ANDRES AJIZ GONZALEZ VS DON AM MOTORS INC., ET AL.

Tentative Rulings

Case Number: 20STLC04660    Hearing Date: May 13, 2021    Dept: 25

PROCEEDINGS: MOTION TO COMPEL ARBITRATION, PETITION FOR COURT TO PICK ARBITRATION FORUM, REQUEST FOR STAY, AND REQUEST FOR COSTS

MOVING PARTY: Plaintiff Andres Ajiz Gonzalez

RESP. PARTY: Defendant Article Acceptance Company

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2, et seq.)

TENTATIVE RULING:

Plaintiff Andres Ajiz Gonzalez’s Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, and Request for Stay is GRANTED. Plaintiff’s request for costs is also GRANTED in the amount of $677.80.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Defendant Article Acceptance

OPPOSITION: Filed on December 30, 2020 [ ] Late [ ] None

REPLY: Filed on January 14, 2021 [ ] Late [ ] None

Defendant AM Motors

OPPOSITION: None filed as of May 11, 2021 [ ] Late [X] None

REPLY: None filed as of May 11, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On June 3, 2020, Plaintiff Andres Ajiz Gonzalez (“Plaintiff”) filed a complaint against Don AM Motors, Inc. dba AM Motors (“AM Motors”), Article Acceptance Company (“Article Acceptance”), and American Insurance Company (“American”).

Soon thereafter, on July 16, 2020, Plaintiff filed the instant Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, and Request for Costs (the “Motion”).

Defendant Article Acceptance filed an Answer to the Complaint on August 19, 2020 and an opposition to the Motion on December 30, 2020. Plaintiff filed a reply to Article Acceptance’s opposition on January 14, 2021.

On its own motion, the Court continued the hearing on Plaintiff’s Motion to March 10, 2021. (1/15/21 Notice re Continuance of Hearing and Order.) Plaintiff was ordered to give notice and to file a proof of service demonstrating it gave notice. (Id.)

The initial March 10 hearing was continued because Plaintiff did not give Defendant AM Motors notice of the January 15 continuance. (3/10/21 Minute Order.)

Plaintiff’s counsel filed a supplemental declaration on April 21, 2021.

II. Legal Standard

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.” (Code Civ. Proc., §§ 1281.2(a)-(b).) As with other types of agreements, “[t]he failure of the [party] to carefully read the agreement and the amendment is not a reason to refuse to enforce the arbitration provisions.” (Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1115.) “California law, ‘like [federal law], reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims.’” (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31.) If the court orders arbitration, then the court shall stay the action until arbitration is completed. (See Code Civ. Proc., § 1281.4.)

III. Discussion

On or about July 25, 2017, Plaintiff purchased a used 2014 Nissan Altima (the “Vehicle”) from Defendant AM Motors pursuant to a written contract (the “Contract”). (Compl., ¶ 16, Exh. 1.) The Contract was later assigned to holder, Defendant Article Acceptance. (Id., ¶ 37; Mot., p. 3:6-8.) Plaintiff now seeks to compel Defendants AM Motors and Article Acceptance to submit their dispute to arbitration pursuant to the terms of the Contract. (Mot., pp. 1:25-2:5.)

The Contract contains the following provision:

“EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE BETWEEN YOU AND US DECIDED BY ARBITRATION, AND NOT BY A COURT OR BY JURY TRIAL…Any dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbitrability of the claim or dispute), between you and us, our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship…shall at your or our election be resolved by neutral binding arbitration and not by court action…”

(Id.) The Contract further provides that the parties may choose the American Arbitration Association (the “AAA”) or any other organization to conduct the arbitration subject to the holder’s approval. (Id.) The Contract also states that any holder of the Contract is subject to all claims and defenses which the purchaser could assert against the seller. (Id.)

Plaintiff’s Complaint arises from the condition of the Vehicle (Compl., ¶¶ 16-14), so Plaintiff’s claims are subject to arbitration. Plaintiff’s counsel provides evidence that, on or around November 6, 2019, her office sent Defendants AM Motors and Article Acceptance a pre-litigation letter, including a demand to arbitrate should the matter not be resolved within thirty days. (Mot., Heydari Decl., ¶ 4, Exh. 2.) No agreement to arbitrate was received. (Id. at ¶ 6.) On or around April 7, 2020, Plaintiff’s counsel filed for arbitration with the AAA. (Id. at ¶¶ 7-8, Exh. 3.) On or around April 24, 2020, she received a letter from the AAA stating the matter had been administratively closed due to Defendant AM Motors’ failure to comply with AAA policies. (Id.) Plaintiff states, however, that the AAA regularly re-opens matters as long as the subject business complies with its policies and pays any required fees. (Mot., p. 6:5-18.)

Defendant Article Acceptance opposes the Motion, arguing Plaintiff waived its right to arbitration by waiting approximately nine months after filing the Complaint to move to compel arbitration. (Oppo., pp. 3:2-4:5.)

Under Code of Civil Procedure, section 1281.2, subdivision (a), the Court need not compel arbitration if “[t]he right to compel arbitration has been waived by the petitioner.” “‘[T]here is no fixed stage in a lawsuit beyond which further litigation waives the right to arbitrate. Rather, the court views the litigation as a whole in determining whether the parties’ conduct is inconsistent with a desire to arbitrate.’ [Citation.]” (Bower v. Inter-Con Security Systems, Inc. (2014) 232 Cal.App.4th 1035, 1042.)

