Judge: Elaine Lu, Case: 22STCV02446, Date: 2022-12-15 Tentative Ruling





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nevertheless appear at the hearing and argue the motion, and the Court may
decide not to adopt the tentative ruling.




2. 
For any motion where no parties submit to the tentative ruling in
advance, and no parties appear at the motion hearing, the Court may elect to
either adopt the tentative ruling or take the motion off calendar, in its
discretion.




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4. IN ORDER TO IMPLEMENT
PHYSICAL DISTANCING GOING FORWARD AND UNTIL FURTHER NOTICE, THE COURT STRONGLY
ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR TELEPHONICALLY FOR NON-TRIAL
AND NON-EVIDENTIARY MATTERS.  Thus, until further
notice, Department 26 strongly encourages telephonic appearances for motion
hearings that do not require the presentation of live testimony.




 






Case Number: 22STCV02446    Hearing Date: December 15, 2022    Dept: 26

On January 20, 2022, Plaintiff Dante Reyes (“Plaintiff”) filed the instant wrongful termination action against Defendants Marshalls of CA, LLC, The TJX Companies, Inc., and Delmy Hernandez (collectively “Defendants”).  On February 24, 2022, the instant action was removed to Federal Court.  On July 20, 2022, the instant action was remanded from federal court. 

 

On August 24, 2022, Defendants filed the instant motion to compel arbitration.  On December 8, 2022, Defendants filed a reply.  Though Plaintiff has not filed any opposition, the reply references an opposition.  (See e.g., Reply at p.1:24-25, [“Plaintiff argues that the Arbitration Agreement is procedurally unconscionable because it is a contract of adhesion. (See Opp., at 6:7-16.)”].) 

 

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.”  (Code Civ. Proc., § 1005(b).)  This is calculated by counting backwards from the hearing date and excluding holidays and weekends.  (Code Civ. Proc. §§ 12-12(c).)  The court may refuse to consider a late-filed paper.  (Cal. Rules of Court, Rule 3.1300(d).) 

 

Any opposition was required to be filed and served by December 2, 2022.  The last filing by Plaintiff is Plaintiff’s Case Management Statement filed on November 21, 2022.  Because Plaintiff has not filed any opposition, the Court could in its discretion refuse to consider the unfiled opposition.  However, Defendants have clearly been served with the opposition – based on the reply – and the opposition appears to contends that the arbitration agreement is unconscionable, which is Plaintiff’s burden to show.  (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160, [“Once such a document is presented to the court, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges.”].)  Because Defendants received and responded to the opposition, they have not suffered any prejudice from Plaintiff’s apparent error in neglecting to file the opposition.  In light of the policy favoring litigation on the merits, the Court is inclined to provide Plaintiff an opportunity to file the unfiled opposition for the Court to consider. 

 

Plaintiff is ordered to file the opposition to Defendants’ motion to compel arbitration no later than December 16, 2022.  Failure to do so will result in any opposition not being considered.

 

Defendants’ motion to compel arbitration is CONTINUED TO December 21, 2022 at 8:30 am.

 

Plaintiff is to give notice of this order and file proof of service of such.