Judge Colin Leis, Case 22STCV18835 2023-04-03 Tentative Ruling

Judge: Colin Leis, Case: 22STCV18835, Date: 2023-04-03 Tentative Ruling

Case Number: 22STCV18835 Hearing Date: April 3, 2023 Dept: 74

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – CENTRAL DISTRICT

DEPARTMENT 74

¿¿nyah wilcox¿¿,¿ ¿¿Plaintiff¿, vs. ¿¿sterling venue ventures, llc, chris kissinger, lance sterling¿¿, et al.,¿ ¿¿Defendants¿.	Case No.:	22STCV18835

	Hearing Date:	¿¿April 3, 2023

	Time:	¿¿8:30 a.m.¿

	[TENTATIVE] ORDER RE: Plaintiff’s Motion to Vacate Order Compelling Arbitration and Request for Sanctions

MOVING PARTIES: Plaintiff Nyah Wilcox

RESPONDING PARTY: Defendants Sterling Venue Ventures, LLC, Lance Sterling and Chris Kissinger

Motion to Vacate Order Compelling Arbitration and Request for Sanctions.

The court considered the moving papers, opposition, and reply in connection with this motion.

BACKGROUND

This action arises from an employment dispute.

In May 2021, Plaintiff Nyah Wilcox (Plaintiff) and Defendants Sterling Venue Ventures, LLC and Lance Sterling (Sterling Defendants) entered into an arbitration agreement. In June 2022, Plaintiff filed a civil action against the Sterling Defendants and Defendant Chris Kissinger. In August 2022, all Defendants filed a motion to compel arbitration. At the time, Gary Kurtz represented all Defendants.

After the motion to compel arbitration was filed, the Sterling Defendants obtained new counsel, George Albutt and Renee Noy. Gary Kurtz continued to represent Defendant Chris Kissinger. In October 2022, the court granted all Defendants’ motion to compel arbitration.

On November 9, 2022, Plaintiff sent all Defendants and the American Arbitration Association (AAA) its demand for arbitration. The demand listed Gary Kurtz’s and Renee Noy’s email addresses but omitted George Albutt’s contact information. Plaintiff provided AAA the incorrect email address for Renee Noy. Consequently, neither Renee Noy nor George Albutt received AAA’s request for filing fees issued via email on November 17, 2022.

On January 4, 2023, Gary Kurtz forwarded to George Albutt an email, which included a letter from AAA. The letter stated, “Further to the AAA’s letter dated November 17, 2022, the Respondent has failed to submit the previously requested filing fee within the time required; accordingly, pursuant to California Code of Civil Procedure Section 1281.97, we have administratively closed our file in this matter.” Gary Kurtz also forwarded the letter referenced within the letter, which was an invoice for the arbitration filing fee.

AAA had sent both letters via email. On the email, George Albutt was not listed as a recipient and Renee Noy’s email address was incorrect.

By January 9, 2023, George Albutt paid the filing fee on behalf of all Defendants. AAA said they would reopen the arbitration with Plaintiff’s consent. The next day, AAA emailed George Albutt, informing him the arbitration would remain closed because Plaintiff refused to give its consent.

On January 26, 2023, Plaintiff filed this motion to vacate the court’s order compelling arbitration and request for sanctions.

EVIDENCE

The Sterling Defendant’s Objections to Plaintiff’s Evidence

The following objections are overruled: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13

LEGAL STANDARD

Code of Civil Procedure section 1281.97, subdivision (a), provides that, “[i]n 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.” (Code Civ. Proc., § 1281.97, subd. (a)(1).)

Moreover: “After an employee . . . meets the filing requirements necessary to initiate an arbitration, the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration . . . the arbitration provider shall issue all invoices to the parties as due upon receipt.” (Code Civ. Proc., § 1281.97, subd. (a)(2).)

California Courts of Appeal have interpreted “due date” to mean the drafting party’s receipt of the arbitration provider’s invoice. (Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 774 [“. . . unless the parties expressly agree to the contrary, the drafting party’s receipt of the invoice triggers the 30-day clock under [Code of Civil Procedure] section 1281.97, subdivision (a)(1).”].)

And if the drafting party is in default, the employee may withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. (Code Civ. Proc., § 1281.97, subd. (b)(1).)