A party resisting arbitration on the ground of waiver bears a heavy burden. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1195.) “No single test defines the conduct that will constitute waiver of an arbitration right. Rather, courts look to several factors to determine whether waiver has occurred. [Citation.] In St. Agnes, the Supreme Court confirmed that a court may consider the following six factors in assessing a waiver claim: ‘‘‘(1) whether the 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 either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing party.’’ [Citation.]’ [Citations.]” (Oregel v. PacPizza, LLC (2015) 237 Cal.App.4th 342, 354–355.)

Although Defendant Article Acceptance cited St. Agnes, it discussed but one of the several factors a court considers to determine whether the right to arbitration has been waived – delay. The Court finds there has been no unreasonable delay here. Plaintiff filed the instant Motion only about six weeks after the Complaint was filed. In addition, the parties were served with the Complaint and the instant Motion at the same time. (8/27/20 Proofs of Service.) Even if Plaintiff had waited months to file the instant Motion, delay alone is insufficient. In Khalatian v. Prime Time Shuttle, Inc. (2015) 237 Cal.App.4th 651, 663, the court found that a 14-month delay from filing the Complaint to filing a motion to compel was insufficient to support a finding of waiver absent a showing of prejudice.

Defendant Article Acceptance has not demonstrated the other factors discussed in St. Agnes weigh in favor of finding the right to arbitration has been waived.

Thus, Plaintiff has demonstrated the existence of an arbitration agreement between the parties, and the Court finds that there is no defense to its enforcement.

Plaintiff also requests costs for having to file this action due to Defendant AM Motors and Article Acceptance’s refusal to submit to arbitration. (Mot., p. 7:6-20.) Defendant Article Acceptance opposes Plaintiff’s request for “sanctions,” arguing that the request is unnecessary and that a request for sanctions may be more appropriately addressed by the arbitrator. (Oppo., p. 4:20-28.) However, Plaintiff is not requesting sanctions; he is requesting costs under the Code of Civil Procedure. “The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” (Code Civ. Proc., § 1293.2.) “A petition to compel arbitration under section 1281.2 is a judicial proceeding covered by this provision.” (Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, 805.) Thus, the Court finds Plaintiff is entitled to $678.80 in costs. (4/21/21 Heydari Decl., ¶¶ 3-7 Exhs. 1-4.)

IV. Conclusion & Order

For the foregoing reasons, Plaintiff Andres Ajiz Gonzalez’s Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, and Request for Stay is GRANTED. Plaintiff’s request for costs is also GRANTED in the amount of $677.80.

Moving party is ordered to give notice.

Case Number: 20STLC04660    Hearing Date: March 10, 2021    Dept: 25

HEARING DATE: Wed., March 10, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Gonzalez v. Don AM Motors, Inc., et al. COMPL. FILED: 06-03-20

CASE NUMBER: 20STLC04660 DISC. C/O: 11-01-21

PROCEEDINGS: MOTION TO COMPEL ARBITRATION, PETITION FOR COURT TO PICK ARBITRATION FORUM, REQUEST FOR STAY, AND REQUEST FOR COSTS

MOVING PARTY: Plaintiff Andres Ajiz Gonzalez

RESP. PARTY: Defendant Article Acceptance Company

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2, et seq.)

TENTATIVE RULING:

Plaintiff Andres Ajiz Gonzalez’s Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, and Request for Costs is CONTINUED TO MAY 13, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers demonstrating all parties received adequate notice of the hearing. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

Defendant Article Acceptance

OPPOSITION: Filed on December 30, 2021 [ ] Late [ ] None

REPLY: Filed on January 14, 2021 [ ] Late [ ] None

Defendant AM Motors

OPPOSITION: None filed as of March 8, 2021 [ ] Late [X] None

REPLY: None filed as of March 8, 2021 [ ] Late [X] None

ANALYSIS:

1. Background & Discussion

On June 3, 2020, Plaintiff Andres Ajiz Gonzalez (“Plaintiff”) filed a complaint against Don AM Motors, Inc. dba AM Motors (“AM Motors”), Article Acceptance Company (“Article Acceptance”), and American Insurance Company (“American”).

Soon thereafter, on July 16, 2020, Plaintiff filed the instant Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, and Request for Costs (the “Motion”).

Defendant Article Acceptance filed an Answer to the Complaint on August 19, 2020 and an Opposition to the Motion on December 30, 2020. Plaintiff filed a Reply to Article Acceptance’s Opposition on January 14, 2021.

On January 15, 2021, the Court continued the hearing on Plaintiff’s Motion to March 10, 2021. (1/15/21 Notice re Continuance of Hearing and Order.) Plaintiff was ordered to give notice and to file a proof of service demonstrating it gave notice. (Id.)

As an initial matter, the Court notes that, although Defendant Article Acceptance was given notice of the January 15 continuance, Plaintiff did not file a proof of service demonstrating it gave Defendant AM Motors notice. Thus, the Court cannot issue a ruling on the Motion at this time. Plaintiff is ordered to give all parties adequate notice of the next scheduled hearing.

1. Conclusion & Order

For the foregoing reasons, Plaintiff Andres Ajiz Gonzalez’s Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, and Request for Costs is CONTINUED TO MAY 13, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers demonstrating all parties received adequate notice of the hearing. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.