronic signature.

Although Defendant Casa Pacifica submitted declarations supporting the existence of the Arbitration Agreement with its moving papers, the declarations do not explain the method of execution and/or how Plaintiff’s assent was verified.

Jeffrey S. Healey, defense counsel, attempts to authenticate the document as one obtained from Defendant’s records, but does not establish personal knowledge regarding Plaintiff’s execution of the agreement or the procedures used to obtain the signature. (See Healey Decl., Ex. A.)

Javier Rodriguez, the admissions coordinator for Harbor Villa Care Center, attests that on or about December 23, 2023, he met with Plaintiff during the admissions process. (Motion, Declaration of Javier Rodriguez (“Rodriguez Decl.”), ¶ 2.) Rodriguez states he explained the arbitration agreement to Plaintiff and/or Plaintiff’s agent in Spanish. (Ibid.) Rodriguez also states he explained that the arbitration agreement was not a precondition to admission, was optional, and could be rescinded in writing within 30 days of signing. (Id., ¶ 3.) Following this explanation, Plaintiff and/or Plaintiff’s agent agreed to and signed the agreement. (Id., ¶ 4.) However, Rodriguez does not explain the method used to obtain the signature, which appears electronic, whether Plaintiff personally reviewed the agreement, whether Plaintiff was provided a copy of the agreement, or the

substance of the explanation allegedly provided in Spanish. Additionally, Rodriguez’s declaration does not identify the agreement attached to defense counsel’s declaration as the agreement Rodriguez explained and/or Plaintiff signed.

Defendant Casa Pacifica, in reply, submitted no additional evidence regarding the electronic execution of the agreement or Plaintiff’s assent thereto.

Accordingly, Plaintiff submitted sufficient evidence to create a factual dispute regarding the authenticity and execution of the Arbitration Agreement, thereby shifting the burden back to Defendant to prove the authenticity of the purported signature by a preponderance of the evidence. On the present record, Defendant Casa Pacifica has not met that burden.

Moreover, even assuming Defendant Casa Pacifica had established the existence and execution of a valid Arbitration Agreement, the Agreement appears unconscionable and therefore unenforceable.

The Arbitration Agreement contains a fee-splitting provision requiring equal allocation of arbitration costs despite evidence that Plaintiff is indigent and unable to afford potentially substantial arbitration fees and costs. The potentially prohibitive arbitration costs, together with the circumstances surrounding execution of the Arbitration Agreement, support findings of both procedural and substantive unconscionability. (See Court’s Tentative Ruling on Defendant 1030 Warner Avenue I Opco LLC dba South C oast Post Acute’s Petition to Compel Arbitration.) Accordingly, the motion to compel arbitration also would be denied on this independent basis.

Accordingly, Defendant Casa Pacifica Nursing Center, LLC dba Harbor Villa Care Center’s petition to compel arbitration is DENIED.

Moving Party to give notice.

Defendant 1030 Warner Avenue I Opco LLC dba South Coast Post Acute’s (“South Coast Acute”) petition to compel arbitration and stay action is DENIED.

Defendant South Coast Acute petition for an order compelling Plaintiff to submit his claims to arbitration and staying the action pending resolution of the arbitration.

The Arbitration Agreement

The Arbitration Agreement broadly covers all claims relating to any action for injury or death arising from care, treatment and services provided by Defendant Post Acute, including negligence, torts, intentional tort and/or statutory causes of action (including all California Welfare and Institutions Code sections, all California Business and Professions Code sections, Health and Safety Code section 1430). (Declaration of Jennifer Tiempos (“Tiempos Decl.”), ¶ 4, Ex. 1 [Arbitration Agreement], ¶¶ 1.1, 2.1.)

The Arbitration Agreement also expressly provides that it is governed by the Federal Arbitration Act (“FAA”). Accordingly, the FAA applies. (Id., Arbitration Agreement, Article 7.)

