Judge: Christopher K. Lui, Case: 23STCV06711, Date: 2024-01-30 Tentative Ruling
Case Number: 23STCV06711 Hearing Date: January 30, 2024 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the motion addressed
herein. Counsel must contact the staff
in Department 76 to inform the Court whether they wish to submit on the
tentative, or to argue the matter. As
required by Rule 3.1308(a), any party seeking oral argument must notify ALL
OTHER PARTIES and the staff of Department 76 of their intent to appear and
argue.
Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776.
Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.
The Complaint alleges a breach of
agreement, forcible entry, by failing to
provide safe access to the leased office space due to chronically malfunctioning
elevators, and failing to provide access to Plaintiff’s media equipment and
office space by changing the locks.
Defendant Ethos Society Ktown Holdings, LLC moves to compel arbitration.
TENTATIVE RULING
Defendant Ethos Society Ktown Holdings, LLC’s motion to compel arbitration is GRANTED.
The litigation is ordered stayed pending arbitration. (Code Civ. Proc., § 1281.4.)
The Court sets a status conference for April 30, 2024 at 8:30 a.m. regarding the commencement of arbitration. The parties are expected to commence arbitration by that date.
ANALYSIS
Motion To Compel Arbitration and Stay Action
Request For Judicial Notice
Defendant’s request that the Court take judicial notice of the Verified First Amended Complaint filed in this action is GRANTED per Evid. Code, § 452(d)(court records).
Discussion
Defendant Ethos Society Ktown Holdings, LLC moves to compel arbitration and stay this action.
Waiver
The Court first addresses whether Defendant waived the right to compel arbitration. Plaintiff filed the Complaint in this action on March 27, 2023. On April 12, 2023, Plaintiff filed a First Amended Complaint.
Plaintiff argues that Defendant waived the right to arbitrate by engaging in forcible entry, a quasi-criminal act, when there was a dispute over Plaintiff’s agent, Steven Choi, obtaining possession of a building key. This argument is without merit: it is tantamount to arguing that when a person commits a tort relating to the underlying facts before a lawsuit is filed, any attempt to enforce an arbitration agreement existing between the parties is waived. Plaintiff cites no authority for such a proposition and the Court declines to recognize its validity.
The
simple fact is that after the Court set aside Defendant’s default on July 10,
2023, nine days later, Defendant filed this motion to compel arbitration on
July 19, 2023. By no stretch of the imagination has Defendant waived the right to
arbitrate this action.
Under the FAA, “a party who resists arbitration on
the ground of waiver bears a heavy burden [citations], and any doubts
regarding a waiver allegation should be resolved in favor of arbitration [citation].”
(St. Agnes, supra, 31 Cal.4th at p. 1195.) Our
state waiver rules are in accord. (Ibid.) “Although a court
may deny a petition to compel arbitration on the ground
of [*308] waiver (§ 1281.2, subd. (a)), waivers are not to
be lightly inferred and the party seeking to establish a waiver bears
a heavy burden of proof. [Citations.]” (St. Agnes, supra, at p.
1195.)
(Desert Reg'l Med. Ctr., Inc. v. Miller (2022) 87 Cal. App. 5th 295, 307-08.)
Existence
of Agreement To Arbitrate
Under
California law, arbitration agreements are valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the revocation of any
contract. (Blake v. Ecker (2001) 93
Cal.App.4th 728, 741 overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th
1094.) A party petitioning to compel
arbitration has the burden of establishing the existence of a valid agreement
to arbitrate and the party opposing the petition has the burden of proving, by
a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court
(1998) 62 Cal.App.4th 348, 356-57.)
On
March 6, 2023, Plaintiff entered into an agreement with Defendants, which is
attached as Exh. A to the 1AC.
The
Agreement is entitle Ethos Membership Terms and Conditions includes the
following arbitration clause at Section 7(d) as follows:
(d)
Arbitration. Except for actions for injunctive or other equitable relief,
any dispute whatsoever relating to the interpretation, validity or performance
of this Agreement, or any dispute arising out of this Agreement or related in
any way to the governance, operation or business of Ethos, which is not
resolved within the thirty (30) day period commencing upon receipt of written
notice by either party from the other party, shall be settled by binding and
final arbitration before a single arbitrator. The arbitration shall be conducted
in accordance with the procedures and rules of Judicial Arbitration and Mediation
Services, Inc. (the “JAMS Rules”). Arbitration shall be by a single arbitrator
experienced
in the matters at issue selected in accordance with the JAMS Rules. The arbitration
shall be held in such place in the metropolitan area of Los Angeles, California
as may be specified by the arbitrator (or such other place upon which the
parties and the arbitrator may agree), and shall be conducted in accordance
with the JAMS Rules (regardless of any choice of law provision in the
Agreement) to the extent not inconsistent with this Agreement. The decision of
the arbitrator shall be final and
binding as to
any matters submitted to arbitration and shall be in lieu of any other action or
proceeding of any nature whatsoever; and, if necessary, any judgment upon the arbitrator’s
decision may be entered in any court of record having jurisdiction over the subject
matter or over the party against whom the judgment is being enforced. Notwithstanding
the foregoing, the arbitrator(s) is not permitted to make errors of law in
any decision.
