This case was last updated from Los Angeles County Superior Courts on 11/30/2021 at 13:52:36 (UTC).

WILBUR A OLIVAREZ VS AUSTRA MOTORS, INC., ET AL.

Case Summary

On 03/30/2020 WILBUR A OLIVAREZ filed a Contract - Other Contract lawsuit against AUSTRA MOTORS, INC . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2870

  • Filing Date:

    03/30/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

OLIVAREZ WILBUR A

Cross Plaintiffs and Defendants

TUSTIN COMMUNITY BANK

STATE NATIONAL INSURANCE COMPANY INC.

AUSTRA MOTORS INC.

Cross Defendants and Defendants

AUSTRA MOTORS INC.

FARD ALI

Attorney/Law Firm Details

Plaintiff Attorney

SADR KASRA

Cross Plaintiff and Defendant Attorneys

SHIN JIWON M.

EVANS NEIL

 

Court Documents

Minute Order - Minute Order (Order to Show Cause Re: Entry of Default and Default Judgment...)

11/3/2021: Minute Order - Minute Order (Order to Show Cause Re: Entry of Default and Default Judgment...)

Answer - Answer

10/20/2021: Answer - Answer

Summons - Summons Cross Summons

10/20/2021: Summons - Summons Cross Summons

Cross-Complaint - Cross-Complaint

10/20/2021: Cross-Complaint - Cross-Complaint

Minute Order - Minute Order (Order to Show Cause Re: Entry of Default and Default Judgment...)

9/28/2021: Minute Order - Minute Order (Order to Show Cause Re: Entry of Default and Default Judgment...)

Notice (name extension) - Notice OF CONTINUEDORDER TO SHOW CAUSE RE: ENTRY OF DEFAULTAND DEFAULT JUDGMENT / DISMISSAL

9/29/2021: Notice (name extension) - Notice OF CONTINUEDORDER TO SHOW CAUSE RE: ENTRY OF DEFAULTAND DEFAULT JUDGMENT / DISMISSAL

Declaration (name extension) - Declaration Declaration of Nima Heydari in Support of Plaintiff's Motion to Lift Stay

1/19/2021: Declaration (name extension) - Declaration Declaration of Nima Heydari in Support of Plaintiff's Motion to Lift Stay

Motion re: (name extension) - Motion re: Plaintiff's Request to Lift Stay

1/19/2021: Motion re: (name extension) - Motion re: Plaintiff's Request to Lift Stay

Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Order Motion to Lift Stay) of 06/21/2021

6/21/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Motion for Order Motion to Lift Stay) of 06/21/2021

Minute Order - Minute Order (Hearing on Motion for Order Motion to Lift Stay)

6/21/2021: Minute Order - Minute Order (Hearing on Motion for Order Motion to Lift Stay)

Notice (name extension) - Notice Plaintiff's Notice of Ruling on Plaintiff's Motion to Lift Stay

6/24/2021: Notice (name extension) - Notice Plaintiff's Notice of Ruling on Plaintiff's Motion to Lift Stay

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

6/29/2021: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Notice (name extension) - Notice Amended Notice of Ruling on Plaintiff's Motion to Lift Stay

6/29/2021: Notice (name extension) - Notice Amended Notice of Ruling on Plaintiff's Motion to Lift Stay

Amended Complaint - Amended Complaint (1st)

7/29/2021: Amended Complaint - Amended Complaint (1st)

Declaration (name extension) - Declaration DECLARATION OF NIMA HEYDARI IN SUPPORT OF PLAINTIFFS EX PARTE APPLICATION TO CONTINUE OR VACATE TRIAL DATES

8/4/2021: Declaration (name extension) - Declaration DECLARATION OF NIMA HEYDARI IN SUPPORT OF PLAINTIFFS EX PARTE APPLICATION TO CONTINUE OR VACATE TRIAL DATES

Ex Parte Application (name extension) - Ex Parte Application PLAINTIFFS EX PARTE APPLICATION TO CONTINUE OR VACATE TRIAL DATES

8/4/2021: Ex Parte Application (name extension) - Ex Parte Application PLAINTIFFS EX PARTE APPLICATION TO CONTINUE OR VACATE TRIAL DATES

Minute Order - Minute Order (Hearing on Ex Parte Application PLAINTIFFS EX PARTE APPLICATI...)

8/6/2021: Minute Order - Minute Order (Hearing on Ex Parte Application PLAINTIFFS EX PARTE APPLICATI...)

