Judge: Virginia Keeny, Case: 24STCV16570, Date: 2025-02-26 Tentative Ruling
Case Number: 24STCV16570 Hearing Date: February 26, 2025 Dept: 45
MEHRDAD ESHAGHIAN V. LEVI LESCHES
MOTION TO COMPEL ARBITRATION
Date of Hearing: February 26, 2025 Trial Date: None set.
Department: 45 Case
No.: 24STCV16570
Moving
Party: Defendant Levi Lesches
dba Lesches Law
Responding
Party: Plaintiff Mehrdad Eshaghian
BACKGROUND
This action arises from the alleged breach of an agreement
for legal services. The Complaint alleges that, on June 22, 2022, Plaintiff
Mehrdad Eshaghian (“Plaintiff”) and Defendant Levi Lesches dba Lesches Law
(“Defendant”) entered into an Agreement for Legal Services which contained an
arbitration provision. (Compl., at
PLD-C-001(1); Exh. A.) Plaintiff alleges that Defendant collected legal fees
from Plaintiff and, with one month left in the trial, Defendant unexpectedly
and suddenly stopped working. (Compl., at PLD-C-001(1).) Plaintiff alleges that
Defendant missed many crucial pre-trial deadlines and appeared at trial totally
unprepared. (Id.) As a result, Plaintiff alleges that he had no choice
but to give up all his claims and settle the matter with very damaging terms. (Id.)
The crux of the complaint is that Defendant engaged in legal malpractice in
violation of the retainer agreement between the parties.
On July 2, 2024, Plaintiff filed a Complaint against
Defendant alleging a single cause of action for breach of contract.
On September 30, 2024, Defendant filed a Motion to Compel
Arbitration, which Plaintiff opposed and to which Defendant replied.
On October 16, 2024, Plaintiff filed and served a Notice of
Related Case, which indicates that the instant action is related to Eshagian
v. Szabo, LASC Case No. 24STCV20949 (the “Szabo Action”), which was filed
on August 16, 2024, and is pending in Department 73. (See 10/16/24 Notice of
Related Case.)
On October 29, 2024, the Court held a hearing on Defendant’s
motion to compel arbitration. (10/29/24 Minute Order at p. 1.) There were no
appearances by or for Defendant. (10/29/24 Minute Order at p. 1.) The Court
therefore took the motion off calendar. (10/29/24 Minute Order at p. 1.)
Plaintiff was ordered to give notice. (10/29/24 Minute Order at p. 1.)
On December 26, 2024, this action was reassigned from the
Honorable Mel Red Recana to the Honorable Virginia Keeny sitting in Department
45 at Stanley Mosk Courthouse effective January 3, 2025.
On January 29, 2025, Defendant filed and served the instant
Motion to Compel Arbitration. Defendant seeks an order compelling the claims
alleged in the Complaint to mandatory final and binding arbitration in
accordance with the parties’ agreement to arbitrate all claims. (Not. of Mot.
at p. 2:7-10.) Defendant also seeks an order staying this action pending the
completion of arbitration. (Not. of Mot. at p. 2:11-12.)
On February 11, 2025, Plaintiff filed an opposition to the
motion to compel arbitration.
On February 19, 2025, Plaintiff filed and served an amended
opposition to the motion to compel arbitration, which also includes a cross
motion to consolidate.
The Court notes that the amended opposition is untimely as
“[a]ll papers opposing a motion so noticed shall be filed with the court and a
copy served on each party at least nine court days . . . before the hearing.”
(Code Civ. Proc., § 1005, subd. (b).) Although filed and served late, the Court
will treat the amended opposition as the operative opposition. The Court
exercises its discretion and will consider the untimely amended opposition.
(Cal. Rules of Court, Rule 3.1300(d).)
As of February 21, 2025, no reply brief has been filed. Any
reply brief was required to have been filed and served at least five court days
prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)
The Court will address Defendant’s motion to compel
arbitration as well as Plaintiff’s cross motion to consolidate in this one
ruling.
[Tentative] Ruling
Defendant Levi Lesches dba Lesches Law’s Motion to Compel
Arbitration is GRANTED. The Court STAYS this action pending the completion of
arbitration pursuant to Code Civ. Proc. § 1281.4.
