Judge: Melvin D. Sandvig, Case: 16A00899, Date: 2022-08-16 Tentative Ruling

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Case Number: 16A00899    Hearing Date: August 16, 2022    Dept: F47

Dept. F47

Date: 8/16/22

Case #CHA16A00899

MOTION TO DISMISS

Motion filed on 3/28/22.

MOVING PARTY: Defendant Vivian Laditi

RESPONDING PARTY: Plaintiff  Sunlan LDP, LLC

NOTICE: ok

RELIEF REQUESTED: An order dismissing the action pursuant to CCP 583.210. 

RULING: The hearing will be continued.    

This action arises from a promissory note (Note) Vivian Laditi (Laditi) entered with non-party CashCall, Inc.  After Laditi’s default on the Note, Sunlan LDP, LLC (Sunlan) purchased the Note from CashCall acquiring all right, title and interest thereon. 

On 1/19/16, Sunlan filed a limited civil collection action against Laditi for breach of contract and common counts.  On 12/6/16, default judgment was entered against Laditi in the amount of $11,918.09.  (See 12/6/16 Default Judgment).  On 2/9/22, pursuant to Laditi’s motion, the default judgment was set aside and vacated.  (See 2/9/22 Minute Order). 

In addition to filing her Answer to the Complaint, on 2/9/22, Laditi filed a Cross-Complaint against Sunlan for (1) Breach of Contract, (2) Violation of the Fair Debt Collection Practices Act and (3) Violation of the Rosenthal Fair Debt Collection Act.  On 2/22/22, Laditi filed a First Amended Cross-Complaint asserting the same causes of action.  Sunlan made a demand for arbitration with regard to the First Amended Cross-Complaint which was rejected by Laditi. 

On 3/25/22, Sunlan filed and served a motion seeking an order compelling Cross-Complainant Vivian Laditi to arbitration.  In the motion to compel arbitration, Sunlan also moved for an order to stay further proceedings in this action pending final and binding arbitration.  (See Motion to Compel Arbitration filed on 3/25/22, p.3:5-6).  On 3/28/22, Laditi filed the instant motion seeking an order dismissing the action pursuant to CCP 583.210.  On 8/3/22, Sunlan filed an objection to the instant motion claiming that it was filed in violation of the automatic stay purportedly created by the filing of its motion to compel arbitration.  Sunlan further requested, that if its motion to compel arbitration was denied, that the instant motion be re-filed or that the hearing on the motion be continued at least 30 days after such ruling.  (See Objection filed 8/3/22, p.3:3-6).  On 8/9/22, Laditi filed a response to Sunlan’s objection arguing that the  filing of the motion to compel arbitration did not automatically stay these proceedings.  Rather, Sunlan was required to make a motion to stay.  On 8/10/22, this Court denied Sunlan’s motion to compel arbitration. 

The Court agrees that this action was not automatically stayed upon the filing of Sunlan’s motion to compel arbitration.  While Sunlan requested in that motion that the action be stayed pending final and binding arbitration, it did not make a separate motion to stay this action pending the determination of the motion to compel which is what is required under the second paragraph of CCP 1281.4.  However, if Sunlan had made a motion to stay pending the determination of the motion to compel arbitration, the relief would have been mandated.  See CCP 1281.4; Ross (1967) 251 CA2d 739, 742.

Despite Sunlan’s failure to make a motion to stay, the Court finds that it would be in the interests of justice to continue the hearing to allow Sunlan to file and serve an opposition on the merits.  The opposition and any reply are due to be filed and served pursuant to the requirements set forth in CCP 1005(b) and (c).