Defendant requested that Plaintiff submit his claims to arbitration, but Plaintiff declined. (Declaration of Sugam Langer (“Langer Decl.”), ¶4, Ex. C)

Motion to Compel Arbitration

The FAA states that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The United States Supreme Court has described this provision as reflecting both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339 (“Concepcion”).)

The FAA permits agreements to arbitrate to be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability.” (Concepcion, supra, 563 U.S. at p. 339.) When deciding whether a valid arbitration agreement exists, courts generally apply “ordinary state-law principles that govern the formation of contracts.” (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944.) “[T]he party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.” (Green Tree Fin. Corp. v. Randolph (2000) 531 U.S. 79, 91.)

On a motion to compel arbitration under the FAA, the court’s role is limited to deciding: “(1) whether there is an agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute.” (Brennan v. Opus Bank (9th Cir. 2015) 796 F.3d 1125, 1130.) If these conditions are satisfied, the court is without discretion to deny the motion and must compel arbitration. (9 U.S.C. § 4; Dean Witter Reynolds, Inc. v. Byrd (1985) 470 U.S. 213, 218 [“By its terms, the [FAA] leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration.”].)

Agreement to Arbitrate

“The trial court determines whether an agreement to arbitrate exists ‘using a three-step burden-shifting process.’ [Citation.] First, the party petitioning to compel arbitration must state ‘the provisions of the written agreement and the paragraph that provides for arbitration. The provisions must be stated verbatim or a copy must be physically or electronically attached to the petition and incorporated by reference.’ [Citations.] Signatures on the arbitration agreement need not be authenticated at this initial stage.” (West v. Solar Mosaic LLC (2024) 105 Cal.App.5th 985, 992.)

“If the petitioner meets their initial burden, the burden of production shifts to the party opposing the petition to compel arbitration, who must offer admissible evidence creating a factual dispute as to the agreement’s existence. [Citation]. When the dispute centers on the authenticity of signatures, ‘[t]he opponent need not prove that his or her purported signature is not authentic, but must submit sufficient evidence to create a factual dispute and shift the burden back to the arbitration proponent, who retains the ultimate burden of proving, by a preponderance of the evidence, the authenticity of the signature.’ ” (Id., at p. 992.)

Defendant South Coast Acute met its initial burden by submitting a copy of the Arbitration Agreement purportedly signed by Plaintiff, which encompasses Plaintiff’s claims for elder abuse and neglect, violation of the Resident’s Bill of

Rights, and negligence. (Declaration of Miguel Hurtado (“Hurtado Decl.”), ¶¶ 5- 6, Ex. 1.) The burden therefore shifted to Plaintiff to produce admissible evidence creating a factual dispute regarding the agreement’s existence or authenticity.

Plaintiff submits his declaration attesting that he does not speak English, the arbitration agreement was entirely in English, and he does not recall receiving, reviewing, or signing the Arbitration Agreement or having it explained to him. (Opposition, Declaration of Martin Ramos Magana (“Magana Decl.”), ¶¶ 2-6, 11-12.) He argues that no valid agreement to arbitrate was formed because there was no knowing consent or mutual assent.

Defendant South Coast Acute, however, replies that limited English proficiency and a claimed failure to recall signing an arbitration agreement generally do not invalidate an otherwise enforceable agreement. (See Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586, 1590—immaterial that patient claimed inability to read English, the equivalent of a 5th grade education, and did not remember signing the document; see also Caballero v. Premier Care Simi Valley LLC (2021) 69 Cal.App.5th 512, 519—patient has initial burden to request assistance if unable to read or understand arbitration agreement.)

In support of its position, Defendant South Coast Acute submitted the declaration of Jennifer Tiempos, who worked as Assistant Director of Admissions from August 24, 2023 through December 1, 2025. (Declaration of Jennifer Tiempos, ¶ 2.) Tiempos attests that she met with Plaintiff on November 23, 2023, spoke with him in Spanish, and reviewed the Arbitration Agreement with him line-by-line. (Tiempos Decl., ¶ 3.) Tiempos further states that Plaintiff signed the Arbitration Agreement attached to the moving papers. (Id., ¶ 4, Ex. 1 [Arbitration Agreement].)