Plaintiff Mehrdad Eshaghian’s Cross Motion to Consolidate,
which was raised in the opposition, is DENIED.
LEGAL
STANDARD
Parties may be compelled to arbitrate a dispute upon the
court finding that: (1) there was a valid agreement to arbitrate between the
parties; and (2) said agreement covers the controversy or controversies in the
parties’ dispute. (Omar v. Ralphs Grocery Co.(2004)¿118 Cal.App.4th 955,
961.) 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.)¿
¿“If a court of competent jurisdiction . . . has ordered
arbitration of a controversy which is an issue involved in an action or
proceeding pending before a court of this State, the court in which such action
or proceeding is pending shall, upon motion of a party to such action or
proceeding, stay the action or proceeding until an arbitration is had in
accordance with the order to arbitrate or until such earlier time as the court
specifies.” (Code Civ. Proc. § 1281.4.)¿¿
MOTION
TO COMPEL ARBITRATION
Request
for Judicial Notice
Plaintiff
requests that the Court take judicial notice of the following documents: (1) Complaint
filed in Mehrdad Eshaghian v. Levi Lesches dba Lesches Law, LASC Case
No. 24STCV16570, which was filed on July 2, 2024 (RJN 1); (2) Complaint filed
in Mehrdad Eshaghian v. Lawrence J. Szabo, LASC Case No. 24STCV20949,
which was filed on August 16, 2024 (RJN 2); and (3) First Amended Complaint
filed in Mehrdad Eshaghian v. Lawrence J. Szabo, LASC Case No.
24STCV20949, which was filed on February 14, 2025.
The
Court GRANTS Plaintiff’s request for judicial notice and takes judicial notice
of the existence of the documents. (Joslin v. H.A.S. Ins. Brokerage (1986)
184 Cal.App.3d 369, 374.) However, the “court will not consider the truth of
the document’s contents unless it is an order, statement of decision, or
judgment.” (Id. at p. 374-375.)
Parties’
Positions
Defendant
contends that any disputes relating to arbitrability should be decided by the
arbitrator and the Court should narrow its inquiry to addressing the
enforceability of the delegation clause. Defendant further argues that even if
the Court finds that arbitrability has not been delegated, Plaintiff’s claims
are still subject to arbitration. Defendant contends that this action should be
stayed pending arbitration. As a tertiary argument, Defendant contends that CCP
§ 1008 is inapplicable to the instant motion.
In
the amended opposition, Plaintiff contends that: (1) the motion is untimely and
should be denied in its entirety; (2) this matter is related to another pending
matter in this Court that does not have an arbitration clause; (3) Plaintiff is
unable to pay arbitration costs; and (4) the purported agreement is
procedurally unconscionable.
As
to his cross-motion to consolidate, Plaintiff argues that the cross-motion
should be granted as good cause exists to consolidate the instant action with
the Szabo Action.
Defendant
Has Shown the Existence of an Arbitration Agreement
Under
both the Federal Arbitration Act and California law, arbitration agreements are
valid, irrevocable, and enforceable, except on such grounds that exist at law
or equity for voiding a contract. (Winter v. Window Fashions Professions,
Inc. (2008) 166 Cal.App.4th 943, 947.) The party moving to compel
arbitration must establish the existence of a written arbitration agreement
between the parties. (Code of Civ. Proc. § 1281.2.) In ruling on a motion to
compel arbitration, the court must first determine whether the parties actually
agreed to arbitrate the dispute, and general principles of California contract
law help guide the court in making this determination. (Mendez v.
Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.)
With
respect to the moving party’s burden to provide evidence of the¿existence¿of an
agreement to arbitrate, it is generally sufficient for that party to present a
copy of the contract to the court. (Condee v. Longwood Management Corp.¿(2001)
88 Cal.App.4th 215, 218.) “Once such a document is presented to the court, the
burden shifts to the party opposing the motion to compel, who may present any
challenges to the enforcement of the agreement and evidence in support of those
challenges.” (Baker v. Italian Maple Holdings, LLC¿(2017) 13 Cal.App.5th
1152, 1160 [citation omitted].)
