Judge: Maurice A. Leiter, Case: 22STCV11641, Date: 2022-10-10 Tentative Ruling

Case Number: 22STCV11641    Hearing Date: October 10, 2022    Dept: 54

Hearing Date: October 10, 2022

Department 54, Judge Maurice A. Leiter

Motion to Compel Arbitration

Moving Party: Defendants Lakeview Terrace Skilled Nursing Facility, LLC, Himel Capital, LLC and Fermin Fuentes

Responding Party: Plaintiff Angela Olive

T/R:     THE COURT ORDERS AN EVIDENTIARY HEARING ON THE ISSUE OF ASSENT TO THE ARBITRATION AGREEMENT ON OCTOBER 28, 2022 AT 10:00.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

            The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On April 6, 2022, Plaintiff Angela Olive sued Defendants Lakeview Terrace Skilled Nursing Facility, LLC, Himel Capital, LLC, and Fermin Fuentes, asserting causes of action for sexual harassment and retaliation.

ANALYSIS

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate a 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….”  (CCP § 1281.2.)  The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.   (CCP § 1281.2(a)-(c).)  “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.”  (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

Defendants move to compel arbitration based on the Arbitration Agreement purportedly executed by Plaintiff on August 15, 2016. (Decl. Weaver, Exh. A.) The agreement provides, “[t]he Company and employee agree that any claim, dispute, and/or controversy that either the Employee may have against the Company (or its owners, directors, officers, managers, employees, and agents), or that the Company may have against Employee, arising from, related to, or having any relationship or connection whatsoever with the Employee’s employment or other association with the Company, shall be submitted to and determined exclusively by binding arbitration.”

In opposition, Plaintiff declares she does not remember being presented with the arbitration agreement, seeing the agreement, or signing the agreement. (Decl. Olive ¶¶ 12-15.) Plaintiff believes the signatures and initials affixed to the agreement are not her authentic signature. (Id.) Plaintiff asserts that the arbitration agreement provided by Defendants is a 2018 version of the agreement, rather than a 2016 version. In reply, Defendant provides declarations from someone who witnessed Plaintiff sign the agreement and from an expert who claims the handwriting on the agreement is Plaintiff’s handwriting.

            The Court cannot determine whether Plaintiff accepted and/or signed the agreement, and as a result assented to its terms, based on the parties’ papers alone. The Court will order an evidentiary hearing on this issue of whether Plaintiff assented to the agreement. (See e.g. Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 414, [Where “the enforceability of an arbitration clause may depend upon which of two sharply conflicting factual accounts is to be believed, the better course would normally be for the trial court to hear oral testimony and allow the parties the opportunity for cross-examination.”])