Judge Salvatore Sirna, Case Number: 23PSCV03946, Date: 2025-02-27 Tentative Ruling

Judge: Salvatore Sirna, Case: 23PSCV03946, Date: 2025-02-27 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV03946 Hearing Date: February 27, 2025 Dept: G

Defendant Get Air Pomona LP’s Motion to Compel Arbitration and Request to Stay

Respondent: Plaintiff Mistica Papazyan

TENTATIVE RULING

Defendant Get Air Pomona LP’s Motion to Compel Arbitration and Request to Stay is DENIED.

BACKGROUND

This is a premises liability action. On December 20, 2023, Plaintiff Mistica Papazyan filed a complaint against Defendants Get Air Pomona LP (Get Air) and Does 1-25, alleging the following causes of action: (1) negligent hiring, supervision, or retention of employee; (2) negligence; and (3) premises liability.

On December 6, 2024, Get Air filed the present motion. A hearing on the present motion is set for February 27, 2025, along with a CMC/Status Conference Re: ADR.

ANALYSIS

Get Air moves to compel arbitration on the grounds that Papazyan’s claims are subject to a binding arbitration agreement. For the following reasons, the court DENIES Get Air’s motion.

Legal Standard

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.) The court must grant a petition to compel arbitration unless it finds no written agreement to arbitrate exists, the right to compel arbitration has been waived, grounds exist for revocation of the agreement, or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2.) A petition to compel arbitration functions as a motion. (Code Civ. Proc., § 1290.2.)

“[T]he moving party bears the burden of producing ‘prima facie evidence of a written agreement to arbitrate the controversy.’” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa).) Once the court finds an arbitration agreement exists, the opposing party bears the burden of establishing a defense to enforcement by preponderance of the evidence. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) In interpreting an arbitration agreement, courts apply the same principles used to interpret contractual provisions with the fundamental goal of giving effect to the parties’ mutual intentions and applying contractual language if clear and explicit. (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 177.) Because public policy strongly favors arbitration, “any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” (Coast Plaza Doctors Hosp. v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.)

Existence of an Arbitration Agreement

In this case, Get Air claims Papazyan signed a waiver that included an arbitration provision prior to and as a condition for accessing their facilities. (Hall Decl., ¶ 3-5.) The arbitration provision stated as follows in relevant part:

“Any and all disputes, claims, or controversies arising out of or relating in any way to this Agreement, including but not limited to Participants’ Use of Facility at the Trampoline Park may be submitted to a formal mediation using a mediator, or a comparative impartial third party, either appointed by the American Arbitration Association or any other mediator to which the Parties agree in writing. . . . Mediation shall be deemed to be in the nature of settlement negotiations and any dispute not otherwise satisfactorily resolved shall be subject to mandatory, final and binding arbitration. Either Party may initiate arbitration with respect to the matters submitted to mediation by notifying the other Party, in writing and within ten days after the mediation is concluded, of its demand for arbitration. Unless otherwise agreed by the Parties, the mediator shall be disqualified from serving as arbitrator in the case. Except as otherwise agreed in writing by the Parties or as required by applicable law, any mediation and arbitration shall be conducted in California. Similar to a judge or jury, an arbitrator may grant any remedy or relief that the arbitrator deems just and equitable and within the scope of the agreement of the parties, however the scope and rules of arbitration differ, and review is limited. In the event the Parties elect not to mediate, arbitration shall be the sole and exclusive forum for resolution of the dispute, claim or controversy, and the award shall be in writing, state the reasons for the award, and be final and binding. . . . By signing this Agreement, the Participants, to the fullest extent permitted by law, agree to this Section 11 and agree to settle disputes only by individualized mediation and/or arbitration, with disputes from different participants to be heard in different proceedings. Participants thereby waive their right to seek relief in a court of law and have any and all claims decided by a jury or a judge, or to maintain other available court action or administrative proceedings to settle Participants’ disputes.” (Hall Decl., Ex. 1, § 11.)

Papazyan’s premises liability action is based on allegations that Get Air failed to properly maintain their restrooms in their facility at 2735 S. Towne Avenue in Pomona. (Complaint, ¶ 7-10.) Get Air argues Papazyan’s claims are covered by the above arbitration provision because the waiver defines “Use of Facility” as “use of trampoline equipment, obstacle courses, or use or participation in any of the equipment, services, activities, or presence at the Trampoline Park.” (Motion, p. 3:15-17; Hall Decl., Ex. 1, p. 1 (emphasis added).) In opposition, Papazyan argues Papazyan’s claims fall outside the scope of the waiver because the waiver limits its application to risks associated with trampoline-related activities. (Opp., p. 4:14-5:6.) But Papazyan fails to point to any clear language that does so.

First, Papazyan notes the waiver includes a preamble stating as follows:

“INHERENTLY RISKY RECREATIONAL ACTIVITY –

MAY RESULT IN DEATH OR PARALYSIS –

JUMP AT OWN RISK.” (Hall Decl., Ex. 1, p. 1.)

