Judge: Daniel M. Crowley, Case: 21STCV07392, Date: 2022-08-24 Tentative Ruling

Case Number: 21STCV07392    Hearing Date: August 24, 2022    Dept: 28

Defendants’ Northstar Senior Living, Inc., Shelby Senior Care LLC, and Matan Burstyn’s Motion to Compel Arbitration

Having considered the moving, opposing, and reply papers, the Court rules as follows. 

BACKGROUND

On February 24, 2021, Plaintiff Cathryn Michelle Field (“Plaintiff”) filed this action against Defendant Northstar Senior Living, Inc. (“Northstar”), Shelby Senior Care LLC (“Shelby”) and Matan Burstyn (“Burstyn”) for elder and dependent adult abuse and wrongful death.

On March 29, 2021, Defendants filed an answer.

On July 29, 2022, Defendants filed a Petition to Compel Arbitration to be heard on August 24, 2022. On August 10, 2022, Plaintiff filed an opposition. On August 17, Defendants filed a reply.

Trial is currently set for January 11, 2023.

PARTY’S REQUESTS

Defendants request the Court enforce arbitration.

Plaintiff requests the Court deny the motion.

OBJECTIONS

Plaintiff’s Objections:

Sustained: 1, 2, 3, 7

Overruled: 4, 5, 6

Defendants’ Objections are OVERRULED.

LEGAL STANDARD

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.)

Waiver of the right to arbitrate is assessed through a number of factors, including: (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparation of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party. (St. Agnes Medical Center v. PacificCare of California (2003) 41 Cal. 4 th 1187, 1196.)

DISCUSSION

Defendants have waived their right to arbitration, as their actions are inconsistent with the right to arbitrate. Defendants have substantially invoked litigation machinery before informing Plaintiff of the intent to arbitrate Defendants answered the complaint almost exactly 13 months prior to filling this Motion to Compel Arbitration and, during that time, have utilized tools only made available through the litigation process. Defendants have served Requests for Production, Special Interrogatories, and Form Interrogatories, along with Supplemental Interrogatories and Requests for Production later. Defendants subpoenaed records from 23 separate facilities, made a §998 Offer to Settle, which is not fully supported under JAMS rules, and benefitted from Expert Exchanges.

Defendants now seek to arbitrate only approximately 6 months before trial, despite have answered the complaint approximately a year and a half ago. The Court also notes that trial was continued pursuant to Defendants’ own motion less than a month prior to the filing of this motion and would have been much closer had the Court not granted Defendants’ motion.

Defendants were aware of the fact there was an arbitration agreement from the inception of this case, based upon their answer. Even if Defendants had been unable to find their own copy of the arbitration agreement, Defendants could have requested said agreement using discovery from Plaintiff. As such, the Court notes find that Defendants acted in good faith. Defendants have reaped the benefits of litigation, and, as such, the Court finds they have waived their right to arbitrate. The Court grants the motion.

CONCLUSION

Defendants’ Northstar Senior Living, Inc., Shelby Senior Care LLC, and Matan Burstyn’s Motion to Compel Arbitration is DENIED.

            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.