Judge Armen Tamzarian, Case 22STCV28809 2023-01-31 Tentative Ruling

Judge: Armen Tamzarian, Case: 22STCV28809, Date: 2023-01-31 Tentative Ruling

Case Number: 22STCV28809 Hearing Date: January 31, 2023 Dept: 52

Defendant LoanDepot.com, LLC’s Motion to Compel Arbitration

Defendant LoanDepot.com moves to compel arbitration of this action by plaintiff Bobak “Bobby” Khalessi.

Service

Plaintiff contends electronic service of this motion was defective because defendant did not first confirm counsel’s electronic service address. Former Code of Civil Procedure section 1010.6(e)(1) (in effect at the time of service) provided, “Before first serving a represented party electronically, the serving party shall confirm by telephone or email the appropriate electronic service address for counsel being served.”

That provision does not apply because this motion was not when defendant “first” served plaintiff electronically. When defendant opposed a prior motion by plaintiff, it served the opposition on plaintiff via that same email address.

Moreover, all of plaintiff’s papers, beginning with the complaint, include his attorney’s email address. Defendant served the motion on plaintiff at that email address. California Rules of Court, rule 2.200 provides that, an attorney “whose e-mail address (if it was provided under rule 2.111(1)) changes while an action is pending must serve on all parties and file a written notice of the change.” Plaintiff’s counsel has not done so. He does not claim his email address changed. It was not necessary for defendant to “confirm” something already known and undisputed—particularly where plaintiff’s counsel had a duty to notify all parties and the court if he changed his email address.

Merits

Plaintiff makes a “partial opposition” to the motion as to his PAGA claim, which is the first of eight causes of action. Defendant argues plaintiff must arbitrate his “individual” PAGA claim, and the court should then dismiss his remaining representative PAGA claim. Plaintiff argues he makes no individual PAGA claim—it is only a representative claim. That is what the complaint alleges: “This Cause of Action is brought exclusively on a nonindividual basis for violations of Section 432.5 committed against Employees other than Mr. Khalessi.” (Comp., ¶ 26.) In reply, defendant argues that plaintiff has no standing to bring a representative action without also bringing an individual action.

Defendant relies on the United States Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. ___, 142 S.Ct. 1906. The Supreme Court held, “[T]he FAA preempts the rule of Iskanian [v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348] insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.” (Id. at p. 1924.) After its holding, the Court stated: “The remaining question is what the lower courts should have done with Moriana’s non-individual claims. Under our holding in this case, those claims may not be dismissed simply because they are ‘representative.’ … But as we see it, PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. … As a result, Moriana lacks statutory standing to continue to maintain her non-individual claims in court, and the correct course is to dismiss her remaining claims.” (Id. at p. 1925.)

Plaintiff, on the other hand, relies on Johnson v. Maxim Healthcare Services, Inc. (2021) 66 Cal.App.5th 924, 930, which stated, “PAGA standing does not depend on maintaining an individual Labor Code claim.” (Accord Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 87 [“There is no individual component to a PAGA action”].) As plaintiff notes, the California Supreme Court granted review of this issue in Adolph v. Uber Technologies, Inc. (July 20, 2022, No. S274671).

Deciding this issue is not necessary, and the court declines to do so. Under both the California Arbitration Act and FAA, the court may stay the entire action, including trial of nonarbitrable issues, pending the outcome of the arbitration proceeding. (McIsaac v. Foremost Ins. Co. Grand Rapids, Michigan¿(2021) 64 Cal.App.5th 418, 424 [CAA]; CCP § 1281.4; 9 U.S.C. § 3 [where there is “any issue referable to arbitration,” courts must “stay the trial of the action until such arbitration has been had”].)

Plaintiff’s complaint alleges seven other causes of action. Plaintiff does not oppose the motion to compel arbitration as to those claims. The court shall therefore compel arbitration of those causes of action and stay the entire action.

Disposition

Defendant LoanDepot.com, LLC’s motion to compel arbitration is granted in part. Plaintiff Bobak “Bobby” Khalessi is ordered to arbitrate the second through eighth causes of action alleged in his complaint. The court hereby stays the entire action pending resolution of the arbitration proceeding.