Judge: Colin Leis, Case: 22STCV06058, Date: 2025-01-29 Tentative Ruling

Case Number: 22STCV06058    Hearing Date: January 29, 2025    Dept: 74

Winnick v. Hillcrest Country Club et al.

Defendants Michael Flesh, Jason Kaplan and Brad Fuller’s Motion to Compel Arbitration.

Plaintiff Matthew Winnick (Plaintiff) filed a complaint against defendants Hillcrest Country Club, Michael Flesch, Jason Kaplan and Brad Fuller (collectively Defendants) alleging discriminatory membership practices. 

Defendants Michael Flesh, Jason Kaplan and Brad Fuller move to compel Plaintiff to arbitration.  Defendant Hillcrest Country Club joins the motion.

            The Court grants plaintiff’s January 15, 2025 request for judicial notice of Exhibit “A”, but, except for the fact of their existence, denies judicial notice of Exhibits “B”, “C” and “D” and their contents. The court denies defendants’ request for judicial notice filed on January 22, 2025. The court denies as unnecessary plaintiff’s January 27, 2025 request that the court take judicial notice of provisions in the Corporations Code; plaintiff’s citations in his reply are sufficient to bring the provisions to the court’s attention.

Evidentiary objections are preserved.

The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties.  (Code of Civ. Proc. § 1281.2.) This is usually done by presenting to the court a copy of the signed, written agreement.  “A petition to compel arbitration . . . must state, in addition to other required allegations, the provisions of the written agreement and the paragraph that provides for arbitration.  The provisions must be stated verbatim, or a copy must be physically or electronically attached to the petition and incorporated by reference.”  (Cal. Rules of Court, rule 3.1330.)

The court denies the motion to compel arbitration because defendants do not establish the terms of the arbitration agreement in effect when plaintiff’s membership was terminated on May 1, 2023 (or any earlier date that might be relevant.) Defendants’ reliance on the Arbitration provision in the June 2023 Bylaws is unavailing because defendants do not demonstrate the Arbitration provision in the June 2023 Bylaws was the provision in effect on May 1, 2023, or earlier; indeed, Exhibit A to Michael Flesch’s May 16, 2024 declaration states the June 2023 Bylaws supersede the April 1, 2023 Bylaws. Without submitting the specific terms binding Plaintiff, Defendants fail to meet their initial burden of either stating verbatim the terms of the arbitration agreement or attaching a copy of the arbitration agreement. Moreover, the fact that Plaintiff signed a contract in 2017 stating that he would be “bound by the bylaws… presently in force or as they may hereafter be amended in any respect.”  (Georgiev Decl., Ex. “D.”) does not change the outcome because post-2017 unilateral amendments to an arbitration agreement cannot operate retroactively.  (See Cobb v. Ironwood Country Club (2015) 233 Cal.App.4th 960, 965 [“the Club further contends that because the bylaws include a provision allowing it to amend them, the members – even former members – are deemed to have agreed to whatever amendments are made in accordance with that provision. We cannot agree with that further contention”].) 

CONCLUSION

            The Court denies Defendant’s motion to compel arbitration.

            Defendant to give notice.