This case was last updated from Los Angeles County Superior Courts on 05/16/2022 at 19:36:04 (UTC).

DERRICK R UPCHURCH, ET AL. VS BC DESIGN AND DEVELOPMENT, INC., ET AL.

Case Summary

On 08/31/2021 DERRICK R UPCHURCH, filed a Contract - Other Contract lawsuit against BC DESIGN AND DEVELOPMENT, INC ,. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MAURICE A. LEITER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2131

  • Filing Date:

    08/31/2021

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MAURICE A. LEITER

 

Party Details

Plaintiffs

UPCHURCH DERRICK R

UPCHURCH SARI M

Defendants, Cross Defendants and Cross Plaintiffs

ACCREDITED SURETY AND CASUALTY COMPANY INC.

ACOSTA SERGIO DBA ACOSTA POOLS

AMERICAN CONTRACTORS INDEMNITY COMPANY

BC DESIGN AND DEVELOPMENT INC. AKA BC DESIGN & DEVELOPMENT INC.

CASTILLO HUGO

COUCH BARBARA

COUCH BRADLEY ALLEN AKA BRADLEY ALAN COUCH AKA BRAD ALAN COUCH AKA BRAD DEAN AKA BRAD ALAN AKA BRADLEY ALLAN COUCH AKA BRAD A. COUCH AKA BRADLEY COUCH AKA BRAD COUCH AKA BRAD ALLEN

DOUGE NATHALIE DBA DOUGE + ASSOCIATES DBA DOUGE AND ASSOCIATES DBA D + A

GREER MARK ZACKARY

HDZ PLUMBING & SEWER INC.

HERNANDEZ ARTURO GUILLEN DBA HDZ PLUMBING

HUDSON INSURANCE COMPANY

JOLLEY GREG KENT DBA VIKING ELECTRIC

LANESE JOHN KENNETH DBA JONNYCRETE CONCRETE SERVICES

MILLENIUM AIR INC.

NAVASARTIAN SEVAN DBA UNIVERSAL NAVA ELECTRIC

RAVNDAL GREG AKA GREGORY RAVNDAL AKA GREGORY S. RAVNDAL AKA GREGORY SCOTT RAVNDAL AKA GREGORY RANDALL

SURETEC INSURANCE COMPANY

Cross Defendants, Cross Plaintiffs and Defendants

BC DESIGN AND DEVELOPMENT INC. AKA BC DESIGN & DEVELOPMENT INC.

GREER MARK ZACKARY

MILLENIUM AIR INC.

SURETEC INSURANCE COMPANY

22 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorney

KROL DAVID

Defendant Attorneys

KAJO VICTORIA T.

GASCOU CHRISTIAN J.

PAZOS JAMES

BARKER CHRISTINE DIANNE

CAMERON CLARK HOWARD

REINHOLTZ JACK R

EBNER DARREN M.

Cross Plaintiff Attorney

ORTEGA-SMITH TERESA

Cross Defendant Attorneys

MALEK JEFFREY L

NAGLE JOHN STEPHEN

 

Court Documents

Notice of Ruling

5/5/2022: Notice of Ruling

Objection - OBJECTION TO DEFENDANT NATHALIE DOUGE'S NOTICE OF RULING ON MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF SAME

5/5/2022: Objection - OBJECTION TO DEFENDANT NATHALIE DOUGE'S NOTICE OF RULING ON MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF SAME

Answer

4/27/2022: Answer

Cross-Complaint

4/27/2022: Cross-Complaint

Order - ORDER RULING OF 4/22/22

4/22/2022: Order - ORDER RULING OF 4/22/22

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

4/22/2022: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Notice of Ruling

4/25/2022: Notice of Ruling

Notice of Posting of Jury Fees

4/27/2022: Notice of Posting of Jury Fees

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL ARBITRATION; CASE MANAGEMENT CONF...)

4/22/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL ARBITRATION; CASE MANAGEMENT CONF...)