Lastly, if the employee proceeds with an action in a court of appropriate jurisdiction, the court shall impose sanctions on the drafting party in accordance with Code of Civil Procedure section 1281.99. (Code Civ. Proc., §, 1281.97, subd. (d).)

DISCUSSION

Defendants’ Alleged Default Under Code of Civil Procedure Section 1281.97.

Plaintiff pursues this motion to vacate arbitration on the grounds that the Sterling Defendants are in default as to the arbitration fees. Accordingly, Plaintiff claims it may withdraw the claims from arbitration and proceed in a court of appropriate jurisdiction. (Code Civ. Proc., § 1281.97, subd. (b)(1).)

First, Plaintiff argues that an invoice from AAA is not required to initiate the thirty-day grace period under Code of Civil Procedure section 1281.97, subdivision (a). (Motion, at p. 10.) Rather, the thirty-day grace period began when Plaintiff sent AAA and the Sterling Defendants its demand for arbitration on November 9, 2022. (Motion, at p. 10.) Moreover, the Sterling Defendants are in breach because they did not pay the arbitration fees within thirty days of the demand for arbitration. However, the Sterling Defendants rightfully point out that this argument clashes with the Court of Appeal’s interpretation of Code of Civil Procedure section 1281.97, as well as the statute itself. (Opp., at p. 10; Code Civ. Proc., § 1281.97, subd. (a)(2) [“. . . the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration . . . the arbitration provider shall issue all invoices to the parties as due upon receipt.”]; Espinoza v. Superior Court, supra, 83 Cal.App.5th at p. 774 [“[T]he drafting party’s receipt of the invoice triggers the 30-day clock under [Code of Civil Procedure] section 1281.97, subdivision (a)(1).”].)

Second, Plaintiff contends that even if the November 17 invoice from AAA triggered the thirty-day grace period, the Sterling Defendants failed to timely pay the arbitration fees. (Motion, at p. 11.) However, the Sterling Defendants did not receive the invoice on November 17, 2022, because the AAA did not email their counsel. AAA neglected to email George Albutt and Renee Noy’s email was incorrect. (Albutt Decl.; Ex. 4; Noy, Decl., ¶ 4.) Thus, the Sterling defendants were not obligated to pay the arbitration fees within thirty days of November 17, 2022.

Moreover, Plaintiff makes the case that AAA’s service of the invoice on Gary Kurtz, counsel for Defendant Chris Kissinger, constituted service on the Sterling Defendants and thereby initiated the thirty-day grace period on November 17, 2022. (Motion, at pp. 11-12.) Plaintiff cites an email from Kurtz dated July 5, 2022, in which he himself informs Plaintiff’s counsel that his firm is general counsel for all Defendants and authorized to accept service for them. (Ex. 1.) But Kurtz had withdrawn from representation of the Sterling Defendants by the time AAA issued the invoice. (Albutt Decl., ¶ 2; Ex. 1; Ex. 2.) Kurtz thereafter lacked ostensible authority to receive service of process on the Sterling Defendants’ behalf. (See Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1018 [holding that attorney can be found to have ostensible authority to receive service of process on the client’s behalf where the attorney-client relationship is sufficiently close and enduring].) Moreover, Plaintiff was aware that George Albutt and Renee Noy were the new counsel for the Sterling Defendants because of the substitutions of counsel, with which the Sterling Defendants served Plaintiff’s counsel on October 11, 2022. (Ex. 1; Ex. 2.) Moreover, Plaintiff’s November 9, 2022 demand for arbitration included Renee Noy. (Albutt Decl.; Ex. 2.) Thus, Plaintiff knew that service of the Sterling Defendants’ counsel, not their former counsel, was necessary.