Defendant also submitted a declaration from Miguel Hurtado, the Administrator and facility representative, who states he is familiar with Defendant’s admission and arbitration agreements maintained in the ordinary course of business. (Hurtado Decl., ¶¶ 1-2, 5-6, Ex. 1 [Arbitration Agreement].) Hurtado attests that the Arbitration Agreement, along with the DocuSign Certificate of Completion, is a true and correct copy of Plaintiff Martin Ramos Magana’s Arbitration Agreement, which was signed by Plaintiff and prepared and maintained in the ordinary course of business by authorized persons at or near the time of the act, condition, or event. (Id., ¶ 6, Ex. 1.)

On this record, Plaintiff’s claimed lack of recollection and limited-English arguments, without more, are insufficient to overcome Defendant’s prima facie showing regarding the existence and authenticity of the Arbitration Agreement. Although Plaintiff disputes mutual assent, Plaintiff does not deny the signature is his, submit evidence suggesting the signature was forged or unauthorized, or otherwise present evidence sufficient to create a material factual dispute. (See West v. Solar Mosaic LLC, supra, 105 Cal.App.5th at p. 992.)

Unconscionability

Plaintiff also contends that the Arbitration Agreement is unenforceable because it is unconscionable.

The doctrine of unconscionability refers to “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57

Cal.4th 1109, 1133.) It consists of both procedural and substantive components – “the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.” (Ibid.)

In order to be unenforceable due to unconscionability, “’[procedural and substantive unconscionability] must both be present.’” (Armendariz v. Found Health Psychcare Servs., Inc., supra, 24 Cal.4th at p. 114, quoting Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533; see Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242, 1246 [“To be voided on [unconscionability] ground[s], the agreement must be both procedurally and substantively unconscionable.”)

However, “they need not be present in the same degree.” (Armendariz v. Found Health Psychcare Servs., Inc., supra, 24 Cal.4th 83, 114; Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1570.)

“Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. In other words, the more substantively unconscionable the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz v. Found Health Psychcare Servs., Inc., supra, 24 Cal.4th 83 at p. 114.)

“The party resisting arbitration bears the burden of proving unconscionability.” (Pinnacle Museum Tower Ass’n v. Pinnacle Market Dev. (US), LLC (2012) 55 Cal.4th 223, 247.)

Procedural Unconscionability

Procedural unconscionability concerns the manner in which the contract was negotiated and the parties' circumstances at that time. It focuses on the factors of surprise and oppression. (Kinney v. United Healthcare Servs. (1999) 70 Cal.App.4th 1322, 1329.)

These factors “include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party’s review of the proposed contract was aided by an attorney.” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126-127.)

Thus, the Supreme Court has instructed courts to first determine whether an arbitration agreement is adhesive. (See Armendariz v. Found. Health Psychcare Servs., Inc., supra, 24 Cal. 4th 83, 114–15.) “Oppression generally takes the form of a contract of adhesion, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84, quotations and citations omitted.)

Plaintiff contends the Arbitration Agreement is procedurally unconscionable because it was presented in an oppressive and adhesive manner, without any meaningful opportunity to negotiate its terms.

The circumstances surrounding presentation and execution of the Arbitration Agreement support at least some degree of procedural unconscionability. The agreement was presented during the admissions process while Plaintiff required ongoing nursing care, the agreement was entirely in English despite Plaintiff’s alleged inability to speak English, and there is no evidence Plaintiff had any meaningful opportunity to negotiate the agreement’s terms. Additionally, Plaintiff likely would have been surprised by the high arbitral fees and costs, as they are neither disclosed in the Arbitration Agreement nor readily ascertainable. (See Declaration of Diana Connaughton (“Connaughton Decl.”), ¶¶ 2-4 [opining that Plaintiff would likely incur arbitrator fees ranging from $16,665 to $25,000].) “ ‘While arbitration may be within the reasonable expectations of consumers, a process that builds prohibitively expensive fees into the arbitration process is not. [Citation.]’ ” (Sanchez v.

