Judge: Stephen I. Goorvitch, Case: 22STCV27786, Date: 2023-02-14 Tentative Ruling

Case Number: 22STCV27786    Hearing Date: February 14, 2023    Dept: 39

Joann A. Verduzco v. Impact Realty, Inc.

Case No. 22STCV27786

Motion to Compel Arbitration

            Plaintiff Joann A. Verduzco (“Plaintiff”) filed this breach of contract action against Defendant Impact Realty (“Defendant”).  Plaintiff seeks to recover $46,409.40 in unpaid commissions, per her contract.  Now, Defendant moves to compel arbitration.

            The moving party on a motion to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.  The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.”  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842, internal citations omitted.)

The parties’ agreement states that they will arbitrate “[a]ll disputes or claims between . . . [Plaintiff] and [Defendant], arising from or connected in any way with this Agreement, which cannot be adjusted between the parties involved . . . .”  (Declaration of Tawfiz Bishara, Exhibit A.)  Plaintiff does not dispute the authenticity of this agreement but argues that Defendant has waived the right to pursue arbitration in this case.  The arbitration agreement specifies that the Federal Arbitration Act applies.  A choice of law provision in an arbitration agreement is enforceable.  (See Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 538.)   Under the Federal Arbitration Act, the arbitrator must decide the issue of waiver.  (See Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 962-964.)  In the alternative, the Court finds that there has been no waiver in this case.  Plaintiff relies on email correspondence approximately four years before this action was filed, and the correspondence merely establishes that Defendant merely declined the invitation for mediation/arbitration offered by the Citrus Valley Association of Realtors.  There is no record that Plaintiff invoked the arbitration clause under the parties’ agreement and that Defendant declined to proceed. 

Based upon the foregoing, the Court orders as follows:

1.         Defendant’s motion to compel arbitration is granted.

2.         The Court takes the case management conference off-calendar.

3.         The Court issues an Order to Show Cause why this case should not be dismissed following arbitration for September 25, 2023, at 8:30 a.m.  The Court provides notice that if Plaintiff’s counsel does not appear, absent good cause, the Court will assume this matter has been resolved by way of arbitration or settlement and will dismiss this case with prejudice.

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