However, Plaintiff also contends that Kurtz was authorized to accept service on the Sterling Defendants’ behalf under Code of Civil Procedure section 416.90. (Motion, at p. 12.) As the Sterling Defendants note, though, Code of Civil Procedure section 416.90 does not apply to the Sterling Defendants, which are a limited liability company. (Opp., at p. 13.) Since they are an association, the Sterling Defendants must be served under Code of Civil Procedure section 416.30, whose requirements are derivative of those in Code of Civil Procedure section 416.10. True, Plaintiff has furnished an email from Kurtz in which he himself says that he, as general counsel, may accept service on the Sterling Defendants’ behalf. (Ex. 1.) Plaintiff invokes Pasadena Medi-Center Assocs. V. Sup. Ct. (1973) 9 Cal.3d 773 (Pasadena Medi-Center) to bolster its claim that service on behalf of a corporation can be made to anyone who has held themselves out to be able to accept service on the corporation’s behalf. (Reply, at p. 5.) Pasadena Medi-Center is distinguishable, though. The court there found that, in an application for a stock permit, a corporate defendant had conferred ostensible authority upon a corporate officer to accept service. (Id. at p. 777.) Such is not the case here. First, Defendant Sterling Venue Ventures is a limited liability company rather than a corporation. Second, when AAA issued the invoice in November 2022, Defendant Sterling Venue Ventures had conferred ostensible authority to accept service on its behalf on Lance Sterling, not Gary Kurtz. (Kurtz Decl., ¶ 9; Ex. D.) Unlike Pasadena Medi-Center, Plaintiff has failed to demonstrate that Defendant Sterling Venue Ventures itself had so authorized Gary Kurtz, as required by Code of Civil Procedure sections 416.10 and 416.30. Thus, service on Kurtz alone did not constitute service on the Sterling Defendants on November 17, 2022.

Third, Plaintiff contends that all Defendants had an obligation to remedy the incorrect email address in the November 9 demand for arbitration from. (Motion., at pp. 12-13.) In support, Plaintiff cites Civil Code sections 3515 and 3516. (Civ. Code, § 3515 [“He who consents to an act is not wronged by it.”]; Civ. Code, § 3516 [“Acquiescence in error takes away the right of objecting to it.”].) The court is not persuaded that either provision applies here. By failing to notice and remedy the incorrect email address, the Sterling Defendants did not consent to forego service; nor did they acquiesce to Plaintiff’s error.

Fourth, Plaintiff argues that Code of Civil Procedure section 1281.97 requires timely payment of arbitration fees irrespective of the drafting party’s mistake, excusable or not. (Motion, at p. 13.) To do so, Plaintiff relies on Williams v. West Coast Hospitals, Inc. (2022) 86 Cal.App.5th 1054 (Williams). In that case, a defendant who had successfully compelled arbitration thereafter failed to timely pay its share of the arbitration fees. (Id. at p. 1054.) Consequently, the defendant waived its right to arbitration and the lower court lifted the stay and permitted the litigation to resume. (Id. at p. 1075.) The lower court applied the relevant statute under the Code of Civil Procedure, even though the defendant’s belated payment was unintentional and only a few days late. (Id. at p. 1074.) The Court of Appeal affirmed. (Ibid.) Williams is distinguishable, though. There, the arbitration provider properly notified the parties of the filing fee and its deadline. (Id. at p.1063.)

Such is not the case here. The Sterling Defendants did not receive the invoice on November 17, 2022 because AAA did not email their counsel. AAA neglected to email George Albutt at all and Renee Noy’s email was incorrect. (Albutt Decl.; Ex. 4.) Moreover, the Sterling Defendants payment of arbitration fees was timely under Code of Civil Procedure section 1281.97, subd. (a). That is, the thirty-day grace period for the Sterling Defendants to pay did not begin on November 17, 2022, because they did not receive the invoice. (Code Civ. Proc., § 1281.97, subd. (a)(2) [“. . . the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration . . . the arbitration provider shall issue all invoices to the parties as due upon receipt.”]; Espinoza v. Superior Court, supra, 83 Cal.App.5th at p. 774 [“[T]he drafting party’s receipt of the invoice triggers the 30-day clock under [Code of Civil Procedure] section 1281.97, subdivision (a)(1).”].) Not until January 4, 2023, did the Sterling Defendants’ counsel receive the invoice when Gary Kurtz forwarded it to them. (Albutt Decl., ¶ 7.) The Sterling Defendants’ counsel paid the filing fee five days later, well within thirty days of receipt. (Albutt Decl., ¶ 10; Ex. 7.) Thus, the Sterling Defendants were not in default for the purposes of Code of Civil Procedure, section 1281.97, subd. (b)(1).

