This case was last updated from Los Angeles County Superior Courts on 09/12/2021 at 03:02:58 (UTC).

DANIEL GARCIA VS FEDEX CORPORATION, ET AL.

Case Summary

On 06/26/2020 DANIEL GARCIA filed a Personal Injury - Other Personal Injury lawsuit against FEDEX CORPORATION. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is DANIEL M. CROWLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4329

  • Filing Date:

    06/26/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL M. CROWLEY

 

Party Details

Respondent and Plaintiff

GARCIA DANIEL

Defendants and Appellants

2ND MARKETING LLC

MAY RYAN

FEDEX CORPORATION

MARQUEZ ANTHONY EDWARD

FEDEX GROUND PACKAGE SYSTEM INC.

ABAD P&D SERVICES

CPR HOME SOLUTIONS INC.

RALYX CAPITAL INC.

Attorney/Law Firm Details

Plaintiff Attorney

AMIN PARAG L.

Defendant Attorneys

LEZON TODD G.

TROSTAD TYE

 

Court Documents

Opposition - OPPOSITION TO 2ND MARKETING, LLC'S EX PARTE APPLICATION (CORRECTED)

9/8/2021: Opposition - OPPOSITION TO 2ND MARKETING, LLC'S EX PARTE APPLICATION (CORRECTED)

Opposition - OPPOSITION DEFENDANTS FEDEX GROUND PACKAGE SYSTEM, INC. AND ABAD P AND D SERVICES' OPPOSITION TO DEFENDANT, 2ND MARKETING, LLC'S EX PARTE APPLICATION FOR STAY OF PROCEEDINGS PENDING APPEA

9/8/2021: Opposition - OPPOSITION DEFENDANTS FEDEX GROUND PACKAGE SYSTEM, INC. AND ABAD P AND D SERVICES' OPPOSITION TO DEFENDANT, 2ND MARKETING, LLC'S EX PARTE APPLICATION FOR STAY OF PROCEEDINGS PENDING APPEA

Ex Parte Application - EX PARTE APPLICATION FOR STAY OF PROCEEDINGS PENDING APPEAL

9/8/2021: Ex Parte Application - EX PARTE APPLICATION FOR STAY OF PROCEEDINGS PENDING APPEAL

Minute Order - MINUTE ORDER (DEFENDANTS @ND MARKETING, LLC'S EX PARTE APPLICATION FOR STAY...)

9/9/2021: Minute Order - MINUTE ORDER (DEFENDANTS @ND MARKETING, LLC'S EX PARTE APPLICATION FOR STAY...)

Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL B311421 - NOA 3/2/21

6/14/2021: Appeal - Notice of Fees Due for Clerk's Transcript on Appeal - APPEAL - NOTICE OF FEES DUE FOR CLERK'S TRANSCRIPT ON APPEAL B311421 - NOA 3/2/21

Appeal - Notice Court Reporter to Prepare Appeal Transcript - APPEAL - NOTICE COURT REPORTER TO PREPARE APPEAL TRANSCRIPT - B311421 - NOA 3/2/21

7/13/2021: Appeal - Notice Court Reporter to Prepare Appeal Transcript - APPEAL - NOTICE COURT REPORTER TO PREPARE APPEAL TRANSCRIPT - B311421 - NOA 3/2/21

Appeal - Notice of Default Issued

5/3/2021: Appeal - Notice of Default Issued

Notice - NOTICE NOTICE OF WAIVER OF COURT REPORTER FEES

5/10/2021: Notice - NOTICE NOTICE OF WAIVER OF COURT REPORTER FEES

Notice - NOTICE OF UNAVAILABILITY OF DEFENSE COUNSEL

4/9/2021: Notice - NOTICE OF UNAVAILABILITY OF DEFENSE COUNSEL

Motion for Determination of Good Faith Settlement (CCP 877.6)

4/15/2021: Motion for Determination of Good Faith Settlement (CCP 877.6)

