Judge: Daniel M. Crowley, Case: 22STCV00473, Date: 2023-08-23 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff  via the Department's email: SMCdept71@lacourt.org before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Case Number: 22STCV00473    Hearing Date: August 23, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Miguel Zelidon’s motion to vacate this Court’s March 6, 2023, order granting Defendant Ground Services International Inc.’s motion compelling arbitration is denied.

Plaintiff’s request for attorneys’ fees is denied.

Defendant’s request for attorneys’ fees is denied.

          Plaintiff Miguel Zelidon, (“Zelidon”) (“Plaintiff”) moves to (1) vacate the Court’s order on Defendant Ground Services International Inc.’s (“GSI”) (“Defendant”) motion compelling arbitration due to Defendant’s (a) material breach pursuant to C.C.P. §1281.97, and (b) waiver pursuant to its bad faith and willful misconduct; (2) lift its prior order imposing a stay; and (3) grant sanctions against Defendant and its counsel – Laura Morgan of dnata USA, Frank Olah of Jackson Lewis PC, and Brittney Willis of Jackson Lewis PC – as well as the Amalgamated Local 22 Eastern States Joint Board, International Union of Allied Novelty and Production Workers (“Union”) and its counsel – Sheri Preece of McCarthy & Preece, PLLC – jointly and severally, in the amount of $28,650.08.  (Notice of Motion, pgs. 1-2; C.C.P. §1281.97.)

          In opposition, Defendant requests sanctions imposed against Plaintiff and his counsel in the amount of $5,775.00.  (Opposition, pg. 6; C.C.P. §1008(d).)

          Background

On January 5, 2022, Plaintiff filed the operative Complaint against Defendant[1] alleging ten causes of action: (1) discrimination in violation of Government Code §§12940 et seq.; (2) retaliation in violation of Government Code §§12940 et seq.; (3) failure to prevent discrimination and retaliation in violation of Government Code §12940(k); (4) failure to provide reasonable accommodations in violation of Government Code §§12940 et seq.; (5) failure to engage in a good faith interactive process in violation of Government Code §§12940 et seq.; (6) violation of California Family Rights Act, Government Code §§12945.2 et seq.; (7) declaratory judgment; (8) wrongful termination in violation of public policy; (9) failure to provide meal and rest periods (Labor Code §§226.7, 512); and (10) unfair competition (Bus. & Prof. Code §§17200 et seq.) arising from the termination of Plaintiff’s employment by Defendant on or about May 8, 2020.  (Complaint ¶34.)

On March 6, 2023, this Court granted Defendant’s motion to compel arbitration of all of Plaintiff’s claims.  (3/6/23 Minute Order.)

Plaintiff filed the instant motion on August 1, 2023.  Defendant filed its opposition on August 10, 2023.  Plaintiff filed his reply on August 16, 2023.

Motion to Vacate Arbitration Order

C.C.P. §1281.97(a)(1) provides:

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.

(C.C.P. §1281.97(a)(1).)

C.C.P. §1281.97(b) provides:

(b) If the drafting party materially breaches the arbitration agreement and is in default under subdivision (a), the employee or consumer may do either of the following:

(1)    Withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction.

(2)    Compel arbitration in which the drafting party shall pay reasonable attorney’s fees and costs related to the arbitration.

(C.C.P. §§1281.97(b)(1)-(2).)

Plaintiff’s argument that Defendant is in breach of the Arbitration Agreement for failing to pay the April 20, 2023, JAMS invoice on May 20, 2023, is unavailing.  Plaintiff argues he would “not agree to the union rep making decisions for him as he is represented by an attorney.”  (Decl. of Willis ¶7, Exh. F.)

