ROBERT HEROD, ET AL. VS PLANET CARS, INC., ET AL.

Tentative Rulings

Case Number: 20STLC02711    Hearing Date: May 20, 2021    Dept: 25

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

MOVING PARTY: Plaintiffs Robert Herod and Rochelle Herod

RESP. PARTY: Defendant Planet Cars, Inc.

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2, et seq.)

TENTATIVE RULING:

Plaintiffs Robert Herod and Rochelle Herod’s Motion to Compel Arbitration is CONTINUED TO JUNE 21, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiffs must file a proof of service demonstrating all Defendants were served with notice of the continued hearing. Failure to do so will result in the Motion being placed off calendar or denied.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[ ] Correct Address (CCP §§ 1013, 1013a) NO

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: Filed on April 9, 2021 [ ] Late [ ] None

REPLY: None filed as of May 18, 2021 [ ] Late [X] None

ANALYSIS:

I. Background & Discussion

On March 23, 2020, Plaintiffs Robert Herod and Rochelle Herod (“Plaintiffs”) filed a Complaint alleging violations of the Consumers Legal Remedies Act, violation of California Business and Professions Code § 17200, et seq., negligent misrepresentation, claim against surety, and violation of Code of Civil Procedure sections 1281.97 and 1281.99 against Defendants Planet Cars, Inc. dba Cash or Finance Auto (“Planet Cars”), M&N Financing Corporation (“M&N”), and International Fidelity Insurance Company (“Fidelity”). Defendant Planet Cars filed an Answer on June 1, 2020.

On April 2, 2020, Plaintiffs filed their first motion to compel arbitration, which was placed off calendar on October 22, 2020 due to Plaintiffs’ failure to file a proper proof of service as to Defendant M&N. (8/12/20 Minute Order; 10/22/20 Minute Order.)

Plaintiffs filed the instant Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, and Request for Costs (the “Motion”) on November 20, 2020. The Motion was initially scheduled to be heard on April 22, 2021. The Motion seeks to compel Defendants M&N and Planet Cars to submit their dispute to arbitration. (Mot., pp. 1-2.) Defendant Planet Cars filed a limited opposition on April 9.

Due to the Court’s unavailability, the hearing was continued to May 20, 2021 at 10:00 a.m. (4/16/21 Minute Order.) Defendant Planet Cars was given notice of the continued hearing (4/16/21 Certificate of Mailing), but Plaintiffs did not file a proof of service demonstrating Defendant M&N was also given notice. To issue a ruling without proper notice to Defendant M&N would violate Defendant M&N’s due process rights. Accordingly, the hearing is CONTINUED.

II. Conclusion & Order

For the foregoing reasons, Plaintiffs Robert Herod and Rochelle Herod’s Motion to Compel Arbitration is CONTINUED TO JUNE 21, 2021 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiffs must file a proof of service demonstrating all Defendants were served with notice of the continued hearing. Failure to do so will result in the Motion being placed off calendar or denied.

Moving parties are ordered to give notice.

Case Number: 20STLC02711    Hearing Date: October 22, 2020    Dept: 25

HEARING DATE:   Thu., October 22, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Herrod, et al. v. Planet Cars, Inc., et al. COMPL. FILED: 03-23-20

CASE NUMBER: 20STLC02711 DISC. C/O: 08-21-20

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

MOVING PARTY:   Plaintiffs Robert Herod and Rochelle Herod

RESP. PARTY: Defendant Planet Cars, Inc.

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2 et seq.)

TENTATIVE RULING:

Plaintiffs Robert Herod and Rochelle Herod’s Motion to Compel Arbitration is PLACED OFF CALENDAR.