Appeal - Notice of Appeal/Cross Appeal Filed

3/2/2021: Appeal - Notice of Appeal/Cross Appeal Filed

Proof of Service (not Summons and Complaint)

3/3/2021: Proof of Service (not Summons and Complaint)

Appeal - Ntc Designating Record of Appeal APP-003/010/103

3/10/2021: Appeal - Ntc Designating Record of Appeal APP-003/010/103

Appeal - Notice of Filing of Notice of Appeal

3/16/2021: Appeal - Notice of Filing of Notice of Appeal

Answer

2/22/2021: Answer

Notice of Posting of Jury Fees

2/22/2021: Notice of Posting of Jury Fees

Proof of Service (not Summons and Complaint)

2/22/2021: Proof of Service (not Summons and Complaint)

Notice of Ruling

2/22/2021: Notice of Ruling

49 More Documents Available

 

Docket Entries

  • 06/23/2023
  • Hearing06/23/2023 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 03/28/2022
  • Hearing03/28/2022 at 1:30 PM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 03/28/2022
  • Hearing03/28/2022 at 1:30 PM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6)

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  • 09/09/2021
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Hearing on Ex Parte Application (for Stay of Proceedings Pending Appeal) - Held - Motion Granted

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  • 09/09/2021
  • DocketMinute Order ( (Defendants @nd Marketing, LLC's Ex Parte Application for Stay...)); Filed by Clerk

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  • 09/08/2021
  • DocketOpposition (to 2nd Marketing, LLC's Ex Parte Application (Corrected)); Filed by Daniel Garcia (Plaintiff)

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  • 09/08/2021
  • DocketOpposition (DEFENDANTS FEDEX GROUND PACKAGE SYSTEM, INC. AND ABAD P AND D SERVICES' OPPOSITION TO DEFENDANT, 2ND MARKETING, LLC'S EX PARTE APPLICATION FOR STAY OF PROCEEDINGS PENDING APPEAL); Filed by FedEx Ground Package System, Inc. (Defendant)

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  • 09/08/2021
  • DocketEx Parte Application (for Stay of Proceedings Pending Appeal); Filed by 2nd Marketing, LLC (Defendant)

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  • 07/13/2021
  • DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (- B311421 - NOA 3/2/21); Filed by Clerk

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  • 06/14/2021
  • DocketAppeal - Notice of Fees Due for Clerk's Transcript on Appeal (B311421 - NOA 3/2/21); Filed by Clerk

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50 More Docket Entries
  • 07/27/2020
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Daniel Garcia (Plaintiff)

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  • 07/20/2020
  • DocketProof of Service by Substituted Service; Filed by Daniel Garcia (Plaintiff)

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  • 07/20/2020
  • DocketProof of Personal Service; Filed by Daniel Garcia (Plaintiff)

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  • 07/20/2020
  • DocketProof of Service by Substituted Service; Filed by Daniel Garcia (Plaintiff)

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  • 07/10/2020
  • DocketAnswer; Filed by Ryan May (Defendant)

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  • 06/26/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 06/26/2020
  • DocketCivil Case Cover Sheet; Filed by Daniel Garcia (Plaintiff)

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  • 06/26/2020
  • DocketSummons (on Complaint); Filed by Daniel Garcia (Plaintiff)

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  • 06/26/2020
  • DocketCivil Case Cover Sheet; Filed by Daniel Garcia (Plaintiff)

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  • 06/26/2020
  • DocketComplaint; Filed by Daniel Garcia (Plaintiff)

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Tentative Rulings

Case Number: 20STCV24329    Hearing Date: February 18, 2021    Dept: 28

Demurrer without a Motion to Strike

Having considered the demurring, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On June 26, 2020, Plaintiff Daniel Garcia (“Plaintiff”) filed a complaint against Defendants FedEx Corporation, Anthony Edward Marquez, Ryan May, and 2nd Marketing, LLC.  Plaintiff alleges general and motor vehicle negligence arising from a rear-end collision that occurred on February 6, 2020.

