Judge: Theodore R. Howard, Case: 212-1271426, Date: 2023-07-20 Tentative Ruling

A)        Motion to Compel Arbitration

Plaintiff Sky Rider Equipment Company, Inc.’s (“Plaintiff”) Motion to Compel Arbitration (“Motion”) is GRANTED.

Pursuant to Civ. Proc. Code § 1281.2, the court finds Plaintiff had proved by a preponderance of the evidence that a valid arbitration agreement exists between Plaintiff and defendant Ali Zerehanzi dba Industrial Total Solutions (“Defendant”).  (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 (“Engalla”); Green Tree Financial Corp.-Alabama v. Randolph (2000) 531 U.S. 79, 91-92; Andranian Decl. ¶¶ 3-4, Ex. H; Duff Decl., Ex. A.)  The claims Plaintiff has made in this action are covered under the arbitration agreement (“Agreement”) that was produced.  The court also notes that Defendant has argued there is a valid arbitration agreement between the parties previously in multiple pleadings filed with the court.

Here, Plaintiff is not barred from arbitration simply for filing a lawsuit instead of first attempting to arbitrate. “Otherwise [e]very defendant—especially clearly liable defendants—could take advantage of a plaintiff who overlooked an arbitration agreement. None would file a petition to compel arbitration when they could obtain summary judgment and escape all liability.” (Johnson v. Siegel (2000) 84 Cal. App. 4th 1087, 1096, holding that the summary judgment method in Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal. 3d 888 (“Rounds”) was not as sweeping as the defendant had argued.) Further, “[a] party who enters into a pre-dispute agreement to arbitrate does not waive his right to resort to that forum merely because he first attempts to air his grievance in court.” (Kalai v. Gray (2003) 109 Cal. App. 4th 768, 771; See also, Doers v. Golden Gate Bridge etc. Dist. (1979), 23 Cal. 3d 180, 185 (“Doers”).) 

The letter that Defendant contends shows Plaintiff’s refusal to participate in arbitration previously specifically states the refusal was based upon an unsigned version of the Agreement.  Since that time, parties have apparently discovered and produced a copy of the Agreement signed by Defendant.  The Agreement also specifically apprises Defendant in large bold block letters directly above his signature that the Agreement requires him to arbitrate disputes that arise out of his employment.  (Duff Decl., Ex. A.)  The handbook that the Agreement was a part of also specifically states that the Agreement was intended to create a contract between the parties.  (Spegler Decl., Ex. 3.)  The Agreement is enforceable and Defendant has provided no valid arguments to the contrary.

The Motion is GRANTED.  Parties are ordered to proceed with arbitration pursuant to the terms of the Agreement.  An OSC Re: Status of Arbitration is set for 10/26/23.

Regarding Defendant’s request that the court order Plaintiff to pay the costs to cover the arbitration, the court notes the Agreement is silent as to which party pays those costs.  Defendant has produced no evidence that he is unable to afford to pay any portion of the arbitration costs.  The court at this time declines the request and will refer that issue to the arbitrator for their decision.

Defendant’s Objections to Motion

Sustained as to No. 1 (lacks foundation, calls for speculation).

Overruled as to Nos. 2-3 (Defendant previously produced the document to the court in support of his MSJ, authenticated it, and stated he signed it.  ROA #84; Andranian Decl. ¶¶ 3-4, Ex. H.)

B)        Motion to Strike

Defendant’s Motion to Strike (“MTS”) is DENIED.

Defendant moves to strike the Notice of Commencement of Arbitration and Request for Stay of Entire Action (“Notice” – ROA #78), which was filed by Plaintiff on 02/16/23.  Defendant moves to strike pursuant to Civ. Proc. Code §§ 435.5 and 436.  Those code sections pertain only to a demurrer, answer, complaint, or cross-complaint.  (Civ. Proc. Code § 435(a).)  The Notice is not one of the pleadings covered under the cited code sections.  The two cases cited by Defendant do not involve motions to strike, and Defendant has provided no legal statute or case providing the court with the power to strike the Notice.

The MTS is DENIED.

Plaintiff to give notice.