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

OPPOSITION: Filed on June 25, 2020 [   ] Late [   ] None

REPLY: None filed as of October 20, 2020 [   ] Late [X] None

ANALYSIS:

1. Background & Discussion

On March 23, 2020, Plaintiffs Robert Herod and Rochelle Herod (“Plaintiffs”) filed a complaint for violation of the Consumers Legal Remedies Act, violation of California Business and Professions Code § 17200, negligent misrepresentation, claim against surety, and violation of Code of Civil Procedure sections 1281.97 and 1281.99 against Defendants Planet Cars, Inc. dba Cash or Finance Auto (“Planet Cars”), M&N Financing Corporation (“M&N”), and International Fidelity Insurance Company (“Fidelity”). Defendants Planet Cars and Fidelity filed their Answers on June 1, 2020 and August 27, 2020, respectively.

On April 2, 2020, Plaintiffs filed the instant Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, Request for Sanctions, and Request for Costs (the “Motion”). With this Motion, Plaintiffs seek to compel Defendant Planet Cars and M&N to submit to arbitration. Defendant Planet Cars filed a limited Opposition on June 1, 2020.

On July 7, 2020, the Court continued the matter to August 12, 2020 at 10:00 a.m. (7/7/20 Notice re Continuance of Hearing and Order.) At the initial August 12th hearing, the Court noted several errors on the proof of service for the Summons, Complaint, and this Motion as to Defendant M&N. (8/12/20 Minute Order.) Because proper service is the means by which a court obtains personal jurisdiction, the Court ordered Plaintiffs to file a corrected proof of service demonstrating Defendant M&N was properly served with this action. (Id.) The Court warned that failure to do so could result in the Motion being placed off calendar or denied. (Id.)

To date, Plaintiffs have not filed the corrected proof of service as requested. Thus, the Court is unable to determine whether it acquired jurisdiction over Defendant M&N. Accordingly, the Motion is PLACED OFF CALENDAR.

1. Conclusion & Order

For the foregoing reasons, Plaintiffs Robert Herod and Rochelle Herod’s Motion to Compel Arbitration is PLACED OFF CALENDAR.

Moving party is ordered to give notice.

Case Number: 20STLC02711    Hearing Date: October 21, 2020    Dept: 25

HEARING DATE: Thu., October 22, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Herrod, et al. v. Planet Cars, Inc., et al. COMPL. FILED: 03-23-20

CASE NUMBER: 20STLC02711 DISC. C/O: 08-21-20

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

MOVING PARTY: Plaintiffs Robert Herod and Rochelle Herod

RESP. PARTY: Defendant Planet Cars, Inc.

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2 et seq.)

TENTATIVE RULING:

Plaintiffs Robert Herod and Rochelle Herod’s Motion to Compel Arbitration is PLACED OFF CALENDAR.

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

OPPOSITION: Filed on June 25, 2020 [ ] Late [ ] None

REPLY: None filed as of October 20, 2020 [ ] Late [X] None

ANALYSIS:

1. Background & Discussion

On March 23, 2020, Plaintiffs Robert Herod and Rochelle Herod (“Plaintiffs”) filed a complaint for violation of the Consumers Legal Remedies Act, violation of California Business and Professions Code § 17200, negligent misrepresentation, claim against surety, and violation of Code of Civil Procedure sections 1281.97 and 1281.99 against Defendants Planet Cars, Inc. dba Cash or Finance Auto (“Planet Cars”), M&N Financing Corporation (“M&N”), and International Fidelity Insurance Company (“Fidelity”). Defendants Planet Cars and Fidelity filed their Answers on June 1, 2020 and August 27, 2020, respectively.

On April 2, 2020, Plaintiffs filed the instant Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, Request for Sanctions, and Request for Costs (the “Motion”). With this Motion, Plaintiffs seek to compel Defendant Planet Cars and M&N to submit to arbitration. Defendant Planet Cars filed a limited Opposition on June 1, 2020.

On July 7, 2020, the Court continued the matter to August 12, 2020 at 10:00 a.m. (7/7/20 Notice re Continuance of Hearing and Order.) At the initial August 12th hearing, the Court noted several errors on the proof of service for the Summons, Complaint, and this Motion as to Defendant M&N. (8/12/20 Minute Order.) Because proper service is the means by which a court obtains personal jurisdiction, the Court ordered Plaintiffs to file a corrected proof of service demonstrating Defendant M&N was properly served with this action. (Id.) The Court warned that failure to do so could result in the Motion being placed off calendar or denied. (Id.)