On July 27, 2020, Plaintiff filed an amendment to his complaint to rename Doe 1 as Defendant FedEx Ground Package System, Inc.

On September 15, 2020, the Court dismissed Defendant FedEx Corporation without prejudice.

On October 6, 2020, Plaintiff filed amendments to his complaint to rename Doe 2 as Defendant Abad P&D Services, Doe 3 as Defendant CPR Home Solutions Inc., and Doe 4 as Defendant Raylx Capital, Inc.

On December 10, 2020, Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. filed a demurrer to the complaint pursuant to California Code of Civil Procedure section 430.10.

Trial is set for December 27, 2021.

PARTIESREQUESTS

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. ask the Court to sustain their demurrer to Plaintiff’s complaint because it is based on false allegations and amounts to inconsistent pleading.

JUDICIAL NOTICE

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. ask the Court to take judicial notice of five documents: (1) this complaint filed in this action, (2) an employment agreement executed by Plaintiff, (3) a verified form interrogatory, (4) a traffic collision report, and (5) billing documents. The Court takes judicial notice of the complaint in this action pursuant to California Evidence Code section 452, subdivision (d).  The Court declines to take judicial notice of the remaining documents because they are not judicially noticeable.

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. also ask the Court to take judicial notice of the following facts: (1) Plaintiff was employed by Defendant 2nd Marketing, LLC, (2) Plaintiff admitted he was employed by 2nd Marketing, LLC, (3) Plaintiff was transported by ambulance to the emergency room following the accident where he falsely claimed he was employed by CalPros Renovations, and (4) Plaintiff’s x-rays showed his clavicle, shoulder, and humerus were “normal.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.)  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”])

DISCUSSION

Meet and Confer

The Court finds Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. have filed a code-compliant meet and confer declaration. (Trostad Declaration, 5.)

Demurrer – Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Plaintiff alleges the following in his complaint.  On February 6, 2020, Plaintiff was a passenger in a vehicle that rear-ended Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s vehicle.  (Compl., p. 5.)  Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s employee illegally parked his or her company’s vehicle in a “no parking” zone and without hazard lights on, making it appear to be in motion.  (Compl., pp. 4-5.)  This caused Plaintiff injuries.  (Ibid.)

The Court finds sufficient facts have been alleged to state a cause of action for general and motor vehicle negligence.  Plaintiff has alleged that Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s vehicle was illegally parked by their employee in a way that caused Plaintiff injuries.  This is sufficient to state a cause of action for negligence.

Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s argument that Plaintiff’s allegations are false is an issue beyond the scope of this demurrer.  Such an inquiry does not test the sufficiency of Plaintiff’s pleading, but rather the merits of Plaintiff’s claims.  Moreover, the evidence of Plaintiff’s discovery responses are not conclusive here because the verification is not filed and, even if filed, such responses are not conclusive.  (See Magnolia Square Homeowners Ass’n v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061.)  These arguments are more properly addressed on an evidentiary hearing, such as a motion for summary judgment.

The Court quickly notes that it view’s Plaintiff’s negligence per se cause allegations as merely another count of negligence and not a separate cause of action.  Importantly, these allegations are not listed in a separate cause of action entitled negligence per se and are, thus, not subject to a demurrer.

CONCLUSION

Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s demurrer is OVERRULED.

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. are ordered to give notice of this ruling.

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. are ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: 20STCV24329    Hearing Date: February 17, 2021    Dept: 28

Demurrer without a Motion to Strike

Having considered the demurring, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On June 26, 2020, Plaintiff Daniel Garcia (“Plaintiff”) filed a complaint against Defendants FedEx Corporation, Anthony Edward Marquez, Ryan May, and 2nd Marketing, LLC.  Plaintiff alleges general and motor vehicle negligence arising from a rear-end collision that occurred on February 6, 2020.