In
support of the motion, Defendant Levi Lesches presents a declaration, attesting
to the following: In 2022, Plaintiff’s attorney and sister, Mary Eshaghian,
contacted him regarding a pending lawsuit wherein Plaintiff had already lost
the first phase trial. (Lesches Decl., ¶ 3.) Defendant met with Mary Eshaghian
for some time to discuss Plaintiff’s legal predicament and provided a letter
containing Defendant’s advice to Plaintiff. (Lesches Decl., ¶ 4; Exh. A.) After
receiving the advice, Plaintiff, through is sister, advised that he wanted to
proceed with retaining Defendant’s services. (Lesches Decl., ¶ 5.) Plaintiff
negotiated the retainer agreement and changes were made thereto to reflect
changes that were requested by Plaintiff. (Lesches Decl., ¶ 6; Exh. B.)
Thereafter, a copy of the retainer agreement and appended arbitration agreement
were sent to Plaintiff’s email address. (Lesches Decl., ¶ 7; Exh. C.) Plaintiff
executed the arbitration agreement via an electronic signature service.
(Lesches Decl., ¶ 7; Exh. C.) Thereafter, Plaintiff and Defendant entered into
a modification of the legal services agreement. (Lesches Decl., ¶ 8; Exh. D.)
Here,
Defendant has incorporated the arbitration provision in the motion and has
provided a copy of the Arbitration Agreement. (Mot., p.3:14-17; Lesches Decl.,
¶ 7, Exh. C.) The relevant portion of the arbitration provision in the
Arbitration Agreement provides the following:
“Any dispute, claim or controversy arising out of or relating to
this Agreement or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or applicability of
this agreement to arbitrate, shall be determined by binding arbitration at the
Los Angeles Regional Office of the American Arbitration Association . . . The
arbitration shall be administered by the AAA pursuant to the AAA Commercial
Rules . . . .”
(Ibid.)
The
agreement was executed by both parties on June 22, 2022. (Lesches Decl., ¶ 7,
Exh. C.) Plaintiff was also provided
with a disclosure form, which provided an overview of the arbitration process
and a hyperlink to the AAA Commercial Rules. (Ibid.) The disclosure form
also advises Plaintiff that “if a party contests the enforceability of the
arbitration agreement, an arbitrator will generally need to determine the
dispute.” (Ibid.)
The
Court finds Defendant has met his burden to demonstrate the existence of a
valid arbitration agreement between the parties.
The
Delegation Clause Requires the Arbitrator to Determine the Validity and
Enforceability of the Arbitration Agreement as it is Unambiguous and is Not
Substantively Unconscionable
Defendant
contends that the delegation clause in the Arbitration Agreement requires the
arbitrator—and not this Court—to determine any issues of arbitrability. The
opposition brief fails to rebut such argument.
Applicable
Law
“A
proceeding to compel arbitration is in essence a suit in equity to compel
specific performance of a contract.” (Freeman v. State Farm Mut. Auto. Ins.
Co. (1975) 14 Cal.3d 473, 479.) “Arbitration is, of course, a matter of
contract, and the parties may freely delineate the area of its application.” (Ibid.)
“Code of Civil Procedure section 1281.2 was drafted . . . to prescribe and
limit the power of the superior court in passing upon a petition to compel arbitration.”
(Ibid.) CCP § 1281.2 provides that the superior court is required “to
determine in advance whether there is a duty to arbitrate the controversy which
has arisen. The performance of this duty necessarily requires the court to
examine and, to a limited extent, construe the underlying agreement.” (Id.
at p. 480.) “The arbitrability of a dispute may itself be subject to
arbitration if the parties have so provided in their contract.” (Ibid.)
“Even then, it is necessary for the court to examine the contract to ascertain
whether the parties have so provided.” (Ibid.)