Fifth, Plaintiff contends in its motion that, “[s]ince Defendant Chris Kissinger was in breach and other causes of action are already with a jury, the court should move all the case [sic] to a jury, even if Sterling did not breach.” (Motion, at p. 15). The court first notes that Defendant Chris Kissinger should have received the invoice from AAA via his counsel Gary Kurtz on November 17, 2022. Defendant Chris Kissinger was not the drafting party of the arbitration agreement between Plaintiff and the Sterling Defendants, though. (Sterling Decl., ¶3.) Consequently, Code of Civil Procedure section 1281.97 does not apply to him and he was not in breach. Moreover, the court is not persuaded by Plaintiff’s analysis or lack thereof. In the Reply, Plaintiff then argues that, “[s]ince at least Sterling Ventures is in breach, [Code of Civil Procedure section 1281.2] warrants ordering the entire case back to superior court.” (Reply, at p. 7.) As noted above, however, the Sterling Defendants are not in breach for the purposes of Code of Civil Procedure section 1281.97.

Because the Sterling Defendants, as drafting party, were not in default under Code of Civil Procedure section 1281.97, the court lacks grounds to grant Plaintiff’s motion to vacate its October 2022 order compelling arbitration. Accordingly, the court denies Plaintiff’s motion.

Sanctions

Under the Code of Civil Procedure section 1281.97, if the drafting party is in default, the employee may withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. (Code Civ. Proc., § 1281.97, subd. (b)(1).) And if the employee proceeds with an action in a court of appropriate jurisdiction, the court shall impose sanctions on the drafting party in accordance with Code of Civil Procedure section 1281.99. (Code Civ. Proc., §, 1281.97, subd. (d).)

The court finds that sanctions are not warranted here because the drafting party, the Sterling Defendants, were not in default for the purposes of Code of Civil Procedure section 1281.97.

Thus, the court denies Plaintiff’s request for sanctions.

CONCLUSION

Based on the foregoing, the court denies Plaintiff’s motion to vacate its October 2022 order compelling arbitration. The court also denies Plaintiff’s request for sanctions.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: ¿April 3, 2023

_____________________________

Colin Leis

Judge of the Superior Court

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – CENTRAL DISTRICT

DEPARTMENT 74

¿¿nyah wilcox¿¿,¿ ¿¿Plaintiff¿, vs. ¿¿sterling venue ventures, llc, chris kissinger, lance sterling¿¿, et al.,¿ ¿¿Defendants¿.	Case No.:	22STCV18835

	Hearing Date:	¿¿April 3, 2023

	Time:	¿¿8:30 a.m.¿

	[TENTATIVE] ORDER RE: Defendants’ Motion to Compel Arbitration

MOVING PARTIES: Defendants Sterling Venue Ventures, LLC, Lance Sterling and Chris Kissinger

RESPONDING PARTY: Plaintiff Nyah Wilcox

Motion to Compel Arbitration and Stay Proceedings

The court considered the moving papers, opposition, and reply in connection with this motion.

BACKGROUND

This action arises from an employment dispute.

In May 2021, Plaintiff Nyah Wilcox (Plaintiff) and Defendants Sterling Venue Ventures, LLC, and Lance Sterling (Sterling Defendants) entered into an arbitration agreement. In June 2022, Plaintiff filed a civil action against the Sterling Defendants and Defendant Chris Kissinger. In August 2022, all Defendants filed a motion to compel arbitration. At the time, Gary Kurtz represented all Defendants.

On November 9, 2022, Plaintiff sent all Defendants and the American Arbitration Association (AAA) its demand for arbitration. The demand listed Gary Kurtz’s and Renee Noy’s email addresses but omitted George Albutt. Plaintiff provided AAA the incorrect email address for Renee Noy. Consequently, neither Renee Noy nor George Albutt received AAA’s request for filing fees issued via email on November 17, 2022.

AAA had sent both letters via email. On the email, George Albutt was not listed as a recipient and Renee Noy’s email address was incorrect.

On January 23, 2023, all Defendants filed this motion to compel arbitration.

LEGAL STANDARD

In a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.)

Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

DISCUSSION

An Arbitration Agreement Exists.

Defendants already moved to compel arbitration and the court granted the motion in part. (Albutt Decl., ¶¶ 2,3; Ex. 1.) That is, the court found that Plaintiff agreed to arbitrate and the claims fell within the scope of the agreement. (Albutt Decl., ¶¶ 2,3; Ex. 1.)