On July 27, 2020, Plaintiff filed an amendment to his complaint to rename Doe 1 as Defendant FedEx Ground Package System, Inc.

On September 15, 2020, the Court dismissed Defendant FedEx Corporation without prejudice.

On October 6, 2020, Plaintiff filed amendments to his complaint to rename Doe 2 as Defendant Abad P&D Services, Doe 3 as Defendant CPR Home Solutions Inc., and Doe 4 as Defendant Raylx Capital, Inc.

On December 10, 2020, Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. filed a demurrer to the complaint pursuant to California Code of Civil Procedure section 430.10.

Trial is set for December 27, 2021.

PARTIESREQUESTS

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. ask the Court to sustain their demurrer to Plaintiff’s complaint because it is based on false allegations and amounts to inconsistent pleading.

JUDICIAL NOTICE

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. ask the Court to take judicial notice of five documents: (1) this complaint filed in this action, (2) an employment agreement executed by Plaintiff, (3) a verified form interrogatory, (4) a traffic collision report, and (5) billing documents. The Court takes judicial notice of the complaint in this action pursuant to California Evidence Code section 452, subdivision (d).  The Court declines to take judicial notice of the remaining documents because they are not judicially noticeable.

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. also ask the Court to take judicial notice of the following facts: (1) Plaintiff was employed by Defendant 2nd Marketing, LLC, (2) Plaintiff admitted he was employed by 2nd Marketing, LLC, (3) Plaintiff was transported by ambulance to the emergency room following the accident where he falsely claimed he was employed by CalPros Renovations, and (4) Plaintiff’s x-rays showed his clavicle, shoulder, and humerus were “normal.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., § 430.41.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.)  The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged.  (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true.”])

DISCUSSION

Meet and Confer

The Court finds Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. have filed a code-compliant meet and confer declaration. (Trostad Declaration, 5.)

Demurrer – Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Plaintiff alleges the following in his complaint.  On February 6, 2020, Plaintiff was a passenger in a vehicle that rear-ended Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s vehicle.  (Compl., p. 5.)  Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s employee illegally parked his or her company’s vehicle in a “no parking” zone and without hazard lights on, making it appear to be in motion.  (Compl., pp. 4-5.)  This caused Plaintiff injuries.  (Ibid.)

The Court finds sufficient facts have been alleged to state a cause of action for general and motor vehicle negligence.  Plaintiff has alleged that Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s vehicle was illegally parked by their employee in a way that caused Plaintiff injuries.  This is sufficient to state a cause of action for negligence.

Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s argument that Plaintiff’s allegations are false is an issue beyond the scope of this demurrer.  Such an inquiry does not test the sufficiency of Plaintiff’s pleading, but rather the merits of Plaintiff’s claims.  Moreover, the evidence of Plaintiff’s discovery responses are not conclusive here because the verification is not filed and, even if filed, such responses are not conclusive.  (See Magnolia Square Homeowners Ass’n v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061.)  These arguments are more properly addressed on an evidentiary hearing, such as a motion for summary judgment.

The Court quickly notes that it view’s Plaintiff’s negligence per se cause allegations as merely another count of negligence and not a separate cause of action.  Importantly, these allegations are not listed in a separate cause of action entitled negligence per se and are, thus, not subject to a demurrer.

CONCLUSION

Defendants CPR Home Solutions, Inc.’s and Raylx Capital, Inc.’s demurrer is OVERRULED.

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. are ordered to give notice of this ruling.

Defendants CPR Home Solutions, Inc. and Raylx Capital, Inc. are ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: 20STCV24329    Hearing Date: February 10, 2021    Dept: 28

Motion to Compel Arbitration

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On June 26, 2020, Plaintiff Daniel Garcia (“Plaintiff”) filed a complaint against Defendants FedEx Corporation, Anthony Edward Marquez, Ryan May, and 2nd Marketing, LLC.  Plaintiff alleges general and motor vehicle negligence arising from a rear-end collision that occurred on February 6, 2020.

