Judge: Blaine K. Bowman, Case: 37-2023-00001431-CU-WT-CTL, Date: 2024-04-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 18, 2024

04/19/2024  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2023-00001431-CU-WT-CTL HOLMES VS AMG DEMOLITION & ENVIRONMENTAL SERVICE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff's motion to withdraw from arbitration is GRANTED. CCP § 1281.97(b)(1).

Pursuant to CCP § 1281.97: (a)(1) In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration under Section 1281.2.

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(b) If the drafting party materially breaches the arbitration agreement and is in default under subdivision (a), the employee or consumer may do either of the following: (1) Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction.

(2) Compel arbitration in which the drafting party shall pay reasonable attorney's fees and costs related to the arbitration.

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(d) If the employee or consumer proceeds with an action in a court of appropriate jurisdiction, the court shall impose sanctions on the drafting party in accordance with Section 1281.99.

Plaintiff submits evidence that the parties stipulated to arbitration before JAMS with Defendant AMG Demolition Environmental Service, Inc. agreeing 'to pay all costs unique to arbitration' [ROA 13].

Plaintiff also submits evidence that JAMS invoiced AMG for the arbitration deposit on January 19, 2024, with the deposit due upon receipt [Declaration of Pamela A. Triplett, Exhibit I] and that AMG filed to timely pay the arbitration deposit [Declaration of Pamela A. Triplett, Exhibit L]. Under CCP § 1281.97(b)(1), such circumstances allow for Plaintiff to withdraw from arbitration and proceed in court.

See, Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621.

In AMG's late-filed and late-served opposition AMG submits evidence that its failure to timely pay the arbitration deposit was as a result of the medical-related absence of AMG's counsel's assistant and Calendar No.: Event ID:  TENTATIVE RULINGS

3099997  1 CASE NUMBER: CASE TITLE:  HOLMES VS AMG DEMOLITION & ENVIRONMENTAL SERVICE INC  37-2023-00001431-CU-WT-CTL AMG confusing this matter with another arbitration matter. AMG also provides evidence that AMG paid the arbitration deposit on March 11, 2024. AMG relies on CCP § 473(b) and argues mistake, inadvertence, surprise and/or excusable neglect as its excuse for its failure to timely pay the arbitration deposit. However, AMG fails to provide any authority allowing for the application of CCP§ 473(b) to the mandatory relief required under CCP § 1281.97. Absent such authority, the court is without discretion to afford relief under CCP § 473(b).

Plaintiff's request for sanctions is GRANTED. CCP § 1281.97(d) mandates the imposition of sanctions against AMG. The court finds sanctions of $2,085.00 reasonable and orders Defendant AMG Demolition Environmental Service, Inc. to pay sanctions in the amount of $2,085.00 to Plaintiff within 20 days of this ruling.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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