Judge: David A. Rosen, Case: 21GDCV00925, Date: 2022-07-29 Tentative Ruling
Case Number: 21GDCV00925 Hearing Date: July 29, 2022 Dept: E
Hearing Date: 07/29/2022 – 8:30am
Case No. 21GDCV00925
Trial Date:
04/24/2023
Case Name: JOANNE
KIM v. FOREST LAWN MEMORIAL-PARK ASSOCIATION, a California corporation; CARMEN
YARALIAN, an indiv; and DOES 1-50
TENTATIVE
RULING ON MOTION TO COMPEL ARBITRATION
Moving Party: Defendant, Forest Lawn Memorial-Park
Association
Responding Party: Plaintiff, Joanne Kim
Proof of Service Timely Filed (CRC Rule 3.1300): ok
16/21 Court Days Lapsed (CCP 1005(b)): No, the instant motion was untimely.
“Unless
otherwise ordered or specifically provided by law, all moving and supporting
papers shall be served and filed at least 16 court days before the hearing…
and if the notice is served by facsimile transmission, express mail, or another
method of delivery providing for overnight delivery, the required 16-day period
of notice before the hearing shall be increased by two calendar days.” (CCP
§1005(b).)
Here, the
motion is untimely for two reasons. One, the motion itself was served by email
on July 7, 2022. Although July 7, 2022, is 16 court days before the instant
hearing on July 29, 2022, two calendar days must be added for service by email;
therefore, the instant motion is untimely because it must have been served by
July 5, 2022 via email.
Second, 1005(b)
references “all moving and supporting papers” shall be served and filed at
least 16 court days before the hearing. On July 15, 2022, via email, Defendant
served a notice of errata regarding Defendant’s motion to compel arbitration
that included Exhibit B which is the alleged arbitration agreement and Exhibit
C which is Defendant’s June 8, 2022 letter requesting Plaintiff to agree to
submit to arbitration. These two exhibits were most certainly untimely
considering the fact that the motion itself that was served earlier was
untimely.
Proper Address: ok
Oppo and Reply submitted.
The Opposition
is also late, as it was served on July 18, 2022, nine court days
before the instant hearing, via mail. But the Opposition was not served properly.
“Notwithstanding any other provision of this section, all papers opposing a
motion and all reply papers shall be served by personal delivery,
facsimile transmission, express mail, or other means consistent with Sections
1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the
other party or parties not later than the close of the next business day
after the time the opposing papers or reply papers, as applicable, are filed.”
CCP sec. 1005(c).
BACKGROUND
Plaintiff alleged three causes of action against Defendants
Forest Lawn Memorial-Park Association and Carmen Yaralian for (1) breach of
contract, (2) negligence, and (3) declaratory relief. Plaintiff alleged that
Plaintiff and Forest Lawn, through the assistance of Carmen Yaralian, entered
into purchase agreements for Spaces 1 and 2 of Lot 2837 of the Loving Kindness
section of the memorial park. Plaintiff alleges that Plaintiff and Forest Lawn,
through the assistance of Carmen Yaralian, discussed the possibility of
changing the current memorial lots to the new lots and entered into an
agreement wherein Plaintiff would release the LK2837-1 lot and LK2837-2 lot and
agreed to purchase the spaces 3 and 4 of Lot 6493 in the Bright Eternity
section of the memorial park (“BE6493-3” and “BE6493-4”). Plaintiff alleges
that pursuant to the second agreement, Plaintiff agreed to release her title to
Space 1 and 2 of Lot 2837 to Forest Lawn and in exchange of the release,
Defendant Forest Lawn agreed to transfer the titles of Space 3 and 4 of Lot
6493 to Plaintiff. Plaintiff further alleged that although Carmen Yaralian
agreed to secure the signature of Forest Lawn on the Security Agreement and
return it to Plaintiff, Plaintiff did not receive the signed Security Agreement
from Forest Lawn and/or Carmen Yaralian.
RELIEF REQUESTED
Defendant, Forest Lawn, moves this
Court for an order compelling Plaintiff to submit the controversy relating to
Plaintiff’s Second Amended Complaint to arbitration.
LEGAL STANDARD
In
relevant part, CCP §1281.2 states:
On petition of a
party to an arbitration agreement alleging the existence of a written agreement
to arbitrate a controversy and that a party to the agreement refuses to
arbitrate that controversy, the court shall order the petitioner and the
respondent to arbitrate the controversy if it determines that an agreement to
arbitrate the controversy exists, unless it determines that:
(a) The right
to compel arbitration has been waived by the petitioner; or
(b) Grounds
exist for rescission of the agreement.
(c) A party
to the arbitration agreement is also a party to a pending court action or
special proceeding with a third party, arising out of the same transaction or
series of related transactions and there is a possibility of conflicting
rulings on a common issue of law or fact. For purposes of this section, a
pending court action or special proceeding includes an action or proceeding
initiated by the party refusing to arbitrate after the petition to compel
arbitration has been filed, but on or before the date of the hearing on the
petition. This subdivision shall not be applicable to an agreement to arbitrate
disputes as to the professional negligence of a health care provider made
pursuant to Section 1295.
(CCP §1281.2
(a)-(c).)
ANALYSIS
Existence of an Agreement
Under
CCP §1281.2, “on petition of a party to an arbitration agreement alleging the
existence of a written agreement to arbitrate a controversy and that a party
thereto refuses to arbitrate such controversy, the court shall order the
petitioner and the respondent to arbitrate the controversy if it determines
that an agreement to arbitrate the controversy exists...”
