Judge: Stephen I. Goorvitch, Case: 21STCV29359, Date: 2022-10-17 Tentative Ruling

Case Number: 21STCV29359    Hearing Date: October 17, 2022    Dept: 39

Teresa Flores Carrillo v. Dynamic Nursing Services, Inc.

Case No. 21STCV29359

Motion for an Order Lifting Stay

[TENTATIVE] ORDER

            The Court posts this tentative order on October 12, 2022.  Any party who does not appear at the hearing shall waive the right to be heard and shall submit to entry of this tentative order. 

            Plaintiff Teresa Flores Carrillo (“Plaintiff”) filed this wrongful termination action against her employer, Dynamic Nursing Solutions, Inc. (“Defendant”) on August 9, 2021.  Defendant filed a motion to compel arbitration, and Plaintiff opposed the motion, representing that she did not understand English well enough to consent to arbitration.  The Court held an evidentiary hearing, following which the Court found that Plaintiff’s account was not credible.  (See Court’s Minute Order, dated February 8, 2022.)  The Court found that Plaintiff understood English well enough to have consented to arbitration because: (1) Her resume states that she had completed an ESL program and was “bilingual” in English and Spanish; (2) Defendant’s employees testified that all prospective employees are first interviewed via telephone, and any prospective employee who does not understand English is not invited back; (3) One of Defendant’s employees conducted an in-person interview and orientation with Plaintiff that lasted over three hours, and Plaintiff had no difficulty conversing in English and never requested a translation of any documents; (4) Another of Defendant’s employees testified that she worked with Plaintiff, and Plaintiff understood English; and (5) Plaintiff wrote a letter in English.  (Ibid.)  The Court ordered the parties to proceed with the arbitration.

            Now, Plaintiff seeks to have the stay lifted because Defendant is not participating in a mediation, which is a condition precedent to the arbitration.  Plaintiff relies on Code of Civil Procedure sections 1281.2 and 1281.4.  The Court has authority to do so “[i]f an issue in litigation subject to a stay is removed from the litigation (e.g., where a party amends its complaint to remove the arbitrable claim from the litigation) or the arbitrable controversy is removed from the arbitration (e.g., through agreement of the parties) such that the arbitrator's jurisdiction would not be frustrated by the litigation . . . .”  (MKJA, Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 660–661.)  No such circumstances exist in this case. 

            Nevertheless, the Court is concerned by Defendant’s counsel’s conduct, which does not make clear that his client will participate in a mediation and will pay the costs, as required by the arbitration agreement.  Therefore, the Court notices its own motion for reconsideration of its ruling on Defendant’s motion to compel arbitration based upon Plaintiff’s allegation that Defendant has breached a material term of the arbitration agreement.  The Court has inherent authority to reconsider any of its own rulings.  (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097.) 

            Based upon the foregoing, the Court orders as follows:

            1.         The Court denies Plaintiff’s motion to lift the stay

            2.         The Court notices its own motion for reconsideration based upon the allegations raised in Plaintiff’s motion.  The Court shall hear the motion on November 21, 2022, at 8:30 a.m.  Defendant may file an opposition, and Plaintiff may file a reply brief, based upon statutory deadlines.

            3.         The Court’s clerk shall provide notice.