Judge: Katherine Chilton, Case: 22STCP03308, Date: 2023-05-01 Tentative Ruling

Case Number: 22STCP03308     Hearing Date: May 1, 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 Petition to Compel Arbitration and Appoint Arbitrator filed by Petitioner Executive Presentations, Inc. is GRANTED. This action is STAYED pending arbitration.

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 a Proof of Service by Publication.

On March 29, 2023, the Court noted that Petitioner had not authenticated the exhibits as true and correct copies per Evidence Code § 1400 et seq., and thus the exhibits were inadmissible and could not be considered by the Court. The Court also noted that it was unclear whether the Terms and Conditions containing the arbitration provision were part of the Estimate that Respondent. The Court continued the hearing on the Petition to May 1, 2023 and ordered Petitioner to submit authenticated exhibits to provide further proof that the alleged agreement that Respondent signed contains an arbitration provision.

On April 4, 2023, Petitioner filed the Supplemental Declaration of Richard Kraemer in Support of the Petition to Compel Arbitration and for the Court to Appoint an Arbitrator.

No opposition has been filed.

II.              Legal Standard

Per 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.)

            The Court finds that the Supplemental Declaration of Richard Kraemer filed on April 4, 2023 satisfies the Court’s concerns regarding authentication of the exhibits and the terms of the arbitration provision. Mr. Kraemer attests that he is the president of Petitioner Executive Presentations, Inc. (Kraemer Decl., ¶ 1.) He attests to the copy of the Contract attached to his declaration, which matches that attached to the Petition, and explains that page 2 of the contract had been omitted only because it was a credit card authorization form that Respondent never completed. (Kraemer Decl., ¶¶ 2-4, Exs. 1-2.) He further explains that the copy of the Contract attached to the Petition did not contain page numbers at the bottom of pages 3 and 4 because they were inadvertently cut off when copied. (Kraemer Decl., ¶ 5.)

            The Court further finds that Petitioner has established the existence of an arbitration agreement that covers the claims at issue. Therefore, the Court will grant the Petition and order this matter stayed pending arbitration.

IV.           Conclusion

The Petition to Compel Arbitration and Appoint Arbitrator filed by Petitioner Executive Presentations, Inc. is GRANTED. The Court orders that the arbitration be conducted by the American Arbitration Association with an arbitrator selected by the AAA in accordance with its Commercial Rules.  The request for costs is deferred until the conclusion of the arbitration.  This action is STAYED pending arbitration.

Moving party is ordered to give notice.