Judge: Katherine Chilton, Case: 22STCP02775, Date: 2023-03-15 Tentative Ruling

Case Number: 22STCP02775     Hearing Date: March 15, 2023    Dept: 25

PROCEEDINGS:      PETITION TO COMPEL ARBITRATION

MOVING PARTY:   Petitioner SpaySecure Pet Services, LLC

RESP. PARTY:         None

PETITION TO COMPEL ARBITRATION

(CCP §§ 1281.2)

TENTATIVE RULING:

Petitioner SpaySecure Pet Services, LLC’s Petition to Compel Arbitration is DENIED without prejudice.

SERVICE:[1]

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 NOT OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 NOT OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NOT OK

OPPOSITION:          None filed as of March 12, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of March 12, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 26, 2022, Petitioner SpaySecure Pet Services, LLC (“Petitioner”) filed a Petition to compel Respondents Robert Forbis and Sarah Forbis (“Respondents”) to arbitration pursuant to a Spay and Neuter Agreement (“Agreement”).

On November 29, 2022, the Court noted that Petitioner had not filed proof of service of Petition on Respondents and continued the hearing to allow Petitioner an opportunity to cure the deficiency.  (11-29-22 Minute Order.)

On December 13, 2022, Petitioner filed Affidavit of Geordie Duckler in Support of Confirming Sufficiency of Proof of Service.  The Court found that the evidence submitted was not sufficient to prove that Respondents had been properly served and again continued the hearing on the Petition.  (12-29-22 Minute Order.)

On February 2, 2023, Petitioner filed Proof of Personal Service on Respondent Sarah Forbis.

On February 15, 2023, the Court found that Petitioner had properly served Respondent Sara Forbis, but Petitioner had not submitted evidence to show that it had served Respondent Robert Forbis.  (2-15-23 Minute Order.)  For this reason, the Court continued the hearing one final time to allow Petitioner an opportunity to serve Respondent Robert Forbis with the Petition and Notice in accordance with Code of Civil Procedure § 1290.4 and to serve Respondent Sara Forbis with a notice of continuance of hearing on the Petition.  (Ibid.)

On March 6, 2023, Petitioner filed proof that Respondent Sara Forbis had been served with the Notice of Hearing on Petition indicating the date, time, and location of the next scheduled hearing.

No opposition has been filed.

II.              Legal Standard

Pursuant to Code of Civil Procedure §1281.2, generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting¿rulings on common issues.

When seeking to compel arbitration, the initial burden lies with the moving party to demonstrate the existence of a valid arbitration agreement by prepondernace of evidence.  (Ruiz v. Moss Bros. Auto Group (2014) 232 Cal.App.4th 836, 841-42; Gamboa v. Northeast Community Clinic (2021), 72 Cal.App.5th 158, 164-65.)  It is sufficient for the moving party to produce a copy of the arbitration agreement or set forth the agreement’s provisions.  (Gamboa, 72 Cal.App.5th at 165.)  The burden then shifts to the opposing party to prove by a preponderance of evidence any defense to enforcement of the contract or the arbitration clause.  (Ruiz, 232 Cal.App.4th at 842; Gamboa, 72 Cal.App.5th at 165.)  Subsequently, the moving party must establish with the preponderance of admissible evidence a valid arbitration agreement between the parties.  (Ibid.)  The trial court then weighs all the evidence submitted and uses its discretion to make a final determination.  (Ibid.)  “California law, ‘like [federal law], reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims.’”  (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31.)

If the court orders arbitration, then the court shall stay the action until arbitration is completed.  (See Code Civ. Proc., § 1281.4.)

III.            Discussion

Petitioner seeks to compel Respondents to submit to arbitration based on a Spay and Neuter Agreement entered into by the parties in December 2021 (“Agreement.”).  (Aveling Affidavit. p. 4.)

