Judge: Daniel M. Crowley, Case: 19STCV31986, Date: 2022-08-11 Tentative Ruling
Case Number: 19STCV31986 Hearing Date: August 11, 2022 Dept: 28
Defendant Massage Envy Franchising, LLC’s Application for Pro Hac Vice Admission of Nicole Stewart
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On September 10, 2019, Plaintiff Taja Enge (“Plaintiff”) filed this action against Defendants Massage Envy Franchising, LLC (“ME”), Nurit Weiss-Grunfeld (“Weiss-Grunfeld”), Jeffery Grunfeld (“Grunfeld”), and Mario Yancy (“Yancy”) for negligence, premises liability, negligent hiring, supervision, training and retention, sexual battery, gender violence, freedom from violence pursuant to the Ralph Act, and negligent misrepresentation. Plaintiff amended the complaint to include Defendants Massage Envy Hollywood (“ME Hollywood”) and G & H Wellness Enterprises, LLC (“G&H”).
Weiss-Grunfeld and Grunfeld were dismissed without prejudice on July 31, 2020. G&H filed its answer on September 25, 2020.
On June 10, 2022, ME filed a Motion to Compel Arbitration to be heard on August 11, 2022.
On June 17, 2022, ME filed an application for Pro Hac Vice Admission of Nicole Stewart, to be heard on August 11, 2022.
Trial is currently set for February 1, 2023.
PARTY’S REQUESTS
ME requests that the Court order Plaintiff to arbitrate claims asserted against ME and to stay the lawsuit with respect to those claims.
ME requests the Court admit Nicole Stewart, pro hac vice.
LEGAL STANDARD
California Rule of Court, rule 9.40 provides that an attorney in good standing in another jurisdiction may apply to appear as counsel pro hac vice in the State of California by filing a verified application together with proof of service by mail of a copy of the application and notice of hearing on all parties who have appeared in the case and on the State Bar of California at its San Francisco office, with payment of a $50.00 fee, so long as that attorney is not a resident of the State of California, and is not regularly engaged in substantial business, professional, or other activities in the State of California.
The application must state: (1) the applicant’s residence and office addresses; (2) the courts to which the applicant has been admitted to practice and the dates of admission; (3) that the applicant is a member in good standing in those courts; (4) that the applicant is not currently suspended or disbarred in any court; (5) the title of each court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) the name, address, and telephone number of the active member of the State Bar of California who is attorney of record in the local action. (Cal. Rules of Court, rule 9.40, subd. (d).)
A petition to compel arbitration must allege both (1) a “written agreement to arbitrate” the controversy, and (2) that a party to that agreement “refuses to arbitrate” the controversy. (Code Civ. Proc., § 1281.2.) The Court shall grant the petition unless the petitioner waived the right to compel arbitration, or other grounds exist for rescission of the agreement. (Id.)
California Code of Civil Procedure § 1290.4, subdivision (b) requires a petition to compel arbitration under § 1281.2 to be served on the parties as provided in their arbitration agreement or, if no method was agreed to, in the same manner required for service of summons, if the party to be served has not previously appeared in the proceeding and has not previously been served in accordance with this subdivision. (Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 928.)
DISCUSSION
Arbitration
A petition to compel arbitration must both allege a written agreement to arbitrate and that a party refuses to arbitrate the controversy. Plaintiff agreed to be bound by the Terms of Use Agreement by checking the box next to the sentence “I agree and assent to the Terms of Use Agreement,” which included a hyperlink to those terms. The terms contained a written agreement to arbitrate, which is identified in bold and capitalized font on the front page. There was even an option to opt out of the arbitration agreement by sending an email to ME.
However, the Court notes that there is no indication that Plaintiff is refusing to arbitrate the controversy; ME asserted that “Plaintiff has refused MEF’s demand to arbitrate this action,” but provided no evidence indicating as such. There is no evidence of any served request or demand to arbitrate, nor is there a declaration stating that ME ever took any action to start arbitration prior to filing this motion. Thus, the Court must deny the motion for failing to comply with the requirements of CCP § 1281.2.
Pro Hac Vice
Stewart is in good standing in Arizona and Colorado and will be associated with California attorneys Lisa D. Angelo and Kelsey L. Maxwell. She is not regularly employed in California and do not regularly engage in substantial business, professional, or other activities in the State of California.
Stewart filed an application to be admitted Pro Hac Vice, which included the following information: her residential and office address, the courts that she is admitted to (along with dates of admissions), assurance she is in good standing, a record of all California pro hac vice appearances in the last two years, and information on the local attorney of record. ME submitted proof of service on parties who have appeared.
Defendants submitted proof of payment and submission. As such, the Court grants the motion.
CONCLUSION
Defendant Massage Envy Franchising, LLC’s Motion to Compel Arbitration is DENIED.
Defendant Massage Envy Franchising, LLC’s Application for Pro Hac Vice Admission of Nicole Stewart is GRANTED.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.