On 03/22/2019 MARCELA CARMONA filed a Contract - Other Contract lawsuit against PEDRO SEGURA. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Dismissed.
Disposed - Dismissed
LUNA JOSE D
M & N FINANCING CORP.
PEDRO SEGURA DBA SEGURA MOTORS
LARSON CHARLES L.
7/13/2021: Order - Dismissal - Order - Dismissal
7/13/2021: Minute Order - Minute Order (Order to Show Cause Re: Dismissal (Settlement))
10/14/2020: Request for Dismissal - Request for Dismissal
4/8/2021: Certificate of Mailing for - Certificate of Mailing for (Order to Show Cause Re: Dismissal (Settlement)) of 04/08/2021
4/29/2020: Notice of Settlement - Notice of Settlement
4/30/2020: Order to Show Cause re: Dismissal (Settlement) - Order to Show Cause re: Dismissal (Settlement)
2/25/2020: Minute Order - Minute Order (Order to Show Cause Re: Status of Arbitration)
12/17/2019: Minute Order - Minute Order (Hearing on Motion to Compel Arbitration)
12/10/2019: Reply (name extension) - Reply Plaintiffs' Reply to Defendant's Opposition to Plaintiff's Motion to Compel Arbitration
12/4/2019: Proof of Service (not Summons and Complaint) - Proof of Service (not Summons and Complaint)
12/4/2019: Opposition (name extension) - Opposition TO PLAINTIFFS MOTION TO COMPEL ARBITRATION
7/8/2019: Cross-Complaint - Cross-Complaint
5/13/2019: Affidavit (name extension) - Affidavit Re Venue
5/17/2019: Motion to Compel (name extension) - Motion to Compel Plaintiff's Motion to Compel Arbitration, for Court to Pick Arbitration Forum, and Request for Costs
5/17/2019: Declaration (name extension) - Declaration Declaration of Nima Heydari in Support of Plaintiff's Motion to Compel Arbitration, for Court to Pick Arbitration Forum, and Request for Costs
3/22/2019: Summons - Summons on Complaint
3/22/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case
3/22/2019: Complaint - Complaint
DocketOn the Cross-Complaint filed by Pedro Segura on 07/08/2019, entered Order for Dismissal without prejudice as to the entire actionRead MoreRead Less
DocketOrder - Dismissal; Issued and Filed by: ClerkRead MoreRead Less
DocketMinute Order (Order to Show Cause Re: Dismissal (Settlement))Read MoreRead Less
DocketCertificate of Mailing for (Order to Show Cause Re: Dismissal (Settlement)) of 07/13/2021; Filed by: ClerkRead MoreRead Less
DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 07/13/2021 at 09:30 AM in Spring Street Courthouse at Department 26 updated: Result Date to 07/13/2021; Result Type to HeldRead MoreRead Less
DocketThe case is removed from the special status of: Stay - Binding ArbitrationRead MoreRead Less
DocketOrder to Show Cause Re: Dismissal (Settlement) scheduled for 07/13/2021 at 09:30 AM in Spring Street Courthouse at Department 26Read MoreRead Less
DocketMinute Order (Order to Show Cause Re: Dismissal (Settlement))Read MoreRead Less
DocketCertificate of Mailing for (Order to Show Cause Re: Dismissal (Settlement)) of 04/08/2021; Filed by: ClerkRead MoreRead Less
DocketOn the Court's own motion, Order to Show Cause Re: Dismissal (Settlement) scheduled for 04/08/2021 at 09:30 AM in Spring Street Courthouse at Department 26 Held - Continued was rescheduled to 07/13/2021 09:30 AMRead MoreRead Less
DocketHearing on Motion to Compel Arbitration scheduled for 12/17/2019 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketAffidavit Re Venue; Filed by: Marcela Carmona (Plaintiff); Jose D Luna (Plaintiff)Read MoreRead Less
DocketNon-Jury Trial scheduled for 09/18/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/25/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94Read MoreRead Less
DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk CourthouseRead MoreRead Less
DocketComplaint; Filed by: Marcela Carmona (Plaintiff); Jose D Luna (Plaintiff); As to: Pedro Segura (Defendant); M & N Financing Corp. (Defendant); Surety (Defendant)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by: Marcela Carmona (Plaintiff); Jose D Luna (Plaintiff); As to: Pedro Segura (Defendant); M & N Financing Corp. (Defendant); Surety (Defendant)Read MoreRead Less
DocketSummons on Complaint; Issued and Filed by: Marcela Carmona (Plaintiff); Jose D Luna (Plaintiff); As to: Pedro Segura (Defendant); M & N Financing Corp. (Defendant); Surety (Defendant)Read MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by: ClerkRead MoreRead Less
DocketFirst Amended Standing Order; Filed by: ClerkRead MoreRead Less
Case Number: 19STLC02858 Hearing Date: December 17, 2019 Dept: 94
PETITION TO COMPEL ARBITRATION, FOR COURT TO PICK ARBITRATION FORUM, AND REQUEST FOR COSTS
(CCP § 1281.2)
Plaintiffs/Cross-Defendants Marcela Carmona and Jose D. Luna’s Petition to Compel Arbitration, For Court to Pick Arbitration Forum, and Request for Costs is GRANTED.
