Judge: Steven A. Ellis, Case: BC724498, Date: 2023-08-09 Tentative Ruling
Case Number: BC724498 Hearing Date: August 9, 2023 Dept: 29
TENTATIVE
Counsel may
not submit on the tentative. The Court wishes to discuss the status of this
matter with all counsel.
The Court
GRANTS IN PART and DENIES IN PART Plaintiff’s motion to compel arbitration and
appoint an arbitrator. The Court GRANTS the motion to appoint the Hon. Robert Mos, Ret. as the arbitrator. If
he is unable to act as arbitrator, then the Hon. Robert J. Polis, Ret. is
designated as the arbitrator. The Court otherwise DENIES the motion.
The Court DENIES Plaintiff’s
motion to strike the answer of Defendant Jaesco.
The Court SETS an Order to Show
Cause re the Status of Jaesco’s Legal Representation for a date in
approximately 30 days.
The Court, on its own motion, ALSO SETS a Trial Setting Conference on the
same date and time.
Background
On October 5, 2018, Plaintiff Kimberlin Romero aka
Kimberlin Dayana Romero Riveras (“Plaintiff”) filed a complaint against Defendants
Jaesco Manufacturing & Maintenance (“Jaesco”), Pegasus Foods, Baron HR
(“Baron”) and Does 1 through 100, alleging causes of action for: (1)
negligence; (2) strict products liability; (3) negligent products liability;
and (4) breach of express and implied warranties.
On July 12, 2019, Defendant Jaesco filed an answer and
cross-complaint against Pegasus Foods, Baron HR, and Roes 1 through 10 for
comparative equitable indemnity.
On March 5, 2021, Baron filed an answer.
On July 8, 2021, the motion of counsel for Jaesco to be
relieved as counsel was granted.
On April 4, 2022, Plaintiff filed an amendment to the
complaint naming Astrochef, LLC dba Pegasus Foods, Inc. as the true name of the
defendant incorrectly named as Pegasus Foods, Inc.
On April 8, 2022, the Court signed an order, based on
the stipulation of Plaintiff and Baron, for binding arbitration of Plaintiff’s
claims against Baron.
On July 11, 2023, Plaintiff
filed the two motions currently before the Court: (1) a motion to compel
arbitration and for appointment of arbitrator in connection with her claims
against Baron; and (2) a motion to strike the answer of Jaesco.
No opposition was filed to
either motion.
Motion
to Compel Arbitration and Appoint Arbitrator
On March 8,
2022, Plaintiff and Baron signed a stipulation and proposed order to submit Plaintiff’s
claims against Baron to binding arbitration. The Court signed the order on
April 8, 2022. Accordingly, the Court has already ordered (among other things) that
Plaintiff’s claims against Baron must be resolved through binding arbitration; that
the arbitration will be before a neutral arbitrator affiliated with Judicate
West; and that Plaintiff “shall initiate arbitration proceedings by filing a
Demand for Arbitration with Judicate West within 14 days of the Court signing
the attached Proposed Order.”
Plaintiff
now files a motion seeking an order: (a) compelling arbitration; (b) appointing
an arbitrator; and (c) requiring that the arbitration begin by October 5, 2023.
As to the
first request, the Court has already made this order and directed Plaintiff (based
on the stipulation of the parties) to file a Demand for Arbitration. It appears
that Plaintiff has not done so, and it is unclear why.
As to the second
request, Plaintiff has presented evidence of her effort to work with Baron
regarding the selection of an arbitrator, but Baron has not responded. (Graff
Decl., Exh. 2.) Given the lapse of time,
the Court will grant this request and appoint an arbitrator.
Plaintiff
has proposed the following potential arbitrators from Judicate West:
1. Gerald Agnew, Esq.
2. William J. Caplan, Esq.
3. Hon. Robert Mos, Ret.
4. Hon. Robert J. Polis, Ret.
The Court notes that the
arbitration agreement provides that in the event of a disagreement regarding
the selection of the arbitrator, the arbitrator must be a retired judge with
Judicate West. (Graff Decl., Exh. 2, p. 10.) Accordingly, the Court designates
the Hon. Robert Mos, Ret. as the arbitrator for this matter. If he is unable to
act as arbitrator, then the Hon. Robert J. Polis, Ret. is designated as the
arbitrator.
As to the third request,
Plaintiff is apparently concerned about the five-year dismissal statute. (Code Civ.
Proc., § 583.310.) Emergency Rule 10(a) promulgated by the Judicial Council of
California during the COVID-19 Pandemic provides that the five-year dismissal
statute is extended by six months for actions filed on or before April 6, 2020,
which would apply to this case. (Emergency Rule 10(a) [“Notwithstanding
any other law, including Code of Civil Procedure section 583.310, 31 for all
civil actions filed on or before April 6, 2020, the time in which to bring the
action to trial is extended by six months for a total time of five years and
six months.”]) Accordingly, Plaintiff’s request is denied at this time without
prejudice.
Motion
to Strike Answer
Plaintiff seeks to strike Jaesco’s answer on the ground that it is not
currently represented by counsel. While it is true that a corporation generally
must be represented by an attorney in legal proceedings (Himmel v. City
Council of Burlingame (1959) 169 Cal.App.2d 97, 100), that does not
necessarily mean Jaesco’s answer must be stricken (CLD Construction, Inc. v.
City of San Ramon (2004) 120 Cal.App.4th 1141, 1149), especially
considering that Jaesco was represented by counsel at the time it filed its
answer.
Rather than strike the answer, the Court will set an Order to Show Cause
regarding the status of Jaesco’s legal representation. A corporation’s failure
to retain legal representation is a remediable defect and the corporation
should be given a reasonable amount of time to locate new counsel. (CLD
Construction, supra, 120 Cal.App.4th at 1148-1149.)
Conclusion
With respect
to Plaintiff’s motion to compel arbitration and appoint an arbitrator, the
Court GRANTS the motion in part, and designates
the Hon. Robert Mos, Ret. as the arbitrator for this matter. If he is unable to
act as arbitrator, then the Hon. Robert J. Polis, Ret. is designated as the
arbitrator. The Court otherwise DENIES the motion.
With respect to Plaintiff’s
motion to strike the answer of Defendant Jaesco, the Court DENIES the motion.
The Court SETS an Order to Show
Cause re the Status of Jaesco’s Legal Representation for a date in
approximately 30 days.
The Court, on its own motion, ALSO SETS a Trial Setting Conference on the
same date and time.
Plaintiff is ordered to give notice.