Judge: Theresa M. Traber, Case: 22STCV05062, Date: 2023-12-04 Tentative Ruling

Case Number: 22STCV05062    Hearing Date: December 4, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     December 4, 2023                  TRIAL DATE: NOT SET

CASE:                         Jesus Nunez v. The Micro Connection Enterprises, Inc., et al.

CASE NO.:                 22STCV05062           

MOTION TO TERMINATE ARBITRATION AND ENTER DEFAULT

MOVING PARTY:               Plaintiff Jesus Nunez

RESPONDING PARTY(S): Defendants The Micro Connection Enterprises, Inc.; Personal Care Performance Group, Inc., and Cross-Defendants Westwood Laboratories, LLC, and Araceli Villalobos.

CASE HISTORY:

·         02/09/22: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action under the Private Attorneys General Act of 2004, filed on February 9, 2022, alleging multiple wage and hour violations. Plaintiff asserts Defendants regularly failed to pay wages owed, failed to provide meal and rest periods, and failed to provide accurate wage statements, and terminated Plaintiff in retaliation for complaining about these failures.

Plaintiff moves to terminate arbitration pursuant to Code of Civil Procedure section 1281.97 and enter default against Defendants.

TENTATIVE RULING:

            Plaintiff moves to terminate the arbitration ordered by the Court on February 22, 2023 and enter default against Defendants.

Code of Civil Procedure section 1281.97 provides:

(1) In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration under Section 1281.2.

(2) After an employee or consumer meets the filing requirements necessary to initiate an arbitration, the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration. The invoice shall be provided in its entirety, shall state the full amount owed and the date that payment is due, and shall be sent to all parties by the same means on the same day. To avoid delay, absent an express provision in the arbitration agreement stating the number of days in which the parties to the arbitration must pay any required fees or costs, the arbitration provider shall issue all invoices to the parties as due upon receipt.

(Code Civ. Proc. § 1281.97(a).) If the drafting party is in default under subdivision (a), the employee may withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction. (Code Civ. Proc. § 1281.97(b).) The thirty-day period to respond begins to run upon receipt of the invoice by the drafting party unless the parties expressly agree to the contrary. (Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 774.) A drafting party must strictly comply with the statute to avoid waiver of the right to arbitration. (Id. at 775.)  

            Plaintiff contends Defendants violated the requirements of section 1281.97 and breached the arbitration agreement by failing to select an arbitrator pursuant to its terms. Defendants state they are amenable to returning this matter to litigation, and only oppose the motion with respect to Plaintiff’s demand that the Court enter default against Micro Connection Enterprises and Personal Care Performance Group. Plaintiff cites no authority authorizing the entry of default against any party as a remedy or sanction for violation of section 1281.97. The Court therefore declines to impose such a drastic punishment, especially where, as here, Micro Connection and PCPG aver that they are prepared to file their answer forthwith.

            Plaintiff also requests leave of court to seek attorney’s fees and costs by way of a noticed motion pursuant to Code of Civil Procedure section 1281.98(c). As such a motion is expressly authorized by statute, leave of court is not required. If Plaintiff wishes to pursue attorney’s fees and costs pursuant to that section, Plaintiff is at liberty to serve and file that motion per code.

            Accordingly, Plaintiff’s Motion to Terminate Arbitration is GRANTED.

            Plaintiff’s request to enter default against Defendants The Micro Connection Enterprises and Personal Care Performance Group is DENIED. Defendants The micro Connection Enterprises and Personal Care Performance Group are ordered to file and serve their answer within 5 days of this order.

            Moving party to give notice.

IT IS SO ORDERED.

Dated: December 4, 2023                               ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.