“Parties
to an arbitration may agree to delegate to the arbitrator, instead of a court,
questions regarding the enforceability of the agreement.” (Tiri v. Lucky
Chances, Inc. (2014) 226 Cal.App.4th 231, 241 (Tiri).) “They can
agree to arbitrate almost any dispute—even a dispute over whether the
underlying dispute is subject to arbitration.” (Ibid.) For a delegation
clause to be effective two requirements must be met: (1) the language of the
delegation clause must be clear and unmistakable; and (2) the delegation must
not be revokable under state contract defenses such as fraud, duress, or
unconscionability. (Id. at p. 242.)
“California
courts analyze unconscionability as having a procedural and a substantive
element.”¿ (Kinney v. United Healthcare Services, Inc. (1999) 70
Cal.App.4th 1329.) “[B]oth elements must be present before a contract or
contract provision is rendered unenforceable on grounds of
unconscionability.”¿(Ibid.) The doctrine of unconscionability refers to
“an absence of meaningful choice on the part of one of the parties together
with contract terms which are unreasonably favorable to the other party.” (Sonic-Calabasas
A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133.) It consists of procedural
and substantive components, “the former focusing on oppression or surprise due
to unequal bargaining power, the latter on overly harsh or one-sided results.”
(Ibid.) Although both components of unconscionability must be present to
invalidate an arbitration agreement, they need not be present in the same
degree. (Armendariz v. Found Health Psychcare Servs., Inc., supra,
24 Cal.4th 83, 114.) “Essentially a sliding scale is invoked which
disregards the regularity of the procedural process of the contract formation,
that creates the terms, in proportion to the greater harshness or
unreasonableness of the substantive terms themselves. [Citations.] In other
words, the more substantively unconscionable the contract term, the less
evidence of procedural unconscionability is required to come to the conclusion
that the term is unenforceable, and vice versa.” (Ibid.) “The party
resisting arbitration bears the burden of proving unconscionability.” (Pinnacle
Museum Tower Assn. v. Pinnacle Market Dev. (US), LLC (2012) 55 Cal.4th 223,
247.)¿
“‘Procedural
unconscionability’ concerns the manner in which the contract was negotiated and
the circumstances of the parties at that time.¿It focuses on the factors of
oppression and surprise. The oppression component arises from an inequality of
bargaining power of the parties to the contract and an absence of real
negotiation or a meaningful choice on the part of the weaker party. The
component of surprise arises when the challenged terms are ‘hidden in a prolix
printed form drafted by the party seeking to enforce them.’” (Nyulassy v.
Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.) ¿¿
Substantive
unconscionability focuses on the terms of the agreement and whether those terms
are “so one sided as to “’shock the conscience.’” (Kinney v. United
Healthcare Services, Inc., supra, 70 Cal. App.4th 1329, 1330.)¿ The
California Supreme Court in Armendariz set forth five minimum
requirements in requiring that arbitration agreements in the employer-employee
context must provide for: (1) neutral arbitrators; (2) more than minimal
discovery; (3) a written award; (4) all types of relief that would otherwise be
available in court; and (5) no additional costs for the employee beyond what
the employee would incur if he or she were bringing the claim in court.¿ (Fitz
v. NCR Corp. (2004) 118 Cal.App.4th 702, 712-713.)¿¿¿
Analysis
as to the Delegation Clause
Here,
the Arbitration Agreement provides the following:
“Any dispute, claim, or controversy arising out of or relating
this Agreement or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or applicability of
this agreement to arbitrate, shall be determined by binding arbitration at the
Los Angeles Regional Office of the American Arbitration Association . . . .”
(Lesches Decl., ¶ 7, Exh. C.)
The
Court finds that based on the clear and unmistakable language of the
Arbitration Agreement, any issues as to the validity and enforcement of the
Arbitration Agreement are to be decided by the arbitrator. Thus, the
Arbitration Agreement clearly and unmistakably delegates to the arbitrator the
power to determine whether such agreement is enforceable. Moreover, the
disclosure form also advised Plaintiff that the arbitrator would determine the
enforceability of the Arbitration Agreement. (Ibid.)
