Judge: Michael Small, Case: 24STCV33159, Date: 2025-03-28 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 24STCV33159    Hearing Date: March 28, 2025    Dept: 57

Defendants have moved for an order compelling arbitration of Plaintiff’s claims against the Defendants in this action. The hearing on the Defendants’ motion to compel arbitration is set for April 24, 2025.   On the Court’s calendar today is Defendants’ ex parte application to stay all proceedings in this action pending the Court’s resolution of the motion to compel arbitration.  The Court is granting the Defendants’ ex parte application. 

Section 1281.4 of the Code of Civil Procedure governs here.  In pertinent part, it provides as follows:    

If an application has been made to a court of competent jurisdiction, whether in this State          not, for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the    court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to           arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate . . . .

Applying the terms of Section 1281.4 to what has happened here in this action, first, the Defendants have applied to this Court for an order to arbitrate a controversy, i.e., Plaintiffs’ claims in this action pending before this Court.  Second, Defendants also have requested through their ex parte application an order staying the action pending determination of the application for an order to arbitrate.  Putting those two events together, Section 1281.4 tells the Court that it “shall” stay the proceedings as Defendants have requested.   The Court has no choice in the matter.  (Twentieth Century Fox Film Corp. v. Superior Court (2000) 79 Cal.App.4th 188, 192 [“Fox Film”] [Section 1281.4] is clear and unambiguous: it requires that the trial court stay an action pending before it while an application to arbitrate the subject matter of the action is pending in a court of competent jurisdiction.].”  Plaintiff’s argument to the contrary misreads Section 1281.4

Plaintiff fares no better with her argument that Defendants delayed in seeking to compel arbitration and thus are not entitled to stay proceedings.  Even if there was delay by the Defendants, “[t]here is no express specific or implied exception contained within [Section 1281.4’s stay requirement] to preclude its application for dilatory action by a party seeking to arbitrate the matter.  (Fox Film, supra, 79 Cal.App.4th at p. 192.)

 Plaintiff also takes issue with Defendant’s use of ex parte procedures to seek a stay.  First, Plaintiff says that Section 1281.4 requests for a stay must be made by a noticed motion, not an ex parte application.  Plaintiff is mistaken. Yes, Section 1281.4 speaks to what a court must do “upon a motion” seeking a stay.  But nothing in Section 1281.4 says that a party is precluded from using ex parte procedures to seek a stay.   In that regard, Section 1281.4 is like a multitude of statutes on the books that refer to motions for relief but that do not forbid ex parte applications for that relief.  Second, Plaintiff says that Defendants have not shown the existence of exigent circumstances to warrant ex parte relief.  Plaintiff is mistaken on this front too.  The uncontroverted evidence that Defendants presented shows that Plaintiff propounded discovery on, and noticed a deposition of, one of the Defendants in the face of the Defendants representations to Plaintiff that Defendants would be moving to compel arbitration and asking for a stay of proceedings pending the resolution of that motion.  Plaintiff has not withdrawn that discovery.  An exigency thus exists warranting ex parte relief: specifically, in the absence of a stay, Plaintiff seemingly will continue to propound discovery on Defendants and force Defendants to litigate when they have asked for arbitration.

 Plaintiff additionally argues that Defendants are prohibited from moving to compel arbitration and obtaining a stay of proceedings in this Court because the federal Ending Forced Arbitration Of Sexual Assault And Sexual Harassment Act (“EFAA”), 9 U.S.C. §402, applies to this case.  Plaintiff may well be correct that EFAA applies.  But whether it does is not before the Court today.  The Court will address that issue when considering Defendants’ motion to compel arbitration next month.  If it turns out that EFAA does apply to foreclose arbitration of some of Plaintiff’s claims, then, as Section 1281.4 says, the Court may sever those claims from claims that can be the subject of arbitration and enter a stay only as to the arbitrable claims.  (See Section 1281.4 [“If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only.”].

One final word.  In considering the Defendants’ ex parte application, the Court reviewed the back and forth communications between counsel.  It was remarkably uncivil.  The Court’s message to counsel for both sides is simple and direct:  tone down the rhetoric, immediately.  It does not help your clients’ cause to trade insults.  And it does not impress judges.  (See WasteXperts, Inc. v. Arakelian Enterprises, Inc. (2024) 103 Cal.App.5th 652, 667 [“Ad hominem attacks and other invective detract from counsel's legal arguments, signal inappropriate personal embroilment in the dispute, and indicate an inability to engage in the reasoned analysis the courts need and counsel's clients deserve.  When counsel resort to name-calling and to unsupported claims of misconduct, they risk obscuring any meritorious arguments they may have.”]; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537 [“Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.”].)