Judge Randolph M. Hammock, Case Number: 20STCV40232, Date: 2023-08-09 Tentative Ruling

Plaintiff Jessy Valdez alleges his employer, Defendant San Gabriel Transit, Inc., terminated his employment after contracting Covid-19. Plaintiff separately alleged a cause of action seeking civil penalties for wage violations under PAGA. On August 4, 2021, Plaintiff dismissed various causes of action from the First Amended Complaint, leaving only the PAGA claim. Thereafter, Plaintiff filed a complaint in arbitration. On March 13, 2023, the parties stipulated to stay litigation of the remaining PAGA claim pending completion of arbitration.

Plaintiff now moves this court for an order to (1) lift the arbitration stay and (2) enforce a deposition subpoena issued to third-party individual Dawn Boulden. Defendant opposed.

On or about March 20, 2023, Plaintiff obtained a subpoena signed by Arbitrator Christine A. Page (the “Arbitrator”) for the deposition of Dawn Boulden, to take place on May 8, 2023. (LaCour Decl. ¶ 2). On or about April 11, 2023, this Deposition Subpoena was served upon Ms. Boulden. (Id. ¶ 3). Boulden did not appear for the deposition. (Id. ¶ 6.) Plaintiff’s attempts to contact her since then have been unsuccessful. (Id. ¶ 8.) Accordingly, Plaintiff represents that the Arbitrator has “instructed Plaintiff to file a motion with this Court to temporarily lift the stay of the case for the limited purpose of enforcing the subpoena to Ms. Boulden.” (Id. ¶ 9.) Defendant does not dispute that the Arbitrator instructed Plaintiff to file this motion.

Defendant opposes. As a preliminary matter, there is a reasonable debate whether Defendant, as opposed to the non-party, has standing to oppose this motion. Generally, it is the non-party witness, and not a party to the action, who may assert an objection to a deposition subpoena. (See Monarch Healthcare v. Superior Court (2000) 78 Cal. App. 4th 1282, 1290.)

However, because this issue concerns not just entitlement to the discovery sought, but also, the relationship between this court and the arbitral forum, this court exercises its discretion to consider the opposition on its merits.

First, Defendant asserts the motion must be denied because non-party Boulden told Defendant’s counsel “that she had never been served with a deposition subpoena.” (Duong Decl. ¶ 3; McFaul Decl. ¶ 3.)

There is no declaration from Boulden herself attesting to this fact. Counsel’s statements that Boulden told them she was never served are hearsay and unsupported by any competent evidence or hearsay exception. Plaintiff, on the other hand, has provided a Proof of Service by registered process server showing personal service of the deposition subpoena on Boulden on April 11, 2023. (LaCour Decl. ¶ 3, Exh. B.) Therefore, it appears that Plaintiff did, in fact, validly served the subpoena on Boulden.

Second, Defendant contends the trial court lacks discretion to lift the stay under these circumstances. Generally, “[a]fter a petition to compel arbitration has been granted and a lawsuit stayed, ‘the arbitrator takes over. It is the job of the arbitrator, not the court, to resolve all questions needed to determine the controversy.’” (MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal. App. 4th 643, 662.)

Under CCP section 1281.4, the stay generally remains in effect “until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (CCP 1281.4 [emphasis added].) “[T]he purpose of section 1281.4 is to protect the jurisdiction of the arbitrator by preserving the status quo until the arbitration is resolved.” (MKJA, Inc., supra, 191 Cal. App. 4th at 660.) The trial court maintains “discretion to lift a stay prior to the completion of arbitration only under circumstances in which lifting the stay would not frustrate the arbitrator's jurisdiction.” (Id.)

Importantly, Defendant does not dispute that the Arbitrator instructed Plaintiff to file this motion. Therefore, there is little conflict with the arbitrator’s jurisdiction. However, this issue is related to the one that follows.

Finally, Defendant contends Boulden cannot be compelled to appear because she is not a party to this matter. It is noted here that both James McFaul and Pauline Duong—counsel for Defendant San Gabriel Transit—attest they “do not represent Dawn Boulden” and therefore “cannot compel her to cooperate in litigation or arbitration.” (Duong Decl. ¶ 2; McFaul Decl. ¶ 2.) Boulden is not a party to this action or the Arbitration Agreemeent.

“The right to discovery under the FAA is limited.” (Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal. App. 5th 360, 393.) Adopting a holding from the Ninth Circuit, the California Court of Appeal has held that the FAA does not allow an arbitrator to order a third party to produce documents as part of pre-hearing discovery. (Id. at 395.)

Like the FAA, “[t]he right to discovery in arbitration proceedings under the CAA ‘is generally limited’ and ‘highly restricted.’” (Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal. App. 5th 360, 395.) Code of Civil Procedure section 1283.05 describes the circumstances under which “depositions may be taken and discovery obtained in arbitration proceedings,” as well as the powers of the arbitrator with regard to such discovery. Subdivision (a) of section 1283.05 incorporates the Civil Discovery Act (§ 2016.010 et seq.) and authorizes discovery “as if the subject matter of the arbitration were pending before a superior court.”

Notably, however, section 1283.05 begins with the phrase, “[t]o the extent provided in section 1283.1.” “This phrase limits the application of the deposition and discovery rules in section 1283.05 to the circumstances described in section 1283.1.” (Aixtron, Inc., supra, 52 Cal. App. 5th at 396.) Subdivision (a) of section 1283.1, in turn, “provides that section 1283.05 is incorporated into and made part of every agreement to arbitrate any dispute arising out of a claim for wrongful death or for personal injury.”

This court is unaware of any published authority construing FEHA or related claims as claims for personal injury, except for sexual harassment. (See Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 657.) Because the dispute here is not a claim for wrongful death or personal injury (including sexual harassment) subdivision (a) of the statute does not apply.

This leaves subdivision (b) of section 1283.1, which provides that in “all other arbitrations, the arbitrator may grant discovery only if the parties by their agreement so provide.” This necessarily requires an analysis of the parties’ arbitration agreement. (Aixtron, Inc., supra, 52 Cal. App. 5th at 396.)

Thus, under Aixtron and the Code sections discussed therein, the only way this court could perhaps compel the relief Plaintiff seeks is if (1) the CAA applies to the arbitration and (2) the parties’ arbitration agreement expressly allows for broad, non-party discovery. Plaintiff, as moving party, has not established either at this time.

Here, neither party provided a copy of the arbitration agreement. And because the parties voluntarily stipulated to arbitrate, this court has never determined the terms or enforceability of that agreement. Thus, this court cannot determine whether the FAA or CAA governs here. Further, even assuming the CAA governs, there is no evidence that the agreement provides for non-party discovery.

On these facts, this court has no more power than the arbitrator to compel the discovery sought. To order otherwise would circumvent the FAA, CAA, and parties’ contractual agreement to arbitrate this dispute.

Accordingly, the motion is DENIED WITHOUT PREJUDICE. Plaintiff may file a similar motion before this Court, if needed, which is consistent with this ruling, to wit, in order to demonstrate the parameters of the discovery allowed in this particular arbitration, which would allow the non-party deposition at issue.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.