Judge Kerry Bensinger, Case Number: 24STCV03305, Date: 2025-04-23 Tentative Ruling

On February 8, 2024, plaintiffs Steven McGill and Nagee S. McGill filed a Judicial Council in pro per against defendants Gina Nicholls (“Nicholls”), Shayla Myers (“Myers”), and Alpha Structural, Inc. (“Alpha”) (collectively, “Defendants”) for negligence and breach of contract. Plaintiffs allege Nicholls and Meyers are responsible for the collapse of a property

line retaining wall and its improper reconstruction. Plaintiffs, Nicholls, and Alpha entered into five separate construction contracts to rebuild the retaining wall. Each contract contained an arbitration provision.

On March 24, 2025, Plaintiff Steven McGill (hereafter, “Plaintiff”) filed an opposition. Plaintiff is self-represented.

Under California¿law,¿public policy favors arbitration as an efficient and less expensive means of resolving private disputes.¿ (Moncharsh¿v.¿Heily¿&¿Blase¿(1992) 3 Cal.4th 1, 8-9 (Moncharsh);¿AT&T Mobility LLC v. Concepcion¿(2011) 563 U.S. 333, 339 (Concepcion).) ¿Similarly, the Federal Arbitration Act (FAA) reflects a liberal federal policy favoring arbitration and the fundamental principle that arbitration is a matter of contract.¿ (Concepcion,¿supra, 563 U.S. at p. 339.)¿ In line with these principles, courts must place arbitration agreements on an equal footing with other contracts and enforce them according to their terms.¿ (Ibid.)¿ “[U]nder both the FAA and California law, ‘arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’”¿ (Higgins v. Sup. Ct.¿(2006) 140 Cal.App.4th 1238, 1247 (Higgins).)¿ Accordingly, whether an agreement is governed by the California Arbitration Act (CAA) or the¿FAA, courts resolve doubts regarding the scope of arbitrable issues in favor of arbitration.¿ (Moncharsh, supra, 3 Cal.4th at p. 9; Comedy Club, Inc. v. Improv WestAssocs.¿(9th Cir. 2009) 553 F.3d 1277, 1284.)

While the arbitration agreement may be governed by the FAA, the agreement may be enforced via the summary procedures provided by California arbitration law. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 409-410 (Rosenthal).) It is a “general and unassailable proposition . . . that States may establish the rules of procedure governing litigation in their own courts,” even though the controversy is governed by substantive federal law. (Felder v. Casey¿(1988) 487 U.S. 131, 138.) By the same token, however, a state procedural rule must give way “if it impedes the uniform application of the federal statute essential to effectuate its purpose, even though the procedure would apply to similar actions arising under state law.” (McCarroll v. L.A. County etc. Carpenters¿(1957) 49 Cal.2d 45, 61, 62.)

A party to an arbitration agreement may seek a court order compelling the parties to arbitrate a dispute covered by their agreement. (Code Civ. Proc., § 1281.2.) California statutes create a “summary proceeding” for resolving petitions or motions to compel arbitration. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (Engalla).)

When a party has filed a petition to compel arbitration, the trial court must determine in a summary proceeding whether an “agreement to arbitrate the controversy exists.” (Code Civ. Proc., §§ 1281.2, 1290.2; Rosenthal, supra, 14 Cal.4th at pp. 412–413.) In that proceeding, because the existence of the agreement is a statutory prerequisite to granting the petition, “[t]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.” (Engalla, supra, 15 Cal.4th at p. 972; Rosenthal, supra, 14 Cal.4th at p. 413.)

The court should grant the motion unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for rescission of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

The trial court typically decides the threshold issues of enforceability of the arbitration agreement and the scope of issues to be arbitrated. (Aanderud v. Sup.Ct. (Vivint Solar Developer, LLC) (2017) 13 Cal.App5th 880, 891.)

The following points are not in dispute: (1) the existence of the Arbitration Agreement[1], and (2) the Arbitration Agreement covers Plaintiff’s claims against Alpha. The issues are whether the Arbitration Agreement is unconscionable, violates his right to a jury trial, and was procured by economic duress[2].

