Judge Theresa M. Traber, Case 22STCV12720 2022-08-03 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV12720, Date: 2022-08-03 Tentative Ruling

Case Number: 22STCV12720 Hearing Date: August 3, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: August 3, 2022 TRIAL DATE: NOT SET

CASE: Debra Ellis-Porche v. Interdent Inc. et al.

CASE NO.: 22STCV12720

MOTION TO WITHDRAW FROM ARBITRATION

MOVING PARTY: Plaintiff Debra Ellis-Porche

RESPONDING PARTY(S): Defendants Interdent, Inc. and Interdent Service Corporation.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a wrongful termination and employment discrimination action that was filed on April 15, 2022. Plaintiff alleges that she was discriminated against on the basis of her race and disability.

Plaintiff moves to withdraw from binding arbitration.

TENTATIVE RULING:

Plaintiff’s Motion to Withdraw from Arbitration is DENIED.

DISCUSSION:

Plaintiff Debra Ellis-Porche moves to withdraw from binding arbitration proceedings.

Analysis

Under Code of Civil Procedure section 1281.97, subdivision (a), where an employment arbitration requires the drafting party to pay certain fees and costs before the arbitration can proceed, and 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 the right to compel arbitration. (See also Code Civ. Proc. § 1281.98 [addressing a business’s failure to pay fees during an arbitration proceeding.]) If the drafting party materially breaches the agreement by not paying the requisite fees, the employee may then withdraw the claim from arbitration and proceed in court. (Code Civ. Proc., § 1281.97, subd. (b)(l); see also Code Civ. Proc. § 1281.98 subd.(b) [providing the same remedy during the pendency of arbitration.]) 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 because of the material breach. (Code Civ. Proc. § 1281.99(a).)

¿ “[A]n arbitration has a life of its own outside the judicial system.”¿ (Byerly¿v. Sale¿(1988) 204 Cal.App.3d 1312, 1316.)¿ “The trial court may not step into a case submitted to arbitration and tell the arbitrator what to do and when to do it: it may not resolve procedural questions, order discovery, determine the status of claims before the arbitrator or set the case for trial because of a party's alleged dilatory conduct. It is for the arbitrator, and not the court, to resolve such questions.”¿ (Titan/Value Equities Group, Inc. v. Superior Court¿(1994) 29 Cal.App.4th 482, 489.)¿¿Case law is clear that, when a matter is taken to arbitration, “the arbitrator takes over,” and is responsible for resolving¿all¿questions needed to determine the controversy.¿¿(MKJA, Inc. v. 123 Fit Franchising, LLC¿(2011) 191 Cal.App.4th 643, 652-653 [ruling on a matter which the court ordered sent to arbitration].)¿¿However, a¿judge has discretion to act on a matter sent to arbitration only when such act¿would not frustrate the arbitrator’s jurisdiction.¿

The court in Cinel¿v. Christopher¿found that the trial court regained jurisdiction and properly lifted a stay after the arbitrator “terminated” the arbitration based on the lack of payment of the fee deposits.¿ (Cinel, supra.,¿203 Cal.App.4th at 767.) In contrast, the court in¿MKJA, Inc.¿found it improper to lift a stay and exercise jurisdiction even though¿arbitration had not proceeded due to one party’s inability¿to pay, as the arbitration was pending.¿(MKJA, Inc.,¿supra., 191 Cal.App.4th at¿pp. 652–653.)

Here, Plaintiff initiated arbitration before the American Arbitration Association on May 22, 2020, pursuant to the Mutual Arbitration Agreement entered into by the Parties on July 23, 2018, as a requirement of Plaintiff’s employment. (Declaration of Andrew Doriott ISO Mot. ¶ 2, Exh. 1.) On March 25, 2022, AAA notified the parties that the deposit for services was past due as of February 24, 2022. (Id. ¶ 3.) Plaintiff requested that AAA produce all billing invoices, and AAA provided a statement of the history of invoices and payments to all parties. (Id. ¶¶ 4-5, Exh. 2.) The invoices show that Defendants had paid the February 24, 2022 invoice on March 28, 2022. (Id. Exh. 2.) The history also showed that Defendants made payment for a September 15, 2020 invoice on October 20, 2020. (Id.¶ 6, Exh. 2.) The arbitration remains pending. (Id. ¶ 8.)

Plaintiff contends that sections 1281.97 and 1281.98 do not place the matter within either judicial or arbitral discretion, and thus Plaintiff should be permitted to withdraw from arbitration. However, Plaintiff has cited no precedent in support of this interpretation, and, indeed, case law on whether a court may retake jurisdiction after a matter has been ordered to binding arbitration suggests that the Court may not take jurisdiction for the first time if the matter is pending before an arbitrator. Even accepting Plaintiff’s argument in reply that these statutes are exempt from the U.S. Supreme Court’s holding in Viking River Cruises v. Moriana that the Federal Arbitration Act pre-empts rules “that apply only to arbitration or derive their meaning from the fact an agreement to arbitrate is at issue,” (Viking River Cruises v. Moriana (2022) 142 S.Ct 1906 at 11), an issue the Court does not reach in this decision, controlling precedent under these statutes would still not authorize the requested relief in this instance. The Court does not have the discretion to interfere with the arbitration in this matter where the arbitrator has not relinquished jurisdiction.

CONCLUSION:

Accordingly, Plaintiff’s Motion to Withdraw from Arbitration is DENIED

Moving Party to give notice.

IT IS SO ORDERED.

Dated: August 3, 2022 ___________________________________

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.