Papazyan argues this language indicates that the waiver applies only to injuries arising from inherently risky recreational activities associated with trampoline use. (Opp., p. 4:21-22.) But there is no such language in the above statement. Instead, the court finds this advisement is a warning for potential users and participants. Papazyan next points to the assumption of risk provision in the waiver which states as follows:

“Releasing Parties know, understand, and acknowledge that the use of trampoline equipment, obstacle courses, and use or participation in any of the equipment, services, activities, or presence at Trampoline Park (collectively ‘Use of Facility’), constitutes an inherently risky recreational activity that may result in serious injury (such as paralysis and death), injury to third parties, and damage to property. Releasing Parties know, understand, and acknowledge that these risks include, but are not limited to, falling off equipment, double bouncing, collision with fixed objects and/or people, sudden and unforeseen malfunction of equipment, and failed attempted jumps and stunts.” (Hall Decl., Ex. 1, § 2.)

Papazyan argues the enumerated risks above involve participation in recreational trampoline activities and are distinguishable from premises liability claims. (Opp., p. 5:3-7.) But while the above provision establishes “Use of Facility” is “an inherently risky recreational activity,” it does not limit “Use of Facility” to such activities. Instead, as noted above, “Use of Facility” is an expansive definition that not only applies to use of Get Air’s trampolines but also “use or participation in any of the equipment, services, activities, or presence at Trampoline Park.”

Based on this broad definition, the court finds that Papazyan’s premises liability claims are subject to arbitration since they arise from Papazyan’s “Use of Facility.”

Defenses to Enforcement

As a defense to the enforcement of the present arbitration provision, Papazyan contends Get Air has waived the right to compel arbitration. A motion to compel arbitration may be denied when the contract law defense of waiver is applicable. (Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 583-584 (Quatch).) “To establish waiver under generally applicable contract law, the party opposing enforcement of a contractual agreement must prove by clear and convincing evidence that the waiving party knew of the contractual right and intentionally relinquished or abandoned it.” (Id., at p. 584.) The standard of “clear and convincing evidence” requires one to “show that it is “highly probable” the fact is true.” (Ibid.) The knowledge required by waiver may be “actual or constructive.” (Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30, 41.) An intent to relinquish or abandon “may be proved by evidence of words expressing an intent to relinquish the right or of conduct that is so inconsistent with an intent to enforce the contractual right as to lead a reasonable factfinder to conclude that the party had abandoned it.” (Quatch, supra, 16 Cal.5th at p. 584.) This “inquiry is exclusively focused on the waiving party’s words or conduct; neither the effect of that conduct on the party seeking to avoid enforcement of the contractual right nor that party's subjective evaluation of the waiving party's intent is relevant.” (Id., at p. 585.)

Here, Papazyan contends Get Air was aware of the arbitration provision at issue as early as February 6, 2024, when Get Air produced a copy of the agreement in discovery. (Opp., p. 6:14-18; Grigorian Decl., ¶ 3, Ex 2.) In reply, Get Air does not deny it had knowledge of the arbitration provision and its own answer filed January 25, 2024, invokes the existence of a binding arbitration provision as its thirty-ninth affirmative defense. (Reply, p. 3:22-4:15; Answer, ¶ 39.) Next, to establish Get Air’s intent to relinquish or abandon its right to compel arbitration, Papazyan points to a CMC statement filed on April 30, 2024, where Get Air did not indicate any intent to seek arbitration and instead requested a jury trial. (Grigorian Decl., Ex. 4.) Papazyan also contends Get Air actively engaged in litigation by serving discovery requests on February 6, 2024, that included 63 special interrogatories, 59 form interrogatories, and 38 requests for production. (Opp., p. 6:19-21; Grigorian Decl., ¶ 4, Ex. 3.) On November 5, 2024, Get Air also served a notice of deposition on Papazyan that set the deposition for December 4, 2024, although Get Air later cancelled the deposition on December 2, 2024, and proceeded with filing the present motion. (Opp., p. 6:27-7:5; Grigorian Decl., ¶ 6-7, Ex. 5-6.)

In Quatch, the supreme court held a defendant’s actions demonstrated intentional abandonment of the right to compel arbitration where the defendant waited thirteen months after the filing of the Complaint, propounded discovery requests, indicated a preference for a jury trial in its CMC statement, posted jury fees, and took the plaintiff’s deposition. (Id., at p. 586-587.) Although the defendant did raise arbitration as a defense in the answer, as Get Air has done here, the supreme court held this alone was insufficient as defendant’s subsequent actions suggested the opposite. (Id., at p. 586.) In addition to serving discovery on Papazyan and requesting a jury trial in their CMC, Get Air also posted jury fees on April 30, 2024, and significantly delayed in bringing the present motion by waiting more than ten months after filing their initial answer.

Although Get Air did not ultimately depose Papazyan as the defendant did in Quatch, the court determines that this distinction does not merit a different result. While the defendant in Quatch attempted to argue that the discovery propounded was minimal, the supreme court held that did not undermine its determination since the issue was that defendant’s actions were “markedly inconsistent with an intent to arbitrate.” (Id., at p. 587.)

Similarly here, Get Air’s actions were inconsistent with the intent to arbitrate, even if they did not actually conduct depositions. To the extent Get Air contends their delay did not prejudice Papazyan (Reply, p. 3:22-4:15), prejudice is not required to establish waiver. (Id., at p. 569.) Because Get Air’s actions in delaying to bring a motion to compel arbitration, propounding discovery, requesting a jury trial, posting jury fees, and noticing a deposition demonstrate an intent to abandon the right to compel arbitration by clear and convincing evidence, the court finds Get Air waived the right to compel arbitration.

Accordingly, the court DENIES Get Air’s motion.

CONCLUSION

Based on the foregoing, Get Air’s motion to compel arbitration is DENIED.