Judge: Latrice A. G. Byrdsong, Case: 23STLC02808, Date: 2023-11-08 Tentative Ruling

Case Number: 23STLC02808    Hearing Date: February 8, 2024    Dept: 25

Hearing Date:                         Thursday, February 08, 2024

Case Name:                             MOISES CRUZ, an individual; SANDY TORIBIO, an individual v. SAMO ENTERPRISES, INC. DBA WESTERN MOTOR SPORT, A California Corporation; JB FINANCIAL, A PARTNERSHIP CONSISTING OF SUSAN DEMIRCI AND IGYA DEMIRCI; HUDSON INSURANCE COMPANY, and DOES 1 through 40, inclusive,

Case No.:                                23STLC02808

Motion:                                   Motion to Compel Arbitration, Motion for Court to Pick Arbitration Forum and Request for Stay.

Moving Party:                         Plaintiffs Moises Cruz and Sandy Toribio

Responding Party:                   None

Notice:                                    OK

Tentative Ruling:                    Plaintiffs Moises Cruz and Sandy Toribio’s Motion to Compel Arbitration CONTINUED TO APRIL 4, 2024 at 10:00 a.m. in Department 25 of the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the issuance of service of the motion on Defendant Samo Enterprises. Failure to do so will result in the Petition being placed off calendar or denied.  

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 January 26, 2024                  [   ] Late          [X] None 

REPLY:                     None filed as of February 01, 2024                [   ] Late          [X] None 

BACKGROUND

On April 27, 2023, Plaintiffs Moises Cruz and Sandy Toribio (“Plaintiffs”) filed a complaint against Defendants Samo Enterprises, Inc. dba Western Motor Sport (“Samo Enterprises”), JB Financial, a partnership consisting of Susan Demirci and Igya Demirci (“JB”), and Hudson Insurance Company (“Hudson”) (collectively, “Defendants”), alleging causes of action for: (1) violation of the Consumers Legal Remedies Act (“CLRA”) pursuant to California Civil Code section 1750 et seq.; (2) violation of California Business and Professions Code section 17200 et seq.; (3) claim against dealer bond; and (4) violation of Code of Civil Procedure sections 1281.97 and 1281.99. The complaint arises from the sale of an allegedly defective used 2010 Chevrolet Silverado 1500 (the “Subject Vehicle”).

On May 11, 2023, Plaintiffs filed a Motion to Compel Arbitration and for the Court to Pick Arbitration Forum and Request for Stay (the “Motion”), seeking an order compelling Defendants Samo Enterprises and JB to arbitrate the controversy pursuant to the Retail Installment Sale Contract (“RISC”).

On June 23, 2023, Plaintiffs filed a Proof of Service indicating that Defendant JB had been served with the summons, complaint, and Motion by substituted service.

On June 23, 2023, Plaintiffs filed a Non-Service Report as to Defendant Samo Enterprises which sets forth attempts to serve Defendant Samo Enterprises at 17477 Doric St., Los Angeles, CA 91344 (the “Doric Street Address”).

On July 10, 2023, the Court issued a minute order noting that Plaintiffs had filed a defective Notice of Motion, which did not list the address of the Spring Street Courthouse, where the hearing on the Motion would take place. Plaintiffs also failed to file proof that the moving papers were served on Samo Enterprises or Hudson. (Id.) The Court continued the hearing on the Motion to August 10, 2023, and ordered “Plaintiffs to file and serve a corrected Notice of Motion and to serve all parties in the case.” (See 07/10/23 Minute Order.)

On July 7, 2023, Plaintiffs filed and served a Notice of Continued Motion, listing the Spring Street Courthouse Address. On July 7, 2023, Plaintiffs filed a Proof of Service indicating that Defendant Hudson had been served with the summons, complaint, and Motion.

On July 19, 2023, Plaintiffs filed the Declaration of Nima Heydari in response to the Court’s July 10, 2023, Order.

On July 25, 2023, Defendant Hudson filed an Answer to the Complaint.

On August 1, 2023, Plaintiffs filed a Non-Service Report as to Defendant Samo Enterprises.