On November 29, 2022, the Court found that Petitioner failed to file proof of service of the Petition on Respondents.  (11-29-22 Minute Order.)  The Court noted that, the Petition must be served in accordance with Code of Civil Procedure § 1290.4.  (Ibid.)  In reviewing the Agreement and the Petition, the Court found that there was no manner of service prescribed; therefore, Petitioner had to serve Respondents (located out of state) in accordance with § 1290.4(b)(2).)  (11-29-22 Minute Order.)  Petitioner had only filed proof of service of the “Demand for Arbitration” which was served prior to the filing of the instant Petition and did not comply with the requirements of Code of Civil Procedure.  (Ibid.; Aveling Affidavit p. 25.)  For this reason, the Court continued the hearing on the Petition and ordered Petitioner to file proof that Respondents had been properly served.  (Ibid.)

On December 13, 2022, Petitioner filed Affidavit of Geordie Duckler in Support of Confirming Sufficiency of Proof of Service.  Counsel Duckler states that he has served Respondents in accordance with Code of Civil Procedure § 1290.4 at their address in Florida.  (Duckler Affidavit ¶¶ 3, 5.)  Counsel mailed “the documents in a sealed envelope with postage prepaid to the Respondents’ home address via certified mail and regular mail, with ‘signature verification’ specifically requested” and deposited the documents in U.S. mail in Portland, Oregon on July 29, 2022, specifically instructing USPS to obtain recipients’ signature.  (Ibid. at ¶ 5.)  On August 1, 2022, the CEO and corporate representative of Petitioner SpaySecure Pet Services, LLC sent Counsel an e-mail informing him that Respondents had contacted him and acknowledged their obligations under the Agreement.  (Ibid. at ¶ 6.)  Counsel contends that Respondents made these statements after receiving the Petition and Notice.  (Ibid.)  On August 4, 2022, Counsel received the Acknowledgement of Receipt card with a checkmark next to “Signature Confirmation” but without any recipient’s signature.  (Ibid. at ¶ 7, Ex. 1.)  Counsel contends that Respondents’ communication with Petitioner’s CEO and representative and the Acknowledgment Card demonstrate that the “intent and purpose of Cal. Code of Civ. Pro. Section 1290.4(b)(2) was either fully or substantially complied with.”  (Ibid. at ¶ 8.)

On December 29, 2022, the Court noted that a Court acquires jurisdiction over a party through the proper service of a notice of motion or petition, and thus, the Court does not have jurisdiction to compel a party to arbitration unless proper service has been accomplished.  (12-29-22 Minute Order; Frey & Horgan Corp. v. Superior Court of San Francisco (1936) 5 Cal. 2d 401, 403 (“It has been well said that a notice may be properly designated as "process" when it is given by authority of law for the purpose of acquiring jurisdiction of a defendant.”)  The Court found that the evidence submitted by Counsel Duckler was not sufficient to demonstrate that Respondents had been properly served, and once again continued the hearing.  (12-29-22 Minute Order.)

On February 2, 2023, Petitioner filed Proof of Personal Service, indicating that Respondent Sara Forbis had been served with the Petition and Notice of Hearing by personal service on December 30, 2022.

On February 15, 2023, the Court found that Petitioner had properly served Respondent Sara Forbis, but Petitioner had not submitted evidence to show that it had served Respondent Robert Forbis.  (2-15-23 Minute Order.)  For this reason, the Court continued the hearing one final time to allow Petitioner an opportunity to serve Respondent Robert Forbis with the Petition and Notice in accordance with Code of Civil Procedure § 1290.4 and to serve Respondent Sara Forbis with a notice of continuance of hearing on the Petition.  (Ibid.)

On March 6, 2023, Petitioner filed proof that Respondent Sara Forbis had been served with the Notice of Hearing on Petition indicating the date, time, and location of the next scheduled hearing.

The Court finds that Petitioner has still not presented any proof that Respondent Robert Forbis has been served with the Petition and Notice of Hearing.

Accordingly, the Petition to Compel Arbitration is DENIED.

IV.           Conclusion & Order

For the foregoing reasons: Petitioner SpaySecure Pet Services, LLC’s Petition to Compel Arbitration is DENIED without prejudice.

Moving party is ordered to give notice.