There is a strong public policy in favor of
arbitration of disputes and any doubts concerning the scope of arbitrable
disputes should be resolved in favor of arbitration. (Moncharsh v. Heily
& Blase (1992) 3 Cal.4th 1, 9.) Arbitration agreements should be
liberally interpreted, and arbitration should be ordered unless the agreement
clearly does not apply to the dispute in question. (Vianna v. Doctors’
Management Co. (1994) 27 Cal.App.4th 1186, 1189.)
The determination of arbitrability is a legal question
subject to de novo review. An appellate
court will uphold the trial court's resolution of disputed facts if supported
by substantial evidence. (Nyulassy v. Lockheed Martin Corp. (2004) 120
Cal.App.4th 1267. (While no immediate,
direct appeal lies from an order compelling arbitration, such an order is
subject to review on appeal from the final judgment. See Abramson v. Juniper
Networks, Inc. (2004) 115 Cal.App.4th 638, 648).)
It is held that because the existence of the agreement
is a statutory prerequisite to granting a petition to compel arbitration, the
petitioner bears the burden of proving its existence by a preponderance of the
evidence. (Villacreses v. Molinari (2005) 132 Cal.App.4th
1223, 1230, citing Rosenthal v. Great Western Fin. Securities Corp. (1996)
14 Cal.4th 394, 413.)
Here, Defendant provided Exhibit B in its Notice of
Errata which Defendant alleges contains the arbitration agreement. Problematic
with Defendant’s Exhibit B is that it is not the contract upon which Plaintiff
is suing. In Plaintiff’s Second Amended Complaint, Plaintiff bases its breach
of contract claim on Exhibit 7 attached to the Second Amended Complaint, which
is not the same writing Movant attached as its Exhibit B to this Motion.
Further, even if Defendant had attached Exhibit 7 of
the Second Amended Complaint, Exhibit 7 is not signed by Defendant. Defendant
even explicitly notes in its motion to compel arbitration that Forest Lawn did
not sign the agreement. Despite this admitted lack of signature, Defendant goes
on to argue that it can still invoke the arbitration agreement that was signed
by the Plaintiff because a non-signatory defendant may invoke an arbitration
clause to compel a signatory Plaintiff to arbitrate its claims when the causes
of action against the non-signatory are intimately founded in and intertwined
with the underlying contract obligations.
Defendant cites Boucher v. Alliance Title Co. Inc. (2005)
127 Cal.App.4th 262, 268 for the proposition that a non-signatory Defendant can
enforce an arbitration agreement that was signed by Plaintiff. Defendant’s
reliance on Boucher is misplaced for several reasons. In Boucher,
a terminated employee brought an action against a former employer and the
company to which all the former employer’s operations had been transferred by
the parent of both companies. There, the former employer was a co-defendant,
and the former employer/co-defendant signed the employment agreement. The court
found that that the non-signatory defendant could enforce the arbitration
agreement because the co-defendant and the non-signatory defendant were both
owned, at least in majority part by the same entity, and under the
circumstances plaintiff’s claims against defendant were intimately founded in
and intertwined with the employment agreement and therefore plaintiff was
equitably estopped from avoiding arbitration of his causes of action against
defendant.
Here, not only does Defendant attach the wrong
contract that purportedly has the arbitration agreement, but Defendant also
cites no applicable case law that the Defendant can compel arbitration under
the instant facts where no Defendant has signed the contract. Additionally, Defendant
Carmen Yaralian remains a party to this case, but Defendant Forest Lawn does
not address how or whether arbitration may be compelled with respect to
Yaralian.
Waiver
Federal
and California courts may refuse to enforce an arbitration agreement upon such
grounds as exist at law or in equity for the revocation of any contract,
including waiver. (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 140
Cal.App.4th 206, 213 citing 9 U.SC. §2; CCP §1281; St. Agnes Medical Center
v. PacifiCare of California (2003) 31 Cal.4th 1187, 1204.) Based on the public
policy favoring arbitration, claims of waiver receive close judicial scrutiny
and the party seeking to establish waiver bears a heavy burden. (St. Agnes
Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195.)
The St. Agnes court identified the following as
factors that are relevant and properly considered in assessing waiver claims:
(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.” ' [Citations.]” (Lewis
v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436,
444 citing St. Agnes, supra, 31 Cal.4th at p. 1196.) No one of these factors
predominates and each case must be examined in context. (Id.)
Plaintiff argues that Defendant waived its ability to
compel arbitration because Defendants knew the arbitration provision existed
throughout the litigation and despite this knowledge it took nearly one year
for Defendant to bring the instant motion.
Defendant argues in Reply that it did not waive its
right to arbitrate because: (1) The case is till in the pleading stage, (2) it
efficiently filed demurrers, (3) neither Forest Lawn nor Plaintiff has engaged
in the discovery process.
Here, the Court finds that Defendant waived its right
to enforce arbitration. The initial complaint was filed on 7/12/2021. Although
the initial complaint did not contain all the necessary documents, Defendant was
quite likely aware of them, and the First Amended Complaint contained all the same
documents that the Second Amended Complaint included. The First Amended
Complaint was filed on 1/19/2022 and contained the arbitration provision that
was not included in the initial complaint. The Second Amended Complaint was
filed on 5/17/2022.
TENTATIVE RULING: Motion to compel arbitration is
denied. Defendant did not attach the proper contract that allegedly contained
the arbitration provision, Defendant did not sign the arbitration agreement and
cited no relevant case law supporting the proposition that the Court can still enforce
the arbitration agreement, Defendant waived its right to compel arbitration by
its litigation conduct, and Defendant filed the instant motion late.