Judge: Upinder S. Kalra, Case: 21STCV36316, Date: 2022-09-21 Tentative Ruling

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Case Number: 21STCV36316    Hearing Date: September 21, 2022    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   September 21, 2022                                       

CASE NAME:            Jan Loving v. Stage 29 Productions, LLC

CASE NO.:                21STCV36316

DEFENDANT’S MOTION TO COMPEL ARBITRATION

MOVING PARTY: Defendant Stage 29 Productions, LLC

RESPONDING PARTY(S): Plaintiff Jan Loving

REQUESTED RELIEF:

1.      An order compelling Plaintiff to arbitrate the claims

2.      An order staying the proceedings

TENTATIVE RULING:

1.      Motion to Compel Arbitration is GRANTED.

2.      Motion to Stay the Proceedings is GRANTED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On October 1, 2021, Plaintiff Jan Loving (“Plaintiff”) filed a complaint against Defendant Stage 29 Productions, LLC (“Defendant.”) The complaint alleges three causes of action (1) Retaliation, Cal. Labor Code § 1102.5, (2) Retaliation, Cal. Labor Code § 6310, and (3) Wrongful Termination in Violation of Public Policy. Plaintiff alleges that while working for Defendant as its controller he made various complaints, such as complaining about lack of handicap spaces, the firing of a female employee based on her attractiveness and lack of air condition. Later, Plaintiff’s meal breaks and rest periods were designated. Plaintiff was later filed and alleges it is based on the various above complaints.

On November 9, 2021, Defendant filed an Answer.

On July 15, 2022, Defendant filed the current Motion to Compel Arbitration. Plaintiff’s Opposition was filed on September 8, 2022. Defendant’s reply was filed on September 14, 2022.

LEGAL STANDARD

Under CCP §1285, “any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award.  The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”  Under CCP §1285.4, “A petition under this chapter shall: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement. (b) Set forth names of the arbitrators. (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”   

“[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . .”  Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284.  “In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.”  Weeks v. Crow (1980) 113 Cal.App.3d 350, 353.  “To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.”  Titolo v. Cano (2007) 157 Cal.App.4th 310, 316.  “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.”  California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205.   

“[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.”  Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284. 

ANALYSIS:

Defendant moves to compel Plaintiff to arbitration.

In determining the enforceability of an arbitration agreement, the court considers “two ‘gateway issues’ of arbitrability: (1) whether there was an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue.”  (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961 (Omar).)   

A.    Agreement Between Parties:

“Arbitration is a product of contract.  Parties are not required to arbitrate their disagreements unless they have agreed to do so.  [Citation.]  A contract to arbitrate will not be inferred absent a ‘clear agreement.’  [Citation.]  When determining whether a valid contract to arbitrate exists, we apply ordinary state law principles that govern contract formation.  [Citation.]  In California, a ‘clear agreement’ to arbitrate may be either express or implied in fact.  [Citation.]”  (Davis v. Nordstrom, Inc. (9th Cir. 2014) 755 F.3d 1089, 1092-1093 (Davis).)   

In support, the Declaration of Hazel Poei provides the arbitration agreement. (Poei Dec., Ex. A.) The agreement is signed by Plaintiff Loving and PPP&C., d/b/a as Robin McGraw Revelation (“PPP&C”). Once it is determined that a valid arbitration agreement exists, the burden shifts to the opposing party to “prove by a preponderance of the evidence any defense to the petition.” (Lacayo v. Catalina Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 257, review denied (Nov. 13, 2019)). Neither party disputes that: (1) a valid arbitration agreement exists between Plaintiff and PPP&C, (2) Plaintiff previously agreed to voluntarily arbitrate claims against PPP&C under this agreement, and (3) Defendant Stage 29 Productions, LLC is not a signatory to this agreement. Nonetheless, Defendant contends that they too can enforce the agreement entered into by Plaintiff and PPP&C  under a variety of theories such as equitable estoppel, agency, and third-party beneficiary and because it covers the same claims. (Poei Dec., Ex. A.)

a.      Equitable Estoppel

Under the theory of equitable estoppel, a nonsignatory may compel a party to arbitrate. “The doctrine applies where, for example, a signatory plaintiff sues a nonsignatory defendant for claims that are based on an underlying contract. In such instance, the plaintiff may be equitably estopped to deny the nonsignatory defendant's right to enforce an arbitration clause that is contained within the contract that the plaintiff has placed at issue. (Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 Cal.App.4th 1, 9). The doctrine of equitable estoppel, “a nonsignatory defendant may invoke an arbitration clause to compel a signatory plaintiff to arbitrate its claims when the causes of action against the nonsignatory are ‘intimately founded in and intertwined’ with the underlying contract obligations.’ ” (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th 1222, 1237).