Thus, there is a valid arbitration agreement.

Waiver.

A court will not enforce an otherwise enforceable arbitration agreement when a party has waived its right to arbitration. (Code Civ. Proc., § 1281.2, subd. (a).)

Waiver Under Code of Civil Procedure section 1281.97.

And if the drafting party is in default, the employee may withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. (Code Civ. Proc., § 1281.97, subd. (b)(1).)

The AAA Invoice Was Ineffective for Purposes of Code of Civil Procedure section 1281.97.

Defendants contend that they could not waive their right to arbitration because the AAA invoice was ineffective in the first place. The arbitration agreement between the parties specified that AAA rules governed the dispute. (Albutt Decl.; Ex. 4.) The AAA rules provide that the notice necessary for the initiation of an arbitration may be served by mail. (AAA Rule 38, subd. (a).) The AAA may also give the parties email notice, so long as all parties and the arbitrator agree. (AAA Rule 38, subd. (b).)

All Defendants point out that they had not agreed to email service with an arbitrator. (Albutt Decl., ¶ 6; Noy Decl., ¶ 4; Kurtz Decl., ¶ 6.) In the opposition, Plaintiff does not address whether AAA complied with its own rules.

Thus, the thirty-day grace period did not begin on November 17, 2022, because AAA’s service of the invoices was ineffective.

The Sterling Defendants’ Payment of Arbitration Fees Was Timely Under Code of Civil Procedure section 1281.97.

“[T]he drafting party’s receipt of the invoice triggers the 30-day clock under [Code of Civil Procedure] section 1281.97, subdivision (a)(1).” (Espinoza, supra, 83 Cal.App.5th at p. 774.)

Here, the Sterling Defendants did not receive the invoice on November 17, 2022, because the AAA did not email their counsel. AAA neglected to email George Albutt at all and Renee Noy’s email was incorrect. (Albutt Decl.; Ex. 4.) Consequently, the thirty-day grace period for the Sterling Defendants to pay fees and costs did not yet begin. (Code Civ. Proc., § 1281.97, subd. (a)(1).) Not until January 4, 2023 did the Sterling Defendants’ counsel receive the invoice when Gary Kurtz forwarded it to them. (Albutt Decl., ¶ 5.) The Sterling Defendants’ counsel paid the filing fee five days later, well within thirty days of receipt. (Albutt Decl., ¶ 11; Ex. 8.) Thus, the Sterling Defendants did not waive their right to compel arbitration under Code of Civil Procedure section 1281.97, subdivision (a)(1).

Plaintiff contends that the thirty-day grace period began when Plaintiff served the Sterling Defendants with the arbitration demand on November 9, 2022. (Opp., at p. 10.) Plaintiff also argues that the AAA’s invoice did not trigger the thirty-day grace period. (Opp., at p. 10.) However, Plaintiff’s claims clash with the Court of Appeal’s interpretation of Code of Civil Procedure section 1281.97, as well as the statute itself. (Code Civ. Proc., § 1281.97, subd. (a)(2) [“. . . the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration . . . the arbitration provider shall issue all invoices to the parties as due upon receipt.”]; Espinoza, supra, 83 Cal.App.5th at p. 774 [“[T]he drafting party’s receipt of the invoice triggers the 30-day clock under [Code of Civil Procedure] section 1281.97, subdivision (a)(1).”].)

