Judge: Theresa M. Traber, Case: 22STCV19114, Date: 2023-04-05 Tentative Ruling

Case Number: 22STCV19114    Hearing Date: April 5, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 5, 2023              TRIAL DATE: NOT SET

CASE:                         PacificSky Solar, LLC v. Kenneth Boisvert

CASE NO.:                 22STCV19114           

MOTION TO COMPEL ARBITRATION

MOVING PARTY:               Defendant Kenneth Boisvert

RESPONDING PARTY(S): Plaintiff PacificSky Solar, LLC

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a breach of contract action filed on June 10, 2022. Plaintiff alleges that Defendant failed to pay for Plaintiff’s installation of solar panels on his property.

Defendant moves to compel this matter to arbitration.

TENTATIVE RULING:

Defendant’s Motion to Compel Arbitration is DENIED.

DISCUSSION:

            Defendant moves to compel this matter to binding arbitration.

Missing Proof of Service

            Defendant has not provided the Court with proof that this motion was served on Plaintiff pursuant to Code of Civil Procedure section 1005(b). However, as Plaintiff has opposed the motion without objecting on this basis, the Court will overlook the missing proof of service and address the motion on its merits.

Existence of Arbitration Agreement

Under California law, arbitration agreements are valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. (Blake v. Ecker (2001) 93 Cal.App.4th 728, 741 (overruled on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094).) A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 356-57.)

Defendant contends that the parties “agreed to arbitrate any controversy resulting from the work of Plaintiff.” However, Defendant’s sole piece of supporting evidence is a poorly-photocopied document entitled “contract agreement” which is provided without authentication. The Court observes, however, that this document appears to be identical to the second page of Plaintiff’s Exhibit A attached to the Complaint. Defendant bases his position on language in the “Contract Agreement” that states, in block capital letters:

NOTICE: BY INITIALING IN THE SPACE BELAW [sic], YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL.

(Complaint Exh. A. p. 2.)  Defendant has not produced in his moving papers any “Arbitration of Disputes” provision, as identified by the contract agreement, nor is there any such provision in any of the exhibits attached to the Complaint. The Court can hardly conclude that “the arbitration clause herein is not ambiguous,” as Defendant contends in his one-page memorandum of points and authorities, when there is no evidence establishing that a valid arbitration clause exists with respect to the claims asserted by Plaintiff in this action, let alone that Plaintiff agreed to arbitrate those claims.  Defendant has failed to meet his burden to establish that a governing agreement to arbitrate exists between the parties. Defendant is therefore not entitled to compel this matter to binding arbitration.

CONCLUSION:

            Accordingly, Defendant’s Motion to Compel Arbitration is DENIED.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated:  April 5, 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.