Plaintiff
declares that he was sent the Retainer Agreement with the Arbitration Agreement
and had the ability to accept the agreement with all the arbitration clauses
that were included. (Eshaghian Decl., ¶ 4.) Plaintiff attests that he was never
told that the arbitration provisions were negotiable, was never offered an
opportunity to negotiate them, and reasonably believed it was impossible to
reject them. (Eshaghian Decl., ¶ 5.) Plaintiff never heard of arbitration
before, did not know what it was, and did not understand that he was being
forced to sign away his rights to a jury trial. (Eshagian Decl., ¶ 5.)
Here,
the Court finds that although the evidence is in dispute, Plaintiff has
presented evidence that the Arbitration Agreement was presented to him with no
opportunity for the negotiation of its terms. Moreover, the Court finds that
the element of surprise is present given that Plaintiff attests to not knowing
what he was signing. Thus, the Court finds that Plaintiff has shown some modest
degree of procedural unconscionability because the delegation clause is part of
the larger Arbitration Agreement.
The
Court, however, does not find that the delegation clause is substantively
unconscionable. Here, both parties are bound to arbitrate any and all disputes
arising from the Retainer Agreement. (Lesches Decl., ¶ 7; Exh. C.) The Court
also notes that Plaintiff does not argue in the opposition that the delegation
clause (or even the Arbitration Agreement as a whole) is substantively
unconscionable. (See Tiri, supra, 226 Cal.App.4th 231, 248-249
[finding delegation clause not substantively unconscionable where plaintiff
failed to make arguments as to the unconscionability of the delegation
clause].) The delegation clause, and the Arbitration Agreement as a whole, “requires
arbitration for any and all disputes.” (Id. at p. 248.)
Thus,
the Court finds that the delegation clause is not substantively unconscionable
as it “is not overly harsh, and does not sanction one-sided results.” (Tiri,
supra, 226 Cal.App.4th 231, 246.)
The
Court therefore cannot rule on the enforceability of the Arbitration Agreement due
to the delegation clause. The Court, however, the Court will address the other
arguments raised by Plaintiff in the opposition brief.
Defendant
Has Not Waived the Right to Compel Arbitration
Even
if the delegation clause had been invalid for reasons of procedural and
substantive unconscionability, the Court would have found that Defendant did
not waive the right to compel arbitration.
“Where
an arbitration agreement does not specify the time in which arbitration must be
demanded, a reasonable time is allowed; a party who does not demand arbitration
within a reasonable time is deemed to have waived the right to arbitration.”
(Spear v. California State Auto Assn. (1992) 2 Cal.4th 1035, 1043 [citations
omitted].) “[W]hat constitutes a reasonable time is a question of fact,
depending on the situation of the parties, the nature of the transaction, and
the facts of the particular case.” (Ibid., [citations omitted].) “[B]ad
faith or willful misconduct of a party may constitute waiver and thus justify a
refusal to compel arbitration.” (Engalla v. Permanente Medical Group, Inc.
(1997) 15 Cal.4th 951, 984 [citation omitted, quotations omitted].)
In
determining waiver, a court can consider the following factors: (1) whether a
party’s actions are inconsistent with the right to arbitrate; (2) whether the
litigation machinery has been substantially invoked and the parties were well
into preparation of a lawsuit before the party notified the opposing party of
an intent to arbitrate; (3) whether a party requested arbitration close to the
trial date or delayed for a long period of time before seeking a stay; (4)
whether a defendant seeking arbitration filed a counterclaim without asking for
a stay of proceedings; (5) whether intervening steps such as taking advantage
of judicial discovery procedures not available in arbitration have taken place;
and (6) whether the delay affected, misled, or prejudiced the opposing party. (Adolph
v. Coastal Auto Sales, Inc. (2010) 184 Cal.App.4th 1443, 1450 [citation
omitted, quotations omitted.) Waiver is not found only where there is “mere
participation in litigation.” (Ibid.) Waiver may be found where the
party seeking arbitration has: (1) previously taken steps inconsistent with an
intent to invoke arbitration, (2) unreasonably delayed in seeking arbitration,
or (3) acted in bad faith or with willful misconduct. (Davis v. Continental
Airlines, Inc. (1997) 59 Cal.App.4th 205, 211-212, citations omitted,
quotations omitted.) The burden of showing waiver is on the party opposing
arbitration and a court will “indulge every intendment to give effect to
[arbitration] proceedings. (Christensen v. Dewor Developments (1983) 33
Cal.3d 778, 782 [citation omitted].)
Plaintiff,
in opposition, argues that Defendant waived arbitration when he failed to bring
an arbitration claim as to the alleged legal malpractice within 30 days of the
parties’ mandatory fee dispute arbitration, citing Business and Professions
Code section 6204, subdivision (a). (Opp’n at p. 4:27-5:2.) Plaintiff also
contends that Defendant failed to timely answer the complaint. (Opp’n at p.
5:3-4.)
The
Mandatory Fee Arbitration Act is codified in sections 6200 through 6206 of the
Business and Professions Code. Section 6204, subdivision (a) states the
following: “The parties may agree in writing to be bound by the award of
arbitrators appointed pursuant to this article at any time after the dispute
over fees, costs, or both, has arisen. In the absence of such an agreement,
either party shall be entitled to a trial after arbitration if sought within 30
days.”
The
Court finds that the prior mandatory fee dispute arbitration between Plaintiff
and Defendant has no bearing on the arbitrability of Plaintiff’s legal
malpractice claims. First, the mandatory fee dispute provision, paragraph 19 of
the Retainer Agreement, which invokes the Mandatory Fee Arbitration Act, is
separate from the Arbitration Agreement, paragraph 20. (Lesches Decl., ¶ 7, Exh
C.) Plaintiff has provided no applicable authority to support his contention
that Defendant waived its right to compel arbitration as to the legal
malpractice claims under the Retainer Agreement. Plaintiff’s citation to Rosenson
v. Greenberg Glusker Fields Claman & Machtinger LLP (2012) 203
Cal.App.4th 688 is inapposite as such case does not support such a contention.
Plaintiff’s citation to Schatz v. Allen Matkins Leck Gamble & Mallory
LLP (2009) 45 Cal.4th 557 is also inapposite.
The
Court also finds that Plaintiff has not presented any evidence that the
mandatory fee arbitration concluded on May 23, 2024. (Opp’n at p. 4:27-5:1.)
The Court informs Plaintiff that “[i]n law and motion practice, factual
evidence is supplied to the court by way of declarations.” (Calcor Space
Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) In fact,
the declaration of Plaintiff states no facts as to Defendant waiving the right
to compel arbitration. Plaintiff’s declaration in support of the opposition is
concerned with the circumstances surrounding the execution of the Arbitration
Agreement. (Eshagian Decl., ¶¶ 4-6.) Plaintiff has not met his burden in
establishing waiver. Moreover, the Court finds that Defendant has neither
taking steps inconsistent with arbitration, unreasonably delayed in seeking
arbitration, nor acted in bad faith or with willful misconduct. Defendant
attests to not propounding any discovery in this action and taking no actions
that are inconsistent with the right to arbitrate. (Lesches Decl., ¶ 16.)
Thus, the Court rejects Plaintiff’s argument as to waiver.
The
Relation of this Matter to the Szabo Action
Plaintiff contends that the
instant action should not be compelled to arbitration because of the related pending
Szabo Action. (Opp’n at p. 5:5-19.) Initially, the Court rejects Plaintiff’s
contention that this action and the Szabo Action are related. This Court has
not entered an order relating the two actions.
The Court also fails to see how
the Szabo Action has any bearing on the claims against Defendant in this
action. The Szabo Action is concerned with a legal malpractice claim asserted
against a defendant who is not named in this action. (RJN at Exh. C5.) The
Court fails to see how compelling the instant action to arbitration can lead to
a conflicting ruling in the Szabo Action. The fact that the retainer agreement
between Plaintiff and Attorney Szabo does not contain an arbitration clause has
no bearing on the claims in this action. (Eshaghian Decl., ¶ 7; Exh. 1.) The
cases have neither been consolidated nor related and therefore the Court
rejects Plaintiff’s argument as to the risk of conflicting rulings. (Opp’n at
p. 5:5-19.)
Plaintiff’s
Inability to Pay Arbitration Costs
Plaintiff argues that he is
unable to pay arbitration costs and therefore the motion to compel arbitration
should be denied. (Opp’n at pp. 5-6.)
Initially, the Court notes that
Plaintiff’s declaration in opposition to the motion does not attest to his
inability to pay arbitration fees. Also, the Court finds that Plaintiff’s
citations to: (1) Cinel
v. Christopher (2012) 203
Cal.App.4th 759; and (2) Cinel
v. Barna (2012) 206 Cal.App.4th 1383 are
both inapposite because such cases did not address the financial inability of a
plaintiff to pay arbitration fees. Plaintiff’s citation to Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87 is inapposite as such
case involved parties who filed motions to compel a defendant to advance the
upfront cost of arbitration after such defendant’s motion to compel arbitration
was granted.
Plaintiff’s citation to Aronow v. Superior Court (2022) 76 Cal.App.5th 865 is also factually
distinguishable. The plaintiff is Aronow
filed a motion for arbitration
fees and costs after a petition to compel arbitration was granted. (Aronow v. Superior Court (2022) 76 Cal.App.5th 865, 871.) Here, as stated,
above, Plaintiff is making such a request prior to arbitration being compelled
and in opposition to a motion to compel arbitration. Due to the lack of
evidence presented by Plaintiff as to his financial position, Plaintiff has not
made “a sufficient factual showing to support a finding that he is unable to
pay his anticipated share of the cost of arbitration.” (Id. at p. 872.)
Thus, due to the lack of
admissible evidence presented by Plaintiff on such point, the Court will not
deny the motion to compel arbitration on the grounds of Plaintiff’s inability
to pay.
The
Arbitration Agreement is Not Substantively Unconscionable
Initially, although arguing that
the Arbitration Agreement is procedurally unconscionable, the opposition brief
makes no argument as to substantive unconscionability. The Court finds that
Plaintiff has conceded to such point of argument as “[c]ontentions are waived
when a party fails to support them with reasoned argument and citations to
authority.” (Moulton
Niguel Water Dist. v. Colombo (2003) 111
Cal.App.4th 1210, 1215.)
The Court references its analysis
concerning the delegation clause from above and incorporates it herein. The
Court has reviewed the Arbitration Agreement and finds that it is not
substantively unconscionable as it is not so one sided as to shock the
conscience. (Kinney v. United Healthcare Services, Inc., supra,
70 Cal. App.4th 1329, 1330.)
The Court therefore GRANTS
Defendant’s motion to compel arbitration. The Court STAYS this action pending
the completion of arbitration pursuant to the Arbitration Agreement. (Code Civ.
Proc. § 1281.4.)
CROSS MOTION TO CONSOLIDATE
Plaintiff moves to consolidate this case with the later
filed case of Eshaghian v. Szabo (LASC Case No. 24STCV20949). As a
preliminary matter, the Court notes that this motion to consolidate is
improperly made in the opposition—such motions must be made separately. “[D]ue
process requires a party to be given adequate notice . . . .” (Fenn v.
Sherriff (2003) 109 Cal.App.4th 1466, 1481.)
Also, Plaintiff has failed to follow the procedural
requirements for a motion to consolidate under California Rules of Court rule
3.350(a). Eshaghian v. Szabo (LASC Case No. 24STCV20949) is currently
pending in Department 73, and such action cannot be consolidated with the
instant action pursuant to Los Angeles Superior Court Local Rule 3.3(g). (See
Superior Court of California, County of Los Angeles, Court Rules, Rule 3.3(g)
[“Cases may not be consolidated unless they are in the same department. A
motion to consolidate two or more cases may be noticed and heard after the
cases, initially filed in different departments, have been related to a single
department, or if the cases were already assigned to that department.”].) Given
that the cases have not been related, it follows that they cannot be
consolidated.
Thus, the Court DENIES Plaintiff’s cross motion to
consolidate.
CONCLUSION
Based on the foregoing, Defendant Levi Lesches dba Lesches
Law’s Motion to Compel Arbitration is GRANTED. The Court stays this action
pending the completion of arbitration pursuant to Code Civ. Proc. § 1281.4.
Plaintiff Mehrdad Eshaghian’s Cross Motion to Consolidate,
which was raised in the opposition, is DENIED.