Judge: Katherine Chilton, Case: 22STCP03308, Date: 2023-03-29 Tentative Ruling

Case Number: 22STCP03308     Hearing Date: March 29, 2023    Dept: 25

PROCEEDINGS:      PETITION TO COMPEL ARBITRATION AND APPOINT ARBITRATOR

MOVING PARTY:   Petitioner Executive Presentations, Inc.

RESP. PARTY:         None

MOTION TO COMPEL ARBITRATION AND APPOINT ARBITRATOR

(CCP §§ 1281.2)

TENTATIVE RULING:

The hearing on the Petition to Compel Arbitration and Appoint Arbitrator filed by Petitioner Executive Presentations, Inc. is CONTINUED to MAY 1, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Petitioner is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of March 27, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of March 27, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 6, 2022, Petitioner filed the instant Petition to Compel Arbitration and for the Court to Appoint an Arbitrator (“Petition”) seeking an order compelling Respondent Joshua Weisbord (“Respondent”) to arbitrate a controversy pursuant to a written contract entered into by Petitioner and Respondent.

On January 10, 2023, the Court noted that Petitioner had not filed proof that Respondent had been served with the Petition and Notice of Hearing and continued the hearing on the Petition.  (1-10-23 Minute Order.)

On February 27, 2023, Petitioner filed Proof of Service by Publication.

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

On or about September 10, 2021, Petitioner and Respondent entered into a written contract, attached to the Petition as Exhibit 1.  (Pet. pp. 1-2.)  Petitioner seeks a Court order compelling Respondent to arbitrate a dispute arising out of the written contract.  (Pet. pp. 3-4.)  Petitioner also requests that the Court appoint an arbitrator to arbitrate the dispute.  (Ibid.)

On January 10, 2023, the Court noted that Petitioner had not filed proof that Respondent had been served with the Petition and Notice of Hearing and for this reason, continued the hearing on the Petition.  (1-10-23 Minute Order.)  On the same day, Petitioner served a Notice of Continuance.  On February 27, 2023, Petitioner filed Proof of Service by Publication.

Petitioner has attached a copy of the Terms and Conditions that contains a Dispute Resolution paragraph.  (Pet. p. 8 – Ex. A.)  Petitioner also sets forth the language of the arbitration provision in the body of the Petition.  (Pet. p. 2.)  Furthermore, Petitioner states that its counsel has sent three different letters to Respondent on August 16, 22, and 30, attempting to resolve the matter and offering to submit the dispute to mediation and subsequently to arbitration.  (Ibid. at pp. 2-3.)  However, Respondent has not responded to any of the letters.  (Ibid.)  These letters are attached as Exhibits 2-4 to the Petition.  Moreover, Petitioner requests that the Court order the parties’ claims to be arbitrated through the American Arbitration Association (“AAA”), as permitted by the contract.  (Ibid. at p. 3.)  Respondent has not agreed to Petitioner’s suggestion to submit the matter to arbitration with the AAA and has not proposed any other arbitrators.  (Ibid.)  Finally, Petitioner requests an award of costs of suit and other relief as is just and appropriate.  (Ibid. at pp. 3-4.)

            Given that Petitioner has not authenticated the exhibits as true and correct copies, pursuant to Evidence Code § 1400, et seq., these exhibits are inadmissible and cannot be considered by the Court.  In order to determine whether the Court may compel Respondent to arbitration, the Court must receive authenticated copies of the agreement containing the arbitration provision, along with the other exhibits.

            The Court also notes that it is not clear whether the Terms and Conditions containing the arbitration provision are part of the Estimate that Respondent signed, as the Estimate is page 1 of 4, while the Terms and Conditions are page 3 of 3.  (Pet. pp. 6-8.)  Thus, the Court cannot discern whether Respondent signed an agreement containing the Terms and Conditions and agreed to submit disputes arising out of the agreement to arbitration.

            For this reason, the Court again continues the hearing on the Petition.  Petitioner is ordered to submit authenticated exhibits and to provide further proof that the alleged agreement that Respondent signed contains an arbitration provision.

IV.           Conclusion

For the reasons discussed above, the hearing on the Petition to Compel Arbitration and Appoint Arbitrator filed by Petitioner Executive Presentations, Inc. is CONTINUED to MAY 1, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Petitioner is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

Moving party is ordered to give notice.