Judge Kristin S. Escalante , Case 20STCV34134 2023-03-23 Tentative Ruling

Judge: Kristin S. Escalante , Case: 20STCV34134, Date: 2023-03-23 Tentative Ruling

DEPARTMENT 24 - LAW AND MOTION RULINGS

Submission Instructions.

1. Please notify the courtroom staff by email not later than 4:00 p.m. the day before the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SMCDEPT24@lacourt.org. Please do not use any other email address. You must cc all other parties on the email.

2. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, case name and number, date of hearing and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions

3. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a motion placed off-calendar and parties are ordered to cancel the reservation on CRS.

4. If all parties submit, the tentative ruling will become the final ruling after the hearing date. The moving party shall give notice of the final ruling.

5.Tentative rulings are not invitations or opportunities to file further documents relative to the hearing before the Court. Said document(s) will not be considered by the Court.

NATURE OF PROCEEDINGS: Hearing on Motion - Other Motion to Compel Arbitration and Stay of Proceedings

The Court has read the moving papers in the above-captioned motions and announces the tentative rulings in open Court.

The Motion to Compel Arbitration filed by Defendant Nissan North America Inc. is DENIED. Defendant Nissan North America waived its right to arbitration. (See Davis v. Shiekh Shoes (2022) 84 Cal.App.5th 956.)

Where no deadline for demanding arbitration is specified in the agreement, a party who does not demand arbitration within a reasonable time is deemed to have waived the right to arbitration, and what constitutes a “reasonable time” is a question of fact depending on the situation of the parties, the nature of the transaction, and the facts of the particular case, including any prejudice suffered by the opposing party because of the delay. (Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1204, review denied; see also Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 991(Sobremonte) [waiver of the right to arbitrate “is a question of fact” within the trial court’s discretion].)

In determining a waiver, the court may consider whether the party’s actions are inconsistent with intent to arbitrate, the degree to which the “litigation machinery has been substantially invoked,” the length of delay in seeking a stay, whether the moving party filed a counterclaim without

asking for a stay, and the prejudice to the opposing party. (Sobremonte, supra, 61 Cal.App.4th at p. 992.)

The issue of whether a showing of prejudice is still required to establish waiver has been the subject of several recent court of appeals cases. (See Quach v. California Commercial Club (2022) 78 Cal.App.5th 470, 478 (Quach) [stating “waiver does not occur by mere participation in the litigation. . .”]; Davis v. Shiekh Shoes (2022) 84 Cal.App.5th 956, 965-67 (Davis) [stating that under the FAA, courts may not condition a waiver of the right to arbitrate on a showing of prejudice.]; Morgan v Sundance (2022) 142 S.Ct. 1708.)

The court of appeals published Quach on May 10, 2022, the Supreme Court published Morgan on May 23, 2022, and the court of appeals published Davis on October 31, 2022. On the issue of whether waiver requires a showing of prejudiced the more recent cases of Morgan and Davis dictate that the nonmoving party need not show prejudice to invoke waiver. As Quash was published prior Morgan and Davis, it cannot be said that it is somehow an interpretation of the new law on the matter of prejudice. Accordingly, the court examines whether the factors establish waiver and notes that Plaintiffs need not show prejudice.

Considering the factors, Nissan waived its right to arbitrate the present suit. The case has been pending since September 2020, over two years. During the pendency of the instant suit the parties have engaged in both written and oral discovery, thus invoking the litigation machinery. While Nissan argues the delay and the litigation thus far is insufficient, the court disagrees. Nissan obtained the benefit of the court’s jurisdiction, including invoking the right to expert witness information via Code of Civil Procedure section 2034.210, and engaged in trial preparation. Indeed, trial is set for April 10, 2023, approximately one month from now. Sending the case to arbitration would significantly forestall Plaintiff’s case as the parties began the arbitration proceeding.

Accordingly, the court finds Nissan has waived its right to arbitration and the motion to compel arbitration is denied.