Judge: Bruce G. Iwasaki, Case: 22STCV40030, Date: 2023-03-09 Tentative Ruling
Case Number: 22STCV40030 Hearing Date: March 9, 2023 Dept: 58
Judge Bruce G. Iwasaki
Hearing Date: March
9, 2023
Case Name: Sheena Christian v. American
Guard Services, Inc.
Case No.: 22STCV40030
Matter: Motion
to compel arbitration
Moving Parties: Defendant American Guard Services,
Inc.
Responding Party: Plaintiff Sheena Christian
Tentative Ruling: The motion to compel arbitration is
denied. The Court awards sanctions
payable to Plaintiff in the amount of $4,875.
Background
This is an
employment action for whistleblower retaliation and wrongful termination. Sheena Christian (Plaintiff) alleged that
American Guard Services, Inc. (Defendant) terminated her employment because she
reported Defendant’s failure to comply with COVID-19 safety measures during the
pandemic.
The Complaint also alleges that on
August 17, 2022, Plaintiff made a demand for arbitration with the American
Arbitration Association (AAA). The AAA sent a letter for payment to Defendant,
due on or before October 3, 2022. After
Defendant allegedly failed to pay, AAA closed their file on October 5, 2022,
and Plaintiff filed suit in this Court.
On January
30, 2023, Defendant filed a motion to compel arbitration. It acknowledged the prior arbitration demand
but stated that Plaintiff’s demand “was not transferred to the Legal Department
and was not reviewed by an attorney.”
Defendant further asserted that “the few month delay in proceeding with
Binding Arbitration did not cause Plaintiff material prejudice.” Plaintiff
filed an opposition, asserting that Defendant waived its right to arbitration
and there are no exceptions for mistake or neglect. She further requests sanctions. In reply, Defendant argues there are
jurisdictional and due process concerns.
It contends that service on its registered agent did not result in proper
notice and the failure to forward the demand for arbitration was not
intentional.
The motion
to compel arbitration is denied. The
award of monetary sanctions against Defendant is mandatory.
Legal Standard
Code of
Civil Procedure section 1281.97, subdivision (a)(1) states that “[i]n an employment
or consumer arbitration that requires . . . 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.” (Italics added.) “If the drafting party
materially breaches the arbitration agreement and is in default under
subdivision (a), the employee or consumer may . . . [w]ithdraw the claim from
arbitration and proceed in a court of appropriate jurisdiction.” (Id., subd. (b).)
The parties
do not dispute that Plaintiff previously filed and served a demand for
arbitration on August 17, 2022. (Hinden
Decl., ¶ 8(a).) Plaintiff mailed the demand to Defendant at its agent for
service of process. (Id. at ¶
3.) On September 2, 2022, AAA mailed a
letter indicating that Defendant must pay its fees by October 3, 2022. (Id. at ¶ 8(b), Ex. D.) Because Defendant failed to pay, AAA closed
its file on October 5, 2022. (Id.
at ¶ 8(d), Ex. E.)
Instead,
Defendant argues that the demand was not properly transferred to the legal
department. In other words, the argument
is that the failure to respond was inadvertent and Plaintiff suffers no
prejudice from the minor delay.
The recent case
of Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 770-771 (Espinoza)
is directly on point. There, a former
employee sued her employer for discrimination in court and the employer moved
to compel arbitration. After the trial
court granted the motion, the arbitration provider sent an invoice to the
employer for fees that were due on May 31, 2021. The employer did not pay until July 9, 2021,
arguing that a clerical error caused the delay.
The employee moved to lift the stay and to proceed in court. The trial court denied the employee’s
request, finding that the employer substantially complied with the arbitration
provision and the employee suffered no material prejudice.