To date, Plaintiffs have not filed the corrected proof of service as requested. Thus, the Court is unable to determine whether it acquired jurisdiction over Defendant M&N. Accordingly, the Motion is PLACED OFF CALENDAR.

1. Conclusion & Order

For the foregoing reasons, Plaintiffs Robert Herod and Rochelle Herod’s Motion to Compel Arbitration is PLACED OFF CALENDAR.

Moving party is ordered to give notice.

Case Number: 20STLC02711    Hearing Date: August 12, 2020    Dept: 25

HEARING DATE:   Wed., August 12, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Herrod, et al. v. Planet Cars, Inc., et al. COMPL. FILED: 03-23-20

CASE NUMBER: 20STLC02711 DISC. C/O: 08-21-20

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

MOVING PARTY:   Plaintiffs Robert Herod and Rochelle Herod

RESP. PARTY: Defendant Planet Cars, Inc.

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2 et seq.)

TENTATIVE RULING:

Plaintiffs Robert Herod and Rochelle Herod’s Motion to Compel Arbitration is CONTINUED TO OCTOBER 22, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiffs must file supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300) NO  

[   ] Correct Address (CCP §§ 1013, 1013a) NO

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: Filed on June 25, 2020 [   ] Late [   ] None

REPLY: None filed as of August 10, 2020 [   ] Late [X] None

ANALYSIS:

1. Background

On March 23, 2020, Plaintiffs Robert Herod and Rochelle Herod (“Plaintiffs”) filed a complaint for violation of the Consumers Legal Remedies Act, violation of California Business and Professions Code § 17200, negligent misrepresentation, claim against surety, and violation of Code of Civil Procedure sections 1281.97 and 1281.99 against Defendants Planet Cars, Inc. dba Cash or Finance Auto (“Planet Cars”), M&N Financing Corporation (“M&N”), and International Fidelity Insurance Company (“Fidelity”). Defendant Planet Cars filed an Answer on June 1, 2020.

On April 2, 2020, Plaintiffs filed the instant Motion to Compel Arbitration, Petition for Court to Pick Arbitration Forum, Request for Stay, Request for Sanctions, and Request for Costs (the “Motion”). Planet Cars filed an Opposition on June 1, 2020. To date, no reply brief has been filed.  

On July 7, 2020, the Court continued the hearing to August 12, 2020 at 10:00 a.m. (7/7/20 Notice re Continuance of Hearing and Order.) Plaintiffs were ordered to give notice of the continuance and file a proof of service demonstrating such notice. (Id.) To date, Plaintiffs have not filed a proof of service regarding the continuance.

A. Service

As an initial matter, the Court discusses the service of the Summons, Complaint, and Motion.

On July 20, 2020, Plaintiffs filed three proofs of service purporting to show that all three defendants were served with the Summons, Complaint, and instant Motion. However, the proof of service as to Defendant M&N states that Plaintiffs served an unidentified person authorized to accept service via substitute service. (7/20/20 Proofs of Service.) Confusingly, it also states the documents were left with Christian Batista, a “person authorized to accept.” (Id.) Thus, it is unclear to the Court whether Defendant M&N was personally served, but the declaration stating it was served via substitute service is incorrect. Alternatively, Defendant M&N’s authorized agent may have been served via substitute service, in which case the process server improperly omitted the name and description of the person that received the papers on behalf of the authorized agent.

Proper service is the means by which a court obtains personal jurisdiction over a party. (Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1206.) (Italics added.) Here, the Court cannot determine whether Defendant M&N was properly served with the action and Motion. Accordingly, Plaintiffs are ordered to file an amended proof of service as to Defendant M&N.

1. Conclusion & Order

For the foregoing reasons, Plaintiffs Robert Herod and Rochelle Herod’s Motion to Compel Arbitration is CONTINUED TO OCTOBER 22, 2020 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiffs must file supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving parties are ordered to give notice.