Judge Theresa M. Traber, Case Number: 23STCP04385, Date: 2024-04-22 Tentative Ruling

Judge: Theresa M. Traber, Case: 23STCP04385, Date: 2024-04-22 Tentative Ruling

Case Number: 23STCP04385 Hearing Date: April 22, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 22, 2024 TRIAL DATE: N/A

CASE: United Firefighters of Los Angeles City, IAFF Local 112 v. City of Los Angeles

CASE NO.: 23STCP04385

PETITION TO COMPEL ARBITRATION

MOVING PARTY: Petitioner United Firefighters of Los Angeles City, IAFF Local 112

RESPONDING PARTY(S): Respondent City of Los Angeles

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a petition to compel arbitration that was filed on December 4, 2023. Petitioner seeks to compel arbitration of a grievance involving a firefighter whose probational promotion was revoked pursuant to a memorandum of understanding between the parties.

TENTATIVE RULING:

The Petition to Compel Arbitration is GRANTED.

DISCUSSION:

Petitioner seeks to compel arbitration of a grievance pursuant to a Memorandum of Understanding between the parties.

Timeliness of Response

Code of Civil Procedure section 1290.6 requires that a response to a petition to arbitrate brought under section 1290 must be served within 10 days of service of the petition, unless the petition is served on a party outside the State of California pursuant to section 1290.4 subdivision (b)(2). (Code Civ. Proc. § 1290.6.) Here, the Petition was served by personal service on the Respondent in Los Angeles on December 5, 2023. (Proof of Service of Summons.) The response to this petition was therefore due ten days later, on December 15, 2023. However, Respondent’s opposition was served and filed on January 4, 2024, well past the deadline. Under section 1290, “[t] he allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed.” (Code Civ. Proc. § 1290.) Thus, by failing to serve and file a timely response, the Court is within its authority to deem the allegations of the Petition admitted and order the matter to arbitration. In the interest of fully resolving this matter on its merits, however, the Court will consider Respondent’s opposition in ruling on the Petition.

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 persuasion to establish 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.)

Applying the burden of production, rather than persuasion, courts have articulated a three-step burden-shifting process:

First, the moving party bears the burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” [citation] The moving party “can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party’s] signature.” [citation] Alternatively, the moving party can meet its burden by setting forth the agreement’s provisions in the motion. [citations] For this step, “it is not necessary to follow the normal procedures of document authentication.” [citation] If the moving party meets its initial prima facie burden and the opposing party does not dispute the existence of the arbitration agreement, then nothing more is required for the moving party to meet its burden of persuasion.

If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. [citation] The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement. [citations]

If the opposing party meets its burden of producing evidence, then in the third step, the moving party must establish with admissible evidence a valid arbitration agreement between the parties. The burden of proving the agreement by a preponderance of the evidence remains with the moving party. [citation].

(Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165-66.) Here, Petitioner sets forth the relevant portions of the Memorandum of Understanding pertaining to grievance resolution in the Petition. (Petition ¶¶ 5-8.) Although Respondent challenges the applicability of the Memorandum of Understanding to this grievance, Respondent freely admits that the Memorandum exists and that it provides for arbitration. (Opposition p.2:6-7.)

The Court therefore finds that there is an agreement to arbitrate between the parties.

Applicability of the Federal Arbitration Act

Neither party contends that the Memorandum of Understanding is governed by the Federal Arbitration Act. The Court therefore finds that the Memorandum is governed by California law.

Scope of Arbitration Agreement

“The scope of arbitration is a matter of agreement between the parties.” (See, e.g., Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323.) “A party can be compelled to arbitrate only those issues it has agreed to arbitrate.” (Perez v. U-Haul Co. of California (2016) 3 Cal.App.5th 408, 419.)

