Judge: Robert S. Draper, Case: 21STCV28766, Date: 2023-05-01 Tentative Ruling
Case Number: 21STCV28766 Hearing Date: May 1, 2023 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
ROSA GUEVARA,
Plaintiff,
vs.
GLEN PARK HEALTHY LIVING, et al.,
Defendants. Case No.: 21STCV28766
Hearing Date: May 1, 2023
[TENTATIVE] RULING RE:
PLAINTIFF ROSA GUEVARA’S MOTION TO VACATE ORDER COMPELLING ARBITRATION AND STAYING PROCEEDINGS.
Plaintiff Rosa Guevara’s Motion to Vacate Order Compelling Arbitration and Staying Proceedings is DENIED.
Plaintiff Rosa Guevara’s Request for Monetary Sanctions is DENIED.
The Court sets an OSC Re: Selection of Arbitrator for May 15, 2023 at 8:30 a.m. At that time, the Court expects the parties to have selected an arbitrator and reserved an arbitration date.
Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.
FACTUAL BACKGROUND
This is an action for workplace discrimination. The Complaint alleges as follows.
Plaintiff Rosa Guevara (“Plaintiff”) was hired by Defendants as a Caregiver in 2016. (Compl. ¶ 9.) Between 2017 and 2018, Plaintiff was regularly harassed by her patients. (Compl. ¶ 10.) Plaintiff complained to her supervisor about her patients’ behavior, but Plaintiff’s supervisor did nothing. (Compl. ¶ 11.)
In February 2019, Plaintiff broke her ankle. (Compl. ¶ 15.) Plaintiff was placed on medical leave. (Compl. ¶ 16.) When Plaintiff returned from her medical leave, she was informed that she had been terminated. (Compl. ¶ 18.) Defendants informed Plaintiff it was for “abandoning her job,” but Plaintiff had kept Defendants informed of her medical leave. (Ibid.)
PROCEDURAL HISTORY
On August 24, 2021, Plaintiff filed the Complaint asserting ten causes of action:
1. Discrimination in Violation of FEHA;
2. Failure to Provide Reasonable Accommodation;
3. Failure to Engage in the Interactive Process;
4. Retaliation in Violation of FEHA;
5. Failure to Prevent Discrimination and Retaliation;
6. Whistleblower Protection;
7. Whistleblower Protection – Safety;
8. Sick Leave Retaliation;
9. Wrongful Discharge in Violation of Public Policy; and,
10. Unfair Business Practices.
On December 7, 2021, Defendants filed a Motion to Compel Arbitration.
On January 28, 2022, the Court granted Defendants’ Motion to Compel Arbitration.
On February 1, 2023, Plaintiff filed the instant Motion to Vacate Order Compelling Arbitration and Staying Proceedings.
On April 19, 2023, Defendants filed an Opposition.
On April 24, 2023, Plaintiff filed a Reply.
DISCUSSION
I. MOTION TO VACATE ORDER COMPELLING ARBITRATION
Plaintiff moves to vacate the Court’s December 7, 2021 Order compelling the parties to arbitrate and staying proceedings in this matter. Plaintiff moves pursuant to Code of Civil Procedure sections 1281.2(A) and 1281.4.
Section 1281.2(a) states that a court may deny a motion to compel arbitration where “the right to compel arbitration has been waived by the petitioner.”
Section 1281.4 states, in relevant part:
If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, 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 an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.
Here, Plaintiff contends that Defendants have waived their right to arbitrate by failing to select an arbitrator from the AAA arbitration list despite the parties’ agreement to do so, and by failing to correspond with JAMS regarding its willingness to arbitrate, or to pay JAMS arbitration fee.
Plaintiff’s Counsel Victoria Felder (“Felder”) attests as follows.
Between July 18, 2022, and July 22, 2022, Felder called Defense Counsel Cheryl Turner (“Turner”) twice and left voicemails asking to meet and confer regarding arbitration in anticipation of the parties’ upcoming post-arbitration status conference. (Felder Decl. ¶ 4.) As the Arbitration Agreement was silent on what arbitration agency arbitration would be held with, and as Felder had not received a return call from Turner, Felder filed a Demand for Arbitration with JAMS on July 25, 2022. (Id. ¶¶ 4-5.)
On July 26, 2022, Turner returned Felder’s call and informed Felder that Defendants did not wish to arbitrate with JAMS because JAMS was too expensive. (Felder Decl. ¶ 7.) That same day, Turner faxed a list of three suggested arbitrators to Felder. On July 27, 2022, Felder responded, rejecting all three of Turner’s suggested arbitrators and proposed four arbitrators. (Id. ¶ 8.)
On August 1, 2022, Felder faxed a letter to Turner confirming that she accepted Felder’s proposal to use a AAA strike list to select an arbitrator, and that Defendants would obtain this list from AAA. (Id. ¶ 10.)
On August 13, 2022, JAMS emailed an invoice to Turner regarding the payment of arbitration fees. (Id. ¶ 13.) On August 23, 2022, Felder faxed a follow-up letter to Turner regarding the AAA strike list but received no response. (Id. ¶ 14.)
On August 30, 2022, Turner sent Felder a list of five AAA arbitrators. (Id. ¶ 16.)
On September 6, 2022, Felder responded, rejecting four of the five suggested arbitrators. (Id. ¶ 17.) On September 30, 2022, Turner told Felder that she refused to provide Felder with Defendants’ selection, as Plaintiff could not reject as many arbitrators as she wishes. (Id. ¶ 18.) Felder responded that she could reject as many arbitrators as she wishes under AAA rules. (Ibid.) After receiving no response to that letter, Felder sent three meet and confer letters between October and November, 2022, to which Turner did not respond.
In Opposition, Turner contends that Felder has been the one delaying arbitration, as she unilaterally selected JAMS as arbitration agent, and refuses to suggest arbitrators who are retired superior court judges as required by the Arbitration Agreement. (Turner Decl. ¶ 4; Exh. 1.) In addition, Turner notes that Felder struck all of the names from the AAA list, and proposed only one arbitrator in return, whom Felder recently worked with. (Id. ¶ 5.)
Turner contends that Felder is no longer Plaintiff’s Counsel of Record. (Id. ¶ 6.) Turner argues that she is working with Plaintiff’s new counsel to come up with a mutually agreeable arbitrator, and that this motion is unnecessary and improper. (Id. ¶ 10.)
The Court agrees with Defendants. From the evidence, it appears that Plaintiff’s basis for filing the instant motion is that Defendants refuse to pay for an arbitration service that was not agreed upon in the Arbitration Agreement and to which Defendants have consistently expressed their disagreement; that Defendants refuse to send Plaintiff more proposed arbitrator lists, but strike every proposed arbitrator when Defendants do precisely that; and, that Defendants refuse to send proposed arbitrators who are retired superior court judges, as required by the Arbitration Agreement.
The Court sees no reason why this warrants relief.
CONCLUSION
Plaintiff Rosa Guevara’s Motion to Vacate Order Compelling Arbitration and Staying Proceedings is DENIED.
Plaintiff’s Request for Monetary Sanctions is DENIED.
The parties are ordered to meet and confer within the next fourteen days regarding selection of a retired superior court judge from the AAA strike list as arbitrator. If the parties are unable to agree, the Court will appoint one at its discretion, and arbitration will commence.
DATED: May 1, 2023
___________________________
Hon. Jill T. Feeney
Judge of the Superior Court