Answer - Answer

8/13/2021: Answer - Answer

23 More Documents Available

 

Docket Entries

  • 02/01/2022
  • Hearing02/01/2022 at 09:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: (name extension)

    Read MoreRead Less
  • 02/01/2022
  • Hearing02/01/2022 at 09:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

    Read MoreRead Less
  • 02/01/2022
  • Hearing02/01/2022 at 09:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: (name extension)

    Read MoreRead Less
  • 11/03/2021
  • DocketOrder to Show Cause Re: Entry of Default and Default Judgment as to State National Insurance Company, Inc. scheduled for 02/01/2022 at 09:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 11/03/2021
  • DocketOrder to Show Cause Re: Why Sanctions Should Not be Imposed for Plaintiff's Failure to Comply with California Rules of Court Section 3.110(g) and (h) scheduled for 02/01/2022 at 09:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 11/03/2021
  • DocketOrder to Show Cause Re: Failure to File Proof of Service of the Cross-Complaint scheduled for 02/01/2022 at 09:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 11/03/2021
  • DocketMinute Order (Order to Show Cause Re: Entry of Default and Default Judgment...)

    Read MoreRead Less
  • 11/03/2021
  • DocketOrder to Show Cause Re: Entry of Default and Default Judgment/Dismissal scheduled for 11/03/2021 at 09:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 11/03/2021; Result Type to Held - Continued

    Read MoreRead Less
  • 10/20/2021
  • DocketAnswer; Filed by: Tustin Community Bank (Defendant); As to: Wilbur A Olivarez (Plaintiff)

    Read MoreRead Less
  • 10/20/2021
  • DocketCross-Complaint; Filed by: Tustin Community Bank (Defendant); As to: Austra Motors, Inc. (Defendant); Ali Fard (Cross-Defendant)

    Read MoreRead Less
48 More Docket Entries
  • 04/09/2020
  • DocketHearing on Motion to Compel Motion to Compel Arbitration scheduled for 07/09/2020 at 10:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 04/09/2020
  • DocketMotion to Compel Arbitration; Filed by: Wilbur A Olivarez (Plaintiff); As to: Austra Motors, Inc. (Defendant); Tustin Community Bank (Defendant)

    Read MoreRead Less
  • 03/30/2020
  • DocketNon-Jury Trial scheduled for 09/27/2021 at 08:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 03/30/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/03/2023 at 08:30 AM in Spring Street Courthouse at Department 25

    Read MoreRead Less
  • 03/30/2020
  • DocketComplaint; Filed by: Wilbur A Olivarez (Plaintiff); As to: Austra Motors, Inc. (Defendant); Tustin Community Bank (Defendant); State National Insurance Company, Inc. (Defendant)

    Read MoreRead Less
  • 03/30/2020
  • DocketSummons on Complaint; Issued and Filed by: Wilbur A Olivarez (Plaintiff); As to: Austra Motors, Inc. (Defendant); Tustin Community Bank (Defendant); State National Insurance Company, Inc. (Defendant)

    Read MoreRead Less
  • 03/30/2020
  • DocketCivil Case Cover Sheet; Filed by: Wilbur A Olivarez (Plaintiff); As to: Austra Motors, Inc. (Defendant); Tustin Community Bank (Defendant); State National Insurance Company, Inc. (Defendant)

    Read MoreRead Less
  • 03/30/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

    Read MoreRead Less
  • 03/30/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

    Read MoreRead Less
  • 03/30/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

    Read MoreRead Less

Tentative Rulings

Case Number: 20STLC02870    Hearing Date: October 22, 2020    Dept: 25

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

CASE NAME: Olivarez v. Austra Motors, Inc., et al COMPL. FILED: 03-30-20

CASE NUMBER: 20STLC02870 DISC. C/O: 08-28-21

NOTICE:   OK DISC. MOT. C/O:    09-12-21

TRIAL DATE: 09-27-21

PROCEEDINGS    PLAINTIFF’S MOTION TO COMPEL ARBITRATION, PETITION FOR COURT TO PICK ARBITRATION FORUM, REQUEST FOR STAY, AND REQUEST FOR COSTS

MOVING PARTY:   Plaintiff Wilbur A. Olivarez

RESP. PARTY: None

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2 et seq.)