The Court in JSM Tuscany stated, “a plaintiff who relies on the contractual terms in a claim against a nonsignatory may be precluded from repudiating the arbitration clause in the contract.” (JSM Tuscany, LLC, supra, 193 Cal.App.4th at p. 1237.) Plaintiff, PPP&C’s former comptroller, sought to enforce an arbitration agreement with PPP&C. The agreement includes provisions where both parties agreed to arbitrate disputes between Plaintiff and PPP&C and its agents. (Poei Dec., Ex. A.). The Complaint alleges that Defendant is an agent of PPP&C. (Complaint at ¶ 7.)  Defendant explains that it is a television production company that provided payroll services to PPP&C. (de Michele Dec. ¶¶ 2-3.) In his arbitration against PPP&C, Plaintiff alleges three claims of Retaliation under various California Labor Codes and one claim for Wrongful Termination Against Public Policy. (Poei Dec., Ex. A.). The complaint alleges three causes of action, two for Retaliation under the same Labor Code provisions and one for Wrongful Termination in Violation of Public Policy. involving claims for wrongful termination or retaliation. Thus, it cannot be reasonably disputed that Plaintiff’s claims are founded on the same employment contract for the same causes of action. “[I]f a plaintiff relies on the terms of an agreement to assert his or her claims against a nonsignatory defendant, the plaintiff may be equitably estopped from repudiating the arbitration clause of that very agreement. In other words, a signatory to an agreement with an arbitration clause cannot  ‘ “ ‘have it both ways’ ” ’; the signatory ‘cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration's applicability because the defendant is a non-signatory.’ ” (Goldman v. KPMG, LLP (2009) 173 Cal. App. 4th 209, 220.) As Defendant rightly points here, Plaintiff’s allegations raised in the complaint are similar if not the same to the allegations that are used in the arbitration against PPP&C. These allegations are based on various labor code violations based on Plaintiff’s employment with Defendant. In fact, it is the terms of the employment contract that Plaintiff seeks to enforce. Accordingly, the doctrine of equitable estoppel supports binding Plaintiff to the terms of the arbitration agreement against Defendant here.

b.      Waiver

Defendant contends that there was no waiver. Plaintiff asserts that Defendant’s continued delays in filing this motion, after having multiple hearing reservations, indicates that Defendant waived its right to compel arbitration.

“[T]he question of whether there has been waiver in the arbitration agreement context should be analyzed in much the same way as in any other contractual context. The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” (Aviation Data, Inc. v. American Express Travel Related Services Co., Inc. (2007) 152 Cal.App.4th 1522, 1537.) Although the complaint was filed in October 2021, and this current motion was filed in July 2022,  discussions about stipulating to arbitration began in November 2021. (Dec. Poei, ¶ 4, Dec. Patterson, Ex. A.) Moreover, prior Defense counsel initially reserved a motion date on January 25, 2022 and attempted mediation.  (Poei Decl., ¶ 9.) As such, the record does not establish the Defendant acted inconsistently with an intention to arbitrate. Accordingly, there was no waiver of Defendants’ right to arbitrate.

Conclusion:

            For the foregoing reasons, the Court decides the pending motion as follows:

            Motion to Compel Arbitration is GRANTED. Request for Stay of the Proceedings is GRANTED.

OSC re: status of Arbitration will occur in 180 days. Court declines Defendant’s request to retain jurisdiction to resolve any pending motions.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             September 21, 2022                _________________________________                                                                                                                  Upinder S. Kalra

                                                                                    Judge of the Superior Court