Section 9(a) of the National Labor Relations Act (“NLRA”) provides that a union is the exclusive representation for the purposes of collective bargaining.  Privately retained attorneys should not be involved in grievance proceedings.  (See Castelli v. Douglas Aircraft Co. (9th Cir. 1985) 752 F.2d 1480; See also Emporium Capwell Co. v. Western Addition Community Organization (1975) 420 U.S. 50, 61-65 [grievance procedures are an integral part of the collective bargaining process]; United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960) 363 U.S. 574, 581; Demetris v. Local 514, Transportation Workers Union of America (9th Cir. 2017) 862 F.3d 799, 804 [a union’s duty of fair representation grows from its statutory right to exclusive representation].)  Under Castelli, Plaintiff agreed to the Union’s exclusive representation and that representation should not be undermined by involving counsel’s office in the arbitration process. The CBA states:

Within ten (10) days of receipt of a demand for arbitration, the Company CEO and designated local Union Representative, will agree on an impartial arbitrator to sit with [the System Board of Adjustment] as an additional member in further hearing and determination of the matter.  If they are unable to select an arbitrator within that time frame, either party may request the American Arbitration Association to make the selection in accordance with the usual practices of the Association in this connection.  

(Decl. of Willis ¶4, Exh. B at art. 17, §4.)

On April 13, 2023, GSI received Plaintiff’s demand for arbitration via email.  (Decl. of Willis ¶5.)  GSI also received Plaintiff’s formal demand for arbitration with JAMS, which violates the procedures set forth in the CBA that call for the parties to work with American Arbitration Association in the event the parties are unable to agree to an arbitrator.  (See Decl. of Willis ¶4, Exh. B at art. 17, §4.)

Here, Defendant is not in material breach of the arbitration agreement because it has not paid the JAMS invoice.  On April 17, 2023, GSI notified Plaintiff that Union Vice President Anthony Miranti (“Miranti”) and GSI timely selected labor arbitrator Steve C. Kasarda (“Kasarda”) in accordance with Article 17 §4(a) of the CBA.  (Decl. of Willis ¶6, Exhs. D, E.)  Defendant followed the procedures of the CBA by agreeing with the Union to select Kasarda as the arbitrator, and GSI was under no obligation to pay the JAMS invoice.

Defendant has not waived its right to participate in the arbitration process. The California Supreme Court held that in determining waiver of the right to arbitrate, the factors a court should consider are: “(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. PacifiCare of California (2003) 31 Cal.4th 1187, 1196.)

Plaintiff has failed to demonstrate it has been prejudiced or would be prejudiced by attending an arbitration with Kasarda.  Further, “[a] union is accorded wide latitude in the representation of its members, and courts are reluctant to interfere with a union’s decisions in representing its members absent a showing of arbitrary exercise of the union’s power.”  (Hussey v. Operating Engineers Local Union No. 3 (1995) 35 Cal.App.4th 1213, 1219.)  No such showing of the Union’s arbitrary exercise of power has been demonstrated before the Court with regards to the selection of Kasarda as arbitrator.[2]  As this Court held on March 6, 2023, no litigation machinery has been invoked by Defendant, other than when it was forced to seek a court order compelling arbitration.  (Decl. of Willis ¶3, Exh. A.)  

Plaintiff’s argument that Defendant waived any right it had to arbitrate Plaintiff’s claims because Defendant has engaged in bad faith and willful misconduct is also unavailing because Defendant has followed the procedures set forth in the CBA to initiate arbitration.

Accordingly, Plaintiff’s motion to vacate arbitration and lift the stay in the instant matter is denied.

Monetary Sanctions

In light of the Court’s ruling on Plaintiff’s motion, Plaintiff’s request for sanctions is denied.

Defendant’s request for sanctions is denied.

Conclusion

Plaintiff’s motion to vacate this Court’s March 6, 2023, order granting Defendant’s motion compelling arbitration is denied.

Plaintiff’s request for sanctions against Defendant is denied.

Defendant’s request for sanctions against Plaintiff is denied.

Moving Party to give notice.

Dated:  August _____, 2023