TENTATIVE RULING:

Plaintiff Wilbur A. Olivarez’s Motion to Compel Arbitration is GRANTED. The matter is STAYED and is to be arbitrated before the AAA. Defendant Austra Motors, Inc. is ordered to pay any outstanding fees to the AAA and to register its consumer clause on AAA’s Consumer Clause Registry to reinstate the case therein. However, as Plaintiff did not specify the amount of costs sought, the request for costs is 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

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

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

ANALYSIS:

  1. Background

On March 30, 2020, Plaintiff Wilbur A. Olivarez (“Plaintiff”) filed an action for violation of the Consumers Legal Remedies Act, violation of Business and Professions Code section 17200, negligent misrepresentation, violation of warranties, and claim against surety against Defendants Austra Motors, Inc. (“Austra”), Tustin Community Bank (“Tustin”), and State National Insurance Company, Inc. (“State National”).

On April 9, 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”), which was originally set for hearing for July 9, 2020 at 10:30 a.m. On July 2, 2020, the Court, on its own motion, continued the hearing to August 13, 2020 at 10:00 a.m. (7/2/20 Notice re Continuance of Hearing and Order.) Plaintiff was ordered to give notice of the continuance and file a proof of service demonstrating it gave such notice. (Id.)

At the initial August 13, 2020 hearing, the Court continued the matter because Plaintiff did not file a proof of service demonstrating he gave Defendants notice of the July 2nd continuance. (8/13/20 Minute Order.) The Court also noted that although Plaintiff’s request for costs was proper, he did not specify the amount of costs sought. (Id.) Accordingly, Plaintiff’s counsel was ordered to file a supplemental declaration regarding the costs incurred. (Id.)

To date, Defendants have not filed an opposition, and Plaintiff’s counsel has not filed a supplemental declaration regarding the costs sought.

  1. 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.)

  1. Discussion

A. Arbitration

Plaintiff brings the instant Motion seeking to compel Defendant Austra Motors, as the dealer, and Defendant Tustin, as the holder of the contract, to submit to arbitration based on the arbitration provision in a Retail Installment Sales Contract (“RISC”). (Mot., p. 3:6-8; 6:15-16.) Plaintiff and Defendant Austra Motors are both parties to the contract, and Defendant Tustin is alleged to have been assigned the RISC. (Mot., Heydari Decl., ¶ 3, Exh. 1; Compl., ¶ 37.)

The RISC states the following:

“Any claim or dispute, whether in contract, tort, statute, or otherwise…between you, 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…You may choose the American Arbitration Association [“AAA”]…or any other organization to conduct the arbitration subject to our approval.” (Mot., Heydari Decl., ¶ 3, Exh. 1.)

Plaintiff’s evidence demonstrates that on January 17, 2019, Plaintiff’s counsel sent Defendant Austra Motors and Defendant Tustin a letter demanding arbitration. (Id. at ¶ 4, Exh. 2.) After submitting the claim, Plaintiff’s counsel received a letter from the AAA indicating that, because Defendant Austra Motors failed to comply with AAA’s policies, including failing to pay required fees and registering its consumer clause on AAA’s Consumer Clause Registry, it declined to administer the claim. (Id. at ¶ 8, Exh. 3.) Notably, neither Defendant Austra Motors nor Defendant Tustin have filed an opposition to this Motion.

Based on the above, the Court finds that Plaintiff demonstrated the existence of an arbitration agreement, and that the Court’s intervention is required to enforce the arbitration provision.

As noted by the Court at the August 13, 2020 hearing, Plaintiff requests costs for having to bring this Motion. (Mot., p. 7:11-14.) “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.) Plaintiff’s counsel was ordered to file and serve a supplemental declaration regarding the costs incurred so that the Court could determine the proper amount of costs to award. (8/13/20.) As Plaintiff’s counsel did not do so, the request for costs is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Wilbur A. Olivarez’s Motion to Compel Arbitration is GRANTED. The matter is STAYED and is to be arbitrated before the AAA. Defendant Austra Motors, Inc. is ordered to pay any outstanding fees to the AAA and to register its consumer clause on AAA’s Consumer Clause Registry to reinstate the case therein. However, as Plaintiff did not specify the amount of costs sought, the request for costs is DENIED.

Moving party is ordered to give notice.

