Judge Stephen I. Goorvitch, Case 21STCV27760 2023-01-19 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 21STCV27760, Date: 2023-01-19 Tentative Ruling

Case Number: 21STCV27760 Hearing Date: January 19, 2023 Dept: 39

C.D. v. University of Southern California, et al.

Case No. 21STCV27760

Plaintiff’s Motion Restore Case to Active Docket

Plaintiff C.D. (“Plaintiff”) filed this employment action against the University of Southern California (“USC”) and certain USC employees (collectively, “Defendants”). Plaintiff was hired as an Assistant Professor in Critical Studies in May 2015, and USC denied her tenure in May 2021. Plaintiff then filed this action, asserting causes of action for discrimination, harassment, retaliation, and intentional/negligent infliction of emotional distress, as well as a failure to pay statutorily mandated wages, among other claims. Plaintiff signed an arbitration agreement when she was hired by USC. Therefore, Defendants moves to compel arbitration, which Plaintiff opposed. The Court held a hearing on April 29, 2022, following which the Court took the matter under submission.

The Court subsequently granted the motion with respect to every cause of action “except any viable claim for intentional infliction of emotional distress based upon alleged sexual harassment, since the arbitration agreement expressly states that this claim is not subject to arbitration.” (See Court’s Minute Order, dated May 2, 2022, p. 8.) The Court ordered the parties to participate in an arbitration and stayed the case. (Ibid.) Plaintiff’s counsel made a series of arguments, none of which was persuasive to the Court. Of particular relevance, the arbitration agreement required that the arbitration would be conducted by JAMS, and Plaintiff’s counsel argued that JAMS is biased. The Court rejected this argument in ruling on the motion.

Now, Plaintiff’s counsel has made clear that he and his client are refusing to participate in the arbitration based upon his argument that JAMS is biased. (See Plaintiff’s Status Report, dated December 8, 2022, Exh. A.) Previously, Plaintiff requested that the Court restore the case to the active docket, and Defendant requested that the Court dismiss the case. The Court held a hearing on December 14, 2022, following which it concluded that it lacks jurisdiction to do either. Once the Court orders an arbitration and stays the case, “the action at law sits in the twilight zone of abatement with the trial court retaining merely a vestigial jurisdiction over matters submitted to arbitration.” (Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796.) Therefore, the Court continued the hearing to afford the parties an opportunity to determine how to proceed. .

Plaintiff has filed a motion again seeking that the Court restore the case to the active docket. The motion is again denied, as the Court lacks jurisdiction to do so. (See Court’s Minute Order, dated December 14, 2022.) In the alternative, Plaintiff moved for the Court to appoint an arbitrator per Code of Civil Procedure section 1281.6. In his reply brief, Plaintiff’s counsel states: “After reflection, Plaintiff withdraws—without prejudice—her Motion in the alternative to appoint an arbitrator. This is because USC seeks to bookstrap the alternative motion into one appointing JAMS.” (Plaintiff’s Reply Brief, p. 5.)

At this point, it appears that Plaintiff and Plaintiff’s counsel are engaged in gamesmanship. The Court previously granted Defendants’ motion to compel arbitration, and Plaintiff did not seek appellate review of that decision. Instead, Plaintiff’s counsel has flatly refused to participate in the arbitration process. The Court previously ruled on Plaintiff’s request to restore the case to the active docket, and Plaintiff then filed a motion seeking the same relief, which is an improper motion for reconsideration under Code of Civil Procedure section 1008. Plaintiff’s counsel refuses to participate in the process of appointing an arbitrator, having made the motion to do so and then having withdrawn the motion.

As discussed, the Court only has jurisdiction to grant a petition to appoint an arbitrator, per Code of Civil Procedure section 1281.6, following which Defendants may seek a dismissal for lack of prosecution from the arbitrator. The Court also has jurisdiction to grant a petition to set a deadline for the arbitrator to render an award, per Code of Civil Procedure section 1283.8, following which the Court may dismiss the case. (See Bosworth v. Whitmore (2006) 135 Cal.App.4th 536.) If the parties elect not to pursue these remedies, the Court will remain in this “twilight zone” in perpetuity, given the Court’s lack of jurisdiction to do anything else.

Based upon the foregoing, the Court orders as follows:

1. The Court has already ruled on Plaintiff’s counsel’s argument that JAMS is biased. (See Court’s Minute Order, dated May 2, 2022.) The Court orders that Plaintiff’s counsel may not re-litigate this issue before this Court unless he complies with Code of Civil Procedure section 1008, which governs motions for reconsideration.

2. The Court denies Plaintiff’s counsel’s motion to restore this case to the active docket, for the reasons stated in the Court’s order of December 14, 2022, as well as this order. The Court orders that Plaintiff’s counsel may not re-litigate this issue before this Court unless he complies with Code of Civil Procedure section 1008, which governs motions for reconsideration.

3. The Court provides notice that if Plaintiff’s counsel continues to litigate these same issues in contravention of the Court’s prior orders and in violation of Code of Civil Procedure section 1008, absent good cause, the Court may do one or more of the following: (1) Take the motions off-calendar or deny the motions without holding a hearing; (2) Issue an Order to Show Cause why any violation of section 1008 should not “be punished as a contempt and with sanctions as allowed by Section 128.7,” per the authority of Code of Civil Procedure section 1008(d); and/or (3) Issue an Order to Show Cause why Plaintiff’s counsel, Mr. I. Benjamin Blady, Esq. (California State Bar #162470) should not be referred to the California State Bar Association for engaging in vexatious litigation tactics. While the Court lacks jurisdiction over the case, the Court retains jurisdiction over the conduct of attorneys.

4. The Court continues the Order to Show Cause re: Dismissal from March 13, 2023, to May 25, 2023, at 8:30 a.m.

5. This order is without prejudice to Defendant filing a petition to appoint an arbitrator, per Code of Civil Procedure section 1281.6, and/or a petition to set a deadline under Code of Civil Procedure section 1283.8.

6. Defendant’s counsel shall provide notice and file proof of such with the Court.