Judge Cynthia A Freeland, Case 37-2023-00036004-CU-BT-NC 2024-03-29 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00036004-CU-BT-NC, Date: 2024-03-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - March 28, 2024

03/29/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Business Tort Motion Hearing (Civil) 37-2023-00036004-CU-BT-NC MARWEST COMMERCIAL REAL ESTATE SERVICES, LLC VS HORSFIELD [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 12/18/2023

Defendants Geoffrey Horsfield and Pullman Management Group, Inc. ('PMG' and, together with Mr.

Horsfield, 'Defendants')'s motion to compel arbitration and stay proceedings is granted.

The court construes Plaintiffs MarWest Commercial Real Estate Services, LLC ('MarWest Real Estate') and MarWest Commercial Property Management Services, Inc. ('MarWest Property Management' and, together with MarWest Real Estate, 'Plaintiffs')'s lack of opposition as a concession of the motion's merits. See San Diego Rules of Court Rule 2.1.19.B. In addition, the uncontroverted evidence establishes that on February 6, 2017, Mr. Horsfield, as part of his employment with MarWest Real Estate, entered into a Mutual Agreement to Mediate and Arbitrate Claims (the 'Arbitration Agreement') with FirstService Residential California, LLC ('FSR') 'and its California affiliates'. See Exs. 4-5. The introductory paragraph to the Arbitration Agreement provides that Mr. Horsfield and FSR: [M]utually consent to the resolution, initially by mediation and, if mediation is not able to resolve, then by arbitration, of all claims or controversies ('Claims'), past, present or future, whether or not arising out of Employee's employment or its termination, that FSR may have against Employee or that Employee may have against any of the following: (1) FSR, (2) its officers, directors, employees or agents in their capacity as such or otherwise, (3) FSR's parent, subsidiary and affiliated entities, (4) the benefit plans or the plans' sponsors, fiduciaries, administrators, affiliates and agents, and/or (5) all successors and assigns of any of them.

See Arbitration Agreement, p. 1. Paragraph 2 of the Arbitration Agreement, entitled 'Claims Subject To Mediation And Arbitration', provides in relevant part that: The Claims to be mediated and then arbitrated if the Parties are unable to resolve the Claims through mediation include, but are not limited to: those claims by Employee that are made within the applicable statute of limitations and that arise out of, or are related to, (i) a claim of employment discrimination (including, but not limited to, discriminatory retaliation, and discriminatory or sexual harassment); (ii) a claim of wrongful or unlawful termination of employment, including claims of constructive discharge; (iii) a claim for wages or other compensation (after hearing by the state agency responsible for adjudicating such claims, if such administrative hearing is elected by Employee); (iv) a tort claim or any other claim in which punitive damages or emotional distress damages could be awarded that arose out of, or is related to, the employment relationship; (v) a claim for benefits (except claims under an employee benefit or pension plan that either (1) specifies that its claims procedure shall culminate in an arbitration procedure different from this one, or (2) is underwritten by a commercial insurer which decides claims); and (vi) a claim that is related in any manner to the claims described in (i) through (v) of this paragraph, whether Calendar No.: Event ID: TENTATIVE RULINGS

3088860 CASE NUMBER: CASE TITLE: MARWEST COMMERCIAL REAL ESTATE SERVICES, LLC VS 37-2023-00036004-CU-BT-NC based on a statute, public policy, or otherwise. Arbitrable disputes by FSR are those claims against Employee that are made within the applicable statute of limitations and that arise out of, or are related to, the employment relationship.

Ibid., ¶ 2.

The Arbitration Agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) (the 'FAA')'s substantive and procedural rules. Ibid., ¶ 3. In relevant part, the FAA provides that: A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2.

The court may resolve a motion to compel arbitration in summary proceedings. See Gamma Eta Chapter of Pi Kappa Alpha v. Helvey (2020) 44 Cal. App. 5th 1090, 1098. The court applies state contract law in determining Defendants' right to enforce the Arbitration Agreement. See Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal. 4th 223, 236 ('In determining the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.'); Giuliano v. Inland Empire Personnel, Inc.

(2007) 149 Cal. App. 4th 1276, 1285 (generally applicable contract defenses may invalidate arbitration agreements provided they do not contravene § 2 of the FAA). A threshold determination in that regard is the existence of a valid arbitration agreement. See Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal. App. 4th 165, 172. Defendants bear the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. Plaintiffs then bear the burden of proving by a preponderance of the evidence any facts necessary to preclude enforcement of the Arbitration Agreement. See Lane v. Francis Capital Management LLC (2014) 224 Cal. App. 4th 676, 683.

The court finds that Defendants have satisfied their initial burden of proving the existence of a valid arbitration agreement. Defendants have provided a copy of the Arbitration Agreement signed by Mr.

Horsfield and FSR's President Bob Cardoza (on FSR's behalf). Nothing further is required to prove the Arbitration Agreement's existence. See Condee v. Longwood Management Corp. (2001) 88 Cal. App. 4th 215, 218-219 ('For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication . . . the court is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity.'); Cal. R. Ct. 3.1330. Additionally, while the Arbitration Agreement is signed by Mr. Horsfield and FSR, the Arbitration Agreement makes clear that FSR's California affiliates are also parties to the agreement. Plaintiffs allege that FSR is their parent company. See First Amended Complaint (the 'FAC'), ¶ 17. Consequently, Plaintiffs can be compelled to arbitrate their claims in this matter. Furthermore, Defendants have demonstrated that the claims underlying the FAC fall squarely within the Arbitration Agreement's scope – indeed, Plaintiffs' claims against Mr. Horsfield arise out of, and are related to, his former employment relationship with Plaintiffs and, therefore, are subject to arbitration. While PMG is not a signatory to the Arbitration Agreement, an order compelling arbitration of claims against it nonetheless is appropriate because, among other reasons, PMG is willing to submit to binding arbitration. See Lovret v. Seyfarth (1972) 22 Cal. App. 3d 841, 859-860.

The burden thus shifts to Plaintiffs to prove by a preponderance of the evidence any facts necessary to preclude enforcement of the Arbitration Agreement. By failing to oppose the motion, Plaintiffs have not met their burden.

In light of the foregoing, the court grants the motion. This litigation is stayed pending the outcome of the arbitration hearing. See 9 U.S.C. § 3. The case management conference in this matter is vacated.

Calendar No.: Event ID: TENTATIVE RULINGS

3088860 CASE NUMBER: CASE TITLE: MARWEST COMMERCIAL REAL ESTATE SERVICES, LLC VS 37-2023-00036004-CU-BT-NC This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 29, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 29, 2024. If the parties 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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3088860