Judge Daniel M. Crowley, Case Number: 20STCV38978, Date: 2023-08-28 Tentative Ruling

Plaintiff Yair Suarez’s unopposed motion to correct order nunc pro tunc setting aside the oral stipulation to arbitration and deeming the arbitration agreement signed by Plaintiff on October 19, 2019, to be the operative agreement is granted.

Plaintiff Yair Suarez (“Suarez”) (“Plaintiff”) moves unopposed for an order setting aside the oral stipulation to arbitration on August 25, 2022, nunc pro tunc, based upon the mutual mistake of the parties. (Notice Motion, pgs. 1-2.)

On August 23, 2022, Plaintiff filed a motion to compel arbitration pursuant to the arbitration agreement he signed on October 30, 2019, with Defendant California Waste Services, LLC (“California Waste”) (“Defendant”). (Decl. of Afgani ¶4, Exh. 1.) At the August 25, 2022, hearing on Plaintiff’s ex parte application to advance his motion to compel arbitration and stay proceedings, parties orally stipulated to arbitration pursuant to §8.16 of the Collective Bargaining Agreement (“CBA”) and the case was ordered stayed pending binding arbitration as to the entire action. (8/25/22 Minute Order.)

Plaintiff filed the instant motion on April 3, 2023. Plaintiff filed a notice of non-opposition by Defendants on August 21, 2023. As of the date of this hearing no opposition has been filed.

Plaintiff argues he believed the agreement noted in the 8/25/22 Minute Order to be the agreement he had signed. (Decl. of Afgani ¶5, Exh. 2.) On August 26, 2022, Plaintiff attempted to initiate arbitration with Signature Resolution pursuant to the arbitration agreement he had signed with California Waste, and thereafter was notified that the arbitration agreement orally stipulated to was not the same as the one Plaintiff had signed. (Decl. of Afgani ¶6.) When Plaintiff attempted to receive a copy of the operative collective bargaining agreement which was orally stipulated to, he was met with silence. (Decl. of Afgani ¶6.)

Plaintiff argues he finally received the version of the CBA effective between December 15, 2020, through September 30, 2023, with Defendants Samuel Hale, LLC; Samuel Hale 2, LLC; and Samuel Hale Exchange LLC (collectively, “Samuel Hale”) (“Defendants”) on March 6, 2023. (Decl. of Afgani ¶7, Exh. 3.) The CBA Plaintiff received could not have governed Plaintiff’s employment at issue here because he was employed through February 2020. (Decl. of Afgani ¶7.)

Plaintiff argues he finally received the 2020 version of the CBA in effect at the time Plaintiff was employed by Defendants on March 7, 2023. (Decl. of Afgani ¶8.) Only the 2023 CBA, which is not applicable to Plaintiff’s employment, contains §8.16 which was orally stipulated to on August 25, 2022. (Decl. of Afgani ¶8, Exh. 4.)

Because Plaintiff believed he was orally stipulating to the arbitration agreement he signed with Defendant California Waste, and because Defendants believed they were stipulating to a version of the CBA which they believed to be in effect at the time of Plaintiff’s employment but was not, Plaintiff now seeks to apply for an order nunc pro tunc setting aside the oral stipulation to arbitration on August 25, 2022, for mutual mistake of the parties.

Where both parties are mistaken about the contract that is being agreed to, and a party to the contract would not have agreed to enter into the contract if he had known about the mistake, no contract was created. (CACI 331; Civ. Code §1576; Civ. Code §1577.) “Consent is not mutual, unless the parties all agree upon the same thing in the same sense.” (Civ. Code §1580.) When both parties understand the facts other than they are, the mistake necessarily is mutual and thus becomes a basis for recission.” (Crocker-Anglo National Bank v. Kuchman (1964) 224 Cal.App.2d 490, 496.) Where the “extrinsic evidence is not in conflict, the determination of whether a mutual mistake occurred is a question of law” to be decided by the Court. (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 527.)

Here, both Plaintiff and Defendants understood themselves to be entering into two different arbitration agreements. Plaintiff had moved to compel enforcement of the arbitration agreement that he had signed on October 19, 2019, with Defendant California Waste, while Defendants orally represented they were open to stipulating to arbitration pursuant to an arbitration agreement and section which was not in effect at the time that Plaintiff was employed with Samuel Hale. Plaintiff is warranted in bringing this nunc pro tunc motion to unilaterally rescind the oral stipulation to arbitration entered into on August 25, 2022. (See Wood v. Kalbaugh (1974) 39 Cal.App.3d 926, 932 [“to warrant a unilateral recission of a contract because of mutual mistake, the mistake must relate to basic or material fact.”].)

Accordingly, Plaintiff’s unopposed motion for an order nunc pro tunc deeming this the oral stipulation entered into on August 25, 2022, be set aside, thereby rendering the arbitration agreement actually signed by Plaintiff on October 19, 2019, as the operative arbitration agreement, is granted.

Plaintiff’s unopposed motion for an order nunc pro tunc deeming this the oral stipulation entered into on August 25, 2022, be set aside, thereby rendering the arbitration agreement actually signed by Plaintiff on October 19, 2019, as the operative arbitration agreement, is granted.

Hon. Daniel M. Crowley

Judge of the Superior Court