Judge: Daniel S. Murphy, Case: 23STCV12304, Date: 2024-05-31 Tentative Ruling

Case Number: 23STCV12304    Hearing Date: May 31, 2024    Dept: 32

BACKGROUND

            On May 31, 2023, Plaintiff Ava Welsing-Kitcher filed this action against Defendants Karplus Warehouse, Inc. and The Western Surety Company, asserting claims arising from Plaintiff’s purchase of a Hyundai vehicle. Plaintiff filed the operative First Amended Complaint on July 31, 2023.

            On January 4, 2024, the Court ordered the matter to arbitration pursuant to the parties’ stipulation.

            On April 30, 2024, Plaintiff filed the instant motion to withdraw from arbitration and reinstate the matter in court. Defendants filed a notice of non-opposition on May 17, 2024.    

LEGAL STANDARD

“In an employment or consumer arbitration that requires . . . 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.” (Code Civ. Proc., § 1281.97(a)(1).) “If the drafting party materially breaches the arbitration agreement and is in default under subdivision (a), the employee or consumer may . . . [w]ithdraw the claim from arbitration and proceed in a court of appropriate jurisdiction.” (Id., § 1281.97(b).) 

DISCUSSION

            Plaintiff made an arbitration demand with AAA on February 6, 2024. (Barry Decl. ¶ 6, Ex. 5.) AAA sent an initial fee request on February 23, 2024, with payment “due upon receipt.” (Id., Ex. 6.) Payment was due on March 25, 2024 based on the thirty-day grace period provided by Code of Civil Procedure section 1281.97. (Ibid.) AAA sent a reminder on March 11, 2024 that Defendants had not remitted the fee, reiterating that the grace period would end on March 25, 2024. (Id., Ex. 7.) On April 3, 2024, AAA sent notice that payment still had not been received and that it was closing the file. (Id., Ex. 8.)  

            Defendants do not dispute these facts and have indicated their non-opposition to the motion. The undisputed facts show that Defendants are in default of arbitration for failing to timely pay the requisite fees. Therefore, Plaintiff is entitled to withdraw the matter from arbitration.

CONCLUSION

            Plaintiff’s motion to withdraw from arbitration is GRANTED.