Case Management Statement

4/19/2022: Case Management Statement

Case Management Statement

4/15/2022: Case Management Statement

Response - RESPONSE DEFENDANT NATHALIE DOUGE DBA DOUGE AND ASSOCIATES' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF THE SAME

4/15/2022: Response - RESPONSE DEFENDANT NATHALIE DOUGE DBA DOUGE AND ASSOCIATES' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF THE SAME

Reply - REPLY DEFENDANT NATHALIE DOUGE DBA DOUGE AND ASSOCIATES' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF THE SAME

4/15/2022: Reply - REPLY DEFENDANT NATHALIE DOUGE DBA DOUGE AND ASSOCIATES' REPLY TO PLAINTIFFS' OPPOSITION TO MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF THE SAME

Notice - NOTICE OF REMOTE APPEARANCE

4/15/2022: Notice - NOTICE OF REMOTE APPEARANCE

Objection - OBJECTION TO EVIDENCE SUBMITTED BY DEFENDANT NATHALIE DOUGE IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF THE SAME

4/11/2022: Objection - OBJECTION TO EVIDENCE SUBMITTED BY DEFENDANT NATHALIE DOUGE IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF THE SAME

Opposition - OPPOSITION TO MOTION OF DEFENDANT NATHALIE DOUGE TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF THE SAME; DECLARATION OF SARI M. UPCHURCH; DECLARATION OF DERRICK R

4/11/2022: Opposition - OPPOSITION TO MOTION OF DEFENDANT NATHALIE DOUGE TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF THE SAME; DECLARATION OF SARI M. UPCHURCH; DECLARATION OF DERRICK R

Case Management Statement

4/12/2022: Case Management Statement

Case Management Statement

4/13/2022: Case Management Statement

112 More Documents Available

 

Docket Entries

  • 07/12/2022
  • Hearing07/12/2022 at 09:00 AM in Department 54 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 05/05/2022
  • DocketNotice of Ruling; Filed by DERRICK R UPCHURCH (Plaintiff)

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  • 05/05/2022
  • DocketObjection (TO DEFENDANT NATHALIE DOUGE'S NOTICE OF RULING ON MOTION TO COMPEL ARBITRATION AND TO DISMISS OR STAY ACTION PENDING OUTCOME OF SAME); Filed by DERRICK R UPCHURCH (Plaintiff)

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  • 04/27/2022
  • DocketCross-Complaint; Filed by MONTY VENTSAM, INC., a California corporation Erroneously Sued As VENTSAM WINDOW AND DOOR (Defendant)

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  • 04/27/2022
  • DocketAnswer; Filed by MONTY VENTSAM, INC., a California corporation Erroneously Sued As VENTSAM WINDOW AND DOOR (Defendant)

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  • 04/27/2022
  • DocketNotice of Posting of Jury Fees; Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 04/25/2022
  • DocketNotice of Ruling; Filed by NATHALIE DOUGE (Defendant)

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  • 04/22/2022
  • Docketat 09:00 AM in Department 54; Case Management Conference - Held

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  • 04/22/2022
  • Docketat 09:00 AM in Department 54, Maurice A. Leiter, Presiding; Hearing on Motion to Compel Arbitration - Held

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  • 04/22/2022
  • DocketMinute Order ( (Hearing on Motion to Compel Arbitration; Case Management Conf...)); Filed by Clerk

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107 More Docket Entries
  • 09/21/2021
  • DocketProof of Personal Service; Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 09/20/2021
  • DocketProof of Service by Substituted Service; Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 09/20/2021
  • DocketProof of Personal Service; Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 09/20/2021
  • DocketProof of Service by Substituted Service; Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 09/13/2021
  • DocketRequest for Dismissal; Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 09/01/2021
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/31/2021
  • DocketSummons (on Complaint); Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 08/31/2021
  • DocketComplaint; Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 08/31/2021
  • DocketCivil Case Cover Sheet; Filed by DERRICK R UPCHURCH (Plaintiff); SARI M UPCHURCH (Plaintiff)

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  • 08/31/2021
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******2131 Hearing Date: April 22, 2022 Dept: 54

Superior Court of California

County of Los Angeles

Derrick R. Upchurch, et al.,

Plaintiffs,

Case No.:

*******2131

vs.

Tentative Ruling

BC Design and Development, Inc., et al.,

Defendants.