OPPOSITION: Filed on December 4, 2019 [ ] Late [ ] None
REPLY: Filed as of December 10, 2019 [ ] Late [ ] None
On March 23, 2016, Plaintiffs Marcela Carmona and Jose D. Luna (collectively, “Plaintiffs”) entered into a Retail Installment Sale Contact (“Contract”) for the purchase of a used vehicle, namely a 2009 Acura TSX from Defendant Pedro Segura dba Segura Motors (“Defendant”). (Compl. ¶ 3,16, Exh. 1.)
On March 22, 2019, Plaintiffs filed this action for violation of consumer rights, for unfair business practices, for violation of the implied warranty of merchantability, and failure to provide a Spanish translation of Contract to Plaintiffs.
On May 17, 2019, Plaintiffs filed this Petition to Compel Arbitration, for Court to Pick Arbitration Forum, and Request for Costs (the “Petition”), contending that Defendants failed to submit to arbitration as required by the RISC. Defendants filed an Opposition on December 4, 2019 arguing that grounds exist for the rescission of the Contract, and that Plaintiffs waived their right to arbitration. Plaintiffs filed a reply on December 10, 2017.
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.) In addition, the mere filing of a lawsuit does not result in waiver of a party’s right to enforce arbitration provisions. (St. Agnes Medical Center v. Pacificare of California (2003) 31 Cal.4th 1187, 1201.) “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.)
The Court must first determine if the arbitration clause in the Contract is valid and enforceable. Then, the Court must determine if Plaintiffs have waived their arbitral right.
“‘[T]he party seeking arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any defense . . . .’ [Citation.]” (Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 Cal.App.5th 1096, 1106.)
Here, the Contract provides:
“Any claim or dispute, whether in contract, tort, statute, or otherwise…between you and us or 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 a court action.”
(Compl., Exh. 1.)
Defendants do not dispute the validity of the arbitration clause in the Contract. Having reviewed Contract, the Court also finds it to be valid. Accordingly, Plaintiffs may move to compel Defendants to submit to arbitration under the sales contract.
Defendants argue that Plaintiffs’ attempt to rescind the Contract demonstrates Defendants are not obligated to arbitrate. However, contractual arbitration clauses generally must be enforced even where one of the parties seeks rescission of the entire contract. (St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1198.)
Thus, this is not a basis to deny arbitration.
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.” The California Supreme Court has defined “waiver” as follows: “While ‘waiver’ generally denotes the voluntary relinquishment of a known right, it can also refer to the loss of a right as a result of a party’s failure to perform an act it is required to perform, regardless of the party’s intent to relinquish the right. [Citations.] In the arbitration context, ‘[t]he term ‘waiver’ has also been used as a shorthand statement for the conclusion that a contractual right to arbitration has been lost.’ [Citation.]’ [Citation.]” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 374.) “‘[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.)
