Judge: James L. Crandall, Case: 21-1238334, Date: 2022-12-01 Tentative Ruling

Petition to Compel Arbitration

Defendants’ (Mira Aesthetic Medical Center, Inc. and Sid J. Mirrafati, M.D.) Petition to Compel Binding Arbitration and to Stay The Superior Court Matter Pending the Hearing on Petition (Petition), filed 7-20-22 under ROA No. 38 is GRANTED as to the request for order compelling arbitration. The Petition is MOOT as to the request for stay pending the court’s ruling on Defendants’ Petition.

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, Code of Civil Procedure, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Code of Civ. Proc., § 1281.2; Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.) Similarly, public policy under federal law favors arbitration and the fundamental principle that arbitration is a matter of contract and that courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.)

In deciding a motion or petition to compel arbitration, trial courts must first decide whether an enforceable arbitration agreement exists between the parties and then determine whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The opposing party has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 [“The petitioner ... bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”].)

A motion to compel arbitration or stay proceedings must state verbatim the provisions providing for arbitration or must have a copy of them attached. (Cal. Rules of Court, rule 3.1330.)

A party may demonstrate express acceptance of the arbitration agreement in order to be bound (e.g., Mago v. Shearson Lehman Hutton Inc. (9th Cir. 1992) 956 F.2d 932 [agreement to arbitrate included in job application]; Nghiem v. NEC Electronic, Inc. (9th Cir. 1994) 25 F.3d 1437 [agreement to arbitrate included in handbook executed by employee]; Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal. App. 4th 1105 [employer may terminate employee who refuses to sign agreement to arbitrate]) or implied-in-fact in fact acceptance (Asmus v. Pacific Bell (2000) 23 Cal. 4th 1, 11 [implied acceptance of changed rules regarding job security]; DiGiacinto v. Ameriko-Omserv Corp. (1997) 59 Cal. App. 4th 629, 635 [implied acceptance of changed compensation rules]). (Craig v. Brown & Root (2000) 84 Cal.App.4th 416, 420 (Craig).)

Defendants argue that Plaintiff must be compelled to arbitrate her claims because Plaintiff signed an Arbitration Agreement prior to her 10-27-20 breast augmentation surgery with Defendants which covers her claims in this action. The Arbitration Agreement provides in pertinent part:

ARTICLE 1: It is understood that any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently, or incompetently rendered, will be determined by submission to arbitration as provided by California law, and not by a lawsuit or resort to court process except as California law provides for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration.” (Declaration of Jennifer Hassell, Exhibit A.) Both Plaintiff and Defendant Dr. Mirrafati signed the Arbitration Agreement.

On 11-16-22, Plaintiff filed a Notice of Non-Opposition (Notice) to the Petition. Plaintiff’s Notice states: “Please take notice that plaintiff does not object to having this case decided by a single arbitrator…The court is requested to order the matter to arbitration and require the parties to agree on an arbitrator within 15 days, and the court is requested to maintain jurisdiction of the matter until final resolution.” (Notice [ROA 42], 1:21, 2:1-3.)

Based on the above, the court finds that a written agreement to arbitrate exists and that none of the statutory exceptions under Code of Civil Procedure section 1281.2 applies. Defendants have demonstrated that the Arbitration Agreement applies to Plaintiff’s claims in this action and Plaintiff has stated that she does not oppose arbitration. Therefore, Defendants’ Petition is granted as to the request for order compelling arbitration.

Code of Civil Procedure section 1281.4 states: “If an application has been made to a court of competent jurisdiction, whether in this State or not, for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined. If an application has been made to a court of competent jurisdiction, whether in this State or not, for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.”

Defendants also “request the entire civil action be stayed pending a ruling from the Court on Defendants’ petition to compel binding arbitration.” (Petition, 6:10-11.) Pursuant to Code of Civil Procedure section 1281.4, Defendants were required to move for such a stay separate from their Petition to Compel Arbitration. Because Defendants did not do so and the court is now issuing its ruling on Defendants’ Petition, the court denies the request for a stay “pending a ruling from the Court on Defendants’ petition to compel binding arbitration” as MOOT.

In summary, Defendants’ (Mira Aesthetic Medical Center, Inc. and Sid J. Mirrafati, M.D.) Petition to Compel Binding Arbitration and to Stay The Superior Court Matter Pending the Hearing on Petition (Petition), filed 7-20-22 under ROA No. 38 is GRANTED as to the request for order compelling arbitration. The Petition is MOOT as to the request for stay pending the court’s ruling on Defendants’ Petition.

The parties are ordered to meet and confer and select an arbitrator within 15 days of this date.

Defendants are to give notice