Motion for undertaking
Plaintiff argues that the Agreement is unenforceable, as it is unconscionable. To show that the Agreement is unenforceable due to unconscionability, Plaintiff must show both procedural and substantive unconscionability, although both elements need not be present in the same degree. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 242; Gatton v. T–Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579.) Here, even if there is some procedural unconscionability based on the adhesive nature of the Agreement, it is a separate document clearly labeled as an arbitration agreement and it expressly includes an opt-out provision. (Stock Decl., Ex. B, ¶ 7.) There is thus only a minimal showing of procedural unconscionability here. Plaintiff therefore must show a high degree of substantive unconscionability to prevail on his argument.
Plaintiff argues that there is a lack of mutuality, as the Agreement would effectively apply only to claims that would be made by a buyer, while FCA is not even a signator. But a writing memorializing an arbitration agreement need not be signed by both parties to be binding: it is the presence or absence of evidence of an agreement to arbitrate which matters. (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 176.) Here, the Agreement states that both Plaintiff and FCA are to be bound, and the Agreement was presented to Plaintiff by what was evidently an authorized FCA dealer acting on FCA’s behalf.
FCA thus is also bound thereto. Plaintiff also argues that the Agreement lacks consideration. But a mutual promise to arbitrate itself reflects consideration. (Garner v. Inter-State Oil Co. (2020) 52 Cal.App.5th 619, 625.) Plaintiff has thus failed to show unconscionability sufficient to prevent enforcement here.
The Motion is therefore GRANTED.
Plaintiff’s Evidentiary Objections are OVERRULED.
Counsel for FCA is to give notice of this ruling. 2 Jimenez v. Cont. to 10/5 Betitto’s Tow and and Service Center, Inc. 3 Daneshmand Cont. to 10/5 v. Tareen 4 Joseph v. Bell Before the Court is a motion for undertaking filed by defendants David Bell, DDS, M.D, David Bell, MD, Inc. and Orthognathic Surgery, M.D. (Defendants) against plaintiff Daniel Joseph (Plaintiff.) For the reasons set forth below, the motion is DENIED.
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Pursuant to Code of Civil Procedure section 1030, when the plaintiff resides out of the state, the defendant may file a motion for an order requiring the plaintiff to file an undertaking to secure an award of costs and recoverable attorney’s fees which may be awarded in the action. (Code Civ. Proc., § 1030, subd. (a).) The motion must be supported by points and authorities and affidavits showing: (1) plaintiff's nonresidency; (2) a “reasonable possibility” defendant will
obtain judgment in the action; and (3) the nature and amount of costs and attorney fees defendant has incurred and expects to incur in the action. (Code Civ. Proc., § 1030, subd. (b).)
While it is undisputed Plaintiff is a nonresident, Defendants have failed to establish reasonable probability of obtaining a judgment in the action. The moving party is not required to show there was no possibility that the plaintiff could win at trial, but only that it is “reasonably possible” that the defendant will win. (Baltayan v. Estate of Getemyan (2001) 90 Cal. App. 4th 1427, 1432.) Evidence needed for an undertaking is less than that needed for summary judgment or even a special motion to strike; rather, to satisfy the requirements of section 1030, defendant must produce sufficient evidence to demonstrate they have a reasonable possibility of winning, but no more. (Id. at 1442.)
Here, Defendants produced the declaration of their expert, who opines that Dr. Bell met the applicable standard of care during his evaluation, treatment, surgical care and postoperative management relating to Plaintiff’s maxillofacial hardware removal surgery on May 24, 2024. (Ozaki Dec. ¶¶ 8-19.) This evidence shows it is reasonably possible that Defendants may prevail on Plaintiff’s fifth cause of action for professional negligence only. (First Amended Complaint (“FAC”) ¶¶ 50-53.)
However, Defendants produced no evidence or argument on Plaintiff’s four other causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment and fraud – all of which relate to the orthognathic surgery scheduled for June 27, 2024, but which Defendants allegedly cancelled and failed to return the $80,000 prepaid by Plaintiff. (FAC ¶¶ 33, 38, 42, 45.) As such, Defendants have failed to show reasonable possibility that they “will obtain judgment in the action or special proceeding.” (Code of Civ. Proc. § 1030, subd. (b)[emphasis added].) Defendants having failed to meet their moving burden, the motion is DENIED.
Counsel for Plaintiff shall provide notice of this ruling. 5 Vavrinyuk vs. Defendants Michael John Khouri and Khouri Law Firm APC Khouri (“Defendants”) Demurrer is SUSTAINED, with 20 days leave to amend.
Defendants demur to the first cause of action for legal malpractice in plaintiff Arthur Vavrinyuk’s (“Plaintiff”) Second Amended Complaint (“SAC”) based upon lack of sufficient facts. (Civ. Proc. Code § 430.10(e).)
“The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 833.)