On August 10, 2023, the Court continued the hearing on the Motion to allow Plaintiffs additional time to serve Defendant Samo Enterprises with the Complaint and moving papers. The Court continued the hearing on the Motion to November 8, 2023, and ordered Plaintiffs “to file supplemental papers addressing the issues discussed [in the Court’s order] at least 16 court days before the next scheduled hearing. Failure to do so may result in the Motion being placed off calendar or denied.” (See 08/10/23 Minute Order.)

On September 27, 2023, Plaintiffs filed a Non-Service Report as to Defendant Samo Enterprises.

On September 28, 2023, Plaintiffs filed an application to serve Defendant Samo Enterprises through the California Secretary of State (the “Application”).  The Application is made on the grounds that Defendant Samo Enterprises cannot with reasonable diligence be found at the addresses listed for personally delivering service and is likely avoiding service. On September 28, 2023, Plaintiffs filed a declaration from Nima Heydari in support of the Application.

On October 24, 2023, Plaintiffs filed a declaration from Nima Heydari re: an Order to Show Cause as to Service of Defendant Samo Enterprises. This declaration appears to be in response to the Court’s August 10, 2023, Order.

On November 08, 2023, the Court on its own motion continued the hearing on the motion to February 08, 2024, and ordered Plaintiff to file supplemental papers addressing any additional service efforts on Defendant Samo Enterprises. Additionally, the Court ordered Plaintiffs to reserve a hearing date for their application for service.  

On February 05, 2023, Plaintiffs’ counsel filed a supplemental declaration regarding the issue of service on Defendant Samo Enterprises.

No opposition brief has been filed.

MOVING PARTY POSITION

Plaintiffs contend that the controversy is covered by the arbitration provision in the RISC. Plaintiffs assert that the parties do not agree on the forum of arbitration. Plaintiffs indicate that they elect the American Arbitration Association (“AAA”) or, in the alternative, JAMS as the arbitration forum.

OPPOSITION

            No opposition has been filed.

REPLY

            No reply has been filed.

ANALYSIS

I.          Legal Standard

“A party who claims that there is a written agreement to arbitrate may petition the superior court for an order to compel arbitration” pursuant to California Code of Civil Procedure section 1281.2. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356.) “California law, like federal law, favors enforcement of valid arbitration agreements.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement.” (Code Civ. Proc. § 1281.2.) A party opposing a petition to compel arbitration “bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.” (Banner Entertainment, Inc. v. Superior Court, supra, 62 Cal.App.4th 348, 356.)

“[T]he writing memorializing an arbitration agreement need not be signed by both parties in order to be upheld as a binding arbitration agreement.” Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 176. “[I]t is not the presence or absence of a signature which is dispositive; it is the presence or absence of evidence of an agreement to arbitrate which matters.” (Banner Entertainment, Inc. v. Superior Court, supra, 62 Cal.App.4th 348, 361.)

Where a motion to compel arbitration is granted, a court “shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code Civ. Proc. § 1281.4.) 

II.        Discussion

Plaintiffs brings the instant motion seeking to compel Defendants to submit to arbitration according to the arbitration agreement contained in the parties’ RISC.

In the Court’s previous order, the Court continued the hearing on the Motion to allow Plaintiffs time to serve Defendant Samo Enterprises with summons, complaint, and the motion. Plaintiffs were also ordered to reserve a hearing for Plaintiffs’ Application to Serve Defendant Samo Enterprises by way of Secretary of State.

Here, the Court notes that since issuing its November 8th order, Plaintiffs provide the Court with the declaration of their counsel who states that they have are still waiting for a decision on Plaintiffs’ Application. (Nima Heydari Decl. ¶ 4.)

            Therefore, the Court CONTINUES the hearing on Plaintiff’s Motion to Compel Arbitration.

II.        Conclusion

           Plaintiffs Moises Cruz and Sandy Toribio’s Motion to Compel Arbitration is Arbitration is CONTINUED TO APRIL 4, 2024 at 10:00 a.m. in  Department 25 of  the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the issuance of service of the motion on Defendant Samo Enterprises. Failure to do so will result in the Petition being placed off calendar or denied.   

Moving party is ordered to give notice.