Superior Court (2025) 108 Cal.App.5th 615, 628.)

The degree of procedural unconscionability is somewhat mitigated, however, by evidence that the Arbitration Agreement was a stand-alone agreement, expressly stated that arbitration was not a condition of admission, provided a 30-day rescission period, and was allegedly explained to Plaintiff in Spanish prior to execution.

Substantive Unconscionability

To be invalid, the arbitration agreement must also be substantively unconscionable. “Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh.” (Carmona v. Lincoln Millennium Car Wash, Inc., supra, 226 Cal.App.4th at p. 85, quotations and citations omitted.) “A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be so one-sided as to ‘shock the conscience.’” (Ibid.)

The “paramount consideration” is the mutuality of the obligation to arbitrate. (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1287.) “Substantive unconscionability focuses on the one-sidedness or overly harsh effect of the contract term or clause.” (Harper v. Ultimo (2003) 113 Cal.App.4th 1402, 1406-1407.) An arbitration agreement “lacks basic fairness and mutuality if it requires one contracting party, but not the other, to arbitrate all claims arising out of the same transaction or occurrence or series of transactions or occurrences.” (Armendariz v. Found Health Psychcare Servs., Inc., supra, 24 Cal.4th at p. 120.)

Plaintiff argues the Arbitration Agreement is substantively unconscionable because the potentially substantial arbitration costs and fee-sharing provisions would impose an insurmountable financial burden on Plaintiff, an indigent claimant, thereby creating a risk that Plaintiff would effectively be denied any forum to pursue his claims.

Here, Article 6 of the Arbitration Agreement provides: “The expenses and fees of the arbitrator shall be apportioned equally among all parties except as otherwise required by law.” (Arbitration Agreement, Article 6.) Although the Agreement includes the qualifying phrase “except as otherwise required by law,” it nonetheless expressly contemplates equal allocation of arbitration costs between the parties.

California courts have recognized that arbitration provisions are substantively unconscionable where the anticipated costs of arbitration would, in practice, be

unaffordable or would substantially deter a plaintiff from pursuing claims. (See Sanchez v. Superior Court, supra, 108 Cal.App.5th at pp. 628-630; Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 920; Haydon v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1291.)

As explained in Sanchez v. Superior Court, supra, 108 Cal.App.5th at p. 624:

A party’s inability to pay arbitral fees and costs can preclude enforceability of an arbitration agreement because the high fees and costs would render the agreement unconscionable. (See Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 90, 7 Cal.Rptr.3d 267 (Gutierrez) [“[I]t is substantively unconscionable to require a consumer to give up the right to utilize the judicial system, while imposing arbitral forum fees that are prohibitively high”].) The high arbitral fees and costs also can provide a basis for relief from an arbitration that has been ordered.

If a party is unable to pay the fees and costs, the other party “can elect to either pay that [party's] share of the arbitration cost and remain in arbitration or waive its right to arbitrate that [party's] claim.” (Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 96, 161 Cal.Rptr.3d 493 (Roldan).) A party seeking relief on either ground may proceed via writ. (See Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 160, 53 Cal.Rptr.3d 69 [“writ review of orders compelling arbitration is proper . . . if the arbitration would appear to be unduly time consuming or expensive”]; accord, Parada v.

Superior Court (2009) 176 Cal.App.4th 1554, 1567, 98 Cal.Rptr.3d 743 (Parada) [“In this case, the high cost of arbitrating before a three-judge panel at JAMS and the amount of time necessary to complete arbitration justify reviewing the order compelling arbitration by writ of mandate”].)