In the alternative, Plaintiff claims that the Sterling Defendants received the invoice and adequate notice on November 17, 2022, because Gary Kurtz, counsel for Defendant Chris Kissinger, received it. (Opp., at p. 12.) Plaintiff cites an email from Kurtz dated July 5, 2022, in which he informs Plaintiff’s counsel that his firm is general counsel for all Defendants and authorized to accept service for them. (Butzen Decl., ¶ 3; Ex. 1.) However, Kurtz had withdrawn from representation of the Sterling Defendants by the time AAA issued the invoice. (Albutt Decl., ¶ 2; Noy Decl., ¶ 2.) Kurtz thereafter lacked ostensible authority to receive service of process on the Sterling Defendants’ behalf. (See Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012, 1018 [holding that attorney can be found to have ostensible authority to receive service of process on the client’s behalf where the attorney-client relationship is sufficiently close and enduring].) Moreover, Plaintiff was aware that George Albutt and Renee Noy were the new counsel for the Sterling Defendants because they filed a reply in support of the Sterling Defendants’ first motion to compel arbitration and Kurtz filed a notice of joinder on behalf of Defendant Chris Kissinger. (Kurtz Decl., ¶ 5.) And Plaintiff’s November 9, 2022, demand for arbitration included Renee Noy. (Albutt Decl.; Ex. 2.) Thus, Plaintiff knew that service of the Sterling Defendants’ counsel, not their former counsel, was necessary. But Plaintiff also contends that Kurtz was authorized to accept service on the Sterling Defendants’ behalf under Code of Civil Procedure section 416.90. As the Sterling Defendants note, though, Code of Civil Procedure section 416.90 does not apply to the Sterling Defendants, which are a limited liability company. (Reply, at p. 7.) Since they are an association, the Sterling Defendants must be served under Code of Civil Procedure section 416.30, whose requirements are derivative of those in Code of Civil Procedure section 416.10. True, Plaintiff has furnished an email in which Kurtz suggests he, as general counsel, may accept service on the Sterling Defendants’ behalf. (Butzen Decl., ¶ 3; Ex. 1.) But Plaintiff has failed to proffer any evidence that the Sterling Defendants themselves so authorized their general counsel, as required by Code of Civil Procedure section 416.10. Thus, service on Kurtz alone did not constitute service on the Sterling Defendants on November 17, 2022.

Additionally, Plaintiff claims the Sterling Defendants cannot argue they did not waive their right to arbitration under Code of Civil Procedure section 1281.97 because they failed to remedy the incorrect email address in the demand for arbitration. (Opp., at 13.) In support, Plaintiff cites Civil Code sections 3515 and 3516. (Civ. Code, § 3515 [“He who consents to an act is not wronged by it.”]; Civ. Code, § 3516 [“Acquiescence in error takes away the right of objecting to it.”].) The court is not persuaded that either provision applies here. By failing to notice and remedy the incorrect email address on Plaintiff’s demand letter, the Sterling Defendants did not consent to forego service; nor did they acquiesce to Plaintiff’s error.

Lastly, Plaintiff’s reliance on Williams v. West Coast Hospitals, Inc. (2022) 86 Cal.App.5th 1054 (Williams) is misplaced. There, a defendant who had successfully compelled arbitration thereafter failed to timely pay its share of the arbitration fees. (Id. at p. 1054.) Consequently, the defendant waived its right to arbitration and the lower court lifted the stay and permitted the litigation to resume. (Id. at p. 1075.) The lower court applied the relevant statute under the Code of Civil Procedure, even though the defendant’s belated payment was unintentional and only a few days late. (Id. at p. 1074.) The Court of Appeal affirmed. (Ibid.) Williams is distinguishable, though. The arbitration provider properly notified the parties of the filing fee and its deadline. (Id. at p.1063.) Such is not the case here. The Sterling Defendants did not receive the invoices because AAA emailed them to the wrong email address. (Albutt Decl.; Ex. 4.) Moreover, when the Sterling Defendants did receive the invoice, they paid the fees in a timely fashion, as required by Code of Civil Procedure section 1281.97. (Albutt Decl., ¶ 11; Ex. 8.)

In sum, Plaintiff has failed to demonstrate that the Sterling Defendants waived their right to compel arbitration under Code of Civil Procedure section 1281.97, subdivision (a)(1). Plaintiff therefore cannot withdraw its claim from arbitration. (Code Civ. Proc., § 1281.97, subd. (b)(1).)

Code of Civil Procedure section 1281.97 Does Not Apply to Defendant Chris Kissinger.

The court notes Defendant Chris Kissinger should have received the invoice from AAA via his counsel Gary Kurtz on November 17, 2022. Defendant Chris Kissinger was not the drafting party of the arbitration agreement between Plaintiff and the Sterling Defendants, though. (Sterling Decl., ¶¶ 2-3.) Consequently, Code of Civil Procedure section 1281.97 does not apply to Defendant Chris Kissinger. His payment or lack thereof is irrelevant to the issue of waiver and cannot serve as grounds for Plaintiff to withdraw its claim from arbitration.