These arguments are unavailing. First, the party resisting arbitration bears the burden of proving unconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247.) ¿ In general, the doctrine of unconscionability refers to “an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.”¿ (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133 (Sonic) (cleaned up).)¿ In other words, the doctrine consists of procedural and substantive components, “the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.” (Ibid.)¿¿¿

Here, Plaintiff fails to demonstrate that the Arbitration Agreement is procedurally or substantively unconscionable. Plaintiff cites Cook v. University of Southern California (2024) 102 Cal.App.4th 312 for the general proposition that an arbitration agreement of infinite duration is unconscionable. However, Cook dealt with an agreement to arbitrate employment claims “regardless of whether they related to [Cook’s] employment relationship with USC and survived the termination of that relationship for an indefinite period.” (Cook v. University of Southern California (2024) 102 Cal.App.4th 312, 318.) Unlike Cook, this is not an employment action but a legal dispute arising from the alleged negligent performance of a construction contract. Moreover, Plaintiff does not point to any term in the Arbitration Agreement which is akin to the “indefinite duration” of the arbitration agreement in Cook.

Second, Plaintiff cites Grafton Partners v. Superior Court (2005) 36 Cal.4th 944 for the proposition that any agreement to waive the right to a jury trial signed in advance of a lawsuit is unenforceable. Plaintiff misreads Grafton. The California Supreme Court in Grafton held only that any predispute agreement requiring a lawsuit between the parties to be adjudicated in a court trial and not by jury trial was unenforceable. However, this case does not concern such a predispute agreement but rather an agreement to arbitrate. Grafton recognized that arbitration agreements are expressly authorized by statute. (Grafton, at p. 955.)

Third, Plaintiff fails to show Alpha is the party that is guilty of economic duress. “The underlying concern of the economic duress doctrine is the enforcement in the marketplace of certain minimal standards of business ethics. Hard bargaining, ‘efficient’ breaches and reasonable settlements of good faith disputes are all acceptable, even desirable, in our economic system. [Citation.] But, the system disdains the wrongful exploitation of business exigencies to obtain disproportionate exchanges of value.... The economic duress doctrine serves as a last resort to correct these aberrations when conventional alternatives and remedies are unavailing. [Citation.]” (Hester v. Pub. Storage (2020) 49 Cal.App.5th 668, 679, citations and quotations omitted.) “Economic duress requires an unlawful or wrongful act which is sufficiently coercive to cause a reasonably prudent person faced with no reasonable alternative to succumb to the perpetrator's pressure. [Citation.] Examples of such wrongful acts include [t]he assertion of a claim known to be false or a bad faith threat to breach a contract or to withhold a payment …. [Citations.]” (Id.)

“At the time of the contract, the collapsed retaining wall and debris from the collapse caused by Defendants Gina Nicholls and Shayla Meyers, threatened to topple the plaintiffs’ home down the hillside and the exposed, vulnerable ground of 925 Dexter Street threatened a collapse of 925 Dexter Street onto plaintiffs’ home as the retaining wall preventing such an outcome was currently threatening to collapse plaintiffs’ home. Alpha Structural Inc. was certainly aware of the dangers as an Emergency Temporary Slope Winterization and Cleanup contract was enacted to prevent further severe damages and risk such life threatening situations and financial ruin. This arrangement was induced by Defendants Gina Nicholls and Shayla Meyers as they proposed nothing was to be done otherwise and seems have been taken advantage of by both Defendant Alpha Structural Inc. and LADBS.”

(Response to Motion for Arbitration, p. 3.) Missing from the foregoing are any allegations of coercion, pressure, or some wrongful act by Alpha. Plaintiff fails to lay the groundwork to invalidate the Arbitration Agreement on the grounds of economic duress.

Based on the foregoing, the motion to compel arbitration is GRANTED. The proceedings are stayed pending arbitration. (Code Civ. Proc., § 1281.4)

Kerry Bensinger

Judge of the Superior Court

[1] See Cohen Decl., Exhibits A-F.

[2] The court recognizes duress is related to the unconscionability analysis. However, the court addresses the unconscionability and duress arguments separately.