Judge: Joel R Wohlfeil, Case: 37-2020-00032389-CU-WT-CTL, Date: 2023-09-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 06, 2023

09/08/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Wrongful Termination Motion Hearing (Civil) 37-2020-00032389-CU-WT-CTL SIDNEY VS THE BAY CLUBS COMPANY LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/14/2023

The Motion (ROA # 37) of Plaintiff BERNADETTE SIDNEY ('Plaintiff' or 'Sidney') for an order to lift the stay ordered by the Court in favor of arbitration, and for withdrawal from the arbitration proceedings with Defendant THE BAY CLUBS COMPANY, LLC D / B / A THE BAY CLUB COMPANY ('Defendant' or 'Bay Club') is GRANTED.

This action will be placed back on the active calendar and counsel should be prepared to discuss dates.

'... [I]f the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration under Section 1281.2.' Code Civ. Proc. 1281.97(a)(1).

When default occurs the employee may withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. Id. at (b)(1).

'If the employee or consumer proceeds with an action in a court of appropriate jurisdiction, the court shall impose sanctions on the drafting party in accordance with Section 1281.99.' Id. at (d).

'... [I]f the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel the employee or consumer to proceed with that arbitration as a result of the material breach.' Code Civ. Proc. 1281.98(a)(1).

When default occurs the employee may withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. Id. at (b)(1).

In addition to withdrawal, the employee may recover all attorney's fees and all costs associated with the abandoned arbitration proceeding. Id. at (c)(1).

Also, '[t]he court shall impose sanctions on the drafting party in accordance with Section 1281.99.' Id. at (c)(2).

The statutory language 'establishes a simple bright-line rule that a drafting party's failure to pay outstanding arbitration fees within 30 days after the due date results in its material breach of the arbitration agreement.' De Leon v. Juanita's Foods (2022) 85 Cal. App. 5th 740, 753.

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2996832 CASE NUMBER: CASE TITLE:  SIDNEY VS THE BAY CLUBS COMPANY LLC [IMAGED]  37-2020-00032389-CU-WT-CTL Under the plain language of the statutes, the triggering event is nothing more than nonpayment of fees within the 30-day period. Espinoza v. Superior Court (2022) 83 Cal. App. 5th 761, 776.

The statutes specify no other required findings, such as whether the nonpayment was deliberate or inadvertent, or whether the delay prejudiced the non-drafting party. Id. 'The plain language therefore indicates the Legislature intended the statute to be strictly applied whenever a drafting party failed to pay by the statutory deadline.' Id. Employees and consumers may make their 'unilateral' election under section 1281.98(b) upon learning of the default, without first seeking approval from the arbitrator. Williams v. West Coast Hospitals, Inc.

(2022) 86 Cal. App. 5th 1054, 1067, 1068.

Sections 1281.97 and 1281.98 are not preempted by the Federal Arbitration Act. Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal. App. 5th 621, 629, 630.

The act of mailing a check may constitute tender of payment, but does not constitute actual payment under sections 1281.97 and 1281.98. Defendant does not cite authority concluding otherwise. Payment would not occur until JAMS accepts and cashes the check. In order to avoid this Motion, Defendant was obligated to ensure its check was accepted as tender of payment. Therefore, this Motion is granted.

The Court vacates the Status Conference on December 1, 2023 and sets a Case Management Conference on Thursday September 21, 2023 at 2:45 PM in D 73.

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