On October 4, 2018, Plaintiffs’ counsel sent Defendants a demand letter, which included a demand for arbitration. (Pet., Decl. Heydari ¶ 4, Exh. 2.) On about December 28, 2018, Plaintiffs filed for arbitration with the American Arbitration Association (“AAA”). (Id., ¶ 6.) On January 15, 2019, AAA sent the parties a letter accepting arbitration and requesting payment. (Id., ¶ 7, Exh. 3.) AAA sent the parties a letter on February 26, 2019 stating that the required fees had not yet been received and requested Defendants remit payment by March 12, 2019. (Id., ¶ 8, Exh. 4.) On March 13, 2019, Defendants were granted an extension until March 27, 2019 to pay the required fees. (Oppo., Segura Decl., ¶ 3, Exh. A.) Defendants sent the required payment on March 27, 2019. (Id., ¶ 4.) Plaintiffs then received a letter dated March 28, 2019 from AAA stating it declined to administer the case for failure to pay the required fees. (Pet., Decl. Heydari, ¶ 9, Exh. 5.) On April 5, 2019, an AAA employee sent the parties an email stating that payment was received “on the same business day [AAA] closed the case” and requested confirmation from Plaintiffs that they would like the matter reopened. (Oppo., Segura Decl., ¶ 4, Exh. B.) Plaintiff did not provide any evidence it responded to AAA’s request to reopen the matter. Defendants’ payment to AAA was returned on May 7, 2019. (Id., ¶ 5, Exh. C.)
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 a number of 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.)
The Court notes that in his opposition brief, Defendants fail to analyze Agnes factors demonstrate Plaintiffs have waived its arbitral right. Defendants argue that Plaintiffs’ failure to respond to AAA’s April 5th request to confirm whether Plaintiffs wished to move forward with arbitration demonstrates conduct that is inconsistent with its claimed right to arbitrate. The Court finds this factor weighs in Defendants’ favor.
The second factor favors Plaintiffs. The parties have not “substantially invoked” the “litigation machinery” and were not “well into the preparation of a lawsuit” because the parties have not engaged in discovery. (Reply, p. 5-6.) The third factor favors Plaintiffs. Plaintiffs sought to compel arbitration approximately two months after filing their complaint, and approximately 16 months before trial is set to commence. (Reply, p. 6.) The fourth factor favors Plaintiffs. Defendants filed a counter-claim against Plaintiffs without asking for a stay of the proceedings. The fifth factor favors Plaintiffs. Defendants do not argue that any important intervening steps, such as taking advantage of discovery procedures, have taken place. Indeed, Plaintiffs point out they have not sought discovery as they have been focused on demanding arbitration. (Reply, p. 5-6.) The third factor favors Plaintiffs. “Prejudice typically is found only where conduct of the petitioning party has substantially impaired the other party's ability to obtain the benefits and efficiencies of arbitration, for example, when the party has unreasonably delayed seeking arbitration [Citation]; where the party has exploited trial court discovery procedures that would be unavailable to it in arbitration [Citation]; or where delay by the petitioning party has resulted in lost evidence [Citation].” (Franco v. Arakelian Enterprises, Inc. (2015) 234 Cal.App.4th 947, 959.) Defendants have not argued how any delay stemming from Plaintiffs’ failure to respond to AAA’s e-mail correspondence and confirm they were still interested in pursuing arbitration, or any other delay, affected, misled, or prejudiced them. Although Plaintiffs failed to reply to the April 5th email, Defendants knew Plaintiffs would continue to pursue arbitration only about a month later when this Motion was filed.
Thus, the Agnes factors do not support a finding that arbitration has been waived.
Plaintiffs argue they have “unnecessarily incurred costs due to Defendants’ failure and refusal to arbitrate this section” and thus are entitled to costs under Civil Code section 1293.2. (Pet., p. 7.) The Court is not persuaded by Plaintiffs’ arguments. Plaintiffs filed this Motion after receiving the correspondence from AAA requesting Plaintiffs’ confirmation to move forward with the arbitration. If costs were unnecessarily incurred, it is Plaintiffs’ own fault.
Thus, Plaintiffs’ Request for Costs is DENIED.
Plaintiffs request the Court chose JAMS as the arbitration forum. (Pet., p. 5.) Defendants are amenable to JAMS as requested by Plaintiffs. (Oppo., p. 5.)
The Court choses JAMS as the arbitration forum.
IV. Conclusion & Order
If the court orders arbitration, then the court shall stay the action until arbitration is completed. (See Code Civ. Proc., § 1281.4.) Accordingly, this action is STAYED under Code of Civil Procedure section 1281.4 pending the completion of arbitration.
The Court also sets an OSC Hearing re: Status of Arbitration for Feb. 25, 2020. at 8:30 a.m. in Department 94.
Moving parties are ordered to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
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