Judge Melvin D. Sandvig, Case 22CHCV00766 2023-01-26 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 22CHCV00766, Date: 2023-01-26 Tentative Ruling

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Case Number: 22CHCV00766 Hearing Date: January 26, 2023 Dept: F47

Dept. F47

Date: 1/26/23

Case #22CHCV00766

MOTION TO COMPEL ARBITRATION

Motion filed on 10/31/22.

MOVING PARTY: Defendants JV Property Management & Brokerage, Inc. and Noble Property Services, LLC

RESPONDING PARTY: Plaintiff Cam Luu

NOTICE: ok

RELIEF REQUESTED: An order compelling Plaintiff Cam Luu to arbitrate his claims pursuant to a binding arbitration agreement.

RULING: The request to compel arbitration is granted and the action is stayed. The request to dismiss the action is denied.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of Plaintiff Cam Luu’s (Plaintiff) employment with Defendant JV Property Management & Brokerage, Inc. (JVPM) as an hourly leasing agent beginning on or around 5/18/21. Upon his hiring, Plaintiff executed a “Binding Arbitration Agreement” whereby he agreed to submit any dispute relating to his employment to binding arbitration. (Betul Decl. ¶7, Ex.1). Defendant Noble Property Services, LLC (NPS) is an affiliate of JVPM and thereby covered by the arbitration agreement. Id.

On 9/19/22, Plaintiff filed this action alleging one cause of action against JVPM and NPS (collectively, Defendants) seeking penalties under the Private Attorney General Act (PAGA). (Slater Decl. ¶3, Ex.2). Defendant’s counsel states under penalty of perjury that:

“Prior to being served with the Complaint, I contacted Plaintiff’s counsel regarding the fact that Plaintiff had signed an arbitration agreement and that the employment claims should be resolved in arbitration. On at least two occasions, both before and after the service of the Complaint, and on behalf of Defendants, I requested that Plaintiff stipulate to arbitration. Plaintiff’s counsel refused to stipulate to arbitration and has indicated that Plaintiff would oppose this motion.” (Slater Decl. ¶5).

Contrary to Defendants’ counsel’s assertion, which is not supported by documentary evidence, Plaintiff’s counsel provides evidence of emails between counsel wherein Plaintiff’s counsel agreed to stipulate to arbitration and stay this action. Specifically, on 9/28/22 and 10/10/22, Defendants’ counsel asked Plaintiff’s counsel via email to “confirm whether Mr. Luu will stipulate to arbitration and stay the pending civil action.” (See Tapanian Decl. ¶¶6-7, Ex.2). On 10/10/22, Plaintiff’s counsel responded by stating that “Mr. Luu will stipulate to arbitrate his individual wage and hour claims, and stay his representative PAGA case.” Id. In response to this agreement, Defendants’ counsel demanded that Plaintiff “submit all of his claims to arbitration,” including the representative PAGA claim. Id. In response, Plaintiff’s counsel stated that there were issues to submitting a representative PAGA claim to arbitration and reiterated Plaintiff’s agreement to arbitrate his individual claims and stay the PAGA claim. Id. In response, on 10/12/22, Defendants’ counsel indicated that the instant motion would be filed. Id.

On 10/31/22, Defendants filed and served the instant motion wherein they misleadingly state that they “have requested that Plaintiff stay this action and honor the signed written contractual agreement to arbitrate, but he refused to do so.” (See Notice of Motion, p.2:13-14; Slater Decl. ¶5). The notice of motion merely requests “an order under the California Arbitration Act (“CAA”), California Code of Civil Procedure section 1281 et seq., and the Federal Arbitration Act (“FAA”), 9 U.S.C. 1 et seq., compelling Plaintiff Cam Luu (“Plaintiff”) to arbitrate his claims pursuant to a binding arbitration agreement.” (Notice of Motion, p.2:6-9). The notice of motion does not mention dismissing or staying this action pending the resolution of the arbitration.

The memorandum of points and authorities in support of the motion indicate that Defendants are seeking “an order compelling arbitration and staying this action.” (See Motion, p.9:5-6, p.23:18-p.24:12). However, later in the motion, Defendants argue that Plaintiff’s [individual] PAGA action must be compelled to arbitration and the related, non-individual PAGA claims must be dismissed for lack of standing.” (See Motion, p.14:5-7). This argument is repeated in the reply. (See Reply, p.5:2-p.7:19, p.8:16-19). Defendants’ argument that the representative PAGA action should either be stayed or dismissed contradicts defense counsel’s pre-motion demand that Plaintiff agree to arbitrate the representative PAGA case along with his individual claims. (See Tapanian Decl., Ex.2, counsel’s 10/10/22 email exchange from 12:14 p.m. – 1:14 p.m. and 10/12/22 at 10:35 a.m. -1:48 p.m.). Yet, still later in the motion, Defendants argue that the Court should stay all proceedings pending completion of arbitration or, in the alternative, dismiss the action. (See Motion, p.23:18-p.24:12).

ANALYSIS

Plaintiff’s Request for Judicial Notice is granted only as to the existence of the court records therein.

In the opposition, as in pre-motion communications between counsel, Plaintiff agrees to submit his individual wage and hour claims to arbitration. (See Opposition, p.2:12). Plaintiff requests that the Court stay the representative portion of the action, rather than dismiss the action. (Id. p.2:13-17). As noted above, in the motion, Defendants go back and forth between requesting/arguing that this action should be stayed or dismissed once Plaintiff’s individual hour and wage claims are moved to arbitration. As such, the only remaining issue is whether this action is stayed or dismissed once Plaintiff’s individual hour and wage claims are submitted to arbitration.

In Viking River Cruises, Inc. (2022) 142 S.Ct. 1906, the United States Supreme Court held that a plaintiff loses standing to assert a non-individual PAGA claim once his own individual claims are compelled to arbitration. See Viking River, supra at 1925. However, the concurrence also noted that this standing issue is ultimately one of state law. Id. In Adolph v. Uber Technologies, Inc. (Case No. S274671), the California Supreme Court has granted review of this standing issue. The Court finds that Defendants will suffer no prejudice if this action is stayed rather than dismissed as Defendants are receiving the benefit of the Arbitration Agreement as between the parties to such agreement (i.e., Plaintiff and Defendants). The real party in interest in a PAGA representative action is the State of California, not the individual representative plaintiff. See Kim (2020) 9 C5th 73, 81; Correia (2019) 32 CA5th 602, 625. To the extent Defendants are still claiming that Plaintiff is required to arbitrate the representative PAGA claim, they have presented no authority for such position.

Based on the foregoing, the Court finds that it would be most prudent to stay, rather than dismiss, the representative PAGA claim in this action.

CONCLUSION

While seemingly unnecessary based on Plaintiff’s prior agreement to stipulate to arbitrate his individual wage and hour claims, to avoid any future dispute, Plaintiff’s individual claims are ordered to arbitration. The request to dismiss Plaintiff’s non-individual/representative claims is denied. Rather, this action is stayed pursuant to CCP 1281.4.