The reasonable attorneys’ fees and costs of the prevailing party (as determined
by the arbitrator) shall be reimbursed by the other party. Except as required by
law, the parties agree to keep confidential the existence and details of any
dispute subject to this provision, including the results of arbitration. The
foregoing shall not be deemed to prohibit a party from disclosing relevant
information to its legal, financial and
other
advisors in connection with any such dispute as long as such advisors agree to maintain
the confidentiality thereof in accordance with this provision.
(1AC, Exh.
AEthos Membership Terms and Conditions, Section 7(d)[bold emphasis added].)
Plaintiff
does not deny having signed this agreement. To the extent that Plaintiff is arguing that
this is an action for injunctive or equitable relief, this argument is not persuasive.
Although Plaintiff seeks possession of the premises as a remedy in the 1AC,
this is a legal remedy provided by statute, not equitable relief, nor an
injunction.
The aim of the statute of forcible entry and detainer is to
conserve the public peace, and not only to prevent and punish the forcible entry of those having no
right of entry, but also of those who have a right of entry given by law. The action provided for is
possessory in character; it is not intended as a substitute for the action of
ejectment." (12 Cal. Jur., p. 597.)
(Clement v. Reynolds (1981) 117 Cal.App. 484, 485.)
"We state then, after a full examination of this
subject, that in our opinion the statutes of forcible entry and detainer should be
construed as taking away the previous common law right of forcible entry by the owner, and that such entry must be therefore
held illegal in all forms of action." (Reeder v. Purdy, supra, 41 Ill. 279, 284-286; see also Buchanan v. Crites, supra, 106 Utah
428, 436 [150 P.2d 100, 103]; annot. (1945) 154 A.L.R. 181.)
(Daluiso v. Boone (1969) 71 Cal.2d 484, 494.)
The legislative intent in enacting the forcible entry statute was
to establish a summary procedure for the restitution of real property and
thereby to promote the settlement of disputes over possession by legal means
rather than by self-help. In order to deter breaches of the peace the Legislature provided
in section 1174 that a plaintiff in a forcible entry proceeding may recover
damages occasioned by the entry and that the court may in its discretion treble
such damages. (It
has been held that under section 1174 the plaintiff may recover all
damages which "are the natural and proximate result of the forcible entry.
. . ." (Anderson v. Taylor (1880) 56 Cal. 131, 132 [38 Am.Rep. 52].)
(Daluiso
v. Boone (196) 71 Cal. 2d 484, 498.)
In short, were Plaintiff to prevail on the forcible entry cause of action, the Court does not issue an injunction, but rather an order restoring possession. This is a legal remedy, not an equitable one. See, e.g., Dr. Leevil, LLC v. Westlake Health Care Center (2018) 6 Cal.5th 474, 481: “The unlawful detainer action was created to provide property owners who sought to recover possession of their property with a relatively inexpensive and quick legal remedy, thus discouraging property owners from resorting to self-help methods.”
All of the causes of action asserted in the 1AC—breach of contract, contractual fraud, conversion, forcible entry, and intentional infliction of emotional distress—are disputes relating to the performance on the Agreement, or are disputes arising out of the Agreement. Indeed, the Membership Agreement provides for the Member to access and use Office Space at the Premises. (Section 1.) As such, they come within the scope of the arbitration clause. Thus, Plaintiff’s complaints about entering into the Agreement, and Defendant’s deprivation of Plaintiff’s use of the Office Space which Defendant contractually agreed to allow Plaintiff to use, are disputes subject to the arbitration clause.
Defendant has met its burden of demonstrating that an agreement to arbitrate the claims brought by Plaintiff are subject to mandatory arbitration. Plaintiff has not met its burden of demonstrating that the arbitration agreement should not be enforced.
As such, the motion to compel arbitration is GRANTED.
The litigation
is ordered stayed pending arbitration. (Code Civ. Proc., § 1281.4.)
The Court sets a status conference for April 30, 2024 at 8:30 a.m. regarding the commencement of arbitration. The parties are expected to commence arbitration by that date.