Case Number: 20STLC02870    Hearing Date: October 21, 2020    Dept: 25

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

CASE NAME: Olivarez v. Austra Motors, Inc., et al COMPL. FILED: 03-30-20

CASE NUMBER: 20STLC02870 DISC. C/O: 08-28-21

NOTICE: OK DISC. MOT. C/O: 09-12-21

TRIAL DATE: 09-27-21

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

MOVING PARTY: Plaintiff Wilbur A. Olivarez

RESP. PARTY: None

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2 et seq.)

TENTATIVE RULING:

Plaintiff Wilbur A. Olivarez’s Motion to Compel Arbitration is GRANTED. The matter is STAYED and is to be arbitrated before the AAA. Defendant Austra Motors, Inc. is ordered to pay any outstanding fees to the AAA and to register its consumer clause on AAA’s Consumer Clause Registry to reinstate the case therein. However, as Plaintiff did not specify the amount of costs sought, the request for costs is 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

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

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

ANALYSIS:

  1. Background

On March 30, 2020, Plaintiff Wilbur A. Olivarez (“Plaintiff”) filed an action for violation of the Consumers Legal Remedies Act, violation of Business and Professions Code section 17200, negligent misrepresentation, violation of warranties, and claim against surety against Defendants Austra Motors, Inc. (“Austra”), Tustin Community Bank (“Tustin”), and State National Insurance Company, Inc. (“State National”).

On April 9, 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”), which was originally set for hearing for July 9, 2020 at 10:30 a.m. On July 2, 2020, the Court, on its own motion, continued the hearing to August 13, 2020 at 10:00 a.m. (7/2/20 Notice re Continuance of Hearing and Order.) Plaintiff was ordered to give notice of the continuance and file a proof of service demonstrating it gave such notice. (Id.)

At the initial August 13, 2020 hearing, the Court continued the matter because Plaintiff did not file a proof of service demonstrating he gave Defendants notice of the July 2nd continuance. (8/13/20 Minute Order.) The Court also noted that although Plaintiff’s request for costs was proper, he did not specify the amount of costs sought. (Id.) Accordingly, Plaintiff’s counsel was ordered to file a supplemental declaration regarding the costs incurred. (Id.)

To date, Defendants have not filed an opposition, and Plaintiff’s counsel has not filed a supplemental declaration regarding the costs sought.

  1. 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.)

  1. Discussion

A. Arbitration

Plaintiff brings the instant Motion seeking to compel Defendant Austra Motors, as the dealer, and Defendant Tustin, as the holder of the contract, to submit to arbitration based on the arbitration provision in a Retail Installment Sales Contract (“RISC”). (Mot., p. 3:6-8; 6:15-16.) Plaintiff and Defendant Austra Motors are both parties to the contract, and Defendant Tustin is alleged to have been assigned the RISC. (Mot., Heydari Decl., ¶ 3, Exh. 1; Compl., ¶ 37.)

The RISC states the following:

“Any claim or dispute, whether in contract, tort, statute, or otherwise…between you, 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…You may choose the American Arbitration Association [“AAA”]…or any other organization to conduct the arbitration subject to our approval.” (Mot., Heydari Decl., ¶ 3, Exh. 1.)

Plaintiff’s evidence demonstrates that on January 17, 2019, Plaintiff’s counsel sent Defendant Austra Motors and Defendant Tustin a letter demanding arbitration. (Id. at ¶ 4, Exh. 2.) After submitting the claim, Plaintiff’s counsel received a letter from the AAA indicating that, because Defendant Austra Motors failed to comply with AAA’s policies, including failing to pay required fees and registering its consumer clause on AAA’s Consumer Clause Registry, it declined to administer the claim. (Id. at ¶ 8, Exh. 3.) Notably, neither Defendant Austra Motors nor Defendant Tustin have filed an opposition to this Motion.

Based on the above, the Court finds that Plaintiff demonstrated the existence of an arbitration agreement, and that the Court’s intervention is required to enforce the arbitration provision.

As noted by the Court at the August 13, 2020 hearing, Plaintiff requests costs for having to bring this Motion. (Mot., p. 7:11-14.) “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.) Plaintiff’s counsel was ordered to file and serve a supplemental declaration regarding the costs incurred so that the Court could determine the proper amount of costs to award. (8/13/20.) As Plaintiff’s counsel did not do so, the request for costs is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Wilbur A. Olivarez’s Motion to Compel Arbitration is GRANTED. The matter is STAYED and is to be arbitrated before the AAA. Defendant Austra Motors, Inc. is ordered to pay any outstanding fees to the AAA and to register its consumer clause on AAA’s Consumer Clause Registry to reinstate the case therein. However, as Plaintiff did not specify the amount of costs sought, the request for costs is DENIED.

