Judge: Teresa A. Beaudet, Case: 21STCV15469, Date: 2023-03-20 Tentative Ruling

Case Number: 21STCV15469    Hearing Date: March 20, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Leart, Inc. (“Plaintiff”) filed this action on April 23, 2021 against Defendants The Gemological Institute of America, Inc. (“GIA”) and Those Certain Underwriters at Lloyd’s, London (“Lloyd’s”). The operative First Amended Complaint was filed on December 23, 2021, and asserts causes of action for (1) res ipsa loquitur, (2) negligence, (3) fraudulent inducement, (4) breach of insurance contract (failure to provide insurance), (5) breach of warranty of fitness of purpose, (6) trespass to chattel, (7) breach of insurance contract, and (8) breach of the implied covenant of good faith.[1]

On August 29, 2022, the Court issued an Order granting GIA’s motion to compel arbitration as to Plaintiff’s claims against GIA. The Court’s August 29, 2022 minute order provides, inter alia, “[t]he Court hereby stays the case in its entirety. (except as to the arbitration motion by Defendant Lloyd’s currently set on 03/01/23 but advanced to 10/25/22…pending completion of arbitration of Plaintiff’s arbitrable claims against GIA.”

Plaintiff now moves for an order vacating and/or setting aside the Court’s August 29, 2022 Order granting GIA’s motion to compel arbitration. GIA opposes.

            Discussion

            In the motion, Plaintiff counsel indicates that as of the date of the instant motion, he has not received any demand for arbitration, nor has GIA’s counsel “done anything to attempt to commence any arbitration that this Court ordered on August 29, 2022 after his office obtain [sic] an order.” (Kar Decl., ¶ 2.)[2]

Plaintiff argues that “trial courts may vacate prior orders to compel arbitration if the party that sought the order did nothing in over six months and the party that resisted the order didn’t volunteer.” (Mot. at p. 8:14-16.) In support of this assertion, Plaintiff cites to St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196, where the Court of Appeal noted that “[i]n determining waiver, a court can consider (1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced the opposing party.” (Internal quotations omitted.)  

            But the California Supreme Court in St. Agnes found that “the only reasonable inference to be drawn from the undisputed facts here is that [defendant] did not waive its contractual right to arbitration and that therefore its petition to compel arbitration should have been granted. We affirm the judgment of the Court of Appeal.” (St. Agnes Medical Center v. PacifiCare of California, supra, 31 Cal.4th at p. 1192.) Here, the Court already granted GIA’s motion to compel arbitration, and Plaintiff is asserting that GIA has delayed in commencing the arbitration. Thus, the Court does not see how cases concerning waiver of the right to compel arbitration are relevant to the instant motion.  

            Plaintiff also indicates in the notice of motion that “[t]he motion is made pursuant to C.C.P. §§ 473, 473.5, 475.” (Mot. at p. 2:1.) However, the memorandum of points and authorities in support of the motion does not contain any argument as to why such provisions purportedly apply here.

            The Court does not find that Plaintiff’s motion sets forth any legal authority demonstrating grounds to vacate and/or set aside the Court’s August 29, 2022 Order.

            Lastly, in the opposition, GIA indicates that it “respectfully submits that filing a motion in derogation of this Court’s stay that is legally unsupported and misrepresents the facts warrants the issuance of an order to show cause re: contempt and that such an order could also address, in addition to burdening this Court and consuming precious and scare legal resources, the burden placed upon GIA and the fees incurred in having to oppose Plaintiff’s frivolous motion.” (Opp’n at p. 8:14-19.) The Court does not find that GIA has demonstrated that Plaintiff is in contempt of any order by filing the instant motion, and thus declines to issue an order to show cause re: contempt.   

Conclusion

For the foregoing reasons, Plaintiff’s motion is denied.

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GIA is ordered to give notice of this Orde.r.

DATED:  March 20, 2023                             

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Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court