On July 27, 2020, Plaintiff filed an amendment to his complaint to rename Doe 1 as Defendant FedEx Ground Package System, Inc.

On September 15, 2020, the Court dismissed Defendant FedEx Corporation without prejudice.

On October 6, 2020, Plaintiff filed amendments to his complaint to rename Doe 2 as Defendant Abad P&D Services, Doe 3 as Defendant CPR Home Solutions Inc., and Doe 4 as Defendant Raylx Capital, Inc.

On December 14, 2020, Defendant 2nd Marketing, LLC filed a motion to compel arbitration pursuant to California Code of Civil Procedure section 1281.2 and Federal Arbitration Act.

Trial is set for December 27, 2021.

PARTYS REQUESTS

Defendant 2nd Marketing, LLC asks the Court to compel Plaintiff to engage in arbitration and stay the proceedings until arbitration has been completed.

JUDICIAL NOTICE

Plaintiff asks the Court to take judicial notice of Defendant 2nd Marketing LLC’s Cancellation Certificate filed with the California Secretary of State on May 18, 2020.  This request is GRANTED pursuant to California Evidence Code section 452, subdivision (c).

LEGAL STANDARD

Federal Arbitration Act

The Federal Arbitration Act (“FAA”) governs the enforceability of arbitration clauses in written contracts involving interstate commerce or maritime transactions.  (9 U.S.C., §§ 1-2.)  In non-maritime transactions, the party seeking to compel arbitration has the burden to show that an underlying agreement involves interstate commerce.  (Hoover v. Amer. Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1208 [finding the party failed to evidence that the agreement involved interstate commerce, and that the contractual relationship had a specific effect or ‘bear[ing] on interstate commerce in a substantial way.])

California Code of Civil Procedure section 1281.2

California Code of Civil Procedure section 1281.2, permits a party to file a petition to request that the Court order the parties to arbitrate a controversy.  Under section 1281.2, a party is permitted to file a motion to request an order directing the parties to arbitrate a controversy.  Section 1281.2 also states that the Court may grant the motion if the Court determines that an agreement to arbitrate the controversy exists.

When a motion to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable.  (Rosenthal v. Great Western Financial Sec. Corp. (1996) 14 Cal.4th 394, 413.)  The moving party bears the burden of proving its existence by a preponderance of the evidence because the existence of the agreement is a statutory prerequisite to granting the petition.  (Ibid.)

A party opposing a motion to compel arbitration based on a defense to enforcement bears the burden establishing the defense by producing evidence and proving the defense by a preponderance of the evidence.  (Ibid.)  The facts are to be proven by affidavit or declaration and documentary evidence, with oral testimony taken only in the court’s discretion.  (Id. at pp. 413-414.)  The trial court’s role is to resolve these factual issues, not merely to determine whether evidence opposing the petition has sufficient substantiality.  (Id. at p. 414.)

Since binding arbitration is a matter of contract, the parties may freely delineate the area of its application, and a proceeding to compel arbitration is in essence a suit in equity to compel specific performance of a contract.  (Freeman v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479; Morris v. Zuckerman (1967) 257 Cal.App.2d 91, 96.) (Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 105; O’Malley v. Wilshire Oil Co. (1963) 59 Cal.2d 482, 490-491.) (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.)

There is a strong policy in favor of enforcing agreements to arbitrate, but there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate.  (State Farm Mut. Auto. Ins. Co. v. Superior Court (1994) 23 Cal.App.4th 1297, 1301-1302.)

DISCUSSION

Federal Arbitration Act

The Court finds the FAA does not apply here.  The agreement between Defendant 2nd Marketing, LLC and Plaintiff was entered so as to employee Plaintiff as Defendant 2nd Marketing, LLC’s canvasser.  (Trostad Decl., ¶ 5, Exh. A.)  Plaintiff’s contractual duty to travel consisted of going door-to-door in providing company materials to residents.  (Ibid.)  There is no evidence showing Plaintiff was required to or actually did cross state lines as a result of his contractual relationship with Defendant 2nd Marketing, LLC.  In short, the contract between these parties does not involve maritime transactions or interstate commerce.  As such, California Code of Civil Procedure section 1281.2 applies to Defendant 2nd Marketing, LLC’s request for the Court to compel arbitration.