Moving party is ordered to give notice.

Case Number: 20STLC02870    Hearing Date: August 13, 2020    Dept: 25

HEARING DATE: Thu., August 13, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Olivarez v. Austra Motors, Inc., et al COMPL. FILED: 03-30-20

CASE NUMBER: 20STLC02870 DISC. C/O: 08-28-21

NOTICE: NO (for continued hearing) DISC. MOT. C/O: 09-12-21

TRIAL DATE: 09-27-21

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

MOVING PARTY: Plaintiff Wilbur A. Olivarez

RESP. PARTY: None

MOTION TO COMPEL ARBITRATION

(CCP § 1281.2 et seq.)

TENTATIVE RULING:

Plaintiff Wilbur A. Olivarez’s Motion to Compel Arbitration is CONTINUED TO OCTOBER 22 at 11:00 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 addressing the deficiencies identified herein. 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

OPPOSITION: None filed as of August 11, 2020 [ ] Late [X] None

REPLY: None filed as of August 11, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On March 30, 2020, Plaintiff Wilbur A. Olivarez (“Plaintiff”) filed an action for violation of the Consumers Legal Remedies Act, violation of Business and Professions Code section 17200, negligent misrepresentation, violation of warranties, and claim against surety against Defendants Austra Motors, Inc. (“Austra”), Tustin Community Bank (“Tustin”), and State National Insurance Company, Inc. (“State National”).

On April 9, 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”), which was originally set for hearing for July 9, 2020 at 10:30 a.m. On July 2, 2020, the Court, on its own motion, continued the hearing to August 13, 2020 at 10:00 a.m. (7/2/20 Notice re Continuance of Hearing and Order.) Plaintiff was ordered to give notice of the continuance and file a proof of service demonstrating it gave such notice. (Id.)

To date, Plaintiff has not filed a proof of service as to the July 2nd continuance. Nor has any defendant filed an opposition.

  1. 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.)

  1. Discussion

A. Arbitration

Plaintiff brings the instant Motion seeking to compel Defendant Austra Motors, as the dealer, and Defendant Tustin, as the holder of the contract, to submit to arbitration based on the arbitration provision in the Retail Installment Sales Contract (“RISC”). (Mot., p. 3:6-8; 6:15-16.) Plaintiff and Defendant Austra Motors are both parties to the contract, and Defendant Tustin is alleged to have been assigned the RISC. (Mot., Heydari Decl., ¶ 3, Exh. 1; Compl., ¶ 37.)

The RISC states the following:

“Any claim or dispute, whether in contract, tort, statute, or otherwise…between you, 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…You may choose the American Arbitration Association [“AAA”]…or any other organization to conduct the arbitration subject to our approval.” (Mot., Heydari Decl., ¶ 3, Exh. 1.)

Plaintiff’s evidence demonstrates that on January 17, 2019, Plaintiff’s counsel sent Defendant Austra Motors and Defendant Tustin a letter demanding arbitration. (Id. at ¶ 4, Exh. 2.) After submitting the claim, Plaintiff’s counsel received a letter from the AAA indicating that, because Defendant Austra Motors failed to comply with AAA’s policies, including failing to pay required fees and registering its consumer clause on AAA’s Consumer Clause Registry, it declined to administer the claim. (Id. at ¶ 8, Exh. 3.) Notably, neither Defendant Austra Motors nor Defendant Tustin have submitted an opposition to this Motion.

Based on the above, the Court finds that Plaintiff demonstrated the existence of an arbitration agreement, and the Court is inclined to grant Plaintiff’s request to compel arbitration. However, Plaintiff did not file any proofs of service demonstrating that it gave Defendants notice of the July 2nd continuance as ordered. (7/2/20 Notice re Continuance of Hearing and Order.)

Plaintiff also requests costs for having to bring this Motion. (Mot., p. 7:11-14.) “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.) However, Plaintiff’s Motion does not specify the amount of costs sought. Thus, Plaintiff is ordered to file and serve a supplemental declaration detailing the costs incurred in this filing this Motion.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Wilbur A. Olivarez’s Motion to Compel Arbitration is CONTINUED TO OCTOBER 22, 2020 at 11:00 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 addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

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