Hearing Date: April 22, 2022

Department 54, Judge Maurice A. Leiter

Motion to Compel Arbitration

Moving Party: Defendant Nathalie Doug dba Doug and Associates

Responding Party: Plaintiffs Derrick R. Upchurch and Sari M. Upchurch

T/R: DEFENDANT’S MOTION TO COMPEL ARBITRATION IS GRANTED. THE ACTION IS STAYED.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers, opposition and reply.

BACKGROUND

On August 31, 2021, Plaintiffs Derrick R. Upchurch and Sari M. Upchurch sued Defendants BC Design and Development, Inc., et al., asserting ten causes of action for breach of contract, fraud, and negligence. This action arises from the remodel of Plaintiff’s home.

ANALYSIS

“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 a 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….” (CCP 1281.2.) The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact. (CCP 1281.2(a)-(c).) “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

A. Existence of Arbitration Agreement

Defendant Nathalie Doug dba Doug and Associates moves to compel arbitration based on the arbitration provision in the contract for services by Defendant for Plaintiffs. Plaintiff Derrick Upchurch executed the contract on September 11, 2017. (Decl. Doug , Exh. A.) The agreement provides, "Claims, disputes or other matters in question between the parties to this Agreement arising out of or relating to this Agreement or breach thereof shall be subject to and decided by arbitration." (Id. 14.1.) This action arises out of and relates to Defendant’s performance of services under the contract.

In opposition, Plaintiffs argue that Plaintiff Sari Upchurch is not bound by the agreement because she did not sign it. The Court is unpersuaded by this argument. Plaintiffs’ complaint states both Plaintiffs entered into a written agreement for Defendant’s services, both Plaintiffs have brought a cause of action for breach of that agreement, and the agreement is addressed to both Plaintiffs. This shows Plaintiff Sari’s assent to the agreement. (See e.g. Vita Planning & Landscape Architecture, Inc. v. HKS Architects, Inc. (2015) 240 Cal.App.4th 763, 773 [Allegation of the existence of a contract in the complaint is a judicial admission and the absence of signatures does not make an agreement unenforceable.])

Defendant has established an agreement to arbitrate. The burden shifts to Plaintiffs to establish any defenses to enforcement.

B. Enforceability

Plaintiffs asserts that the arbitration agreement is both procedurally and substantively unconscionable as an adhesion contract. Regarding procedural unconscionability, the California Supreme Court has stated:

“[T]here are degrees of procedural unconscionability. At one end of the spectrum are contracts that have been freely negotiated by roughly equal parties, in which there is no procedural unconscionability . . . . Contracts of adhesion that involve surprise or other sharp practices lie on the other end of the spectrum. [Citation.] Ordinary contracts of adhesion, although they are indispensable facts of modern life that are generally enforced (see Graham v. Scissor–Tail, Inc. (1981) 28 Cal.3d 807, 817–818, 171 Cal.Rptr. 604, 623 P.2d 165), contain a degree of procedural unconscionability even without any notable surprises, and ‘bear within them the clear danger of oppression and overreaching.’ (Id. at p. 818 [171 Cal.Rptr. 604, 623 P.2d 165].)” (Gentry v. Superior Court (2007) 42 Cal.4th 443, 469, 64 Cal.Rptr.3d 773, 165 P.3d 556.)

(Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1244.)

Plaintiffs claim that they did not have an opportunity to negotiate the contracts, and Defendant failed to provide the AAA rules for construction cases. In the moving papers and reply, Defendant emphasizes that both Plaintiffs are attorneys. Plaintiffs do not dispute this. This is a contract for services into which neither party was required to enter and both parties had equal bargaining power. Plaintiffs, as attorneys, were aware of this. There is no procedural unconscionability. The Court need not address substantive unconscionability. (See Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 981 [Agreements must be both procedurally and substantively unconscionable to be unenforceable.])

Plaintiffs also argues that Defendant has waived the right to compel arbitration and there is a risk of conflicting rulings. These arguments are unpersuasive. Defendant promptly sought arbitration after Plaintiffs filed this action and the risk of conflicting rulings is not sufficiently great to deny arbitration.

Defendant’s motion to compel arbitration is GRANTED. The action is STAYED.



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