California Code of Civil Procedure section 1281.2

On January 21, 2020, Plaintiff entered into an agreement with Defendant 2nd Marketing, LLC to be Defendant 2nd Marketing, LLC’s canvasser.  (Trostad Decl., ¶ 5, Exh. A.)  As part of that agreement, these parties agreed that “[a]ny controversy, dispute or claim between any Employee and the Company . . . shall be settled by binding arbitration at the request of either party.”  (Ibid.)

The Court finds Plaintiff has agreed to arbitrate all claims against Defendant 2nd Marketing, LLC.  This cause of action falls within the scope of the parties agreement.  Plaintiff does not dispute this.  As such, the arbitration clause is valid and enforceable.

Plaintiff makes four arguments as to why the motion should be denied.

Cancelled Limited Liability Company

Plaintiff argues Defendant 2nd Marketing, LLC cannot seek to enforce the arbitration agreement because Defendant 2nd Marketing, LLC has been canceled pursuant to Corporations Code section 17707.08, subdivisions (b) and (c).  

Subdivision (c) states a limited liability company’s powers, rights, and privileges cease upon the filing of a certificate of cancellation pursuant to subdivision (b).  However, Corporations Code section 17707.06, subdivision (a) enables Defendant 2nd Marketing LLC to defend this action, which includes compelling arbitration to defend this action in a different forum.  Thus, Defendant 2nd Marketing, LLC may still compel Plaintiff to arbitrate his claims despite Defendant 2nd Marketing, LLC’s cancelled status.

Waiver

Plaintiff argues Defendant 2nd Marketing, LLC waived arbitration.

A trial court must consider the following six factors to determine whether a party waived its right to arbitration.  First, whether the party seeking arbitration acted inconsistent with the right to arbitrate.  (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.)  Second, whether litigation has been substantially invoked and how much the parties prepared the lawsuit before notified of an intent to arbitrate.  (Ibid.)  Third, whether arbitration was requested close to trial or delayed for a long period before seeking a stay of the action.  (Ibid.)  Fourth, whether the party seeking arbitration filed a counterclaim without seeking a stay of the action.  (Ibid.)  Fifth, whether important intervening steps, such as taking advantage of judicial discovery procedures unavailable in arbitration, had taken place.  (Ibid.)  And sixth, whether the delay prejudiced an opposing party.  (Ibid.)

Importantly, a finding that a party waived its right to arbitration is “not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.”  (Id. at p. 1195.)

Plaintiff argues Defendant 2nd Marketing, LLC acted inconsistent with the right to arbitrate when it cancelled its existence as a limited liability company.  The Court disagrees.  As seen above, Corporations Code section 17707.06, subdivision (a) enables Defendant 2nd Marketing, LLC to defend actions against it despite being cancelled.  As such, Defendant 2nd Marketing, LLC’s cancellation is consistent with its right to arbitrate Plaintiff’s claims against Defendant 2nd Marketing, LLC.

Plaintiff argues litigation has been substantially invoked because a witness’ deposition has been taken and Defendant 2nd Marketing, LLC filed an answer, attempted to relate cases, and responses due before this hearing.  The Court finds this does not amount to a substantial invocation of litigation indicating a waiver should be found.  The arbitration clause in the parties agreement allows for discovery, which shows Defendant 2nd Marketing, LLC’s participation in deposing a witness and providing discovery responses is of no consequence.  To be exact, the agreement states “[t]he parties shall be entitled to conduct all discovery to which they would have been entitled to had the parties’ controversy been filed in court . . .” provided the arbitrator’s discretion to allow the discovery comports with a speedy, less-formal, and cost-effective resolution.  Additionally, filing an answer and attempting to relate cases are actions typically made towards the beginning of the lifespan of a lawsuit, which show the litigation machinery has not been substantially activated.  Thus, this factor also shows Defendant 2nd Marketing, LLC has not waived its right to arbitration.