The Court of
Appeal reversed and ordered the trial court allow the employee to bring her
claims in court. Under the plain
language of section 1281.97, the appellate court held, “the triggering event is
nothing more than nonpayment of fees within the 30-day period.” Thus, “the statute specifies no other
required findings, such as whether the nonpayment was deliberate or
inadvertent, or whether the delay prejudiced the nondrafting party. The plain
language therefore indicates the Legislature intended the statute to be
strictly applied whenever a drafting party failed to pay by the statutory
deadline.” (Espinoza, supra,
83 Cal.App.5th at p. 776.) The court compared
the mandatory language in section 1281.97 with the wording in 1281.99, which
afforded trial courts discretion in ordering nonmonetary sanctions. (Ibid. [“Section 1281.99 states that
the court ‘shall impose a monetary sanction’ in the event of a material
breach . . ., but the court ‘may order’ additional monetary sanctions
‘unless the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the imposition of
the sanction unjust’ ”].) Thus, the
absence of such discretionary language “indicates an intent to apply the
statute to any circumstance in which a drafting party fails timely to pay, and
not just when the drafting party does so deliberately.” (Id. at p. 777.)
Here, under Espinoza’s
reasoning, Defendant’s arguments fail.
It asserts that the documents were not forwarded to its legal department
and plaintiff suffers no prejudice. But
the statute requires “strict enforcement” and offers no exception for mistakes
or inadvertence. (See Id. at p.
775; Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, 630-632
[affirming trial court’s order vacating prior order to compel arbitration
because Defendant paid the arbitration fees six days after it was due]; cf. De
Leon v. Juanita’s Foods (2022) 85 Cal.App.5th 740, 752-753 [during the
pendency of an arbitration under section 1281.98, trial court has no discretion
to consider delay or prejudice and the statute establishes a “bright-line rule
that a drafting party’s failure to pay outstanding arbitration fees . . .
results in its material breach of the arbitration agreement”].)
In its
reply, Defendant makes a tenuous argument that while Plaintiff’s service of the
arbitration demand on Defendant’s registered agent of service was not
“frivolous, it did create an unusual situation in which [sic] would not invoke
this Court’s jurisdiction.” Defendant
cites no legal authority. No issue of
jurisdiction is involved. Under Code of
Civil Procedure section 416.10, Plaintiff may
serve the registered agent of the corporation, its president or other
authorized person to receive service of process. Thus, service of the arbitration demand was
proper. (Hinden Decl., Ex.
A.)
Defendant
next cites to Code of Civil Procedure section 1290.4, subdivision (b)(1) and Frey
& Horgan Corp. v. Superior Court (1936) 5 Cal.2d 401. Section 1290.4 involves service of a petition
or motion to compel arbitration. The
statute does not apply to service of a demand for arbitration. Under the parties’ agreement, Paragraph 8
allows for service by U.S. Mail “addressed to the party or its representative
at the last known address or by personal service, in or outside the state where
the arbitration is to be held.” (Hinden
Decl., Ex. C.) Service is therefore
proper. Similarly, because there is no
issue of jurisdiction here, Defendant’s citation to Frey & Horgan Corp.
v. Superior Court (1936) 5 Cal.2d 401 is inapposite. That case involved an out-of-state
corporation moving to quash service of a notice of arbitration. The Supreme Court found that the parties’ contract
was an “agreement to submit to the jurisdiction within which the arbitration
must operate in order to give it the effect contemplated by the contract and by
the law”; thus, the corporation submitted to California’s jurisdiction. (5 Cal.2d at pp. 404-405.) No such scenario is presented here.
Because
Defendant is in material breach of the arbitration agreement under Code of
Civil Procedure section 1281.97, subdivision (a)(1) for failure to timely pay
the arbitration fees, plaintiff may withdraw her claim from arbitration and proceed
in this court. (Code Civ. Proc., §
1281.97, subd. (b)(1).) Accordingly,
Defendant’s motion to compel arbitration is denied.
Sanctions
“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.” (Code
Civ. Proc., § 1281.97, subd. (d). Under
section 1281.99, subdivision (a), “[t]he court shall impose a monetary sanction
against a drafting party that materially breaches an arbitration agreement
pursuant to subdivision (a) of Section 1281.97 or subdivision (a) of Section
1281.98, by ordering the drafting party to pay the reasonable expenses,
including attorney’s fees and costs, incurred by the employee or consumer as a
result of the material breach.” The
statute makes sanctions mandatory.
Plaintiff
requests $6,840 for 7.2 hours of work multiplied by an hourly rate of
$950. (Hinden Decl., ¶ 11.) The Court reduces the hourly rate to $750 per
hour for 6.5 hours of work and awards a total of $4,875 against Defendant. Defendant shall pay to Plaintiff’s counsel $4,875
on or before April 9, 2023.