Judge David S. Cunningham, Case Number: 20STCV45658, Date: 2024-01-16 Tentative Ruling

Judge: David S. Cunningham, Case: 20STCV45658, Date: 2024-01-16 Tentative Ruling

Plaintiff’s renewed motion to lift arbitration stay and request for sanctions are denied.

This is a “wage and hour” action. Atlas makes aerospace parts. Plaintiff worked for Atlas for five years. She claims Atlas failed to provide overtime pay, meal breaks, sick leave, etc. and violated the Labor Code, Unfair Competition Law, and Private Attorneys General Act.

In December 2021, the Court granted Atlas’s motion to compel arbitration and stayed the action.

In late November 2022, the Court heard Plaintiff’s motion to lift the arbitration stay and continued the hearing for supplemental briefing.

(2/1/23 Ruling Re: Supplemental Briefs Re: Motion to Lift Arbitration Stay, p. 1.)

On 2/1/23, the Court considered the supplemental briefs, denied Plaintiff’s motion, and denied her request for sanctions. (See id. at pp. 1, 7.)

On 3/30/23, Plaintiff filed a petition for writ of mandate. (See Harris Decl., ¶ 4.)

On 6/9/23, the Second District Court of Appeal denied Plaintiff’s petition, finding that Plaintiff “fail[ed] to establish entitlement to extraordinary relief.” (Id. at Ex. B.)

* On 12/9/21, the Court held an evidentiary hearing with live testimony, compelled arbitration, and stayed the case.

* On 5/11/22, “Plaintiff sent an arbitration demand to the American Arbitration Association (‘AAA’)[.]” [Citation.]

* On 5/12/22, the AAA emailed a letter to defense counsel, requesting that Defendant pay its share of the arbitration filing fee by 6/11/22. [Citation.]

* On 5/19/22, AAA received Defendant’s share of the arbitration fee. [Citation.]

* On 7/22/22, emailed an invoice to defense counsel “for a $3,900 ‘Deposit of Arbitrator’s Compensation covering preliminary matters,’ which was for anticipated further fees.” [Citations.]

* On 8/23/22, AAA “informed the parties that AAA had not received the $3,900 []payment[.]” [Citations.]

* Also, on 8/23/22, defense counsel “made a second $3,900 payment via credit card . . . in the event that the check did not timely arrive,” but Plaintiff announced that she would be withdrawing from the arbitration. [Citations.]

* On 8/24/22, AAA confirmed reception of the electronic payment on 8/23/22. [Citation.]

* On 9/7/22, the arbitrator stayed the arbitration to give this Court an opportunity to consider the withdrawal issue. [Citation.]

Plaintiff contends she has a right to withdraw from the arbitration because Defendant “paid the $3,900 amount on 8/23/22, more than 30 days after receiving the 7/22/22 invoice[.]” (2/1/23 Ruling Re: Supplemental Briefs Re: Motion to Lift Arbitration Stay, p. 4.) Her argument is based on Code of Civil Procedure section 1281.98, which sets a 30-day deadline to pay “‘the fees or costs required to continue’ an arbitration proceeding[.]” (DeLeon v. Juanita’s Foods (2022) 85 Cal.App.5^th 740, 750, emphasis deleted.) Plaintiff asserts that “section 1281.98’s payment deadline must be applied ‘strictly’” and that there are no exceptions for late payments. (2/1/23 Ruling Re: Supplemental Briefs Re: Motion to Lift Arbitration Stay, p. 4.)

Defendant claims Code of Civil Procedure section 1010.6 “governs because the arbitrator emailed the invoice to defense counsel.” (Ibid.) Under section 1010.6,

[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days, but the extension shall not apply to extend the time for filing any of the following:

(Code Civ. Proc. § 1010.6, subd. (a)(4)(B).) Defendant contends the 8/23/22 payment “was timely because section 1010.6 added two court days to section 1281.98’s payment deadline.” (2/1/23 Ruling Re: Supplemental Briefs Re: Motion to Lift Arbitration Stay, p. 4.)