Plaintiff argues Defendant 2nd Marketing, LLC delayed unreasonably close to trial to seek arbitration.  The Court disagrees.  Plaintiff served Defendant 2nd Marketing, LLC with the summons and complaint on July 6, 2020 by substituted service.  Defendant 2nd Marketing, LLC filed this motion less than six months later on December 14, 2020.  This is a textbook timeline for discovering the ability to arbitrate Plaintiff’s claims and seeking arbitration.  Trial is set for December 27, 2021 and, thus, arbitration is sought to be compelled well in advance of trial.  Therefore, this factor further shows Defendant 2nd Marketing, LLC has not waived its right to arbitration.

The fourth and fifth factors also show Defendant 2nd Marketing, LLC has not waived its right to arbitrationDefendant 2nd Marketing, LLC has not filed a counterclaim and no discovery methods have been utilized in this forum that could not be used in arbitration.

Lastly, the Court finds Plaintiff will not be prejudiced if arbitration is compelled.  Contrary to Plaintiff’s allegations, compelling arbitration will not prejudice Plaintiff by limiting Plaintiff’s ability to conduct discovery since the arbitration clause provides the same discovery rights in arbitration as in court.

In sum, Defendant 2nd Marketing, LLC has not waived its right to arbitration Plaintiff’s claims.

Failure to Maintain Workers’ Compensation

Plaintiff argues Labor Code section 3706 enables Plaintiff to seek a resolution of his claims against Defendant 2nd Marketing, LLC in court.  This section allows for injured employees to seek damages in court when their employers fail to secure payment of workers’ compensation insurance.  (Cal. Lab. Code, § 3706.)  Plaintiff makes this conclusion without supporting authority.  Rather, as the court in Graphic Arts Mutual Ins. Co v. Time Travel Internat., Inc. (2005) 126 Cal.App.4th 405, 414-415 made clear, Plaintiff’s ability to resolve claims in court pursuant to section 3706 is merely an exception to the rule that the Workers’ Compensation Appeals Board had exclusive jurisdiction.  However, section 3706 does not preclude Defendant 2nd Marketing, LLC’s ability to enforce an arbitration clause Plaintiff agreed to.

Third Parties

Plaintiff argues arbitration cannot be compelled because Defendants FedEx Ground Package System, Inc. and Abad P&D Services are not parties to the arbitration agreement.  Defendant 2nd Marketing, LLC argues the FAA demands arbitration despite the presence of these third parties.  As stated above, the FAA does not apply to this contract and, rather, California Code of Civil Procedure section 1281.2, subdivision (c) applies.

California Code of Civil Procedure section 1281.2, subdivision (c) “is unambiguous: it allows the trial court to deny a motion to compel arbitration whenever ‘a party’ to the arbitration agreement is also ‘a party’ to litigation with a third party that (1) arises out of the same transaction or series of related transactions, and (2) presents a possibility of conflicting rulings on a common issue of law or fact.” (Whaley v. Sony Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 486.)

The Court finds there is a possibility of conflicting rulings on common issues of fact such that arbitration cannot be compelled.  Plaintiff alleges in his complaint that Defendants 2nd Marketing, LLC, FedEx Ground Package System, Inc., and Abad P&D Services employed the driver who rear-ended Plaintiff and entrusted that driver with the offending vehicle.  A jury could find all of these defendants employed the driver defendant in conferring liability whereas an arbitrator could find the opposite.  Thus, the Court finds the motion should be denied due the possibility of conflicting rulings of fact.

CONCLUSION

The motion is DENIED.

Plaintiff is ordered to give notice of this ruling.

Plaintiff is ordered to file a proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.

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