Plaintiff has presented evidence that arbitration in this matter could require substantial arbitrator time and fees, potentially ranging from approximately $16,665 to $25,000. (Connaughton Decl., ¶¶ 2-4.) Such costs would be prohibitively expensive for Plaintiff, who attests he receives approximately $500 to $575 per month in Social Security benefits and approximately $289 in EBT benefits and lacks sufficient funds to pay arbitration costs. (Magana Decl., ¶¶ 8- 10.) Thus, the Arbitration Agreement appears to be substantively unconscionable.

On the present record, the Court finds that the combination of circumstances surrounding the execution of the Arbitration Agreement and the potentially prohibitive arbitration costs supports a finding that the Arbitration Agreement is unenforceable due to unconscionability.

Moreover, requiring an indigent party to bear unaffordable arbitration costs may effectively deprive that party of any forum to resolve his claims, contrary to California’s strong public policy favoring access to justice regardless of financial means. (Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, 95-96 (Roldan).) Under Roldan, where a party is unable to afford arbitration fees and costs, the opposing party must either agree to bear those costs or waive its right to compel arbitration. (Id. at p. 96.) Thus, even if the Arbitration Agreement were otherwise enforceable, Defendant cannot compel arbitration without either agreeing to bear Plaintiff’s share of the arbitration fees and costs or waiving arbitration altogether. Here, there is no evidence Defendant has agreed to do so.

Accordingly, Defendant 1030 Warner Avenue I Opco LLC dba South Coast Post Acute’s petition to compel arbitration is DENIED.

Moving Party to give notice.

52 De La O Ojeda vs. 2100 E 4th St 92705 LLC

24-01398443 Motion for Leave to File Cross Complaint

The Motion for Leave to File a Cross-Complaint brought by Defendant 2100 E. 4th St 92705 LLC is GRANTED, pursuant to Code of Civil Procedure section 428.50.

Defendant seeks leave to file a Cross-Complaint against the Consulate of the United Mexican Sates in Santa Ana, seeking: (1) Equitable Indemnity; (2) Apportionment of Fault; (3) Express Indemnity; and (4) Declaratory Relief. (¶3 of Arnall Declaration and Exhibit 1 thereto).

The proposed Cross-Complaint specifically identifies the instant action and asserts proposed Cross-Defendant shares liability for the injuries sustained by Plaintiff. (See ¶2, ¶7, ¶10 and ¶15-¶16 of Proposed Cross-Complaint [Exhibit 1 of Arnall Declaration]). Per Counsel, “[t]he basis of the proposed crosscomplaint is contractual indemnity and defense owed by the Consulate pursuant to the terms of the written lease entered into between Defendant and the Consulate....” (¶5 of Arnall Declaration).

“Cross-complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/ All American Development Co. (1991) 230 Cal.App.3d 30, 38.) “An indemnity claim effectively seeks to apportion among the parties to the indemnity action the precise liability claimed by the plaintiff in the main action; therefore the indemnity claim of necessity arises out of the same occurrence or series of occurrences as asserted by the plaintiff.” (Id. at p. 39.)

Based on the above, the proposed pleading qualifies for leave pursuant to Code of Civil Procedure section 428.10, subdivision (b)(1).

Additionally, as no prejudice is apparent from the request, leave to amend is GRANTED. Defendant shall separately file and serve their Proposed Cross- Complaint (¶3 of Arnall Declaration and Exhibit 1 thereto), within 10 days of this order.

53 Mirzadeh vs. Sandoval

25-01507072 Demurrer to Complaint & Motion to Quash Service of Summons

Demurrer to Complaint

Defendant Capital Aspects Limited Liability Co. (“Capital Aspects”) demurs to the first and second causes of action asserted in the Complaint filed by Moshen Mirzadeh. The demurrer is SUSTAINED. Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff must file and serve it within 15 days of service of notice of ruling.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404- 05.)