At the last hearing, the Court agreed with Defendant and denied Plaintiff’s first motion. (See id. at pp. 1, 7.)

The renewed motion is brought pursuant to Code of Civil Procedure section 1008(b). (See Notice of Renewed Motion, p. 2.) Section 1008(b) provides that,

[w]hen a motion has been denied in whole or in part, the moving party (only) may apply again for the same relief at a later time, but only on the following conditions:

* The motion must be based on “new or different facts, circumstances or law” [citation];

* The motion must be supported by declaration showing the previous order, by which judge it was made, and what new or different facts, circumstances or law are claimed to exist [citation].

(Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 9:337; see also Cal. Code Civ. Proc. § 1008, subd. (b).)[1]

Plaintiff claims the renewed motion satisfies section 1008(b). Following the denial of her first motion, the First District Court of Appeal issued an opinion in a case called Doe v. Superior Court (2023) 95 Cal.App.5^th 346. Doe mandates strict enforcement of section 1281.98’s payment deadline. (See Doe, supra, 95 Cal.App.5^th at 358.) Plaintiff contends Doe is new, analogous, and controlling and compels the Court to grant the renewed motion. (See Renewed Motion, pp. 8-9; see also Reply, pp. 3-4, 5-6.)

Defendant disagrees. Defendant contends section 1008(b) is unsatisfied because Doe:

* relies on old case law that the Court already reviewed (see Opposition, p. 11 [highlighting, for example, Espinoza v. Superior Court (2022) 83 Cal.App.5^th 761]); and

* is distinguishable since it fails to discuss section 1010.6. (See id. at pp. 11-12.)

The Court believes Doe is new in the sense that it came down after the first motion was denied, but it fails to change the result. Last time, the Court denied the first motion despite acknowledging the applicability of the “strict enforcement” principle. (See 2/1/23 Ruling Re: Supplemental Briefs Re: Motion to Lift Arbitration Stay, p. 5.) To repeat, the Court found that section 1010.6 applies in this case, extending section 1281.98’s payment deadline by two court days. (See 2/1/23 Ruling Re: Supplemental Briefs Re: Motion to Lift Arbitration Stay, pp. 1, 7.)[2] Doe does not mention section 1010.6. The justices did not analyze the issue of section 1010.6’s application to, and impact on, the payment deadline. Consequently, Doe is distinguishable, and Plaintiff’s renewed motion is denied. (See, e.g., People v. Ault (2004) 33 Cal.4^th 1250, 1268 n.10 [finding it “axiomatic that cases are not authority for propositions not considered”]; see also Aixtron, Inc. v. Veeco Instruments, Inc. (2020) 52 Cal.App.5^th 360, 386-387 [same].)[3] [4] [5]

[1] “Unlike a motion for reconsideration, there is no time limit under [section] 1008 for the renewal of a previous motion.” (Edmon & Karnow, supra, at ¶ 9:338.5, emphasis in original.)

[2] Also, to repeat, the Second District Court of Appeal denied Plaintiff’s writ.

[3] In Doe, the due date fell on a weekend. Notably, the Doe parties and justices had no problem with extending the payment deadline to account for that circumstance notwithstanding section 1281.98. (See Doe, supra, 95 Cal.App.5^th at 355 n.4.)

[4] Defendant contends the arbitration agreement’s delegation clause requires the arbitrator to decide the renewed motion. (See Opposition, pp. 8-9.) The Court disagrees. The Court held at the 11/30/22 hearing that it should decide the withdrawal question. (See 11/30/22 Tentative Ruling Re: Motion to Lift Arbitration Stay, p. 4.) The ruling stands.

[5] Defendant asserts that Plaintiff waived the right to withdraw by continuing to remain in the arbitration for over 450 days. (See Opposition, pp. 12-14.) It is unnecessary to reach this issue.