Judge Stephen P. Pfahler, Case Number: 21CHCV00093, Date: 2023-08-16 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 21CHCV00093, Date: 2023-08-16 Tentative Ruling

Case Number: 21CHCV00093 Hearing Date: October 30, 2023 Dept: F49

Dept. F-49

Date: 10-30-23

Case #21CHCV00093

Trial Date: Vacated

OSC RE: WRITE OF MANDATE

MOVING PARTY: Plaintiff, Nicole Auceda

RESPONDING PARTY: Unopposed/Defendant, Granada Hills Convalescent Hospital, Inc.

RELIEF REQUESTED

OSC re: Alternative Writ of Mandate and Order

SUMMARY OF ACTION

On February 9, 2021, Plaintiff Nicole Auceda filed a PAGA action for wage and hour violations. On May 11, 2021, the clerk entered a default. On October 22, 2021, the court granted the unopposed motion to vacate the default.

On October 18, 2022, the court granted Plaintiff leave to file a first amended complaint adding a PAGA action. The first amended complaint was filed on October 21, 2022. On November 22, 2022, the court granted the motion of Granada Hills Convalescent Hospital, Inc. to compel arbitration as to individual plaintiff Nicole Auceda only, and not in capacity as a representative of the (PAGA) action.

RULING: Granted/Removed from Arbitration.

On June 14, 2023, the court heard the motion of plaintiff Nicole Auceda, an individual, and not as a representative in the PAGA action, moved to vacate the order compelling arbitration brought by defendant Granada Hills Convalescent Hospital, Inc., due to the failure to pay required arbitration fees. Defendant in opposition denied any intentional avoidance of arbitration, and characterizes the parties’ positions for selection of an arbitrator as reflecting an impasse over costs. Defendant sought a lower cost alternative given its responsibility for all costs. The reply emphasized the options for arbitrator selection.

The court addressed the standard for relief, and found Plaintiff brought a proper motion to remove the action from arbitration under California law. The court ultimately declined to find an intentional violation of the law thereby allowing for a removal of the action, unless and until the parties engaged in a second round of arbitrator selection pursuant to California Code of Civil Procedure section 1281.6 and court policy.

The court ordered supplemental briefs from the parties regarding arbitration status 10-days before the subject hearing. Only Plaintiff filed a brief. Plaintiff represented a pending writ of mandate on the subject motion. On August 4, 2023, Plaintiff represented the writ was neither denied nor any order issued. Plaintiff otherwise represented participation in arbitration selection pursuant to ADR Services procedure. The progress point of the parties remained unclear, but Plaintiff estimated a conclusion time of “late 2024 or early 2025.” Plaintiff also referenced a recently issued case from the California Supreme Court regarding individuals’ standing to bring

PAGA claims. With the pending writ of mandate, including potential consideration of the latest California Supreme Court case on PAGA, plus the potentially pending arbitration, Plaintiff requested a continuance of the OSC. The court accepted the pending writ of mandate and alternatively pending arbitration with ADR, and continued the hearing to October 17, 2023, with an order for new supplemental briefs.

Plaintiff again submitted the only supplemental brief for the hearing. Plaintiff represented the Second Appellate District requested an opposition brief to the July 14, 2023, filed writ of mandate on September 13, 2023, but as of the October 6, 2023, (the date of the filed supplemental) brief, no opposition was filed as to the writ.

On October 12, 2023, the Court of Appeal filed an Order and Alternative Writ of Mandate, whereby the court ordered this court to “Vacate your June 14, 2023 order denying petitioner’s motion to terminate arbitration proceedings and lift the stay in Los Angeles County Superior Court case No. 21CHCV00093, entitled Nicole Auceda v. Granada Hills Convalescent Hospital, Inc., and issue a new and different order granting same and considering and ruling on petitioner’s request for sanctions...”

The court subsequently set an OSC in order to allow the parties an opportunity to respond to the writ of mandate. “[F]ollowing the issuance of any alternative writ, there is always the possibility that the trial court will comply with the writ, and that the appellate court will dismiss the petition as moot. (Citations.) ... [I]f a trial court is considering changing an interim order in response to an alternative writ, it must give the respective parties notice and an opportunity to be heard.” (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1250 (footnote 10).)

Because of the shortened briefing schedule three calendar days (two of which were weekend days), the court was unable to timely view any and all supplemental briefs prior to the tentative ruling publication cutoff. Regardless, based on this Alternative Writ, the Court reconsiders its order of June 14, 2023, denying petitioner’s motion to terminate arbitration proceedings. The court finds Granada Hills Convalescent Hospital, Inc. in breach of the arbitration agreement, thereby allowing Auceda to elect for withdrawal from arbitration. (Code Civ. Proc., §1281.98, et seq.; Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 773-776; see Gallo v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621, 641-643.) The court therefore reverses its ruling denying the motion to remove the case from arbitration, lifts the stay, and restores the action to the active civil calendar.

As part of the alternative writ, the court also awards sanctions. Plaintiff requested $6,610 in sanctions in the prior motion. The request was based on a represented six hours spent on the instant motion, plus an additional two hours for any reply at a billable rate of $575/hour by Evan Gaines, an additional three hours by Daniel Gaines at $650/hour, and finally $60 in filing costs.

“(a) The court shall impose a monetary sanction against a drafting party that materially breaches an arbitration agreement pursuant to subdivision (a) of Section 1281.97 or subdivision (a) of Section 1281.98, by ordering the drafting party to pay the reasonable expenses, including

attorney's fees and costs, incurred by the employee or consumer as a result of the material breach.

(b) In addition to the monetary sanction described in subdivision (a), the court may order any of the following sanctions against a drafting party that materially breaches an arbitration agreement pursuant to subdivision (a) of Section 1281.97 or subdivision (a) of Section 1281.98, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(1) An evidence sanction by an order prohibiting the drafting party from conducting discovery in the civil action.

(2) A terminating sanction by one of the following orders:

(A) An order striking out the pleadings or parts of the pleadings of the drafting party.

(B) An order rendering a judgment by default against the drafting party.

(3) A contempt sanction by an order treating the drafting party as in contempt of court.”

(Code Civ. Proc., § 1281.99.)

The court finds the represented hours excessive. The court awards $2,000 in sanctions joint and several against both Granada Hills Convalescent Hospital, Inc. and counsel of record, payable within 30 days.

The individual case of plaintiff Nicole Auceda and PAGA action is therefore restored to the active civil calendar. The court will reset the trial date or set a trial setting conference at the time of the hearing.

Plaintiff to give notice to all parties.