Judge: Frank M. Tavelman, Case: 22BBCV00482, Date: 2023-12-15 Tentative Ruling

Case Number: 22BBCV00482    Hearing Date: December 15, 2023    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTIONS TO COMPEL ARBITRATION & STAY MATTER

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Silvia Lake (“Plaintiff”) filed suit against GEP Gencast, LLC dba Central Casting (“Defendant”), on July 1, 2022 for claims arising out of her employment with Defendant. The Complaint contains thirteen causes of action: (1) disability discrimination; (2) disability-based harassment; (3) race-based discrimination; (4) sexual harassment; (5) unlawful retaliation in violation of FEHA; (6) failure to prevent harassment, discrimination and retaliation in violation of FEHA; (7) wrongful termination; (8) failure to pay earned wages; (9) failure to pay timely wages during employment; (10) failure to pay all wages due to discharged and quitting employees; (11) failure to furnish accurate itemized wage statements; (12) failure to maintain accurate payroll records; and (13) unfair and unlawful business practices.  

On February 14, 2023, the Court issued an order denying a previous motion to compel arbitration made by Defendant. Defendant’s previous motion was based upon a paper voucher Defendant utilized to pay cast members in its productions. The Court found there was no express assent to arbitrate based upon the voucher, given the location of the arbitration language and the location of the signature boxes.

Defendant subsequently appealed the Court’s ruling; however, the matter was never determined by the California Court of Appeals. Defendant abandoned its appeal on August 28, 2023.

Defendant now moves to compel arbitration again, this time based on a separate arbitration agreement Plaintiff signed in 2021 (“2021 Agreement”). This agreement was presented to Plaintiff via Defendant’s electronic system, which is how Defendant currently accepts vouchers from its case members. Defendant shows that this agreement was signed by Plaintiff electronically on August 21, 2021. (Weekes Decl. ¶ 6, Exh. A.) The 2021 Agreement is a three-page standalone arbitration agreement which required individual electronic signature. (Id.)

Plaintiff opposes this motion, arguing that Defendant’s impermissible delay in bringing this motion constitutes a waiver of its right to compel arbitration.

ANALYSIS: 

I.          LEGAL STANDARD 

C.C.P. § 1008(b) provides:

A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

II.        MERITS 

Defendant’s motion to compel arbitration is not a new motion untethered from Defendant’s previous activity in this action. Defendant’s previous motion to compel arbitration was denied. The Court’s denial was not “without prejudice,” meaning that there was never an invitation of reapplication. (See Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015.)

Rather, Defendant’s current motion is a subsequent application for the same order previously applied for and is subject to the requirements of C.C.P. § 1008(b). Although Defendant does not brief this issue, the Court presumes Defendant brings this motion on the grounds of new/different facts. Defendant’s current motion seeks the same relief, an order compelling arbitration, premised on newly discovered facts, the 2021 Agreement.

Under both C.C.P. §§ 1008(a) and 1008(b), the moving party must provide a satisfactory explanation for the failure to produce the “new” facts in making its previous motion. (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255 citing In re H.S. (2010) 188 Cal.App.4th 103, 108.)

Here, Plaintiff argues that the 2021 Agreement was in Defendant’s possession prior to the filing of the previous motion. (See Weekes Decl. ¶ 6 [detailing that Plaintiff’s signed arbitration agreement has been maintained in Defendant’s electronic system since Augst 3, 2021].)

Defendant’s declarations contain no statement as to when the 2021 Agreement was “discovered”, however the Court notes that any such statement would require an explanation as to how the agreement went unnoticed despite the seemingly ubiquitous nature of Defendant’s electronic voucher submission system. It appears that Defendant, at some point, switched to an electronic system, Safe Voucher, by which background actors would submit time vouchers. This Safe Voucher system was in place since at least August 3, 2021 when Plaintiff signed her electronic agreement. (Weekes Decl. ¶ 6, Exh. A.) Plaintiff filed this action on July 1, 2022, almost a year after executing the 2021 Agreement. Defendant has presented no evidence to rebut the presumption that it knew the 2021 Agreement binding Plaintiff existed at the time her action was filed.

As it appears to the Court, Defendant had knowledge and access to the 2021 Agreement at the time Plaintiff filed her Complaint and most certainly at the time Defendant prepared and filed its motion to compel arbitration. Defendant has produced no explanation as to why in researching and preparing to file this motion, Defendant neglected to include any reference to the 2021 Agreement.

Accordingly, the motion to compel arbitration is DENIED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

GEP Gencast, LLC dba Central Casting’s Motion to Compel Arbitration and Motion for Stay came on regularly for hearing on December 15, 2023 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO COMPEL ARBITRATION IS DENIED. 

THE STAY FOR APPEAL IS LIFTED AS THE APPEAL WAS ABANDONED.

CASE MANAGEMENT CONFERENCE IS SET FOR FEBRUARY 28, 2024 AT 9:00 A.M.

UNLESS ALL PARTIES WAIVE NOTICE, DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  December 15, 2023                             _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles