Judge: Yolanda Orozco, Case: 20STCV29356, Date: 2022-11-29 Tentative Ruling

Case Number: 20STCV29356    Hearing Date: November 29, 2022    Dept: 31

MOTION FOR ORDER DISMISSING THE ACTION IS DENIED 

Background 

The present action arises from the following facts and circumstances.  Mildred Hall (“Ms. Hall”) previously resided in Front Porch Communities and Services, an elder home facility.  On April 22, 2020, Ms. Hall was allegedly wrongfully and retaliatorily evicted from Front Porch Communities and Services, with only one-day written notice.  This action is advanced against Front Porch Communities and Services, and other allegedly responsible parties for Ms. Hall’s wrongful eviction. 

On August 4, 2020, Ms. Hall filed a Complaint against Front Porch Communities and Services, Randy Herzig, Nadine Roisman, Pamela Lowe, and Lis Stephens LVN (collectively, “Defendants”). 

On January 21, 2021, Ms. Hall’s attorney of record informed this Court that Ms. Hall had passed away during the pendency of this action.  

On June 4, 2021, Ms. Hall’s surviving children, Patricia Hall Carlton and Richard Hall (“Plaintiffs”), filed the operative First Amended Complaint against Defendants.  Plaintiff’s Complaint alleges the following causes of action: (1) Retaliatory, Predatory and Wrongful Eviction into the Covid-19 Pandemic; (2) Eviction by Elder Abuse & Neglect; (3) Eviction by Elder Financial Abuse; (4) Eviction Rip-Off by False Pretenses; (5) Eviction by Unfair Practices; (6) Negligence; and (7) Negligent Denial & Provision of Health Care. 

On August 11, 2021, Defendant Front Porch Communities and Services and Defendant Randy Herzig filed a Petition to Compel Arbitration of Plaintiffs’ Complaint. 

On September 16, 2021, Defendant Nadine Roisman and Defendant Pamela Lowe, additionally, filed a Petition to Compel Arbitration of Plaintiffs’ Complaint. 

On September 22, 2021, Defendant Front Porch Communities and Services’ and Defendant Randy Herzig’s Petition to Compel Arbitration of Plaintiffs’ Complaint was granted by this Court.  (See Min. Or. 09/22/21 Re: Ruling on Submitted Matter.) The Court ordered the present action stayed pending binding arbitration as to the entire action. (Id.) 

Further, on October 27, 2021, Defendant Nadine Roisman’s and Defendant Pamela Lowe’s Petition to Compel Arbitration of Plaintiffs’ Complaint was granted by this Court.  (See Min. Or. 10/27/21 Re: Hearing on Motion to Compel Arbitration.)  The Court noted that this action was previously stayed pending completion of binding arbitration on September 22, 2021. (Id.) 

On September 29, 2022, Defendant filed this Motion for an Order Dismissing the Action due to Plaintiff’s failure to prosecute the action and select an arbitrator. 

The Motion is now before the Court. 

Discussion 

On May 19, 2022, this Court denied Plaintiff’s Motion to Quash Defendant’s Demand for Arbitration because this Court had stayed the action pending arbitration and therefore the Court lacked authority to withdraw the Order compelling arbitration. (Min. Or. 05/19/22) 

“Once a petition is granted and the lawsuit is stayed, ‘the action at law sits in the twilight zone of abatement with the trial court retaining merely vestigial jurisdiction over matters submitted to arbitration.’” (Titan/Value Equities Group, Inc., supra, 29 Cal.App.4th at 487, citing Brock, supra, 10 Cal.App.4th at 1796.) Under its “vestigial” jurisdiction “a court may; appoint arbitrators if the method selected by the parties fails (§ 1281.6); grant a provisional remedy ‘but only upon the ground that the award to which an applicant may be entitled may be rendered ineffectual without provisional relief’ (§ 1281.8, subd. (b)); and confirm, correct or vacate the arbitration award (§ 1285). Absent an agreement to withdraw the controversy from arbitration, however, no other judicial act is authorized. (Id.) 

Defendant asks the Court to exercise its “vestigial” jurisdiction and dismiss the action due to Plaintiff’s refusal to select an arbitrator and commence arbitration proceedings. Defendant attaches a letter from the Case Manager at JAMS, Scott Parreno, who sent a letter to the Plaintiffs’ counsel requesting a response by June 17, 2022 and stating that “[i]f no response is received from you by that date, JAMS will assume you find all arbitrator candidates acceptable and JAMS will proceed with appointing the arbitrator.” (Schadrack Decl. ¶ 9, Ex. 6.) 

Having received no response, Mr. Parreno sent another letter on July 19, 2022, requesting a response no later than August 5, 2022. (Schadrack Decl. ¶ 10, Ex. 7.) Defendant asserts that Plaintiff has been unresponsive to selecting an arbitrator and now requests the Court issue an Order dismissing the action for lack of prosecution. 

“It is also up to the arbitrator, and not the court, to grant relief for delay in bringing an arbitration to a resolution.” (Titan/Value Equities Group, Inc., supra, 29 Cal.App.4th at 488.)

Defendant has failed to explain why JAMS has not proceeded with selecting an arbitrator or why JAMS has been unable to provide relief for Plaintiff’s failure to proceed with arbitration. Moreover, JAMS Comprehensive Arbitration Rules and Procedures, in subdivision (c) of Rule 5. Titled “Commencing an Arbitration” states:

“(c) If a Party that is obligated to arbitrate . . . fails to agree to participate in the Arbitration process, JAMS shall confirm in writing that Party's failure to respond or participate, and, pursuant to Rule 22(j), the Arbitrator, once appointed, shall schedule, and provide appropriate notice of, a Hearing or other opportunity for the Party demanding the Arbitration to demonstrate its entitlement to relief.” 

It therefore appears to the Court that Defendant must petition JAMS for relief in the first instance regarding Plaintiff’s failure to proceed with arbitration. The Court is without jurisdiction to do otherwise. 

Accordingly, the Motion is DENIED. 

Conclusion 

Defendant’s Motion for an Order Dismissing the Action is DENIED. 

Moving party to provide notice.