Judge: Cynthia A Freeland, Case: 37-2022-00046490-CU-NP-NC, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 10, 2023

08/11/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2022-00046490-CU-NP-NC HANDAL VS. AFFORDABLE SENIOR HOUSING FOUNDATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 06/15/2023

Plaintiff Gracella Handal ('Plaintiff')'s motion for an order directing Defendant Affordable Senior Housing Foundation dba Oak Hill Residential Care ('Defendant') to pay Plaintiff's attorney's fees and costs related to the arbitration or, alternatively, to withdraw the claims from arbitration is denied.

On November 4, 2014, Plaintiff and Defendant entered into an Assisted Living Waiver Admission Agreement/Policy (the 'Admission Agreement') under which Defendant agreed to lease to Plaintiff an apartment at Defendant's assisted living facility. See Pick Decl., Ex. A. Exhibit A to the Admission Agreement, entitled 'Rules and Regulations,' contains at § 28 an arbitration provision (the 'Arbitration Provision') providing that: Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled solely and exclusively by binding arbitration in Escondido, California. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of JAMS/Endispute ('JAMS'), with the following exceptions if in conflict: (a) One arbitrator shall be chosen by JAMS; (b) Each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) Arbitration may proceed in the absence of any party if written notice (pursuant to the JAMS' rules and regulations) of the proceedings has been given to such party. Each party shall bear its own attorneys fees and expenses. If one party pays all fees and expenses for both parties the arbitration judge shall include this expense in the judgment as against the losing party and to the benefit of the winning party.

The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided however, that nothing in this subsection shall be construed as precluding the bringing an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. The arbitrator shall be required to follow applicable law. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.

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2985129 CASE NUMBER: CASE TITLE:  HANDAL VS. AFFORDABLE SENIOR HOUSING FOUNDATION [IMAGED]  37-2022-00046490-CU-NP-NC See the Arbitration Provision.

On November 16, 2022, Plaintiff commenced this action by filing a Complaint against Defendant for: (1) statutory elder abuse/neglect, and (2) negligence. See ROA No. 1. On January 10, 2023, Plaintiff filed a motion for trial preference. See ROA No. 10. On January 17, 2023, Defendant filed a petition to compel arbitration consistent with the Arbitration Provision. See ROA No. 24. On March 10, 2023, the court: (1) granted Defendant's petition; (2) denied Plaintiff's request for trial preference; and (3) stayed this matter pending the outcome of the arbitration hearing. See ROA No. 37. Plaintiff now moves under California Code of Civil Procedure ('CCP') § 1281.97 for an order directing Defendant to pay Plaintiff's attorney's fees and costs related to the arbitration or, alternatively, to withdraw the claims from arbitration.

CCP § 1281.97(a)(1) provides that: 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.

Cal. Code Civ. P. § 1281.97(a)(1). If the drafting party materially breaches the arbitration agreement and is in default under CCP § 1281.97(a)(1), the employee or consumer has two options: '(1) Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction[; or] (2) Compel arbitration in which the drafting party shall pay reasonable attorney's fees and costs related to the arbitration.' Cal. Code Civ. P. § 1281.97(b).

The court finds that Plaintiff has failed to demonstrate entitlement to the requested relief. The evidence shows that on April 14, 2023, JAMS sent the parties a Notice that it had received a Demand for Arbitration and that it would apply JAMS Policy on Consumer Arbitration Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (the 'Minimum Standards'). See Pick Decl., Ex. C.

Paragraph 7 of the Minimum Standards provides in relevant part that '[w]hen the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.' See Minimum Standards, ¶ 7. Plaintiff has provided evidence that on April 14, 2023, JAMS generated a Deposit Request billing Defendant's counsel the $1,750.00 associated with the JAMS filing fee. See Pick Decl., Ex. D. JAMS e-mailed the Deposit Request to Defendant's counsel on April 15, 2023 at 5:13 a.m., indicating that payment was due upon receipt. Ibid., Ex. E.

Accordingly, Defendant would have been in material breach of the Arbitration Provision if it did not pay the Deposit Request within 30 days after the April 15, 2023 due date, or by May 15, 2023. See Espinoza v. Sup. Ct. (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 section 1281.97, subdivision (a)(1).'). On May 11, 2023 at 4:38 p.m., Defendant's counsel provided FedEx with a package containing a check to JAMS in the amount of $1,750.00. See Smith Decl., ¶ 4. A review of the tracking history indicates that the package was delivered to JAMS's Irvine office on May 15, 2023 at 9:28 a.m. Ibid., Ex. 3. Donna K. Moore, a Senior Paralegal Specialist for FedEx Express's Legal Department, has submitted a sworn declaration that, according to company records, the shipment was delivered to JAMS's Irvine office on May 15, 2023 at 9:28 a.m. as Mr. Smith has represented. Ibid., Ex. 4. While Plaintiff provides evidence that the payment was not applied by JAMS until May 19, 2023, the evidence plainly shows that JAMS received the payment on May 15, 2023. See Pick Decl., Ex. F. Accordingly, the court finds that Defendant submitted the payment within the 30-day statutory period to do so and thus the motion must be denied.

In light of the foregoing, the court denies Plaintiff's motion.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 11, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 11, 2023. If the parties Calendar No.: Event ID:  TENTATIVE RULINGS

2985129 CASE NUMBER: CASE TITLE:  HANDAL VS. AFFORDABLE SENIOR HOUSING FOUNDATION [IMAGED]  37-2022-00046490-CU-NP-NC are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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