Petitioner argues that the Memorandum of Understanding allows for the filing of grievances regarding “the MOU, the Manual of Operations, department rules and regulations, bulletins, personnel practices, other rules, conditions of employment, or working conditions.” (Complaint ¶ 6.) The grievance procedure contains five steps for escalation: (1) an informal conference between the grievant and immediate supervisor; (2) appeal in writing to the Chief Officers; (3) appeal to the Fire Chief; (4) optional mediation, and (5) arbitration before a mutually appointed neutral arbitrator. (¶ 7.) If the grievance is not resolved before the final step, “the grievant and the Union jointly may file a written request for arbitration with the Employee Relations Board with a copy to the Fire Chief or his/her designee.” (¶ 8.) Petitioner contends that the grievant was notified on January 12, 2023 that his promotional probation was terminated, and thereafter commenced the grievance process pursuant to Article 2.1 Section III of the Memorandum of Understanding. (Complaint ¶¶ 9-13.) After exhausting the previous steps, Petitioner and the grievant filed a request for arbitration on June 8, 2023. (¶ 14.) The City Respondent did not respond to the request for arbitration. (Complaint ¶¶ 18, 20, 22.)

In response, the City argues that the grievance provisions of the Memorandum of Understanding do not apply to the dispute at issue here because it is encompassed within an exclusion in the Memorandum.

The California Supreme Court describes the procedure for analyzing the terms of a contract thusly:

Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. (Civ. Code, § 1636.) Such intent is to be inferred, if possible, solely from the written provisions of the contract. (Id., § 1639.) The "clear and explicit" meaning of these provisions, interpreted in their "ordinary and popular sense," unless "used by the parties in a technical sense or a special meaning is given to them by usage" (id., § 1644), controls judicial interpretation.(Id., § 1638.) [1] Thus, if the meaning a lay person would ascribe to contract language is not ambiguous, we apply that meaning. [citations].

If there is ambiguity, however, it is resolved by interpreting the ambiguous provisions in the sense the promisor . . . believed the promisee understood them at the time of formation. (Civ. Code, § 1649.) If application of this rule does not eliminate the ambiguity, ambiguous language is construed against the party who caused the uncertainty to exist. (Id., § 1654.)

(AIU Ins. Co. v. Superior Court (FMC Corporation) (1990) 51 Cal.3d 807, 821-22.)

The Court begins, therefore, with the written provisions of the Memorandum at issue. Article 2.1, section 1 of the Memorandum of Understanding states:

A grievance is defined as any dispute concerning the interpretation or application of this MOU, the Manual of Operations, departmental rules and regulations, bulletins, personnel practices, other rules, conditions of employment, or working conditions. The following items are not grievable:

1. An impasse in meeting and conferring upon the terms of a proposed MOU.

2. Probationary employee terminations.

(Respondent’s Exh. E [MOU] Article 2.1 § 1.) The Memorandum does not define “probationary employee terminations,” but Respondent contends that the grievant, whose probational promotion to Captain I from Engineer was revoked, is subject to this exclusion. (See Declaration of Eric Talamantes ISO Opp. ¶ 2.) A revocation of a promotion, otherwise known as a demotion, is not a “termination” in the “ordinary and popular sense,” and Respondent cites to no provision of the Memorandum that would suggest an alternative interpretation. Respondent’s citation to the Civil Service Rules definition of “Probationary Employment Period” is entirely irrelevant to the interpretation of a contract. Moreover, the authorities relied upon by Respondent in support of its position are, as argued by Petitioner, inapposite. Los Angeles Police Protective League v. City of Loas Angeles found that a dispute regarding an employee’s transfer to a new police station was not arbitrable because the Memorandum of Understanding expressly provided that “disputes concerning transfers” were excluded. (Los Angeles Police Protective League v. City of Los Angeles (2001) 94 Cal.App.4th 77, 81-82.) Similarly, Fugitt v. City of Placentia, although apparently similar on a superficial reading in that it concerned an exception for probationary employment terminations in an arbitration provision, concerned employees whose relationship with their employer was actually severed. (Fugitt v. City of Placentia (1977) 70 Cal.App.3d 868, 871.)

The Court is not persuaded by Respondent’s arguments. The interpretation offered by Respondent is contrary to the plain language of the Memorandum of Understanding. The dispute at issue falls within the definition of a “grievance” under the Memorandum of Understanding, and Petitioner is therefore entitled to pursue this matter in binding arbitration.

CONCLUSION:

Accordingly, the Petition to Compel Arbitration is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: April 22, 2024 ___________________________________

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.